Terms & Conditions

3                Your Account

Registration

3.1            To use the Services, you must:

            3.1.1        agree to these Terms;

            3.1.2        be using a Device owned by you or used with the owner’s consent;

            3.1.3        be able to access the internet on the Device;

            3.1.4        download the Application; and

            3.1.5        create an Account.

3.2            To create an Account you must provide complete and correct Account Information, including Personal Information, such as:

            3.2.1        confirmation that you are over the age of 18 years (or the minimum legal age as the case may be);

            3.2.2        your name, e-mail address, and contact mobile phone number;

            3.2.3        details of a credit card, Apple Pay and/or Google Pay that will be linked to your account and charged automatically upon the processing of an order made by you with a Venue or Third Party Provider, with any credit card manually entered stored and held in the account by PCI Level 1 Service Provider; and

            3.2.4        a password for your Account.  

3.3            You must keep your Account Information accurate, complete, and up to date.

3.4            The Company may refuse to create an Account if the Account Information you provide:

            3.4.1        is false, defamatory, harassing or obscene;

            3.4.2        may involve the contravention of any person's rights (including Intellectual Property Rights);

            3.4.3        may offend any Applicable Laws;

            3.4.4        may otherwise be regarded by the Company, on reasonable grounds, to be unacceptable; or

            3.4.5         involves any fraudulent activity.

3.5            If you fail to provide complete and correct Account Information or keep your Account Information up to date, the Company may deny you access to the Services or terminate your Account.

3.6            You may only register for one Account.

Capacity  

3.7            You represent and warrant that you have full power, authority, and legal capacity to agree to these Terms.

Security

3.8            You are responsible for:

            3.8.1        all activity on your Account; and

            3.8.2        maintaining password security of your Account. 

3.9            The Company has in place security protocols for the Application which are industry standard.  This will not prevent you from giving a third party access to your personal information, and the Company accepts no liability arising from your actions in doing so.

3.10         Failure to maintain the security of your Account may result in you incurring charges for orders that are processed using your Account.

3.11         You must not:

            3.11.1     allow other persons to use your Account; or

            3.11.2     allow a person under the Permissible Age to use your Account or utilise the Services.

3.12         You accept that you may be requested to provide proof of identity to use the Services and that if you are unable to provide such proof, the use of the Services may be denied to you.

4                Assignment

4.1            The Company must give Notice to you of its intention to assign or transfer its rights and obligations under these Terms, in whole or in part.

4.2            You must not assign or transfer your rights or obligations under these Terms to any other person or entity without prior written consent from the Company, which consent is not to be unreasonably withheld.

5                Products

5.1            All Products being advertised and sold through the Application are being advertised and provided to you directly by the relevant Venue or Third Party Provider from which you have ordered the Products.

5.2            You acknowledge that the Application is an ordering and payment processing platform which includes promotion materials such as specials, deals, events, rewards and the like. The Company does not provide Products and is not a producer, supplier or reseller of Products.

5.3            Any contract for the supply of Products is strictly between you and the relevant Venue and/or Third Party Provider (as the case may be) from which you have purchased Products.

5.4            All orders for Products that you place with Venues and Third Party Providers are dependent on and subject to availability and the Venue and Third Party Provider ability to fulfil your order.

5.5            To the maximum extent permissible by law, the Company is not in any way responsible or liable for any Products, services or content provided by a Venue or Third Party Provider delivered by way of the Application.

6                Use of the Application

6.1            When making an order through the Application it is your responsibility to provide all information that may be requested by a Venue or Third Party Provider to enable it to fulfill your order and provide you with its Products.

6.2            You acknowledge that it is your responsibility to be present at the Venue premises when collecting an order so that the Venue is able to provide you with the Products the subject of your order.

6.3            If you are not present at the Venue premises at the time an order is ready, the Venue may at its discretion determine that you have forfeited your order and that you are not entitled to a refund of any payment made for the order.

6.4            Fulfilment and delivery times for orders that you have placed will be subject to and controlled by the Venue or Third Party Provider with which you have placed an order. The Company does not monitor whether an order has been properly fulfilled or delivered by a Venue or Third Party Provider and any complaints regarding an order or the Products the subject of an order must be made directly to the relevant Venue or Third Party Provider.

6.5            You must not place orders for alcoholic beverages using the Application if you are under the Permissible Age, if you are intoxicated or if you are otherwise prohibited from ordering or consuming alcoholic beverages by any applicable law. By using the Application, you agree to comply with all responsible service of alcohol guidelines applicable in the Jurisdiction and agree to consume alcoholic beverages in a responsible manner.

6.6            The Company does not accept responsibility for, and you release and hold the Company harmless from, any and all Claims and Liabilities you or the Company may suffer or incur arising out of, from or in connection with using the Application to order or consume alcoholic beverages contrary to your obligations under clause 6.5.

6.7            Venues and/or Third Party Providers have the complete discretion to determine whether or not to provide you with a Product the subject of your order. To the fullest extent permissible at law, the Company does not accept responsibility for, and you release and hold the Company harmless from, all Claims and Liabilities you may suffer or incur arising out of, from or in connection with:

            6.7.1        a Venue and/or Third Party Provider refusing to fulfil your order, whether partially or in full; or

            6.7.2        the sale and or supply of alcoholic beverages by a Venue.

6.8            You agree that you will not use, or attempt to use, the Application in any manner that, without limiting the generality of the foregoing:

            6.8.1        is unlawful under Applicable Laws;

            6.8.2        contrary to these Terms;

            6.8.3        disrupts or interferes with any other user’s enjoyment of the Application or linked websites from the Company, Venue and Third Party Providers;

            6.8.4        uses any robot, spider, other automatic device or manual process to monitor, copy or extract any information or content on the Application, without the Company’s express written consent;

            6.8.5        uses the Application to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including material that are deemed threatening or obscene;

            6.8.6        engages in any kind of illegal, criminal or tortious activity through the use of the Application;

            6.8.7        posts or transmits to or via the Application any defamatory, derogatory or offensive material or publications;

7                Content 

7.1            The Application allows Venues and Third Party Providers to upload content and materials including, but not limited to:

            7.1.1        product information and descriptions;

            7.1.2        pricing information (including surcharges and discounts);

            7.1.3        menu information (including stock, ingredients, dietary requirements (GF/VEG etc) and availability);

            7.1.4        delivery and collection information;

            7.1.5        Venue information (including business opening hours on ordinary trading days and public holidays);

            7.1.6        Third Party Provider information; and

            7.1.7        related advertising and promotional material.

7.2            The Company makes no representations or warranties regarding the nature, accuracy or completeness of any such content and materials.

7.3            If you have any food allergies or dietary requirements, it is your responsibility to disclose these to the Venue and/or Third Party Provider and to confirm with the Venue and/or Third Party Provider directly before placing an order. The Company does not review or verify any allergy or dietary information provided by you and does not guarantee that the Venue and/or Third Party Provider will take such information into account. The Company is not liable for any allergic reaction, illness, injury or other harm resulting from the consumption of Products or occurring at a venue, regardless of whether the Venue and/or Third Party Provider was made aware of your allergy or dietary requirements.

7.4            The Application may contain, display, or make available promotions, advertisements, links, or other materials relating to websites, content, products, or services that are not owned, operated, or controlled by the Company (“Third-Party Materials”). Advertisements or promotional offers on the Application may be provided by Venues, Third Party Providers, or by the Company showcasing approved Venues or Third Party Providers. Such advertising is for your convenience only and the Company does not control, endorse, sponsor, recommend, guarantee, or warrant any Third-Party Materials, including (without limitation) the products or services offered in any advertisement or promotion. If you click on or access any link, content, or materials made available through the Application that directs you to a third-party website, content, product, or service, you acknowledge and agree that:

            7.4.1        you do so entirely at your own risk;

            7.4.2        you will be subject to the applicable terms and conditions, privacy policies, and other rules of that third party; and

            7.4.3        to the maximum extent permitted by law, the Company is not responsible or liable, directly or indirectly, for any loss, damage, cost, or expense of any kind that you may incur or suffer, whether in contract, tort (including negligence), statute, equity, or otherwise, arising from or in connection with your access to, use of, or reliance upon any such Third-Party Materials.

8                Fees 

8.1            You are required to pay for any order made to a Venue or Third Party Provider for the supply of Products at the time the Company processes or facilitates your order.

8.2            Once you have placed an order for Products and it has been processed, your order cannot be cancelled or changed through the Application.

8.3            If you wish to cancel or change your order you must contact the relevant Venue or Third Party Provider directly. The Venue or Third Party Provider may at its discretion allow you to cancel or change your order. However, the Company makes no guarantee that a Venue or Third Party Provider will cancel or change your order.

8.4            The Company will charge you for an order of Products in accordance with the prices for Products as notified to it by the relevant Venue or Third Party Provider. You acknowledge and agree that the Company is not responsible for any discrepancy in the pricing of Products advertised, whether through the Application, at a particular premises, in promotional or marketing material or elsewhere.

8.5            In addition to charging you for the price of Products that you order through the Application, the Company will also charge you a service fee per order made through the Application. The service fee will be disclosed on the final order cart screen on your Device before you place the order.

8.6            The Venue or Third Party Provider may charge you any third party payment processing costs associated with your method of payment.

8.7            The Company may include as additional charges on your order any third party payment processing costs associated with your method of payment.

8.8            The Company does not accept responsibility for any additional charges that a Venue or Third Party Provider may render at the time of collection or redemption of your Products from the Venue or Third Party Provider.

Payments

8.9            All payments made through the Application are processed and disbursed by the Company’s third party payment providers, including Stripe, and which you agree to be bound by and which you agree that any breach of will be deemed to be a breach of these Terms.

8.10         All payments to the Company are to be made by way of credit card, debit card or through Apple Pay/Google Pay.

8.11         All payments must be made in Australian dollars.

8.12         If a payment you have made through the Application is declined, your order with a Venue or Third Party Provider will not be fulfilled

8.13         Payment failure may result in the suspension or termination of your Account.

8.14         In the event that you wish to dispute a charge that has been processed against you for an order that you have placed with a Venue or Third Party Provider, you may contact the Venue or Third Party Provider.

8.15         The Company is to the maximum extent permissible by law not liable in respect of any dispute between you and the Venue or Third Party Provider.

8.16         Part 1F of the Civil Liability Act 2002 (WA) is excluded from the Terms.

Refunds

8.17         You acknowledge that the Company is not responsible for receiving or managing refund requests regarding orders that you have placed with Venues or Third Party Providers through the Application.  However, the Company reserves the right to offer a refund in part or in full to you at its discretion.

8.18         Venues and/or Third Party Providers are responsible for determining their own refund policies and any request for a refund must be made directly to the relevant Venue or Third Party Provider.

8.19         You acknowledge and accept that the Company is not required to, but may, at its discretion, provide a refund for any amounts paid for an order through the Application, including any service fee, service fee or third party payment processing fee that the Company has charged for the processing of your order and your payment where:

            8.19.1     a Venue refuses to fulfil your order due to its liquor licensing requirements;

            8.19.2     a Venue or Third Party Provider deems that you have forfeited your order due to a failure by you to comply with any directions provided by the Venue or Third Party Provider, whether through its content on the Application or in person at the Venue or Third Party Provider; or

            8.19.3     a Venue or Third Party Provider refuses to fulfil your order due to a law or regulation that operates to prohibit the Venue or Third Party Provider from fulfilling your order.

9                Disclaimers and liability 

9.1            You may have certain rights under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) including consumer guarantees that the Services the Company provides to you will be of acceptable quality, fit for the purpose disclosed, and carried out by the Company with due care and skill.  These Terms do not exclude or limit these guarantees or any other statutory rights that you may have under applicable laws.

9.2            You acknowledge and agree that, to the fullest extent permitted by law, the Company does not represent, warrant or accept any Liability in relation to:

            9.2.1        the standard, quality or fitness for purpose of the Products;

            9.2.2        any injury, loss, or damage you sustain while on a Venue’s premises, whether arising from the provision, non-provision, or quality of any Products, Services, or facilities;    

            9.2.3        the accuracy, currency, reliability, security, safety or quality of the Application or the Services;

            9.2.4        any errors, omissions or faults in the Application or the Services including any failure of performance, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to your Account or Account Information;

            9.2.5        the cost of obtaining substitute Products or Services where you are dissatisfied with, or unable to receive, Products ordered from a Venue or Third Party Provider;

            9.2.6        the unavailability of the Application or the Services in whole or in part because of the failure of the internet and electronic communications network or any circumstance beyond the reasonable control of the Company;

            9.2.7        any data or information you submit or upload to the Application in order to access any part of the Services; or

            9.2.8        any content or materials uploaded to the Application by Venues or Third Party Providers.

9.3            The Company does not warrant or guarantee that the Application will be free from viruses or any other defects or errors which may affect your Device and associated operating systems.

9.4            You acknowledge that:

            9.4.1        it is your responsibility to ensure that Services and functions of the Application meet your requirements; and

            9.4.2        it is your responsibility to protect your Device(s) from damage.

9.5            To the maximum extent permitted by law, the Company disclaims any warranties, representations or endorsements, express or implied, with regard to the Application or the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement of any laws.

9.6            To the maximum extent permitted by law, the Company is not liable to you or any other third party for any Claim in connection with your use of the Application or the Services, including (without limitation) any indirect, incidental, special, consequential, or exemplary loss or damage (such as loss of profits, goodwill, opportunity, data, or other intangible losses), even if the Company has been advised of the possibility of such loss.

9.7            To the maximum extent permitted by law, the Company is not liable to you or any other third party for any Claim in connection with your use of the Application or the Services.

9.8            The Application and Services may be unavailable from time to time due to maintenance, upgrades, or other reasons. The Company is not responsible for any error, omission, interruption, defect, delay in operation or transmission, or communications failure, nor for any technical malfunction or other issues (including damage to or loss of data from your device) arising from the use of, or inability to use, the Application. The Company may modify, suspend, or discontinue any aspect of the Application or Services, remove content, or restrict access without notice.

9.9            To the maximum extent permitted by law, you release the Company and its officers, employees, contractors, and agents from any and all claims, liabilities, losses, damages, and expenses of any kind arising out of or in connection with your use of the Application or Services. You also agree to indemnify and hold harmless the Company and its officers, employees, contractors, and agents from any claims, damages, liabilities, costs, and expenses (including legal fees) arising from:

            9.9.1        your breach or alleged breach of these Terms;

            9.9.2        any infringement or alleged infringement by you of any intellectual property or other rights of the Company or a third party; or

            9.9.3        any negligent or wilful misconduct by you.

9.10         Nothing in these Terms limits or excludes the Company's liability for any Liability which may not be limited or excluded under any Applicable Law.

9.11         To the extent the Company may be liable at law, you agree having regard to the scope of services provided by the Company to you that the maximum entitlement to any recoverable loss and damage including any legal costs will be limited to the lesser of:

9.11.1     $10,000; or

9.11.2     the total amount paid by you to the Company for your use of the Application in the 12-month period immediately preceding the event giving rise to the claim.

Indemnity

Company Indemnification

9.12         You indemnify and hold the Company and its officers, directors, employees and agents harmless from any and all Claims and Liabilities suffered or incurred by the Company arising out of or in connection with:

            9.12.1     any unlawful act or negligent act or omission by you in connection with the use of the Application or the Services;

            9.12.2     your breach of an Applicable Law in connection with the use of the Application or the Services;

            9.12.3     your breach of any of these Terms;

            9.12.4     the Company’s use of your Account Information; or

            9.12.5     your breach of the rights of any third party.

9.13         You will not be liable under clause 9.9 to the extent that the Claim or Liability was caused by the Company’s negligent acts or omissions or wilful misconduct.

Customer Indemnification

9.14         The Company indemnifies and holds you harmless from any and all Claims and Liabilities suffered or incurred by you arising out of or in connection with:

            9.14.1     any unlawful act or negligent act or omission by the Company in connection with the use of the Application or the Services;

            9.14.2     the Company’s breach of an Applicable Law in connection with the use of the Application or the Services; and

            9.14.3     the Company’s breach of any of these Terms.

9.15         The Company will not be liable under clause 9.11 to the extent that the Claim or Liability was caused by your negligent act or omission or wilful misconduct.

10                Privacy

10.1         You acknowledge that the Company collects and uses information which you provide to the Company through your use of the Application.

10.2         The Company reserves the right to de-identify any data or information, including any Account Information, Confidential Information and Personal Information, as the case may be, provided or obtained in conjunction with your use of the Application, for use at its sole discretion.

10.3         By using the Application, you consent to the Company collecting and using your Personal Information for the purpose of providing the Services under the Application (the Purpose).   In order to carry out this Purpose, the Company may disclose your Personal Information to:

            10.3.1      Venues;

            10.3.2     Third Party Providers;

            10.3.3     the Company’s third party service provider, Doshii Pty Ltd ACN 601 278 782 (Doshii) and:

                        (a)           its third party service providers; or

                        (b)           any entity that has entered into a partner subscriber agreement or POS vendor agreement with Doshii,

to the  extent such disclosure is necessary for providing the Services under the Application;

            10.3.4     other third parties to the extent such disclosure is necessary for providing the Services under the Application; and

            10.3.5     other parties to whom the Company is authorised or required by law to disclose information.

10.4         Where you have expressly opted in, Venues and/or Third Party Providers may use your personal information to send you marketing communications (including by electronic means such as email or SMS). Venues and/or Third Party Providers must comply with the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) when sending you such communications. You may withdraw your consent to receive marketing communications at any time by following the unsubscribe instructions provided by the Venue and/or Third Party Provider.

10.5         By using the Application, you further consent to the Company collecting and using technical information about the Device.

10.6         You agree to allow the Company or its affiliates to contact you by way of text, e-mail, in-app (push notifications) or other forms of communication as part of the normal operation of your use of the Application. 

10.7         The privacy of your Personal Information is important to the Company and the Company will ensure that it is held, used and disclosed consistently with the Company’s Privacy Policy which can be accessed at (www.mytabinfo.com/policies/privacy-policy) and the Privacy Act 1988 (Cth). 

10.8         This Privacy Policy contains further information about how the Company may handle your Personal Information, including:

            10.8.1     how you can access and correct Personal Information the Company holds about you; and

            10.8.2     how you can submit a privacy complaint to the Company and how the Company will deal with your complaint.

10.9         If you have any concerns or complaints about the manner in which your Personal Information has been collected or handled by the Company, please contact the Company via email at hello@mytabinfo.com.

11                Variation

11.1         The Company may on the giving of Notice advise you of any variation to:

            11.1.1     the nature, scope or availability of the Services;

            11.1.2     the fees payable by you; and

            11.1.3     these Terms,

(Proposed Variations).

11.2         Within fourteen (14) days of the giving of receipt of the Notice given under clause 11.1 above:

            11.2.1     you may provide Notice of your acceptance or rejection of the Proposed Variations; otherwise

            11.2.2     failing the Company’s receipt of the Notice given under clause 11.2.1 above within the fourteen (14 days), you will be taken to have consented to the Proposed Variations.

11.3         Any Proposed Variations that are:

            11.3.1     accepted under clause 11.2.1 will be effective from the date on which Notice of such acceptance is given in accordance with clause 15.3; or

            11.3.2     consented to under clause 11.2.2 will be effective from the Business Day after the lapse of the fourteen (14) days.

11.4         You agree not to unreasonably decline (or unreasonably delay in accepting) the Proposed Variations.

11.5         The Company agrees not to seek to impose any unreasonable terms and conditions in relation to any Proposed Variations, including without limitation unreasonable time-frames and/or fees.

11.6         If you believe the Proposed Variations will prejudice your rights then your only remedy is to cease using the Application.

12                Termination

Termination by you

12.1         You may delete your Account at any time in the settings of the Application.

12.2         Deletion of your Account must be made by way of the cancellation process contained in the settings of the Application.

12.3         Deletion of your Account does not relieve you from any Liabilities (including any payment liability) you have incurred by using the Application or Service. 

12.4         You acknowledge that clause 9.9 of these Terms survives any termination or deletion of your Account.

Termination by the Company

12.5         The Company may on the giving of Notice suspend or terminate your access to the Application, the Services or your Account:

            12.5.1     for any reason on the provision of seven (7) days’ notice; or

            12.5.2     at any time if you breach any of these Terms.

12.6         You may dispute the Notice referred to in clause 12.5.1 prior to the lapse of seven (7) days in accordance with clause 13.

12.7         The Company may suspend or terminate your access to the Application, the Services or your Account if it is unable to provide access to the Application.

12.8         The Company reserves the right to suspend or terminate your Account immediately and without notice if the Customer is in breach of the Terms.

12.9         Termination by the Company does not affect the rights, liabilities and remedies of the Company or you which have accrued up to the date of termination.

Deletion

12.10         Deletion applies only to the Personal Information of the account holder who requests deletion. It does not require the Company to delete the Personal Information of other individuals (e.g., customers or venues) connected to the same transactions. 

12.11         The deletion of your account (whether by termination by you or by the Company) will:

        12.11.1         delete or de-identify personal information that identifies you from our active systems. In some cases, your account may be anonymised (for example, by removing your name and replacing it with “Anonymous”) while retaining associated transaction records.

        12.11.2         permit the Company to retain order records, transaction data, and other business records in a de-identified form for legitimate business purposes, including (without limitation) compliance with legal, tax, accounting, and regulatory obligations; fulfilling contractual commitments; managing disputes, claims, or chargebacks; maintaining transaction and order history; maintaining accurate business and performance records; and producing anonymised or aggregated analytics; and

        12.11.3         ensure that these retained records will no longer reasonably identify you, and we will not attempt to re-identify such data. Any retained de-identified data will be handled in accordance with our Privacy Policy and applicable laws.

12.12         Deletion will occur within a reasonable period. Residual copies of personal information may remain in backup systems for a limited retention period before being securely deleted or overwritten in accordance with our data retention practices and security measures.

12.13         Where your personal information has been disclosed to third parties (including payment providers such as Stripe, integration providers such as Doshii, or other third party services), those third parties may retain and process your information in accordance with their own privacy policies and legal obligations. We do not control and are not responsible for the data retention or deletion practices of such third parties, and you may need to contact them directly.

12.14         Accounts can be deleted at the user’s request. Contact hello@mytabinfo.com  for details. Please note, account deletion will result in the deletion or de-identification of personal information from our active systems in accordance with our Privacy Policy and it cannot be recovered.

13                Dispute Resolution

13.1         A Party claiming that a Dispute has arisen must give Notice to the other Party.

13.2         Within seven (7) days (or any longer period agreed between the Parties) after a Notice is given, the Parties must personally, or through a nominee, attempt to resolve the Dispute.

13.3         If the Parties cannot resolve the Dispute within fourteen (14) days after the Notice is given (or any longer period agreed between the Parties), the Parties must refer the Dispute to mediation in accordance withclause 14.1.

14               Mediation 

14.1         Subject to compliance with clause 13, any Dispute arising under, out of or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall then be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be in Western Australia.

14.2         Each Party must bear its own costs of complying with clauses 13 and 14.

15                Notices 

15.1         The Company may give you Notice of a matter in connection with these Terms by text message, email, in-app or by other forms of communication to the addresses specified in your Account Information.

15.2         You may give Notice to the Company of a matter in connection with these Terms by email to customer@mytabinfo.com.

15.3         Notice shall be deemed served:

            15.3.1     if posted, on the second Business Day after posting;

            15.3.2     if personally served, at the time such actual service is made on the Party on which the Notice is served;

            15.3.3     if transmitted within the Application:

                        (a)           by message, on receipt of the whole of the Notice in the messenger “in-box” of the Party being served; or

                        (b)           by notification pop-up, on receipt of the whole of the Notice in the notification centre and/or inbox of the Party being served;

            15.3.4     if transmitted by electronic mail message, on receipt of the whole of the Notice in the "in-box" of the Party being served; or

            15.3.5     if transmitted by text message, on receipt of the whole of the Notice in the “in-box” of the Party being served,

on the day of transmission if before 5:00 pm on a Business Day, otherwise on the next Business Day.

16                Other provisions 

Governing law

16.1         These Terms are governed by and construed in accordance with the laws of Western Australia and the Parties submit themselves to the non-exclusive jurisdiction of the Courts of that State.

Waiver

16.2         No failure, delay or omission by the Company in exercising any of its rights, powers or remedies provided under these Terms or by law will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right or remedy.

Severability

16.3         If any part of these Terms is or becomes illegal, void or unenforceable, this does not invalidate the rest of these Terms.

Further action

16.4         Without limitation, each Party must do, at its own expense, everything reasonably necessary to give full effect to these Terms and any transaction contemplated by it.

Third Party Platform Beneficiaries

16.5         If you access the Services via an Apple iOS or Android mobile device, you acknowledge that Apple Inc., Google LLC, and their respective affiliates are third-party beneficiaries of these Terms. These beneficiaries are not parties to these Terms and have no responsibility for providing, maintaining, or supporting the Services. Your use of the Services on such devices is also governed by the applicable terms and conditions of the relevant platform provider, in addition to these Terms.

17                Definitions and interpretation 

17.1         Definitions

Account means the account a user of the Application is required to open with the Company before accessing or using the Application and the Services.

Account Information means information required to be provided by a user of the Application in order to create and maintain an Account.

Applicable Laws means all laws, regulations, codes or applicable rules (whether statutory or at common law) relating to your use of the Application.

Application means the software application known as ‘MyTab’ downloaded to a Device or any other application used to access the Services and all websites operated by the Company, including but not limited to the websites located at: www.mytabinfo.com and  https://manage.mytabinfo.com.

Australian Consumer Law means the Australian Consumer Law which is schedule 2 to the Competition and Consumer Act 2010 (Cth) as in force as a law of the Commonwealth under that Act, and as in force as a law of Western Australia under the Fair Trading Act 2010 (WA).

Business Day means any day, except a Saturday or Sunday, when banks are open for business in the Perth central business district.

Claim means any damage, loss (including Indirect Loss), cost, expense or liability incurred by a person (including personal injury, sickness, death, property loss or damage), or a claim, action, proceeding or demand made against a person, however arising and whether past, present or future, fixed or unascertained, actual or contingent.

Company has the meaning given in clause 1.3

Device means the device or operating system you use to access the Application.

Dispute means any disagreement or difference arising between you and the Company out of or in relation to these Terms.

Indirect Loss means any loss of revenue, loss of profit or anticipated profit, loss of business reputation, loss of opportunities, loss of anticipated savings or wasted overheads and any other economic loss or indirect loss, whether or not in the reasonable contemplation of the Parties at the time of the downloading of the Application.

Intellectual Property or Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, confidential information and trade secrets and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable including all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights.

Jurisdiction means the jurisdiction and laws of the State of Western Australia.

Liabilities means all liabilities, losses, damages, outgoings, costs and expenses of whatever description.

Marketing Communications means direct marketing communications (including by email or SMS) sent by or on behalf of the Company, a Venue and/or any Third Party Provider, provided you have opted-in to receive such communications.

Notice has the meaning given in clause 15 and includes request, direction, consent, notification or other communication.

Party means a party to these Terms and Parties has the corresponding meaning.

Permissible Age means the age in the Jurisdiction at which it is lawful to consume or purchase alcohol on premises which are licensed or otherwise permitted to sell or supply alcohol.

Personal Information has the same meaning as defined in the Privacy Act 1988 (Cth).

Purpose has the meaning in clause 10.3 herein.

Services means the services, information, advertising, and resources provided via the Application including the ability to order and pay for Products from Venues or Third Party Providers.

Stripe means Stripe Payments Australia Pty Ltd (ACN 160 180 343), a PCI Level 1 Service Provider payment platform, whose terms and conditions are contained at www.stripe.com/en-au/legal/ssa.

Third-Party Materials means any websites, website links, content, information, materials, products, services, promotions, advertisements, offers, or other resources that are provided, owned, or operated by a person or entity other than the Company, including (without limitation) Venues and Third Party Providers.

Third Party Provider means any third party approved by the Company to provide Services in connection with the Application.

You means any user of the Application, whether an individual person or an entity.

17.2         Interpretation

In these Terms, unless the context otherwise requires:

            17.2.1     the singular includes the plural and vice versa;

            17.2.2     a reference to a clause is to a clause of these Terms;

            17.2.3     a reference to any Party or any other document or arrangement includes that Party’s executors, administrators, substitutes, successors and permitted assigns;

            17.2.4     no provision of these Terms will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these Terms or that provision;

            17.2.5     a reference to any law or legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;

            17.2.6     an expression importing a natural person includes any company, trust, partnership, joint venture, association, corporation, body corporate or governmental agency;

            17.2.7     where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

            17.2.8     all references to currency are references to Australian dollars.

 

Mytab Terms and Conditions For Venues and/or Third Party Providers

 

8                Refunds 

8.1            The Venue and/or Third Party Provider acknowledges that the Company is not responsible for receiving or managing refund requests by customers regarding orders placed with the Venue and/or Third Party Provider through the Application.

8.2            The Venue and/or Third Party Provider is responsible for determining its own refund policies and any request for refunds by customers must be made directly to the Venue and/or Third Party Provider.

8.3            The Venue and/or Third Party Provider remains liable to pay the Company the Fees and Charges associated with any refund to a customer.

8.4            The Company reserves the right to offer a partial or full refund to the customer without the Venue and/or Third Party Provider’s consent if there is an Evident Major Failure and customer has documented evidence of the Evident Major Failure. The Venue and/or Third Party Provider will be responsible for bearing the cost of the partial or full refund. The Company will act reasonably and in good faith when determining whether an Evident Major Failure has occurred and will provide the Venue and/or Third Party Provider with reasonable supporting information upon request.

8.5            Without limiting any other rights of the Company, any amount refunded to a customer by the Company in accordance with clause 8.4, or any chargeback amount incurred under clause 7.9, may, without prior notice, be deducted by the Company from any future amounts payable to the Venue and/or Third Party Provider. If no such amounts are payable, the Company may recover the balance as a debt due and payable by the Venue and/or Third Party Provider immediately on demand.

9                Assignment 

9.1            The Company is to give Notice to the Venue and/or Third Party Provider of its intention to assign or transfer its rights and obligations under these Terms, in whole or in part.

9.2            The Venue and/or Third Party Provider must not assign or transfer its rights or obligations under these Terms to any other person or entity without prior written consent from the Company, which consent is not to be unreasonably withheld.

9.3            The Venue and/or Third Party Provider acknowledges that it will be reasonable for the Company to withhold its consent under clause 9.2 if:

            9.3.1        the Company is not satisfied with the ability of the proposed assignee to perform the Venue and/or Third Party Provider’s obligations under these Terms;

            9.3.2        the Company is not satisfied with the proposed assignee’s financial standing or reputation;

            9.3.3        the proposed assignee is a competitor of the Company; or

            9.3.4        the Company is in dispute with the proposed assignee.

10             Confidential Information 

10.1         A party may only use Confidential Information of another party for the purposes of these Terms, and must keep any Confidential Information of another party confidential except where:

            10.1.1     the information is public knowledge (but not because of a breach of these Terms) or the party has independently created the information; or

            10.1.2     disclosure is:

                        (a)           made to the officers, employees, subsidiaries or affiliate entities of a party, in each case, only to the extent required to enable the party to carry out its obligations under these Terms and who will in each case be made aware by the party of its obligations under these Terms and will be required to observe the same restrictions on the use of such Confidential Information as provided in these Terms;

                        (b)           made to the professional advisers of a party who are bound to the party by a duty of confidence which applies to any such Confidential Information disclosed; or

                        (c)            required by law or a regulatory body (including a securities exchange).

10.2         The Company has in place security protocols for the Application which are industry standard.  This will not prevent the Venue and/or Third Party Provider from giving a third party access to personal information, and the Company accepts no liability arising from actions in doing so.

11             Privacy

11.1         The Company may collect information regarding the Venue and/or Third Party Provider and its employees in connection with the use of the Application by the Venue and/or Third Party Provider. 

11.2         The Company reserves the right to de-identify any data or information, including any Account Information, Confidential Information, Personal Information and Stripe Information, as the case may be, provided or obtained in conjunction with the Venue and/or Third Party Provider’s use of the Application, for use at its sole discretion.

11.3         You consent to the Company collecting and using Personal Information for the purpose of providing the Services under the Application (the Purpose). 

11.4         The Company will provide you with the personal information of customers for the Purpose. You agree to strictly comply with the Spam Act 2003 (Cth) and the Privacy Act 1988 (Cth) in relation to that personal information. You may only use the personal information for order fulfilment and related purposes, unless the Customer has expressly opted in to receive marketing communications, in which case you may use the information for that purpose in compliance with the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).

11.5         In order to carry out the Purpose, the Company may disclose Personal Information to:

            11.5.1     the Company’s third party service provider, Doshii Pty Ltd (ACN 601 278 782) (Doshii) and:

                        (a)           its third party service providers; or

                        (b)           any entity that has entered into a partner subscriber agreement or POS vendor agreement with Doshii,

to the  extent such disclosure is necessary for providing the Services under the Application;

            11.5.2     other third parties to the extent such disclosure is necessary for providing the Services under the Application; and

            11.5.3     other parties to whom the Company is  authorised or required by law to disclose information.

11.6         Where you provide Personal Information of any employee, you agree to:

            11.6.1     obtain such employee’s consent to the collection of their Personal Information for the Purpose; and

            11.6.2     make them aware of the Company’s Privacy Policy,

 prior to providing such Personal Information.

11.7         The Company will ensure any Personal Information is held, used and disclosed consistently with the Company’s Privacy Policy which can be accessed at https://mytabinfo.com/policies/privacy-policy and the Privacy Act 1988 (Cth). 

11.8         This Privacy Policy contains further information about how the Company may handle Personal Information, including:

            11.8.1     how Personal Information held by the Company can be accessed and corrected; and

            11.8.2     how you can submit a privacy complaint to the Company and how the Company will deal with your complaint.

11.9         If you have any concerns or complaints about the manner in which Personal Information has been collected or handled by the Company, you can contact the Company via email at hello@mytabinfo.com.

12             Acknowledgements 

12.1         The Venue and/or Third Party Provider acknowledges and agrees that:

            12.1.1     it will use its best endeavours to promote the Application through methods reasonably required by the Company from time to time;

            12.1.2     the Company is not responsible for any damage caused by any marketing materials provided by the Company to the Venue and/or Third Party’s property;

            12.1.3     the Company may publish the Venue and/or Third Party Provider’s details on the Company Websites or any other advertising medium for the purpose of representing that the Venue and/or Third Party Provider is utilising, or has previously utilised the Application;

            12.1.4     the Company is not responsible to the Venue and/or Third Party Provider for any customer payment that is dishonoured after an order has been processed and accordingly the Venue and/or Third Party Provider releases the Company from any Liability to pay to the Venue and/or Third Party Provider any dishonoured amount;

            12.1.5     the Venue and/or Third Party Provider’s Products are not endorsed by the Company and that the Company does not make any warranties or bear any responsibility with regard to the Venue and/or Third Party Provider’s Products;

            12.1.6     the Company does not endorse, make any warranties or bear any responsibility with regard to any third-party websites, applications, content or services that may be linked to or from the Application, including through any Venue and/or Third Party Provider content. Access to and use of such third-party content or services is at the Venue and/or Third Party Provider’s own risk, and the Company is not liable for any loss, damage, or harm arising from such access or use;

            12.1.7     where the Venue and/or Third Party Provider elects to use any third-party service or integration made available via or in connection with the Application (including, without limitation, any point-of-sales integration through Doshii), the Venue and/or Third Party Provider does so under a separate agreement directly with that third-party provider and must comply with all applicable terms and conditions of that provider. The Company makes no representation or warranty regarding, and accepts no liability for, the acts, omissions, availability, functionality, performance, security or suitability of any third-party services or integrations;

            12.1.8     the Company may suspend or terminate the Venue and/or Third Party Provider’s access to the Application immediately if any Fees and Charges remain unpaid for more than 7 days after their due date;

            12.1.9     if the Venue and/or Third Party Provider’s Products, or the content and materials the Venue and/or Third Party Provider uploads to the Application, are in breach of any Applicable Law, this will constitute a breach of the Venue and/or Third Party Provider’s obligations under these Terms;

            12.1.10  if the Company considers it is reasonable to do so, the Company may immediately suspend the Venue and/or Third Party Provider’s access to the Application, remove or amend any content or material the Venue and/or Third Party Provider has uploaded to the Application, or take any other steps the Company deems reasonably necessary or appropriate to protect the Company’s interests or those of third parties; and

            12.1.11  the Company will not be responsible for any Claims or Liabilities arising out of, from or in connection with the exercise of the Company’s right to suspend or terminate the Venue and/or Third Party Provider’s access to the Application in accordance with clauses 12.1.5, 12.1.8 and 12.1.10.

12.2         The Venue and/or Third Party Provider acknowledges and agrees that the Company may utilise any security measures, whether technological or otherwise, that the Company considers appropriate in order to ensure the Application remains secure and that the Venue is not breaching any Applicable Laws in its use of the Application.

12.3         The Company reserves the right to cancel the Venue’s account and/or Third Party Provider’s access immediately and without notice where the Company suspects that the Venue fails the security checks contemplated by clause 12.2, or the Company considers the Venue and/or Third Party Provider is otherwise a risk or likely to be a risk to the security of the Application.

13             Warranties

Venue and/or Third Party Provider Warranties

13.1         The Venue and/or Third Party Provider represent and warrant to the Company:

            13.1.1     no content or materials uploaded to the Application breaches the rights of any third party, and where a third party has Intellectual Property Rights in such content or materials, the Venue and/or Third Party Provider is using such content or materials under the licence or authority of the owner of the Intellectual Property Rights;

            13.1.2     the Venue and/or Third Party Provider will not upload content and material to the Application that:

                        (a)           is misleading, deceptive or false with regard to the nature and quality of the Products that the Venue and/or Third Party Provider is offering through the Application, or as to the origin of those Products;

                        (b)           is false, defamatory, harassing or obscene;

                        (c)            may offend any Applicable Laws;

                        (d)           may otherwise be regarded by the Company, on reasonable grounds, to be unacceptable; or

                        (e)            involves any fraudulent activity;

            13.1.3     the Venue and/or Third Party Provider will not copy or otherwise make use of content or materials uploaded to the Application by other users of the Application, unless the Venue and/or Third Party Provider has first obtained the written consent of that party to do so;

            13.1.4     the Venue and/or Third Party Provider holds all current and valid permits, registrations, licences, appropriate insurance policies and authorisations that the Venue requires in order to carry on its business or advertise, promote and sell the Products it will be offering using the Application, as the case may be;

            13.1.5     the Venue and/or Third Party Provider will not make any representation in any form that the Products that the Venue and/or Third Party Provider will provide have the sponsorship, approval or endorsement of the Company, or that the Venue and/or Third Party Provider is affiliated with the Company (other than by virtue of the Venue and/or Third Party Provider’s use of the Application);

            13.1.6     the Venue and/or Third Party Provider will comply with all Applicable Laws; and

            13.1.7     the Venue and/or Third Party Provider has the authority and capacity to enter into these Terms and to be bound by its obligations under these Terms.

Company Warranties

13.2         The Company represents and warrants to the Venue and/or Third Party Provider:

            13.2.1     the Company will not upload content and material to the Application that:

                        a)     is misleading, deceptive or false with regard to the nature and quality of the Products that the Company is offering through the Application, or as to the origin of those Products;

                        b)     is false, defamatory, harassing or obscene;

                        c)     may offend any Applicable Laws;

                        d)     may otherwise be regarded by the Venue and/or Third Party Provider, on reasonable grounds, to be unacceptable; or

                        e)     involves any fraudulent activity;

            13.2.2     the Company will not copy or otherwise make use of content or materials of the Venue and/or Third Party Provider, save for the kind referred to in clause 5.11, unless the Company has first obtained the written consent of that party to do so;

            13.2.3     the Company holds all permits, licences or authorisations that the Company requires;

            13.2.4     the Company will comply with all Applicable Laws; and

            13.2.5     the Company has the authority and capacity to enter into these Terms and to be bound by its obligations under these Terms.

14             Liability

14.1         The Company will use all reasonable endeavours to ensure that the Application and the Services are available to the Venue and/or Third Party Provider at all times. 

14.2         Subject to clauses 14.4 to 14.6, the Venue and/or Third Party Provider acknowledges and agrees that the Company does not represent, warrant or accept any Liability in relation to:

            14.2.1     the accuracy, currency, reliability, security, safety or quality of the Application or the Services;

            14.2.2     any errors, omissions or faults in the Application or the Services including any failure of performance, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to your account or Account Information;

            14.2.3     the unavailability of the Application or the Services in whole or in part because of the failure of the internet and electronic communications network or any circumstance beyond the reasonable control of the Company;

            14.2.4     any data or information you submit or upload to the Application in order to access any part of the Services; or

            14.2.5     any content or materials uploaded to the Application by the Venue and/or Third Party Provider.

14.3         Subject to clauses 14.4 to 14.6, the Company does not warrant or guarantee that the Application will be free from viruses or any other defects or errors.

14.4         If the Venue and/or Third Party Provider is a Consumer, the Company may be taken to have given the Venue and/or Third Party Provider certain consumer guarantees under the Australian Consumer Law (Consumer Guarantees) about the supply of goods or services to the Venue and/or Third Party Provider.  If the Company fails to comply with any of those Consumer Guarantees, the Venue and/orThird Party Provider may have statutory rights against the Company under the Australian Consumer Law that the Company is prohibited by law from excluding, restricting or modifying.

14.5         Nothing in these Terms is to be taken to exclude, restrict or modify:

            14.5.1     any rights of recovery to or compensation the Venue and/or Third Party Provider may have under the Australian Consumer Law;

            14.5.2     any other conditions, warranty or guarantee (including the application of any Consumer Guarantee under the Australian Consumer Law),

to the extent that the Company is prohibited by law from excluding, restricting or modifying them.

14.6         Where the Services supplied under these Terms are not services of a kind ordinarily purchased for personal, domestic or household use, the Company’s liability for breach of any Consumer Guarantee applicable to the supply of the Services under the Australian Consumer Law, to the extent that it is permitted by law, is limited to any one of the following determined by the Company

            14.6.1     the supplying of the Services again; or

            14.6.2     the payment of the cost of having the Services supplied again.

14.7         All other conditions, warranties and guarantees in relation to any matter (including any rights of recovery or to compensation), whether or not implied by law, are, to the maximum extent permitted by law, excluded.  This exclusion applies whether or not the Venue and/or Third Party Provider is a Consumer.

14.8         To the maximum extent permitted by law, the Company disclaims any warranties, representations or endorsements, express or implied, with regard to the Application or the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement of any laws.

14.9         Subject to clauses 14.4, 14.6 and 14.11, to the maximum extent permitted by law, the Company is not liable to you or any other third party for any Claim in connection with your use of the Application or the Services.

14.10      Subject to this clause 14, and to the maximum extent permitted by law, the Company will not be liable for any Indirect Loss.

14.11      Subject to clauses 14.4 to 14.6, to the extent the Company may be liable at law, the Venue and/or Third Party Provider agrees, having regard to the scope of services provided by the Company, that the maximum entitlement to any recoverable loss or damage, including any legal costs and any liability under an indemnity, is $10,000.

15             Indemnity

Company Indemnification

15.1         The Venue and/or Third Party Provider indemnifies and holds the Company and its officers, directors, employees and agents harmless from all Claims and Liabilities suffered or incurred by the Company arising out of, from or in connection with:

            15.1.1     any unlawful act or negligent act or omission by the Venue and/or Third Party Provider in connection with the use of the Application or the Services;

            15.1.2     any breach of an Applicable Law by the Venue and/or Third Party Provider in connection with the use of the Application or the Services;

            15.1.3     any breach of any of these Terms by the Venue and/or Third Party Provider; or

            15.1.4     any breach of the rights of any third party by the Venue and/or Third Party Provider.

15.2         The Venue and/or Third Party Provider will not be liable under clause 15 to the extent that the Claim or Liability was caused by the Company’s negligent acts or omissions or wilful misconduct.

Venue and/or Third Party Provider Indemnification

15.3         The Company indemnifies and holds the Venue and/or Third Party Provider and its officers, directors and employees harmless from all Claims and Liabilities suffered or incurred by the Venue and/or Third Party Provider arising out of, from or in connection with:

            15.3.1     any unlawful act or negligent act or omission by the Company in connection with the use of the Application or the Services;

            15.3.2     any breach of an Applicable Law by the Company in connection with the use of the Application or the Services;

            15.3.3     any breach of any of these Terms by the Company; or

            15.3.4     any breach of the rights of any third party by the Company.

15.4         The Company will not be liable under clause 15.3 to the extent that the Claim or Liability was caused by the Venue and/or Third Party Provider’s negligent acts or omissions or wilful misconduct.

16             Variation

16.1         The Company may on the giving of Notice advise the Venue and/or Third Party Provider of any variation to:

            16.1.1     the nature, scope or availability of the Services;

            16.1.2     the Fees and Charges payable by the Venue and/or Third Party Provider; and

            16.1.3     these Terms,

(Proposed Variations).

16.2         Within fourteen (14) days of receipt of the Notice given under clause 16.1 above:

            16.2.1     the Venue and/or Third Party Provider may provide Notice of its acceptance or rejection of the Proposed Variations; otherwise

            16.2.2     failing the Company’s receipt of the Notice given under clause 16.2.1 above within the fourteen (14 days), the Venue and/or Third Party Provider will be taken to have consented to the Proposed Variations.

16.3         Any Proposed Variations that are:

            16.3.1     accepted under clause 16.2.1 will be effective from the date on which Notice of such acceptance is given in accordance with clause 21.3; or

            16.3.2     consented to under clause 16.2.2 will be effective from the Business Day after the lapse of the fourteen (14) days.

16.4         The Venue and/or Third Party Provider agrees not to unreasonably decline (or unreasonably delay in accepting) the Proposed Variations.

16.5         The Company agrees not to seek to impose any unreasonable terms and conditions in relation to any Proposed Variations, including without limitation unreasonable time-frames and/or fees.

17             Termination

17.1         Subject to the Agreement, either party may terminate these Terms at any time upon giving thirty  (30) days’ Notice to the other party of its intention to terminate.

17.2         Upon termination of these Terms:

            17.2.1      the Venue and/or Third Party Provider must pay to the Company, as the case may be:

                        (a)           all outstanding Fees and Charges;

                        (b)           any outstanding dishonoured customer payment or chargeback; and

                        (c)            any other outstanding amount owing to the Company in accordance with these Terms; and

            17.2.2     the Company will:

                        (a)           advise the Venue to transfer from the third party payment platform to the Venue’s nominated account all outstanding Funds to which the Venue is entitled (less any Fees and Charges dishonoured customer payments or chargeback amount) in accordance with these Terms;

                        (b)           terminate the Venue and/or Third Party Provider’s access to the Application; and

                        (c)            at the Company’s discretion (other than Personal Information uploaded by the Venue and/or Third Party Provider to the Application which must be deleted), remove or delete the content and materials that the Venue and/or Third Party Provider has uploaded to the Application.

17.3         For the avoidance of doubt, any subscription fees, advertising fees, or other recurring charges paid in advance are non-refundable in accordance with clause 7.8.

17.4         Without limiting clause 17.2, if a Venue terminates these Terms before the expiry of the initial twelve (12) month term specified in the Agreement, the Venue must pay to the Company an early termination fee as set out in the Agreement. The early termination fee is payable immediately upon termination.

17.5         If the Venue and/or Third Party Provider holds in its possession or control any Confidential Information belonging to the Company, on request by the Company the Venue and/or Third Party Provider must within seven days return or destroy such Confidential Information and provide the Company with evidence of the destruction of such Confidential Information.

17.6         Save for the Venue and/or Third Party Provider at any time giving Notice to the Company to delete the Venue and/or Third Party Provider’s account, or to assign the Venue or Third Party Provider’s account to the inactive list (in which the Venue and/or Third Party Provider will be hidden and unavailable to the customers on the Application), the Company reserves the right at its sole discretion to assign the Venue and/or Third Party Provider’s account to the inactive list as it sees fit, alternatively after thirty (30) days of inactivity.

17.7         Termination of these Terms does not affect the accrued rights, liabilities and remedies of the Parties.

17.8      The Company may terminate these Terms immediately by written notice to the Venue and/or Third Party Provider if the Venue and/or Third Party Provider commits a Breach of these Terms.

Deletion

17.9         You can at any time elect to delete your account on the Application by navigating to the settings with the Application and Website (www.manage.mytabinfo.com). Deletion applies only to the Personal Information of the account holder who requests deletion. It does not require the Company to delete the Personal Information of other individuals (e.g., customers or venues) connected to the same transactions. 

17.10         The deletion of your account (whether by termination by you or by the Company) will:

         17.10.1         delete or de-identify personal information relating to the identifiable individual associated with that business (such as an account holder). 

         17.10.2         Business information such as a venue name, trading name, ABN/ACN, business address, business contact details (including email addresses used for business operations) and transaction and advertising records will generally be retained for legitimate business, legal and operational purposes, including facilitating customer communication in relation to transactions. Where any such information also constitutes Personal Information, we will handle it in accordance with our Privacy Policy and applicable laws.

17.11         The deletion of an account (whether by termination by you or by the Company) is final, and Personal Information relating to identifiable individuals (such as account holders) will be deleted from the Company’s active systems. The account will thereafter be deactivated and no longer accessible.

17.12         Deletion will occur within a reasonable period. Residual copies of personal information may remain in backup systems for a limited retention period before being securely deleted or overwritten in accordance with our data retention practices and security measures.

17.13         Notwithstanding clause 17.9, the Company reserves the right to retain such Account Information, Confidential Information, Stripe Information, and Customer Personal Information relating to orders placed through the Venue and/or Third Party Provider during its participation on the Application as is reasonably necessary to comply with the Privacy Act 1988 (Cth) and other applicable laws. Such information may be retained only for the Company’s lawful business purposes, which may include (without limitation): compliance with legal, tax, accounting, and regulatory obligations; fulfilling contractual commitments; managing disputes, claims, or chargebacks; maintaining transaction records, order history, payment data, and associated customer information; maintaining accurate business and performance records; and producing anonymised or aggregated analytics. Any Personal Information retained by the Company will be managed in accordance with the Company’s Privacy Policy and will be retained only for so long as is reasonably necessary to fulfil the purposes set out in this clause or to comply with applicable legal obligations (including, without limitation, record-keeping requirements under the Corporations Act 2001 (Cth) and applicable taxation laws). Once such information is no longer required for those purposes, the Company will take reasonable steps to ensure that it is permanently destroyed or de-identified.

17.14         Following deletion or termination of a Venue and/or Third Party Provider account, the Venue and/or Third Party Provider may no longer be active or visible for new transactions or advertisements on the Application. However, historical transaction records may continue to display the Venue and/or Third Party Provider’s business name and relevant order details for the purposes of customer records and legal compliance.

17.15         The Venue and/or Third Party Provider acknowledges that the Application may integrate with third party services (including, without limitation, payment providers such as Stripe and point-of-sale or integration platforms such as Doshii) (Third Party Services). Where the Venue and/or Third Party Provider has a separate account, agreement or relationship with any Third Party Services, those Third Party Services act independently of the Company and may collect, retain, use and disclose information in accordance with their own terms, privacy policies and legal obligations. To the maximum extent permitted by law, the Company does not control, and is not responsible or liable for, the data handling, storage, retention, processing, security or deletion practices of any Third Party Services. The Venue and/or Third Party Provider is solely responsible for managing its relationships with such Third Party Services and must contact the relevant third party directly to access, correct or request deletion of any information held by them.

17.16         To the maximum extent permitted by law, the Company is not liable for any loss of data, content, or information resulting from termination, deactivation, or deletion carried out in accordance with this clause 17.

18             Dispute Resolution

18.1         A Party claiming that a Dispute has arisen must give Notice to the other Party.

18.2         Within seven (7) days (or any longer period agreed between the Parties) after a Notice is given, the Parties must personally, or through a nominee, attempt to resolve the Dispute.

18.3         If the Parties cannot resolve the Dispute within fourteen (14) days after the Notice is given (or any longer period agreed between the Parties), the Parties must immediately refer the Dispute to the Chief Executive Officers (or Director/s) of each Party.

18.4         If the Chief Executive Officers (or Director/s) cannot resolve the Dispute within twenty-one (21) days after the Notice is given (or any longer period agreed between the parties), the Parties must refer the Dispute to mediation.

19             Mediation

19.1         Subject to compliance with clause 18, any Dispute arising under, out of or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall then be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be Western Australia.

19.2         Each Party must bear its own costs of complying with clauses 18 and 19.

20             GST

20.1         In this clause, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999(Cth) has the meaning given to it in that Act.

20.2         If a party makes a supply under or in connection with this agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 20.2 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.

20.3         If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 20.2.

20.4         A party need not make a payment for a taxable supply made under or in connection with this agreement until it receives a tax invoice for the supply to which the payment relates.

21             Notice

21.1         The Company may give the Venue and/or Third Party Provider Notice of a matter in connection with these Terms by text message, email, in-app or by other forms of communication to the addresses specified in the Account Information.

21.2         The Venue and/or Third Party Provider may give Notice to the Company of a matter in connection with these Terms by email to venue@mytabinfo.com.

21.3         Notice shall be deemed served:

            21.3.1     if posted, on the second Business Day after posting;

            21.3.2     if personally served, at the time such actual service is made on the Party on which the Notice is served;

            21.3.3     if transmitted within the Application:

                        (a)           by message, on receipt of the whole of the Notice in the messenger “in-box” of the Party being served; or

                        (b)           by notification pop-up, on receipt of the whole of the Notice in the notification centre and/or inbox of the Party being served;

                        21.3.4     if transmitted by electronic mail message, on receipt of the whole of the Notice in the "in-box" of the Party being served; or

                        21.3.5     if transmitted by text message, on receipt of the whole of the Notice in the “in-box” of the Party being served,

on the day of transmission if before 5:00 pm on a Business Day, otherwise on the next Business Day

22             Other provisions

Governing law

22.1         These Terms are governed by and construed in accordance with the laws of Western Australia and the parties submit themselves to the non-exclusive jurisdiction of the Courts of that State.

Waiver

22.2         No failure, delay or omission by the Company in exercising any of its rights, powers or remedies provided under these Terms or by law will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right or remedy.

Survival

22.3         Clauses 2.4–2.7, 5.6, 5.11, 7, 8, 9, 10, 11, 13, 14, 15, 17.2–17.9, 18, 19, 20, 21 and 23 survive the termination or expiry of these Terms, together with any other provision which by its nature is intended to survive.

Severability

22.4         If any part of these Terms is or becomes illegal, void or unenforceable, this does not invalidate the rest of these Terms.

Third Party Platform Beneficiaries

22.5         If you access the Services via an Apple iOS or Android device, you acknowledge that Apple Inc., Google LLC, and their respective affiliates are third-party beneficiaries of these Terms. These beneficiaries are not parties to these Terms and have no responsibility for providing, maintaining, or supporting the Services. Your use of the Services on such devices is also governed by the applicable terms and conditions of the relevant platform provider, in addition to these Terms.

23             Definitions and interpretation

23.1         Definitions

Account means the account a Venue and/or Third Party Provider of the Application is required to open with the Company before accessing or using the Application and the Services.

Account Information means information required to be provided by the Venue and/or Third Party Provider in order to create and maintain an account to access and the use the Application and includes information obtained in connection with the Venue and/or Third Party Provider’s use of the Application including but not limited to transaction data.

Applicable Laws means all laws, regulations, codes or applicable rules (whether statutory or at common law) relating to the sale of Products and the Venue and/or Third Party Provider’s use of the Application.

Application means the software application known as ‘MyTab’ used to access the Services and all websites operated by the Company, including but not limited to the websites located at: www.mytabinfo.com and  https://manage.mytabinfo.com.

Australian Consumer Law means the Australian Consumer Law which is schedule 2 to the Competition and Consumer Act 2010 (Cth) as in force as a law of the Commonwealth under that Act, and as in force as a law of Western Australia under the Fair Trading Act 2010 (WA).

Breach means any failure by a Party to comply with any obligation under these Terms that:

a)     cannot be remedied; or

b)     is not remedied within 7 days after written notice requiring it to do so; and includes, without limitation:

(i) failure to pay any Fees and Charges when due;(ii) failure to maintain required current and valid permits, registrations, licences, appropriate insurance policies and authorisations that the Venue requires in order to carry on its business or advertise, promote and sell the Products it will be offering using the Application, as the case may be, under clause 13.1.4;

(iii) breach of Applicable Laws;

(iv) any act or omission that, in the Company’s reasonable opinion, damages or risks damaging the reputation of the Company, the Application, or its users.

Business Day means any day, except a Saturday or Sunday, when banks are open for business in the Perth central business district.

Claim means any damage, loss (including Indirect Loss), cost, expense or liability incurred by a person, or a claim, action, proceeding or demand made against a person, however arising and whether past, present or future, fixed or unascertained, actual or contingent.

Company has the meaning given in clause 1.3

Company’s Licensors includes any third party technology providers including Doshii.

Company Websites means www.mytabinfo.com and manage.mytabinfo.com.

Confidential Information means any information in whatever form (including verbal, or recorded on paper or by electronic means) relating to these Terms or the subject matter of these Terms, including but not limited to all, operational and technical information, ideas, methods of operation, concepts, know how, processes and knowledge, but does not include information that is or becomes known or generally available to the public, other than because of a breach of these Terms (in which case it remains confidential).

Consumer has the same meaning as in the Australian Consumer Law.

Dispute means any disagreement or difference arising between you and the Company out of or in relation to these Terms.

Doshii has the meaning given in clause 11.5.1

Evident Major Failure means a significant issue with the product or services provided by the Venue and/or Third Party Provider, including but not limited to:

(a)           the provision of food containing allergens that have not been properly disclosed;

(b)           food that is materially different from how it has been advertised;

(c)            the provision of food that is materially different to how it has been displayed on the Application;

(d)           if the Venue and/or Third Party Provider is closed for business when a customer places an order or collects an order; or

(e)           any other event which the Company, in its reasonable opinion considers to constitute an Evident Major Failure.

Fees and Charges means all fees, charges and amounts payable by the Venue and/or Third Party Provider to the Company under clause 7.

Indirect Loss means any loss of revenue, loss of profit or anticipated profit, loss of business reputation, loss of opportunities, loss of anticipated savings or wasted overheads and any other economic loss or indirect loss, whether or not in the reasonable contemplation of the parties at the time of the downloading of the Application.

Intellectual Property or Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, confidential information and trade secrets and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable including all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights.

Jurisdiction means the jurisdiction and laws of the State of Western Australia.

Liabilities means all liabilities, losses, damages, outgoings, costs and expenses of whatever description.

Licence means the licence granted by the Company to the Venue and/or Third Party Provider under clause 2.

Marketing Communications means direct marketing communications (including by email or SMS) sent by or on behalf of the Company, a Venue and/or any Third Party Provider, provided the Customer has opted-in to receive such communications.

Notice has the meaning given in clause 21 and includes request, direction, consent, notification or other communication.

Party means a party to these Terms and Parties has the corresponding meaning.

Permissible Age means the age in the Jurisdiction at which is lawful to consume or purchase alcohol on premises which are licensed or otherwise permitted to sell or supply alcohol.

Personal Information has the same meaning as defined in the Privacy Act 1988 (Cth).

Premium + Features means optional add-ons to the Venue standard account, such as wireless docket printing and point of sale integration.  When enabled, these features come at an additional charge to the Venue.

Purpose has the meaning in clause 11.3 herein.

Services means the services, information, advertising, and resources provided via the Application including the ability for customers to order and pay for Products from the Venue and/or Third Party Provider.

Stripe means Stripe Payments Australia Pty Ltd (ACN 160 180 343), a PCI Level 1 Service Provider payment platform, whose terms and conditions are contained at www.stripe.com/en-au/legal/ssa.

Third Party Provider means any third party approved by the Company to provide Services in connection with the Application.

Venue Premises means the business premises of the Venue from which it sells Products.

23.2         Interpretation

In these Terms, unless the context otherwise requires:

            23.2.1     the singular includes the plural and vice versa;

            23.2.2     a reference to a clause is to a clause of these Terms;

            23.2.3     a reference to any party or any other document or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns;

            23.2.4     no provision of these Terms will be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms or that provision;

            23.2.5     a reference to any law or legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;

            23.2.6     an expression importing a natural person includes any company, trust, partnership, joint venture, association, corporation, body corporate or governmental agency;

            23.2.7     a reference to a business day means a day when all banks are generally open for business in Western Australia;

            23.2.8     where the day on which any act, matter or thing is to be done under these Terms is not a business day, that act, matter or thing may be done on the next business day;

            23.2.9     where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

            23.2.10  all references to currency are references to Australian dollars.