TERMS OF SERVICE

1.      TERM OF CONTRACT

(a) The Client agrees that the above Schedule and these Terms of Service will form a binding agreement between Bump It and the Client (Agreement) regarding the Client’s use of the Platform.

(b)   Subject to the parties’ various rights to terminate the Agreement under clause 9, the Agreement begins on the Commencement Date and continues for recurring monthly periods (Term).

2.      PLATFORM, SERVICES AND CUSTOMISATION

2.1 Description and Functions

(a) Bump It is a kitchen display platform allowing the Client to streamline its ordering workflows, and to collect and provide data on the Client’s ordering processes (Platform).

2.2 Customisation

(a) The Client may request Bump It to deliver additional customised software services for the Platform (Customised Services).

(b)   If Bump It can accommodate providing Customised Services for the Platform, Bump It will supply a separate customisation quote to the Client for consideration.

(c) If the Client accepts the a customisation quote, Bump It will provide the applicable Customised Services according to the customisation quote.

(d)   The a customisation quote is incorporated into this Agreement and is binding on the parties.

(e) The a customisation quote can only be charged with the written approval of both parties.

3.      ACCESS TO PLATFORM AND USER ACCOUNTS

3.1 Client User Account

(a)    The Client may access the Platform via the Website and the Mobile Application.

(b)   The Client must set up a master user account to access and use the Platform (Client User Account).

(c) The Client must provide its name, address, contact person, a valid email address and any other information reasonably requested by Bump It when setting up a Client User Account.

(d)   The Client will nominate a username and password (which is encrypted) to access the Client User Account.

3.2     Authorised User Accounts

(a)    The Client is permitted to allow Authorised Users to access and use the Platform on its behalf.

(b)   Each Authorised User must set up a user account in order to access and use the Platform (Authorised User Account).

(c) Each Authorised User must:

(i)        provide its full name and valid email address when setting up an Authorised User Account;

(ii)   nominate a username and password to access the Authorised User Account; and

(iii)      download the Mobile Application onto their nominated mobile device via a download link or redemption codes supplied by Bump It.

(d)   The Client warrants the following:

(i)        Authorised Users with comply in full with these Terms of Service; and

(ii)       the Client is liable for the use of the Platform by Authorised Users.

3.3 Account Security

(a)    The Client is responsible for protecting the security of the Client User Account and the Authorised User Accounts and for the accuracy and adequacy of personal information provided generally via both accounts.

(b)   The Client must implement policies and procedures to prevent unauthorized use of user names and passwords and will promptly notify Bump It on suspicion that any user names or passwords have been lost, stolen, compromised or misused.

4.  USE OF PLATFORM

4.1 General

(a)    Subject to the terms of this Agreement, Bump It grants the Client and its Authorised Users a non-exclusive, non-transferable, limited licence to access and use the Platform.

(b)   Bump It may revoke or suspend the Client’s access to the Client User Account and use of the Platform if the Client breaches this Agreement.

4.2 User Generated Content

(a) Authorised Users will have the opportunity to upload data or other files to the Platform for reporting purposes or other content from time to time (User Content).

(b)   Bump It does not moderate any User Content uploaded to the Platform by the Client.

(c) User Content uploaded by Authorised Users can only be seen by the Client and is not public facing or available for other Authorised Users to view.

4.3 Reporting

(a) Authorised Users may export data (eg. total number of sales or product) for their own reports.

4.4 Queries and Issues

(a) If the Client has a query, issue or complaint relating to the Platform, the Client agrees to contact support@percentageplus.com.au or submit a support ticket via the Platform.

5.      PRICING AND PAYMENT TERMS

5.1 Subscription Fee

(a)    In consideration for using the Platform, the Client agrees to pay a monthly Subscription Fee.

(b)   Details of pricing for can be found on the Website here.

(c)    Bump It reserves the right to increase the Subscription Fee at the commencement of each financial year. Bump It will notify the Client of any changes to pricing in advance.

(d)   The Client may add additional Authorised Users during a Subscription Period.

(e)    The Client must pay the Subscription Fee in full monthly in advance commencing on the Commencement Date.

(f)    Unless otherwise agreed by Bump It:

(i)        where the Client wishes to pay the Subscription Fee in full on the Commencement Date, the Client must pay by credit card; and

(ii)       where the Client wishes to pay the Subscription Fee on a monthly basis, the Client must provide Bump It with valid credit card details and hereby authorises Bump It to charge the Client’s credit card for the Subscription Fee each month.

5.2     Customisation Fee

(a)    The Client also agrees to pay a Customisation Fee where receiving Customised Services.

5.3 Payment

(a)    We use either Stripe, a third party payment processor, to process payments and we do not collect or record any credit card details provided to pay the Subscription Fee. You are responsible for any credit card fees or surcharges that apply to your payment.

(b)   In some circumstances, we use a third party, Kounta Pty Ltd (Lightspeed) to process payments. In these circumstances, we do not collect or record any credit card details provided to pay the Subscription Fee. You are responsible for any credit card fees or surcharges that apply to your payment.

6.      MAINTANENCE, INTERUPTIONS AND SUPPORT

(a)    The Client acknowledges and agrees that from time-to-time during the Term, Bump It may carry out updates to, and maintenance of the Platform.  Bump It aims to carry out such works with minimal disruption to the client’s operations.

(b)   Bump It in its sole discretion has the right to suspend the Client’s access and use of the Platform without notice.

7.  USER RESPONSIBILITIES AND WARRANTIES

(a)    The Client must:

(i)        provide Bump It with all assistance, information, facilities and services reasonably required by Bump It to enable it to perform its obligations under the Agreement effectively;

(ii)   not use the Platform in any way that could damage the reputation of Bump It or the goodwill or other rights associated with the Platform;

(iii)  other than Authorised Users, not permit any third party to use the Platform;

(iv)  not use the Platform for any activity which is obscene, indecent, offensive or defamatory;

(v)   refrain from tampering with, hindering the operation of or making unauthorised modifications to the Platform;

(vi)  refrain from introducing any virus to or from the Platform;

(vii) refrain from damaging or modifying any equipment related to the Platform;

(viii) keep all passwords, account names, tokens or log in identifications required to access the Platform secure and confidential;

(ix)  not reproduce, duplicate, copy, sell, resell or exploit access to the Platform, use of the Service (or any portion thereof), including, but not limited to the HTML, or any visual design elements;

(x)   not use the Platform in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or in violation of the Agreement; and

(xi)  not modify or remove any copyright or proprietary notices on the Platform.

(b)   All access to and use of the Platform via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Platform is strictly prohibited.

(c)    The Client warrants that it will:

(i)        use the Platform for the Client only and will not for any other purpose or for resale;

(ii)   comply with the Privacy Act 1988 (Cth) and applicable other privacy or data management legislation; and

(iii)  comply with all relevant laws that apply to the Client and the use of the Platform for the Client.

8.      INTELLECTUAL PROPERTY

(a)    Nothing in the Agreement constitutes a transfer of any Intellectual Property Rights from Bump It to the Client.

(b)   The Client:

(i)        acknowledges and agrees that Bump It owns all Intellectual Property Rights in the Platform;

(ii)   acknowledge and agrees that Bump It owns all Intellectual Property Rights in any improvements, enhancements, ideas and feature requests made by a Client to Bump It including during the provision by Bump It of any Customisation Services to the Client; and

(iii)  will not directly or indirectly do anything that would or might invalidate or put in dispute Bump It’s Intellectual Property Rights.

(c)    To the extent that the Client may grant such a licence, the Client grants to Bump It for the Term a non-exclusive, worldwide, royalty-free revocable licence to access, use and otherwise deal with the Client Materials for the sole purpose of performing Bump It’s obligations under this Agreement. Such rights include permission for Bump It to generate and publish aggregate, anonymised reports on system usage and Client Materials trends and type.

(d)   Bump It may use the Client name(s) and logo(s) on the Website and otherwise in case studies and other promotional materials.

9.  CANCELLATION, TERMINATION & SUSPENSION

9.1     Client’s Cancellation Rights at Renewal

(a)    As outlined in clause 1(b), the Agreement automatically renews for recurring monthly periods unless the Client cancels the Agreement.

(b)   To avoid the Agreement renewing, the Client must provide written notice to Bump It.

(c) If the Clients does not wish to renew their subscription, the Client may request Bump It to archive the Client User Account and all associated Authorised User Accounts for up to 12 months, during which the Client may nominate to recommence their subscription.  Authorised User Accounts may also be archived during any current Subscription Period.

9.2 Client’s Cancellation Rights for Convenience

(a)    Where the Client cancels under clause 9, the Agreement and the Client’s access to the Platform will end on the last day of the month.

9.3     Termination For Breach or Insolvency

(a)    If the Client breaches 4.1(a) or clause 7, Bump It may cancel the Client’s (and the Client’s Authorised User’s) use of the Platform and terminate this Agreement with immediate effect by providing the Client with written notice. The Agreement will end on the date the notice is sent to the Client.  Subject to clause 10, Bump It is not required to refund the Client for any unused Services where Bump It terminates under this clause.

(b)   The Agreement may be terminated as follows:

(i)        by either party (First Party):

(A)    if the other party materially breaches this Agreement; and

(B)    the other party does not fix the material breach within 30 days after the First Party gives written notice to the other party of the material breach.

(ii)       by either party if the other party undergoes an Insolvency Event, in which the parties’ exercise of termination rights under this clause are stayed until such time as they are otherwise enforceable under the Corporations Act 2001 (Cth).

9.4     Bump It’s Right to Suspend

(a)    Bump It may suspend the Client’s access to the Platform if Bump It believes that the Client is in breach of the Agreement.  

(b)   The Client agrees subject to clause 10, Bump It is not required to provide a refund to the Client in relation to any unused Subscription Services during a such period of suspension.

9.5     Deactivation of Accounts

(a)    Bump It will deactivate the Client’s User Account and all Authorised User Accounts upon termination of this Agreement under clause 9.2 and clause 9.3.

(b)   Bump It reserves the right to delete the Client’s User Account and all Authorised User Accounts (as well as all data held within those accounts) 12 months after the termination of this Agreement under clause 9.2 and clause 9.3.

10. CONSUMER GUARANTEES

Where you acquire our Services as a Consumer, we will provide our Services to you in accordance with any Consumer Guarantees under the ACL. Nothing in this Agreement overrides, excludes, limits or otherwise restricts any rights you may have under the ACL or any other laws in relation to our Services.

11.     DISCLAIMERS

(a)    To the fullest extent permitted by law and subject to clause 10, Bump It hereby expressly excludes all warranties and other terms which might otherwise be implied by statute, common law or the law of equity in relation to the Services and this Agreement. 

(b)   Subject to clause 10, Bump It does not warrant, guarantee or make any representation:

(i)        about the accuracy, reliability, timeliness or otherwise of any information or content contained in or referred to on the Platform;

(ii)       about the merchantability or fitness for any particular purpose of the Platform and the Services;

(iii)      that the Client’s access to the Platform will be uninterrupted or free from technical errors and/or bugs; and

(iv)      that the Platform is free of software viruses.

12.     LIMITATION OF LIABILITY

(a) If the ACL or any other legislation implies a Consumer Guarantee, condition or warranty into the Agreement in respect of goods or services supplied, and Bump It’s liability for breach of that condition or warranty may not be excluded but may be limited, the limitation of liability clauses in the Agreement do not apply to that liability and instead Bump It’s liability for any breach of that condition or warranty is limited to Bump It (at Bump It’s election):

(i)        supplying the Services again; and/or

(ii)       paying the cost of having the Services supplied again.

(b)   To the extent permitted by law and subject to clause 10 and clause 12(a), Bump It is not liable for any Loss or Claim, and the Client waives the right to make a Claim against Bump It or its Representatives (a Restricted Claim) resulting in any way from:

(i)        the Client’s use of the Platform (or any part of it);

(ii)       any Patron being detected by the Platform and Claims from Patrons against any person in relation to the Client’s use of the Platform;

(iii)      any periods of downtime, suspension or revocation of access to the Platform (or any part of it);

(iv)      delays to, interruptions of or cessation of the Platform (or any part of it);  

(v)       errors or omissions in the Platform (or any part of it);

(vi)      any material or information supplied on or removed from the Platform including the Content;

(vii)     the Client’s use of the Platform (or any part of it), including use in breach of the Agreement;

(viii)    another Client’s use of the Platform (or any part of it) including use in breach of the Agreement; and

(ix)      defamatory, offensive or illegal conduct of any Client,

whether caused through negligence of Bump It, its Representatives, or through any other cause.

(c) If clause 12(b) is not enforceable, to the full extent permitted by law, Bump It’s liability in relation to the above matters in clause 12(b), shall be capped at the Fees paid under this Agreement in the period 12 months prior to the Client notifying Bump It in writing of an alleged Restricted Claim.

(d)   Notwithstanding any other provision of the Agreement, subject to clause 10 and to the extent permitted by law, Bump It is not liable to the Client for any Consequential Loss suffered or incurred by the Client in relation to this Agreement including arising out of a breach by Bump It of the Agreement or Bump It’s negligent act or omission or Bump It’s breach of a statutory duty or obligation.

13. INDEMNIFICATION

13.1   Client Indemnity

(a) Subject to clause 13.1, the Client agrees to indemnify, defend and hold harmless Bump It from any and all Loss and Claims, arising from or relating to:

(i)        the Client’s (or the Client’s Authorised User’s) unauthorised or misuse of the Platform (or any part of it); and

(ii)   the Client’s material breach of the Agreement.

(b)   The Client’s liability under this clause shall be reduced proportionately to the extent that Bump It’s act or omission has contributed to the Loss or Claim.

13.2   Bump It Indemnity

(a)    Subject to clause 13.1, Bump It agrees to indemnify, defend and hold harmless Client from any and all Loss and Claims, arising from or relating to Bump It’s breach of the Agreement;

(b)   Bump It’s liability under this clause shall be reduced proportionately to the extent that the Client’s (or one of their Representative’s) act or omission has contributed to the Loss or Claim.

13.3   General

(a) Neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with this Agreement.

(b)   Neither party is liable to the other party for any Loss the other party may suffer in relation to the Services, where the Services are restricted or impacted by a Force Majeure Event.

(c)    Each party must take reasonable steps to mitigate any Loss or Claim in relation to this Agreement.

14. GENERAL

(a)    Capitalised words may be defined in the Schedule, the Definitions section or the body of this Agreement.

(b)   The Schedule and any Customised Schedule (if applicable) are incorporated into this Agreement.

(c)    This Agreement forms the entire agreement between the parties as to its subject matter and changes to this Agreement must be agreed in writing by the parties.

(d)   This Agreement will be governed by the laws of Queensland, Australia. The parties agree that the courts of Queensland, Australia (or where applicable, the Federal Court of Australia) will have exclusive jurisdiction of this Agreement.

(e)    Unless expressly allowed in this Agreement or with consent of the other party, each party must not assign or novate this Agreement to another person.

(f)    Any formal communication required under this Agreement must be in writing (email to suffice, except for any breach notices).

(g)    If the whole or any part of this Agreement is void, unenforceable or illegal, it will be severed, and the remainder of this Agreement will continue in full.

15. DEFINITIONS AND INTERPRETATION

15.1   Definitions

In this Agreement the following definitions apply:

ACL means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised User means Representatives of the Client, which are authorised by the Client to access and use the Platform on behalf of the Client via Authorised User Accounts.

Client means the entity that employs you, or you are authorised to represent.

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

Commencement Date means the date the Client clicks that it accepts and agrees to bound by these Terms of Service.

Confidential Information means any information belonging to or relating to a party to this Agreement howsoever acquired that is marked confidential or is by its nature confidential, including, without limitation, trade secrets, IP, know-how, business and financial data, policies, plans, databases, client lists and reports but does not include information which is or becomes generally available in the public domain (other than through breach of this Agreement or an obligation of confidence).

Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business, but specifically excludes legal and other professional costs of the parties.

Consumer and Consumer Guarantees have the same meaning as under the ACL.

Client Materials means any electronic data, documents or material uploaded or posted to, the Platform by the Client or Authorised Users including User Generated Content.

Customisation Fee means the fee charged by Bump It to provide any Customised Services.

Force Majeure Event means an act of god, war, natural disaster, pandemic, global financial crisis, financial crisis, injury or illness of our employees, contractors or officers, death in the family, government shutdown or similar restrictions, hacking, viruses, internet connectivity issues, power outages, operational changes to our business as well as other causes not reasonably within the control of the party affected.

Insolvency Event means in relation to a party, any one or more of the following events:

(a) That party is subject to any scheme of arrangement or compromise;

(b)   An order is made for it to be wound up for that party;

(c) An administrator, receiver, manager or a liquidator is appointed to that party pursuant to the Corporations Act 2001 (Cth); or

(d)   If that party is insolvent or may be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

Intellectual Property Rights includes, but is not limited to:

(a)    trademarks, patents, copyrights, processes know-how, trade secrets, registered designs, business and domain names, technology, data, advertising and promotional materials and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

(b)   all updates, enhancements, improvements, developments, fixes, replacements and modifications to or of the intellectual property listed in (a) above; and

(c)    all present and future rights conferred by statute, common law or equity in or in relation to the intellectual property listed in (a) or (b) above.

Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.

Initial Subscription Period means the 12 months from the Commencement Date.

Mobile Application means mobile application versions of the Platform available on the mobile devices listed on the Website here.

Module means a module available on the Platform (refer to the Website here for a list of Modules).

Bump It means Percentage Plus Holdings Pty Ltd ACN 113 529 178.

Representative of a party means any person acting for or on behalf of that party, and includes their officers, employees, agents and sub-contractors.

Services means the jointly Subscription Services and the Customisation Services (if appliable).

Website means https://lightspeed.bump-it.com.au ; https://app.bump-it.com.au 

15.2   Interpretation

In this Agreement, unless expressly stated:

(a) a word importing the singular includes the plural and vice versa;

(b)   a word importing a gender includes other genders;

(c) a law is a reference to that law as amended, consolidated or replaced;

(d)   this Agreement includes all schedules and attachments to it;

(e) a party to this Agreement includes its agents, personal representatives, successors and permitted assigns;

(f) a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate;

(g) a time, is a reference to the time in the State or Territory of the jurisdiction that governs this Agreement;

(h)   $, is a reference to Australian dollars unless otherwise expressly stated; and

(i) the words ‘such as’ or ‘including’ are not used as words of limitation.