These Tech Services Terms of Use (“Terms”) are entered into between you and Provider and govern your access and use of the Tech Services. These Terms are effective as of the earlier date you click to accept, or commence using the Tech Services, or, if applicable, the date you sign an Order Form.
Definitions
The following terms have specific definitions:
a. “Provider”, “we,” “us,” and “our,” means the entity listed below in Section 10. A reference to our affiliates includes our related bodies corporate (as defined in the Corporations Act 2001 (Cth)).
b. “Customer” or “you” means the company agreeing to these Terms, either by clicking to accept these Terms or by entering into an Order Form for the Tech Services.
c. “Tech Services” means the services and functionality provided by our proprietary restaurant delivery order management technology platform, known as Hubster.
d. “Order Form” means an order form for use of the Tech Services provided by us or our authorized designee. If used, an Order Form shall be deemed incorporated into and part of these Terms.
e. “Fees” means the service fees payable by you for your use of the Tech Services, as set forth in an Order Form or as otherwise indicated to you (by website or other means) when you agreed to use the Tech Services.
f. “Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and other third party vendors or service providers that you may elect to use and that we have made available within the Tech Services.
g. “Your Data” means information and data about you, your business, your end customers and your Third Party Vendors generated during your use of the Tech Services, including information and data obtained from or provided by your Third Party Vendors during your use of the Tech Services.
Tech Services
We will provide the Tech Services, and you may use the Tech Services, in each case subject to these Terms. Your right to use the Tech Services is non-exclusive, personal to you and your employees, and is not assignable or transferable. Your authorization to use the Tech Services is contingent on your continued compliance with these Terms.
b. You will be required to create an account to use the Tech Services, and you are responsible for maintaining the confidentiality of your username and password. You may only access the Tech Services through the tablet device we provide, our website, or our mobile application, unless otherwise authorized by us in writing and you may only use the tablet we provide, if any, within your brick and mortar restaurant space. The Tech Services may also be configured to print order details to a printer device which we may provide. Unless otherwise agreed in writing by us, you agree that hardware we provide to you in connection with the Tech Services, if any, is rented to you, not sold, and you may only use the hardware in connection with the Tech Services. You are solely responsible for damage, loss, repair, replacement, penalties and other costs if you do not return the hardware in its original condition, normal wear and tear excepted.
c. We may from time to time modify or improve the Tech Services or add new features or functionality to the Tech Services. Without limiting any of our rights under these Terms, we may suspend Tech Services if reasonably necessary for an emergency situation or to stop potential harm, loss or damage to us or the Tech Services or other related systems. Any such suspension will be to the minimum extent and for the shortest duration required to: (i) prevent or terminate the offending use, (ii) prevent or resolve the emergency situation, or (iii) comply with applicable law.
Other Rights and Restrictions, and Privacy
As part of providing the Tech Services, we may transfer, process and store Your Data in Australia or any other country in which we or our affiliates and agents maintain facilities. By using the Tech Services, you consent to this transfer, processing and storage of Your Data. Our collection and use of personal information, if any, is subject to our Privacy Policy available here. You agree that we may subcontract obligations under these Terms to our affiliates or other third parties, but we will remain liable to you for any subcontracted obligations.
b. The Tech Services, including its “look and feel”, content, software, technology and applicable documentation, are and will remain the exclusive property of us and our licensors and are protected under the laws of the United States and other countries, and we hereby reserve all rights related to the Tech Services. You agree to not let anyone else use the Tech Services or any hardware we provide, and you may not copy, modify, distribute, sell, or lease any part of the Tech Services or hardware. You agree to not reverse engineer or attempt to extract any of the source code of the Tech Services unless we agree in writing or you are allowed to do so by applicable law. You may only access and use the Tech Services for lawful purposes consistent with the purposes for which we intend it to be used.
c. At your sole option, you may provide feedback or suggestions about the Tech Services to us, and if you do provide such feedback or suggestions, then you agree that we may freely use and exploit such feedback and suggestions for any purpose and without any obligation to you. You agree that we may use your name and logo in connection with supporting and marketing our Tech Services, provided that you may request the removal of your name and logo at any time by sending us an email at hello.au@tryotter.com.
Third Party Vendors
a. In order to provide you with the Tech Services, we need to access your accounts with certain Third Party Vendors. As such, you appoint us as your agent with authorization to access and use your accounts with Third Party Vendors and Your Data for the purpose of providing you with the Tech Services, and you agree to provide your account login information for such purposes. You also authorize us to access and use information that relates to you or your relationship with the Third Party Vendors and you authorize such Third Party Vendors to disclose Your Data to us. You hereby grant us and our affiliates a nonexclusive, perpetual right to use Your Data and the other information you may enter, upload or make available through the Tech Services to improve our and our affiliates’ products and services and perform relevant industry trend analyses during and after the term of these Terms. We may also aggregate or de-identify Your Data in order to share relevant industry trends with third parties. Where personal data is involved, we will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data. The data processing addendum located at www.tryotter.com/privacy/dpa is hereby incorporated by reference and applies to this Agreement.
b. You agree that your use of the Third Party Vendors may be subject to additional terms presented by the Third Party Vendors, including their privacy policy and terms of service. You agree that the services of Third Party Vendors are provided by third parties and as such, we have no responsibility for the Third Party Vendors or the technology or services they provide (including those services which are accessible by our Tech Services). We cannot guarantee that we will support the integration with any Third Party Vendors or with any particular third-party vendors in the future, and we may remove or alter an integration with a Third Party Vendor at any time, with or without notice to you. You agree that we are not liable for any costs, expenses, or losses from your inability to use any particular Third Party Vendor in connection with the Tech Services or otherwise.
Fees and Payment
You agree to pay us the Fees in accordance with these Terms and any Order Form, as applicable. Subject to your termination rights in Section 6, we may modify the Fees at any time with at least 30 days advance notice of any increase. Unless otherwise stated, all Fees are due to us in Australian dollars and are nonrefundable. You agree to pay all taxes due for the Tech Services, except for taxes on our income. If your payment is overdue, we may (a) charge interest on the overdue amount at 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full, and (b) suspend or terminate the Tech Services. You agree that we may use a third party provider to process the Fees.
Term and Termination
If you entered into an Order Form, your use of the Tech Services is authorized for the time period specified in the Order Form. If you did not enter into an Order Form, or if the time period in your Order Form expires, your use of the Tech Services is authorized on and will continue an ongoing month to month basis until terminated in accordance with this Section 6.
b. If your Order Form term is within 30 days of expiration, or you are using the Tech Services on a month to month basis, and in either case you no longer want to use the Tech Services, you can terminate the Terms for any or no reason by providing us with at least 30 days’ notice by sending an email to hello.au@tryotter.com. After the 30 day notice period you will no longer be authorized to use the Tech Services.
c. A party may terminate these Terms upon written notice to the other party in the event that the other party is in breach of these Terms and does not cure such breach within 30 days, or 10 days in the case of non-payment of Fees by you, of notice to the other party thereof. We may terminate these Terms immediately upon written notice to you (i) for your breach of Section 2(a)-(b) or (ii) to comply with a legal requirement or court order, in our reasonable discretion. You may terminate these Terms upon written notice to us in the event that we modify the Terms or Fees and you do not agree to such modifications.
d. Outstanding payment obligations and the following Sections will survive termination of these Terms: Sections 1, 3 and 5-10. Upon termination of these Terms, you agree to immediately return any of our hardware in your possession or control. You agree that we can continue to charge you for the Tech Services or charge a fixed penalty amount until or if we don’t receive your returned hardware.
Warranties and Disclaimers
Each party represents and warrants that it: (i) has full power and authority to enter into these Terms, and (ii) will comply with all laws applicable to the provision or use of the Tech Services, as applicable. You further represent and warrant that (1) if you upload any content (including menu items or pictures) to the Tech Services you have all necessary rights to use such content and doing so will not infringe or misappropriate the intellectual property rights of a third party, (2) the individual signing the Order Form or clicking to accept the Terms has the right to bind Customer, (3) you will not violate any obligations to any third party by entering into and performing under the Terms (e.g. if you have chosen to use one or more Third Party Vendors, you do not maintain an exclusive contractual relationship with such Third Party Vendor), (4) you have the right to use, and allow our use of, Your Data and your authorized Third Party Vendor accounts, including the right to appoint us as your agent to access and use your accounts and Your Data as described in these Terms, and (5) if applicable (e.g. required by the Third Party Vendor), you have provided any notices, obtained any consents and satisfied any other requirements under applicable law and any Third Party Vendor agreement, that are necessary for you and us to access and use Your Data as set forth herein.
b. Your access and use of the Tech Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Tech Services, other actions that we may elect to take, or issues with Third Party Vendors. You agree that we are not liable to you or to any third party for any interruption, modification, suspension, or discontinuance of the Tech Services. We do not make any other commitments or warranties about our Tech Services or how they will perform for you other than as expressly stated in these Terms, unless required under applicable law. We do not provide any implied warranties, such as the implied warranties of non-infringement, merchantability, and fitness for a particular purpose, unless required under applicable law, including under the Australian Consumer Law (“ACL”).
Indemnity and Limits of Liability
Unless prohibited by applicable law, you agree to indemnify us and our affiliates (including the respective officers, directors, employees and agents of us and our affiliates) and hold them harmless against any liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (i) your breach of these Terms or any agreement with a Third Party Vendor, (ii) Your Data or the content you provide us, including through the Tech Services, (iii) unlawful use of the Tech Services, or (iv) your fraud, gross negligence or willful misconduct.
b. To the extent permitted by law, you agree that our total liability arising out of or relating to these Terms and your use of the Tech Services, in the aggregate, is limited to the lesser of (1) AUD$1,000 or (2) the fees that you paid to use the Tech Services in the 12 months before the event giving rise to the liability. You agree that we will not be responsible for your loss of profits, revenues, business opportunities, goodwill, or anticipated savings, indirect or consequential loss, or punitive damages in connection with your use of the Tech Services or these Terms. This limitation will not apply to liability due to our gross negligence, willful misconduct, or that otherwise cannot be limited or excluded by applicable law, including under the ACL and nothing in these Terms shall operate to exclude, modify or restrict the application of the ACL. Our liability for a breach of a condition or warranty implied by the ACL or otherwise, and which cannot be excluded, is limited to the extent possible, at our option, to: (a) in the case of supply of goods, the replacement of the goods or supply of equivalent goods, the payment of the cost of replacing the goods or acquiring equivalent goods, the payment of the cost of having the goods repaired or the repair of the goods; and (b) in the case of services, the supply of the services again, or the payment of the cost of having the services performed again.
Miscellaneous
We will send all required notices in these Terms to the email address associated with your account. All notices to us must be sent to legalnotices@tryotter.com. These Terms, along with the Order Form (if applicable) and our Privacy Policy, contain the entire understanding of the parties regarding your use of the Tech Services, and supersedes all prior and related contemporaneous agreements and understandings. If these Terms conflict with any term in the Order Form, the Order Form will prevail. We have the right to update or change these Terms by providing you with notice and your continued use of the Tech Services will be your acceptance of those changes. You have certain rights under applicable laws that cannot be limited by these Terms or any contract; these Terms will not restrict those rights. If you breach these Terms, and we do not take immediate action in response to your breach, we are not waiving any rights we may have, including the right to take action in the future. If a portion of these Terms is deemed invalid or unenforceable, the remainder of these Terms will remain in effect. These Terms are between only you and us; these Terms do not create any legal rights or obligations for any third party, even if others benefit from that relationship under these Terms.
Contracting Entity, Notices, Governing Law, and Venue
Depending on where you are domiciled, the table below outlines (a) the entity entering into this Agreement on our behalf, (b) the address to which you must direct notices pursuant to this Agreement, (c) the governing law for any dispute or lawsuit arising out of or in connection with this Agreement, and (d) the courts that have jurisdiction over any such dispute or lawsuit. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts below.
If you are domiciled in: Australia
Our entity entering into this Agreement is: Hubster AU Pty Ltd
Governing law is: New South Wales
Courts with exclusive jurisdiction in: New South Wales