- 1. 1. Purpose of This Document
- (a) This Agreement sets out the terms applicable between GuestCheck and Customer in relation to Customer's access to and use of the Services.
- (b) This document constitutes the entire agreement between the parties in relation to its subject matter. This Agreement replaces and supplants any previous agreement between GuestCheck and Customer with respect to Customer's access to and use of the Services.
- 2. 2. Term
This Agreement commences on the Commencement Date and remains in force until termination by either party in accordance with this Agreement.
- 3. Services
- 3.1 Provision of Services
Subject to Customer complying with this Agreement and only upon Customer paying any Services Fee in accordance with this Agreement, GuestCheck will provide the Services to Customer for the Term.
- 3.2 Changes to Services
GuestCheck may from time to time make amendments to the Services, for example in order to comply with law or government requirements or in order to improve the Services..
- 3.3 Availability of Free Services
GuestCheck does not guarantee, represent or warrant that any free of charge Services will be available at any given time.
- 3.4 Availability of paid Services
Although GuestCheck will use commercially reasonable efforts to ensure that paid for Services are available 24 hours a day, 7 days per week, such Services may become unavailable from time to time for scheduled maintenance, emergency maintenance, urgent measures to manage performance, or as a result of events beyond GuestCheck's reasonable control including:
- (a) failure or default by any of GuestCheck's third party service providers, including cloud providers;
- (b) abnormal usage volumes;
- (c) any breach of this Agreement by Customer or the negligence of Customer or its Personnel; or
- (d) failure of Internet communications or any telecommunications network.
- 4. Customer Obligations
- 4.1 General Obligations
Customer must (and must ensure that each of its Personnel will):
- (a) co-operate with GuestCheck in relation to, and take all reasonable steps to facilitate, the provision of the Services by GuestCheck;
- (b) comply with all reasonable directions in relation to the Services (including in relation to their use) issued by GuestCheck; and
- (c) display the text, signage, notices, table cards and other materials at each Venue in accordance with GuestCheck's directions.
- 4.2 Acceptable Use of the Services
Customer must (and must ensure that each of its Personnel will):
- (a) only use the Services at the Venues;
- (b) not use the Services except as expressly permitted by this Agreement;
- (c) comply with all relevant Legal Requirements in relation to its use of the Services;
- (d) not do anything which could interfere with the provision of the Services by GuestCheck to other customers;
- (e) not engage in conduct or activities which attempt to manipulate or bypass any limitations or security measures on the Services;
- (f) promptly notify GuestCheck in writing of any known or suspected security issue in relation to the Services;
- (g) not do (or omit to do) anything that may jeopardise the security of the Services;
- (h) promptly notify GuestCheck in writing of any allegation or claim of which Customer becomes aware that the Services or their use infringes the Intellectual Property Rights of any person and make no admission in relation to the allegation or claim without GuestCheck's prior written consent; and
- (i) not challenge the validity or ownership of the Intellectual Property Rights relating to the Services by GuestCheck or its licensors.
- 4.3 Changes to Venues
The parties may agree in writing to add or remove venues from the list of Venues, and the definition of Venues will be deemed amended accordingly.As a consequence, the parties may also agree in writing to vary the Services Fee.
- 5. Privacy
- 5.1 Compliance with Privacy Laws
The parties will, in performing their respective obligations under this Agreement and using any Personal Information obtained in connection with this Agreement, comply with all applicable Privacy Laws.
- 5.2 Data Security
GuestCheck will take commercially reasonable steps to protect Personal Information to which GuestCheck has access in connection with this Agreement against unauthorised access, use, modification or disclosure.
- 5.3 Provision and deletion of Data by GuestCheck
- (a) permanently delete data collected by it via the Services, including Personal Information, in order for it to comply with all applicable Legal Requirements; and
- (b) provide available data, including Personal Information, that has been collected by GuestCheck via the Services in relation to Venues and patrons of the Venues to:
- (i) Customer upon written request by Customer as reasonably required for Customer to comply with any Legal Requirement and in doing so GuestCheck may, at the request of Customer, provide such data directly to the requisitioning third party (for example the government) for the purpose of assisting Customer in satisfying that Legal Requirement; and
- (ii) a third party where disclosure by GuestCheck is required or authorised under any Legal Requirement.
- 5.4 Privacy Indemnity by GuestCheck
If and for only so long as the Services provided by GuestCheck to Customer under this Agreement include the offering of "Privacy Protect", GuestCheck will indemnify, defend, and hold Customer harmless from and against any loss or damage to the extent arising directly from a breach by GuestCheck of clause 5.2.This obligation is conditional upon:
- (a) Customer providing GuestCheck with timely notice of any claim or cause of action upon which Customer intends to base a claim of indemnification;
- (b) Customer providing reasonable assistance and cooperation to enable GuestCheck to defend the action or claim; and
- (c) Customer allowing GuestCheck to control the defence and all related settlement negotiations.
- 5.5 Privacy Indemnity by Customer
As part of the Services, GuestCheck may provide Customer with data under clause 5.3.In that case, Customer will indemnify, defend, and hold GuestCheck harmless from and against any loss or damage to the extent arising directly from the collection, handling, use or disclosure of that data by Customer, and from any breach by Customer of clause 5.1.This obligation is conditional upon:
- (a) GuestCheck providing Customer with timely notice of any claim or cause of action upon which GuestCheck intends to base a claim of indemnification;
- (b) GuestCheck providing reasonable assistance and cooperation to enable Customer to defend the action or claim; and
- (c) GuestCheck allowing Customer to control the defence and all related settlement negotiations.
- 5.6 Survival
The provisions of this clause 5 will survive the termination or expiry of this Agreement.
- 6. Payments
- 6.1 Services Fee
- (a) A Services Fee will apply in relation to any use of the Services in relation to the Venues in excess of the use allowed (without fee) under the Fair Use Policy for the Basic QR Plan.GuestCheck will use reasonable endeavours to notify Customer when Customer's use of the Services in relation to the Venues reaches the limit of that Fair Use Policy.If Customer does not at that point promptly confirm that it wishes to proceed with the Services on a paying basis, GuestCheck may terminate this Agreement immediately by written notice to Customer.
- (b) GuestCheck will invoice Customer for the Services Fee at least monthly, and may render invoices more frequently (for example, weekly).
- (c) If the Customer has provided GuestCheck with its Account details, GuestCheck will debit the Customer's Account for the Services Fee upon rendering an invoice to the Customer in accordance with this Agreement.Otherwise, the Customer must pay the Services Fee within 14 days of receiving an invoice from GuestCheck in accordance with this Agreement.
- (d) GuestCheck may vary the Services Fee at any time on giving 14 days notice to Customer.
- 6.2 Interest on overdue amounts
GuestCheck may charge default interest at the rate provided for by section 2 of the Penalty Interest Rates Act 1983 (Vic), plus 2% (compounding daily) on any overdue amounts from the date the payment was due until the date of payment in full.
- 6.3 GST
- (a) Terms defined in the GST Act have the same meaning when used in this clause unless expressly stated otherwise.
- (b) Except where this Agreement specifies otherwise, an amount payable by a party under this Agreement in respect of a taxable supply by the other party represents the value of the supply (Supply Amount).The recipient of the supply must, in addition to the Supply Amount and at the same time, pay to the supplier the amount of GST imposed by the GST Act payable in respect of the supply.For the avoidance of doubt, the GST amount payable under this clause will be calculated by multiplying the Supply Amount by the prevailing GST rate.
- (c) If at any time an adjustment is made between the supplier or any other payer of GST and the relevant taxing authority on account of GST on any supply made or other matter or thing done under or in connection with this Agreement by the supplier, a corresponding adjustment must be made as between the supplier and the recipient and any payment required to give effect to the adjustment must be made.The supplier must provide to the recipient an adjustment note relating to the adjustment within 7 days.
- (d) Each party warrants to the other party that if legally required, it is registered for GST at the time of entering this Agreement and will promptly notify the other party if it ceases to be so registered.
- 7. Intellectual Property Rights
- 7.1 Ownership
As between the parties, all Intellectual Property Rights in relation to the Services and any associated documents and materials (including any modifications to any of them) are owned by GuestCheck.
- 7.2 Feedback
In the event that Customer or any of its Personnel provides GuestCheck with any feedback, suggestion or comment regarding the Services, Customer grants (and must ensure any of its relevant Personnel grant) to GuestCheck a worldwide, irrevocable, perpetual, sub-licensable, transferable, royalty-free licence to use any such feedback, suggestion or comment (including any Intellectual Property Rights in it) for any purpose without any obligation or compensation to Customer or any of its Personnel.
- 8. Confidentiality
- 8.1 Confidential Information
The parties acknowledge that one may provide the other with Confidential Information for the purposes of this Agreement. Each party agrees to take reasonable steps to keep the other's Confidential Information secure from unauthorised disclosure. Each party will treat the terms of this Agreement as the Confidential Information of the other party.
- 8.2 Use of Confidential Information
A party will not, without the prior written approval of the other party, disclose, copy or use the other party’s Confidential Information, other than to:
- (a) the extent required to exercise its rights or perform its obligations under this Agreement;
- (b) its Personnel as necessary for the purposes of the party exercising its rights or performing its obligations under this Agreement;
- (c) comply with any Legal Requirements; or
- (d) obtain professional advice in relation to matters arising under or in connection with this Agreement.
- 8.3 Compliance by Personnel
Each party must procure compliance by each of its Personnel to whom the other party's Confidential Information is disclosed, with the obligations under this clause 8 as if this clause 8 applied directly to them.
- 8.4 Return of Confidential Information
Upon termination or expiry of this Agreement, each party must (at that party's option) promptly either return or to the extent practical, destroy or otherwise make permanently unavailable the other party's Confidential Information in its possession or control.
- 8.5 Survival
The provisions of this clause 8 will survive the termination or expiry of this Agreement.
- 9. Warranty
- 9.1 General
Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement which, when executed, will constitute binding obligations on that party.
- 9.2 Disclaimer
GuestCheck does not warrant that the operation of the Services will be uninterrupted, always accessible, accurate or error-free or that GuestCheck will correct all errors or defects in the Services or any related documentation or materials.
- 10. Limit on liability
- 10.1 Competition and Consumer Act
Nothing in this Agreement restricts, excludes or modifies any consumer rights under any statute including the Competition and Consumer Act 2010 (Cth) where to do so would breach that Act.
- 10.2 Exclusion of liability
GuestCheck will not have any liability to any party (including Customer) because of any act or omission of GuestCheck or its Personnel, where such act or omission is specifically required by a direction to GuestCheck or its Personnel from a Regulatory Body purporting to exercise its functions or powers or is required under any Legal Requirement.
- 10.3 Consequential Loss
To the full extent permitted by law, neither party is liable to the other party for any Consequential Loss arising out of or in relation to this Agreement.
- 10.4 Conditions, warranties and representations excluded
Except for conditions, warranties and representations expressly stated in this Agreement, to the extent permitted by law each party excludes all conditions, warranties and representations under or in connection with this Agreement and agrees that it does not rely on any representation by the other party that is not expressly stated in this Agreement.
- 10.5 Limitation of liability
- (a) Each party's total aggregate liability in respect of all Claims or Losses arising under or in connection with this Agreement (including in negligence but not including Customer's liability to pay any fee or charge to GuestCheck under this Agreement) will not exceed:
- (i) the total fees paid by Customer to GuestCheck under this Agreement in the 12 months preceding the events giving rise to the relevant Claim(s) or Loss(es); or
- (ii) $1,000,
whichever amount is higher.
- (b) Each party's liability under or in connection with this Agreement (including in negligence) will be reduced by the extent, if any, to which the other party or its Personnel contributed to the relevant Loss.
- (c) Each party must take reasonable steps to mitigate any Loss it suffers as a result of a breach by the other party of this Agreement or the negligence of the other party or the other party's Personnel.
- (d) To the extent permitted by law, GuestCheck's liability for breach of any condition, warranty or guarantee imposed by statute that cannot be excluded and the other party's sole and exclusive remedy in relation to such breach will be limited to supplying the services again.
- 10.6 Survival
The provisions of this clause 10 will survive the termination or expiry of this Agreement.
- 11. Suspension and Termination
- 11.1 Suspension and Termination
- (a) Without limiting GuestCheck's rights in respect of any breach of this Agreement, if Customer breaches any material obligation in this Agreement and (if the breach is capable of rectification) does not remedy that breach to GuestCheck's reasonable satisfaction within 5 Business Days of receiving written notice of the breach from GuestCheck, GuestCheck may suspend Customer's access to or use of any or all of the Services until the breach is remedied to GuestCheck's reasonable satisfaction.
- (b) Either party may terminate this Agreement without cause and for any reason on 14 days prior written notice to the other party.
- 11.2 Consequences of termination
- (a) Termination or expiry of this Agreement will not prejudice any rights of either party which have arisen on or before the date of termination or expiry.
- (b) Immediately upon termination or expiry of this Agreement, or if for any reason during the Term Customer reverts to using only the Basic QR Plan after having used the Express Check In Plan, Customer must remove from public display all text, signs, table cards, notices and other documents or materials in, outside or relating to any Venue that include an SMS phone number or Venue code relating to the Services. Customer must promptly reimburse GuestCheck for all SMS charges incurred by GuestCheck as a result of a failure by Customer to comply with this obligation and that could not reasonably be avoided by GuestCheck.
- 12. Relationship
The parties are independent contractors. Nothing in this Agreement will create the relationship of partnership, joint venturers, principal and agent, trustee and beneficiary or employer and employee between the parties, and it is the express intention of the parties that any such relationships are denied.
- 13. General provisions
- 13.1 Force Majeure
- (a) Neither party will be responsible for a failure to perform any obligation under this Agreement (except an obligation to pay money) to the extent that it is caused by a Force Majeure Event, provided that such party has:
- (i) taken all reasonable steps to prevent and avoid the effects of the Force Majeure Event;
- (ii) taken all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and
- (iii) on becoming aware of the Force Majeure Event, promptly informed the other party of the Force Majeure Event.
- 13.2 Assignment
Customer may assign its rights under this Agreement on 14 days written notice to GuestCheck.GuestCheck may assign its rights or liabilities under this Agreement, or novate this Agreement, to a Related Body Corporate that has the resources and expertise to fully perform this Agreement and Customer must take all steps, including executing all documents, reasonably requested by GuestCheck for this purpose.
- 13.3 Notices
- (a) Any notice may be served by delivery in person, by email or by post to the address of the recipient specified in the Details Table or most recently notified by the recipient to the sender.
- (b) Any notice is effective for the purposes of this Agreement upon delivery to the recipient (including by email) before 4.00pm local time on a day in the place in or to which the notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.
- 13.4 Governing law and jurisdiction
This Agreement is governed by the laws of Victoria, Australia.The parties irrevocably submit to the non-exclusive jurisdiction of the courts having jurisdiction in that state.
- 13.5 Amendments
- (a) GuestCheck may amend the terms of this Agreement from time to time on 14 days written notice to Customer.Publication of GuestCheck's latest Services Agreement terms on the Website will constitute written notice to the Customer for this purpose.
- (b) Any other amendment to this Agreement has no force or effect, unless effected by an agreement executed by the parties.
- 13.6 Third parties
This Agreement confers rights only upon a person expressed to be a party, and not upon any other person.
- 13.7 Further assurances
Each party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
- 13.8 Counterparts
This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document.
- 13.9 Waiver
- (a) No right under this Agreement will be deemed to be waived except by notice in writing signed by the waiving party.
- (b) Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by a party does not preclude any other or further exercise of that or any other right by that party.
- 13.10 Remedies
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
- 13.11 Severability
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
- 13.12 Survival
Any term of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement will survive and continue in effect following termination or expiry of this Agreement.
- 13.13 Publicity
Notwithstanding clause 8, GuestCheck may announce the relationship set forth in this Agreement in a list of clients, press release, or similar public announcement without approval by Customer.
- 13.14 Party acting as trustee
If a party enters into this Agreement as trustee of a trust, that party and its successors as trustee of the trust will be liable under this Agreement in its own right and as trustee of the trust.Nothing releases the party from any liability in its personal capacity.The party warrants that at the date of this Agreement:
- (a) all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the trust is a valid and subsisting trust;
- (b) the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
- (c) no restriction on the party’s right of indemnity out of or lien over the trust's assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust's assets.
- 14. Definitions and Interpretation
- 14.1 Definitions
In this Agreement unless the context otherwise requires:
Account means the account specified in the Details Table.
Basic QR Plan means the plan for use of the Services described as such on the Website, as may be amended by GuestCheck from time to time.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Commencement Date means the date specified in the Details Table.
Confidential Information means, in relation to a party (for the purposes of this definition, the Discloser):
- (a) information relating to or used by the Discloser, including know-how, trade secrets, ideas, marketing strategies and operational information;
- (b) information concerning the current or proposed business affairs (including financial information, products, services, pricing, Intellectual Property Rights, customers and suppliers) or property of the Discloser; and
- (c) other information which is disclosed, communicated or imparted by or on behalf of the Discloser in circumstances importing an obligation of confidence or which a reasonable person would have realised was of a confidential nature,
and the Confidential Information of GuestCheck includes details of the functionality of the Services, but Confidential Information excludes information which is:
- (d) or becomes publicly known other than by breach of this Agreement or any other obligation of confidentiality;
- (e) developed or known independently by the receiving party without reliance on any of the Discloser’s Confidential Information; or
- (f) Personal Information collected by GuestCheck via the Services.
Consequential Loss includes special, incidental, punitive, exemplary, indirect or consequential Losses, as well as business interruption losses, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business opportunity, costs of procurement or substitution of goods, technology or services, and loss of information or data (including the costs of recovering or reconstructing any lost or corrupted data).
Details Table means the schedule on the first page of this Agreement.
Express Check In Plan means the plan for use of the Services described as such on the Website, as may be amended by GuestCheck from time to time.
Fair Use Policy means a policy published by GuestCheck on the Website from time to time that sets limits on the use of the Services or any aspect of the Services.
Force Majeure Event means an event or circumstance whose occurrence and effects could not have been prevented or overcome, such as earthquakes, war, natural disasters, fire, flood, storm, riots, civil commotion, industrial disputes, malicious damage, failure of any utility service or transport network, viruses, denial of service attacks, other acts or omissions or service outages by third parties (including any Internet service provider) or breakdown of plant or equipment.
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act.
Intellectual Property Rights means any intellectual property rights subsisting anywhere in the world, including:
- (a) rights in relation to copyright (registered or unregistered), inventions (including patents, innovation patents and utility models), confidential information, technical information and know-how, registered and unregistered designs, registered and unregistered trade marks, and circuit layout rights, topography rights and rights in databases;
- (b) any similar rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may at any time subsist;
- (c) any application and the right to apply for registration for any of the above; and
- (d) any right of action against any party in connection with any of the above.
Legal Requirements means any present and future obligation arising under laws, statutes, regulations, by-laws, codes, orders, ordinances, proclamations, directions and decrees (provided such orders, ordinances, proclamations, directions and decrees are legally binding) and statements of government policy in relation to the COVID-19 virus.
Loss means any loss, damage, liability, cost (including all legal and other professional costs), charge, expense, outgoing, fine or payment of any nature or kind.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Personnel means the directors, officers, employees, contractors and subcontractors of the relevant party.
Privacy Laws means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other laws or legally-binding codes of practice, guidelines or standards issued by regulators or authorities that apply to the collection, handling, disclosure and use of Personal Information by the parties.
Regulatory Body means any government or any governmental, semi-governmental, or judicial entity or authority, any self-regulatory organisation established or recognised under any statute or any stock exchange.
Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).
Services means guest checking and validation services as described on the Website as may be varied in accordance with this Agreement or otherwise varied from time to time by written agreement of the parties.
Services Fee means any fee or fees described as such in the Details Table.
Term means the term of this Agreement as described in clause 2.
Venues means the venues described as such in the Details Table.
Website means www.guestcheck.com.au.
- 14.2 Interpretation
In this Agreement unless the context otherwise requires:
- (a) clause and subclause headings are for reference purposes only;
- (b) the singular includes the plural and vice versa;
- (c) words denoting any gender include all genders;
- (d) reference to a person includes any other entity recognised by law and vice versa;
- (e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
- (f) any reference to a party to this Agreement includes its successors and permitted assigns;
- (g) any reference to any agreement or document includes that agreement or document as amended at any time;
- (h) the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it;
- (i) the expression "at any time" includes reference to past, present and future time and the performance of any action from time to time;
- (j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
- (k) when a thing is required to be done or money required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately following Business Day;
- (l) reference to "$" or "dollars" means Australian dollars; and
- (m) reference to a statute includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.