Terms & Conditions
The website cakerhq.com and its related services, products, websites, tools and applications (Website) is owned and operated by CakerHQ Pty Ltd ABN 86 655 681 404 (CakerHQ).
If you are agreeing to these Terms and Conditions on behalf of someone or entity, you represent and warrant that that you have the irrevocable authority and agreement of that person or entity to be bound by these Terms and Conditions.
1. Definitions & Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: a User’s online account to use our Services.
(b) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Additional Terms: any additional terms of a Cake Maker as contained on the Cake Maker’s Profile, or otherwise made reference to on the Profile.
(d) Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
(e) Cake Maker: any User who advertises and offers their Products for sale on the Website, and includes a baker of any type.
(f) Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise published by you on the Website.
(g) Fees: any fees payable by a User to CakerHQ in accordance with these Terms and Conditions.
(h) GST: has the meaning provided in the GST Act.
(i) GST Act: A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Intellectual Property: means without limitation our copyright, trademarks, know-how, processes and concepts, including any content that we develop or publish, the look and feel of the Website, the Website itself and any other website or platform developed by CakerHQ and the source code for those systems and all intellectual property rights related to such, whether registered or unregistered and whether developed before or after the date of these Terms and Conditions.
(k) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(l) our, us and we: CakerHQ.
(m) Product: any products offered for sale by a Cake Maker on the Website through quotes from time to time.
(n) Profile: a Cake Maker’s profile on the Website (being the page or part of the Website which contains the details of the Cake Maker and their portfolio of baking goods).
(o) Purchase Price: the price payable for a Product as set out under clause 4.3.
(p) Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth)), our officers, directors, agents, and employees.
(q) Services: any services that we provide to you, including the Website.
(r) State: South Australia, Australia.
(s) User: any person who uses the Website, and includes a Cake Maker.
(t) you and your: a User.
(b) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(c) Words denoting the singular include the plural and words denoting the plural include the singular.
(d) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(e) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(f) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(g) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(h) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(i) Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(j) A reference to writing or written includes email.
(k) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. Using The CakerHQ Website
2.1 The Website provides an online marketplace that connects Users with Cake Makers. Users may search for and view Profiles of Cake Makers on the Website where they will be able to enquire and request a quote to purchase custom Products from the Cake Maker.
2.2 Users of the Website who create a Profile and make their Products available to be purchased are referred to as Cake Makers and specific provisions contained in clause 4 apply to them.
2.3 Specific provisions contained in clause 5 apply to other Users who wish to browse, enquire and request quotes to purchase such Products.
2.4 Although we provide the Website as an online marketplace, we are not the seller or supplier of the Products. The actual contract for sale is directly between the Cake Maker and the relevant User and the Cake Maker and the User are solely responsible for fulfilment of their obligations under that contract. We merely provide a Service that facilitates the entrance of a contract between Cake Makers and Users, we are not a party to such contract.
2.5 Our Services are available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services. If you are under the age of 18, we require parental/guardian consent, and by agreeing to these terms, you represent and warrant that prior to accepting a parent/ legal guardian has also agreed to these terms on your behalf (and will be the owner of the Account). We may limit your usage of the Services if you are under the age of 18 (for example to restrict some content).
2.6 Subject to you complying with these terms, we will provide our Services to you as set out in these Terms and Conditions.
3. Your Account
3.1 In order to use most of the functionality of the Website (including to list Products for sale on the Website, and to make offers for and purchase Products), you will need to register with us and set up an Account with your email address, a password and other personal information. You are solely responsible for maintaining the confidentiality of your login details and you are liable for all activities that happen under your Account, even if you do not authorise such activities.
4.1 Applying to be a Cake Maker
Cake Makers may be required to submit an application to us to join the Website and register for a Cake Maker Account. A Cake Maker Account is required to create a Profile and to respond to User enquiries and send quotes for the sale of Products. We may in our sole discretion accept or reject any application to register for a Cake Maker Account, without any obligation to provide reasons.
4.2 Creating your Profile
(a) Once you have been accepted as a Cake Maker on the Website and registered a Cake Maker Account, you will be able to create a Profile and respond to User enquiries and send quotes for your Products on the Website. You will be able to control the information on your Profile including imagery, descriptions and any pricing information. Without limitation to the other terms contained here, if you register for an Account and/or create a Profile on the Website, you represent and warrant at all times that:
(i) the listing of the Profile:
A. is not in breach of these Terms and Conditions;
B. is not in breach of any Applicable Laws;
C. contains no inappropriate language or imagery including without limitation the following:
I. sexually explicit content (including content that features minors or sexually exploits minors);
II. harmful or dangerous content including content that aims to encourage dangerous or illegal activities;
III. hateful content including hate speech;
IV. violent or graphic content including anything that may shock or disgust viewers;
V. harassment, threats and cyberbullying;
VI. defamatory, offensive or illegal content;
VII. any other content we consider inappropriate at our discretion;
D. contains no discriminatory, sexist or racist content;
E. does not contain a duplicate of another previously posted Profile;
F. has been correctly categorised and does not contain any keywords or other methods of manipulating the search;
G. does not contain any external links (except for social media links as provided for in the Profile settings); and
H. contains adequate descriptive data;
(ii) all information provided to us and to other Users (including information about any Products contained in a quote or information contained in the Profile) or otherwise published on the Website is true and correct in all respects, is maintained accurate and up to date and you have not engaged in misleading or fraudulent conduct; and
(iii) you have the legal right, title, licence or interest to sell and/or advertise the Product and publish your Profile on the Website and that the sale and/or advertising of the Product and publication of the Profile on the Website will not infringe any third party’s intellectual property rights or cause any liability for us or another User whatsoever.
(b) You are solely responsible for the accuracy and content of information provided about the Product to Users as well as information contained on your Profile.
(c) You may include Additional Terms on your Profile for Products as well as in your quotes, such as terms of sale that apply to the Products (to the extent applicable). Any Additional Terms must be consistent with these Terms and Conditions and any other terms and conditions we publish on our Website except where expressly permitted by us.
(d) You acknowledge and agree that:
(i) your Profile may not be immediately searchable by keyword or category for several hours (or up to 24 hours). We do not guarantee any exact Profile durations; and
(ii) we reserve the continuing right to reject, revise, or discontinue any Profile, at any time and for any reason in our sole discretion, and to terminate the Profile and to remove all references to the Profile from the Website.
(a) Users may request a quote from you for the Products that they want to purchase on the Website. You may either accept or reject that request at your sole discretion. If you accept the request then you may provide a quote to the User setting out the information for the order including the purchase price for the Products. The User will then have the option to accept or reject the quote. If the User accepts the quote then payment of the purchase price as set out on the quote for the Products is due and the order for the Product is placed (Purchase Price).
(b) Delivery or collection of the Product is to take place in the manner and date as set out in the quote.
(c) The User may specify in the quote any allergies they may have. You are solely responsible for ensuring compliance with such. We are not responsible for any Loss that occurs as a result of your failure to follow any allergy or other food requests made known by the User.
(d) You acknowledge and agree that by submitting a quote to a User, you are offering to enter into a legally binding contract with a User. Once a User pays for that Product and the order of the Product is placed, you acknowledge and agree that you have entered into a legally binding contract to sell the Product to the User for the Purchase Price.
4.4 Payment Process
(a) If a User purchases your Products through the Website then they will pay the Purchase Price as specified for the Products to us on your behalf in accordance with the payment terms set out under clause 5.3(c). The sale of your Products must be on these payment terms.
(b) We reserve the right to charge an administration and processing fee on each order which is payable by the User.
(c) You authorise us to retain our administration and processing fee from the Purchase Price paid by a User for Products. Payments received by us from the sale of Products (less our fees) will be settled to your nominated bank account on a weekly basis. You are solely responsible for any currency conversion fees, bank fees or other administrative charges incurred by your bank.
(d) Payments will be processed by a third party payment system, and as such may be subject to additional fees (which will be deducted from the payments paid to you).
4.5 Subscription & fees
(a) We may offer a number of different subscription plans for Cake Makers to access the Website. The details of the plan, including subscription fees will be as stated on the Website at the time you subscribe.
(b) Subscriptions will run on a month-to-month or year-to-year cycle (depending on your selected subscription plan). To avoid interruption of your use of the Website, unless you terminate your monthly or annual subscription before the end of the then current cycle these Terms and Conditions will automatically renew and you authorise us to charge your account for the subscription fee for the following cycle. You will be required to provide us with details of your credit/debit card on sign-up for this purpose.
(c) If you choose to change subscriptions, then the change will take effect on notice, and there will be no pro-rata refund. Any additional costs will be charged.
(d) Subscription fees are subject to change at any time. We encourage Cake Makers to regularly review the Website to confirm the fees.
(a) We have no liability or obligation to you if a User cancels an order for a Product any time after you have accepted or if they fail to pay the Purchase Price.
(b) You must sell your Products on terms that comply with the refund policy set out under clause 10.2 and as updated by us from time to time. In the event payments have yet to be remitted to you, you irrevocably authorise us to make refunds on your behalf where permitted under these Terms and Conditions.
(c) Non-refundable amounts must be specifically set out in a quote, and you must comply with our guidelines set out on the Website as to what items may be marked as non-refundable.
(d) If you decide or are obliged to refund a User then, if required by us, the refund must go through our nominated payment system. We are not obliged to refund any fees paid to us which we deducted from the Purchase Price that you are refunding, however we may do so at our discretion. If we do not do so, then you will be responsible for refunding the entire Purchase Price (if you agree or are required to do so).
(e) In the event that we are required by law to provide a User with a refund of any amount collected by us in respect of a Product supplied by you, you must immediately on request pay to us the amount that we are required to refund. In that case we may also in our discretion and without notice withhold any other amounts that we owe to you and setoff any amounts that you owe to us against those amounts withheld.
4.7 Content removal
(a) We reserve the continuing right to reject, revise, or discontinue any content or information you share on the Services, at any time and for any reason in our sole discretion.
(b) Without limitation to this clause, we reserve the right to not publish a Profile or suspend a published Profile or remove any quotations for Products where we believe in our sole discretion that:
(i) the Profile or Product may contravene Applicable Laws or these Terms and Conditions;
(ii) the Profile or Product is not suitable for our Website; or
(iii) any other reason which we consider appropriate.
Where we do so, we do so without liability to you.
Users can access the Website to view Profiles of Cake Makers and request quotes and place orders to purchase those Products from Cake Makers. If you are buying Products on the Website then the terms of this clause will apply to you.
5.2 The ordering process on the Website
(a) Users can access the Website to view Profiles of Cake Makers. Users may then request a quote from a Cake Maker for the Products that it wants to purchase, by visiting the Cake Maker’s Profile and following the prompts on the Website. The Cake Maker may either accept or reject that request at its sole discretion. If it accepts that request then the Cake Maker will provide a quote to the User. Users can then either accept or reject that quote (at their discretion). If the User accepts the quote then payment of the Purchase Price is due and the order for the Product is placed (subject to the below).
(b) Delivery or collection of the Product is to take place in the manner and date as set out in the quote.
(c) Users are solely responsible for specifying in the quote any allergies that they have. Users acknowledge and agree that we are unable to guarantee that any Product is safe for consumption and without any risk to persons with allergies.
(d) Users acknowledge that any order for a Product placed on the Website is merely an offer by the User and the Cake Maker reserves the right in its sole discretion to either accept or reject any offer made by a User for any reason at any time and without notice (even after it has accepted). All orders for Products are subject to availability.
(e) Any order placed by a User may be subject to Additional Terms. By placing an order, you agree to those Additional Terms. Terms relating to delivery may be contained in the Additional Terms. If they are not, you should confirm these terms with the Cake Maker before purchasing the Product.
5.3 Price and Payment
(a) The Purchase Price for Products is as displayed on the accepted quote on the Website at the time you place an order. Prices and other details are subject to change without notice.
(b) We reserve the right to charge an administration and processing fee on each order which is payable by you at the same time as the Purchase Price is due.
(i) a 50% deposit of the Purchase Price (including the administration and processing fee) is due upfront upon acceptance of the quote on the Website;
(ii) the balance of the Purchase Price is due within 21 days before the Product delivery date.
Payments for Products sold on the Website are facilitated by us (on behalf of the Cake Maker). Payment must be made to us via a method accepted by the Website and we will manage settlement to the Cake Maker. You will also be required to submit your card details to us and authorise us to debit your card on or around the above payment dates for the amount due. If payment is rejected then we will let you know and you will have until 15 days before the Product delivery date to make payment by another method. If you fail to do so then we will cancel your order.
(e) All payments made through the Website will be received by us solely for the purpose of facilitating the sale between the Cake Maker and the User and solely for the benefit of the Cake Maker (although we reserve the right to receive an administration and processing fee which will be paid from that amount received by us). We will manage settlement of the balance amount to the Cake Maker in accordance with our payment terms.
(f) You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
(g) Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card). You agree to pay such fees at the same time as paying the Purchase Price, even if such fees are not explicitly disclosed on the Website. The Purchase Price must be paid in cleared funds.
(h) The Purchase Price includes GST (where applicable) unless otherwise denoted.
Except to the extent that we are able to provide you a refund in accordance with our refund policy, we have no liability or obligation to provide you with a refund for any Product sale made through the Website. If you have rights in respect of your order under Applicable Laws, then your rights (including in respect of refunds) are against the Cake Maker and not us. Any disputes are directly between you and the Cake Maker, we will not be a party of such dispute.
6. Arrangements and Communications with other Users
6.1 You acknowledge that any arrangement or communication entered into with another User is solely at your own risk. We have no control, influence or involvement in such arrangements. Our responsibilities are limited to facilitating the availability of the Services.
6.2 Each User is a third party that is unrelated to us. When you enter into an arrangement for the sale of a Product, you are entering into a contract directly with another User. We are not a party to any contract between you and that other User and are not responsible for ensuring that that other User fulfills its obligations to you or complies with these Terms and Conditions or any other terms published by us, any Applicable Laws or Additional Terms. Your legal rights in connection with the sale of a Product or any breach of any obligations by a User are against that relevant User and not us. For the avoidance of doubt, we have no liability or obligation to you if a User breaches any terms of sale for the sale of the Product.
6.3 We do not supply, provide, manage or control the Users on the Website or any Profiles or Products and are not responsible for their advertising or otherwise. The relevant User is solely responsible for the sale of the Product to you. We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
(a) any Products (including without limitation that such Products will be suitable to your specific requirements or the standards of such Products);
(b) any representations made or information provided by Users to each other (including without limitation with respect to the quality of any Products); or
(c) the ability of Users to undertake their respective obligations (including the ability of the Cake Maker to sell the Product or the ability of the User to pay for the Product).
6.4 Because of the foregoing, in the event that you have a dispute with one or more Users, you release and hold us (and our Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes. For the avoidance of doubt, we are not a party to any dispute.
7.1 Prices are shown in the currency noted on the Website, or if no currency is stated, in AUD.
7.2 We make no representations or warranties as to the currency conversion rates that will apply to any payments made to us for Fees payable in accordance with these Terms and Conditions and we are not responsible for any Loss suffered by a party in the event of unfavourable currency conversion rate, including where our delay in processing a payment results in an unfavourable currency conversion rate applying to the payment.
7.4 You are solely responsible for any payment details (such as bank account and account identification information) that you provide to us or on a quote to a User. We will not be liable for any Loss that you suffer in connection with incorrect payment details being provided.
7.5 All amounts paid to us under these Terms and Conditions are non-refundable to the extent permitted by law.
8. Prohibited use
8.1 You must not access or use the Service or Website:
(a) in a way that violates these Terms and Conditions;
(b) for unlawful or dangerous activities or purposes;
(c) in a way that is fraudulent, inaccurate, false, misleading or deceptive;
(d) in a way that would infringe any third party’s rights (including intellectual or other proprietary rights);
(e) in a way that is defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
(f) in a way that damages the credibility of the Website or us or that creates liability for us;
(g) to distribute any virus, trojan horse, worms or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Website;
(h) to distribute or post spam;
(i) in a way that uses any robot, spider, scraper, data mining tools, data gathering an extraction tools or other automated means to access our Services;
(j) to collect a User’s information and harass them; or
(k) in a way that violates any Applicable Law (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices law).
9.1 Users are strictly prohibited from directly or indirectly attempting to circumvent payment of our Fees in any way.
9.2 This includes, for example, the following practices which are strictly prohibited:
(a) contacting another User with an intention to market and sell a Product outside of the Website;
(b) exchanging contact information with the purpose of finding out about other Product listings outside of the Website.
10. Cancellation policy
10.1 General terms
Once an order for Products has been placed or confirmed, your order may not be cancelled or a refund provided except in accordance with the terms of this clause, or to the extent otherwise required by law.
If you wish to cancel an order placed for Products please notify the Cake Maker and us as soon as possible. If you cancel your order, our refund policy is as follows:
(a) if you notify the Cake Maker and us at least 28 days before the delivery date of the Products then the deposit amount will be refunded (less those non-refundable amounts as set out on the quote);
(b) if you notify the Cake Maker and us between 27 days and 4 days prior to the delivery date of the Products, then you will forfeit any deposit paid, however you will be refunded any additional balance amounts paid (less non-refundable amounts as set out on the quote);
(c) if you notify the Cake Maker and us within 3 days prior to the date of delivery of the Products then you are not entitled to a refund of any amounts paid.
Refunds are only offered for cancellation if you notify the Cake Maker and us before the date for cut-off as above specified. Please note that while we oblige Cake Makers to comply with this refund policy, we are unable to guarantee compliance and we will not be liable should a Cake Maker fail to comply. If funds are yet to be remitted then we will process the refund on behalf of the Cake Maker, and the Cake Maker irrevocably authorises us to do so. As above, Users’ legal rights are against the relevant Cake Maker and not us. Items marked as “non-refundable” on the quote are non-refundable. Refunds are subject to these Terms and Conditions and any applicable laws.
10.3 Cancellation by Cake Makers
Cake Makers reserve the right to cancel any order prior to shipping, provided that they comply with the other terms of these Terms and Conditions. In the event that the Cake Maker cancels an order (except due to default on behalf of the User), then the User will receive a full refund for that order.
11. Access and Termination
11.1 We reserve the right, at any time and without prior notice to remove or disable:
(a) access to this Website or any part of it for any reason; and
(b) any Account or User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms and Conditions or otherwise harmful to the Website or the interests of other Users,
and we will not be liable to you for any Loss that you incur in the event that we do this.
11.2 The termination of your access to the Website is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us. If we remove a Profile that is in breach of these Terms and Conditions, no refund will be payable by us for any Fees paid by you for that Profile.
12. Intellectual Property Rights and data
12.1 Intellectual property rights
You acknowledge and agree that:
(a) we own all right, title and interest in and to the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms and Conditions;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display our Intellectual Property except with our prior written permission or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Website;
(c) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content in order to provide our Services;
(d) you warrant that any Content you provide us with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
(e) we are not liable or responsible for any Loss that you may experience in submitting Content to us or for our use of your Content in accordance with the licence granted; and
(f) you must not falsely express or imply a relationship between you and us.
12.2 Cake Maker intellectual property rights
If you are a Cake Maker you acknowledge and agree that:
(a) you will retain all right, title and interest in your Profile and Products and no right, title or interest is transferred to us except so far as expressly stated in these Terms and Conditions;
(b) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate each Product and Profile in connection with the Services and to otherwise advertise and market our business;
(c) you warrant that any Product and Profile on the Website, and the use of the Profile by us on the Website will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party; and
(d) you warrant that you have obtained any moral right consents in writing necessary for the listing and use of the Product and Profile on the Website.
13.1 You acknowledge and agree that your use of this Website and the Services is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Website (including Products and anything relating to Cake Makers or Users). Subject to the other terms of this clause and to the maximum extent permitted by Applicable Laws, anything contained in this Website is without warranty of any kind and we expressly exclude such warranties.
13.2 You acknowledge and agree that:
(a) CakerHQ does not take any steps to confirm the identity of Users. CakerHQ cannot and does not confirm nor warrant or guarantee each User’s purported identity, licences or location. We encourage you to use the Website to conduct your own enquiries to vet other Users to your satisfaction;
(b) no information provided by us constitutes legal or financial advice, particularly in respect of your obligations to comply with any Applicable Laws;
(c) we do not guarantee that the Website will be error-free or uninterrupted, or that your use of the Website will provide any specific results;
(d) we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not.
14. Exclusion and Limitation of Liability
14.1 Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
14.2 Without limitation to clause 14.1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
(a) your use or inability to use this Website in any way;
(b) your reliance on the Website;
(c) any Products or Profiles;
(d) any act, omission or default, whether negligent or otherwise of any User or third party;
(e) any Loss occasioned by any User or third party;
(f) any Content; or
(g) any action taken on your Account.
14.3 Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual Fees paid by you under these Terms and Conditions to us in the 3-month period preceding the matter or event giving rise to the claim (if any).
14.4 We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services.
14.5 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
14.6 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the services or the payment of the cost of resupply.
14.7 Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, you must:
(a) use your best endeavours to recover that sum before making the claim;
(b) keep us informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
14.8 This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms and Conditions or your use of our Services.
15.1 You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
(a) your use or inability to use this Website in any way;
(b) any Products purchased or sold by you;
(c) any User’s breach or negligent performance or failure or delay to provide any Products or perform their obligations under a relevant arrangement;
(d) any Loss, damage or claim made against us by a third party:
(i) for actual or alleged infringement of a third party's intellectual property rights arising out of the supply or use of the Website by you;
(ii) for death, personal injury, illness or damage to property resulting from Products sold or purchased by you; or
(iii) to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms and Conditions by you;
(e) any fine or penalty imposed for a breach of any Applicable Law in connection with the sale of the Products by you;
(f) any breach of any of these Terms and Conditions or any act or omission by you; or
(g) any action taken on your Account.
15.2 Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counter claim.
15.3 If a payment due under this clause is subject to tax (whether by way of direct assessment or withholding at its source), we will be entitled to receive from you such amounts as will ensure that the net receipt, after tax, to us in respect of the payment is the same as it would have been were the payment not subject to tax.
15.4 Except where expressly stated to the contrary in these Terms and Conditions, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under these Terms and Conditions or by law.
15.5 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
15.6 The indemnities in this clause:
(a) are continuing obligations on you, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
17.1 Users may be given an opportunity to review Products as well as other Users whom they have purchased or sold Products from/to on the Website.
17.2 Reviews must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, reviews containing defamatory, libellous, abusive offensive or obscene language.
17.3 We reserve the right not to publish reviews, to amend content of reviews at any time and to remove reviews from the Website without notice in our discretion.
17.4 We are in no way responsible or liable for the information that is contained in any reviews published and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review. We are under no obligation to remove any review published by or about you, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews on the Website.
18. General provisions
18.1 No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
18.2 Assignment, Novation and Other Dealings
(b) Any rights of any User that arise out of or under these Terms and Conditions are not assignable or capable of novation by the User without the prior written consent of CakerHQ.
(a) If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 18.3(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions as determined by CakerHQ.
18.4 No Merger
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry.
18.6 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
18.7 Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
18.8 Relationship of the Parties
(a) Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b) Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
18.9 Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
18.10 Entire Agreement
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
18.11 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
18.12 Governing Law and Jurisdiction
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 18.12(a) on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 18.12(a) do not have jurisdiction.