SAPHYROO RETAILER SOFTWARE LICENCE & ONLINE SERVICES AGREEMENT
This Agreement constitutes a legal agreement between you (“Retailer”, “you”, or “your”) and Saphyroo Pty Ltd (ACN 661 425 869) (“Saphyroo”).
Saphyroo is the developer of the Software and the provider of the Saphyroo Service. The Software enables an enterprise who has either downloaded and installed a copy of the App or accessed the App via web browser, and signed up as a retailer, to manage delivery services from couriers authorised by Saphyroo to use the App.
You operate a business providing, or intending to provide, delivery of the Products to Customers in Australia. You desire to enter into this Agreement for the purpose of accessing and using the Saphyroo Service and the Software to deliver Products to Customers.
In order to use the Saphyroo Service and the Software, you must accept the terms and conditions that are set out below. If you do not accept these terms and conditions, you must not use the Saphyroo Service or the Software.
1.DEFINITIONS AND INTERPRETATION
In addition to the terms defined elsewhere in this Agreement, the following definitions apply:
"Agreement" means this document and includes any document or material referenced by it.
"App" means the software application developed, owned, controlled, managed, maintained, hosted, licensed and/or designed by Saphyroo (or its Related Bodies Corporate) to run on smartphones, tablet computers and/or other devices, through which the Saphyroo Service is made available.
"Corporations Act" means the Corporations Act 2001 (Cth).
"Courier" means the person who renders a Delivery Service and who:
(i) is authorised by Saphyroo to use the App; and
(ii) is employed directly by the Retailer or engaged via the Saphyroo Service.
"Courier Information" means information about a Courier which is provided by Saphyroo to the Retailer via the App, including the Courier’s name, Vehicle details and other relevant information.
"Customer" means a customer of the Retailer who has agreed to accept delivery of Products from the Retailer.
"Data" means all data with regard to or transmitted using the App or the Saphyroo Service, and all data relating to the Retailer, a Courier, a Ride or a Shift.
"Delivery Service" means the delivery of Products to a Customer through the use of the App.
"Equipment" means the Vehicle plus any safety equipment, smartphone (with minimum software iOS or Android as advised by Saphyroo from time to time), or any other equipment deemed necessary for the Delivery Services.
"Intellectual Property Rights" means any patent, copyright, invention, database right, design right, registered design, trade mark, trade name, brand, logo, slogan, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, knowhow, trade or business name, domain name (under whatever extension, e.g. .com, .au, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction anywhere in the world.
"Personal Information" has the meaning given in the Privacy Act.
"Privacy Act" means the Privacy Act 1988 (Cth) as amended or replaced.
"Privacy Laws" means the Privacy Act, any registered APP Code that binds a party, and any other applicable legislation, principles and industry codes and policies relating to the handling of Personal Information.
"Product" means all goods offered for delivery by the Retailer, including merchandise and promotional material offered from time to time.
"Related Body Corporate" has the meaning given in the Corporations Act
"Retailer Courier" means a Courier who is employed directly by the Retailer.
"Retailer ID" means the identification by which the Retailer can access and use the App.
"Retailer Information" means information about the Retailer which is provided by Saphyroo to the Courier via the App, including the Retailer’s name and the Retailer’s pick-up location.
"Ride" means the transportation of Products by the Courier from the point of pick-up of the Retailer until the point of drop-off to a Customer.
"Shift" means the fixed period (not to be shorter than 3 hours) during which the Retailer requires a Courier to provide Delivery Services.
"Software" means Saphyroo’s application and associated software, including the App.
"Software Fee" means the fee that the Retailer must pay Saphyroo for a Delivery Service rendered by a Retailer Courier.
"Vehicle" means any motorised vehicle that has been accepted by Saphyroo and identified as the vehicle to be used by the Courier in the provision of the Delivery Service.
"Website" means the Saphyroo website at www.saphyroo.com.
In the Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, the Agreement, as amended from time to time in accordance with the Agreement;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to time is to the time in the place where the Delivery Services are provided;
(g) a reference to a party is to a party to the Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(i) the meaning of general words is not limited by specific examples introduced by including,
for example or similar expressions; and
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Agreement or any part of it.
2.LICENCE GRANT
2.1 Saphyroo grants the Retailer a non-exclusive and non-transferable right to use the Software and Saphyroo Service for the purpose of using and offering the Delivery Service in Australia, subject to the terms and conditions of this Agreement. All rights not expressly granted to the Retailer are reserved by Saphyroo and its licensors. The Retailer may allow members of its alcohol marketing group to use the Software and Saphyroo Service, provided such members agree to be bound by the terms and conditions of this Agreement.
2.2 The Retailer must not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Saphyroo Service or the Software in any way;
(b) modify or make derivative works based upon the Saphyroo Service or the Software;
(c) create Internet “links” to the Saphyroo Service or Software or “frame” or “mirror” any Software on any other server, wireless or Internet-based device;
(d) reverse engineer, decompile, modify, or disassemble the Software, except as allowed under applicable laws;
(e) access the Software in order to:
a. build a competitive product or service;
b. build a product using similar ideas, features, functions or graphics of the
Saphyroo Service or Software; or
c. copy any ideas, features, functions or graphics of the Saphyroo Service or Software; or
(f) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Saphyroo Service or Software.
2.3The Retailer may not use the Software or Saphyroo Service in contravention of applicable laws or to:
(a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to or not suitable for children or violative of third party privacy rights;
(c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(d) interfere with or disrupt the integrity or performance of the Software or Saphyroo Service or the data contained therein; or
(e) attempt to gain unauthorized access to the Software or Saphyroo Service or its related systems or networks.
Unavailability
2.4 The Retailer acknowledges and agrees that the Software or the Saphyroo Service may, from time to time, be unavailable (e.g. due to scheduled maintenance or system upgrades) and that Saphyroo cannot, and does not, guarantee a specific or minimum availability of the Software or the Saphyroo Service. If the Software and/or the Saphyroo Service is unavailable for any reason, Saphyroo will aim to restore the Saphyroo Service and/or the Software (as applicable) as soon as practicable.
Ownership
Saphyroo and its licensors (where applicable) own all rights (including Intellectual Property Rights) in and to the Software, the Saphyroo Service, and the Data.
3. OBLIGATIONS OF THE RETAILER
3.1 The Retailer is responsible for any and all obligations or liabilities to a Courier, Customer and/or third parties that may arise in connection with the Products or the delivery of the Products.
3.2The Retailer accepts, agrees and acknowledges that a direct legal relationship is in existence between the Retailer and each Retailer Courier. The Retailer acknowledges that Saphyroo is not providing any Delivery Service and is only providing a marketplace to connect the Retailer with Couriers and facilitating payments between the Retailer and Couriers. Accordingly, Saphyroo will not be responsible or liable for the actions, omissions or behaviour of the Retailer or any Courier, and is not responsible or liable for the performance of (or any payment for) any Delivery Services or for any loss of or damage to any Products or any other item arising out of or in connection with any Delivery Service.
3.3The Retailer acknowledges that it is solely responsible for taking such precautions as may be reasonable and proper (including taking out adequate insurance in conformity with standard market practice and its business requirements, and in conformance with any applicable regulations or other licensing requirements) regarding its relationship with a Courier.
3.4The Retailer must comply with, adhere to and observe the terms and conditions set forth in this Agreement and all applicable laws, regulations, rules, statutes or ordinances governing or otherwise relating to the Products, the Software, the Saphyroo Service and the Delivery Service, whether or not those have been advised by Saphyroo.
3.5The Retailer must comply with all applicable laws and regulations (including tax and employment laws). Saphyroo does not, and does not intend to, exercise any control over the Courier’s actions or the operation or physical condition of any Vehicle (except as expressly provided under the Agreement).
3.6The Retailer must safeguard, protect and keep its Retailer ID and any passwords used in connection with the Software at all times confidential and safely stored and must not disclose its Retailer ID or any password to any person, except that the Retailer ID may be disclosed those who need to have access to the Retailer ID in order to offer and/or provide the Delivery Service.
3.7The Retailer must safeguard, protect and keep the Courier Information and the details of any Ride or Shift at all times confidential and must not disclose it to any person or store the information in any manner, except as required by applicable laws.
3.8The Retailer must immediately notify Saphyroo of any actual or suspected security breach or improper use of the App, the Retailer ID, the Data or the Courier Information.
3.9If the actions of the Retailer cause a Courier to be regarded as an employee of the Retailer, then the Retailer is responsible for all liability for any salary, wages, superannuation, employment benefits (if any) and tax arising in connection with the provision of the Delivery Service by the Courier.
4. USE OF SAPHYROO SERVICE AND SOFTWARE BY COURIERS
4.1Subject to the Retailer's compliance with this Agreement and registration (at all relevant times) with Saphyroo, Saphyroo authorises the Retailer to access and use the App. Notwithstanding anything else in this Agreement, Deliver may suspend, limit or otherwise restrict the Retailer from accessing or using the App:
(a)for security or technical reasons; and
(b)if the Retailer has breached this Agreement.
Saphyroo will notify the Retailer of any suspension, limitation or restriction made under this clause 4.1. However, the Retailer acknowledges and agrees that where the suspension, limitation or restriction results from security or technical issues, notice may be given only after the occurrence of the event giving rise to the relevant suspension, limitation or restriction.
4.2Once a Courier has accepted the Retailer’s request for delivery, Saphyroo will provide the Retailer Information to the Courier via the App, including the Retailer’s location. The Retailer must inform the Courier of the delivery's destination via the App. Once a Courier has accepted the Retailer’s request for delivery, Saphyroo may provide Courier Information to the Retailer regarding the Courier, including but not limited to the Courier’s name, Courier’s photo, licence number, geo-location and contact information.
4.3The Retailer retains the sole right to determine when and for how long it will utilise the Software and Saphyroo Service. The Retailer also retains the option to accept or reject requests for Delivery Services received from Couriers via the App.
4.4Couriers who have used the Delivery Service may be asked by Saphyroo to comment on the Delivery Service and to provide a score for the Delivery Service and the Retailer. Saphyroo may also request the Retailer to comment on and to provide a score for the Courier.
Saphyroo reserves the right to post comments and scores on the App or the Website (or such other platforms as owned, controlled or managed by Saphyroo) without reference to the Customer. The Retailer must provide accurate and objective feedback on the Courier that does not violate any applicable laws and regulations. If the Retailer wishes to discuss a posted comment or score, it may contact Saphyroo.
4.5The Retailer acknowledges that Saphyroo desires to provide Couriers with its Software and with the opportunity to connect with retailers that maintain the highest standards of professionalism. Retailers must maintain high standards of professionalism and service.
4.6Where required to do so by law (for example, receipt by Saphyroo of a subpoena requesting information), Saphyroo may, but will not be required to – to the extent permitted by applicable laws and regulations – provide the Retailer, the Courier and/or the relevant authorities the relevant data (including Personal Information) of the Retailer.
4.7Saphyroo provides, and the Retailer accepts, the Saphyroo Service and App on an "as is" and "as available" basis.
Saphyroo does not warrant or guarantee that the Retailer’s or the Courier’s access to or use of the Saphyroo Service, the Website, or the App will be uninterrupted or error free. For clarity, Saphyroo does not warrant or guarantee that Couriers will be available at all times and/or in all areas.
4.8The Saphyroo Service and Software may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Saphyroo is not responsible for any delays, delivery failures, or other damage resulting from such problems.
5.WORK HEALTH & SAFETY REQUIREMENTS
5.1The Retailer must comply with:
(a)all applicable work health and safety legislation; and
(b)all applicable standards, codes and other guides relating to Products and work health and safety.
5.2The Retailer must:
(a)ensure that the services it provides under this Agreement are carried out in a safe manner;
(b)comply with any direction given by Saphyroo regarding any issue relating to work health and safety arising out of the use of the Saphyroo Service;
(c)fully cooperate with any investigation conducted by Deliver into any incident which is required to be notified to any authority under work health and safety legislation and, where requested by Deliver, provide Deliver with any reports relating to any incident or investigations conducted by or on behalf of the Retailer.
6.FURTHER REPRESENTATIONS
6.1The Retailer must ensure that for the term of this Agreement:
(a)it holds, complies and continues to hold and comply with all permits, licences and other governmental authorisations necessary for conducting, carrying out and continuing its activities, operations and business;
(b)it complies with all applicable local laws and regulations, including the laws related its use of the Saphyroo Service;
(c)it uses the Saphyroo Service with due skill, care and diligence;
(d)it has and maintains valid insurance policies, including public liability insurance, products liability insurance and such other insurance policies as are considered market practice (all in industry-standard coverage amounts) for its use of the Saphyroo Service.
7.RELATIONSHIP BETWEEN THE PARTIES
7.1The relationship between the Parties is solely that of independent contracting parties. The Parties expressly agree that no joint venture, partnership, employment, or agency relationship exists between you or Saphyroo as a result of this Agreement or use of the Saphyroo Service or Software.
7.2The Retailer will not hold himself or herself out, as an employee, agent or authorised representative of Saphyroo. Where, by implication of mandatory law or otherwise, the Retailer may be deemed an agent or representative of Saphyroo, the Retailer undertakes and agrees to indemnify, defend and hold Saphyroo harmless from and against any claims by any person or entity based on such implied agency relationship.
8.LIABILITY & INDEMNITY
8.1To the maximum extent permitted by law:
(a)all representations, warranties, conditions, guarantees, indemnities or undertakings that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage are excluded;
(b)Saphyroo is not liable for:
(i)any loss of profits, business opportunity, goodwill, savings or data; and/or
(ii)any indirect or consequential loss, arising under statute, common law, tort (including negligence), breach of contract or otherwise; and
(c)in any calendar month, Saphyroo's aggregate liability to the Retailer for any loss under or in connection with this Agreement, whether arising under statute, common law, tort (including negligence), breach of contract or otherwise is limited to an amount equal to the total Software Fees paid by the Retailer in that calendar month.
8.2Saphyroo makes no guarantees, warranties, or representations as to the actions or conduct of any Courier. Responsibility for the decisions the Retailer makes regarding services offered via the Software or Saphyroo Service (with all its implications) rests solely with the Retailer. The Retailer agrees that it is its responsibility to take reasonable precautions in all actions and interactions with any third party it interacts with through the Saphyroo Service.
8.3The Retailer understands that by using the Software and the Saphyroo Service, they do so at their own risk.
8.4Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and the Indemnified Party's employees, officers, contractors and agents (together, the Indemnified Persons) against any loss, damage, cost, expense or liability sustained or incurred by the Indemnified Persons arising from:
(a)any fraudulent or unlawful act or omission of the Indemnifying Party;
(b)any death or injury to any person caused or contributed to by the Indemnifying Party's negligent acts or omissions; and
(c)an Infringement Claim, except to the extent that the relevant loss, damage, cost, expense or liability is directly attributable to the negligence or wrongful act or omission of an Indemnified Person. For the purposes of clause 9.4(c):
(d)where Saphyroo is the Indemnifying Party, Infringement Claim means a claim by a person against the Retailer that the Software and/or the Saphyroo Service infringe the Intellectual Property Rights of that person. Saphyroo's indemnity obligation under clause 8.4(c) is subject to the Retailer allowing Saphyroo to direct (at Saphyroo's sole discretion) the defence and settlement of the relevant claim. This indemnity does not apply to the extent the relevant claim arises out of any modification of the Software and/or the Saphyroo Service, or relates to services or materials provided by a third party in conjunction with the Software or Saphyroo Service. Where a person makes an Infringement Claim, Saphyroo may modify, limit, suspend or cancel the provision of (as applicable) the Software and/or the Saphyroo Service, if required, in response to the claim by giving the Retailer as much prior notice as Saphyroo reasonably can; and
(e)where Retailer is the Indemnifying Party, Infringement Claim means a claim by any person that: (1) the Retailer has infringed the Intellectual Property Rights of that person, where the infringement occurred as a result of the Retailer breaching any provision of this Agreement; or (2) the provisions of any material by Retailer, or its enjoyment or use in accordance with this Agreement, infringes the Intellectual Property Rights of that person.
8.5A party’s liability under this Agreement will be reduced to the extent that the negligent act or omission, or breach of contract by the other party contributed to the loss or damage that is the subject matter of the claim.
8.6Notwithstanding anything else in this clause 8, nothing in this Agreement operates to limit or exclude liability that cannot be limited or excluded by law (Non- Excludable Liability). To the maximum extent permitted by law, Saphyroo's liability for a breach that results in Non-Excludable Liability is limited, at Saphyroo's option, to:
(a)in the case of goods, any one or more of the following:
(i)the replacement of the goods or the supply of equivalent goods;
(ii)the repair of the goods;
(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv)the payment of the cost of having the goods repaired;
or
(b)in the case of services:
(i)the supplying of the services again; or
(ii)the payment of the cost of having the services supplied again.
9.TERM, TERMINATION AND SUSPENSION
9.1This Agreement commences on the date the Retailer commences using the Software and continues until terminated by either party on 30 days' prior written notice to the other party. Saphyroo may terminate this Agreement, without any notice requirement, at such moment when the Retailer no longer qualifies, under an applicable law, to use or offer the Delivery Service.
9.2The Retailer may terminate this Agreement by providing 30 days written notice to Saphyroo.
9.3A party may terminate this Agreement, with immediate effect and without a notice of default being required in case of:
(a)a material breach by the other party of any term of the Agreement; or
(b)subject to any applicable statutory stay on the exercise of rights, including sections 415D, 434J and 451E of the Corporations Act (as applicable), insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party, or the other party having an administrator, receiver and manager or liquidator appointed in respect of all or materially all of its assets, or entering into any compromise with or for the benefit of its creditors.
9.4Upon termination of the Agreement, the Retailer must promptly return or destroy (as directed by Saphyroo) all Data provided to them by Saphyroo without withholding a copy thereof.
9.5Termination of this Agreement for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination.
10.CONFIDENTIALITY
10.1The Retailer must keep the terms of this Agreement, and any other information relating to Saphyroo's business affairs and pricing strictly confidential, except that information concerning Saphyroo may be disclosed by the Retailer:
(a)to its officers, employees, agents and subcontractors, on a need to know basis;
(b)with Saphyroo’s prior written consent;
(c)to the Retailer’s legal or financial advisers, on a confidential basis;
(d)if it is already available to the public other than through breach of this Agreement of an
obligation of confidence owed to Saphyroo; or
(e)if it is required to be disclosed by an applicable law.
10.2The Retailer agrees that the Retailer's obligations under this clause 10 will survive the termination of this Agreement.
11.PRIVACY
11.1To the extent the Retailer obtains any Personal Information from Saphyroo, it must use, disclose and/or hold such information in accordance with the Privacy Laws.
11.2The Retailer warrants and represents to Saphyroo that it has complied with all Privacy Laws (whether or not it is bound by them), including by making such disclosures and procuring such consents as are required under Privacy Laws, when collecting and disclosing Personal Information to Deliver in order to ensure that Saphyroo is able to perform its obligations under this Agreement.
11.3Saphyroo may collect, use, hold and disclose Personal Information about the Retailer, the Retailer's Personnel and Customers in accordance with Saphyroo's privacy policy (as amended from time to time) which is available on the website or via the App.
12.DISPUTES
12.1The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement. Each party must follow the procedures in this Agreement before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief).
12.2If a dispute arises between the parties that cannot be resolved promptly between our representative and your representative, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
12.3If the dispute remains unresolved, the parties must try to resolve it by mediation administered by the Australian Disputes Centre according to its Guidelines for Commercial Mediation.
13.MISCELLANEOUS
Notice
13.1Notices, consents and other communications in connection with this Agreement must be in writing and sent to the address nominated by the other party from time to time. They take effect from the time they are received unless another time is specified in them.
Independent legal advice
13.2The Retailer acknowledges that the Retailer has had the opportunity to obtain independent legal advice regarding the provision of the Saphyroo Service under this Agreement and that the Retailer has not been induced to enter this Agreement by duress or any false or misleading statement.
Subcontracting and Assignment
13.3The Retailer may only subcontract, delegate or assign the whole or any portion of the Retailer's rights and obligations under this Agreement, including the use of the Deliver Service, if the Retailer has the prior written consent of Saphyroo in accordance with this clause. The consent of Saphyroo may be withheld at its absolute discretion or may be given subject to such conditions as it considers appropriate.
13.4Saphyroo may assign or novate this Agreement, or any of its rights or obligations under this Agreement, in whole or part to any third party, upon providing prior written notice to the Retailer.
Entire Agreement
13.5This Agreement contains everything the parties have agreed on in relation to the matters it deals with. No party can rely on an earlier Agreement, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this Agreement was executed, save as permitted by law.
Governing law and jurisdiction
13.6This Agreement is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and will not object to the exercise of jurisdiction by those courts on any basis.
Further acts
14.7The parties will promptly do and provide all acts and things and execute all documents as may from time to time be required, and at all times will act in good faith, for the purposes of or to give effect to this Agreement.
No agency or partnership
14.8No party is an agent, representative, partner of any other party by virtue of this Agreement.
No authority to act
14.9Neither party has the power or authority to act for or to assume any obligation or responsibility on behalf of the other, or to negotiate or enter into any binding relationship for or on behalf of the other.
Survival
14.10The parties agree that clauses 1, 5.2, 8, 10, 11, 13 and any other provision of this Agreement (which by its nature) should survive the termination of this Agreement, survives the termination of this Agreement.
