End user license agreement
1. THIS END USER LICENSE AGREEMENT
Synergy Alliance Solutions Australia Pty Ltd (ABN 11 665 334 663) (“Company”) is the authorised distributor for BIG POS, a point-of-sale system. The Company is authorised to grant the license to end user in Australia.
This End User License Agreement (“Agreement”) is a legal bind agreement made between you, the user of BIG POS, whether personally or a legal entity (“You” or “User”) and us, Company and our affiliated companies (collectively known as “Company”, Us or Synergy), for your use of BIG POS.
You shall read, understood, and agree to be bound by all of the terms of this Agreement before installing, downloading and/ or using BIG POS. If You do not agree with all or any part of this Agreement and/or You are not able to be bound by this Agreement for any reason whatsoever, you may inform the Company to further negotiate on the terms, if You and the Company are not able to reach a mutual agreement, you are expressly prohibited from downloading, installing and using BIG POS and You must discontinue use and uninstall BIG POS immediately.
This Agreement shall include this End User License Agreement, the Quotation, Sales Order Form or any supplemented thereto. The Company reserved the Company’s rights to at any time or from time to time, update, amend, modify, delete and/or insert any terms into this Agreement at the Company sole discretion. You are advised from time to time to read and understand this Agreement prior to any renewal. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised terms under this Agreement by Your renewal of the license to use BIG POS after the date such revised Agreement are published.
2. LICENSE TO USE
The Company shall retain ownership of all rights (including without limitation all intellectual property rights), title to and interest of BIG POS, information in BIG POS, services and any products contained in BIG POS whether in its original form or as modified. You are granted a non-exclusive limited license to use BIG POS ((limited to installation on 1 Hardware (as defined herein)), information and services therein for purposes as may be agreed by the Company from time to time (“License”). This License shall not amount to a transfer of title and/or ownership of BIG POS. You shall not without first obtained our written consent:
i. assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to BIG POS to any other party;
ii. modify or copy BIG POS in any way;
iii. use BIG POS for any public display (commercial or non-commercial);
iv. decompile, reverse engineer, reverse assemble or reverse compile or cause any third party to reverse decompile, reverse engineer, reverse assemble or reverse compile BIG POS therein for any reason whatsoever;
v. remove any copyright, trademark, or other proprietary notations from BIG POS;
vi. engage in any other conduct that violates the copyright, applicable laws in Malaysia pertaining and in relation to intellectual property; and/or
vii. use BIG POS in any way and/or purposes other than the purposes the permitted by the Company.
In the event you have breached any of the above or any terms herein contained, whether by act or omission, the License is immediately revoke and the Company have the right to immediately with or without notice suspend or terminate Your License and terminate Your account and refuse any and all current or future use of BIG POS (or any part thereof) without prejudice the rights of the Company to claim any damages from You.
In consideration of You from time to time paying the sum as stated in the Quotation (“Subscription Fee”) during the Term (as defined herein), the Company shall grant you the License pursuant to this Agreement and You hereby acknowledge and agree that the License granted to You is non-exclusive and the Company shall at its own liberty provide the License to any other person.
The Company shall be entitled to increase the Subscription Fees in order to take into account any increase in the Company’s operating costs in respect of the BIG POS including any increase in the cost of labour, material or transport.
You shall pay the Subscription Fees in full within seven (7) days from the date of the invoice.
In the event of termination of this Agreement either by the Company or you, all monies owing to the Company shall become due and payable immediately.
In the event You are able to achieve total aggregate transaction value of Australian Dollar Ten Thousand (10,000.00 AU$) and above (“Target Transaction Value”) via the BIG POS in a month, the Subscription Fees for that particular month shall be waived by the Company.
For the avoidance of doubt, to determine the total transaction value for a particular month, the transaction value shall be calculated from the first day of the month till the last day of the month and there shall be no carry forward of the transaction value to the next month.
The period for the subscription of the BIG POS System shall be for a period of not less than the minimum period as stated in the Quotation (“Term”) which shall commence on the BIG POS terminal installation date (“Commencement Date”).
Unless otherwise stated, the Subscription Fees and/or any payment or remittance to be made to the Company shall be excluding any relevant taxes and shall be free from any restriction and clear of any (except to the extent required by law) without any deduction or withholding of account of any direct and/or indirect tax, levy, commission, charges or otherwise. You shall be responsible for all applicable taxes from subscription of the License and/or any goods and services offered by the Company.
4. PRODUCT INFORMATION
BIG POS displayed, description and offered provided is subject to availability and
confirmation from the Company. The Company cannot guarantee that BIG POS is available at the time and function as You expected.
5. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise expressly indicated, You shall assume that BIG POS and everything contained in BIG POS including but not limited all source code, databases, functionality, software, computer programme, website designs, audio, video, text, photographs, graphics and any other whatsoever contained in BIG POS (“Content”) You read, see and contained in BIG POS is the Company proprietary property and is copyrighted or otherwise protected and all trademarks, service marks, and logos contained in BIG POS (“Mark”) (if any) are owned or controlled by the Company or licensed to the Company. BIG POS, Content and Marks are confidential and all the Intellectual Property Rights therein contained is solely owned by the Company.
Except as expressly written consent from the Company is first obtained, no all or any part of BIG POS, services, contents, information, material and/or marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for purpose whatsoever, without the Company express prior written permission.
6. USER REPRESENTATIONS
By using BIG POS, You represent and warrant that:
i. all information provided by you are true, accurate, current, and complete and You will maintain the accuracy of such information and from time to time immediately update such registration information as necessary;
ii. You shall ensure that BIG POS are used in a proper manner by yourself or competent and trained employees only or by persons under their supervision and authorisation;
iii. You shall at all time be solely responsible in providing relevant equipment required to use BIG POS and at Your own obligation to ensure the said relevant equipment is free from any viruses and all other programs that may cause damages to BIG POS;
iv. You own or you have the rights to submit all information and content provided by you and the same is not in violating any other party’s rights;
v. You have the legal capacity to accept this Agreement and shall at all time comply with this Agreement;
vi. You will not use BIG POS for any illegal or unauthorized purpose;
vii. In the event you are required to register an account with us, you shall keep your account and password confidential and will be responsible for all use of your account and password;
viii. Your use of BIG POS will not violate any applicable law and/or regulation and not breach any agreement and/or undertaking with any other party.
In the event any information provided by you is untrue, inaccurate, not current, or incomplete or became untrue, inaccurate, not current, or incomplete, we have the right to immediately with or without notice suspend or terminate your use of BIG POS and terminate your account and refuse any and all current or future use of BIG POS (or any part thereof).
7. MANAGEMENT OF BIG POS
The Company reserve its rights, but not obligated to:
i. at its sole discretion to control accessibility, hours of use, features on BIG POS, and any other services to be provide and/or information contained in BIG POS;
ii. at the Company own discretion, upgrade, maintenance, and management of BIG POS, and provides consultation and technical support services through customer service hotline, online customer service (if any);
iii. monitor BIG POS for any violations of this Agreement and/or any applicable law or regulation;
iv. at its sole discretion, take any appropriate legal action against any user who, violates the law or this Agreement and/or any applicable law, including without limitation, reporting such user to law enforcement authorities and/or to claim any damages and/or any legal remedies from the user;
v. at its sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any user account registered with the Company and/or contributions or any portion thereof;
vi. at its sole discretion and without limitation, notice, or liability, to remove any user from using BIG POS or otherwise disable any services, files and content as the Company thinks fit;
vii. otherwise manage BIG POS in a manner designed to protect the Company rights and property and to facilitate the proper functioning of BIG POS.
You agree and acknowledge that the Company does not warrant and nothing in this Agreement shall constitute warranty of the Company that BIG POS is free from any errors, bugs and/or defects. You further acknowledge and agree that it is possible that on occasion BIG POS may be unavailable to permit maintenance or other development activity to take place, or in any event that may interrupt BIG POS and the Company shall not be liable nor in any way be held liable for any damages whether direct or indirectly suffered by You and the Company shall not be deemed to be in breach for any delay or failure or for any consequence of delay or failure in the performance under this Agreement.
8. USER’S CONTENT
In the event You have breached any terms and conditions herein contained, the Company reserve its rights to, inter alia, terminate, suspend or prohibit your License therein at the Company’s sole discretion.
In the event the License is terminated pursuant to the terms herein, the Company shall have the rights and at its own discretion to delete any of your data, file and/or any information submitted to the Company and/or extracted from BIG POS with or without any prior notice to the any user.
9. THIRD-PARTY’S WEBSITES AND CONTENT
BIG POS may contain links to other websites other than the website own by the Company (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to, stored, hosted by Third-Party Websites or originating from third parties (“Third-Party Content”).
The Company shall not be in any way liable or responsible for such Third-Party Websites and Third-Party Content accessed through BIG POS or posted on, available through, or installed from BIG POS and the Company has not investigated, monitored, or checked for accuracy, appropriateness, or completeness such Third-Party Websites and Third-Party Content.
Unless otherwise stated in BIG POS, the Company does not approve or endorse any Third Party Websites and/or Third-Party Content even if the same is included, link to or permitted the use in BIG POS. If you decide to leave BIG POS and access the Third-Party Websites or to use or install any Third-Party Content, You do so at Your own risk, and the Company shall not be held liable for any damages suffered by You whether directly or indirectly.
You are advised to review the terms and policies, including but not limited to the privacy and data gathering practices, maintained by or governing the Third-Party Websites and/or Third-Party Content to which you navigate from BIG POS or relating to any applications You use or install from the Third-Party Websites.
You hereby agree and acknowledge that the Company do not endorse the products or services offered on Third-Party Websites and you shall hold the Company harmless from any harm caused by Your purchase or usage of such Third-Party Websites and/or Third-Party Content. Additionally, You shall hold the Company harmless from any losses sustained by You or harm caused to You relating to or resulting in any way whether directly or indirectly from any Third-Party Websites and/or Third-Party Content.
In the event the Company allows any advertisers to display their advertisements and other information in BIG POS, such advertiser shall take full responsibility for any advertisements the advertiser place in BIG POS or products sold through those advertisements.
The Company merely provide a space/ platform to place such advertisements, and the Company have no other relationship with advertisers and shall not be held responsible for the advertisement and/or content therein place by the advertiser. You shall not hold the Company liable for any damages and/or losses sustained by You from purchasing any product and/or services advertised by the advertiser.
11. USER DATA
The Company may with notice or without notice to You maintain certain data that You transmit or extracted from BIG POS in the course of Your use of BIG POS (“Data”) including but not limited to Your personal information as well as any data relating to Your use of BIG POS, for the purpose of managing BIG POS. The Company will conduct regular routine backups of data You store with/ transmit to BIG POS or the Company, however, You are solely responsible for all data that You transmit, store or that relates to any activity You have undertaken using BIG POS.
You hereby acknowledge and consent that the Company shall have the rights to:
i. use the Data and information about You and the manner You use BIG POS to develop and improve BIG POS and/or the Company’s other services and products to you and assist partnerships to improve or develop new services and features to You and generate anonymised and aggregated statistical and analytical data (collectively, “Analytical Data”);
ii. use the Analytical Data for the Company’s own internal research and development purposes;
iii. provide the report of the Analytical Data to any relevant party including but notlimited to any advertiser and/or service provider;
iv. provide Data to any third party service provider for the purposes to support BIG POS.
You hereby agree and acknowledge that the Company shall not be liable to You or in any way be held liable for any loss or corruption of any such data, and You hereby waive any right of action against the Company arising from any such loss or corruption of such data.
The Company may engage any third party service provider, located in Australia or outside of Australia, to store all the user’s information, data, contents and any others content in relation to BIG POS. You hereby agree that the Company shall at its own discretion and liberty, without prior notice to you, transfer such information, data, contents and any others content in relation to BIG POS to the third party service provider either in Australia or located overseas. The Company rights under this clause 11 shall survive termination or expiry of your usage of BIG POS.
12. PROHIBITED ACTIVITIES
You may not access or use BIG POS for any purpose other than purposes for which the Company made BIG POS available. BIG POS may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by the Company. You, as a licensee of BIG POS, hereby agree to use BIG POS for the authorised purposes and in manner approve by the Company and further agree not to use BIG POS for purposes other than those approved by the Company including but not limited to the following:-
i. by any way, directly or indirectly, extract, retrieve, modify and/or copy any information, data or other content of or from BIG POS;
ii. make any unauthorized use of BIG POS, including but not limited to collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretense;
iii. by any way circumvent, disable, or otherwise interfere with security and/or security related features of BIG POS;
iv. upload or transmit, attempt to upload or to transmit viruses or caused to upload or transmit any virus, program, process, advertisement, communication, or other item to BIG POS or related servers and networks;
v. not to interferes whether directly or indirectly with any other user uninterrupted use and enjoyment of BIG POS or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of BIG POS;
vi. trick, defraud, or mislead the Company and/or other users, especially in any attempt to obtain any sensitive account information including but not limited other user passwords, information, accounts details;
vii. impersonate or attempt to impersonate another user or person or use the username of another user;
viii. make improper use of the Company support services or submit false reports of abuse or misconduct;
ix. interfere with, disrupt, create an undue burden or caused an undue burden onto the server, the networks and/or services connected to BIG POS;
x. decipher, decompile, disassemble, or reverse engineer or attempt to decipher, decompile, disassemble, or reverse engineer BIG POS and/or any of the software of the Company;
xi. delete the copyright or other proprietary rights notice from any of the Company’s or other user’s Content;
xii. disparage, tarnish, or otherwise, in the Company’s opinion, harm or may have any adverse effect to the Company and/or BIG POS;
xiii. use BIG POS for purposes other than those approved by us and/or in a manner inconsistent with this Agreement and/or any applicable laws or regulations.
13. TERM AND TERMINATION
This Agreement shall at times remain in full force and effect while You use and/or continue to use BIG POS, whether or not registered to be a member or continue to maintain as a member of the Company, whichever applicable.
Without Prejudice to any other rights of the Company, the Company reserves the right to, in company’s sole discretion and without notice or liability, deny access to and use of BIG POS and the company other services, to any person for any reason or for no reason at all, including without limitation for failure to pay the Subscription Fees upon the expiry of the Terms, breach of any representation, warranty or covenant contained in this Agreement, or of any applicable law or regulation, conducted or attempt to conduct any act, which in the Company sole discretion thinks that, it may have any adverse effect to the Company and/or BIG POS and company may terminate your License and the company services, delete Your profile and any content or information that You have stored with the Company at any time, without warning, in company’s sole discretion.
Any provisions of this Agreement including but not limited to Your obligation, undertaking, representation, warranties and/or covenant, that, in order to fulfil the purposes of such provisions, shall survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfil such purposes.
In the event the Company at its own discretion terminates or suspends Your account and/or terminate your license to use BIG POS for any pursuant to the terms herein, You are then prohibited from re-installing BIG POS, re-registering and/or creating a new account under either under Your own name, a fake or borrowed name, or the name of any third party. The Company reserves its right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Upon termination of this Agreement, Your shall forthwith uninstall BIG POS from all Your devices destroy any downloaded materials in Your possession whether in electronic or printed format and stop using BIG POS.
If this Agreement is terminated by You prior to the expiration of the Term, You are deemed to be in breach of this Agreement and shall be liable to pay the Company the total of the Subscription Fees and Rental Fees (whichever applicable) from the termination date up to the expiry of the Term.
14. COPYRIGHT INFRINGEMENT
In the event You believe that Your Intellectual Property Rights has been infringed or otherwise violated, kindly report to the Company and submit together with the following supporting documents and/or information:
i. A physical or electronic signature of a person authorized to act on Your behalf with an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information and/or supporting documentation reasonably sufficient to permit to the Company, to identify the said infringement;
iv. Your information to permit the Company, to contact the complaining party, such as address, telephone number and, if available, e-mail address; and
v. A statement that the You have a good faith belief that use of the content, and/or material in a manner complained of is not authorized by the copyright owner, its agent, or the law.
Upon the Company received report regarding to Intellectual Property Rights infringement, the Company shall commence its own investigation on the said infringement and thereafter the Company shall at its own discretion to delete the Content which is reported for any infringement of Intellectual Property Rights submit/ uploaded by the user to BIG POS.
To the extent permissible by law, the Company shall not in anyway be held responsible for and liable for any loss or damage suffered by You and/or any party related to You, arising from the use of BIG POS and/or the use of information contained therein including (but not limited to) the following:
i. any direct, indirect, incidental, consequential, or punitive damages (including without limitation to loss of revenue, loss of profits, loss of business opportunity or loss of data) arising out of or relating to these terms, or access to or use of BIG POS, content and/or purchase You made therein;
ii. any Content or submissions to BIG POS, where any user of the website uploaded which has infringed intellectual property of a third party AND the prior approval for the usage of the said intellectual property has not been obtained. The Company shall not be held liable for any hyper-linking to other website;
iii. any access, use or inability to access or use BIG POS, use of or reliance on any contents of BIG POS;
iv. any loss, missing and/or corruption of Your information, file and/or data store with the Company; and/or
v. any system, server or connection failure, error, omission, interruption, interception, delay in operation or transmission, or computer virus.
The Company makes no warranty whatsoever to You in respect of BIG POS and/or information contents contained in BIG POS. The Company also does not warrant that BIG POS will be free from errors and/or defects or that it will meet all Your requirements.
You shall at all times fully indemnify the Company or keep the Company indemnified from and against any and all claims, proceedings, expenses, losses, damages and/or liabilities (as to the amount of which the certificate of the Company shall, in the absence of manifest error, be conclusive and binding on You) which the Company may incur or suffer arising from Your breach of this Agreement, Your misuse of BIG POS (whether intentionally or unintentionally).
You shall not, without the Company prior written approval, disclose, reveal or cause to disclose or reveal any of the Confidential Information (as defined herein) and any information contained in BIG POS to any other party. You hereby warrant and covenant that You will take all reasonable steps to protect the Confidential Information and to use reasonable means to defense disclosure to any government authority. Your confidentiality and non-disclosure obligations shall survive the expiry or termination of this Agreement and/or BIG POS (whichever is the case).
“Confidential Information” means information including but not limited to any of the Company’s information relating to the business, affairs, finances, trade secrets, technologies, methodologies, customers and suppliers of the parties that is by its nature confidential but does not include:
i. information already known to the receiving party at the time of disclosure by the other party; or
ii. information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality.
The Company confirms that English shall be the language of this Agreement, and/or in BIG POS. This chosen language shall prevail in the event of differences in meaning over the version of this Agreement and/or in BIG POS in any other language.
19. GOVERNING LAW
This Agreement and Your use of BIG POS shall be governed by and construed in accordance with the laws of Australian and its validity, construction and performance shall be interpreted in accordance with the laws of Malaysia notwithstanding any conflicts of law principles. The parties hereby submit to the exclusive jurisdiction of the courts of Australia.
If any of the provision under this Agreement is illegal, prohibited, unenforceable or hereinafter illegal, prohibited, unenforceable or found by a court of competent jurisdiction to be void or unenforceable, in whole or in part, such provisions shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall survive and remain in full force and effect. Notwithstanding the foregoing, the Company may thereupon at its sole discretion amend, vary and/or modify such provision to comply with the applicable law as the Company deems fit.
Any typographical errors, inaccuracies, or omissions that may relate to this Agreement and/or BIG POS, including descriptions, pricing, availability, and various other information. The Company shall reserve the right to correct any errors, inaccuracies, or omissions and to change, modify and/or update the information in BIG POS at any time, without prior notice.
22. KNOWLEDGE OR ACQUIESCENCE BY THE COMPANY
Knowledge or acquiescence by the Company of any of Your breach of any of the terms conditions under this Agreement and/or failure to exercise, nor delay in exercising, on the part of the Company any of its right under this Agreement shall operate as a waiver to the exercise of such right or be deemed to be a waiver of such conditions or covenants or any of part thereof. Notwithstanding such knowledge or acquiescence or failure to exercise or delay in exercising of the Company rights, You shall continue comply and perform the terms and conditions herein strictly. The rights and remedies of the Company under this Agreement are cumulative and are in addition to any rights and remedies provided by law.
No rights of the Company or any part thereof shall be waived or varied unless by and express waiver or variation in writing.
You shall not by any way, sell, transfer and/or assign any of Your rights or obligation arising from this Agreement, Your account hold with us, license to use BIG POS to a third party or cause a third party to succeed such right or obligation, without the prior written consent of the Company.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to the address listed in the contact information below. Any notices given to You shall be given to the email address You provided during the registration process, or such any amendment thereof which has been furnished to and registered with the Company. Notice shall be deemed to be served to You upon twenty-four (24) hours after the email is sent, provided always that the sending party is not notified that the email address is invalid.
Contact details : 322 King William St, Adelaide SA 5000
Email address : [email protected]
Phone No. : 03 9021 2299
Visiting the Company’s website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and You hereby agree that all agreements, notices, disclosures, and other communications provided by the Company to You electronically, via email and/or notice posted on the Company’s website, shall satisfy any legal requirement for such communication to be in writing. You hereby further waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
25. INDEPENDENT LEGAL ADVICE
You hereby confirm, represents and warrants to the Company You have sought, obtained and relied upon its own independent legal advice pertaining to this Agreement and have not relied upon any representation, statement or advice from the Company and/or agent of the Company.
26. SUCCESSORS BOUND
This Agreement shall be binding upon and enure for the benefit of the successors in title, transferees and assigns of the Company and upon Your successors in title, permitted assignees or upon the Your heirs and personal representatives.
27. HARDWARE FOR BIG POS
You may purchase the hardware/ equipment (“Hardware”) from the Company for the use of BIG POS System at the price mutually agreed upon between You and the Company and subject to the terms herein:
i. Use of Hardware
The Hardware will conform with specifications and configuration as provided by the Company and shall only be used in accordance with the instruction provided by the Company. Save and except written confirmation provided by the Company, the Company shall not warrant the use of the Hardware for any other purposes. No substitution of or modification of the Hardware shall be made by You without the prior written consent of the Company.
ii. Operating Manual
Subject to availability, the Company will provide you with a copy of the operating manual for the use of the Hardware. The Company will provide free updates of the operating manual to You from time to time, if any.
iii. Site Preparation
You shall prepare the location/ site (“Site”) in accordance with the requirements specify by the Company for the placement of the Hardware.
The Company shall have the rights to refuse to deliver the Hardware in the event the Site has not been prepared in accordance with the Company’s directions.
You shall fully indemnify the Company for direct or indirect costs arising out of any delay in delivering the Hardware caused by You and/or your employees, servants, sub-contractors and/or agents.
iv. Changes or Cancellation of Hardware
Cancellation or changes of an order shall only be made prior to the Company process the order for delivery. In the event the Company accepted your request for cancellation, you will receive a refund in the amount you paid for the Hardware less any processing fees incurred. For changes of an order, in the event the new order prices are higher than the existing order, You shall immediately top up the difference and the Company will only process your changes request after the difference has been fully paid.
Upon order reaches the delivery processing stage, cancellations or changes are no longer possible. Hence, you are advisable to contact the for any cancellations or changes right after the order.
There shall be no exchange of Hardware after the order made.
vi. Warranty – Hardware
The warranty period for the Hardware commences on the Commencement Date for a period of as stated in the Quotation (“Warranty Period”) and subject to the exclusions described in (“Warranty”)
vii. Warranty – Coverage
At the discretion of the Company, free replacement parts as deemed necessary by the Company and free reinstallation of the BIG POS System or repair the defects to the Hardware due to faulty workmanship and materials.
The following are expressly excluded from the Warranty:
a. Damages caused by lightning, flood, fire, act of God or any other cause beyond the Company’s control;
b. Defects or damages that arise from You or a third party’s negligence;
c. Modifications of any type to the Hardware for any reason;
d. Misuse; improper use; abuse; incorrect operation of the Hardware;
e. Lack of the proper routine or preventive maintenance of the Hardware;
f. Unauthorized repair by a third party not appointed by Hardware;
g. Damages due to the usage of a third party’s filter(s), part(s) or accessories;
h. Damages due to any relocation, removal or reinstallation of the Terminal not authorized by Hardware;
i. Normal wear and tear.
You shall be liable and shall indemnify the Company for any damage to the Hardware as a result of any act contemplated under above paragraphs (a)-(i) hereof.
The Company reserves the right to repair or replace the Hardware or any part thereof at its sole discretion if there are defects to the Hardware during the Warranty Period. Such right includes any decisions to change the filters of the Hardware. Upon any replacement of the Hardware or any part thereof (“the Old Hardware”), the Old Hardware shall remain the property of the Company.
viii. Warranty Claim
Subject to the terms of this Agreement, in the event the You wish to claim for warranty, You are subject to the following terms and conditions:
a. You shall contact the Company immediately upon occurrence of such faulty and to provide supporting documentation such as photos and/or video indicating and illustrating the issue;
b. You shall provide proof of rental/ purchase of the Hardware;
c. Warranty claimable is subject to the Company’s inspection of the Hardware;
d. Freight charges shall be borne by You whether or not the Hardware is covered under warranty;
e. In the event the You decided not to repair the Hardware, You shall be charged for inspection fees, quotation fees and any freight charges included;
f. all relevant charges shall be paid within 60 days from the Company notify You failing which the Company reserved its right to sell the Hardware to any 3rd party to cover the cost;
g. The Company shall not be held liable for any damages to the Hardware due to the courier services.
28. PAYMENT PROCESSING SERVICES AND DEVICES
i. Third Party Payment Processing Services
You hereby acknowledges and agrees that the Company engage and use a third party, namely Till Payments, which is a third-party payment processing services (“Payment Processing Services”) in conjunction with the BIG POS (“Third Party Service Provider”). You hereby further agree that:
a. the Company is not liable and responsible for any act or omission of the Third Party Service Provider and the Company shall not be liable for any losses and/or damage suffered by You arising from any act or omission of the Third Party Service Provider;
b. to read, understand and be bound by the terms and conditions and/or privacy policies applicable to the Third Party Provider;
c. The Third Party Service Provider will accept payments on the behalf of You, deduct any Subscriptions Fees, Payment Device Rental Fees and other debts that are due and payable by You, and remit the remaining funds to the bank account as mutually agree by you;
d. The Company shall have its own rights and discretion to receive rebates or commissions from the Third Party Service Provider in relation to transactions processed through the Your account with the Third Party Service Provider; and
e. In the event the Company incurs any fees relating to any third party transactions using the BIG POS, the Company shall on-charge them to you and you shall be liable for such payments and to reimburse the Company accordingly.
ii. Monthly Payment Device Fees
For the usage of the payment processing service provided by the Third Party Service, You shall be charged for a monthly fees (“Monthly Payment Device Rental Fees”) as stated in the Quotation during the Term and payable to the Company.
The Company will lease a payment device to you for the use of the Payment Processing Services (“Payment Device”). The Payment Device leased to You shall remain the property of the Company. You shall not, and under no circumstances attempt to, dismantle, repair, undertake maintenance work or replace any parts of the Payment Device or procure a third party other than the Company to do the same. The Company shall not be liable for any losses or damages incurred by You in the above mentioned events.
iii. In the event You are able to achieve total aggregate transaction value of Australian Dollar Ten Thousand (10,000.00 AU$) and above (“Target Transaction Value”) via the BIG POS in a month, the Payment Device Rental Fees for that particular month shall be waived by the Company. For the avoidance of doubt, to determine the total transaction value for a particular month, the transaction value shall be calculated from the first day of the month till the last day of the month and there shall be no carry forward of the transaction value to the next month.
iv. Return of Payment Device
Upon termination or the expiry of the Term, You shall Return the Payment Device to the Company upon the following terms:
a. Return the Payment Device in the same state and condition as You take possession of the Payment Device;
b. The Payment Device shall be return to the location designated by the Company;
c. In the event the Payment Device s not returned within seven (7) days to the Company pursuant to the terms herein, The Company shall have the rights to charge You the cost of the Payment Device. Alternatively, the Company shall have the rights to retrieve the Payment Device from You and You authorise us to access Your premises for such purpose at Your cost and expenses.