EasyVend Platform Subscription Terms and Conditions
Welcome to EasyVend! EasyVend is owned and operated by Jeal Computer Services Pty Limited ABN 26 060 385 382 of Unit 5, 190 Queen Street, St Marys NSW 2760, Australia (Company). Please feel free to contact us at any time by email to [contact email] or by telephone on [insert phone number].
Please read these EasyVend Platform Subscription Terms and Conditions (these Terms and Conditions) carefully. They apply to any person who has a subscription to EasyVend.
1. About these Terms and Conditions
1.1. These Terms and Conditions apply to agreements entered into bythe Company and the Customer identified in the Commercial Details for the supply of Software and Services by the Company to the Customer that expressly refer to these Terms and Conditions. Each such agreement is referred to in these Terms and Conditions as an Agreement. Each Agreement comprises of:
(b) these Terms and Conditions.
1.2. To the extent of any inconsistency between the documents listed in clause 1.1, the document listed first will prevail.
1.3. The Commercial Details will specify (without limitation):
(a) the Software that End Users may access under the Agreement;
(b) the Fees payable by the Customer to the Company under the Agreement and the associated Payment Terms; and
(c) the Initial Subscription Period.
By accepting the Commercial Details (either digitally or by hand), the Customer will be deemed to have entered into, and accepted, the terms and conditions of, an Agreement.
2. Subscription to the Software
(i) access the Software (other than the MiniVend Mobile App) on a software-as-a-service basis in accordance with the Documentation for the Permitted Purpose for the Initial Subscription Period subject to each such End User accepting and agreeing to be bound by the Company’s Online Platform Terms of Service; and
(ii) if applicable, to download and operate the MiniVend Mobile App in accordance with the Documentation for the Permitted Purpose for the Initial Subscription Period subject to each such End User accepting and agreeing to be bound by the MiniVend App End User Licence Agreement; and
(b) upon expiry of the Initial Subscription Period or any Renewal Period, the Agreement (including the right(s) granted to the Customer under clause 2.1(a)) will automatically extend for subsequent consecutive periods each of equivalent length to the Initial Subscription Period (each, a Renewal Period ), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least 21 days prior to the expiry of the Initial Subscription Period or the then current Renewal Period (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Initial Subscription Period or then current Renewal Period (as applicable).
2.2. The Company undertakes to use reasonable endeavours to host or procure the hosting of the Software (other than the MiniVend Mobile App) but does not guarantee that the Software will be error-free or supplied on an uninterrupted basis.
(a) cannot be shared or used by more than one person; and
3.3. End User Accounts are subject to the restrictions in clause 3.2 and any other restrictions set out in the Commercial Details. The Customer must manage its End Users to ensure that all such restrictions are complied with.
4.1. The Customer is responsible for all and any acts and omissions of its Personnel, as if they were the acts and omissions of the Customer.
4.2. The Customer may not use or permit any End User to access and/or use the Software except as expressly permitted under clause 2.1 and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Company’s Intellectual Property Rights. Without limiting the foregoing provisions, the Customer agrees and acknowledges that except with the Company’s prior written consent, the Customer must not, and must not permit any person or entity to:
(a) use the Software who is not an End User;
(b) license, sublicense, resell, assign, transfer, distribute, or provide others with access to, the Software;
(c) “frame”, “mirror” or serve the Software on any web server or other computer server over the Internet or any other network;
(d) copy, alter, make adaptations of, modify, vary, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, disassemble, decompile, reverse translate, reverse engineer, reverse compile or enhance the Software;
(e) store, transmit or distribute any virus or content or other material using the Software that is unlawful, harmful, threatening, defamatory, infringing, offensive or in breach of any person’s rights;
(f) use the Software in any way which is in breach of any right of any person or any Applicable Law;
(g) use the Software or any part of it (or allow it or any part thereof to be used) (including any component of any graphical user interface or the look and feel of the Software) for the purpose of developing, or contributing to the development of, any software competitive with the Software; or
(h) alter, remove or tamper with any trade marks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification, used on or in relation to the Software.
4.3. The Customer must notify the Company immediately if it becomes aware of, or suspects, any unauthorised use of any End User credentials.
4.4. The Customer acknowledges that the integrity of the Software is protected by technical protection measures to prevent Intellectual Property Rights, including copyright, in the Software from being misappropriated (TPMs). The Customer must not attempt to remove or circumvent any TPM in the Software.
4.5. The Customer must comply with, and ensure that its Personnel who are End Users comply with, any security procedures, policies and standards that the Company notifies the Customer of from time to time with respect to the Software.
5. Maintenance Releases and New Versions of the Software
5.1. The Company may from time to time provide End Users with access to any version of the Software which is marketed by the Company as a new version (each, a New Version).
5.2. During the Term, the Company may release updates of the Software that are designed to correct faults in the Software and other updates which do not constitute a New Version (each a Maintenance Release ). The Company will not charge the Customer any fee to provide End Users with access to any Maintenance Release. The Company will make Maintenance Releases available by updating the Software that the Company makes available to the Customer’s End Users.
6.2. Payments made via credit card will incur an additional charge. The Customer acknowledges that the Company may receive commission from its payment gateway provider for payments made via credit card.
6.3. The Fees are exclusive of all taxes (including GST) and the Customer agrees to pay to the Company all taxes that the Company incurs in connection with the Agreement. The Customer must pay all such taxes at the same time as the Fees in accordance with the Payment Terms.
(a) on or after each anniversary of the Commencement Date by the greater of: [i] 5% per annum; and [ii] the most recently published CPI movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics (ABS) or any replacement thereof published by the ABS; or
(b) as otherwise agreed in writing by the parties.
6.5. If the Customer fails to pay any Fees in accordance with the Payment Terms, then, without limiting any other rights and remedies of the Company , the Company may, without liability to the Customer, suspend one or more End User Accounts and/or the Services until the overdue Fees are paid in full.
7. End User Data
7.1. The Customer acknowledges that the information (in any form, including reports) generated from the Software (Output) is reliant on and formulated from, among other things, information that End Users enter into the Software (End User Data).
(a) the Customer may request a copy of the End User Data at any time during the Term and at any time until expiry of the [insert number of days]-day period following termination or expiry of the Agreement (Data Retention Period). If such a request is made, subject to clause 7.3(b), the Company will provide to the Customer all End User Data held by the Company in any format deemed suitable by the Company. If no such request is made during the Data Retention Period, the Company shall be entitled to delete all End User Data in its possession and/or control without notice to the Customer;
(b) the Company will provide the Customer with a copy of its End User Data within [insert number of days] days of a request made under clause 7.3(a) for a fee calculated by the Company which will not exceed [insert amount].
(a) End User Data and the collection, processing, storage and/or disclosure of it by the Company as part of its provision of the Software, the Services or as otherwise required by Applicable Law will not breach any Applicable Law or right of any person;
(b) If and when any account is created in the Software for a third party vendor, distributor or reseller (Vendor), you have obtained the prior written consent of the Vendor to you accessing, and us disclosing to you, all End User Data that is inputted or uploaded into the Software by the Vendor’s Personnel who are End Users and the Vendor’s customers who are End Users; and
(c) you will ensure at all applicable times that the use, hosting, transmission, modification, processing, collection, holding and disclosure of End User Data by the Company for the purpose of supplying the Services does not breach any Applicable Law or any person’s rights, and that all relevant consents have been obtained by the Customer as lawfully required for the Company and its Personnel to collect, hold, disclose and otherwise process any Personal Information in the course of the Company performing its obligations or exercising its rights under the Agreement or pursuant to Applicable Law.
7.5. As between the Customer and the Company, the Customer is solely responsible for the accuracy, legality and quality of all End User Data, for any claims arising in respect of End User Data and for obtaining any permissions, consents, licences, rights and authorisations necessary for the Company and its suppliers to use, host, modify, hold, transmit, process, store and disclose End User Data in connection with the Agreement.
7.6. If the Company receives a request from any person for access to or correction of Personal Information in any End User Data, the Company will forward a copy of the request to the Customer, unless Applicable Law prohibits the Company from doing so, and the Customer must provide all assistance that the Company requires to comply with its legal obligations in connection with any such request.
7.7. The Customer must indemnify the Company in respect of all and any loss and damage that it incurs in respect of any breach of warranty provided by the Customer under clause 7.4.
8. Security of End User Data
9.1. Nothing in the Agreement constitutes or creates an assignment of any Intellectual Property Rights.
9.4. As between the Company and the Customer, the Company owns all Intellectual Property Rights in the Software (including any Source Code and Object Code, databases and database structures incorporated into the Software), all content made available in or via the Software, the Documentation, Maintenance Releases, the Output (except to the extent that it comprises of End User Data) and New Releases and other adaptations, enhancements, upgrades, updates and modifications of and/or to the Software (collectively, the Company’s Intellectual Property Rights) and the Customer must not represent that it owns the Company’s Intellectual Property Rights (or any part thereof).
9.5. The Customer must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute, the Company’s Intellectual Property Rights and the Customer may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Company’s ownership of the Company’s Intellectual Property Rights.
9.6. The Customer hereby assigns to the Company all and any Intellectual Property Rights in all and any comments in connection with the Software and Services and all and any Intellectual Property Rights in all and any requests for new features, that the Customer and/or its employees, officers and agents may make or suggest regarding the Software and Services (each, an Improvement Suggestion). Each such comment and Improvement Suggestion becomes the Company’s sole and exclusive property. This assignment is effective as soon as the Customer or its employees, officers or agents make the comment or disclose the Improvement Suggestion to the Company including where applicable under section 197 of the Copyright Act 1968 (Cth) and in equity. The Customer must procure from its Personnel an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that any of them may have in any such Improvement Suggestions by the Company and by any third parties who the Company authorises to operate or modify the Software and/or Services.
9.7. The Customer has no rights in respect of any Marks or their associated goodwill. All such rights and goodwill inure for the benefit of, and are (and will remain) vested in, the Company or its licensors.
9.8. Nothing in the Agreement gives the Customer any rights to access, or receive a copy of, any Source Code in the Software.
10. IP Claims
10.1. The Company will indemnify the Customer against all and any loss and/or damage, arising out of or in any way in connection with any valid claim brought by any third party against the Customer that the Customer’s use of the Software in accordance with the Agreement infringes that third party's Intellectual Property Rights (IP Claim), provided that:
(a) the Customer notifies the Company immediately upon the earlier of its receipt of any notice of any IP Claim or upon the Customer suspecting or having reasonable cause to suspect that such an IP Claim may be made;
(b) the Customer does not make any admission or settlement of the IP Claim without the Company’s prior written consent;
(c) the Customer gives the Company sole control of the defence and any negotiations for compromise or settlement; and
(d) the Customer provides such assistance in connection with the IP Claim at the Company’s expense, as it reasonably requires.
10.2. If the Software becomes the subject of any IP Claim referred to in clause 10.1, the Customer must permit the Company if, and as the Company considers appropriate:
(a) to replace all or part of the Software with functionally equivalent software;
(b) to modify the Software as necessary to avoid such claim; and/or
(c) to procure a licence from the relevant complainant to allow End Users to continue using the Software during the Term.
10.3. If in the above circumstances the Company is unable to procure for the Customer the right to continue using the Software or to provide the Customer with functionally equivalent non-infringing software, or to modify the Software, as necessary to avoid the IP Claim, the Company may terminate the Agreement.
(a) the use of any End User Data;
(c) an End User’s breach of the Online Platform Terms of Service or the MiniVend App End User Licence Agreement.
11.1. Neither the Customer or the Company may at any time without the other’s prior written consent, use or disclose any Confidential Information of the other party, other than to exercise its rights or perform its obligations under the Agreement or to comply with Applicable Law.
11.2. Clause 11.1 does not apply to information:
(a) that is independently developed, obtained or known by a party, without any obligation of confidence to the other party;
(b) that the recipient of the information can prove was already known to it at the time of disclosure to it by the other party;
(c) that is in the public domain, except where due to a breach of the Agreement or any breach of any obligation of confidence;
(d) that a party must disclose under the rules of any stock exchange on which it or its holding company is listed; or
(e) a disclosure or use referred to in clause 7.4(b).
11.3. End User Data is Confidential Information of the Customer.
11.4. The Company may use the Customer’s name, logo and a general description of the Software used by the Customer’s End Users and Services delivered to the Customer, in any marketing or promotional material or websites of the Company. The Customer agrees to reasonably cooperate with the Company to serve as a reference account upon request by the Company.
12.1. Each party warrants that:
(a) it has full capacity, authority and all necessary consents to enter into and to perform the Agreement and to grant the rights referred to in the Agreement and that the Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all Applicable Laws in the performance of its obligations under this agreement.
13.1. Any use of the Software, Services and/or any Output does not constitute and is not the Company’s, professional, financial, legal or other advice. The Customer must obtain all professional, financial, legal, or other advice as applicable before relying on any Output and the Customer will not represent (either explicitly or by implication) that any Output is the Company’s advice.
13.2. If the Software is used by the Customer to support its compliance or legal obligations, as between the Company and it, the Customer is solely responsible for its compliance with its legal, regulatory and other obligations and the Customer must not bring any claim against the Company relating to any reliance that it may have placed on the Software to comply with any such obligations.
13.3. A party shall not be liable for any non-performance of its obligations under the Agreement where caused by the other party’s acts or omissions or by the Personnel (or in the case of the Customer, of the End Users) of the other party.
13.4. Except to the extent such loss and damage cannot be excluded from an Agreement under non-excludable applicable law, a party’s (the first party)’s aggregate liability for all claims for loss and/or damage that the other party may incur due to the first party’s breach of this Agreement, that is not otherwise excluded by the terms and conditions of the Agreement, is capped at an amount equivalent to the quantum of the Fees paid or payable under the Agreement.
13.5. To the extent that the Company may not as a matter of Applicable Law exclude any condition, guarantee or warranty, the scope and duration of such condition, guarantee or warranty shall be the minimum permitted under such law and the Company limits its liability for breach of any such condition, guarantee or warranty as follows, at its option:
(a) in the case of goods, to: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (v) the payment of the cost of having the goods repaired; and
(b) in the case of services, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
13.6. This clause 13 does not:
(a) limit a party’s liability with respect to any indemnity specified in the Agreement;
(b) apply with respect to any liability that cannot be excluded by Applicable Law;
(c) apply with respect to any misuse or misappropriation of the Company’s Intellectual Property Rights by the Customer; or
(d) apply with respect to any wilful breach of the Agreement.
13.7. Other than any non-excludable guarantees implied into an Agreement under the Australian Consumer Law (if any), all implied conditions, warranties and guarantees that would be implied in an Agreement are hereby excluded from the Agreement.
14.1. The Company will, at its own cost and expense, obtain and maintain during the Term, the following insurances:
(a) public liability and products liability insurance in the sum of twenty million dollars ($20,000,000); and
(b) cyber liability insurance in the amount of two million dollars ($2,000,000).
15. Suspension and Termination
15.1. A party (the first party) may terminate an Agreement by written notice to the other party (the defaulting party) if the defaulting party commits a breach of the Agreement which is not remediable, or where the breach is capable of remedy the defaulting party fails to remedy the breach within fourteen (14) days of written notice from the first party requiring the breach to be remedied.
15.2. Either party may terminate an Agreement by written notice to the other party if the other party suffers an Insolvency Event, except where such termination would contravene the Corporations Act 2001(Cth).
(b) the Company shall, promptly return or destroy, at the Customer’s option, all copies of the Customer’s Confidential Information in its possession or control.
16.1. If a dispute arises between the parties out of or relating to the Agreement (Dispute), each party to the Dispute must seek to resolve it strictly in accordance with the provisions of this clause 16. Compliance with the provisions of this clause 16 is a condition precedent to seeking relief in any court in respect of the Dispute, except as otherwise provided in this clause.
16.2. A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party (Notification). Upon receipt of a Notification, each party must refer resolution of the Dispute to their chief executives (or nominees).
16.3. The chief executives (or their nominees) must meet in person or by audio visual means within 1 week of the Notification to discuss the Dispute on a confidential without prejudice basis. If the Dispute has not been resolved within 1 calendar month of the Notification, then each party will be entitled to pursue such course of action as it determines.
16.4. This clause 16 will not prevent either party from applying for urgent interlocutory relief from a court of competent jurisdiction at any time.
17. Force Majeure Events
A party will have no liability for any failure to perform its obligations under an Agreement where caused by a Force Majeure Event. If a Force Majeure Event continues for 60 consecutive days that prevents a party from performing any of its material obligations under this Agreement, either party may terminate the Agreement.
18.2. Notice given under subclause 18.1(a) shall be effective upon delivery.
18.3. Notice given under subclause 18.1(b) shall be effective 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.
18.4. Notice under subclause 18.1(c) shall be deemed to have been given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.
18.5. Any party may change its address for notice hereunder by giving 7 days’ prior written notice to the other party.
19.1. A party may not assign its rights or novate its obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld). Notwithstanding the foregoing provisions of this clause, a party (the first party )may assign its rights or novate its obligations under an Agreement without the other party’s consent in connection with any merger or acquisition of the first party.
19.2. If any provision of an Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable.
19.3. The relationship between the Company and the Customer is non-exclusive. Nothing contained in the Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.
19.4. Each Agreement is the entire agreement between the Company and the Customer about its subject matter and supersedes all other proposals, arrangements or agreements between the parties about its subject matter.
19.5. Any terms or conditions set out in any document, correspondence or communication (other than terms and conditions approved by the Company in or annexed to the Commercial Details) that may be issued by the Customer will have no effect and will not affect the Agreement in any circumstances.
19.6. An Agreement may be amended only by a written document signed by the parties and a provision of or a right under an Agreement may not be waived or varied except in writing signed by the party to be bound.
19.7. Clauses which are capable of surviving will survive any expiration or termination of this Agreement.
19.8. Each Agreement is governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts located in the State of New South Wales and the courts of appeal from them in relation to any proceedings concerning the Agreement.
In an Agreement, words in bold in parentheses have the meanings given to them therein. In addition, words defined in the Commercial Details have the meanings given therein and the following words have the following meanings, unless expressly agreed otherwise
Applicable Law means any applicable legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency in any applicable jurisdiction.
Business Day means any day from Monday to Friday in New South Wales, excluding public holidays in New South Wales.
Business Hours means 9:00am – 5:00pm AEST (or AEDT where applicable) on Business Days.
Commencement Date has the meaning given to it in the Commercial Details.
Commercial Details means a document with that name that expressly refers to these Terms and Conditions.
Confidential Information means information which is either marked as confidential or has the quality of confidential information. The Company’s Confidential Information includes the Company’s business affairs, financial affairs, business plans, price lists, strategies, technical operations, Intellectual Property Rights, the Documentation and the Company’s financial position. The Company’s Confidential Information (whether or not reduced to writing or designated or marked as confidential) also includes, with respect to the Software, all and any:
(a) work product resulting from or related to work or projects performed or to be performed by the Company, including the interim and final lines of enquiry, hypotheses, research and conclusions related thereto and the methods, methodologies, technologies, processes, procedures, analysis, techniques and audits used in connection therewith; and
(b) software of any type or form and in any stage of actual or anticipated development, including, programs and program modules, routines and subroutines, stored procedures, algorithms, business logic, relationship maps and diagrams, scripts, databases, database structures, database objects, tables, triggers (being special stored procedures which automatically execute when particular events occur), functions, views, front end and back end components, database schemas, design concepts, design specifications (including design notes, annotations, functional specifications, documentation, flowcharts, coding sheets, and the like), Source Code, Object Code, SQL component code, software libraries, load modules, programming, program patches and system designs.
Documentation means any user manuals, technical specifications and other documentation, content and materials (whether in written or electronic form and including any audio-visual content) provided by the Company in respect of the Software.
End User Account means an End User account in the Software.
Fees means the fees and charges set out in the Commercial Details, as increased under an Agreement.
Force Majeure Event means a circumstance beyond a party’s reasonable control which results in the party’s inability to observe or perform on time an obligation under the Agreement.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Subscription Period has the meaning specified in the Commercial Details.
Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above, occurs under the law of any applicable jurisdiction.
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the Convention Establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.
MiniVend App End User Licence Agreement means an agreement between the Company and an End User issued by the Company setting out the terms and conditions on which the End User may access or use the MiniVend Mobile App.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Object Code means Source Code in compiled or binary form.
Online Platform Terms of Service means an agreement between the Company and an End User issued by the Company setting out the terms and conditions on which the End User may access or use the Software.
Payment Terms means the payment terms set out in the Commercial Details.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personnel of a party means a party’s officers, agents, and employees and subcontractors.
Software means the platform or software to be made available by the Company to the Customer’s End Users, as specified in the Commercial Details, including, where applicable, the Software Add-Ons specified in the Commercial Details.
Source Code means human readable computer code.
Service(s) means provision of access to the Software to End Users and any other services set out in the Commercial Details.
Term means the period from the Commencement Date until the end of the Initial Subscription Period and any applicable Renewal Period(s).
20.2. Unless the context requires otherwise:
(a) A reference to “a party” is a reference to the Company or the Customer as the context dictates and a reference to “the parties” is a reference to the Company and the Customer.
(b) Headings and underlinings are for convenience only and do not affect the construction of this the Agreement.
(c) A provision of the Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(d) Currency refers to Australian dollars.
(e) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in New South Wales unless expressly specified otherwise.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
(j) A reference to the singular incudes the plural and vice versa.