Set out below are our Participating Supplier terms (Terms). These Terms are entered into between us, RUZI Group Pty Ltd (ABN 34 618 959 032) trading as Co. Cups (we, us, our and other similar expressions) and you, a Participating Supplier (you, your or other similar expressions).
1.1 App means the mobile device software application for customers who wish to participate in the Swap Service known as Co. Cup.
1.2 Food Safety Laws means any food safety legislation, regulations, codes or other requirements which you are required to comply with in respect of the way you store, handle and serve food and beverage products, including but not limited to the Australia New Zealand Food Standards Code and any local food health and safety requirements.
1.3 Insolvency Event means any of the following events in relation to any person: an application is made to the court for an order that it be wound up, declared bankrupt; an administrator or a receiver, receiver and manager, judicial manager, liquidator, administrator, controller or like official is appointed to the person or to the whole or a substantial part of the undertaking or property of the person, including any of its assets; it is insolvent or states that it is insolvent, or it is presumed to be insolvent under an applicable law; it ceases to carry on business or pay its debts as and when they fall due, or threatens to do so; or anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the beforementioned of this definition.
1.4 Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.
1.5 Participating Supplier means a beverage supplier registered on the Platform, who agrees to provide the Swap Service to Users.
1.6 Participating Supplier Code means the unique identification code that we allocate to each Participating Supplier to keep track of the number of Users that the Participating Supplier introduces to the App and Swap Service.
1.7 Platform means the Co.Cups software platform located at www.cocups.com.au
1.8 Products means Co.Cups branded cups, lids and heat bands (where provided).
1.9 Return Code means the unique four digit code allocated to your store that Users must enter on the App to indicate they have returned Product to you in-store.
1.10 Swap Service means the reusable coffee cup swap service offered to Users whereby, in accordance with these Terms:
(a) you promote use of the Products and the App to your customers and potential customers;
(b) you make available the Return Code for use by Users;
(c) you allow Users to return used Products to you using the Return Code, and you accept, clean and reuse any Products returned by Users; and
(d) if a User wishes to buy a beverage from you, you serve that beverage in the Product.
1.11 User means a natural person who has registered as a user on the App.
2. Acceptance of these Terms
2.1 Your use of, and access to, the Platform is subject to these Terms.
2.2 If you use the Platform on behalf of a third party such as an organisation or employer, you agree to these Terms on your own behalf and on behalf of that third party.
3.1 If we approve your registration and set up an account for you on the Platform:
(a) you will be granted a limited, non-exclusive, non-transferable, revocable right to access and use the Platform for your business on these Terms; and
(b) we will provide you with a username and password, which will enable you (including your employees) to access and use the Platform.
3.2 You must:
(a) ensure that you (and your employees) keep your username and password confidential and don’t disclose it to any other person;
(b) ensure that you can identify and manage each person entrusted with the username and password combination for your account;
(c) not authorise anyone to use your account unless they are either employed by you or approved in writing by us;
(d) if requested by us, let us know the names of each of your employees that have been given access to your account; and
(e) immediately notify us of any unauthorised use of your password or account or any other breach of security.
3.3 You are responsible for all activities that occur under your account.
4. Use of Platform
4.1 You must ensure your access and use of the Platform is not illegal or prohibited by laws that apply to you.
4.2 You must not, nor cause or permit a third party to:
(a) use the Platform in a manner or for a purpose which is improper, immoral or fraudulent, which restricts or interferes with our provision of the Platform to any other Participating Suppliers or Users;
(b) reverse engineer, reverse assemble or reverse compile or copy or duplicate or modify or make derivative works of or re-sell all or part of the Platform (or any of our intellectual property rights in the Platform)
(c) enter into any transaction relating to:
(i) access or use of the Platform;
(ii) any part of your account information or access credentials; or
(iii) any of our intellectual property rights in Co. Cups and the Platform,
with anyone other than us, without our written consent; or
(d) gain or attempt to gain unauthorised access to the Platform, computer systems or networks connected to the Platform, including through hacking, password mining or any other means.
5. Your Obligations
5.1 You agree to:
(a) promote (only using the promotional materials provided by us), offer and provide the Swap Service to your customers;
(b) ensure sufficient numbers of Product are maintained in your inventory to provide the Swap Service;
(c) ensure all Product returned by Users to you are properly cleaned, sanitised and stored in accordance with all relevant Food Safety Laws;
(d) examine and check that all Products delivered to you (either by us or a User) are in good condition and free from defects;
(e) report to us and dispose of any Product that is damaged, defaced, modified or otherwise defective;
(f) exclusively use our Products for the sale of beverages by you to Users;
(g) allocate space for, and display, our marketing materials at your point of sale and in shopfront windows (where available);
(h) share exchange statistics with us via the Platform;
(i) inform Users about how to use the Return Code when returning the Product in-store;
(j) ensure the Return Code is visible in-store or available at point of sale and appropriately labelled;
(k) only provide the Swap Service, and serve beverages in Product, to Users who are able to confirm via the App that they are entitled to borrow Product;
(l) immediately notify us via the Platform if Users experience technical difficulties using your Return Code.
5.2 You must:
(a) not make any representations or claims about the Products or Swap Service which are inconsistent with the promotional materials, literature or other information provided by us;
(b) not bring us or the Product into disrepute or cause any nuisance or disruption to us or our business; and
(c) not make any false, misleading or deceptive statements about us, the Products or the Swap Service.
6. Our Obligations
6.1 We agree to:
(a) provide initial training for your staff on how to use the Platform and how to provide the Swap Service;
(b) supply the Products to you, within a reasonable time after request;
(c) provide technical support in relation to your use of the Platform and participation in the Swap Service, within a reasonable time after request;
(d) provide promotional materials for the Swap Service for display in-store; and
(e) advertise and promote you as a Participating Supplier on the Platform.
7. Term, suspension and termination
7.1 These Terms apply to your use of, and access to, the Platform and your provision of the Swap Service from the date you first accept these Terms and continue until these Terms are terminated.
7.2 We may without notice suspend your access to the Platform if you (or any of your employees) breach or are suspected to have breached these Terms.
7.3 If we do need to suspend your access to the Platform, we’ll act promptly to restore your access if we are satisfied that the reason for suspension has been dealt with.
7.4 Either party may terminate these Terms:
(a) at any time for convenience, by giving the other party at least 30 days’ notice; or
(b) if the other party suffers an Insolvency Event, immediately by giving notice to the other party.
7.5 We may terminate these Terms and end your access to the Platform at any time by giving you 7 days’ notice where:
(a) if you have been suspended in accordance with clause 7.2, we are not satisfied that the reason for your suspension is able to be dealt with or remedied within 7 days’; or
(b) subject to clause 7.6, you breach these Terms and are unable to remedy the breach within the 7 day notice period.
7.6 We may terminate these Terms and end your access to the Platform immediately where you breach any Food Safety Law or you provide the Swap Service in a way that brings us, our brand, the Product or the Swap Service into disrepute.
8. Effect of termination
8.1 Upon termination of these Terms:
(a) you will no longer have access to the Platform;
(b) you must no longer represent to Users that you provide the Swap Service and must remove the Return Code from display;
(c) you must allow our representatives to attend your premises at any time after termination to collect the Product, any materials showing the Return Code and any other promotional materials;
9.1 Each party must comply with the Privacy Act 1988 (Cth) (Privacy Act) and any other applicable laws and codes dealing with privacy.
9.2 Each party warrants to the other that:
(a) any personal information that it discloses to the other under these Terms, or when using the Platform, has been collected in accordance with the Privacy Act;
(b) the individual to whom the information relates (if applicable) has been made aware of the recipient’s identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Act; and
(c) the other is authorised to collect the information for the disclosure and use the information for the purposes permitted under these Terms.
10.1 You must take your own precautions to ensure that your access to the Platform does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system or other personal devices.
10.2 We don’t accept responsibility for any interference or damage to your own computer system or other personal devices which arises in connection with your use of the Platform or any linked website.
11. Platform availability
11.1 While we intend to use reasonable endeavours to make the Platform available for your use on a 24 hour a day, seven days a week basis, you expressly acknowledge and agree that service continuity is not assured and that the Platform is provided on an ‘as is’ basis. In particular, you agree that on occasions the Platform may be unavailable or have limited availability including:
(a) to permit routine or emergency maintenance to take place;
(b) to permit upgrades or other development activity to take place;
(c) due to technical malfunctions of your software, equipment or infrastructure (e.g. telecommunications connectivity, network congestion or delays);
(d) due to a force majeure event; or
(e) due to clause 11.3 applying.
11.2 In the case of technical problems which adversely affect your use of the Platform, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, you must notify us promptly via email to [email protected]
11.3 We may temporarily limit or suspend the availability of all or part of the Platform if it is necessary for reasons of public safety, security or maintenance of the Platform, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.
12. Intellectual Property Rights
12.1 All Intellectual Property Rights, ideas, concepts, know-how, data processing techniques, data compilations, software and documentation, comprised in or in connection with the Products or the Platform (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) are owned by us or our licensors. You agree that no transfer of our (or our licensors’) Intellectual Property Rights occurs at any time by the access and use by you (or your employee’s use) of the Products or the Platform, or your provision of the Swap Service.
12.2 You do not own and must not use, and must not claim any right or title to own or use, the Intellectual Property Rights in the Products or the Platform, except to the extent such use is permitted under these Terms. You must not dispute or challenge our (or our licensors’) entitlement to own, use or licence the Intellectual Property Rights in the Products or the Platform, or join any third parties to challenge or contest the validity of those Intellectual Property Rights.
12.3 You agree to notify us promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in the Products or the Platform and reasonably co-operate with us in relation to such infringement.
13. Limitation of Liability
13.1 Nothing in these Terms is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded (Non-Excludable Provision).
13.2 You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by us or on our behalf which is not expressly stated in these Terms. In particular, we make no warranty or representation that:
(a) the Platform will always be available, accessible, secure or operate without error; or
(b) use of the Products, the Platform or provision of the Swap Service will improve your, or any other person’s, financial performance or profitability.
13.3 Subject to our obligations under the Non-Excludable Provisions:
(a) our maximum aggregate liability to you in respect of any one claim or series of connected claims in connection with these Terms or your use of the Platform, Products or provision of the Swap Service, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise is limited to $100.00; and
(b) we are not liable to you or any third party for any indirect loss arising in connection with any use or access, or any inability to use or access, or misuse by you or any other party, of the Platform or otherwise in connection with the Platform, or your use of the Products or provision of the Swap Service whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if we have been advised of the possibility of such loss.
14.1 You agree to hold harmless and indemnify us and our officers, agents and employees against any loss, damage, costs or expenses that we, or any of our officers, agents and employees, may incur in connection with your breach of these Terms or any other legal obligation.
15.1 We may amend or update these Terms from time to time.
15.2 If any change to these Terms will significantly affect the provision of the Platform we will give you at least 14 days’ notice of the change by email.
15.3 If you do not agree to any change to these Terms, you can terminate these Terms in accordance with clause 7.
15.4 You agree that your continued use of the Platform and provision of the Swap Service will represent an agreement by you to be bound by the Terms as amended.
16.1 These Terms constitute the entire understanding between the parties.
16.2 Each party represents and warrants that it has the power and authorisations required to enter into and perform its obligations under these Terms.
16.3 No failure or delay of either party in exercising any right, power, or privilege under these Terms (and no course of dealing between the parties) operates as a waiver of any such right, power of privilege.
16.4 If any one or more of the provisions of these Terms are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these Terms will be unimpaired and will remain in full force and effect.
16.5 Each party must do everything reasonably required by the other to give full effect to these Terms.
16.6 These Terms are governed exclusively by the laws in force in the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.