The terms and conditions contained in this Term of Service constitute a legally binding contract between Idealpos Solutions Pty Ltd ACN 091 801 204 (Idealpos , We, Our, Us and other similar terms) and apply to the contractual arrangement with you (Subscriber, You, Your and other similar terms).Our Contact information is as follows:
Idealpos has developed and owns the Intellectual Property in the Application and the Subscriber has indicated a desire to utilise the Application for the purpose of its business in exchange for the payment of the Subscription Fee.
To protect Idealpos’s Intellectual Property and ensure that the Application is used a manner contemplated by the Parties, We have set out the terms and conditions on which the Application is to be used by the Subscriber.
The Subscriber agrees to use the Application on the terms and conditions set out in this Agreement.
The terms and conditions in this Term of Service amount to an offer by the Subscriber to Us to use Idealpos Online for the purpose of your own business.
(a) You acknowledge and agree that You have had sufficient opportunity to read and understand the terms and conditions by which We are prepared to accept Your Offer and that You are legally able to make this Offer.
(b) You acknowledge that these terms and conditions were brought to Your attention prior to making the Offer to enter into this Agreement.
(c) In making the Offer, You warrant that:
If You are not prepared to be bound by these terms and condition, You must not proceed.
In this agreement, unless the context or subject matter require otherwise:
Account means the user name and access credentials linked to an account authorised by Subscriber that allows End Users to access and use the Application.
Agreement means the terms and conditions contained in this Term of Service including any annexures.
Application means the software described as Idealpos Online which the Subscriber obtains the right to access including the Documentation on the terms and conditions contained in this Agreement.
Business Day means:
Commencement Date means the date that Subscriber first agrees to these terms and conditions and subsequently obtains access to the Application.
Data means any information which Subscriber authorises its End Users to input or upload to the Application from Idealpos 7.
Documentation means any user manual, support, guides and explanatory notes or memoranda provided in either electronic or physical form by Idealpos that may or may not be supplied with the Application as updated from time to time.
End User means a person authorised by the Subscriber to access and use the Application.
Excess Data Charges means charges that the Subscriber agrees to pay where there Subscription has used more than 5gb of Data at the rate prescribed on our Website from time to time.
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
Insolvency Event means circumstances in which a Party takes any corporate action or any steps are taken or legal proceedings are started for:
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Patron means a person who orders food or beverage from a Subscriber whose order and Personal Information may be recorded in Idealpos 7 and subsequently Idealpos Online that is used by the Subscriber for the express and limited purpose of its business.
Party means Idealpos or the Subscriber and together the Parties.
Subscription Fee means the amount of money paid by the Subscriber for the agreed number of End Users that have the right to access and use the Application during the Term.
Term means the period of time which Subscriber obtains the right to access the Application for the number of End Users selected.
Trial means a free trial access to the Application that does not require payment of the Subscription Fee by Subscriber.
Trial Period means the period of thirty (30) days from the Commencement Date.
Update means any modifications, new or revised versions of the source code for the Application that are required for it to operate more efficiently as determined by Idealpos at its sole discretion.
Website means the website located at the http://www.online.idealpos.com.au.
In this Agreement:
The Subscriber must have a current licence for Idealpos 7 in order for the Application to work.
The Subscriber and its End Users must have:
(a) an internet enabled device and access to the internet; and
(b) a browser that is compatible with the Application as advised on our Website from time to time.
This Agreement commences on the Commencement Date and:
(a) continues for the Term unless terminated according to the terms and conditions contained herein; and
(b) after expiry of the Term, continues on a month to month basis on the same terms unless agreed otherwise in accordance with clause 3.8.
(a) Idealpos may provide the Subscriber with Trial access to the Application.
(b) The terms and conditions contained herein apply to the Subscriber’s use of the Application during the Trial Period.
(c) Idealpos has the right to determine the Subscriber’s eligibility for a Trial and to withdraw or modify a Trial at any time without notice to the Subscriber.
(d) At the expiry of the Trial Period, the Subscriber will be required to pay the Subscription Fee in the manner stipulated by Idealpos in order to continue using the Application.
(e) If the Subscriber has not paid the Subscription Fee within three (3) months from the end of the Trial Period any data entered into the Application by the Subscriber will be deleted.
On acceptance of the Subscriber’s offer, Idealpos grants the Subscriber a non-transferrable, limited, right to access and use the Application on the terms and conditions contained in this Agreement.
The Subscriber agrees:
(a) to pay the Subscription Fee in exchange for its End Users use of the Application during the Term; and
(b) to pay the amount of the Subscription Fee shown on our Website at the time You agreed to be bound by the terms contained in this Agreement.
(c) to pay the Subscription Fee for the number of End Users selected for the Term in the manner as reasonably directed by Idealpos .
(a) One (1) month prior to the expiry of the Term, Idealpos will warn the Subscriber that the Term is about to expire;
(b) We will then invoice the Subscriber, or ask the Subscriber for payment via whatever reasonable means we determine appropriate, prior to the anniversary of the Commencement Date; and
(c) if the Subscriber fails to renew its Subscription after the expiry of the Term, then the Subscribers’ right to use the Application expires and access to the Application will be removed.
(a) The Subscriber does not obtain any express or implied Intellectual Property rights, in the Application beyond the right to access it for the Term as described in this Agreement.
(b) The Subscriber retains ownership of Data uploaded from Idealpos 7 to the Application and provides an irrevocable licence to Idealpos to use the Data for the purpose of operating the Application.
The Application is accessed by Subscriber and its End Users accessing it through any of the browsers that we advise on our Website from time to time.
The Data held in the Application is backed up by Idealpos.
(a) Idealpos will provide reasonable levels of support for the Application via online user guide and ticketing system on the Website.
(a) If it is necessary for Us to interrupt the Subscriber’s use of the Application, We will endeavour to provide You with reasonable notice (where possible) of when we anticipate that the Application will be unavailable.
(b) You acknowledge that Your access to the Application may be changed, interrupted or discontinued for many reasons beyond Our control and that during this time we may make upgrades to the Application which may change the interface and manner in which the Application functions.
(c) You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to Your access to the Application.
(a) The default database size for Data associated with a Subscriber’s Account is 5gb.
(b) If the Subscriber uses more than 5gb of data per month, We reserve the right to charge Excess Data Charges as provided on our Website.
(c) While We do not impose limitations on Your access and use of the Application, We reserve the right to place technical limits on Your use of the Application in order to maintain serviceability, availability and performance for all users which We, at Our sole and absolute discretion, consider to be fair and reasonable.
(d) Where We impose a limitation on Your access to the Application pursuant to this clause 5.5, We will endeavour to provide You with reasonable notice (where possible) of any limitations imposed.
The Subscriber and its End Users must keep all usernames and passwords used to access the Application strictly confidential.
(a) The Subscriber agrees that its End Users will keep all End User Account information confidential.
(b) The Subscriber is responsible for:
Each End User is responsible for ensuring that it is the sole person accessing the Application using an Account. It is expressly prohibited to share Account details with third parties.
The Subscriber and its End Users acknowledge that Data stored in the Application is stored on servers inside Australia and in accordance with our Privacy Policy. Our Privacy Policy as amended from time to time and is available on Our Website.
(a) The Subscriber acknowledges that its contact details and the details of its End Users may be provided to third parties in order for the Application to operate effectively.
(a) The Subscriber and its End Users agree they must not:
The Subscriber agrees that by doing any of the above acts, the Subscriber breaches an essential term of this Agreement which may result in termination in accordance with clause 12.
(a) Idealpos warrants that the Application will be free of defects during the Term.
(b) You expressly acknowledge and agree that, to the maximum extent permitted by law subject to Idealpos ’s compliance with the obligations contained in the Competition and Consumer Act 2010 (Cth)(ACL) its officers, employees and agents expressly disclaim all warranties of any kind, whether express or implied, except the warranties that the Application is of acceptable quality, is fit for the particular purpose for which it is supplied and that it complies with its description (Non-Excludable Provisions) .
(c) Idealpos makes no warranty that:
(a) The Subscriber warrants that:
(a) Subject to any claims made because of a breach of a Non-Excludable Provision available under the ACL, Idealpos , its employees, officers and agents are not liable for any loss or damage, including, but not limited to, direct, indirect or consequential losses including any form of consequential loss such as any third party loss, loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss and an increased operating cost, personal injury or death, however suffered or sustained in connection with:
(a) For claims that cannot be excluded or restricted under the ACL, Our liability for such a claim will (at Our option and to the extent permitted by law) be limited to:
(b) Nothing in this Agreement attempts to limit or exclude liability of Idealpos in compliance with section 64 of the ACL.
Any loss or damage which is or may be suffered by the Subscriber in connection with the use of the Application is expressly disclaimed by Idealpos. Idealpos limits its liability for breach of a warranty under this Agreement, or for a breach of a condition or warranty it cannot lawfully exclude to the extent permitted by law, and is fair and reasonable for Idealpos to do so, to:
(a) resupply the Application for a further Term;
(b) the price of the right to access the Application granted to the Subscriber; or
(c) pay the amount of the Subscription Fee to the Subscriber for one (1) year, whichever is the lesser.
(a) The Subscriber indemnifies, and must keep indemnified, Idealpos and its employees, officers and agents, against any actions, liability, claim, loss, damage, proceeding, expense (including legal costs) suffered or incurred by Idealpos, arising from or in connection with, either directly or indirectly the Subscriber’s breach of any of its obligations contained in this Agreement, including, but not limited to, the making of a warranty that is inaccurate or incomplete.
(b) The Subscriber and its End Users indemnify, defends and holds harmless Idealpos in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with:
Idealpos may terminate this Agreement without notice if:
(a) it no longer has the right to provide the Application to the Subscriber for any reason whatsoever;
(b) the Subscriber commits a breach a material term of this Agreement which is not capable of being remedied, after first notifying the Subscriber of such breach; or
(c) it is notified, after having made reasonable inquiries, that the Subscriber :
(d) The Subscriber is using the Application for a purpose other than what is was designed for and is otherwise consuming resources well above what is considered normal or usual in breach of our fair use policy.
The payment of the Subscription Fee is an essential term of this Agreement. Idealpos may terminate this Agreement by providing the Subscriber with seven (7) days notice after the expiry of the Term if the Subscriber does not pay the Subscription Fee entitling it to access and use the Application.
This Agreement will automatically terminate if either Party is the subject of an Insolvency Event.
(a) On termination of this Agreement for whatever reason:
(a) For all correspondence including Notices in relation to this Agreement please contact Idealpos at the address shown at the commencement of this Agreement.
(b) If required, Idealpos will contact the Subscriber via the contact details it has retained in its records. If Idealpos has multiple contact details for the Subscriber, it will use the most recent contact information to provide any Notices required.
(a) Approvals and consents - Except where this Agreement expressly states otherwise, a Party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.
(b) Assignment – Idealpos may assign the rights and obligations contained in this Agreement by providing the Subscriber with notice of such an Assignment. The rights and obligations of the Subscriber cannot be assigned without the express consent of Idealpos.
(c) Counterparts - This Agreement may be executed by the Parties in any number of identical counterparts. Each counterpart is deemed to be validly executed if it is signed by a Party and sent by facsimile or by electronic mail to the other Party. It comes into effect when all identical counterparts have been validly executed. For the purpose of executing this Agreement or any document required by it, the Parties agree that any signature is valid and the document is validly executed if it is produced by an electronic communication as provided by the Electronic Transactions Act 2001(Qld).
(d) Entire agreement - This document contains the entire Agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.
(e) Event of Force Majeure - A Party who is prevented from performing any obligation under this Agreement (except an obligation to pay an amount of money) by the occurrence of an Event of Force Majeure is excused from the performance of any such obligation until they are no longer affect by the Event of Force Majeure. This clause does not apply to any obligation to pay money.
(f) Governing law and jurisdiction – The laws of Queensland and Australia govern this Agreement. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
(g) Severance - If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in full force and effect.
(h) Survival - Any clause which is expressed to survive, or which by its nature is intended to survive termination of this Agreement, survives termination.
(i) Variation - An amendment or variation to this Agreement is not effective unless it is in writing and signed by the Parties.
(j) Waiver - A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. A waiver is not effective unless it is in writing and signed by the Party giving it.
(k) Warranties regarding capacity - Each Party represents to each other that as at the date of this Agreement: