Abacus Solutions Terms and Conditions
This Agreement is entered into between Abacus Solutions Pty Ltd (ABN 25 602 063 525) (we, us or our) and you, the Customer (as named in the Quote), together with the Parties and each a Party.
1.1 You accept this Agreement by signing the Quote (including electronically).
1.2 This Agreement will commence on the Commencement Date and will continue until the date the Agreement is terminated in accordance with its terms (Term).
2 Services and Hardware
2.1 In consideration of your payment of the Fees, we will provide the Services and Hardware as set out in the Quote, whether ourselves or through our Personnel.
2.2 If the Quote expresses dates or timing within which the Services or Hardware are to be provided (including any Delivery Date for the Hardware) or if we agree dates or timing with you, we agree to use reasonable commercial efforts to provide the Services or Hardware by such dates or such times. You agree that any agreed timing is an estimate only and we do not guarantee performance by the estimated date or time.
3 Installation Services
3.1 Installation Services will be as set out in the Quote and may include menu and product configuration (in accordance with any maximum number of items), installation of the Software on the Hardware, on-premises technical support on the Go Live Date and urgent Installation Services (for installations that need to take place earlier than 10 Business Days after the Commencement Date).
3.2 Based on the type of Installation Services set out in the Quote, we will provide Installation Services either:
(a) in person, by sending our Personnel to the Premises; or
3.3 Once installation of the Software is complete, as reasonably determined by us, you must sign the Acceptance Form.
3.4 Where we provide support on the Go Live Date as part of the Installation Services, we will send our Personnel to provide onsite support on the Go Live Date. Our Personnel will be available to assist you for the number of hours set out in the Quote.
3.5 Where we provide menu and product configuration as part of the Installation, you agree that it is your responsibility to check the menu and prices and we will have no Liability for any subsequent mistakes which you have not identified.
3.6 If you choose not to purchase Installation Services, we are not required to install the Software for you and you must install the Software prior to us providing any Training or Technical Support Services, as applicable. You may use our free installation guidance provided on our Site.
4.1 Training will be as set out in the Quote and means the training of your Authorised Users to assist them to use the Software and Hardware.
4.2 Based on the type of Training set out in the Quote, we will provide the Training:
(a) in person, by sending our Personnel to the Premises; or
(b) via email or telephone.
4.3 You may purchase further Training from us pursuant to clause 14.
5.1 Subject to the payment of any applicable Fees and your and your Authorised Users’ compliance with this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the Software for the Term as contemplated by this Agreement (Licence).
5.2 The Licence only permits you to use the Software for your internal business purposes.
5.3 You and your Authorised Users may only use the Software at the Premises and on the Designated Equipment.
5.4 You must not permit a third party to use the Software except as allowed in this Agreement.
5.5 You agree that the Licence permits you to access and use the Software in accordance with the number of Device Licences, the Maximum Database Size and the number of Premises, as set out in the Quote, and that this is reflected in the Fee. You may adjust the number of Device Licences, the Maximum Database Size and the number of Premises, in accordance with clause 13.
5.6 You must take all steps necessary to protect the Software from misuse, damage, destruction or unauthorised use.
5.7 You must supervise your Authorised Users to ensure that they comply with the terms of this Agreement.
5.8 You must not (and must ensure your Authorised Users do not) access or use the Software except as permitted by the Licence and this clause and you must not (and must not permit any other person to) use the Software in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to;
(a) copy, modify, enhance or adapt the Software;
(b) use the Software to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(c) use the Software in any way that damages, interferes with or interrupts the supply of the Services;
(d) introduce malicious programs into our hardware and Software or Systems, including viruses, malware worms, trojan horses and e-mail bombs;
(e) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);
(f) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(g) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Software;
(h) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(i) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.
5.9 We agree to use reasonable commercial efforts to supply the Software free from defects and viruses.
6 Updates, fixes and variations to the Software
6.1 We are under no obligation to provide updates or new releases of the Software.
6.2 Notwithstanding clause 6.1, if we provide an update or new release, if we notify you the update is mandatory, you must install the update or new release.
6.3 We will use reasonable commercial efforts to assist you to comply with your obligations in clause 6.2. Our obligations in this clause will be satisfied via instructional materials available on our Site or, if applicable, through the provision by us of Technical Support Services.
6.4 Despite anything to the contrary, to the maximum extent permitted by Law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with your failure to comply with clause 6.2.
6.5 You agree that we may make changes to the Software at any time without your consent, provided those changes do not substantially and adversely affect your use and enjoyment of the Software.
6.6 In relation to changes to the Software that would substantially and adversely affect your use and enjoyment of the Software, we agree to provide you with the details of any such change at least 90 days prior to the change taking place.
6.7 On receiving notice under clause 6.6, you may choose to terminate this Agreement in accordance with clause 28.2(b) (2).
7.1 We will create an Account for you, which will allow you to set up Authorised User accounts with different tiers of administrative rights, and to access and use the Services.
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 this Agreement. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.
7.4 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with this Agreement.
7.5 We are not responsible for the management or administration of your Account or your Authorised Users.
8.1 Hardware will be as set out in the Quote and means the hardware we agree to sell to you either with an upfront payment of the Hardware Fee in full or with a deposit and regular installments of the remainder of the Hardware Fee throughout the Hardware Term. Hardware may include iPads, cash drawers, printers, cabling and thermal paper.
8.2 Title in any Hardware will remain with us until the Hardware Fee is paid to us in full. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest on or over the Hardware.
8.3 Risk in the Hardware will pass to you on delivery of the Hardware to the Premises. Once risk in the Hardware passes, you will be solely responsible for the Hardware.
8.4 Damage to or loss of the Hardware after risk has passed to you does not discharge you of your financial obligations under this Agreement unless the loss or damage is due to an act or omission of ours.
8.5 During the Hardware Term for any Hardware which has not been purchased upfront, despite any provision to the contrary, to the maximum extent permitted by Law, you acknowledge and agree:
(a) to ensure that you have any necessary permissions or consents to install and use the Hardware (including any strata or building management consent);
(b) to the fullest extent possible to not allow anyone to interfere or otherwise tamper with the functioning of the Hardware;
(c) to protect and maintain the Hardware and keep it in good order and condition;
(d) that you are responsible for any loss, cost, theft, damage, vandalism or destruction of or to the Hardware;
(e) that no such loss, cost, theft, damage or destruction of or to the Hardware will impair or frustrate any of your obligations under this Agreement (including, without limitation, payment of the Fees); and
(f) we may take such steps as may be necessary or desirable in order to protect or enforce our rights (including giving us and our agents the right to enter your Premises) and you agree to sign such documents and do such things as we may reasonably require in such regard.
8.6 Unless otherwise advised by us, you are not permitted to otherwise conduct any support, maintenance and/or otherwise tamper with the Hardware or permit any third party not authorised by us to do so. We have no obligation to provide any Services for, and provide no warranties in respect to, the Hardware which has been provided by or modified by a person other than us.
8.7 If this Agreement terminates for any reason prior to the end of the Hardware Term, you may notify us, within 24 hours of termination that you will pay the remainder of the Hardware Fee outstanding as a lump sum within 48 hours of the termination. If you do not notify us or if you do not make payment of the outstanding amount within 48 hours of the termination, we or our representatives will be entitled to enter any premises occupied by you to search for and remove such Hardware and you will be responsible for all costs and expenses incurred by us as a result of these actions, together with transportation and storage costs. Such costs and expenses will be immediately payable by you to us on demand. The Hardware Fee previously paid by you will not be refunded.
9 Delivery of the Hardware
9.1 We will take reasonable steps to deliver the Hardware in the manner and within the delivery lead time agreed with you in writing or as set out in the Quote (Delivery).
9.2 Where possible, Delivery of the Hardware will be made to the delivery location agreed with you in writing or your address in the Quote.
9.3 If we fail to deliver some or all of the Hardware pursuant to what was agreed with you, you will not be entitled to cancel that purchase order or any other purchase order. We will not be obliged to accept any claims for non-delivered Hardware or non-conforming Hardware unless written notice of the claim is given to us within 5 Business Days after receipt of the delivery at the delivery location.
9.4 If you have taken delivery of the Hardware and you give notice that you reject the Hardware on the basis that the Hardware does not comply with this Agreement, you must take steps that are reasonable in the circumstances to preserve the Hardware as far as practicable in the state in which they were received in order to return the Hardware to us.
9.5 We will not be liable for any loss suffered by you arising out of any delay or failure to deliver the Hardware (or any part of them) or failure to deliver in the requested quantities.
9.6 Unless otherwise agreed between the Parties, you agree to pay for all Delivery Costs.
10 Security Interest
10.1 This clause applies to Hardware where you have not paid the Hardware Fee to us in full.
10.2 You agree that we hold a general lien over the Hardware until the Hardware Fee has been paid in full, for the satisfactory performance of your obligations under this Agreement.
10.3 In this clause 10, PPSA means Personal Property Securities Act 2009 (Cth). Unless otherwise defined in this Agreement, capitalised terms in this clause have the meanings given to them in the PPSA.
10.4 You acknowledge and agree:
(a) our interest in the Hardware and all proceeds is a Security Interest and this Agreement is a Security Agreement;
(b) that you consent to us registering our Security Interest on the Personal Property Securities Register (including as a purchase money security interest) and you agree to provide all assistance reasonably required by us to facilitate registration; and
(c) that you waive your right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
10.5 This clause 10 will survive termination or expiry of this Agreement.
11 Hardware Warranty
11.1 The Warranty relates to Hardware only, not to Services.
11.2 The benefits given to you under the Warranty are in addition to, and do not limit or derogate, your rights and remedies at law in relation to the Hardware and the Services, including under the Australian Consumer Law within the Competition and Consumer Act 2010 (Cth).
11.3 Mandatory wording: Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
11.4 Subject to the terms of the Warranty, and without limiting your Statutory Rights, your entitlement under the Warranty will commence from Delivery Date of the Hardware and will continue to operate for a period of 12 months (Warranty Period).
11.5 The Warranty only sets out the Warranty Period within which we will offer you a refund, replacement or repair. Your rights under the ACL may extend beyond the Warranty Period.
11.6 We may, in our discretion, elect to:
(a) repair or replace the Hardware; or
(b) issue a full or partial refund to you with respect to any amount paid,
for the defective part (or all) of the Hardware, which, to the maximum extent permitted by Law, will be your sole and exclusive remedy in relation to the defect. Again, this clause does not seek in any way to limit your statutory rights, including under the ACL.
11.7 If any materials, parts or features required to facilitate any repair or replacement pursuant to clause 11.6 are unavailable or no longer in production, or your model of Hardware is no longer available or in production, we will use our best endeavours to use appropriate equivalent materials, parts, features or models.
11.8 We set out below the circumstances where we will not be liable to you under the Warranty. Again, this clause does not seek in any way to limit your statutory rights, including under the ACL.
11.9 To the maximum extent permitted by Law, the Warranty does not cover, we will have no Liability, and you waive and release us from any Liability (under the Warranty or otherwise), in relation to any defect which is caused (or partly caused) or contributed to, by any:
(a) act or omission, accident, or negligence by you or any third party not engaged by us;
(b) failure on your part to properly maintain the Hardware in accordance with any of our instructions or manufacturer instructions or guidelines;
(c) failure on your part to follow any instructions or guidelines (including any manual) provided by us or the manufacturer in relation to the Hardware;
(d) use of the Hardware otherwise than for any application or use specified by us;
(e) continued use of the Hardware (where such use is not reasonable) after any defect in the Hardware becomes apparent or would have become apparent to a reasonably prudent person;
(f) failure by you to notify us of any defect in the Hardware within a reasonable period of time after you become aware of or ought to have reasonably become aware of the relevant defect;
(g) Force Majeure Event;
(h) delay or failure to implement an update or new release of the Software when such update or new release was notified by us to you; and
(i) installation, repair, replacement, maintenance, modification, alteration or otherwise compromise of the Hardware by you or any person other than us.
11.10 To the maximum extent permitted by Law, the Warranty will be void, we will have no Liability, and you waive and release us from any Liability, whether under the Warranty or otherwise, if any work or services carried out by us (including repair and maintenance work or services) are altered, tampered with, overhauled, or otherwise compromised by you or any person other than us, without our prior written consent.
11.11 We will have no Liability, and you waive and release us from any Liability, for any delays (including any costs arising out of any delays) in providing any work or services (including repairs) under the Warranty, or in assessing any claim made by you under or in relation to the Warranty.
11.12 To claim the benefit of the Warranty, you must:
(a) notify us by email as soon as you become aware of the defect, and in any event, within 7 days of when you become aware of the defect;
(b) allow us sufficient access to the Premises or the location where the Hardware is located to inspect the Hardware;
(c) provide any other information reasonably required by us to assess your claim; and
(d) provide evidence of proof of purchase of the Hardware from us, upon request.
11.13 Subject to your satisfaction of the requirements in this clause, we will notify you of our determination as to whether your claim is valid under the Warranty, and if so, clause 11.6 will apply. To the maximum extent permitted by Law, any determination we make under this clause will be final and binding.
12 Technical Support Services
12.1 Technical Support Services means the technical support services set out in the Quote.
12.2 Based on the level of Technical Support Services agreed to by the Parties as set out in the Quote, Technical Support Services will be provided remotely via a “live chat” internet feature, or for an additional fee, via telephone.
12.3 We provide Technical Support Services from 7am to 11pm (Victorian time) every day.
12.4 To request any Technical Support Services you must investigate and ascertain the cause of the fault and provide to us all necessary information relevant to the fault (including but not limited to what you have done in relation to the fault).
12.5 You acknowledge and agree that any questions or faults caused by software, hardware or other components which are not the subject of the Services or Hardware are not included as part of the Technical Support Services.
12.6 You acknowledge and agree that Technical Support Services do not apply to unavailability of the Software arising from:
(a) any software, hardware, internet or other components outside our network, the Software or the Hardware including any Third Party Inputs;
(b) an external circumstance event;
(c) your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Services or Hardware in a manner inconsistent with the features and functionality of the Software (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
(d) your use of the Software after we advised you to modify your use of the Software, if you did not modify your use as advised;
(e) with respect to preview, pre-release, beta or trial versions of the Software, feature or software (as determined by us);
(f) your unauthorised action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
(g) faulty input, instructions, or arguments (for example, requests to access files that do not exist);
(h) your attempts to perform operations that exceed any prescribed quotas or that resulted from our throttling of suspected abusive behaviour;
(i) any action that was taken by our suppliers or us to comply with a requirement of a regulator, or under any applicable Law;
(j) unavailability required in order to respond to, or deal with the consequences of, an emergency situation (meaning a situation that could jeopardise human life or safety, or result in damage to property, unless immediate action is taken); or
(k) scheduled maintenance.
12.7 You acknowledge we may charge you for resolution services at our then current time and materials rates if we respond to a request from you and determine that the services were excluded under clauses 12.5 or 12.6.
12.8 Where you continuously or frequently submit requests of a volume or effort level that is greater than average (based on the data we gather from requests by our other customers), we may:
(a) give you notice of this; and
(b) if you do not adjust your usage in line with any request to do so, we may adjust our response time accordingly and vary the Fees to reflect your increased use of our limited resources, effective on and from us giving you written notice of the new Fees, or we may terminate this Agreement in accordance with clause 28.2.
13 Change Requests by you or us
13.1 You may request a variation or change to:
(a) the Services or Hardware (including the timing for the provision of the Services);
(b) the number of Device Licences;
(c) the Maximum Database Size;
(d) the number or location of Premises;
(e) the amount of Hardware,
by providing written notice (including by email) to us, with details of the variation or change (Change Request).
13.2 Subject to this Agreement, if a Change Request is received by us within 14 days of month end, we are not obliged to action the Change Request until the following month.
13.3 We will not be obliged to comply with a Change Request unless we:
(a) accept the Change Request, including any variation to the Fee to effect the Change Request (Fee Change), in writing; and
(b) the Fee has been adjusted to reflect the Fee Change.
13.4 If the Change Request results in a Fee Change we will notify you in writing. You may accept the Fee Change in writing (including by email) and after your acceptance we will apply the Fee Change to any subsequent billing periods in the Term, which will be considered the new Fee for the purpose of this Agreement.
13.5 You agree that you may use the updated Services incorporating the Change Request on and from the date on which you pay the amount in the Fee Change.
13.6 If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Change Request has been issued and accepted by us, in accordance with this clause 13.
13.7 After the expiry of the Initial Term, we may increase the fees payable in respect of any Services not yet provided under this Agreement with 30 days’ notice to you (Rate Change). This Rate Change will apply to any subsequent billing periods after notification and the Rate Change will be considered the new Fee for the purpose of this Agreement.
13.8 If you do not accept the Rate Change under clause 13.7, you may terminate this Agreement in accordance with clause 28.1.
14 Additional Services
14.1 You may request Additional Services, including bespoke customisation to the scope or functionality of the Services, by providing written notice (including by email) to us.
14.2 We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services.
14.3 If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional Services, then we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees and the terms of this Agreement will apply to the provision by us of the Additional Services.
15.1 You agree to provide us (and our Personnel) with reasonable access to your Premises (and the facilities at the Premises), and any other premises reasonably necessary for us to perform the Services or deliver the Hardware, free from harm or risk to health or safety:
(a) at the times and on the dates requested by us; and/or
(b) to enable us to comply with our obligations under this Agreement or at Law,
and you agree to pay us any additional costs that we may suffer or incur if you fail to do so, as a debt due and immediately payable to us.
16 Third Party Inputs
16.1 You agree that the provision of the Services and Hardware may be contingent on, or impacted by, Third Party Inputs.
16.2 You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services.
16.3 To the extent that you choose to use such Third Party Inputs, you are responsible for:
(a) the purchase of;
(b) the requirements related to; and
(c) the licensing obligations of,
the applicable Third Party Input, including third party software and services.
16.4 You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services or Hardware, is subject to your compliance with clause 16.3.
17.1 On the Commencement Date, the following Fees are due and payable (if applicable and set out in the Quote), unless otherwise set out in the Quote:
(a) the Hardware Fee either in full or the deposit;
(b) one month of the Software Fee;
(c) the Delivery Costs;
(d) the Installation Services Fee;
(e) the Training Fee;
(f) the Technical Support Services Fee; and
(g) any other amounts set out in the Quote.
17.2 We will not provide any Services or Hardware to you until the applicable portion of the Fees has been received for those Services or Hardware.
17.3 If the Go Live Date is in the last 14 days of the month, we will not charge you the Software Fee for the initial month. The Software Fee paid in advance in accordance with clause 17.1 will be applied towards the first month after the Go Live Date.
17.4 If the Go Live Date is in the first 14 days of the month, the Software Fee paid in advance in accordance with clause 17.1 will be applied to this month.
17.5 Throughout the Term, we will issue an invoice monthly in advance on the first of each month for the Fees payable.
17.6 You must pay the amount in the invoice, using the payment method set out in the invoice, within 7 days of the date of the invoice, or as otherwise agreed between the Parties.
17.7 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) 12 days after the due date for payment, cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 5% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms; and
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.
17.8 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
17.9 Subject to your Statutory Rights, the Fees are non-refundable. To the maximum extent permitted by Law, there will be no refunds or credits for any unused Licence (or part thereof).
18.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
18.2 You must, and must ensure that your Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
18.3 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement and in accordance with any applicable Laws.
19 Data Breach
19.1 To the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if we become aware of a Customer Data incident (Customer Data Incident) we will:
(a) retain system logs and other information that may be relevant to the Customer Data Incident, or to assessing the cause or impact of the Customer Data Incident; and
(b) within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred.
19.2 Where you suspect that a Customer Data Incident has occurred, we will, within 30 days of receiving notice from you that you suspect that a Customer Data Incident has occurred, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred, and the costs of such assessment must be paid by you.
19.3 If, as a result of our assessments as set out in clauses 19.1(b) or 19.2, we believe a Customer Data Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will notify you of the Customer Data Incident by telephone or email and provide notice to the Office of the Australian Information Commissioner of such Customer Data Incident in accordance with the Notifiable Data Breaches Scheme and we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Customer Data Incident. Alternatively, where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.
20 Confidential Information
20.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
20.2 The obligations in clause 20.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
20.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 20. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 20.
20.4 This clause 20 will survive the termination or expiry of this Agreement.
21 Intellectual Property Rights
21.1 You agree that all Intellectual Property Rights:
(a) in the Services, including the Software;
(b) in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with this Agreement, the Software and any machine learning algorithms output from the Services); and
(c) in the Feedback,
will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
21.2 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
21.3 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, as contemplated by this Agreement.
21.4 You must not whether directly or indirectly, 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;
(c) reverse assemble, reverse engineer, reverse compile or enhance the Services;
(d) attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;
(e) breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;
(f) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
(g) resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
(h) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and
(i) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.
21.5 This clause 21 will survive the termination or expiry of this Agreement.
22.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
22.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
23 Customer Data
23.1 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:
(a) supply the Services to you (including to enable you and your Authorised Users to benefit from the Services);
(b) diagnose problems with the Services;
(c) develop other services, provided we de-identify the Customer Data;
(d) enhance and otherwise modify the Services; and
(e) as reasonably required to perform our obligations under this Agreement.
23.2 You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.
23.3 You represent and warrant that:
(1) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in this Agreement;
(2) the Customer Data is accurate and complete;
(3) the Customer Data (and its transfer to and use by us as authorised by you) under this Agreement does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(4) any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.
23.4 We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.
23.5 You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.
24.1 You warrant and agree that:
(a) there are no legal restrictions preventing you from entering into this Agreement;
(b) you are not and have not been the subject of an Insolvency Event;
(c) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to provide the Services and Hardware and as otherwise requested by us, from time to time, and in a timely manner;
(d) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(e) you have not relied on any representations or warranties made by us in relation to the Services or Hardware (including as to whether the Services or Hardware are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
(f) you will inform us if you have reasonable concerns relating to our provision of the Services or Hardware under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(g) you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with this Agreement, at your cost;
(h) the Services and Hardware are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services or the Hardware to third parties without prior written consent;
(i) you will be responsible for the use of any part of the Services and Hardware, and you must ensure that no person uses any part of the Services or Hardware to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services or Hardware; and
(j) you have the authority to act on behalf of any person or entity for whom you are using the Services or Hardware and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services or Hardware.
25 Australian Consumer Law
25.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our goods and services which cannot be excluded, restricted or modified (Statutory Rights).
25.2 If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services or Hardware provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
25.3 Subject to your Statutory Rights, and your rights under the Warranty, we exclude all express and implied warranties, and all material, work and services (including the Services or Hardware) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.
25.4 This clause 25 will survive termination or expiry of this Agreement.
26 Limitations on Liability
26.1 Despite anything to the contrary, to the maximum extent permitted by Law:
(a) we will not be liable for any Consequential Loss;
(b) our liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel or Authorised Users), including any failure to mitigate that Liability; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services or Hardware to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in the immediately preceding 12 months in respect of the supply of the relevant Services or Hardware to which the Liability relates.
26.2 This clause 26 will survive termination or expiry of this Agreement.
27 Exclusions to Liability
27.1 Despite anything to the contrary, to the maximum extent permitted by Law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) the Premises;
(c) your or your Personnel’s acts or omissions;
(d) any inaccuracies or mistakes in any menu, products or pricing in the Software;
(e) any use or application of the Services or Hardware by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
(f) any work, services, goods, materials or items which do not form part of the Services or Hardware (as expressed in this Agreement), or which have not been provided by us;
(g) any Third Party Inputs; or
(h) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).
27.2 You acknowledge and agree that:
(a) you are responsible for all users using the Services and Hardware, including your Personnel and any Authorised Users;
(b) you use the Hardware, and the Services and any associated programs and files at your own risk;
(c) the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:
(1) transmissions over various networks; and
(2) changes to conform and adapt to technical requirements of connecting networks or devices;
(d) we may use third party service providers to integrate with the Services or Hardware or to host the Software. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
(e) the Services and Hardware may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
(f) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;
(g) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and
(h) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.
27.3 This clause 27 will survive termination or expiry of this Agreement.
28.1 You may terminate this Agreement at any time by giving 30 days’ notice in writing to us.
28.2 This Agreement will terminate immediately upon written notice by:
(a) us, if:
(1) you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 5 Business Days of being notified by us;
(2) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
(3) for any other reason outside our control which has the effect of compromising our ability to provide the Services;
(4) you are unable to pay your debts as they fall due; or
(5) you do not adjust your usage of our Technical Support Services in line with a request by us that is issued in accordance with clause 11 of this Agreement; and
(b) you, if we:
(1) are in breach of a material term of this Agreement, and that breach has not been remedied within 5 Business Days of being notified by you;
(2) issue you with a notice that the Services are being varied under clause 6.6 or 13 of this Agreement and you choose to terminate this Agreement in accordance with clause 6.7 or 13.8 of this Agreement; or
(3) are unable to pay our debts as they fall due.
28.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Services;
(b) the Licence in clause 5 will immediately cease;
(c) if applicable, you must comply with your obligations in clause 8.7;
(d) we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of this Agreement;
(e) we will provide any further disengagement services at our then current rates, and such further disengagement support services must be agreed in writing by the Parties;
(f) you agree that any payments made are not refundable;
(g) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(h) pursuant to clauses 28.2(a)(1), (2) or (4), you also agree to pay us additional costs arising from, or in connection with, such termination; and
(i) immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).
28.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
28.5 This clause 28 will survive the termination or expiry of this Agreement.
29.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
29.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
29.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
29.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
30.1 Amendment: This Agreement may only be amended by a written instrument executed by the Parties.
30.2 Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
30.3 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
30.4 Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
30.5 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
30.6 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
30.7 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and your obligations under it.
30.8 Governing law: This Agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
30.9 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
30.10 Publicity: With your consent, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material. We may also use photographs of food or drinks contained in the Customer Data to advertise or publicise the Software or our Services.
30.11 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
30.12 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in this Agreement, the Schedules, and:
Acceptance Form means an acceptance form prepared by us in which you acknowledge acceptance of the Software and confirm your satisfaction with installation;
Account means an account accessible to you and your Authorised Users to use the Services;
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Additional Services means any Services not set out in the Quote, which we subsequently agree to provide to you;
Agreement means these terms and conditions and the Quote;
Authorised User means a user permitted to access and use the Services under your Account;
Business Day means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays;
Commencement Date means the date you accept this Agreement in accordance with clause 1.1;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Authorised Users into the Services or stored by the Services or generated by the Services as a result of your use of the Services;
Delivery has the meaning given in clause 9.1;
Delivery Costs mean the costs associated with the delivery or provision of the Hardware, including any insurance, customs, tariffs, duties or other such charges that may apply to the delivery of the Hardware and will be set out in the Quote;
Delivery Date means the date on which the Hardware is delivered to you, as specified in the Quote;
Designated Equipment means the Hardware, or your personal hardware where we have agreed to grant you a Device Licence to use the Software on such personal hardware;
Device Licence means the number of Licences set out in the Quote, each Licence allows you to install one instance of the Software for each item of Designated Equipment;
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party;
Go Live Date means the date agreed between the Parties on which the Software is made available for use in a real time live environment;
Feedback means any idea, suggestion, recommendation or request by you or any of your Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services;
Fees mean the fees payable in relation to the Services and Hardware as set out in the Quote and includes (as applicable) any Software Fee, the Hardware Fee, the Installation Services Fee, the Training Fee, the Technical Support Services Fee and any Additional Services fees and includes any amendment to the Fee through a Change Request, Fee Change or Rate Change as set out in clause 13;
Force Majeure Event means any one, or combination of law or government regulation which comes into force or any act of God, flood, war, revolution, civil commotion, political disturbance, fire explosion, ionizing radiation, contamination by radioactivity, nuclear, chemical or biological contamination, disease, epidemic, pandemic (including in relation to the coronavirus, severe acute respiratory syndrome coronavirus 2, or any mutation thereof), government sanctioned shutdown, global economic downturn or any other cause whatsoever over which a Party has no control.
Hardware has the meaning given in clause 8.1;
Hardware Fee means the fee for the Hardware as set out in the Quote and may consist of an upfront payment or a deposit and installments payable throughout the Hardware Term;
Hardware Term means the period of time for which you will make payment by installments of the Hardware Fee as set out in the Quote;
Initial Term means the period commencing on the Commencement Date and ending on the twelve month anniversary of the Commencement Date;
Installation Services has the meaning given in clause 3.1;
Installation Services Fee means the fee for the Installation Services as set out in the Quote;
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;
Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
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 this Agreement or otherwise;
Licence has the meaning given in clause 5.1;
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;
Premises means each location you wish to use our Services as set out in the Quote as updated from time to time in accordance with clause 13;
Quote means the quote form signed by you, for the provision of the Services and Hardware, if applicable, in accordance with clause 1;
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Site means our website located at abacus.co, and may be available through other addresses and channels;
Services mean work or services that we agree to perform or provide under this Agreement, as further particularised in the Quote, and includes where applicable the Software, the Installation Services, the Training, the Technical Support Services and any Additional Services requested by you and agreed to by us throughout the Term;
Software means the Abacus POS Software, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties;
Software Fee means the fee for the Software based on the number of Device Licences as set out in the Quote;
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;
Term has the meaning given in clause 1.2;
Technical Support Services has the meaning given in clause 12.1;
Technical Support Services Fee means the fee for the Technical Support Services as set out in the Quote;
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services or Hardware may be contingent on, or impacted by;
Training has the meaning given in clause 4.1;
Training Fee means the fee for the Training as set out in the Quote;
Warranty means the Hardware Warranty in clause 11;
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in Victoria; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.