Terms & Conditions

BEFORE YOU USE THE PLATFORM PLEASE READ THESE TERMS CAREFULLY.

BY SUBSCRIBING TO USE THE PLATFORM AND PAYING ANY HOSTING FEES AND SETUP CHARGES TO US, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” OR “MERCHANT”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO ANY TERMS FOR THE PURCHASE OF ANY OTHER PRODUCTS.

WHO IS FECH 

YOUR AGREEMENT TO USE THE FECH PEER-TO-PEER PLATFORM (“PLATFORM”) IS WITH FECH AUSTRALIA PTY LIMITED FECH AUSTRALIA PTY LTD (ACN 642 627 898) ACTING AS THE AUSTRALIAN NATIONAL LICENSEE OF THE TECHNOLOGY LICENSOR, BTE AUSTRALIA PTY LIMITED (KNOWN AS “BTE” OR “BUSINESS TECHNOLOGY E-COMMERCE”).

BTE OPERATES AND MAINTAINS THE FECH TECHNOLOGY AND PROMOTES THE FECH PLATFORM TO PARTICIPANTS THROUGH ITS LICENSED AUSTRALIAN AGENT FECH AUSTRALIA PTY LIMITED  
AND THEIR AFFILIATED COMPANIES (REFERRED TO AS “FECH”,” “WE” OR “OUR” OR “US” OR  “BTE-AUD”).

WHAT IS FECH

FECH IS NOT A RETAILER OF ANY PRODUCTS OFFERED BY MERCHANTS, NOR IS IT IN THE DELIVERY BUSINESS OR A COMMON CARRIER. FECH FACILITATES A DE-CENTRALISED, PEER-TO-PEER PLATFORM TO FACILITATE AN ON-DEMAND DELIVERY OR PICKUP SERVICE (PLATFORM), WHERE LOCAL BUSINESSES CAN OPERATE THEIR OWN HOME-DELIVERY SERVICE AND CONNECT WITH INDEPENDENT FREELANCE DELIVERY CONTRACTORS DIRECT, WITHOUT FECH TAKING ANY TRANSACTION COMMISSIONS. WE ARE A TECHNOLOGY BASED COMPANY HOSTING RETAILERS AND FREELANCE DELIVERY CONTRACTORS FOR A SMALL MONTHLY HOSTING FEE.

GROUP WITH OTHER MERCHANTS AND BECOME A POWERFUL MARKETPLACE

FECH OFFERS THE ABILITY FOR MERCHANTS TO HOST AN E-COMMERCE SHOP WITH US AND ADVERTISE THEMSELVES ON ONE WEBSITE LOCATION (MARKETPLACE) AT FECH.COM.AU AND CONNECT WITH DELIVERY CONTRACTORS TO AFFECT A DELIVERY SERVICE WITHOUT TAKING A PERCENTAGE OF YOUR SALES.

FECH THROUGH ITS PRINT AND MEDIA PARTNERS OFFERS YOU SUBSIDISED MARKETING AT LOW PRICES THAT ARE STRICTLY CONFIDENTIAL AND ONLY AVAILABLE TO FECH MERCHANTS, TO ADVERTISE YOUR SERVICE TO THE CONSUMERS IN YOUR LOCAL AREA. IT IS THE MERCHANTS RESPONSIBILITY TO PROMOTE THEIR HOME DELIVERY BUSINESS AND TO FIND DEDICATED DRIVERS.

FECH GENERALLY GROUPING WITH MERCHANTS WILL PROMOTE THE MARKETPLACE AND WEBSITE TO HOMES AROUND YOUR SUBURBIA WHEN THERE ARE MORE THAN 6 MERCHANTS AND DRIVERS TO CREATE A VIABLE ECO-SYSTEM IN YOUR AREA.

MERCHANTS CAN START THEIR OWN DELIVERY SERVICE USING THE PLATFORM

FECHERS ARE INDEPENDENT FREELANCE DELIVERY CONTRACTORS AND NOT EMPLOYEES, PARTNERS, AGENTS, JOINT VENTURES, OR FRANCHISEES OF FECH. FECHERS HAVE ENTERED INTO INDEPENDENT CONTRACTOR AGREEMENTS WITH FECH, WHICH REQUIRE THEM TO COMPLY WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL LAWS, RULES AND REGULATIONS.  FECH SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELIVERY SERVICES PROVIDED BY FECHERS, OR ANY ERRORS OR MISREPRESENTATIONS MADE BY ANY OF THEM.

YOU HEREBY ACKNOWLEDGE THAT FECH DOES NOT SUPERVISE, DIRECT, CONTROL, OR MONITOR A FECHER’S PROVISION OF SERVICES AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR THE DELIVERY SERVICES THEY PERFORM. WHILST FECH ADVERTISES TO BUILD A POOL OF DRIVERS,  FECH GIVES NO WARRANTY WHATSOEVER THAT THERE WILL BE AN ADEQUATE NUMBER OF FECHERS IN THE OPEN POOL OF DRIVERS TO EFFECT DELIVERY FROM YOUR STORE IN A TIMELY MANNER, AS THE PLATFORM WILL BE WORKING TO MARKET DEMAND AND SUPPLY CONDITIONS.

TO ENSURE THAT YOUR DELIVERY SERVICE GETS OFF TO A FAST-START, YOU SHOULD APPOINT DEDICATED FECHERS TO YOUR SHOP THAT WILL ALSO GIVE YOUR CUSTOMERS THE HIGHEST LEVEL OF SERVICE.

YOU CONTROL YOUR MONEY AND SALES

ALL SALES MADE ON THE PLATFORM ARE APPORTIONED RESPECTIVELY BETWEEN EACH OF THE PEER-TO-PEER PARTIES AND DEPOSITED IN THEIR WALLET ACCOUNTS. ONCE CLEARED THROUGH THE PAYMENT GATEWAYPROVIDERS, ALL YOUR INCOME MAY BE TRANSFERRED FROM YOUR PLATFORM WALLET TO YOUR NOMINATED BANK ACCOUNT.

YOU WILL ALWAYS CONTROL YOUR CASH-FLOW FROM YOUR SALES USING THE PLATFORM. FECH DOES NOT TAKE A COMMISSION FROM ANY MERCHANT SALES OR DELIVERY CHARGES.

AS INDEPENDENT PARTIES, IT IS THE RESPONSIBILITY OF EACH MERCHANT OR FREELANCE DELIVERY CONTRACTOR TO COMPLY WITH ANY REQUIRED GOVT AND TAX REGULATIONS BEFORE STARTING A BUSINESS AND USING THE FECH E-COMMERCE AND DELIVERY PLATFORM.

FECHER DELIVERY FEES

Delivery fees charged to FECH Customers and Merchants by FECHERs may vary from time to time depending on the type of store, the kilometres travelled and the size/weight of the delivery. Below are the standard fees charged:

“FLAT FEE” for up to 3kms distance – a Fee of AUD $4.99.

“DISTANCE FEE” for distances greater than 3 kms – an additional fee of AUD $1.00 per Kilometre.

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“MERCHANT DELIVERY CHARGES” means delivery fees charged to Merchants by Pool FECHERs as follows:

“FLAT FEE” for up to 3 kms distance – a Fee of AUD $1.00.

“DISTANCE FEE” for distances greater than 3 kms – an additional fee of AUD $1.00 per Kilometre.

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EXAMPLES:

       1.       Example for up to a 3 Kms: The Merchant shall pay the FECHER a cost of $1.00 (being $1 for the 1st 3 kms). In such case, the FECHER will earn $5.99 (being $4.99 from Customer and $1 from the Merchant).

       2.     Example for a 5 Kms: The Merchant shall pay the FECHER a cost of $3.00 (being $1 for the 1st 3 kms plus $2 for extra 2 kms). In such case, the FECHER will earn $9.99 (being $6.99 from Customer and $3.00 from the Merchant).

“Large Orders” requiring additional Delivery Bags then the Merchant shall pay the FECHER an additional AUD $2.00 per additional 40L Delivery Bag.

“Replacement Order” if a Merchant requires and Order to be re-delivered to a Customer, then the Merchant shall pay the FECHER the original Delivery Fee. Delivery Charges are subject to change with seven (7) days notice.

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Credit Card Charges – FECH through its Payment Gateway providers chargers Merchants and FECHER's a 2.99% flat credit card fee which includes coverage for fraudulent credit card transactions using Stripe or Paypal or Bank Direct Merchant facilities. A Chargeback Dispute Fee of $30 is charged to the merchant by the Financial facility to cover investigation costs if a customer disputes a transaction.

Alternatively, sometime in the second half of 2020, BTE GLOBAL LIMITED will be offering a  Payment Gateway System in Australia known as “BE-PAY”, that will be FEE-FREE, having no percentage fees chargeable to participants, be it Consumers, Drivers or Merchants and will be offered on the FECH Platform on checkout as an alternative Payment System

As provided in greater detail in these Terms and Conditions, you agree and acknowledge these material terms:

       1.      The Platform is licensed, not sold to you, and you may use the Platform only as set forth in these Terms;

       2.     The Platform is provided “as is” without warranties of any kind, and FECH’s liability to you is limited; and

       3.     Disputes arising under these Terms will be resolved by binding individual arbitration.

1. DEFINITIONS

FECHER” means an independent, third-party, freelance delivery-contractor that conducts a FECH Delivery. The FECHER may be a designated Store FECHER or a Pool FECHER. 

“Pool FECHER” means a FECHER that is part of an open pool of FECHERs and are allocated Delivery Orders automatically by the FECH Delivery Platform and paid the Customer Delivery Charges and the Merchant Delivery Charges. 

“Volunteer FECHER” means a Fecher that is dedicated to delivering a FECH Delivery Order as a community service. Volunteer Fecher's are mainly people conducting good community service and as a side benefit may get tipped or donated a Delivery Fee. Volunteer Fecher's are paid the agreed Motor Vehicle usage fees and expenses.

“Store FECHER” means a FECHER that is dedicated to delivering a FECH Delivery Order from a particular Merchant’s store as a first priority to ensure a faster home-delivery service to FECH Customers.

FECH Delivery” means the software platform that enables delivery fulfilment for orders placed directly through the FECH Marketplace by the Merchant manually or directly by the Customer.

Customer” means the customer who places an order for Merchant Products through the FECH Platform.

 “Platform” means the FECH Peer-to-Peer e-commerce and Delivery Software used by Customers, Merchants and FECHERs to conduct their business

FECH Marketplace” means FECH’s proprietary online communication platform where Customers can view and search for the Products of Merchants and/or place an order for Merchant Products via fech.com.au domain or by the Mobile APPS. The Marketplace is also a part of the FECH Platform.

“FECH Pick-Up” means the software platform that enables customers to place an order for Merchant Products for pick up by the customer or the customer’s agent at a Merchant location.

FECH Services” means FECH Marketplace, FECH Delivery and FECH Pick-Up, as applicable.

Delivery Orders” means bookings placed on the FECH Platform by Merchant for delivery fulfilment by a FECHER.

Marketplace Orders” means orders for Merchant Products placed through the FECH Marketplace from FECH Customers.

Merchant” means the Business and its Owners, jointly and severally, that is a party to this Agreement that have agreed to sell their Merchant Products through the FECH Platform.

Merchant Portal” is an online website, accessible only to Merchants to review and confirm its transactions, fees and charges and accounts on the Platform.

Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.

Merchant Stores” means the Merchant restaurant locations that participate in the FECH Services.

Term” means the term of the agreement between FECH and Merchant for the use of the FECH Platform.

“Order” means a FECH Marketplace Order, a FECH Pick-Up Order or a FECH Delivery Order, as applicable.

“Order Equipment” means and includes any equipment reasonably required by FECH for Merchant to receive and process Orders, including, without limitation, a tablet, a kitchen printer or other automated, electronic means of receiving Orders.

“Service Level Support” or “SLS” means the support levels offered to Merchants and FECHERs depending on the package paid for. There are no SLS support levels defined prior to the 30th March 2021.

Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).

FECH Data” shall mean any data or information that FECH generates or collects in connection with the provision or operation of the FECH Platform or the FECH Services provided under this Agreement, including transaction data and customer data, and any information or data it provides or makes accessible to Merchant through the FECH Platform, including without limitation Personal Information.

“Promotion Fee” means any agreed Promotional fees collected by FECH as a collective contribution will be to advertise the Platform generally to consumers and freelance Delivery contractors. which may be charged as a percentage of revenues transacted on the FECH Platform. Any Promotion Fee collected for any given period must be agreed upon by over 50% of the Merchants using the Platform.

2. RELATIONSHIP OF PARTIES: 

The Licensor provides an online Marketplace on the Platform using web-based and Mobile-APP technology that connects Merchants, FECHERs and Customers. FECH is not a merchant or delivery service; it is an online peer-to-peer freelance connection platform between Merchants and Delivery Contractors. Merchant and FECH agree they are independent businesses whose relationship is governed by the Sign-Up Form and these Terms. 

Nothing in the any of Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, franchise, employee, fiduciary or joint venture relationship between FECH and Merchant (or Merchant’s employees, representatives or locations), FECH and FECHER or FECH and Customers. Except as expressly set forth in the Sign-Up Form and these Terms, each Party shall be responsible for its own expenses, profits and losses.

3. FECH MARKETPLACE USAGE AND OBLIGATIONS. 

For Merchants that have agreed to participate in the FECH Marketplace, FECH and the Merchant shall have the following responsibilities for the Term:

A. FECH RESPONSIBILITIES.

FECH WILL, IN A TIMELY MANNER:

1.      Host the Merchants business which includes the Merchant’s name, logo, photographs, a listing of the Merchant Store and a menu of Merchant Products;

       2.     Receive Marketplace Orders from Customers;

       3.     Forward each Marketplace Order to the Merchant Store; and

       4.     If the automated allocation to a Pool FECHER is not available to Merchants, allow the Merchant to forward each Marketplace Order to a Store FECHER so that the FECHER can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer at the agreed time.

       5.     Collect Payment for Sales made by Customers and allocate such Payment to the Merchant online Wallet in accordance with the Parties’ agreements, deducting only applicable Credit Card charges and banking fees.

       6.     Maintain the Platform and offer a Ticket Support System to the Merchant for any technical difficulties based on the Service Level Support the Merchant has purchased from FECH.

B. MERCHANT RESPONSIBILITIES

MERCHANT WILL, IN A TIMELY MANNER:

       1.      PUBLISH ON THE FECH MARKETPLACE THE MERCHANT’S TAKE-OUT MENU, INCLUDING THE PRICE OF EACH ITEM ON SUCH MENU WHICH SHALL NOT BE ANY DIFFERENT IN PRICE TO THEIR IN-STORE TAKE-OUT PRICING;

       2.     Monitor the Merchant’s menu and store information on the FECH Marketplace and promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify FECH of any errors or changes to orders placed in writing;

       3.     Publish on the FECH Marketplace to Customers any changes to Merchant’s hours of operations on holidays; and if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; 

       4.     Confirm all Marketplace Orders from FECH;

       5.     Prepare the Merchant Products for each Marketplace Order for pickup by a FECHER at the designated time;

       6.     Process Marketplace Orders in the order in which they are received;

       7.     Publish its days and hours of operation on the FECH Marketplace to Customers and remain open for business on FECH Marketplace the same days and hours of operation as Merchant’s in-store business;

       8.     Accept all Marketplace Orders placed by FECH from Merchant’s then-current menu;

       9.     Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 13(3)(i);

       10.   On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to FECH any inaccuracies.

       11.    Use its standard business practices to prepare the Merchant Products that are the subject of each Marketplace Order.

4. FECH DELIVERY OBLIGATIONS.

For Merchants that have agreed to participate in FECH Delivery, FECH and Merchant shall have the following responsibilities for the Term:

A. FECH RESPONSIBILITIES.

FECH WILL, IN A TIMELY MANNER:

       1.      Provide Merchant with access to the Delivery Platform to submit requests for deliveries, or receive information about deliveries with Store FECHERs;

       2.     Provide Merchant with access to forwarding Delivery requests to a Pool FECHER (if Available), so that the Pool FECHER can, on behalf of the Merchant, pick up the Merchant Product(s) from the Merchant Store to deliver to the Customer. There is no guarantee that a Pool Fetcher will be available for deliveries and is subject to market supply and demand of driver contractors available.

B. MERCHANT RESPONSIBILITIES.

MERCHANT WILL:

       1.      Via the online Delivery Platform, provide the information requested by FECH including the Customer’s address, contact information, and any special instructions required for FECHERs;

       2.     Notify Customers prior to placing a Delivery Order that their telephone numbers and other personal contact information will be shared with FECH to enable deliveries to be made by a FECHER and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from FECH and FECHERs; and

       3.     Notify FECH if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Merchant hereby consents to receive text messages and email confirmations from FECH providing status updates and delivery confirmations in connection with each delivery.

       4.     On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to FECH any inaccuracies.

C. DELIVERY OPERATING PROCEDURES.

ORDER PLACEMENT:

Merchant agrees to submit a Delivery Order in accordance with the Delivery terms and conditions and published pricing set by FECH from time to time.

       1.      Hours of Operation. The pick-up and drop-off of deliveries will be scheduled to take place during the Merchant’s standard hours of availability, as may be updated from time to time in FECH Platform. Merchant agrees to abide by the following standard procedures: (i) to notify FECH of any changes to its hours of operations on federal holidays with reasonable advance notice; and (ii) to notify FECH with reasonable advance notice if a Merchant location closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.

       2.     Delivery Radius. FECH will only accept Delivery Orders to be delivered within a certain preset delivery radius based on either the Merchant or the End-Customer location, which will be communicated to Merchant.

       3.     Cancellations. Delivery Fees for any Orders returned by the Customer as a replacement or refund of Merchant’s product are non-refundable and a new Delivery fee will be placed on the Platform for the replacement order that is paid by the Merchant if that occurs.

       4.     A Cancellation Fee of $2 is chargeable by the FECHER if any Delivery Orders are placed by the Merchant and cancelled after a FECHER has accepted a delivery and will be paid to the FECHER by the Merchant.

       5.     NotificationMerchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with FECH prior to submitting any delivery requests on the FECH Platform.

5. MERCHANT PLACED PICK-UP AND DELIVER RESPONSIBILITIES.

For Merchants that have agreed to engage the FECHERs direct through the Delivery Platform, the same responsibilities shall apply between the Merchant and the FECHER in regards to each of the parties responsibilities.

6. REFUNDS AND RE-ORDERS.

REFUNDS AND RE-ORDERS WILL BE ADDRESSED AS FOLLOWS:

A. MARKETPLACE REFUNDS.

In the event that FECH, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer’s Order, Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the gross negligence or wilful misconduct of FECHERs or FECH.

B. DELIVERY REFUNDS.

Merchant acknowledges and agrees that FECH shall be responsible only for facilitating the interaction between the FECHERs delivering the Merchant Product(s) to Customers, and, if applicable, providing delivery status updates to Customers through the Platform. Merchant shall be solely responsible for any customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints directly to FECH. Any complaints regarding the timeliness or quality of a FECHER’s delivery service shall be reported by Merchant to FECH.

C. REFUNDS DUE TO FECHER FAULT.

If the completion of a Delivery Order is more than 45 minutes late (“Late Order”) due to the fault of a FECHER and a Merchant subsequently elects to refund a Customer, then the Merchant may submit a request to FECH to deduct from the FECHER’s account, an amount equal to 40% of the cost of the Delivery Order and reimburse the Merchant to cover all or a portion of the COGS of the applicable Delivery Order to the extent permitted by law.

D. DAMAGED PRODUCTS REFUND

In the event that a Merchant Product has been visibly damaged with proof from customer due to the fault of a FECHER and a Merchant subsequently elects to refund a Customer, then the merchant may submit a request to FECH to deduct from the FECHER’s account, an amount equal to 40% of the cost of the Delivery Order and reimburse the Merchant to cover all or a portion of the COGS of the applicable Delivery Order to the extent permitted by law.

E. GENERAL REFUNDS BY FECH. 

In the event that FECH, in its sole discretion, determines to issue a refund, credit or re-order for a Customer’s Order, Merchant will prepare the food to the same specifications as the original Pick-Up Order (in the case of a reorder) and bear the full cost of that refund, credit or re-order. FECH shall be responsible for customer support issues relating to the online use of the FECH PLATFORM and issues relating to a Customer’s FECH account. All other customer issues or complaints will be Merchant’s sole responsibility to handle in a polite, timely and customer service orientated manner.

F. REFUNDS FROM MERCHANTS.

If Merchant subsequently elects to refund a Customer for any reason, such election shall not obligate FECH or the FECHER to provide a corresponding reimbursement to Merchant.

7. ORDER EQUIPMENT.

With respect to the FECH Marketplace, Merchant will install any equipment reasonably required by FECH for Merchant to receive and process Orders (including, without limitation, a tablet or printer or other automated, electronic means of receiving Orders) (“Order Equipment”).

If any Order Equipment is provided by FECH, Merchant will pay FECH an Order Equipment Fee, as set forth in the Sign-Up Form, in exchange for the right to use the Order Equipment to access the FECH Platform in order to receive, process, and accept Marketplace Orders. 

Any Order Equipment provided by FECH will remain FECH’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware and shall notify FECH in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. 

Merchant will be responsible for any damage to or loss of any Order Equipment provided by FECH (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). FECH may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all subscription fees and deposits reasonably charged by FECH for Order Equipment and agrees FECH may deduct such fees and deposits from amounts payable by FECH to Merchant.

PAYMENT, FEES, TITLE AND TAXES. 

PAYMENT, FEES, AND TAXES SHALL BE ADDRESSED AS FOLLOWS:

a. Merchant Account and Charges

Payment for Marketplace Orders will be settled to the Merchant’s “Account” with each order provided that FECH shall be entitled to deduct Bank Charges and credit card Charges and Hosting Fees. If Merchant has opted for FECH to provide Order Equipment, FECH will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Form, in exchange for the Merchant’s right to use the Order Equipment to access the FECH.

b. Taxes

Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.

c. Review:

Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to FECH in writing any claimed inaccuracies, so that FECH has the prompt opportunity to address and resolve any issues and so such issues do not persist, which FECH and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to FECH any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to FECH regarding such transaction, fee, charge or order within such 60-day period.

d. Title:

Merchant agrees that Merchant holds title to Merchant Products the subject of any Order until the goods are delivered by a FECHER or picked-up by a Customer (as applicable), at which point title passes from the Merchant to the Customer. Merchant agrees that neither the FECHER nor FECH holds title to or acquires any ownership interest in any Merchant Products that Merchant prepares or provides through the Platform.

9. PAYMENT PROCESSING.

Payment processing services for Merchants on the FECH Marketplace and Pick-Up are provided by either Paypal, Stripe or a Bank Direct Payment Gateway and are subject to any Agreement set by the Payment Gateways. By agreeing to these Terms, the Merchant agrees to be bound by these Agreements as the same may be modified from time to time. As a condition of FECH enabling payment processing services, Merchant agrees to provide FECH accurate and complete information about Merchant’s representative and its business, and Merchant authorises FECH to share it and transaction information related to Merchant’s use of the payment processing services provided by FECH and its chosen Payment Gateway providers.

10. MERCHANT CONTENT AND TRADEMARK; PHOTOGRAPHS OF MENU ITEMS.

During the Marketplace Term or Pick-Up Term, as applicable, Merchant grants to FECH a worldwide, royalty-free, non-exclusive, limited, revocable, non-transferable, non-sub-license-able right and license to use, modify, and display the Merchant Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to FECH.

If photographs of Merchant’s menu items are not available or if they do not meet FECH’s requirements, as reasonably determined by FECH, then Merchant consents to FECH engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the FECH Marketplace as representations of Merchant’s menu items; provided that Merchant may contact FECH support to have such photographs removed from the Merchant’s store listing and, in such event, FECH will comply in a timely manner.

11. CONFIDENTIAL INFORMATION.

The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, FECH Data is the Confidential Information of FECH (and not of the Merchant).

Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.

The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except where otherwise permitted by this Agreement, not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorised use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.

Where FECH is the Receiving Party, FECH may: (i) disclose and permit access to Merchant’s and its Licensee’s or Agent’s, Confidential Information to FECH’s related corporate affiliates; and (ii) use, anonymise and/or aggregate Merchant’s and its Licensee’s Confidential Information for the purpose of providing or improving the FECH Platform or FECH Services.

If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.

12. DATA PRIVACY AND SECURITY.

Merchant acknowledges and agrees that (i) the rights, title and interest in FECH Data is owned by FECH and that FECH will access, collect, store, retain, transfer, use, disclose or otherwise process in any manner FECH Data, including without limitation Personal Information (including information about Merchant’s franchisees provided by Merchant to FECH under this Agreement) in accordance with its privacy policy available online at: http://fech.net.au/privacy-policy/, and (ii) FECH may disclose data and information relating to, or in connection with, transactions between Merchant’s agents and Customers with Merchant.  Merchant agrees not to access, collect, store, retain, transfer, use, disclose or otherwise process in any manner FECH Data, including without limitation Personal Information, except as required to perform under this Agreement and in accordance with the Privacy Act 1988 (Cth).

Merchant shall keep FECH Data secure from unauthorised access and maintain the accuracy and integrity of FECH Data in Merchant’s custody or control by using appropriate organisational, physical and technical safeguards. If Merchant becomes aware of any unauthorised access to FECH Data, Merchant will immediately notify FECH, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by FECH. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by FECH and will be responsible for damages resulting from Merchant’s failure to comply.

Merchant will not allow any third party to use the FECH Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the FECH Platform; damage, destroy or impede the services provided through the FECH Platform; transmit injurious code; or bypass or breach any security protection on the FECH Platform. Where Merchant party becomes aware of any “Eligible Data Breach” (as that term is defined in the Privacy Act 1988 (Cth)) in respect of Personal Information in its possession or control received from FECH, Merchant must promptly notify FECH and cooperate with investigations regarding the same.

Delivery Platform. During the Term, FECH grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery Platform solely to transmit information to facilitate the FECH Delivery services. Merchant will not permit or authorise any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery Platform; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorised access to the Delivery Platform; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organisation of the Delivery Platform; (iv) use the Delivery Platform in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery Platform for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery Platform) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.

13. TERMINATION.

Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice. FECH may terminate this Agreement or any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor FECH will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or FECH.

14. MODIFICATIONS.

FECH reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. FECH may, at its sole discretion, remove Merchant Products or Stores from the FECH Marketplace if FECH determines that such Merchant Product or Merchant Store could subject FECH to undue regulatory risk, health and safety risk, or other liability. FECH also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at http://fech.net.au/merchant-terms/. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may terminate this Agreement by notice to FECH.

15. REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER.

Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.

Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.

Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed FECH of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform FECH of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the FECH Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the FECH Marketplace or request delivery of any age-restricted products through the FECH Platform without first entering into a separate agreement with FECH memorialising the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) it will not disclose any information related to a FECHER or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under this Agreement.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FECH HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE FECH PLATFORM, THE DELIVERY API, EQUIPMENT OR FECH SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED. IF ANY GUARANTEE, WARRANTY, TERM OR CONDITION IS IMPLIED OR IMPOSED IN RELATION TO THIS AGREEMENT UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LEGISLATION AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE PROVISION), AND A PARTY IS ABLE TO LIMIT ITS LIABILITY FOR A BREACH OF THE NON-EXCLUDABLE PROVISIONS, THEN THE LIABILITY OF THAT PARTY FOR BREACH OF THE NON-EXCLUDABLE PROVISIONS IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT THAT PARTY’S OPTION: (1) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (2) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and, subject to the Non-Excludable Provisions, FECH shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the FECH services or Platform contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

16. INDEMNIFICATION.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of FECH, FECHERs (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 12 and Section 15 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property. In addition, Merchant will defend, indemnify and hold harmless FECH from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or wilful misconduct of FECH. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defence and settlement of any claim, and (c) reasonable assistance in connection with such defence and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defence or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. FECH assumes no liability, and shall have no liability, for any infringement claim pursuant to section 16(iii) above based on Merchant’s access to and/or use of the FECH Platform following notice of such an infringement claim; any unauthorised modification of the FECH Platform by Merchant; or Merchant’s combination of the FECH Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

17. LIMITATION OF LIABILITY.

SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID FEES OWED TO FECH BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE). THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

18. INSURANCE.

During the Term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

19. DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH FECH AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or FECH may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES MAY BEEN FILED AGAINST FECH—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH FECH, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST FECH IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to FECH’s registered agent. The arbitration will be conducted by the Australian Disputes Centre (“ADC”) under its then-current arbitration rules and pursuant to the terms of this Agreement. ADC’s arbitration rules are available at disputescentre.com.au/adc-rules-for-domestic-arbitration/. Payment of all filing, administration, and arbitration fees will be governed by ADCs rules.

Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and FECH. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on You and FECH.

Waiver of Class or Consolidated Actions; Severability. YOU AND FECH AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor FECH is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 24, and all other provisions of this Section 19 (Dispute Resolution) shall remain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19.

Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor FECH can force the other to arbitrate as a result of this Agreement. To opt out, you must notify FECH in writing of your intention to opt out by sending an email letter to compliance@fech.com.au with a return read receipt that shall also include an email from FECH that their message has been received and acknowledged. To be effective, your opt-out notice must be postmarked no later than 30 days after your first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your FECH username (if any), the email address you used to set up your FECH account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one Merchant, and letters that purport to opt out multiple Merchants will not be effective as to any. No Merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. 

This Arbitration Agreement will survive any termination of your relationship with FECH.

Notwithstanding any provision in the Agreement to the contrary, we agree that if FECH makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company. 

20. LITIGATION CLASS ACTION WAIVER:

To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

22. MERCHANT CODE OF CONDUCT. Merchant agrees to comply with the Merchant Code of Conduct fech.com.au/merchant-code-of-conduct), which may be updated by FECH from time to time. If Merchant does not agree with those amendments, Merchant may immediately terminate this Agreement.

23. COMMUNICATIONS FROM FECH. Merchant agrees to accept and receive communications from FECH, its affiliated companies and/or FECHERs via the online support system at support.fech.com.au. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialling systems and/or which will deliver pre-recorded messages sent by or on behalf of FECH, its affiliated companies and/or FECHERs. Merchant may opt out of such communications in Merchant’s Account Settings, by following the instructions set up in the communication, (for example, by replying “STOP” from the mobile device receiving such messages), or where that communication has been sent by, or on behalf of, FECH, by emailing FECH at privacy@fech.com.au.

24. GENERAL PROVISIONS.

As set forth on the Sign-Up Form between Merchant and FECH, the Sign-Up Form and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the state of New South Wales, Australia without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 19 (“Dispute Resolution”), the parties hereby consent to non-exclusive jurisdiction in the courts of New South Wales, Australia. Merchant may not assign this Agreement in whole or in part without FECH’s prior written consent, which FECH will not unreasonably withheld. FECH may freely assign this Agreement. This Agreement is binding upon and inure to the benefit of the permitted successors and assigns of each party but shall not confer any rights or remedies upon any other third party. All notices, requests, consents, and other communications under the Parties’ agreements must be in writing, and delivered by email with a read receipt, that shall include an email from the other party that their message has been received and acknowledged. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

Copyright Fech Australia Pty Limited – All rights reserved.  V1.0 – Merchant Terms and Conditions – Effective 5th April 2020.

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