1.1 In this Agreement references to “we”, “our”, “us” and “Dining Inn” means Dining Inn Pty Ltd, ABN 63 619 982 624 of 27 Austral Avenue, Beecroft in the state of NSW Australia, and including its employees, contractors, agents and assigns.
1.2 These Terms and any policies or rules which may be posted by Dining Inn on the Site from time to time, including but not limited to supplemental terms for a particular event, activity or promotion (collectively the “Terms”strong>) set out the terms and conditions on which Dining Inn offers you access to and use of our Website, services, Apps and tools (collectively the “Site”) from within any country in the world..
1.3 Please read these Terms carefully. When you access and/or use the Site you will be deemed to have read and understood, and to have agreed to be bound by, these Terms.
2.1Dining Inn provides a community based marketplace, via the Site, that connects Hosts that have food items available for purchase, to guests seeking to purchase such food items (collectively the “Services”).
2.2 Dining Inn does not act as an insurer or agent on behalf of Hosts or guests. Dining Inn’s responsibility shall be limited to;
a) Providing Hosts and guests with a facility to connect and enter into direct transactions, which Dining Inn is not a party to; and
b) Acting as the agent of the Host for the limited purpose only of collecting payment from guests of such amounts properly charged by the Host (including delivery and other fees and/or taxes) and remitting same to the Host in accordance with these Terms.
In these Terms;
3.1 “Account”means the account which you open when you register on the Site as a Member.
3.2 “Aps”means the Dining Inn aplications on iOS and Android platforms.
3.3 “Collective Content”means Dining Inn Content and Member Content.
3.4 “Content”means text, graphics, images, music, software (excluding any part of the Site), audio, video, information or other materials.
3.5 “Dining Inn Content”means all Content that Dining Inn makes available through the Site, including any Content licensed from a third party, but excluding Member Content.
3.6 “guest”means a Member who requests from a Host any order of food using the Services.
3.7 “Host” means a Member who creates a Menu using the Site. Each Host is an independent legal entity offering their own food and Menu using the Site and are therefore independent third party providers.
3.8 “Member” means a person who completes Dining Inn’s account registration process, including but not limited to Hosts and guests.
3.9 “Member Content” means all Content that a Member posts, uploads, publishes, submits or includes in their Menu or Member profile to be made available through the Site and/or Services.
3.10 “Menu” means one or more food items listed by a Host as available for order using the Site.
3.11 “Tax” or “Taxes” includes any sales taxes, value added taxes and goods and services taxes that Hosts may be required by law to collect and remit to governmental agencies, and any other like local, state and federal taxes which may be aplicable.
3.12 “Website” means the website operated by Dining Inn and available at http://www.dininginn.com.au and includes any other websites through which Dining Inn makes the Services available.
4.1 guests may request Menu items from a Host (“Requests”) using the Site.
4.2 Hosts may offer Menu items in Social Dining, Everyday Dining and/or Take-away options.
4.3 Hosts shall have the right to accept or decline a Request received from a guest for Social Dining and/or Everyday Dining using the Site in their absolute discretion.
4.4 The Host acknowledges and agrees that Dining Inn is not responsible for the Host receiving any minimum number of Requests. Dining Inn’s responsibility shall be limited to providing the Host with access to the community based marketplace provided by the Site, for which fees shall be charged in accordance with these Terms.
4.5 Upon acceptance of a Request, the Host shall be obliged to provide the Menu items in accordance with the Request and these Terms.
4.6 It is agreed that nothing contained in these Terms shall constitute a relationship of partnership, joint venture, or employer and employee between any of the parties. Except as expressly permitted under these Terms, no party has the authority to act as the agent of, or to bind, another party hereto and no party shall hold itself out as being the agent of the other party or as having the authority to bind the other party.
5.1 The Host warrants that all details and information provided during their account registration process with Dining Inn are true and accurate.
5.2 The Host warrants that they are aged 18 years or above, and acknowledges that any access to or use of the Site or the Services by anyone under the age of 18 is strictly prohibited.
5.3 The Host warrants that they are able to enter into these Terms and that they are not subject to any restrictions preventing them from doing so.
6.1 Your access and use of the Site constitutes your agreement to be bound by these Terms, and establishes a contractual relationship between you and Dining Inn.
6.2 These Terms expressly supersede any prior agreements or arrangements with you.
6.3 Dining Inn shall be entitled to immediately terminate these Terms, access to the Site and/or the provision of Services at any time in its absolute discretion, without any notice to you.
6.4 Dining Inn reserves the right to amend these Terms by posting a notice on the Site. If you continue to access and/or use the Services after publication of such notice, you will be deemed to have read and understood, and to have agreed to be bound by, the amended Terms.
6.5 Dining Inn reserves the right to make changes to the Site and/or the Services at any time in its absolute discretion, without any notice to you.
7.1 In order to act as a Host you must complete an account registration process with Dining Inn and become accepted as a Member. A profile page will be created based on the personal information you provide to Dining Inn and/or is obtained by Dining Inn from certain third-party social networking sites (“SNS”) in accordance with this clause.
7.2 You may complete the account registration process via the Site or by logging into an SNS account (a “Third Party Account”) including, but not limited to, Facebook. You may choose to link your Dining Inn Account with your Third Party Account by providing Dining Inn with your Third Party Account login information or by allowing Dining Inn to access your Third Party Account as permitted under the terms and conditions applicable to your use of the Third Party Account. You warrant that you are entitled to disclose such Third Party Account login information and/or grant Dining Inn access to your Third Party Account and that doing so will not represent a breach of the terms and conditions applicable to the Third Party Account and will not oblige Dining Inn to pay any fees or become subject to any usage limitations imposed by the subject SNS.
7.3 You acknowledge that by granting Dining Inn access to any Third Party Account, you are authorizing Dining Inn to make available and store any Content which you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site via your Dining Inn Account. All SNS Content will be deemed to be Member Content for the purposes of these Terms.
7.4 You agree that you may not have more than one active Dining Inn Account and that Dining Inn has the right to immediate suspend or terminate your access to the Site if you create or allow to be maintained more than one active Dining Inn Account or if any information provided by you during the account registration process or thereafter proves to be inaccurate, fraudulent or incomplete.
8.1 You acknowledge and agree that you will keep the password to your Dining Inn Account safe and secure, and that you will be responsible for all actions taken using your Dining Inn Account whether or not those actions were authorized by you.
8.2 You will immediately notify Dining Inn of any suspected misuse or unauthorized use of your Dining Inn Account.
9.1 As a Host you may create Menus. In order to do this you may answer questions about the food item(s) including, but not limited to, ingredients, cooking methods, packaging, features, food allergens and lead times.
9.2 In order for your Menu to be featured and made publicly available via the Site, you must provide a valid physical address of the premises in which the food will be prepared and made available for collection or where the guest will be hosted for dining in, and nominate the applicable price.
9.3 You acknowledge that guests will be able to order from your Menu via the Site based upon the information provided in your Menu. You agree that once a Request is accepted from a guest, you will be bound to provide the Menu items at the price nominated.
9.4 You acknowledge that you are solely responsible for any Menu you create. You warrant to Dining Inn that the contents of all Menus created by you will comply with all applicable laws and shall not infringe upon the rights of any third party (including but not limited to the intellectual property rights of another food provider, restaurant or similar business).
9.5 You acknowledge and agree that the sale of alcoholic beverages to guests is strictly prohibited. You may, in your discretion, adopt a house rule of “No Alcohol Allowed” in your profile page, or choose to allow guests to bring their own alcoholic beverages by selecting the appropriate option in your drinks menu.
9.6 The Host acknowledges and agrees that they will take all reasonable care when preparing Menu items and will not provide any Menu item which is not safe to eat or likely to result in a guest becoming ill. Should a Host provide Menu items which a guest reasonably believes are not safe or fit for consumption, the Host acknowledges and agrees that Dining Inn may offer a full refund to that guest in which circumstances no Service Fees shall be payable to the Host with respect to that guest.
10.1 The Host agrees that they are responsible for understanding and complying with all laws which are applicable to the jurisdiction in which they make the Menu items available. The Host acknowledges that some jurisdictions may have limitations or prohibitions on the sale of certain types of food items, and/or may have registration or licensing requirements which must be met prior to the sale of any food items. The Host acknowledges that Dining Inn has no responsibility to advise on, or monitor compliance with, any applicable laws and this is the Host’s sole responsibility.
10.2 The Host is responsible, at their cost, for supplying all such materials and equipment as necessary to meet all applicable laws and regulations and to provide Menu items the subject of any accepted Request in accordance with these Terms.
10.3 The Host is responsible for all aspects of food preparation, health and safety compliance, certification, customer service and service delivery. The Host is responsible for their own personal acts and omissions and for the acts and omissions of any individuals who may assist in the Host’s provision of Menu items or be otherwise involved in the Host’s participation in the Site and/or the Services.
10.4 If, at the time of providing Menu items to a guest, the guest requests further Menu items from the Host additional to those included within the Request, then the Host must refer such request back to Dining Inn via the Site. The Host acknowledges that failure to do so shall give Dining Inn the right to immediately suspend and/or terminate the Host’s Account. The Host acknowledges that such additional Menu items, if provided by the Host, shall be subject to fees in accordance with these Terms.
10.5 The Host must promptly notify Dining Inn in writing via the Site of;
a) Any change in details, including but not limited to contact and banking details;
b) Any complaint or claim made, or notified may potentially be made, against the Host or Dining Inn;
c) Any breach of the law or these Terms by the Host; or
d) Any misuse of the Site, Services and/or Collective Content by another Member which comes to the Host’s attention.
11.1 The Host is responsible, at their cost, for taking out and maintaining all relevant insurance policies applicable to the sale of food items from their Menu and their use of the Site and the Services.
11.2 Dining Inn recommends that Hosts obtain comprehensive insurance cover including in relation to actions and omissions of guests whilst collecting food items and dining in.
12.1 The Host shall be entitled to set the price for their Menu items, which price shall be stated inclusive of all Taxes (the “Fees”).
12.2 Dining Inn will charge Hosts an amount equal to 20% of the Fees for all accepted Requests (the “Charges”), which includes banking and payment transaction costs, hosting costs, marketing and operational costs and Dining Inn margin.
12.3 guests shall be required to make payment of the Fees in full and in advance to Dining Inn, in accordance with the terms of the guest Agreement. Dining Inn shall deduct payment of the Charges prior to forwarding the balance of the Fees (the “Service Fees”) to the Host, in accordance with the following;
a)Payments will be made by Dining Inn to the Host weekly, usually on a Tuesday subject to public holidays, via cheque, PayPal, direct deposit or such other payment method as may be notified by Dining Inn to the Host from time to time;
b)Payments will only be made with regard to completed orders.
12.4Dining Inn reserves the right to amend the Charges at any time by posting a notice on the Site;
13.1 If in the case of illness, emergency or other extenuating circumstances the Host cannot provide Menu items in accordance with an accepted Request, then the Host must notify Dining Inn via the Site and must notify all affected guests at the earliest possible opportunity.
13.2 In such circumstances guests shall be entitled to receive a full refund of all Fees paid and the Host shall not be entitled to receive any Service Fees whatsoever.
13.3 The Host acknowledges that in such circumstances Dining Inn shall bear a loss equivalent to the Charges and agrees that if the Host cancels three Requests and/or events within a thirty day period then their Account may be immediately deactivated.
13.4 The Host acknowledges that a guest may cancel a Request after it has been accepted by the Host. If cancellation occurs;
a)More than 72 hours before the Request is due to be performed: then the guest is entitled to a full refund of the Fees paid and the Host shall not be entitled to be paid any Service Fees.
b)Less than 72 hours before the Request is due to be performed: then the guest is not entitled to any refund and the Host shall be entitled to be paid Services Fees as though the Request had in fact been performed.
13.5 The Host acknowledges that refunds may be given to guests in other circumstances by Dining Inn in its absolute discretion, in which event Dining Inn shall be authorized to deduct funds from Service Fees due to Hosts on the next scheduled date for payment;
12.2 You acknowledge and agree that if you cancel three Requests within a thirty day period then your Account may be immediately deactivated.
12.3 You acknowledge that in the case of illness, emergency or other extenuating circumstances, a Host may need to cancel an accepted Request. You will be notified of any such cancellation at the earliest possible oportunity. In such circumstances you shall be entitled to receive a full refund of the Fees paid, but shall not be entitled to receive any other form of compensation (including but not limited to compensation for making alternate dining arrangements or travel costs) whatsoever.
14.1 You may cancel your Account at any time by notifying Dining Inn via the Site or by email.
14.2 Dining Inn may, in its absolute discretion and without notice to you, decide to suspend, deactivate or cancel your Account at any time by notifying you via the Site or by email..
14.3 In the event that your Account is suspended, deactivated or cancelled;;
a)You will not be able to access the Site;
b)Any accepted Requests will be immediately terminated, and you will not be entitled to receive any Service Fees in relation to same. You will not be entitled to receive any compensation in relation to those Requests or otherwise in relation to the suspension, deactivation or cancellation of your Account;
c)Any affected guests will be notified and their Fees will be refunded; and;
d) Dining Inn shall not have any obligation to delete or return to you any Content which you have posted to the Site, including but not limited to any reviews or Feedback.
15.1 Dining Inn may, in its absolute discretion, allow Members to post, upload, publish, submit or transmit Member Content via the Site.
15.2 A Member who chooses to make Member Content available thereby grants to Dining Inn an irrevocable, worldwide, perpetual, non-exclusive and royalty-free licence with regard to such Member Content, with the right to Dining Inn to use, sublicense, view, copy, adapt, modify, distribute, transfer, sell, publicly display and otherwise exploit that Member Content in any manner in connection with the Site, including but not limited to marketing and promotion of the Site.
15.3 Dining Inn shall not have any ownership rights in such Member Content.
15.4 You acknowledge that you are solely responsible for all of your own Member Content and you represent and warrant that;
a) You are the sole and exclusive owner of all such Member Content or are duly authorized to grant to Dining Inn the rights in such Member Content contemplated by this clause; and.
b) Neither the Member Content nor Dining Inn’s use of the Member Content will infringe, misappropriate or violate any third party’s rights (including but not limited to rights of privacy and intellectual property rights) or result in a breach of any applicable law or regulation.
16.1 You acknowledge that Member Content will not be kept private or confidential, and agree that you are responsible for exercising caution when deciding what information to include as part of your Member Content.
16.2 You acknowledge that Member Content may be shared via third party services including but not limited to SNS which interact with the Site.
16.4 You acknowledge that Dining Inn may send you informational text messages in connection with providing the Services. You may opt out of receiving these text messages at any time but doing so may impact your use of the Services.
17.1 You acknowledge and agree that you are solely responsible for compliance with all laws, rules, regulations and Tax obligations which may apply to your use of the Site, the Services and Collective Content. You agree that you will not;
a) Violate or participate in any violation of any applicable law, rule, regulation or Tax obligation;
b) Use any kind of software, device, script, robot, backdoor or any other means or process to access, scrape, crawl or spider any web pages or other services contained in the Site or the Collective Content;
c) Use or expose, or allow to be used or exposed, any Collective Content;
i) That is not publicly displayed by Dining Inn on the Site;
iii) In any way that violates the privacy rights or other rights of another Member or any third party;
d) Use or access the Site or Collective Content for any commercial or other purpose that is not expressly permitted by these Terms;
e) Infringe the rights of any person or entity, including but not limited to privacy rights, intellectual property rights and contractual rights;
f) Interfere with or damage the Site, including but not limited to through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
g) Use the Site or Services to store, transmit, distribute, post or submit any information about another Member or third party, including but not limited to personally identifiable information;
h) Use the Site or Collective Content in connection with the distribution of unsolicited commercial email or advertisements unrelated to the Services;
i) Offer, as a Host, any goods or services that you do not yourself own, create or have permission to create;
j) Contact another Member for any purpose other than communicating about transacting on Dining Inn;
k) Attempt to solicit another Member to join third party services or websites that are in competition with the Services, without Dining Inn’s prior written consent;
l) Impersonate any person or entity, or misrepresent yourself or your affiliation with any person or entity;
m) Use automated scripts to collect information from or otherwise interact with the Site or Collective Content;
n) Access the Site or Collective Content to find another Member and then complete a transaction independent of the Site in order to circumvent the obligation to pay the Charges or otherwise avoid your obligations under these Terms;
o) Submit any Menu with false or misleading information, including but not limited to a price you do not intend to honour
p) Post, upload, publish, submit or transmit any Content which;
i) Infringes, misappropriates a third party’s rights, including but not limited to privacy rights, intellectual property rights and contractual rights;
ii) Violates or encourages any conduct that would violate any applicable law or regulation, or which would give rise to some civil liability;
iii) Is fraudulent, false, misleading or deceptive;
iv) Is defamatory, obscene, pornographic, vulgar or offensive;
iv) Promotes discrimination, bigotry, racism, hatred, harassment, violence or harm against any individual or group; or;
vi) Promotes illegal or harmful activities or substances;
q) Systematically retrieve data or other content from the Site or Services to create or compile, directly or indirectly, a collection, database, directory or similar;
r) Use, display, mirror or frame the Site or Collective Content or any part thereof, or Dining Inn’s name, trademark, logo or other proprietary information, without Dining Inn’s prior written consent;
s) Access, use or interfere with non-public areas of the Site or Dining Inn’s computer systems, including but not limited to scanning or testing the vulnerability of any part of the Site or Dining Inn’s computer systems;
t) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise interfere with any technological measure implemented by Dining Inn, its providers or any other third party to protect the Site, Services or Collective Content;
u) Use the Site, Services or Collective Content in any way to send altered, deceptive or false source-identifying information;
v) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content; or
w) Advocate, encourage or assist any third party in doing any of the foregoing.
17.2 Dining Inn reserves the right to investigate and prosecute any violations of this clause to the maximum extent permitted by law.
17.3 Dining Inn shall have the right, but is not obliged, to monitor your access to and use of the Site and Collective Content, and shall be entitled to review or edit any Member Content to ensure compliance with these Terms. Dining Inn reserves the right, in its absolute discretion and without prior notice, to disable access to any Collective Content which it considers objectionable or otherwise in breach of these Terms.
18.1 You acknowledge and agree that the Site and Dining Inn Content, including all associated intellectual property rights, are the exclusive property of Dining Inn
18.2 You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary tights notice appearing in the Site or Dining Inn Content.
19.1 Subject to compliance with these Terms and all applicable laws and regulations, Dining Inn grants to you;
a) A limited, non-exclusive, non-transferable license to download and install a copy of the App on each mobile device and computer that you own or control, and to run such copy of the App solely for your own personal use;
b) A limited, non-exclusive, non-transferable license to access and view Dining Inn Content, and any Member Content to which you are permitted access, solely for your own personal purposes and in accordance with these Terms.
19.2 It is an essential term of this license that you will not use, copy, adapt, modify, distribute, sub-license, sell, transfer, publicly display or perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except as expressly permitted in these Terms.
20.1 You may submit feedback, comments or suggestions for improvements to the Site (“Feedback”) to Dining Inn.
20.2 You acknowledge and agree that all Feedback which you submit will be the sole and exclusive property of Dining Inn and you hereby irrevocably assign to Dining Inn all of your rights, title and interest in and to all Feedback, and waive any moral rights you may have in such Feedback.
20.3 At Dining Inn’s request and expense, you will execute all such documents and take all such actions as Dining Inn may reasonably request to assist Dining Inn to acquire, perfect and maintain intellectual property rights and other legal protections for the Feedback.
21.1 Whilst Dining Inn may allow the display of icons indicating that certain criteria have been met by a particular Member or Menu, Dining Inn does not endorse any Member or Menu, and nothing contained on the Site should be considered an endorsement, certification or guarantee by Dining Inn about that Member or Menu.
21.2 Each Member is responsible for exercising due diligence and care when deciding whether to interact with any other Member.
21.3 Members will have an opportunity to rate and provide feedback in relation to other Members, which they acknowledge must be honest and accurate.
The Host is responsible for keeping proper records of the Menu items provided pursuant to these Terms, and must provide a copy of these records to Dining Inn upon request.
It is expressly agreed that Dining Inn shall not be obliged to make any payments with regard to superannuation or taxation whatsoever in respect of the Host. The Host shall be responsible for making appropriate superannuation, income tax, business activity statement and other taxation payments in accordance with their circumstances and pursuant to the relevant laws applying from time to time.
24.1 The Host acknowledges and agrees that whilst Dining Inn carries out automated checks of a guest’s social media profile, mobile number and email address prior to allowing that guest to create a Dining Inn Account, Dining Inn shall not be responsible for carrying out any other checks with regard to a particular guest and shall not be held responsible for any loss, injury or damage which may be suffered by the Host or any individual assisting with the preparation of the Menu items or present in the Host’s premises.
24.2 The Host acknowledges and agrees that they are responsible for conducting their own assessment, and may have regard to the guest’s Member profile and any reviews which appear on the Site, as to whether they wish to transact with a particular guest. The Host shall have the right to accept or decline a Request received from a guest for Social Dining and/or Everyday Dining using the Site in their absolute discretion.
24.3 The Host acknowledges and agrees that they are responsible for their own safety and that of any individuals assisting with the preparation of the Menu items and/or who may be present in the Host’s premises at the time of the Social Dining, Everyday Dining or collection of the Takeaway Menu items. If any time the Host has reasonable concerns for their own safety or the safety of any third person, the Host shall be entitled to ask any guest to leave their premises immediately. In such circumstances the Host must notify Dining Inn of what has occurred via the Site.
24.4The Host acknowledges and agrees that they will not engage in any conduct which may reasonably lead a guest to feel concerned for their safety or the safety of any third person. Should such conduct occur, the Host acknowledges and agrees that Dining Inn may offer a full refund to any affected guest in which circumstances no Service Fees shall be payable to the Host with respect to those guests.
25.1 You acknowledge and agree that if you choose to use the Site, Services and/or Collective Content, you do so at your sole risk.
25.2 All warranties and conditions which may by law be excluded are expressly excluded. Without limiting the foregoing, you acknowledge and agree that we make no representation or warranty about;
a) The Site, the Services and the Collective Content; or
b) Whether the Site, the Services and the Collective Content will meet your requirements or be available on a secure, interrupted and error-free basis;
25.3 You acknowledge and agree that, whilst Dining Inn may choose to carry out background or screening checks, Dining Inn has no obligation to conduct such checks of any Member, and you are responsible for reviewing the Site and selecting which other Member(s) to transact with as appropriate to your own needs.
25.4 You are solely responsible for all of your communications and interactions with Members and other third parties arising in connection with your use of the Site, Services and/or Collective Content. You agree to take all necessary precautions to ensure your safety.
25.5Dining Inn explicitly disclaims liability for any act or omission of any Member or other third party arising out of or in connection with the Site, Services and/or Collective Content.
26.1 Dining Inn explicitly disclaims liability for any act or omission of any Member or other third party arising out of or in connection with the Site, Services and/or Collective Content.
26.2 You acknowledge that Dining Inn shall have no liability in respect of same and you agree not to attempt to impose liability on, or seek any legal remedy from, Dining Inn.
27.1Dining Inn may, but not shall be obliged to, investigate and attempt to resolve disputes between Members in relation to the provision of Menu items by a Host to a guest. Dining Inn shall be entitled to require you and the other Member(s) to provide documentation in support of your respective positions with regard to the dispute, and to then issue a determination with regard to the dispute.
27.2 In the event that any dispute arises between you and Dining Inn, then you and we agree to take all reasonable steps to try and reach a resolution of the dispute directly. In the absence of any resolution then the parties agree to seek a mediation in accordance with the Mediation Rules of the Law Society of New South Wales Australia, and the President of that Law Society, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration. Either party shall be entitled to approach the President for this purpose.
28.1 To the maximum extent permitted by law, Dining Inn shall not be liable to you or any third party under any circumstances for any loss of profit, interruption to business, injury or death to any person, or for any indirect, incidental or consequential loss and damage sustained or incurred by you, whether such liability arises directly or indirectly as a result of;
a) Your use of the Site, Services and/or Collective Content;
b) Any breach by Dining Inn of its obligations under this Agreement;
c) Any breach by another Member or third party of their obligations in connection with the Site, Services and/or Collective Content;
d) Any negligent act or omission or willful misconduct on the part of Dining Inn or another Member or third party; or
e) Any fault or delay arising out of or in connection with electronic delays, the Internet, the Site or the Services.
28.2 28.2 Where such liability cannot be excluded, Dining Inn’s liability shall be limited to the total amount paid by Dining Inn to you in Service Fees in the twelve (12) month period prior to the event giving rise to the liability, or AUD $100, whichever is the greater;
29.1 You agree to fully and completely indemnify Dining Inn in respect of all claims, actions, demands, suits, loss and/or damage sustained by any person or party whatsoever caused by or in connection with or arising out of you using the Site, Services and/or Collective Content, whether caused by any negligent act or omission or willful misconduct on your part or otherwise, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
29.2 You agree to fully and completely indemnify Dining Inn against any loss or damage which Dining Inn may incur, directly or indirectly, as a result of any breach by you of these Terms, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
30.1 The undertakings given in this clause are given for a period commencing on the date of creation of the Host’s Dining In Account, continuing after suspension or termination of the Host’s Dining Inn Account (for any reason whatsoever) and ending after a period of;
a) 2 years, unless that period is in the circumstances found to be too long to be enforceable at law or in equity, in which case;
b) 18 months, unless that period is in the circumstances found to be too long to be enforceable at law or in equity, in which case;
c) 12 months, unless that period is in the circumstances found to be too long to be enforceable at law or in equity, in which case;
d) 6 months.
30.2The undertakings given in this clause only apply if the activity prohibited as a result of this clause occurs within;
a) The country in which the Host lives, as recorded in their Dining Inn Account, unless that area is in the circumstances found to be too broad to be enforceable at law or in equity, in which case;
b) The state or territory in which the Host lives, as recorded in their Dining Inn Account, unless that area is in the circumstances found to be too broad to be enforceable at law or in equity, in which case;
c) 50 kilometres from the Host’s address, as recorded in their Dining Inn Account, unless that area is in the circumstances found to be too broad to be enforceable at law or in equity, in which case;
d) 10 kilometres from the Host’s address.
30.3The Host agrees that they will not, either on their own account or directly or indirectly as a principal, agent, partner, employee, shareholder, unitholder, director, trustee, beneficiary, manager, consultant, adviser or financier;
a) Approach, induce, solicit or persuade any person or entity who was at any time after the date of creation of the Host’s Dining Inn Account a Member registered with Dining Inn, with a view to obtaining the custom of that Member in a business that is the same or similar to any aspect of the business conducted by Dining Inn;
b) Accept an approach from any person or entity who was at any time after the date of creation of the Host’s Dining Inn Account a Member registered with Dining Inn, with a view to providing services to or obtaining the custom of that Member in a business that is the same or similar to any aspect of the business conducted by Dining Inn;
c) Induce or persuade any Member, director, employee, consultant or contractor of Dining Inn to terminate his/her membership, employment or engagement (as the case may be) with Dining Inn, whether or not that person would act in breach of his/her contract with Dining Inn;
d) Interfere with the relationship between Dining Inn and its Members, employees, contractors or suppliers; or
e) Attempt to undertake, or directly or indirectly assist, approach, induce, solicit or persuade any person or entity to undertake, any of the above restrained activities.
30.4 The Host agrees that the restraints in this clause are intended to operate to the maximum extent permitted by law. If the restraints are void as unreasonable for the protection of Dining Inn, and would be valid if part of the wording was deleted or the period or area or activity was reduced, then the restraints will apply with the modifications necessary to make them effective.
30.5 The restraints contained in this clause are separate, distinct and severable, so that unenforceability of any restraint does not affect the enforceability of the other restraints.
31.1 For the purpose of these Terms “Confidential Information” means any information in respect of the business or affairs of Dining Inn or its Members that is not in the public domain including, without limitation, processes and procedures of Dining Inn, Member or prospective Member lists, pricing information, strategy or planning materials, documents, records, computer files, client information, product or service information, sales or financial information, discovery, invention, drawing, design, strategy, plan, data, report, process, proposal, budget, idea, concept or know how.
31.2 The Host agrees, from the date of creation of their Dining Inn Account and continuing thereafter;
a) To keep all Confidential Information secret and confidential;
b) To take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information;
c) Not to disclose any Confidential Information to any third party; and
d) Not to use any part of or make any note of or make copies of any Confidential Information; except as reasonably required in the ordinary and proper course of the Host complying with these Terms, to the extent required by law, or with the prior written consent of Dining Inn.
The Host shall inform Dining Inn of services which they intend to perform for businesses in the same or similar industry to Dining Inn, to ensure there is no conflict of interest. If in the reasonable opinion of Dining Inn those other services would represent a conflict of interest, and the Host chooses to continue with providing those services, then Dining Inn may immediately suspend or terminate the Host’s Dining Inn Account.
These Terms constitute the entire agreement between you and Dining Inn with respect to the Site, Services and Collective Content, and supersede all prior agreements, understandings, arrangements and negotiations in relation thereto.
34.1 Dining Inn may transfer, assign and/or subcontract any of the rights and obligations conferred by these Terms.
34.2 You may transfer, assign and/or subcontract any of your rights and obligations conferred by these Terms only with the prior written consent of Dining Inn.
35.1 Any notice required to be served by one party on another pursuant to these Terms shall be given by way of email, which will be deemed to have been received at the time and on the day shown in an electronic confirmation of delivery obtained by the sender.
35.2 Additionally or in the alternative to service by way of email, Dining Inn shall be entitled to serve notice on the Host by posting to the Site, in which event the notice will be deemed to have been received 12 hours after posting.
These Terms shall be deemed to have been made in New South Wales, Australia and shall be interpreted in accordance with the laws thereof. The parties submit to the jurisdiction of the courts of New South Wales and Australia.
If any provision of these Terms is contrary to, prohibited by, or held invalid under any applicable law or regulation of any jurisdiction in which it is sought to be enforced, that provision shall be considered inapplicable and omitted but shall not invalidate the remaining provisions.
Any failure by Dining Inn to enforce any of the provisions of these Terms shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorized representative of Dining Inn.
39.1 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
39.2 Notwithstanding the foregoing, the parties agree that payment card networks are third party beneficiaries of these Terms for the sole purpose of enforcing provisions related to payments. No consent is required from those third party beneficiaries for any amendments or modifications to these Terms.
40.1 The Site may contain links to third party websites or resources.
40.2 You acknowledge and agree that Dining Inn is not responsible or liable for the availability or accuracy of the same, or for the content, products or services available from such websites or resources.
40.3 You acknowledge that links to third party websites or resources do not constitute or imply any endorsement by Dining Inn and you are solely responsible for choosing whether or not to engage with any third party.
41.1 This clause applies to any App accessed via or downloaded from the Apple App Store or Google Android Marketplace.
41.2 You acknowledge and agree that these Terms are concluded between you and Dining Inn only, and not Apple or Google, and that Dining Inn is solely responsible for the App and content thereof. Neither Apple nor Google has any obligation to provide maintenance or support services with respect to the App.
41.3 Your use of the App must comply with the Apple or Google Terms of Service, as applicable.
41.4 In the event of any failure of the App to conform to any applicable warranty, you may notify Apple or Google (as applicable) who will refund the purchase price to you and to the maximum extent permitted by applicable law, Apple or Google (as applicable) will have no other warranty obligation whatsoever. As between Dining Inn and Apple or Google (as applicable), any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Dining Inn.
41.5 You and Dining Inn acknowledge that;
a) As between Dining Inn and Apple or Google (as applicable), the latter is not responsible for addressing any claims by you or a third party relating to the App including, but not limited to, product liability claims, failure to conform with any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation.
b) In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, as between Dining Inn and Apple or Google (as applicable), Dining Inn will be solely responsible for the investigation, defence, settlement and discharge of any such claim to the extent required by these Terms.
c) Apple and Google (as applicable) and their subsidiaries are third party beneficiaries of these Terms as related to your license of the App and have the right to enforce these Terms as related thereto.
41.6 Without limiting any other provision of these Terms, you must comply with all applicable third party terms of agreement when using the App.