1. Definitions. The following terms have specific definitions:
a. “We,” “us,” and “our,” means Hubster AU Pty Ltd. 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.
c. “Tech Services” means the services and functionality provided by our proprietary restaurant delivery order management technology platform, known as Hubster.
d. “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.
e. “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.
2. Tech Services a. These Terms govern your use of the Tech Services and are separate from the rights and obligations set out in the certain VRA. You agree that you may only use the Tech Services in connection with your VRA.
b. 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 your company and its employees, and is not assignable or transferable. Your authorization to use the Tech Services is contingent on your continued compliance with these Terms.
c. 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 (if any), our website, or our mobile application, unless otherwise authorized by us in writing, and you may only use that tablet 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 and other costs if you do not return the hardware in its original condition, normal wear and tear excepted.
d. 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: (a) prevent or terminate the offending use, (b) prevent or resolve the emergency situation, or (c) comply with applicable law.
3. Other Rights and Restrictions
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 2 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 firstname.lastname@example.org.
5. Fees. The fees for your use of our Tech Services pursuant to these Terms is set forth in an order form or your VRA.
6. Term and Termination.
a. Your use of the Tech Services is authorized during the term of your VRA. These Terms shall immediately terminate upon the expiration or termination of your VRA, unless we earlier terminate these Terms for your material breach as set forth below. If your VRA is terminated but you would like to continue using our Services for your brick and mortar business, let us know by email and we’ll discuss options.
b. 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 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. The following Sections will survive termination of these Terms: 1, 3, 6-10 . Upon termination of these Terms, you agree to immediately return any of our hardware in your possession or control.
7. Warranties and Disclaimers.
a. 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 accepting 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”)..
8. Indemnity and Limits of Liability.
a. Unless prohibited by applicable law, you agree to indemnify us and our affiliates (including their respective officers, directors, employees and agents) 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: (a) your breach of these Terms or any agreement with a Third Party Vendor; (b) Your Data or the content you provide us including through the Tech Services; (c) unlawful use of the Tech Services; or (d) 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 can not 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.
10. Arbitration. Except for claims or disputes related to protecting a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to this Agreement will be settled by binding confidential arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the Australian Centre for International Commercial Arbitration ("ACICA") in accordance with the ACICA Arbitration Rules then in effect (the "Rules"). A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in the Rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Sydney. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which they deem proper in the circumstances, only to the extent permitted by this Agreement, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees and expenses. Each party agrees that arbitration will be conducted on an individual, not a class-wide, basis and that any arbitration proceeding between you and us and/or our affiliates will not be consolidated with any other arbitration proceeding involving us or any other person or entity.