TippleGO Terms of Service

1. INTRODUCTION

1.1 This Terms of Service Agreement (Agreement) is an agreement between you (the Merchant) and:

(a) Click Liquor Pty Ltd (ABN: 88 602 384 190);

(b) Tipple Lease Co Pty Ltd (ABN: 54 611 601 837); and

(c) Tipple Online Pty Ltd (ABN: 50 606 553 681),

we will refer to the above parties as “we”, “us”, “our” or “Tipple” and this means the applicable contracting party. We may refer to you as the “Merchant” or “you”.

1.2 This Agreement may be changed at any time and without notice. If we amend this Agreement you will be notified and may choose to accept any updated agreement and the terms and conditions contained therein. Any continued use of the Site or the sale or purchase of Products or Services after the date of any updates or amendments to this Agreement shall be deemed acceptance of those updates or amendments.

2. ACCOUNT

2.1 To use our Services, you must create an account (Account) with personal information including:

(a) your details or your business details;

(b) your billing details for the processing of Subscription Fees; and

(c) your bank account details for processing of payments under clause 9.

2.2 You are solely responsible for maintaining the confidentiality of your login details and you are liable for all activities (such as purchases) that happen under your account, even if you do not authorise such activities.

3. AGREEMENT

3.1 Tipple has offered to provide you the Services in consideration for the Fees on the terms and conditions contained in this Agreement.

3.2 You have accepted Tipple’s offer by accepting this Agreement in creating an Account and by paying the initial Fees.

4. PROVISION OF SERVICES

4.1 Obligation to provide the Services

(a) Tipple will provide the Services in accordance with the terms of this agreement.

(b) Your use of the Services is not exclusive and we reserve the right to offer the Services to third-parties who may be your competitors.

4.2 Description of the Services

(a) The Services are a fully integrated sales website and platform allowing Merchants to setup and run the Website on an underlying system architecture which allows the Merchants to sell its Goods to Customers and provide a delivery solution through Delivery Partners.

(b) The Merchant’s Website contains its branding, trade marks and all products the Merchant is offering for sale to Customers through the Website.

(c) The Website is hosted by Tipple.

4.3 Accessing the Services

(a) Tipple delivers the Services electronically. You and the Customers must have access to the internet to access the Services.

(b) As part of the setup of the Services, Tipple may deliver ancillary equipment, effect installation and provide certain training and on-boarding support.

4.4 Development of the Merchant Website

(a) Once you have created an Account, Tipple will develop the Website using the Merchant Material which you have provided to Tipple.

(b) The Website will be built on standard system architecture which you are granted a licence to use in accordance with this Agreement.

(c) You acknowledge and agree that:

(i) certain functionality may or may not be available to you depending upon the system architecture;

(ii) Tipple will advise you as to the anticipated length of the Development Period;

(iii) the anticipated length of the Development Period is an indication only as to the first date upon which you will be able to take Orders through the Website and is not binding upon Tipple, you further acknowledge and agree that there may be delays in achieving the Go Live Date depending upon many factors but including any obligation on you to provide information to Tipple to enable the Website to operate to its intended functionality;

(iv) Tipple is under no obligation to make any updates, improvements or enhancements to the Website to achieve any functionality;

(v) you are solely responsible for the provision of the Merchant Material and that Tipple will not be responsible for any:

A. error;

B. omission;

C. inaccuracy; or

D. liability,

arising out of or occurring as a result of Merchant Material being incorrect.

4.5 Hardware

(a) To use the Services, you acknowledge and agree that:

(i) you will require hardware supplied by Tipple including a tablet computer;

(ii) the Location must have an internet connection.

(b) If you damage the Hardware, you will be required to order from Tipple new Hardware.

(c) To access certain features of the Services, the Merchant’s POS may be required to integrate with the Services and Tipple provides no guarantee or warranty that any particular POS will integrate with the Services.

4.6 Services generally

(a) You may experience delays in accessing the Services due to scheduled maintenance, or any other cause beyond Tipple’s reasonable control. Tipple will have no liability to you for any Loss suffered or incurred by you in connection with the unavailability of the Platform during such periods.

(b) You acknowledge and agree that Tipple is not liable for the acts or omissions of any Delivery Partner or that Delivery Partner’s employees, agents or contractors.

(c) You acknowledge and agree that in respect of the Services, Tipple merely acts as an intermediary between you and the Delivery Partner and Tipple may charge a small fee to you for the purposes of covering Tipple’s costs in providing Tipple’s services to you.

5. TERM

5.1 This agreement commences on the Commencement Date and continues in full force and effect for the Development Period and the Subscription Period unless terminated earlier under clause 17.

5.2 The first Subscription Period commences on the Go Live Date.

5.3 Unless you cancel your Subscription during the Subscription Period, the Subscription Period will automatically renew and you acknowledge and expressly authorise Tipple to charge the Subscription Fees for that new Subscription Period.

5.4 If you choose to cancel your Subscription during the Subscription Period, you agree and authorise Tipple to charge you for the remaining months of your subscription

5.5 The term of your Subscription period is 12 months.

5.6 For the avoidance of doubt, notwithstanding that the Merchant pays the Subscription Fee monthly, if the Subscription Period is expressed as a “12 month” or “annual” subscription, the Subscription Period shall be no less than 12 months from the Go Live Date.

6. USE OF THE PLATFORM

6.1 Usage Rights

(a) Subject to clause 6.2 and payment of all Fees, Tipple grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable and personal licence for the applicable Subscription Term to access and use the Services and in accordance with the rights and restrictions set out in this agreement.

(b) You acknowledge that you have no right, title or interest in the Services except as set out in clause 6.1(a).

6.2 Restrictions on use

Except as otherwise permitted under this agreement, you must not directly or indirectly:

(a) copy, reproduce, lease, sub-licence, rent, licence, sell or otherwise make available or transfer all or any part of the Platform to any other person;

(b) make available to any third party any analysis of the results of operation of the Services, including benchmarking results, without the prior written consent of Tipple;

(c) use the Services for the sale of any illicit, illegal or immoral Goods or services;

(d) grant any security interest over the Services;

(e) attempt to disassemble, decompile or otherwise reverse engineer the Services, except as permitted by the Copyright Act 1968 (Cth);

(f) alter, customise, modify or create derivative works of the Services;

(g) remove, obliterate or alter any proprietary notice on the Services;

(h) infringe any third party’s rights, including as to confidentiality, privacy, Intellectual Property Rights, other proprietary rights or rights of publicity;

(i) use the Services to access any data other than the Merchant Material;

(j) violate or attempt to violate the security of the Services;

(k) disrupt or interfere with the Services, or any services, system resources, accounts, servers or networks connected to or accessible through the Services;

(l) disrupt or interfere with any other user’s enjoyment of the Services;

(m) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services;

(n) use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any transaction or process being conducted on or through it;

(o) use any robot, spider, other automatic device or manual process to monitor, copy or extract any web pages on the Services, or any of the content contained within, without Tipple’s prior written permission; and

(p) use the Services to breach any laws, including any Privacy Laws, which are applicable to you.

7. YOUR RESPONSIBILITIES

Other than as set out in this agreement, you:

(a) are solely responsible for providing all hardware, telecommunications equipment, internet connectivity, software (including browsers) and appropriate internet bandwidth that may be required for proper use of the Services;

(b) must provide Tipple Personnel with access to your premises with any hardware and technology connectivity reasonably required by Tipple;

(c) on an ongoing basis throughout the Term, co-operate with Tipple and its representatives in relation to Tipple’s provision of the Services to you including by providing such information, documentation and Merchant Materials as are reasonably requested from you in order for Tipple to provide the Services;

(d) must keep your passwords to the Services confidential, and must not transfer or disclose such passwords to any person, except as permitted by this agreement; and

(e) must notify Tipple immediately if you become aware that the confidentiality of your passwords has or may have been compromised in any way (including by disclosure to any third party).

8. MERCHANT MATERIALS

8.1 Merchant Obligations

(a) You:

(i) are solely responsible for inputting the Merchant Material, the accuracy of the Merchant Material, and the content of the Merchant Material input processed through the Services;

(ii) must ensure that the Merchant Material is provided in a format compatible with the Services;

(iii) must obtain the consent of all relevant third parties in relation to the collection, use and storage of the Merchant Material and any information in relation to, or owned by, the third party which the Customer enters on the Website, and to the transfer to, and storage of, the Merchant Material by Tipple outside Australia. You must provide Tipple with evidence of all consents upon the reasonable notice of Tipple; and

(iv) must ensure that the Merchant Material does not contain any harmful or deleterious software viruses or other programming routines or codes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

(b) You acknowledge and agree that to the extent the Merchant Material contains Product Pricing:

(i) you are solely responsible for the accuracy and currency of any Product Pricing;

(ii) Tipple does not provide any oversight of Product Pricing and the amount charged to a Customer is the Product Pricing which you have entered into the Service; and

(iii) Tipple may provide you with the ability to change or modify Product Pricing either from a POS or directly within the Service and you are solely responsible for ensuring that the amount charged to a Customer for Goods is accurate against the Product Pricing.

8.2 Merchant acknowledgment

You acknowledge that Tipple may, subject to its obligations under clause 12 and in its discretion:

(a) access Merchant Material for the provision of the Services;

(b) access Merchant Material as required by law;

(c) access the Merchant Material for purposes relating to the maintenance of the Website or the Services;

(d) use, communicate, display, store and translate the Merchant Material as required to provide the Services to you and the Customers; and

(e) use any information recorded in the Services (excluding any Personal Information) for evaluation purposes and to improve the Services.

8.3 Management and security

(a) Tipple will maintain reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Merchant Material processed by the Services.

(b) Tipple will use reasonable endeavours to maintain physical and information security management programs by:

(i) implementing procedures to protect the security and confidentiality of Merchant Materials and all Personal Information;

(ii) authenticating users;

(iii) encrypting all Merchant Material processed through the Services with secure sockets layer security or other similar technology;

(iv) protecting against any actual threats or hazards to the security of Merchant Material processed through the Services; and

(v) taking any other measures expressly agreed.

9. PAYMENTS FROM CUSTOMERS

9.1 Payment Generally

(a) When a Customer places an order through the Service, the Customer will be charged:

(i) the applicable Product Price for each of the Goods ordered;

(ii) the Service Fee;

(iii) any Third-Party Fees; and

(iv) the Delivery Partner Fee.

(the Payment).

(b) The Payment will be processed using the Customer’s preferred payment method which may include Third-Party Fees.

(c) You authorise and appoint Tipple as your limited collection agent for the purposes of collecting the Payment from each Customer and to remit to you the Net Sale Proceeds.

(d) We aggregate all Net Sale Proceeds received between Monday to Sunday (inclusive) and will remit the Net Sale Proceeds (less any refunds under clause 9.2) each Monday unless Monday is not a Business Day, whereupon we will remit the Net Sale Proceeds on the next Business Day.

9.2 Refunds

(a) The Merchant acknowledges and agrees that the Customer may request a refund of any amounts charged to the Customer in respect of any Order.

(b) To the extent a Customer requests a refund, Tipple must take reasonable steps to determine the cause of the complaint and acting reasonably form a view as to the party responsible for the Customer’s request for a refund.

(c) If Tipple, acting reasonably, determines the Merchant is responsible for the Customer’s complaint and refund request, Tipple will notify the Merchant and refund the Customer the whole or any part of the Payment (depending upon the Customer’s complaint) (Refund).

(d) The value of the Refund will be deducted from the next payment of the Net Sale Proceeds under clause 9.1.

(e) Upon notice to the Merchant under clause 9.2©, the Merchant acknowledges and agrees that whilst the refund has been provided to the Customer, the Merchant may raise a dispute within 48 hours of the notice and the parties will confer with respect to the dispute as to the Refund.

(f) If the Customer’s request for a full or partial refund of an Order is due to the conduct of Tipple, its employees or subcontractors (including Delivery Partners), Tipple shall make payment of the Refund to the Customer. The Merchant shall have no liability to Tipple for any such Refund, and the Refund will not be deducted from the Net Sale Proceeds.

(g) If a Refund is deducted from the Net Sale Proceeds and the parties later agree that the Merchant is not liable for the Refund, Tipple will apply a credit to the next payment of the Net Sale Proceeds in respect of that Refund amount.

10. FEES

10.1 Notification of Fees

Tipple will charge you the following Fees:

(a) the Subscription Fee;

(b) the Setup Fee; and

(c) the Merchant Fee,

(collectively the Fees).

10.2 Payment of Fees and currency

(a) In consideration for Tipple providing the Services, you must pay Tipple the Fees in accordance with the timing and other requirements specified in your Account.

(b) On the Commencement Date, the Merchant shall pay:

(i) the Setup Fee; and

(ii) the Subscription Fee for the first Subscription Period

(c) You hereby authorise Tipple to deduct from any Payment received from a Customer the Fees relevant to that Payment or set-off any amounts then owing to us by you against that Payment from time-to-time.

(d) To the extent you order any Hardware, you must pay any costs associated with that order at the time of ordering.

(e) Unless otherwise specified, all Fees must be paid in Australian dollars.

10.3 Payment Generally

(a) You must pay each invoice issued to you in accordance with the timing specified on the relevant invoice either by direct electronic funds transfer, direct debit or credit card, as communicated to you from time-to-time, or on the invoice as appropriate.

(b) To the extent any payment of Fees is completed by credit card, Tipple does not access or store the credit card information and merely uses a payment gateway or merchant facility for the processing of the payment. In such instances, you are bound by the terms of service of the payment gateway.

(c) To the extent any additional fees are charged for payments, for example credit card fees, the total amount payable by you may be increased proportionately to the surcharge.

(d) All paid Fees are non-refundable.

10.4 Late payment

(a) If payment is not made within 7 days of invoice, you will be liable to pay Tipple interest on the outstanding balance from the due date of invoice until the date of payment at the rate of 1.5% per calendar month or part thereof.

(b) Tipple will notify you if the supplied credit card or bank account details fails for any reason.

(c) If you fail to remedy the payment failure within 48 hours of this notice Tipple may suspend use of the Services or Subscription.

10.5 Goods and Services Tax (If applicable)

(a) Words defined in the GST Law have the same meaning in this clause 10.5, unless the context makes it clear that a different meaning is intended.

(b) Where the Fees (or other consideration payable in relation to the taxable supply) are not expressed to be GST inclusive, the recipient of a taxable supply must, subject to the issue of a valid Tax Invoice by the supplier to the recipient or creation of a valid Recipient Created Tax Invoice by the recipient (as the case may be), pay to the supplier in addition to the Fees or other consideration payable an additional amount on account of any GST payable.

(c) In circumstances where there is an adjustment event under the GST Law, the party which issued the Tax Invoice or the Recipient Created Tax Invoice (as the case may be) must promptly create an adjustment note for any overpayment or underpayment and, where applicable, the supplier must apply to the Commissioner of Taxation for a refund of any overpayment by the supplier for GST. The supplier must refund to the recipient any such overpayment except that the supplier need not refund to the recipient any amount for GST paid to the Commissioner of Taxation unless the supplier has received a refund or credit for that amount. The recipient must pay the supplier an amount equal to any underpayment of GST.

(d) If:

(i) a payment to satisfy a claim under or in connection with this agreement (for example, under an indemnity) gives rise to a liability to pay GST then the payer must pay, and indemnify the payee on demand against, the amount of that GST; and

(ii) a party has such a claim for a cost or expense on which that party must pay GST,

then the claim is for the cost plus all GST (except any GST for which that party can obtain an input tax credit).

11. INTELLECTUAL PROPERTY RIGHTS

11.1 You acknowledge that Tipple and its licensors owns all Intellectual Property Rights in and to the Tipple Material, the Website and the Services.

11.2 Subject to your payment of all outstanding Fees, Tipple grants to you a non-exclusive, personal, non-transferable, non-sublicensable, revocable and royalty free licence to use Tipple Material in the Location solely for the Subscription Term to the limited extent necessary for you to enjoy the benefit of the Services.

11.3 Tipple acknowledges that, as between the parties, Tipple has no Intellectual Property Rights in and to the Merchant Material other than as set out in clauses 11.4 to 11.6 (inclusive).

11.4 You hereby grant Tipple a sub-licensable, revocable, royalty-free, worldwide, non-transferable, non-exclusive licence for the Subscription Period to use, communicate, display, copy, reproduce and store the Merchant Materials and the Customer Data for the purposes of providing the Services.

11.5 For the avoidance of doubt, the licence under clause 11.4 includes the rights to display any of your trade marks (whether registered or unregistered) in order for the Services to operate.

11.6 You hereby grant Tipple an irrevocable, royalty-free, worldwide, perpetual, transferable, non-exclusive licence to use, communicate, display, copy, reproduce, store, distribute including, publish, export, adapt, edit and translate the Merchant Material as non-identifiable data in aggregated and blinded formats where the Merchant Material provides no identifying, referencing or implication of an association with you, for benchmarking, research, analysis, analysis by third parties, surveys, reports and studies and to measure any metrics associated with you and the user’s use of the Services either independently or against other customers.

11.7 The parties acknowledge and agree that the purpose of the licence under clause 11.6 is for the purposes of user experience improvements, providing the Merchant with feedback on customer journey and to otherwise improve the Services for the Merchant and its Customers.

11.8 You represent and warrant that the use of the Merchant Material by Tipple in accordance with this agreement will not infringe the rights, including Intellectual Property Rights, of any person or give rise to any liability to make royalty or other payments to a third party.

11.9 To the extent the Service obtains Customer Data, the Intellectual Property Rights subsisting in the Customer Data are assigned to you.

12. CONFIDENTIALITY

12.1 Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party.

(b) The obligation of confidence in clause 12.1(a) extends to Confidential Information provided to or obtained by a party before entering into this agreement.

12.2 Exclusions

The obligation of confidence in clause 12.1 does not apply to Confidential Information that is:

(a) required to be disclosed by applicable law or the rules of any stock exchange upon which the recipient’s securities are listed, provided that the recipient:

(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(ii) before disclosing any information, the recipient provides a reasonable amount of notice to the discloser and exhausts all reasonable steps (whether required by the discloser or not) to maintain the Confidential Information in confidence;

(b) in the public domain otherwise than as a result of a breach of this agreement;

(c) independently developed by the recipient; or

(d) already known by the recipient independently of its involvement in this agreement or interaction with the other party and free of any obligation of confidence.

12.3 Permitted disclosures

(a) Each party may disclose Confidential Information of the other party only on a ‘need-to-know’ and confidential basis:

(i) with the prior written consent of the other party;

(ii) to its Personnel; or

(iii) to its Related Bodies Corporate,

for the exercise of rights or the performance of obligations under this agreement.

(b) Each party who discloses Confidential Information of the other party pursuant to clause 12.3(a) must ensure that the information is kept confidential by the recipients.

12.4 Remedies for breach

(a) Each party acknowledges that the value of the other party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 12 is breached.

(b) Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 12, a party may seek and obtain an ex-parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 12.

13. PRIVACY

13.1 You must ensure that in respect of any Personal Information you make available to Tipple in connection with the Services (including through the Merchant Material and any Customer Data), the relevant individual has:

(a) received all notifications on behalf of Tipple; and

(b) provided all relevant consents,

required under applicable Privacy Laws for Tipple to collect, use and disclose the Personal Information for the purpose of providing the Services.

14. DISCLAIMER

14.1 You acknowledge that, to the extent permitted by law;

(a) Tipple does not warrant that the use of the Service will result in any specific result;

(b) you have entered into this agreement for the use of the Service upon conducting your own inquiries and investigations and Tipple has made no representations about the suitability of the Service;

(c) Tipple is not responsible for any outcome that is inaccurate, incomplete or non-reliable due to inaccurate, incomplete or non-reliable Merchant Materials;

(d) Tipple is not responsible for effecting the delivery of any order to any Customer;

(e) Tipple provides no warranty as to the accuracy or price which will be charged by Delivery Partners and does not warrant that at any time the cheapest Delivery Partner has been selected;

(f) Tipple is not responsible for the correct description or specification of the Goods on the Service;

(g) the Services may contain some minor defects or errors;

(h) anything in or derived from the Services may contain some minor defects or errors;

(i) access to the Services may not be uninterrupted; and

(j) data (including the Merchant Materials) may be corrupted, degraded, lost or erased in the course of:

(i) Tipple’s performance of the Services; or

(ii) your or a Customer’s use of the Services,

and that it is your responsibility to take appropriate measures to minimise any Loss that might flow from any of those events occurring. Tipple will maintain data backups and restore loss of data where possible and required.

15. INDEMNITY

15.1 You indemnify Tipple against any Loss suffered or incurred by Tipple or any third-party in connection with any:

(a) attendance at your premises;

(b) third party Claim against Tipple, its Personnel or sub-contractors arising directly or indirectly from use of any Merchant Material in accordance with this agreement including any failure by you to obtain consents required under clause 8.1;

(c) use of the Service by you or your Customers;

(d) Your breach or negligent performance of this agreement;

(e) violation by you of any applicable laws;

(f) enforcement of this agreement, including any debt collection or legal costs incurred by Tipple on an indemnity basis;

(g) breach of your obligations in clauses 11 and 12.

16. LIABILITY

16.1 Limiting liability

(a) Subject to clause 16.2 and to the extent permitted by law, Tipple’s liability for any Loss arising in any way in connection with the Services or this agreement (whether under law of contract or tort (including negligence), statute, in equity, under a consumer guarantee or otherwise) is limited to Tipple doing any of the following (at Tipple’s election):

(i) supplying the Services again; or

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

and the maximum aggregate liability of Tipple to you must not exceed the total Subscription Fees paid by you in the three (3) months preceding the date of the event giving rise to the liability.

16.2 Exclusion of Consequential Loss

(a) Neither Tipple nor its Personnel are liable to you for any:

(i) Consequential Loss or special, exemplary or punitive Loss or damage suffered or incurred by you in connection with this agreement; or

(ii) loss of profit, loss of revenue, loss of opportunity, loss, degradation or damage of Merchant Materials, third party Claims, loss of goodwill, loss of business, loss of anticipated savings, loss of reputation or similar losses, liabilities or expenses, however caused.

16.3 Exceptions to limitation and exclusion

(a) The limitations and exclusions in clauses 16.1 and 16.2 do not apply in relation to Loss arising out of any:

(i) breach by either party of clause 12;

(ii) repudiation or wrongful abandonment of this agreement by Tipple; or

(iii) fraudulent or criminal conduct of Tipple.

(b) To the extent any Loss is caused, or contributed to, by you or any of the users, Tipple’s liability will be reduced to the extent of that contribution.

16.4 Non-excludable obligations

(a) To the extent that you acquire goods or services from us as a ‘consumer’ (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.

(b) Nothing in this clause 16 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other statute, the exclusion, restriction or modification of which would:

(i) contravene that statute; or

(ii) cause any term of these terms to be void.

17. TERMINATION OF AGREEMENT

17.1 Termination by Tipple

(a) Tipple may terminate this Agreement or Subscription:

(i) by written notice to you if you are more than 48 hours late in paying any amount payable to Tipple under this Agreement or the relevant Subscription other than amounts which are subject to a bona fides dispute between the parties;

(ii) if Tipple believes that your use of the Services is likely to violate a law which is applicable to you or likely to result in harm to the function or security of the Services; or

(iii) at any time during a Subscription Period for convenience by providing 60 days’ written notice to you.

17.2 Termination by the Merchant

You may terminate this agreement by notifying Tipple through your Account or via email of the termination and this termination will be effective on and from the conclusion of the current Subscription Period.

17.3 Termination by either party

(a) Without limiting clauses 17.1 and 17.2, either party may terminate this agreement and all or any Subscriptions upon giving written notice to the other party (Defaulting Party), in the event that:

(i) the Defaulting Party is subject to an Insolvency Event;

(ii) the Defaulting Party commits a breach of this agreement and does not rectify that breach within 30 days (or another period agreed by the parties in writing) of receiving written notice of the breach from the first party; or

(iii) the Defaulting Party commits a material breach of this agreement which breach is not capable of remedy.

17.4 Consequences of termination or expiry of this agreement

(a) Subject to clause 17.3, the termination of this agreement does not affect the continuation of any existing Subscriptions, unless a Subscription is also terminated.

(b) Termination or expiry of this agreement does not prejudice any right of action or remedy of either party which accrued prior to termination or expiry.

17.5 Consequences of termination or expiry of a Subscription

(a) When a particular Subscription is terminated or expires:

(i) Tipple will immediately cease providing the relevant Services to you;

(ii) Tipple will immediately deactivate your access to the Services; and

(iii) each party must pay to the other party any outstanding amounts due under the agreement, but Tipple is under no obligation to refund to you any portion or percentage of the Fees which might be unused at the date of termination.

(b) The termination of a particular Subscription does not affect this agreement itself or any other Subscriptions issued under this agreement.

(c) Termination or expiry of a Subscription does not prejudice any right of action or remedy of either party, which accrued prior to termination or expiry.

17.6 Return of Confidential Information

On termination or expiry of this agreement or a Subscription, each party must promptly return any Confidential Information of the other party in its possession, custody or control.

18. SUBCONTRACTING AND ASSIGNMENT

18.1 Assignment

(a) Tipple may at any time on providing written notice to you assign all or any part of its rights, or novate any of its rights and obligations under this agreement, to any person.

(b) Rights and/or obligations arising out of or under this agreement may not be subcontracted, assigned or novated by you without the prior written consent of Tipple.

18.2 Subcontracting

Tipple may sub-contract the performance of any or all of its obligations under this agreement in its discretion. Tipple will remain responsible for the acts or omissions of its sub-contractor in performance of any sub-contract as if they were the acts or omissions of Tipple itself.

19. DISPUTES

19.1 Except for urgent interlocutory relief, if a party (Complaining Party) has a dispute with the other party in relation to this agreement or any Services, the parties must attempt to settle that dispute before resorting to external dispute resolution mechanisms, and for this purpose:

(a) the Complaining Party must provide the other party with a written notice of dispute together with all information, documentation and other materials and assistance reasonably necessary in order to understand the basis of and reasons for the dispute and any claims the Complaining Party may have against the other party; and

(b) the appropriate senior management from both parties with authority to resolve the dispute must meet and make a bona fide attempt to settle any issues arising out of a notice of dispute issued under clause 19.1(a).

19.2 If a dispute is not settled by the parties within 10 Business Days of one party sending to the other written notice of the dispute, the parties may pursue other dispute resolution avenues.

20. FORCE MAJEURE

20.1 Tipple will not be in breach of this agreement or liable to you for any loss incurred as a direct result of Tipple failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from a Force Majeure Event.

20.2 If a Force Majeure Event occurs, Tipple must notify the other party in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

20.3 On providing the notice in clause 20.2, Tipple will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, Tipple must continue to use all reasonable endeavours to perform those obligations.

20.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed and its effects (to the extent that they continue to delay, hinder or prevent performance) have ceased.

21. NOTICES

21.1 Notice requirements

Except where otherwise prescribed by this agreement, any notice or any other communication including any approval, consent, request or demand in connection with this agreement, must be:

(a) in legible writing and in English;

(b) served on Tipple by delivering a copy of that notice to Tipple at Level 1, 146 Chapel Street, St Kilda 3182;

(c) served on you by being:

(i) sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address specified in your Account; or

(ii) sent by email to the email address specified in your Account.

21.2 When notice takes effect

A notice takes effect from the time it is received unless a later time is specified in that notice.

21.3 Deemed receipt

A notice is taken to be received:

(a) in the case of a posted letter, on the third (or seventh, if posted to or from a place outside Australia) Business Day after posting; and

(b) in the case of an email, at the time in which it is received by the addressee’s server unless that time is before 9:00am or after 5:00pm on a Business Day whereupon receipt is at 9:00 am on the next Business Day, or 9:00am on the same Business Day where the email is received before 9:00am on that day.

22. GENERAL

22.1 Relationship between parties

Nothing in this agreement or the relationship between the parties:

(a) may be deemed to constitute a partnership, joint venture or other legal relationship between the parties other than that of supplier and purchaser or service provider and recipient; or

(b) authorises either party to incur any liability for or on behalf of the other party.

22.2 Amendment of agreement

(a) Tipple may at any time during a Subscription Period notify you of a change to this agreement in writing and require you to agree to that change.

(b) You acknowledge and agree that if you continue to use the Services after notification of the amendment of this agreement, you will be taken to have agreed to such amendment.

22.3 Severance

(a) If a provision of this agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder of this agreement for the purposes of enforcement in that jurisdiction.

(b) The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

(c) This clause 22.4 has no effect if the severance:

(i) alters the basic nature of this agreement; or

(ii) is contrary to public policy.

22.4 Waivers

(a) A provision of, or a right created under, this agreement may not be waived except in writing executed by the party granting the waiver.

(b) A failure by a party to insist on strict performance of any of the terms of this agreement is not to be deemed a waiver of any subsequent breach or default of the terms of this agreement.

22.5 Rights cumulative

Except as expressly provided to the contrary in this agreement, the rights, powers, discretions, authorities and remedies provided in this agreement are cumulative with, and do not exclude, the rights, powers, discretions, authorities or remedies of a party provided by law independently of this agreement.

22.6 Exercise of rights

Except as expressly provided to the contrary in this agreement, a party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.

22.7 Governing law and submission to jurisdiction

This agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia, and courts of appeal from them, for determining any dispute concerning this agreement or the transactions contemplated by it.

22.8 Entire agreement

This agreement supersedes all previous agreements in respect of its subject matter and contains all the express terms of the agreement between the parties.

22.9 Counterparts

This agreement may be executed in any number of counterparts.

22.10 Survival

The following clauses in this agreement impose continuing rights and obligations on the relevant parties and survive termination or expiry of this agreement or the relevant Subscription: 10, 11, 12, 13, 15, 16, 19, 21, 22.8, and 22.11.

23. DEFINITIONS AND INTERPRETATION

23.1 Definitions

The meanings of the terms used in this agreement are set out below:

Business Day means a day on which banks are open for business in the city of operation of the Merchant excluding a Saturday, Sunday or public holiday in that city;

Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim;

Commencement Date means the date upon which the Setup Fee is paid;

Confidential Information means, in relation to a party, information that:

(a) is by its nature confidential;

(b) the party receiving the information knows or ought to know is confidential; or

(c) is designated by a party as confidential, and includes:

(d) information which has any actual or potential commercial value in respect of the business of a party or is comprised in or relating to any Intellectual Property Rights of a party;

(e) information relating to the financial position of a party, including information relating to the assets or liabilities of the party and any other matter that does or may affect the financial position or reputation of the party;

(f) information relating to the internal management and structure, policies and strategies of a party; and

(g) Personal Information or any other information relating to a party’s employees, subcontractors, agents, clients or suppliers;

Consequential Loss means any Loss suffered or incurred by the Merchant as a result of a breach of this agreement by Tipple which does not arise naturally (that is, according to the usual course of things), from the breach;

Corporations Law means the Corporations Act 2001 (Cth);

Customer means any person who places an Order on the Website for Goods;

Customer Data means the data generated through the Services of the use of the Services by Customers including all personal information of Customers and other data relating to a specific Customer’s use of the Services;

Delivery Partner includes Uber, Didi, Doordash and other third-party logistics and delivery services operators;

Delivery Partner Fee means the fee charged to Tipple by the Delivery Partner for the provision of services by the Delivery Partner;

Development Period means the period between the Commencement Date and the Go Live Date during which time Tipple will be developing the Website;

Fees means the fees or charges payable by you for the Services, including (as applicable) the Subscription Fee, the Setup Fee and the Merchant Fee.

Force Majeure Event means events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(h) strikes, lock-outs or other industrial action;

(i) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(j) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;

(k) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(l) interruption or failure of utility services (including the inability to use public or private telecommunications networks);

(m) interruption of networks or third-party services (including Microsoft Azure, 4G, 5G or web services); and

(n) the act, decrees, legislation, regulations or restrictions of any government agency,

however, does not include a lack of funds.

Go Live Date means the first day upon which the Website is available to Customers to place Orders;

Goods means those items you have offered for sale to Customers which a Customer may Order from the Website.

GST means the tax payable on taxable supplies under the GST Law if applicable in the country of operation;

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax, and includes any subordinate legislation in respect of those Acts;

Hardware means the physical computer equipment required to operate the Service from time-to-time at the Location and supplied by Tipple to you;

Insolvency Event means, in the context of a party:

(o) a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Law) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or undertaking of the person;

(p) the party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Law or is presumed to be insolvent under the Corporations Law;

(q) the party ceases or threatens to cease to carry on business; or

(r) an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party otherwise than for the purpose of an amalgamation or reconstruction;

Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights, including:

(s) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;

(t) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;

(u) the right to apply for any industrial and intellectual property rights; and

(v) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future;

Location means the physical location of the Merchant’s Goods which will be delivered to Customers when Customers place an order and where the Delivery Partner will collect those Goods from;

Loss means any loss, damage, claim, action, liability, cost, charge, expense, outgoing or payment;

Material means any material, information or knowledge, regardless of form, including without limitation any data, text, chart, graphics, reports, calculations, statistics, software, source code, object code, designs, templates, formats, tools, methodologies, strategies, processes, procedures or routines;

Merchant Fee means the fees charged by Tipple to the Merchant for each Order made by a Customer as advised by Tipple from time-to-time noting that this may be a fixed fee, a percentage of the Product Pricing or a combination of both;

Merchant Material means any Material provided by you to Tipple, which are necessary for your use of the Services and include:

(a) Product Pricing;

(b) trade marks;

(c) design language;

(d) Customer Data; and

(e) details and lists of Goods to be sold on the Website;

Net Sale Proceeds means the Payment less:

(a) the Merchant Fee;

(b) the Service Fee;

(c) the Delivery Partner Fees; and

(d) any Third-Party Fees.

Order means the process whereby a Customer selects Goods offered for sale by you for delivery through the Services.

Payment has the meaning given to it by clause 9.1;

Personal Information means information or an opinion however stored, whether recorded in a material form or not, whether true or not true, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;

Personnel means, in relation to a party, that party’s employees, agents, consultants and subcontractors;

POS means Point of Sale system;

Privacy Laws means:

(e) the Privacy Act 1988 (Cth); and

(f) any other legislation relating to the collection, use, disclosure, storage or granting of access rights to Personal Information;

Product Price or Product Pricing means the price set by you for the Goods sold through the Website;

Related Bodies Corporate has the meaning given to that term in the Corporations Law;

Service Fee means the fees charged by Tipple in addition to the Product Pricing to the Customer for the provision of the Services and as advised by Tipple from time-to-time noting that this may be a fixed fee, a percentage of the Product Pricing or a combination of both;

Services means the services offered to you under this agreement which includes the provision of the Website built on common underlying architecture and access to the Delivery Partners through an integrated application;

Setup Fee means any initial fees charged by Tipple to you for the setup of the Services and preparation of any works for the Website;

Specifications means the specifications of system architecture for the development of a white-labelled website on an underlying architecture specified by Tipple;

Subscription means your right to use the Platform on the terms set out in this agreement;

Subscription Fee means the fees payable by you for each Subscription Period for access to the Services but does not include the Setup Fee or any Merchant Fees;

Subscription Period means the term of the Subscription commencing on the Go Live Date and terminating in accordance with clause 5;

Tax Invoice has the same meaning as in the GST Law;

Tipple Material means any Material:

(g) the Intellectual Property Rights of which are owned or licensed by Tipple prior to the Commencement Date; or

(h) which are created, developed or acquired by Tipple on or after the Commencement Date,

and which is incorporated in, or necessarily used in providing, the Services to you and the Customer, or otherwise made available to you and the Customer, under this agreement including any of Tipple’s software, methodologies, processes, tools, tool-kits, routines, designs, source code, templates, formats, strategies, content management tools or procedures and any customisations or modifications to the Services;

Third-Party Fees means and fees and charges levied by third-parties including fees such as credit card fees or other forms of merchant fees ordinarily payable;

Website means your website or application where Customers Order Goods from you.

1.2 Interpretation

In this agreement:

(a) headings and bold type are for convenience only and do not affect interpretation;

(b) the singular includes the plural and the plural includes the singular.

(c) words importing the singular include the plural and vice versa;

(d) a reference to anything (including, but not limited to, any right) includes a part of that thing but nothing in this clause 23.2(d) implies that performance of part of an obligation constitutes performance of the obligation;

(e) a reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this agreement;

(f) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them;

(g) anything specified after the word “including” or a similar expression does not limit what else is included;

(h) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;

(i) a reference to a person includes that person’s successors and legal personal representatives; and

(j) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.