DishMe provides its Platform to enable anyone registered with us (as a Foodie) to purchase Meals that others registered with us (as Cooks) offer to sell to you.
This is the legally binding agreement that applies between you (as a Foodie, not a Cook) and us regarding such purchases and use of our Platform. (If you are also a Cook then a separate DishMe Cook Agreement also applies to your role as a Cook.)
DishMe provides the marketplace
Both practically and legally it is Cooks, and not DishMe, that sell Meals to Foodies. DishMe’s role is to provide a marketplace (via the Platform) for Cooks to sell Meals and Foodies to buy them. DishMe is merely a facilitator of that, and is not responsible for the preparation or supply of any Meal (including the time at which it is ready for collection or delivered, as applicable). In making Offers, and preparing and supplying Meals, Cooks are not employees or subcontractors of DishMe. Similarly, both practically and legally, Cooks do not prepare or supply Meals for DishMe – they do that directly for Foodies. You agree that DishMe is not responsible or liable for any breach, act, omission or negligence of any Cook.
Having said that, DishMe does provide certain services to Foodies and Cooks, and imposes certain obligations on Foodies and Cooks, to make the Platform a good place for Cooks to offer Meals and Foodies to buy them. This agreement sets out the services DishMe provides to you as a Foodie, and your obligations to us as Foodie.
To avoid any doubt, this agreement is a two-way agreement between just DishMe and you (as a Foodie) about our overall relationship with you. This agreement does not bind any Cook whose Offer you accept or who supplies you any Meal.
By using the Platform, a further separate contract (being a DishMe Meal Agreement) should ordinarily apply between you and the relevant Cook for each Meal. DishMe is not a party to that contract or bound by it – as that contract is directly between you and the relevant Cook.
In addition to Offers by Cooks, the Platform may provide a list of showcased meals that you may request be offered by Cooks. Any such listing of meals are not Offers by Cooks and do not give rise to an agreement for supply of the suggested meal unless and until a corresponding Offer is made by a Cook (in response to your request) and you accept that Offer via the Platform.
You agree that in any showcased meal or Offer:
The listed ingredients are the typical ingredients for the dish, but the individual Cook may use a different recipe and other ingredients not listed. If you (or any other intended diner) have a potentially life threatening or serious FOOD ALLERGY (e.g. nuts) or strong DISLIKE OF ANY INGREDIENT (e.g. coriander) then you MUST MESSAGE THE COOK via the Platform with details of all unacceptable ingredients to ensure that the Cook is able to cater for your needs.
Any nutritional details are typical figures only. Actual figures may vary for your meal depending on the ingredients and method of preparation used by the cook, the portion size and any personalisation of the meal requested by you.
Portion size is variable and depends on the Cook. You should message the cook via the Platform if you wish to verify the portion size. Any photograph is indicative only and is not a guarantee or representation of the quantity supplied or of the appearance of your Meal.
Accepting an Offer
You agree that by accepting an Offer you are accepting an offer to enter into a legally binding DishMe Meal Agreement for that Meal with the relevant Cook (not with us) and you will be legally bound to perform it (including by paying the Meal Price for it). Once you have accepted an Offer, you may only terminate the resulting DishMe Meal Agreement with the relevant Cook where permitted under that contract.
The Platform requires that the Cook specify in the Offer the time (Ready Time) and location at which the Meal will be available for collection (pickup) by you (or on your behalf) or for Delivery, as applicable.
If you make a request via the Platform in relation to the Meal at the time of accepting the relevant Offer, then any such requests are merely requests and the Cook is not bound by them, but the DishMe Meal Agreement provides that:
the Cook must use reasonable endeavours to accommodate the request, provided that the request is reasonable; and
any requests for an increased serving size, or that could be expected to materially increase the cost of ingredients or the time required to make the Meal, will be deemed unreasonable.
Failure to collect (pickup)
If you or a Collector (on your behalf) do not collect the Meal at or by approximately the Ready Time (and you have not purchased Delivery of the Meal), then:
you must still pay the relevant Meal Price (or if you have already paid it, then you will not receive a refund); and
the Cook may deal or dispose of the Meal as the Cook sees fit.
(delivery by Cook) the Cook manually expressly agrees with you (by messaging or otherwise) to perform or arrange Delivery; or
(delivery through Delivery Facility) a Delivery Facility is available and you order Delivery via the Delivery Facility,
(i) the DishMe Meal Agreement defines the relevant reasonable period within which the Meal must be delivered (and DishMe is not liable to you for any failure to do so);
(ii) you must specify a Delivery Location via the Platform (including by messaging) at the time of accepting the Offer and ensure that the description of the Delivery Location is sufficiently detailed, and includes any relevant instructions, to make it easy for a person not familiar with the relevant address or building to reach the point at which the relevant Meal can be delivered. For example, the instructions might need to include details regarding the location of a property entrance, entering a front gate or ringing a doorbell;
(iii) you must ensure that a person is available to accept Delivery of the Meal at the Delivery Location for a reasonable period after the Ready Time;
(iv) if you breach paragraph (ii) or (iii) then:
(1) you must still pay the relevant Meal Price and Delivery Fee; and
(2) the Delivery Person, may deal or dispose of the Meal as they see fit;
(v) the Delivery is a service provided by or on behalf of the Cook; and
(vi) to the extent permitted by law, our total liability (if any) to you and the Cook (collectively) in relation to the Delivery (including where the Meal is lost or the Delivery is unacceptably delayed) is limited to the total of the Meal Price and Delivery Fee.
You agree that despite any branding on DishMe Packaging, or stickers provided for use on DishMe Packaging, the relevant Meals are supplied to you by the Cook in his or her own right, and not on behalf of DishMe.
DishMe Packaging is a premium environmentally-friendly biodegradable sugar cane packaging. You acknowledge that, due to its biodegradable nature:
it can only hold your Meal for a limited time;
the amount of time depends on the Meal, but in any event you should not use it to store a Meal for more than 6 hours (and of course you should refrigerate your meal during any storage period);
it is not suitable for freezing; and
if you want to store your Meal for a longer period or freeze it then you should transfer it to another container.
MONITORING YOUR MEAL
Contacting the Cook
At any time you will ordinarily be able to contact the Cook performing your Meal by messaging via the Platform. Ordinary call and data charges charged by your telco supplier will apply to any messaging via the Platform.
For each Meal you must pay the applicable Meal Price (and any Delivery Fee) to us on behalf of the relevant Cook, via the Payment Facility at the time required by the Platform. We will then, at the time required by the Platform, pay the Meal Price to the Cook minus any fees or other amounts payable by the Cook to us, whether in connection with any Offer or otherwise.
COURTESY, INFORMATION AND TRUST
In all communications and dealings with any Cook (whether in person, by phone, via the Platform or otherwise) you must behave courteously and professionally, even if the Cook does not.
If a Cook acts inappropriately (including by engaging in violent, threatening or offensive behaviour) then you should first contact your local police station and subsequently notify DishMe, preferably with a copy of the relevant police report. We may, but are not obliged to, revoke or suspend the registration with DishMe of any such Cook but are not liable in any way for the conduct of the Cook.
Accurate and acceptable Content
All Content that you:
post on the Platform; or
provide to us or any Cook, in connection with any Meal, the Platform or any DishMe Services,
must be accurate and not misleading and must not include any Unacceptable Content. We have no obligation to monitor, vet or correct any Content you post or provide but have the right to do so for any reason.
Licence of Content
You hereby grant us (and warrant that you have the right and authority to grant us) a non-exclusive, irrevocable, perpetual transferable licence to copy, use, modify, sublicense, adapt and otherwise exploit in any way, and for any purpose, all Content that you post on the Platform or otherwise provide to us, including any photos or videos that you permit us to take of you and any feedback you provide regarding us or any Cook. You agree that (despite anything on the Platform that might suggest otherwise) we are not obliged to publish any such Content and may delete or edit it as we see fit.
You also consent to us maintaining and publishing (including on the Platform) ratings, statistics and comments about you, based on input by Cooks and data from your transactions via the Platform. You agree that our system for doing that may be automated and that we are not obliged to control or vet the input from Cooks. To the extent permitted by law, we exclude any and all liability to you (on any basis, including negligence) in relation to any such rating, statistic or comment that we publish. If you are dissatisfied with any comment provided by a Cook then you may request that we delete or amend it and we will consider that request in good faith.
DishMe requests for information
We expect that ordinarily we would not have any direct communication specifically with you (as distinct from general emails, messages or texts), whether in relation to a particular Meal or more generally. From time to time, however, it may be necessary or desirable for us to do so, including where any complaint or dispute arises. If at any time we request any information about you, or in relation to any Meal or Cook, then you must provide it to the best of your ability as soon as practical.
Confirmation of identity
We may offer services to you that provide a level of comfort about the identity or history of a Cook. You acknowledge that as those services are based upon information provided entirely or in part by third parties (including Cooks or other Foodies) the services are only intended to provide a degree of comfort, may be inaccurate and are not an absolute guarantee regarding the identity or history of any person or their future behaviour. You acknowledge that we do not undertake background checks on Cooks and agree that we are not obliged to do so (but we do require that Cooks hold food safety and handling certification and may in our discretion undertake taste checks, kitchen inspections, and police checks).
We will register or issue a user ID (e.g. your mobile phone number) and corresponding password (together being a “Login”) for your use of the Platform.
You must keep the Login secure and notify us immediately upon becoming aware that the Login may be lost or stolen, or becoming aware or suspecting that another person knows the Login, or has used the Login, without your authority.
In addition, once you have logged in to the relevant DishMe App on your device you must keep that device secure, as even if you close the DishMe App you will remain logged in next time you open it. You can only log out of the DishMe App by deleting it from your device.
You are liable for, and we may rely upon, all instructions, requests, information and Content submitted to the Platform using of the Login, even if the information or request is submitted by a person using the Login fraudulently or without authority. Without limiting the above, we are entitled to treat all use of the Platform made using the Login as use that you have authorised and you are responsible for the payment of all amounts or fees that become payable in relation to such use.
WARRANTIES AND LIABILITY
Platform availability and faults
We do not promise that the Platform will be available on a continuous or fault-free basis. To the extent permitted by law, we exclude all liability in relation to:
any fault in, or failure of, any equipment, software or third party services used in connection with the supply of use of the Platform to you; or
any fault or failure in the supply of use of the Platform involving any act, omission or event outside our reasonable control, including any equipment failure, power failure, fire, flood, water, labour dispute or shortage, utility curtailment, explosion, emergency, civil disturbance, war, act of God, governmental action or act or omission of any third party.
If we become aware of any such fault or failure, then we will use reasonable endeavours to address it. You must promptly notify us of any fault of which you become aware.
Mutual exclusion of other terms
To the extent permitted by law, and except as expressly provided in this agreement, all terms, conditions, warranties or representations (in each case whether express, implied, statutory or otherwise) by either you or us to the other, relating in any way to the DishMe Services or this agreement, are excluded.
General limitation of liability
Without limiting clause 6.4, to the extent permitted by law, any liability of ours:
under any term, condition, warranty or representation that by law cannot be excluded or that is not otherwise excluded under clause 6.1; or
under any guarantee (including any consumer guarantee) or other right under any law; or
otherwise in connection with any Meal, the Platform, any DishMe Services or this agreement, including any advice by us in connection with any of the foregoing,
is, where permitted by law, limited at our option to the resupply of the relevant services provided by us or the payment of the cost of same.
Exclusion of categories of loss
The following applies only to the extent permitted by law. All liability of ours is excluded in respect of any indirect or consequential Loss suffered or incurred by you, in relation to any Meal, the Platform or any DishMe Services, any delay or failure in providing any of them, or otherwise under or in connection with this agreement, and in any event (including where amounting to a direct loss) for any lost profits or goodwill.
To the maximum extent permitted by law, you must indemnify us against all Losses incurred by us in relation to:
any negligence by you in connection with any Meal, the Platform or any DishMe Services;
any breach of this agreement by you; or
any claim by any Cook against us in relation to any Meal where you are the relevant Foodie and have breached the relevant DishMe Meal Agreement.
This indemnity may be enforced by us before and without incurring any expense or making any payment to any person.
Either you or we may terminate this agreement at any time by giving the other at least 5 Business Days prior notice. Our and your obligations:
in relation to any Meal purchased before the effective date of termination or any outstanding DishMe Meal Agreement as at the effective date of termination; and
under clauses 4, 5, 6, 7, 8 and 12,
will survive the termination. In addition, your obligations to the relevant Cook under any outstanding DishMe Meal Agreement are not affected by any termination.
USE OF PLATFORM
You must not:
use the Platform to contact, or obtain the contact details of, any Cook (or other Foodie) other than for bona fide communication in relation to a Meal;
use the Platform to promote, or encourage any Cook (or other Foodie) to participate in, any other product, service or website (including any product, service or website that is competitive with the Platform or DishMe);
in connection with, or in the course of the supply of, any Meal request any contact details for or in relation to the relevant Cook;
use the Platform to find, identify, locate or contact a Cook, and subsequently make or arrange a related purchase of food without payment for it occurring through the Platform;
use, display, mirror or frame the Platform (or any part of it), the layout of the Platform (or any part of it) or the name or any logo of DishMe, except with the express written consent of DishMe or the ordinary use or display by you as a normal end user of the Platform;
use the Platform or any DishMe Service for any illegal purpose or in connection with any illegal act; and
do, or permit to be done, any act that could damage our reputation, or the reputation of the Platform.
Suspension and revocation
We may at any time, without prior notice, suspend or revoke your status as a registered Foodie if:
you breach this agreement;
you breach any DishMe Meal Agreement with any Cook or are the subject of one or more complaints by any Cook;
we believe that you are likely to breach this agreement;
we believe that you hold, or have previously held, any other registration as a Foodie or Cook (whether in your own right or through or in co-operation with any other person) and have breached the relevant agreement with us or had the other registration revoked or suspended; or
you arrange the supply of any food item from any Cook other than the supply of a Meal through the Platform.
MEALS OUTSIDE PLATFORM
If you arrange the supply of any food item from any Cook other than the supply of a Meal through the Platform then this agreement does not apply to that supply and we are not liable for, or in relation to, the food item or the relevant Cook in any way. We discourage you from arranging the supply of food items from Cooks outside the Platform and note that the disadvantages of doing so include the following:
the supply of the Meal and any feedback provided will not be available to add to your reputation on the Platform; and
the practical benefits provided through the Platform (including payment and delivery arrangements) are not available.
The Platform may provide links to, or enable access to, third party services and websites (External Services). You agree and acknowledge that:
we are not the provider of any External Services;
use of an External Service may require that you accept additional terms;
any link or access to an External Service is provided solely as a convenience to you and we do not endorse any External Service and have not, and are not required to, examine or evaluate the content, accuracy, completeness, validity, legality, decency, quality, or any other aspect of any External Service; and
your use of any External Service is at your sole risk and, to the extent permitted by law, we will have no liability to you in connection with any External Service or its use.
From time to time we may amend this agreement or the DishMe Meal Agreement by notice to you via the Platform. Any such amendment will not take effect earlier than 10 Business Days after the date on which we notify you. If an amendment is not acceptable to you then you may terminate this agreement in accordance with clause 7.
Any notice given under this agreement by either party to the other must be in writing sent via the Platform, or by ordinary prepaid mail or email to the corresponding address below, unless either party notifies the other of a change of the relevant address.
You: Your current email or street address as registered with us.
The relationship between you and us is that of independent contracting parties and, except to the extent (if any) expressly stated in this agreement, no employment, agency, partnership or fiduciary relationship will arise as a result of this or any related agreement. You have no right, power or authority to bind us to any agreement, arrangement or understanding in any manner whatsoever.
All intellectual property (including copyright) in the Platform, and anything provided to you in connection with this agreement or the Platform, will remain our property.
This agreement is to be construed according to, and is governed by, the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts in and of New South Wales in relation to any dispute arising under this agreement.
Assignment and subcontracting
You may not transfer or assign your rights or obligations under this agreement to any other person. We may assign our rights, and subcontract our obligations, under this agreement.
If any provision of this agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable then the provision will so far as possible be read down to the minimum extent necessary to ensure that it is not. If any provision or part of it cannot be so read down, then the provision or part of it will be deemed to be void and severable and the remaining provisions of this agreement will not be affected or impaired in any way.
Any failure by any party to exercise any right under this agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
This agreement constitutes the entire agreement between you and us in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this agreement or incorporated by reference.
Any DishMe App made available to you, or downloaded by you, is licensed under its applicable user licence agreement. That agreement is separate from this agreement.
In this agreement the following phrases have the following meanings:
means a day on which the major trading banks are open for ordinary business in Sydney, excluding a Saturday, Sunday or any public holiday in Sydney.
means you or another person who collects the relevant Meal for you. For the avoidance of doubt a Delivery Person is not a Collector.
means all information, data, documents, pictures, graphics, video, audio, text or other content, in each case in any form and for the avoidance of doubt includes any recipes, photographs, prices, comments, reviews or feedback.
means a person who has successfully registered with us as a Cook and has not had their registration suspended or revoked.
means delivery performed by or on behalf of the Cook of a Meal from the collection point specified in the relevant Offer, at approximately the collection time specified in that Offer, to the Delivery Location.
means an automated facility provided via the Platform for you to order Delivery but excludes any manual express agreement (by messaging or otherwise) directly between you and the Cook for the Cook to perform or arrange Delivery.
in relation to a Delivery means the fee chargeable for the Delivery, as indicated on the Platform at the time that the relevant Foodie accepts the relevant Offer.
means the location, specified by you via the Platform at the time of acceptance of the relevant Offer, for Delivery of the relevant Meal.
means the relevant individual who performs (or is performing) a Delivery.
means DishMe Pty Ltd (ACN 608 811 561).
mean the mobile apps provided by us that, amongst other things, enable Foodies to request Meals, or Cooks to accept Meals.
DishMe Meal Agreement
means the standard form of agreement published by us from time to time with that title. At any given time you can obtain a copy on the Website of the version applicable at that time.
means standardised packaging supplied to Cooks for use as packaging for Meals.
means all the services that we agree to provide, or in fact provide, to you under or in connection with this agreement or any Meal or Offer, including the provision of the Platform and its functionality.
means a person who has successfully registered with us as a Foodie and has not had their registration suspended or revoked.
means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes legal costs on an indemnity basis and indirect or consequential losses.
means the food described in the relevant Meal Description.
means the food description provided via the Platform in connection with the relevant Offer. It excludes any changes requested or purportedly imposed by you unless expressly agreed by the relevant Cook via the Platform.
means the price (as stated in the relevant Offer) payable by the Foodie to the Cook for the relevant Meal.
means an offer made via the Platform to provide a Meal, including the Meal Price and the location and time for collection of the Meal.
means the facility provided by us via the Platform through which Foodies can pay Cooks for or in relation to Meals.
means the Website, DishMe Apps and any other technology that we provide for you to use.
has the meaning given in clause 2.2.
means any Content that:
is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable;
is pornographic, sexually explicit, obscene or excessively profane;
is unlawful or encourages unlawful conduct;
is fraudulent, false, misleading or deceptive;
infringes, or encourages the infringement of, a third party's rights, including intellectual property, confidentiality or privacy rights;
contains any Virus;
amounts to commercial advertising of any other website, product or service; or
contains any link to any website that includes any of the above types of content.
means any computer program, virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised access to or disclosure, destruction or corruption of information, data or software.
means our website at www.dishme.com.au
Rules of interpretation
In this agreement:
Use of inclusive terms such as “includes” or “including” will be read as “includes, without limitation” or “including, without limitation”.
Words importing the singular include the plural and vice versa.
References to persons include corporations.
References to writing include any mode of representing or reproducing words in visible form, and include email and other electronic transmissions.