Subject to these Terms, the Apps enable you to make use of the Services as outlined in the relevant App.
1.1 Please read these Terms carefully. These Terms, if agreed by you in accordance with clause 1.2, will constitute a binding agreement between you and Caltex.
1.2 By clicking "I agree" or by accessing and/or using the Apps and the Services, you agree to be bound by these Terms. If you do not agree with any of the provisions of these Terms, you must not use the Apps or the Services and you must immediately cease accessing and using the Apps and Services. We recommend that you print or save a local copy of these Terms for your own records.
1.3 Caltex may update and expand on the Services that we can offer to you by way of the Apps, and will notify you of any new functionality or features within the App once it becomes available.
1.4 Caltex may, in its sole discretion, update, modify or replace any or all of these Terms from time to time by posting an updated version at this URL. Where a revision materially alters any obligation imposed on you, Caltex will use commercially reasonable efforts to notify you of such revisions using the email address you provided when you registered. You are responsible for checking the 'About' section of the Apps (or such other section where these Terms are located) for any changes to these Terms. Your continued use of, or access to, the Apps and/or the Services following the posting of any changes to these Terms will be deemed to constitute acceptance of those changes. If you do not agree to any update to these Terms you must immediately cease using and accessing the Apps and the Services.
In order to access and use the Apps and
the Services, you must:
a) be at least 18 years of age or, if you are under 18 years of age, have the permission and supervision of a parent or legal guardian;
b) possess the legal right and ability to enter into a legally binding agreement with us;
c) agree and warrant to use the Apps and the Services in accordance with these Terms; and
d) have a registered account.
1.6 When you are at a Caltex site, you must not use the Apps while refuelling your vehicle. Once you have replaced the pump nozzle, you are welcome to open the Apps on your device.
1.7 Caltex may, but is not required to:
a) provide updates, changes or amendments to the Apps or Services as Caltex sees fit to ensure proper operation of the Apps and any general enhancements that may be introduced; and
b) offer new services and features through, and in relation to, the Apps or Services, which will be subject to these Terms.
2.1 To access and use any App and the Services, you must have a registered account with the relevant App. In order to register for an account, you will be required to provide your full name, nominate a contact number and an email address through which Caltex can contact you in relation to the App and the Services. Your use of certain features within the Apps (i.e. the Food Services and Fuel Services), may require you to nominate a Payment Method (which may include credit card details) and link it to your registered account.
2.2 When you register and activate your account, you will be prompted to create a username and password. You are solely responsible for keeping this username and password secure and are responsible for all use and activity, including activity in breach of these Terms, carried out under your username.
2.3 You must notify Caltex immediately, and request cancellation or suspension of your account, if you become aware of any unauthorised use, or suspected unauthorised use, of your account or if the security of your account is compromised in any way, by contacting email@example.com . This may be due for example, to your mobile device being stolen or lost or your password becoming known to another person. Caltex agrees to cancel or suspend your account within 2 business days after receiving notice from you in accordance with this clause.
2.4 Caltex is not liable for any loss suffered by you as a result of any unauthorised use of your account, unless such loss is incurred as a direct result of Caltex’s failure to cancel or suspend your account within 2 business days after you have given Caltex notice in accordance with clause 2.3.
2.5 You agree that:
a) you will not provide any false personal information to Caltex, or create an account for anyone other than yourself without that individual's and Caltex's permission;
b) you will not create more than one account for each App;
c) if Caltex disables your account, you will not create another one without Caltex's permission;
d) you will keep your personal information and account information accurate and up-to-date;
e) you will not transfer your account to anyone without Caltex's prior written approval;
f) you will only log onto your App account on one device at any time; and
g) you will not share your password or let anyone else access your account, or do anything else which might jeopardise the security of your account.
Where the Location Services functionality
has been activated for an App:
a) you may use the App to locate nearby Locations;
b) if you are near a participating Location, the App will indicate that you may use the Food Services or Fuel Services at that Location; and
c) Caltex will be able to, via the App, obtain access to data about your location. If you do not want to enable Caltex (via the App) and its franchisees to access information about your location, you should immediately de-active the Location Services functionality, after which you will not be able to use the Location Services or Fuel Services.
4.1 If you are within 200 metres of a participating Location you may use the App to purchase your fuel.
4.2 To use FuelPay, you must consent to Caltex accessing your location data by enabling location services on your mobile device’s operating system. When you activate the App, you will be prompted to input the number of your fuel pump at the Location. You will then be taken to a screen summarising the kind of fuel purchased, the quantity of the fuel purchased and the total price of the fuel purchased (Fuel Order), and allowing you to confirm your payment. Please note: It is your responsibility to ensure that, when using FuelPay, you select the correct pump number. Caltex is not liable for any error made by you in selecting an incorrect pump.
4.3 Before using the Fuel Services you must choose, and link, a Payment Method to your account. You cannot use the Fuel Services unless your account has a linked Payment Method.
4.4 You acknowledge that it is your responsibility to accurately input the information required in clause 4.2 and to review and confirm the accuracy of any information contained in the Fuel Order before confirming your payment and that Caltex will have no liability to you in relation to any mistakes made by you in inputting this information.
4.5 Once you have confirmed your Fuel Order, your nominated Payment Method will be charged for your Fuel Order and Caltex will send confirmation of your Fuel Order to your nominated email address.
4.6 If your Payment Method is not approved, you will be prompted to pay for your Fuel Order in person at the Location.
4.7 Where you use the Fuel Services in this clause 4, Caltex will be able to, via the App, obtain access to data about your location. You cannot use the Fuel Services unless you give Caltex consent to access your location data. If you do not want to enable Caltex (via the App) and its franchisees to access information about your location, you should immediately de-active the Location Services functionality, after which you will not be able to use the Location Services or the Fuel Services.5. Food Services
5.1 You can use the App to pre-order available food and drink items for pick-up at a nominated time from participating Locations.
5.2 When you activate the 'Pre Order' on the App, you will be provided with, and can choose from, a list of available food and drink items at the participating Location, and may choose a pick-up time for your selected items (Food Order). You will then be taken to a screen where you may review and amend the details of your Food Order, or cancel your Food Order, at any time prior to confirming your Food Order at checkout.
5.3 If you do not already have a Payment Method linked to your account, you will be prompted to choose, and link, a Payment Method to your account. You cannot use the Food Services unless your account has a linked Payment Method.
5.4 You acknowledge and agree that it is your responsibility to accurately input the information required in clause 4.2 and to review and confirm the accuracy of any information contained in the Food Order before confirming your payment and that Caltex will have no liability to you in relation to any mistakes made by you in inputting this information.
5.5 Once you have confirmed your Food Order at checkout, your nominated Payment Method will be charged for your Food Order and Caltex will send you confirmation of your Food Order, including the contact details of the relevant Location, to your nominated email address.
5.6 If your Payment Method is not approved, you will be prompted to input another Payment Method or to pay for your Food Order in person at the Location.
5.7 Caltex will communicate your Food Order and the name nominated by you for your registered account to the Location, in order to identify you when you are picking up your Food Order.
5.8 Where you make use of the Food Services at a Caltex franchisee's Location, you acknowledge that Caltex only provides the Services as set out in these Terms, and does not prepare, or accept any liability for the preparation of, the relevant food or drink items.
5.9 You acknowledge and agree that:
a) the provision of Food Services is subject to the availability of the relevant food or drink item at the relevant Location, the operating hours of the Location and acceptance by the Location of your Food Order;
b) Caltex, or Caltex's franchisees, may refuse to process a Food Order due to lack of stock, or for any other reason or refuse to provide the Services to anyone at any time at Caltex's sole discretion and that pursuant to clause 4.11, Caltex will refund any amount paid by you relating to that Food Order;
c) Caltex does not warrant that you will find suitable food or drink items for your specific taste, dietary, nutritional or other requirements on the App and that you are solely responsible for verifying ingredients that may cause you, or any other person you place a Food Order for, any allergic reactions when using the Food Services;
d) estimated times for the collection of Food Orders are only estimates. While Caltex will do its best to meet the estimated times, Caltex and Caltex's franchisees do not guarantee that Orders will be available for collection within the estimated times; and
e) to the extent permitted by Law, including the Australian Consumer Law, Caltex does not give any undertakings that the food or drink items ordered through the Food Services will be of satisfactory quality or suitable for your purpose and Caltex disclaims any such warranties.
have confirmed your Food Order and your payment has been processed, you will
not be able to retract, cancel or modify the processed Order, unless:
a) you request cancellation or amendment of your Order by calling the customer support number provided in the 'Feedback' section of the App;
b) Caltex or Caltex's franchisee allow you to do so at their absolute discretion; and
c) the Location has not commenced work on your Food Order.
5.11 Caltex's customer support team or a Location may reject or cancel a Food Order for any reason whatsoever at any time in its sole discretion, including where (without limitation) the food or drink items the subject of the Food Order are, or become, unavailable. If this occurs, the Location may in its sole discretion, offer you alternate food or drinks for the same price. If you are not offered, or do not accept such an alternative, Caltex will refund any amount paid by you relating to that Food Order (either through a cash refund at the Location, or by refunding you through your nominated Payment Method).6. Refunds
6.1 If you are not satisfied with the quality of any products or the Services provided through the App and wish to seek a refund or any other compensation, you should contact us through the 'Feedback' section of the App within 48 hours of placing your Order, providing details of why you require a refund. To the maximum extent permitted by Law, including the Australian Consumer Law, and without limiting clause 6.2, Caltex will assess the merits of each refund claim and will advise you of their decision within 30 days.
6.2 You will be entitled to a refund where your Food Order was cancelled or refused by Caltex or a Location as set out in clause 184.108.40.206 Without limiting clause 6.1, you will not be entitled to a refund for any uncollected Food Order. Caltex and, if relevant, Caltex franchisees will have no responsibility or liability relating to your failure to collect a Food Order, including any obligation to store an uncollected Order or for any loss or damage to an uncollected Order which may include perishable products.
7.1 Caltex accepts all Payment Methods listed in the Apps, as updated or amended from time to time.
7.2 Where relevant, you authorise Caltex charging you for the provision of Services using your selected Payment Method.
7.3 Where any payment that you make is not authorised by your credit card or bank provider or otherwise, your Order will not be processed by, or communicated to, the relevant Location. Where your Payment Method is not authorised, you must either use a different accepted Payment Method or pay for the relevant Services in person at the Location.
7.4 You will not be able to use a Payment Method if it has expired, has been reported stolen by your bank or is no longer eligible for use in an App for any reason. You will be notified in the App if your nominated Payment Method has failed and asked to pay within the store at the Location.
7.5 For the Foodary App - If you submit a Food Order where your nominated Payment Method is a credit card and your payment was authorised, but your Food Order is subsequently rejected by the Location (including as permitted by clause 5.11) or is otherwise cancelled under these Terms, your bank or card issuer will refund the relevant amount of your Food Order. However, this refund may take between 3 to 5 Business Days (or longer, depending on your bank or card issue) . You acknowledge and agree that neither Caltex nor any relevant licensee will be responsible or liable to you in relation to this delay by your bank or card issuer in the release of funds back into your account.
7.6 For the Fuel Services – If your nominated Payment Method is a Visa or Mastercard or StarCard (Card), you must keep your physical card with you at all times. FuelPay is not available at non-Caltex sites and Caltex cannot guarantee that FuelPay will always be available at Caltex participating Locations.
7.7 If you have received fuel and your payment through the Fuel Services has been declined or has been unsuccessful for any reason, you must pay for the fuel in-store. If you fail to pay for the fuel dispensed, Caltex reserves the right to recover the relevant payment either directly or indirectly through a third party and may charge a recovery fee.
7.8 You acknowledge that registering your Card on an App creates a digital instance of your physical Card. This means for example that if your physical Card is cancelled or suspended, the digital Card registered on your App will also be cancelled or suspended and will no longer be able to be used.
7.9 Caltex uses third party merchant facilities to process payments. Accordingly, Caltex is not responsible for, and does not have any control over, any third party merchant facilities. You acknowledge and agree that Caltex will not be liable for any loss or damage arising out of any use of a third party payment gateway. You should read and understand the terms of the third party merchant facilities before using them.
7.10 All prices on the Apps shall be shown, and charged, in Australian dollars, and shall be inclusive of GST and any other applicable taxes.8. Discount Offers
8.1 From time to time we may offer you a discount off the standard price of our goods and services, including but not limited to our Food Services or Fuel Services, when using the Apps (Discount).
8.2 Your eligibility to receive a Discount will be subject to the terms and conditions set out in the offer communications and marketing material (Offer Terms).
8.3 The Discount may only be applied to transactions at participating Locations during the period specified in the Offer Terms.
8.4 Unless otherwise stated in the Offer Terms, any Discount to be applied to the Fuel Services will be limited to a maximum of 120 Litres per transaction.
8.5 The Discount may not be used in conjunction with any other offer, unless stated otherwise.
8.6 Caltex reserves the right to amend or terminate the Discount at any time at their discretion without notice.9. Referrals
9.1 When using an App you may be assigned a unique referral code.
9.2 You may be eligible to receive a discount on your purchase made by way of an App (‘Referral Bonus’) if:
9.3 you share the App with another person (‘Referee’) who has never used the App who then downloads the App;
9.4 the Referee registers an account on the App and enters your referral code at the time of registration; and
9.5 the Referee makes a purchase by way of the App.
9.6 You will only receive a Referral Bonus if the Referee enters your referral code at the time of their registration.
9.7 If you are eligible to receive a Referral Bonus, you will receive an email notification.
9.8 The Referral Bonus cannot be used in conjunction with any other offer.
9.9 You must not use your Referral Bonus in or for paid promotions, including online advertising.
9.10 A Referral Bonus must not be transferred, exchanged or redeemed for cash.
9.11 You must only use the Referral Bonus for personal purposes.10. Conditions of Access and Acceptable Use
10.1 You acknowledge and agree that the availability of each App is dependent on the third party from which you obtain the App (the App Store). Each App Store may have its own terms and conditions which you agree to comply with, and the licence granted under clause 12.2 is conditional on your compliance with any such terms and conditions.
10.2 The Apps and the Services are made available to you for your personal, non-commercial use only. You must not, and must not permit or cause any third party to, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any content, software products or Services contained within the Apps.
a) access or use the whole or any part of the Apps or Services, except as expressly authorised by these Terms, or otherwise with the prior written consent of Caltex;
b) remove or obscure any proprietary notice (including any copyright, trade mark, service mark, tagline) or other notices contained in the Apps;
c) circumvent any mechanisms in the Apps intended to limit your use of, or access to, areas within or components of the Apps;
d) vary, alter, modify, merge, interfere with, reverse disassemble, decompile or reverse engineer, or otherwise seek to obtain or derive the source code from, the whole or any part of the Apps, except as permitted by Law;
e) solicit the login information or access an account belonging to another user;
f) facilitate or encourage any violations of these Terms; or
g) use any data mining, gathering or extraction tools in connection with the Apps or Services, without Caltex's prior written consent.
not access or use the Apps or Services, or provide or transmit any data or content
in any way that:
a) violates or infringes the rights (including, without limitation, any Intellectual Property Rights) of Caltex or Caltex's franchisees, or third parties;
b) is unlawful, offensive, indecent, objectionable, harassing, obscene, pornographic, threatening, abusive, defamatory, libellous, fraudulent, tortious, or invasive of another's privacy or constitutes a breach of any other of the legal rights of individuals;
c) includes personal or identifying information about another person without that person's consent;
d) is false, misleading, or deceptive;
e) violates these Terms or any policy posted in the 'About' section, or elsewhere, in the Apps;
f) contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or other property, or otherwise permit the unauthorised use of or access to a computer or computer network;
g) is detrimental to, or in violation of, Caltex's systems, or a third party's systems or network security;
h) interferes with the use of the Apps or Services by other users; or
i) could damage, disable or impair the servers or networks used by the Apps or other users.
10.5 Caltex may, at any time without prior notice, restrict, block, suspend or disable access, edit and/or remove some parts of any App, or the entire App or Services, including any material which in Caltex's reasonable opinion may give rise to a breach, or be in violation of these Terms or any Law, or which Caltex considers in its absolute discretion might be otherwise harmful.
10.6 To earn Woolworths rewards points on fuel and instore purchases at participating Caltex locations via the Caltex Australia App, Customers must successfully link their Caltex Australia App to their Woolworths Rewards account. The Customer acknowledges that they are bound by the terms and conditions at https://www.caltex.com.au/woolworths and the Woolworths Rewards Program Terms and Conditions at https://www.woolworthsrewards.com.au/terms.html
10.7 To earn 3x points you must spend at least $0.98 (the qualifying spend amount)# on fuel purchases via the Caltex Australia App at participating Caltex sites~. 3x points equals 1 (one) standard Woolworths point and 2 (two) additional Woolworths points. Your bonus points will be automatically loaded onto your Woolworths Rewards card within 14 business days after you complete your qualifying spend. Offer can be redeemed multiple times during the promotional period.11. Term and Termination
11.1 These Terms commence when you agree to them (either by clicking 'I agree' or when you first access and/or use any of the Apps in accordance with clause 1.2) and will continue in full force and effect until terminated in accordance with the remainder of this clause 11.
11.2 You can terminate these Terms for any reason at any time by notifying us of your intention to terminate by emailing us at firstname.lastname@example.org Caltex will disable your account for that specific App within 30 days of your notification.
11.3 Caltex may terminate these Terms at any time by providing 30 days' prior written notice of Caltex's intention to terminate to the email address provided when you registered or as updated by you, or by any other suitable means which ensures that you will be able to take notice of the termination. If Caltex suspends or terminates your account, you are not permitted to create a new account to circumvent the suspension or termination.
a) you breach any provision of these Terms; or
b) you have clearly demonstrated (regardless of whether directly or through your actions or statements or otherwise) that you do not intend to comply with these Terms; or
c) without limiting clause 11.4(b) , you fail to make any payment due under these Terms or for the Services,
Caltex may immediately and without notice to you:
d) terminate these Terms or suspend your access to all or any part of the Apps and/or the Services; and
e) prevent your further access to all or any part of the Apps and/or the Services.
11.5 Upon termination of these Terms you shall cease all use of the Apps (or, where relevant, any particular App) and Services and Caltex reserves the right to delete or deactivate your account and all data provided by you or about you.
11.6 If these Terms are terminated pursuant to clause 11.3 or if you choose not to accept any revised Terms, Caltex may (but isn’t required to) allow you to back up data stored by Caltex through the Apps in order to make it easier for you to access your account details if and when you subsequently decide to agree to the Terms in the future. If Caltex does permit you to back up your data, you understand that Caltex may delete or de-identify such data after a reasonable period has elapsed.
11.7 Without limiting any other provision of these Terms, clauses 2, 8,9, 13, 14, 15, 16, 17, 18, 19, 21.6 and 22, this clause 10 and any other clauses which should by their nature survive termination of these Terms, survive termination or expiration of these Terms for any reason whatsoever.12. Feedback
12.1 Customer support is very important to us. Subject to the disclaimers set out in clause 18, Caltex's customer support team will try to assist you, where possible, with any problems or questions you have with your Order, or any complaints regarding the Services or the Apps. You can contact our customer support team through the 'Feedback' section of the App (where relevant), or otherwise by emailing email@example.com.
12.2 If you would like to express your opinion on the quality of any food or drink items, the Apps or the Services, please provide feedback through the 'Feedback' section of the Apps.13. Intellectual Property Rights
13.1 You acknowledge and agree that Caltex owns or licences from third parties all rights, title and interest (including Intellectual Property Rights) in the Apps and the Services, including in any improvements to the Apps and the Services, and including as they may incorporate any suggestions, ideas, information, comments, process descriptions or other information that you provide to Caltex from time to time (Feedback). Nothing in these Terms is intended to transfer such right, title or interest to you.
13.2 Subject to your compliance with these Terms, Caltex grants you a non-transferable, non-exclusive, non-sublicensable, royalty free licence to install, view, use and access the Apps during the Term in Australia solely for your legitimate personal purposes (which excludes seeking to commercialise the Apps or Services) and as authorised by Caltex or (where applicable) our third party licensors.
13.3 You may from time to time provide us with Feedback, including (without limitation) in accordance with clause 12. You absolutely and unconditionally assign to Caltex all rights, title and interests (including all Intellectual Property Rights) in and to any Feedback immediately upon creation, free of all encumbrances and third party rights and you must at your own cost do all things necessary to give effect to such assignment, including executing any required documents or effecting any required registrations.
13.4 You acknowledge and agree that without limiting clause 15, Caltex has the right to use, create derivative works of, distribute and otherwise commercially exploit anonymous, aggregate usage data derived from any Data.
13.5 You acknowledge and agree that Caltex intends to use and/or aggregate the Data in conjunction with other information collected or obtained by Caltex, and you agree that Caltex is permitted to disclose Data and Derivative Materials to any third party in its sole discretion and make full use of, commercialise and exploit the Data for those purposes.14. Third party content
14.1 The Apps and/or Services may contain links to third party websites, such as Google Maps, services or advertisements for third parties (Third Party Content). Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, Caltex does not endorse and is not responsible for any Third Party Content and has no control over, or rights in, any Third Party Content.
15.1 Subject to clause 14.2, you must not disclose, or use for a purpose other than those required by these Terms, any Confidential Information of Caltex or any Caltex franchisee.
clause 14.1, you may disclose the Confidential Information of Caltex:
a) to Caltex and/or (where applicable) Caltex franchisees;
b) in enforcing these Terms or in a proceeding arising out of or in connection with these Terms;
c) if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;
d) if required under an Law or any administrative guideline, directive, request or policy whether or not having the force of Law;
e) to your legal or professional advisors, where such persons have a need to know such information in connection with these Terms; or
f) with the prior written consent of Caltex.
collects your personal information, including personal information provided
when registering your account, your credit card or other payment information,
your location information, information regarding your interaction with the Apps
and the Services, your settings, and information contained in third party
queries and feedback in connection with your use of the Apps or the Services,
in order to:
a) provide you with, and improve and enhance, the Apps and the Services, including (where relevant, but without limitation) to find your nearest Location(s) and (where applicable) process payments to your nominated Payment Method;
b) register, administer and maintain your account;
c) provide you with personalised recommendations and advertisements for Caltex and third party products and services; and
If you do not provide this personal information, Caltex may not be able to permit you to hold an account or provide you with access to some or all of the relevant App or some or all of the Services.
16.3 You acknowledge that making available carefully selected products and services on or via the Apps for you to view and potentially acquire is an integral part of the Apps and the Services. You consent to Caltex making such products and services available to you in this way and you acknowledge that Caltex may use and disclose your personal information to offer you products and services (including those made available on or via the App) that Caltex believes may interest you.
16.5 We may also disclose your personal information to our related companies, our franchisees, or to other trusted business partners so that they can tell you about their products and services, and to other companies who assist us to market our products and services. If you do not want to receive marketing offers from Caltex or those third parties, please write to the Privacy Compliance Officer, Caltex Australia Petroleum Pty Ltd, Level 24, 2 Market Street, Sydney NSW 2000.
represent and warrant to Caltex that:
a) you will comply with all applicable Laws in your performance of your obligations under these Terms, and will not infringe any Law or the rights of any third party; and
b) where relevant, you will not use, or attempt to use, the Apps to avoid paying for food or drink items, at participating Locations.
defend, hold harmless and indemnify Caltex, Caltex's franchisees and their
personnel (Indemnified Parties) from and against any and all Loss
suffered or incurred by them arising out of or in connection with:
a) any data (including personal information) disclosed by you in connection with these Terms; or
b) a breach by you of these Terms.
18.2 You acknowledge and agree that Caltex has been irrevocably appointed to act as sole and exclusive agent of these Indemnified Parties for the purpose of recovering (whether through court proceedings or otherwise) the Losses of the Indemnified Parties and enforcing the indemnities.
maximum extent permitted by Law, including the Australian Consumer Law:
a) Caltex will not be liable for any Consequential Loss; and
goods or Services supplied are not of a kind ordinarily acquired for personal,
domestic or household use or consumption, Caltex's, and where applicable
Caltex's franchisees' liability, for breach of any guarantee (other than
liability for guarantees as to title, undisclosed securities and undisturbed
possession in relation to goods supplied to you, which we cannot limit) is
limited to doing one or more of the following:
(i) in the case of goods:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of having the goods repaired; and
(ii) in the case of services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again
(c) Caltex, and where applicable Caltex's franchisees', liability as set out in clause 17.3(b) cannot be limited in the manner described if you establish that it would not be fair or reasonable for Caltex to do so.
(d) Except as provided in clause 17.3(b) , nothing in this agreement purports to exclude, restrict or modify rights which you have under the Australian Consumer Law in respect of the consumer guarantees.
19.1 You acknowledge and agree that, to the maximum extent permitted by Law, including the Australian Consumer Law:
a) the Apps and the Services are made available "as is" and Caltex and its franchisees make no warranties or representations about the Apps or the Services, including but not limited to warranties or representations that they will be accurate, current, reliable, timely, available, complete or of a certain quality, or that any data submitted, uploaded, input into, or otherwise displayed on the Apps will not be lost or corrupted, or that the App is free from defects, bugs, viruses, errors or omissions, or other harmful components, or that the App will operate in combination with any other hardware, software, system or data;
b) except to the extent that Caltex or its franchisees are directly and solely responsible for such Loss, Caltex and its franchisees will not be liable for any direct and indirect Loss – irrespective of the manner in which it occurs – which may be suffered due to: (i) your use of the Apps and the Services; (ii) any inaccessibility or unavailability of the Apps or the Services; (iii) the fact that certain information or materials contained on the Apps are incorrect, incomplete or not up-to-date; (iv) any loss or corruption of any data submitted, uploaded, input, or otherwise displayed on the Apps by or about you; or (v) the inability of the Apps to operate in combination with any other hardware, software, system or data;
c) you are solely responsible for the accuracy and currency of any information that you input into the Apps or otherwise make available to Caltex or its franchisees, and that Caltex will not be liable for any Loss caused by inaccurate information;d) while Caltex tries to ensure the Apps are available twenty four (24) hours a day, Caltex is not under any obligation to do so, and Caltex will not be liable to you if an App is unavailable, or if your access is restricted, suspended or terminated at any time or for any period. The Apps may be subject to delay or downtime, and your access to the Apps or Services may be restricted to allow for repairs, maintenance or the introduction of new Services or features. Caltex will not be liable to any person or entity for loss or damage incurred by any downtimes or disruption to the Services under this clause, including due to any software or hardware operated by you or any third party;
e) while Caltex will take reasonable steps to ensure your account is secure, however cannot guarantee that it will always be available, secure, free from viruses or error-free. By using the Apps you acknowledge that you acknowledge and accept this risk;
f) Caltex and its franchisees do not accept any liability in relation to any third party content or materials available through the Apps; and
g) all warranties, representations or endorsements, express or implied, with regard to the Apps and the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement are excluded from these Terms.
19.2 Caltex has no obligation to monitor your access to or use of the Apps or Services but has the right to do so for the purpose of ensuring your compliance with these Terms or to comply with applicable Law or an order or requirement of a court or Governmental Agency.
19.3 Caltex may make changes to the material on the Apps or to the Services, products and prices described on it, at any time without notice. Where this change will materially alter the Apps or Services, Caltex will provide you with notice of such changes, where practicable.
19.4 Some features of the Apps may require your mobile device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. The use of the Apps or Services may require access through your mobile network, which may result in additional charges depending on your payment plan. You acknowledge that the suitability and performance of your device or data access is solely your responsibility.20. Disputes
20.1 Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause 19, except to seek urgent interlocutory relief.
20.2 A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute.
20.3 If the parties are not able to resolve the Dispute in accordance with clause 19.2 within 20 Business Days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ADC Guidelines. Each party must bear its own costs in relation to complying with this clause 19, except for the costs and expenses of the mediation, which will be borne by the parties equally.21. General
21.1 Further assurances: Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of these Terms and the transactions contemplated by it.
21.2 Entire agreement: These Terms contain the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into these Terms and completing the transactions contemplated by it.
21.3 No waiver: No failure to exercise or delay in exercising any right, power or remedy under these Terms operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
21.4 No merger: The rights and obligations of the parties will not merge on the completion of any transaction contemplated by these Terms. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
21.5 Severability: Any provision of these Terms which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction.
21.6 Governing law and jurisdiction: These Terms and, to the extent permitted by law, all related matters including non-contractual matters, are governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.
21.7 Assignment: You must not transfer, assign, charge, sub-contract or otherwise dispose of these Terms, or any of your rights or obligations arising under these Terms, without Caltex's prior written consent. Caltex may transfer, assign, charge, sub-contract or otherwise deal with these Terms, or any of its rights or obligations arising under these Terms, at any time during the Term.22. Definitions
The following definitions apply, unless
the context requires otherwise:
ADC means the Australian Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).
ADC Guidelines means ADC Guidelines for Commercial Mediation (or if the ADC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time the terms of which are incorporated into these Terms.
Apps means the Caltex Applications, including but not limited to the Foodary App, FuelPay App, StarCard App and Caltex Australia App.
App Store has the meaning given to that term in clause 8.1.
Australian Consumer Law means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a weekday on which banks are open in Sydney, New South Wales.
Conduct has the meaning given to that term in clause 20.2.
Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by you or Caltex, or learnt or accessed by, or to which you or Caltex are exposed as a result of entering into these Terms and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed) , customers, employees, internal policy, the Intellectual Property Rights of you or Caltex or dealings under these Terms.
Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.
Consequential Loss means:
(a) loss of profits, loss of revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; and
(b) any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made these Terms, as the probable result of the relevant breach.
Data means data (excluding personal information) that you input into the App or provide to Caltex, Caltex's franchisees or the personnel of either by any other means or that is otherwise obtained by or on behalf of Caltex, Caltex's franchisees or the personnel of either via the App or by any other means.
Derivative Materials means materials, data and insights derived or created by or on behalf of Caltex, Caltex's franchisees or the personnel of either in accordance with clause 13.5, which are based on, or created or derived from, the Data.
Discount has the meaning given to it in clause 8.1.
Dispute means a dispute between the parties
arising out of or in connection with these Terms.
Feedback has the meaning given in clause 13.1.
Food Order has the meaning given in clause 5.2
Food Services means the services described in clause 5.1.
Fuel Order has the meaning given in clause 4.2.
Fuel Services means the services described in clauses 4.1 and 4.2.
means any government or any
governmental, semi-governmental or judicial entity or authority. It also
includes any self-regulatory organisation established under statute or any
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software) , trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.
Location means a site or store run by Caltex or Caltex's franchisees.
Location Services means the services described in clause 3.
Loss means any claim, loss liability, cost or expense (including legal expenses on a full indemnity basis).
Offer Terms has the definition given to it in clause 8.2.
Order means a Food Order and/or a Fuel Order, as applicable.
means the payment methods
offered by Caltex through the App at checkout, including payment by credit card,
as may be updated or amended from time to time.
Services means any or all of the Food Services, Fuel Services and/or Location Services, as applicable.
Term means the period described in clause 11.1.
Third Party Content has the meaning given to that term in clause 14.
The following rules apply unless the
context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural, and the converse also applies;
(c) nothing in these Terms is to be interpreted against a party solely on the ground that the party put forward these Terms or a relevant part of it;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(f) a reference to a clause is a reference to a clause of these Terms;
(g) a reference to an agreement or document (including a reference to these Terms) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by these Terms or that other agreement or document;
(h) a reference to a party to these Terms or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);
(i) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(j) a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;
(k) a reference to conduct includes an omission, statement or undertaking, whether or not in writing;
(l) a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind; and
(m) mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.