Terms and Conditions - eBev Platform
Thank you for visiting our website. Our website found at https://ebev.com (Site) is operated by eBev.com Pty Limited (ABN 51 169 880 960) (eBev, ‘us’ or ‘we’). eBev provides an online platform where licensed venues can find, connect and place orders with, wholesale wine and beverage suppliers in Australia. These Platform Terms and Conditions (Terms) apply to and must be read by any party who has registered on the Site or Platform (defined in clause 1 below) as either: a licensed wine, beverage or liquor supplier looking to promote and sell its products on the Platform to purchasers (Supplier); or a licensed venue such as a restaurant, bar, hotel, club or retailer looking to purchase products from the Supplier on the Platform (Venue).
For the purposes of these Terms, ‘you’ or ‘user’ means (in most cases) the individual, natural person accessing or using the Site and Platform, including but not limited to a Supplier and a Venue, in accordance with these Terms.
If you are entering into these Terms on behalf of your employer or business organisation, you could be a company, a partnership or another legal entity. ‘You’ in your individual capacity will be taken to have represented to us that you have authority to act on your employer’s or organisation’s behalf and these Terms will be binding on your employer, organisation, company, partnership or legal entity.
You represent and warrant to eBev that you are over the age of 18 years, and that you have the right, authority and capacity to agree to and abide by these Terms. You also represent and warrant to eBev that you will use the Site and Platform in a manner consistent with any and all applicable laws and regulations.
We may from time to time, amend, update or change the Site and Platform including these Terms, without prior notice to you. Consequently, you should regularly check these Terms for changes. These are the current Terms and replace any other terms and conditions of use previously published for this Site.
Please read all of the terms of this agreement carefully before using the Site and Platform. You understand that by checking the box, clicking the “submit” button or by continuing to use the Site, you are agreeing to be bound by these Terms, including any changes to the terms that may have been made since your prior use of the Site or Platform. If you do not accept the Terms (in whole or in part) you may not access or use the Site or Platform.
1 - Overview and Services
(a) eBev has developed an online platform, including the web application, related documentation, websites (including source code and databases), a help desk system, other connectivity applications (APIs) and interfaces (Platform), which provides Suppliers and Venues the opportunity to be registered on the Platform, set up a profile page in your account (Portfolio), access the eBev ordering tool, place goods orders on the Platform, (for Suppliers) list and promote your goods and products in the Platform (Goods) and connect with Venues, and (for Venues) connect with Suppliers and purchase their Goods (together the eBev Services).
(b) Reference to a “Goods Order” means an order for the Supplier’s Goods placed on the Platform between a Venue and a Supplier in accordance with clause 6 in these Terms.
(c) The primary purpose of the Platform is to:
allow Suppliers to promote their products for purchase by Venues in Australia; and
facilitate the introduction and placement of orders of products between Suppliers and Venues.
(d) While eBev facilitates the introduction and placement of Goods Orders between Suppliers and Venues, Venues and Suppliers are responsible for agreeing between themselves the terms and conditions that will govern their relationship in relation to each Goods Order (Supplier Terms of Sale). The reference to “Supplier Terms of Sale” in these Terms includes the terms of any engagement, arrangement or agreement between the Supplier and Venue arising from the Goods Order on the Platform (express, implied or performed by the parties), regardless of whether a formal agreement has been signed or brought into existence. eBev is not a party to nor will it have any liability with respect to any Supplier Terms of Sale. Any Supplier Terms of Sale between the Supplier and Venue which attempts to alter or modify these Terms must be agreed to in writing by eBev. Any terms you enter into with the Supplier or Venue in relation to the Goods will be binding on the Venue and Supplier.
(e) Any new features, updates or upgrades, improvements or augmentation of the Site, Platform and related services are considered the Site, the Platform and the eBev Services, and shall be subject to the terms of these Terms.
(f) eBev relies on the information that Suppliers and Venues provide in order to provide the eBev Services. This information is used in the Platform. To extent permitted by law, eBev is not required to, nor does it, verify the truth, accuracy, appropriateness or completeness of the information you provide to us. We do not verify or undertake any checks on Suppliers or Venues (unless otherwise expressly agreed by eBev). Any information eBev makes available on the Platform is based on the information provided to us. We make no representation (express or implied) as to the suitability of a Supplier, Venue or Goods Order nor do we endorse or make specific recommendations about any Suppliers or Venues. We do not guarantee the quality, safety or legality of Suppliers, the Supplier’s products or any Goods Orders.
2 - Registration and eBev Account
In order to access the Platform and eBev Services, you will need to register your details on the Platform. As part of the registration process, eBev will create a unique Platform login (including providing a username and password) for Suppliers and Venues (or your authorised sales representative acting on your behalf as the case may be) to register an eBev user account (eBev Account). When registering, you may be asked to provide certain information such as your name, email address, phone number, information about your company and such other information to enable your registration as a Supplier or Venue on the Platform (Credentials). Your Credentials are only available to registered users and you must ensure that your Credentials are accurate and current.
eBev may, from time to time, use any of your Credentials to make our own enquiries as to the accuracy or truthfulness of your Credentials. If you do not provide sufficient evidence within the time requested, we may suspend or cancel your account (without prejudice to any other remedies we may have). Should we suspect or identify an individual to be inappropriately or unlawfully adopting a person or company’s identity we may without notice to you, disclose that information to any relevant persons or authorities.
In registering an eBev Account you agree that:
you are not impersonating any person or entity;
you are not violating any applicable state or federal law regarding use of personal information;
you are not a person under the age of 18 years and are not prohibited from using the Platform;
you are authorised to create an account in the name of the company or organisation or otherwise hold itself out as having an association with the company or organisation;
you will provide on demand from eBev, verification of your Credentials in such form as required by eBev; and
any other information you provide to eBev (including information in your profile section of your eBev Account) is and shall remain accurate, true and correct, and that you will update this information held by eBev to reflect any changes as soon as possible.
You are and will remain responsible at all times for all use and activity carried out under your eBev Account. You accept responsibility for all changes to information and data that occurs under your eBev Account including any changes made by any other person or user. eBev will not be held accountable for changes made by you.
After registering an eBev Account, you will have access to the eBev Services available on the Platform and be able to connect with Suppliers and Venues (as may be the case) and place orders on the Platform. Venues can place orders with and accept orders from Suppliers and be included in (sent a copy of) any Supplier originated orders placed with Venues.
3 - User Portfolio
Under your eBev Account, you can create a Portfolio page and upload information about your business including your name and logo. You must ensure that all information published in your Portfolio is accurate and up to date. eBev will endeavour to assist with any updates where required.
Your Portfolio will be available to other registered users on the Platform.
The Platform will be accessible on desktop computer and mobile devices. You can update the information in your Portfolio as well as export information to create PDFs and printable versions.
For Venues: you can assign an email (or an authorised sales representative acting on your behalf) to place orders with and/or receive orders from, Suppliers. In your Portfolio, you can view all orders placed with Suppliers and request a delivery date to be confirmed by the Supplier.
For Suppliers: you must provide an email address in your Portfolio in order to receive orders from Venues. In your Portfolio, you can view all orders placed by Venues for your products, confirm the delivery date requested by Venues (where applicable), and make changes to the expected delivery date of orders. You may also set order cut-off times and delivery rules.
4 - Term
(a) Your eBev Account (defined below) will commence on the date you complete your registration with eBev and agree to these Terms and will continue unless you give us written notice of your intention to terminate or these Terms are otherwise terminated in accordance with clause 18 (Cancellation and Termination).
5 - User Information
eBev shall not have, and expressly disclaims, any liability in connection with any content, information, data, text, graphics, images, photographs, documents or materials posted or uploaded to your eBev Account (including in your Portfolio) or otherwise to the Platform (“User Information”). We cannot guarantee, and make no representations in relation to: the completeness or accuracy of any User Information; the identity of any person with whom you may interact on or through the Platform; the integrity or authenticity of any User Information; or suitability of any Goods displayed on the Platform.
For all your User Information, you warrant and must ensure that:
the contents are truthful and up to date and is or will: in the case of Venues, upon supply to the Supplier, be provided with such other information as is reasonably necessary to ensure that the Supplier is fully informed as to the products it wishes to purchase from the Supplier including the delivery address for delivery of such products, and the Supplier can fulfil any Good Orders for Venues; and, in the case of Suppliers, upon the supply to the Venue, be provided with such other information as is reasonably necessary to ensure that the Venue is fully informed as to the products being offered by the Supplier including any list of ingredients, components or materials and any applicable instruction booklets and/or warning labels concerning the products, and the Venue can order what they need to order on the Platform;
it is compliant with all applicable laws and licensing requirements;
it does not contain any defamatory content or other illegal material;
does not infringe on the intellectual property of another person;
is not false, misleading, deceptive or materially inaccurate in any way, including in the case of Suppliers, in relation to the availability, nature, terms or conditions (including any Supplier Terms of Sale) or any other matter relating to the products being offered by Suppliers on the Platform;
is and shall remain accurate, true and correct and that the Venue or Supplier will update this information held by eBev to reflect any changes as soon as possible; and
does not contain any links to external websites unless eBev has given its prior written consent.
eBev is not responsible for any loss, damage or claims relating to any User Information, including but not limited to loss, damage or claims which are caused by your failure to update or provide accurate User Information.
You are solely responsible for all your User Information. You agree to indemnify us and keep us indemnified, from and against any claims, loss, costs, action, liability or damages arising from or incurred in connection with your User Information, including any claim, loss, damages or liability that may be made against us that any User Information provided to us by you in accordance with these Terms infringes the Intellectual Property Rights or moral rights of any third party or any law. We will not have any liability in connection with the deletion, loss, or unauthorised modification of any of your User Information.
We reserve the right to keep the User Information on the Platform unless removed earlier by the Supplier or Venue (as may be the case).
You warrant and represent that the information you provide whether as a Supplier or Venue, is and shall remain accurate, true and correct and that you will update this information held by us to reflect any changes as soon as possible. We reserve the right to remove any of your User Information, suspend your profile or cancel your registration, at any time, if you have breached these Terms or if we determine in our absolute discretion that the eBev brand, operations (including Site, Platform any blogs or membership) or business (including our clients, partners or affiliates) may be adversely affected or harmed as a result of such content or your registration as a Supplier or Venue (as may be the case) or your continued use of the Site, Platform or eBev Services.
6 - Prohibited Content
Notwithstanding anything to the contrary in these Terms, you must not do any of the following without the prior express written permission of eBev:
resell, rent, distribute, market, lease, licence, sublicence, assign, display, transfer or otherwise commercially exploit for profit or gain or make available to any third party the Platform or the eBev Services or any information contained on the Site or Platform in any way;
use the Platform or the eBev Services for any purposes other than the purposes for which it was designed under these Terms;
use the Platform or the eBev Services in any way which violates the rights of a third party or infringes any other party’s Intellectual Property Rights or for any inappropriate illegal or unlawful purpose;
introduce, send or store material or upload files containing viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs to the Site or Platform;
mislead or deceive others through any act or omission or make a false representation about your identity, including the impersonation of a real or fictious person or using an alternative identify or pseudonym;
encroach upon or interfere with the privacy of an individual;
copy, collect or save information about other users including their skills, employment or education history;
stalk or harass anyone;
use the details of other users for anything other than the use expressly permitted by those users;
decompile, disassemble, reverse-engineer or otherwise attempt to discover, derive or interfere with any part of the source code, algorithms, methods or processes embodied in or used, in connection with the Platform or the eBev Services, or any underlying data, infrastructure or other software;
remove or alter any registered or unregistered trademark, logo, copyright notice, confidentiality marker or other proprietary or confidentiality notice appearing on or in the Platform or the eBev Services;
interfere with or disrupt the integrity or performance of the Site, Platform or the eBev Services or any software used in connection with them, or attempt the same;
provide to any persons who are not authorised users of the Site or Platform, any part of the information included in the Platform or eBev Services, except as permitted in these Terms;
do any act or thing whatsoever which may injure, impair or reduce or be likely to injure, impair or reduce the business, goodwill or reputation of eBev and its related companies or its standing in the eyes of the public or any of its customers or clients; or
distribute or publish any part of the information or content included in the eBev Services on any publicly accessible electronic network, including without limitation the internet and the world wide web, Facebook, YouTube, or otherwise publish, broadcast or display any such information in public.
7 - Placing Goods Orders on the Platform
Venues may order products available for purchase from Suppliers using the Platform. eBev facilitates the order to be placed in accordance with these Terms, however eBev is not the supplier of any Goods and eBev does not handle the payment for Goods Orders (unless otherwise agreed by eBev from time to time and subject to additional terms and conditions).
A Goods Order is placed on the Platform when:
the Venue places an order (or the Supplier is authorised to place an order on the Venue’s behalf, as the case may be) for the Supplier’s Goods on the Platform; and
the Venue’s purchase order is accepted by the Supplier on the Platform.
referred to as a “Goods Order” in these Terms.
The Supplier must confirm its acceptance of the purchase order on the Platform within 1 Business Day of the order being placed on the Platform. (“Business Day” means a day on which banks are open for general banking business in New South Wales.)
The confirmation shall include acknowledgment of the following information:
price of the Goods;
product description of the Goods;
quantity of the Goods;
Venue’s delivery address; and
date of delivery of the Goods.
eBev will pass on all purchase orders to the Supplier in a timely manner to the email address provided by the Supplier.
eBev may also share a copy of the Venue’s purchase order to the Supplier’s authorised sales representative (as nominated by the Supplier).
Price for the Goods will be displayed exclusive of Goods and Services Tax (GST) unless otherwise stated.
Unless otherwise agreed with eBev, the Supplier will issue the Venue with a tax invoice in respect of the Goods Order and the Venue must pay the tax invoice including any applicable delivery charges, surcharges and taxes (including GST) in the time specified in accordance with the Supplier’s Terms of Sale as agreed separately between the Supplier and the Venue.
By confirming acceptance of a Goods Order, the order will be fulfilled by the Supplier subject to any Supplier Terms of Sale otherwise agreed between the Supplier and the Venue. In case of any inconsistency between the Supplier Terms of Sale and these Terms, these Terms will prevail.
All Goods Orders placed in the Platform are with the Supplier and not with eBev, and eBev is in no way responsible for the supply of any Goods to the Venue or the fulfilment of any Goods Orders. The supply of Goods and fulfilment of Goods Orders shall be the sole responsibility of the Supplier and subject to any Supplier Terms of Sale as agreed between the Supplier and the Venue.
In the event an issue or dispute arises in relation to the Goods, including where Goods are incorrectly ordered or supplied, faulty, not suitable or fail to meet the expectations of the Venue, are not delivered (or are delayed), or delivered with breakages, defects or damages, the Venue and Supplier shall liaise with each other and both the Supplier and Venue shall resolve the issue or dispute between themselves. Both the Supplier and Venue shall release eBev and forever hold eBev harmless, from any claims, loss or damage with respect to the foregoing.
Cancellation: Goods Orders may be cancelled at any time before the Goods have been shipped by immediately sending a notice of cancellation in the Platform giving reasons for such cancellation. Notifications of cancellation must be sent to eBev prior to shipping.
Delivery of Goods: From the date a Goods Order is placed on the Platform, the Supplier is responsible for arranging for the Goods to be transported and delivered to the nominated delivery address provided by the Venue or otherwise set out in the Goods Order in accordance with the Supplier’s Terms of Sale and with the delivery date advised to the Venue in the order confirmation process. eBev shall not be liable for any loss or damage, including consequential loss or damage, arising from any delay in delivery or failure to deliver Goods, either whole or in part.
Returns, replacements: All enquiries, requests and handling relating to a return, repair or replacement of Goods is the sole responsibility of the Supplier and will be arranged by the Supplier in accordance with the Supplier’s Terms of Sale.
8 - Accuracy, Completeness and Timeliness of Information
The information on the Site and the Platform is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of the information on the Site and the Platform, to the extent permitted by law, including the Australian Consumer Law we make no warranty regarding the information on the Site or the Platform. You should monitor any changes to the information contained on the Site and the Platform. (“Australian Consumer Law” means the Australian consumer laws in the Competition and Consumer Act 2010 (Cth) and other equivalent legislation.)
We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of the Site, Platform or a linked website. eBev does not warrant that your use of the Site or Platform will be uninterrupted or error free, nor does eBev warrant that we will review information for accuracy or that we will preserve or maintain any Venue’s or Supplier’s information without loss. You are responsible for implementing appropriate security processes, systems and procedures to protect yourself and your business and to ensure that whatever you select for you use of the Site and Platform is free of any virus, worms, trojan horses or other code that has contaminating or destructive qualities.
We may, from time to time and without notice, change or add to the Site, Platform or the information, products or services described in it. However, we do not undertake to keep the Site or the Platform updated. We are not liable to you or any other third party if errors occur in the information on the Site or the Platform or if that information is not up to date.
Please be aware that Goods displayed in the Platform may not be truthful. Despite these Terms, information contained in Goods may not be accurate or truthful. If you discover any Supplier or Venue who has knowingly posted inaccurate or untruthful information, please let us know. Suppliers or Venues who knowingly post inaccurate or untruthful information may be banned from the Platform.
9 - Warranties and Compliance
a) Where you are a Supplier, you represent and warrant that:
you will only post User Information about your goods and products that are currently available within Australia or are intended to become available in the future;
you will display the correct standard landed unit cost price (exclusive of GST) for all Goods displayed in your Portfolio plus any applicable delivery charge based on the delivery option selected by the Venue;
you will post your Goods within the appropriate category(s) in your Portfolio. If we consider that you have posted a product to an incorrect or inappropriate category, we may re-classify and re-post as we consider appropriate;
you will only accept Goods Orders that you can lawfully supply and fulfil;
your Goods have been produced, manufactured, packaged, labelled and supplied strictly in accordance with the relevant consumer protection and product safety laws and regulations of Australia and good manufacturing practices with any relevant use by dates shown, and that you comply with all applicable laws and codes of conduct (including the consumer guarantees under the Australian Consumer Law);
your Goods have not been adulterated or contaminated, and are of good quality, and otherwise fit for human consumption;
you own or have the right to use all Intellectual Property Rights relating to your Goods, including, without limitation, all logos and trade marks, your Goods will be free from any claims concerning infringement or the like, you have the right to grant a licence to eBev to use such marks and logos, and the use of such intellectual property in connection with the sale of the Goods by the Supplier will not subject eBev to any such infringement claims;
all goods supplied by you meet the required Australian standards applicable to those goods including any Australian standards such as Food Standards Australia; and
you hold a current producer/wholesaler liquor licence or other licence in the state or territory necessary to carry on a business as a licensed supplier such as a wine producer, brewer, distiller or liquor wholesaler (as may be the case).
b) Where you are a Venue, you represent and warrant that:
all purchases you make are relying solely upon your own skill and judgement and you purchase Goods on the Platform at your own risk;
you are not permitted to place Goods Orders with Suppliers on the Platform where you have outstanding fees due and owing; and
you will comply with all applicable laws and Australian liquor licensing requirements which includes holding a current liquor licence or other licence in the state and/or territory necessary to carry on a business as a licensed restaurant, bar, club, hotel or retailer (as may be the case) and comply with the licence conditions and requirements.
c) You shall be liable for and indemnify eBev against any and all losses, claims, costs and other liabilities whatsoever and howsoever caused and whether or not foreseeable or incurred by eBev as a result of or in connection with any breach of this clause by a Supplier or Venue.
10 - Support
(a) eBev provides a support helpdesk where support is available for any queries relating to the Site, Platform or eBev Services. eBev support staff can be contacted by email, phone or live chat during business hours (9am Australian Eastern Standard Time – 5.00pm Australian Western Standard Time) at: email: admin@ebev.com, phone: 1300 556 081, live chat: www.ebev.com.
(b) For the avoidance of doubt, Suppliers are solely responsible for directly responding to any Venue enquiry on the Platform.
11 - Linked Sites
Our Site and Platform may contain links to websites operated by third parties. The inclusion of such links is provided for your convenience and information only and should not be interpreted as an endorsement of the owner/sponsor of the website or the content of the website. Unless expressly stated otherwise, we are not responsible for the content on any linked websites to or from the Site or the Platform and have no control over or rights in those linked websites. Your linking to any other website is entirely at your own risk.
To the extent permitted by law, eBev disclaims all warranties, express and implied, as to the accuracy, validity, legality or otherwise of any materials or information contained on such websites.
12 - Intellectual Property
eBev (and its licensors) owns all Intellectual Property Rights contained or embodied in or associated with the Site, Platform and the eBev Services (including but not limited to any data, information, software, images, photographs, animations, video, audio, music, text and applets which is stored in or incorporated into the Platform, and any accompanying documentation and printed materials) (“eBev Content”) with the exception of your User Information, which shall remain your intellectual property but which you licence to us in accordance with the licence below. eBev does not grant you any right, title or interest in or to the Platform or eBev Services other than as expressly stated in these Terms.
Any Intellectual Property Rights created during the course of the eBev Services or arising under as a result of your use of the Site or Platform shall vest in and remain the property of eBev (“Created IP”). eBev grants you a limited, revocable licence to use the Created IP for the sole purpose (and no other purpose) of allowing you to obtain the benefit of the eBev Services. Such licence shall terminate upon termination, completion or expiry of these Terms, and may otherwise be terminated by eBev at any time at eBev’s absolute discretion. You agree that any written materials provided to you in connection with your use of the Platform or Services are for your own personal use and you may not reproduce, redistribute, disseminate, publish, or display such material to any third parties without the prior written permission of eBev.
Any reproduction or redistribution of the Site, Platform or eBev Content is prohibited. In addition, you must not copy, reproduce or otherwise upload the eBev Content or any other Intellectual Property Rights of eBev to any other server, location or support for publication.
The URLs representing the eBev websites, such as https://ebev.com and all related brands and logos of eBev are owned by eBev (or eBev’s licensors) and may not be copied, imitated, used or displayed, in whole or in part, without first obtaining the written permission of eBev. Nothing on the Site or Platform creates any right on your part (express or implied) that would allow you to use or display a trademark that you do not own, regardless of whether the trademark is currently registered.
In relation to your User Information and your use of the Site and the Platform, you grant to us an unconditional, perpetual, worldwide, irrevocable, and royalty free licence and right to use, display, copy, modify, adapt, reproduce, host, store, publish, commercialise and prepare derivative works of all such materials, information and content forming all or part of your User Information for the purpose of providing the Platform and the eBev Services (including promotion of the Platform and the eBev Services) or another purpose where you have given your consent.
You consent to us displaying the name and/or logo of your relevant company or organisation on the Platform in the context of the eBev Services. Your name or the name of your company or organisation may appear in lists on the Platform that may be visible to other users (for example in dropdown menus or auto-filling text entry forms). You acknowledge that, if you post content on the Site or the Platform, the fact that you, your company or organisation is using the Site or the Platform does not constitute confidential information and you consent to our use of such content in the manner described above.
In addition, you consent to us promoting the Site and Platform in media and advertising independently of the Site and Platform (whether online, in print advertising or otherwise), and using and publishing the name and/or logo of the relevant company or organisation for this purpose. You acknowledge and agree that we are not required to obtain any additional or separate consent from you before doing this, provided we use your name, your company or organisation name (as applicable) and logo in a manner that is consistent with your User Information and we do not do anything that is likely to breach any applicable laws.
For the purposes of these Terms “Intellectual Property Rights” includes both in Australia and throughout the world and for the duration of such rights, any rights, title and interest in any:
business names, patents, utility models, copyrights, eligible layout rights and registered designs registered or unregistered trade marks or service marks, trade names, brand names, domain names, indications of source or appellations of origin, plant variety rights, and commercial names and designations;
invention, discovery, trade secret, know how, computer software and confidential, scientific, technical and product information;
other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products; and
letters patent, deed of grant, certificate or document of title for any thing referred to in paragraphs (a) to (c) of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied.
No liability for product decisions
(a) You are solely responsible for all decisions you make in connection with any product choices or your use of the Platform or eBev Services. eBev does not purport to have any expert knowledge of the Suppliers profiled in the Platform and shall not be liable for the suitability or fitness of any Suppliers or Goods displayed in the Platform. Accordingly, you shall use the Site, Platform and the eBev Services at your own risk and you shall take all reasonable actions to determine the suitability of any Goods displayed/purchased in the Platform.
(b) Except for any express warranties in these Terms, eBev provides the Site, Platform, eBev Content and the eBev Services on an “as is” basis.
(c) To the maximum extent permitted by law, including the Australian Consumer Law, eBev makes no warranties or representations (express or implied) about the Site, Platform, eBev Content or the eBev Services, or that the Site or Platform will:
meet any Venue’s needs;
meet the Supplier’s needs;
be complete, accurate or up to date;
be accessible at all times;
be free from viruses; or
be secure.
(d) Subject to any express terms, eBev makes no representation or warranty as to the volume or subject areas of the goods or products accessible through the Platform.
(e) We do not act exclusively for any one Venue or Supplier and nor are we affiliated with any particular Supplier or Venue.
(f) To the extent permitted by law, eBev specifically disclaims any other representation or warranty (express or implied) including any warranty that the Goods made available in the Platform are of merchantable quality, is fit for any purpose or is suitable for use.
13 - Continuity of Service
(a) We aim to provide a provide a service that is continually available and capable of use. However, we may suspend your account and your access to the Platform at any time and for any reason, including without cause. The most likely reasons why we might suspend your account or access to the Platform include (but shall not be limited to):
maintaining the Platform or changing its features or functionality;
you don’t use your eBev Account for an extended period;
you breach any of these Terms;
faults, service outages or other technical problems;
a legal requirement, such as an injunction or due to an investigation by police or other law enforcement agency.
(b) Unless the reason for suspension is unexpected or relates to some wrongful conduct by you, we will endeavour to give you reasonable notice before suspending your account or your access to the Platform. We will not have any liability in connection with any suspension of your account or your access to the Platform regardless of the reason for suspension.
14 - Limitation of Liability
You use the Platform entirely at your own risk.
To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall eBev be liable for any indirect or consequential loss, damage or expense (including lost profits, loss of use of data, lost sales or business, lost data, business interruption) or any other such loss incurred in connection with these Terms or your use of the Site, Platform, eBev Content or the eBev Services.
You agree that eBev is not liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any government authority, war, sabotage, terrorist activity or threat, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Site, Platform or the eBev Services.
Subject to clauses 14(b) and 14(e) of these Terms and to the extent permitted by law, the total aggregate liability of eBev (including any of its affiliates) for damages (monetary or otherwise) arising under these Terms for claims made by you or any other third party arising from the Site, Platform, eBev Content or the eBev Services, is limited to $500.
If any warranties are implied by law that cannot be excluded, then to the maximum extent permitted by law, our liability for breach of such warranties is limited to, at our option;
(i) in the case of services:
the supply of the services again; or
the payment of the cost of having the services supplied again.
(ii) Nothing in these Terms limits in any way eBev’s liability for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability, including under the Competition and Consumer Act 2010 (Cth), the statutory consumer guarantees under the Australian Consumer Law, or similar applicable laws in the states and territories of Australia.
15 - Indemnity
You agree to indemnify us, our related companies, officers, directors, employees and agents, from and against any claim, suit, loss, damage, liability, demand, action, expense or proceeding (including legal fees) that we may suffer or incur as a result of or in connection with: (a) any breach by you of these Terms; (b) any breach by you of applicable laws (including laws related to liquor licensing, privacy and marketing; (c) your improper use of or conduct in connection with, the Site, Platform, eBev Content, or the eBev Services; (d) any content provided through your eBev Account; or (e) any disputes between Suppliers and Venues or other claims related to the actual Goods supplied by the Supplier.
16 - Non-reliance
The eBev Services provided by eBev are provided to enable interactions between Suppliers and Venues. eBev is an independent provider of services to all users of the Site and Platform. Nothing in these Terms is intended to create a partnership, joint venture, agency or employment relationship. eBev is an ‘arms-length’, independent provider of services to all users of the Site and Platform.
eBev is not responsible for any services, advice, opinions, representations or statements made by Suppliers or the pricing or quality of any goods or products promoted and sold by Suppliers.
You understand and agree that: (i) eBev will not assume any liability with respect to your interactions with any Supplier or Venue; and (ii) the knowledge, opinions and User Information of Suppliers or Venues (where applicable) is not ours, and we do not endorse them or any other information provided by any user.
17 - Confidentiality
(a) Each party shall keep confidential and not disclose to any other party or use, except as required by these Terms, non-public information obtained from the other party; provided, however, that neither party shall be prohibited from disclosing or using information; (i) that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the party having a confidentiality obligation under this clause; (ii) that is or has been disclosed to such party by a third party who is not under (and to whom such party does not owe) an obligation of confidentiality with respect thereto; (iii) that is or has been independently acquired or developed by such party; (iv) to the minimum extent use or disclosure is required by court order or as otherwise required by law, on condition that notice of such requirement by law for such disclosure is given to the other parties prior to making any such use or disclosure.
18 - Cancellation and Termination
(a) We reserve the right, with notice to you, to restrict, suspend or terminate your access to the Site, Platform, and/or the eBev Services, or any feature of the Site or the Platform, and we will not be responsible to you or any third party for any loss, cost, damage or liability that may arise as a result.
(b) These Terms may be terminated by eBev:
(i) if you breach any of these Terms, by giving you written notice of the relevant breach, if the breach has not been remedied within 14 days of such notice;
(i) immediately on notice to you for any substantial breaches of these Terms by you. We reserve the right to terminate your access to the Platform and eBev Services immediately on becoming aware of your breach; and
(iii) immediately on notice in the event that you cease business, become insolvent, take steps to wind up, or upon the appointment of any insolvency practitioner, trustee or custodian to all or part of your assets or business, or if you assign or purport to assign your rights otherwise than as permitted by these Terms.
(c) These Terms may be terminated by you for convenience by giving us 30 days’ notice in writing to admin@ebev.com (or as otherwise directed by eBev) of your intention to terminate.
(d) If these Terms expire or are terminated for any reason, immediately upon expiry or termination, the licence granted under these Terms ceases and your access will be cancelled to all related systems, software and materials, including the Platform and the eBev Services.
19 - Privacy
(a) Your registration and use of the Site, Platform and eBev Services is conditional upon you agreeing and complying with our Privacy Policy available at https://ebev.com/privacy-policy/. The Site, Platform and eBev Services can only provide the intended services to users by using personal information in the manner contemplated in the Privacy Policy, and we may collect, use and disclose your personal information for the purposes described in the Privacy Policy which is available on the Site and the Platform. If you do not agree to us collecting, using or disclosing your personal information in the manner contemplated by these Terms and our Privacy Policy, you must not use the Site, Platform or the eBev Services.
(b) If you intend to post any personal information on the Site or Platform that relates to a third party (including their name, email address or phone number), you must obtain their consent before doing so.
(c) If you have any questions or concerns relating to privacy, please contact us in accordance with the process and procedure set out in our Privacy Policy.
20 - Survival
(a) The following clauses shall survive any termination of these Terms: 1(f), 2, 4, 5, 6(i), 6(j), 7, 8, 10, 11(a), 11(c), 11(d), 11(e), 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24.
21 - Dispute Resolution
(a) Subject to clause 21(d), the parties must attempt to settle by negotiation any dispute in relation to these Terms before resorting to external dispute resolution mechanisms.
(b) If a dispute is not settled by the parties within fourteen (14) days of one party sending to the other party written notice of the dispute, the dispute must be submitted to mediation. If the dispute is not settled by the parties within thirty (30) days of mediation, either party may commence court proceedings in relation to the dispute.
(c) Notwithstanding the existence of a dispute each party must continue to perform its obligations under these Terms, except where the performance of an obligation is the subject matter of the dispute.
(d) A party may commence court proceedings relating to any dispute arising from these Terms at any time where that party seeks urgent interlocutory relief.
22 - Jurisdiction and Governing Law
These Terms are governed by and interpreted under the laws of the state of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts exercising jurisdiction in the state of New South Wales, Australia.
23 - Miscellaneous
(a) Assignment and novation: You may not assign or transfer, whether in whole or part, the benefit of these Terms or any rights or obligations hereunder, without our prior written consent. We may assign, subcontract, or otherwise transfer or delegate or deal in any other manner with any or all of our rights under these Terms without your consent and will endeavour to provide you with notice of such dealing.
(b) A right created under these Terms may not be waived except in writing signed by the party granting the waiver. The failure of either party to enforce a term of these Terms will not be interpreted as a waiver of that term.
(c) Any failure by us to act with respect to a breach by you or others does not waive any right we may have to act with respect to subsequent or similar breaches.
(d) If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
(e) Each party bears its own costs and expenses in relation to these Terms.
(f) Relationship of the parties: Nothing in these Terms creates or is intended to create any relationship of agency, partnership, joint venture, employment or similar between the parties. You agree that eBev has no special relationship with or fiduciary duty to you. Neither party shall have any authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
(g) Nature of agreement: These Terms state all the express terms of the Terms and details the entire understanding between the parties in respect of its subject matter. The Terms supersedes all prior discussions and negotiations between you and eBev (other than written agreements accepted by both parties). You acknowledge and agree that you have not relied on any representations by us in entering this agreement, except those contained in these Terms.
(h) Counterparts: These Terms may be executed in any number of counterparts.
(i) Notices: Without limiting the other ways in which we may give notices to you, we may provide notices to you under these Terms by sending them to any email address you provide us. You will be treated as having received any email sent by us instantly. You may only give notices to us (which must be in writing) by sending them to the following email address admin@ebev.com.
24 - Interpretation
Unless it is inappropriate in the context:
the singular includes the plural and vice versa;
a reference to an individual or person includes a corporation, firm and government body and vice versa;
a reference to a clause is to a clause of these Terms;
a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
any covenant, agreement or warranty on the part of or in favour of two or more persons is deemed to bind or be in favour of them jointly as well as each of them severally;
the meaning of general words is not limited by specific examples introduced by ‘including’, ‘such as’, ‘for example’ or ‘even if’, or other similar expressions;
a reference to a document (including these Terms) includes the document as modified from time to time and any document replacing it; and
headings are included for convenience and do not affect interpretation.