Terms & Conditions

HuskeeSwap Cafe Partner Terms and Conditions 

These terms and conditions are between Huskee Pty Ltd ABN 44 617 862 763 (“Huskee”, “HuskeeSwap”, “we”, “us” and “our”) and you the individual, entity or organisation registering an account with us as a HuskeeSwap café partner (“you”, “your”, “Café Partner”), each a “Party” and together the “Parties”.

This online platform is run by Huskee and is available at www.huskee.co and/or our mobile application available on the Apple App Store and Google Play Store (together the “Platform” or “HuskeeSwap App”).

You accept these terms and conditions, including any policies, codes of conduct or other terms set out on the Platform (“Terms”) by clicking a box indicating your acceptance.

If you access or download our App from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google App Terms of Service.

By registering as a Café Partner you agree to the following terms and conditions:

1. Huskee is the HuskeeSwap operator globally

1.1 The Huskee Services and System is owned, operated and provided by Huskee and use of the Huskee Services and System is subject to these Terms.

1.2 Café Partner is a retail/beverage provider.

2. Each Party warrants that:

2.1 it has full legal capacity, right, authority and power to enter into these Terms and to perform its obligations under these Terms; and

2.2 these Terms constitute a legal, valid and binding agreement, enforceable in accordance with its terms.

3. Huskee warrants that:

3.1 it is the owner (under registered systems and common law) of its intellectual property - including all its trade marks, designs, copyrights and patents which are protected in Australia and internationally; and 

3.2 it is the owner, inventor and operator of the HuskeeSwap cup exchange system (“the System”).

4. Café Partner warrants:

4.1 to provide all assistance, any information and documentation to enable us to provide the Platform and that all information it provides to us is true, accurate, complete and up to date and will be updated as and when it changes; and

4.2 it will carry out the Services in a manner that reflects favorably on the Huskee brand and will not bring the brand into disrepute.

5. Café Partner agrees:

5.1 it uses the Platform at its own risk; and 

5.2 we do not guarantee that the Platform will be secure, timely, uninterrupted or error or virus free or that the Platform will meet its expectations or requirements; and

5.3 to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

6. HuskeeSwap Service

6.1 The Café Partner agrees to provide the following:

a. provide an inventory of float of Cups and Lids to be available in store; and

b. facilitate re-use of Cups; and

c. provide store Cup feature in store; and

d. ensure Cups are properly cleaned, sanitised and stored to the standards set out in, but not limited to, the Australia New Zealand Food Standards Code and any Local Council requirements, and ready for use by another Member.

(together “the Service”)

6.2 Huskee will continue to develop and improve the System and will notify the Cafe Partner of changes.

7.Cafe Partner Obligations

7.1 As a Cafe Partner you will be required to register an account (“Account”) and will be required to:

7.1.1 provide business name, business address, email address; and

7.1.2 purchase the HuskeeCups and Lids (“Cup and Lid”) (on the basis of a licence) in your float and ensure that you purchase a sufficient number of Cups and Lids (on the basis of a licence) to provide the Service as per Huskee recommendations which we will provide to you and/or which are outlined on the Platform; and

7.1.3 provide bank account details, when you nominate to activate the HuskeeSwap borrow feature.

7.2 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

7.3 You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms.

7.4 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, and for ensuring that any activities on your Account comply with these Terms. We are not responsible for the management or administration of your Account.

7.5 For information on how your information will be used please refer to our Privacy Policy.

7.6 You understand that by providing Huskee with any information as part of the registration process that you may receive emails, SMS messages, newsletters and marketing from Huskee. If you do not want to receive any further correspondence you may contact hello@huskee.co and unsubscribe at any time.

7.7 As a Cafe Partner, by registering an Account, you agree to allow Huskee to promote you as a provider of the Service to our customers or potential customers.

8. License to use

8.1 When you purchase the Cups and Lids (on a licence basis), you will automatically obtain a licence, for the duration of the Term, to use the Cups and Lids for use in the System (“Licence”). On the date this Agreement is terminated in accordance with clause 12, the Licence will end and title in the Cups and Lids will pass to you, in which case you will then have purchased the Cups and Lids.

8.2 HuskeeSwap retains title to the Cups and Lids up until the date of termination of the Agreement.

9. Cup Exchange System

9.1 Cafe Partner agrees to have an appropriately labelled drop-off point in store, where Cup and Lid must be returned upon purchase of beverage.

9.2 As a Cafe Partner, you agree to provide the ordered beverage in a Cup and Lid from your float, in exchange for a returned Cup and Lid.

9.3 As a Cafe Partner, you agree to maintain and manage a float inventory of Cups and Lids.

9.4 As a Cafe Partner, you agree to allow HuskeeSwap members to store Cups and Lids in your store in accordance with the following:

9.4.1 display your Huskee allocated QR Code;

9.4.2 verify customer membership has been activated through HuskeeSwap App;

9.4.3 ensure customer scans QR Code;

9.4.4 accept Cup and Lid to be used in your float; and

9.4.5 wash Cup and Lid  as per clause 6.1.d.

9.5 As a Cafe Partner, when you activate the borrow feature, you agree to allow HuskeeSwap members to borrow cups (“Borrow Cups”) in store in accordance to the following:

9.5.1 display your Huskee allocated QR Code;

9.5.2 verify customer membership has been activated through HuskeeSwap App;

9.5.3 ensure customer scans QR Code; and

9.5.4 provide ordered beverage in a Cup and Lid from your float, without receiving a Cup and Lid in exchange.

9.6 As a Cafe Partner, you agree to comply with the following:

9.6.1 check and examine if incoming Cups and Lids are in in good working order and are not damaged, chipped, cracked, defaced, modified or otherwise altered; and

9.6.2 exclusively use Cups and Lids with the Service and no other cups; and

9.6.3 allocate space at POS and window space (where available) for HuskeeSwap marketing collateral; and

9.6.4 share exchange statistics with Huskee.

9.7 Huskee agrees to:

9.7.1.1 provide you with the Cups and Lids and provide you with an automatic Licence to use the Cups and Lids in accordance with the terms of this Agreement;

9.7.1.2 provide systems and onboarding training for staff;

9.7.1.3 add Café Partner to HuskeeSwap database;

9.7.1.4 make HuskeeSwap database available to HuskeeSwap members;

9.7.1.5 provide customer support to Café Partner; and

9.7.1.6 as per HuskeeSwap Borrow Cup feature under Clause 9.5:

9.7.1.6.1 if a customer does not return Cup and Lid after 5 days, the customer shall be charged a fee to purchase the Cup and Lid, and a defined % of the fee shall be paid directly to the Cafe Partner through the HuskeeSwap App. This fee is defined in the HuskeeSwap App,

 

(together, the “Huskee Services”).

 10. Marketing

Café Partner agrees to advertise the Services to its customers using the marketing material provided by us. You must obtain our prior written approval if you would like to create your own marketing material or edit or alter our marketing material.

 11. Subscription to Service

11.1 We may update these Terms at any time, for examplewe may introduce a subscription fee to use the Platform. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 12.

 12. Default & Termination

12.1 Either Party may terminate these Terms by giving the other Party written notice. If you no longer want to be a Café Partner, please notify us.

12.2 These Terms will terminate immediately upon written notice by a Party (“Non-Defaulting Party”) if the other Party (“Defaulting Party”) breaches a material term of these Terms and that breach has not been remedied within 5 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.

12.3 Upon termination of these Terms:

12.3.1 the Café Partner agrees to return all property, including confidential information and intellectual property, that belong to us (or our distributors) in your possession including but not limited to merchandise packs and POS stands; 

12.3.2 title to the Cups and Lids will pass to the Café Partner, in which case you will ahve purchased the Cup and Lids; and

12.3.3 the Café Partner will be removed from Huskee’s database and location map.

13. Intellectual Property

13.1 Huskee gives Cafe Partner a non-transferable, non-exclusive, revocable licence to use the Platform in accordance with these Terms as well as any marketing material provided by Huskee to Café Partner (“IP Licence”). The IP licence is limited to Cafe Partners country of operation. This IP licence will be revoked when these Terms are terminated.

13.2 HuskeeSwap App, the System and Huskee Services and its original content, features and functionality are and will remain the exclusive property of Huskee.

13.3 HuskeeSwap App, the System and Huskee Services are protected by copyright, trademark, and other laws of Australia.

13.4 Developments and Improvements to System

13.4.1 From time to time, Huskee will continue to develop and improve the System and will notify Cafe Partner of changes.

13.4.2 All future IP, changes to system belong to Huskee.

13.5 Nothing in these Terms constitutes a transfer of any intellectual property rights from Huskee to you.

13.6 Unless otherwise agreed to by us, you must not, without our prior written consent: (a) copy or use, in whole or in part, any of our intellectual property; (b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or (c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of our intellectual property; causing any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property. For the avoidance of doubt, this clause does not limit you from promoting our Platform in your social media feeds.

14. Swap Cup and Lid warranty (“Warranty”)

14.1 This Warranty only applies to Café Partners who have an authorised distribution partner in their local area. Please contact us if you are unsure. If we do not have an authorised distribution partner in your local area you may terminate these Terms in accordance with clause 12.

14.2 Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund of the unused portion, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract. 

14.3 We provide this Warranty to you in addition to any rights or remedies you have under the Australian Consumer Law or any other applicable law (“Consumer Law Rights”).

14.4 “Defect” or “Defective” means that the Cups and Lids are not provided in accordance with this Agreement as a result of our default of this Agreement.

14.5 If the provision of the Cups and Lids prove Defective, we will resupply the relevant part of the Huskee Services to you, which  may include replacing the Cups and Lids under the Warranty which is also known as the HuskeeSwap float protection program. 

14.6 To make a claim under this Warranty you must notify us by email at swap@huskee.co as soon as you become aware that the relevant part of the Huskee Services are Defective (being where the Cup and Lid have a Defect), email us a description and photographs of the claimed Defect, and provide any other information reasonably required by us to assess your claim. 

14.7 Subject to your Consumer Law Rights, if the resupply of the Huskee Services involves the replacement of Cups and Lids , it is limited to 20 cups and 20 lids each year from the date of first subscription.

14.8 Postage of Cup and Lid to Huskee or nominated Huskee distribution partner is payable by Cafe Partner with free shipping applied to your wholesale account for the next order. 

14.9 If we do not have an authorised distribution partner in your local area, this Warranty will not apply.

14.10 This Warranty does not cover any Defect which is caused (or partly caused) or contributed to, by any:

14.10.1 act or omission, accident or negligence by you; and

14.10.2 failure on your part to follow any guidelines (including cleaning guidelines) provided by us or the manufacturer in relation to the Cups and or Lids.

15. Australian Consumer Law

15.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified.

15.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

15.3 This clause will survive the termination or expiry of these Terms.

16. Risk

Risk in the Cups and Lids will pass to you when a customer provides you with a Cup and Lid. You agree that once you have been provided with a Cup and Lid you will be solely responsible for the Cup and Lid until it is provided to another customer. Once it is provided to the customer, risk in the Cup and Lid will pass back to the customer who you provide the Cup and Lid to.

17. Notice regarding Apple

17.1 To the extent that you are using or accessing our App on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the App and any content available on the App.

17.2 Apple has no obligation to furnish you with any maintenance and support services with respect to our App.

17.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

17.4 Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

17.5 Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our App infringes that third party’s intellectual property rights. 

17.6 You agree to comply with any applicable third-party terms when using our mobile application. 

17.7 Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

17.8 You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

18. Limitations on Liability

18.1 Despite anything to the contrary and to the maximum extent permitted by law: (a) we will not be liable for any lost Cup and Lid or damaged or Defects in Cup and Lid that are caused or contributed to by you; (b) we will not be liable for any indirect or special loss, incidental loss, consequential loss, loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data whether under statute, contract, equity, tort (including negligence); and (c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited $10 in respect of the supply of the relevant Huskee Services to which the Liability relates.

18.2 In these Terms, “Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

19. Third Party Inputs

19.1 You agree that the provision of the Platform may be contingent on, or impacted by, third parties or any goods and services provided by third parties, including third parties that provide us with IT services, end users, merchants, suppliers, or other subcontractors which the provision of the Platform may be contingent on, or impacted by (“Third Party Inputs”). Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible and will have no Liability for any default or breach of these Terms or any law if such default or breach was caused or contributed to by any Third Party Inputs.

19.2 To the extent that any Third Party Inputs are required by us in order to be able to provide the Platform to you: (1) we agree to, where applicable, obtain and maintain the required licences for access and use of any Third-Party Inputs (at no additional cost to you); and (2) you agree to: (i) where these are notified to you, adhere to the terms and conditions of any such Third-Party Input licences; and (ii) comply with our reasonable instructions and directions and the directions of the third-party provider.

19.3 You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Platform, is subject to your compliance with this clause.

20. Governing Law

Your use of our Platform and these Terms are governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

21. Disputes 

In the event of any dispute arising from, or in connection with, these Terms (“Dispute”), the party claiming there is a Dispute must give written notice to the other Party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either Party (by notice in writing to the other Party) to litigation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive the termination or expiry of these Terms.

22. Severance

The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

 

For any questions and notices, please contact us at:

Huskee Pty Ltd ABN 44 617 862 763 

Email: hello@huskee.co

Last update: 5 November 2021