©Copyright - SwiftPOS Pty Ltd - Level 1, 307 Queen Street, Brisbane QLD 4000, Australia
TEL: +(61) 7 3351 8777 www.swiftpos.com.au ABN: 48 079 142 662
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SWIFTPOS Pty Ltd Licence Agreement |
(a) These terms and conditions (Terms) govern the terms on which you may access and use the SwiftPOS point of sale software (Software), all associated documentation made available in connection with the Software (Documentation), and related hosting of the Software and support services and constitutes a binding contract between you (Customer or you) and SwiftPOS Pty Ltd ACN 079 142 662 (SwiftPOS, us or we).
(b) If you are agreeing to these Terms on behalf of a business entity, you represent to SwiftPOS that you have legal authority to bind that entity.
(c) Permission to access and use the Software and/or Services is conditional upon you agreeing to these Terms. By accessing, or otherwise using the Software and/or Services, you confirm you have read, understood and agree to these Terms.
(a) In consideration for agreeing to abide by these Terms, we grant you a non-exclusive and non-transferrable licence to access and use the Services solely on these Terms (Licence).
(b) If the Software is provided:
(i) for installation directly onto your infrastructure, the Services provided by us under these Terms includes the Licence of the Software for the purpose of installing, accessing, and running a single instance of the Software on such number of devices as you have agreed with us; or
(ii) as a hosted solution, the Services provided by us under these Terms includes providing a Licence to access the hosted version of the Software by such number of devices you have agreed with us.
(c) If you wish to use or otherwise have access to the Software on more devices beyond the agreed licensed numbers, you may do so with our prior written consent, which may be conditional upon payment of an additional licence fee.
(d) We grant a non-exclusive, non-transferrable licence to use any Documentation in support of the use permitted under this clause 2.1.
Except as expressly set out in these Terms or as permitted by law, you undertake:
(a) not to modify, adapt, alter, translate, or create derivative works from the Software, Services or source code;
(b) not to sell, transfer, rent, lease, sub-license, loan, translate, merge, adapt, vary, alter, modify or reverse engineer, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other materials or similar products;
(c) not to provide, or otherwise make available, the Software or Services in any form, in whole or in part to any person without our prior written consent;
(d) not to introduce or upload anything to the Software or Services that includes viruses or other malicious code;
(e) not to perform any illegal or unlawful acts in connection with receipt or use of the Software or Services;
(f) not use the Software if you are a direct competitor to any of the Software, or a sales agent, consultant or distributor for a direct competitor of any Software; and not to modify or create copies of the Documentation.
2.3 Acknowledgments
You acknowledge and agree that:
(a) the Software and Services are provided “as is,” and we do not guarantee the functionality of the Software Services or a particular result from the use or integration of the Software or Services;
(b) the Software and Services may contain errors and not all errors or problems can or will be corrected;
(c) we are not responsible for the resilience or availability of the communications network over which the Services are supplied;
(d) it is your sole responsibility to determine that the Software and Services meet the needs of your business; and
(e) the Software or Services may not be available (including at a certain speed) from time to time.
2.4 Customer requirements
You must:
(a) only use the Software and Services for the purpose for which they have been developed and provided;
(b) have all resources necessary to receive the Services, including hardware, software, telecommunication resources and internet access acceptable to us;
(c) provide us with any Customer Data requested by us in a form acceptable to us;
(d) ensure that you have necessary consents for us to store and use any Personal Information entered when using the Software and Services in the manner contemplated by these Terms, including to transfer that Personal Information outside Australia;
(e) comply with the recommendations of us from time to time in relation to your network and use of the Software and Services including back up routines and virus checking;
(f) give us reasonable access to your network including by installation of any remote support tools and hardware monitoring and reporting tools nominated by us from time to time; and
(g) cooperate with us, act reasonably and follow our directions in connection with these Terms.
2.5 Platform
Where the Services are to be incorporated into your website or digital media platform, you must provide a website and subdomain for us to host the Services.
2.6 Service levels
Any service levels nominated by us from time to time are non-binding targets only however we will use best endeavours to meet the service levels.
3. Intellectual Property Rights
3.1 Licence
You agree and acknowledge that:
(a) the Intellectual Property Rights in the Software and Services shall remain the property of SwiftPOS or its relevant licensor and SwiftPOS reserves the right to grant a licence to use the Services to any other party or parties;
(b) to the extent that any Intellectual Property Rights in the Software and Services do not automatically vest in SwiftPOS, you assign to SwiftPOS all Intellectual Property Rights in or in relation to the Software and Services;
(c) you must do all things that SwiftPOS reasonably requires to perfect SwiftPOS' right, title and interest in and to the Intellectual Property Rights in the Software and Services;
(d) you shall use reasonable endeavours to prevent any infringement of SwiftPOS' Intellectual Property Rights in the Software and Services and shall promptly report to SwiftPOS any such infringement that comes to your attention; and
(e) you have no right to have access to any of the Software or Services in source code form other than as expressly provided in these Terms.
3.2 Customer Data
(a) All Intellectual Property Rights in the Customer Data remain the property of the Customer or relevant third parties and nothing in these Terms shall be construed as giving SwiftPOS any rights to such Intellectual Property Rights.
(b) You grant to us a non-exclusive, irrevocable global licence to exercise Intellectual Property Rights in any Customer Data in connection with us licensing the Software and providing the Services to you, including to use, reproduce, store and modify the Customer Data.
3.3 Use of trademarks
You must not, and must ensure that your officers, employees, agents and subcontractors do not, use our trademarks or logos except with our prior written consent.
3.4 Customer name
We may use your name and trade mark on our website and advertising or promotional material, and may disclose that you are our customer.
4. Licence fees
You agree to pay to us any licence fees agreed between the parties in relation to the licence of the Software and/or the provision of the Services.
5.1 Termination or suspension
We may at any time terminate or suspend the Licence and your access to the Software and/or Services immediately by giving written notice to you if:
(a) you commit a material breach of these Terms and (if such breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) you repeatedly breach these Terms in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to these Terms; or
(c) you suffer an Insolvency Event.
5.2 Obligations on termination of Licence
On termination or expiry of the Licence, you must as soon as reasonably practicable:
(a) permanently delete any Documentation and any copies of the Software from your IT network or its storage devices; and
(b) cease all further use of the Software and Services, whether in tangible or intangible form,
provided that if you are required by any law, regulation, or government or regulatory body to retain any documents or materials containing any part of the Software or Documentation you must notify us in writing of such retention, giving details of the documents and/or materials that you must retain.
5.3 Survival
Clauses 2.2, 3, 5 and 6 to 11 survive termination of this document.
(a) Neither SwiftPOS, its members, managers, officers, employees, agents, nor its suppliers shall be liable to you for any loss of use, lost or inaccurate data or data corruption, non-compliance with any statutory or legal obligation or deadline, lost profits, failure of security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.
(b) To the extent permitted by law, SwiftPOS expressly disclaims any responsibility for the loss or damage, including personal injury or death, resulting from the use of the Software and Services or any unauthorised access of Customer Data.
(c) To the extent permitted by law, SwiftPOS expressly disclaims all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement. Any content and material downloaded or otherwise obtained through the use of the Services is done at your sole risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such product, offering, content or material.
(d) You shall be solely responsible, as against SwiftPOS, for any actions taken by you are your personnel, or any other third party based (wholly or in part) on your use of the Software and Services, including in relation to any data security breach or cyber attack.
(e) To the extent permitted by law, we make no representations and provides no warranties about the performance or security of any data which is hosted by a third party hosting service as part of the Services.
(a) You warrant and represent that you will not use the Software or the Services in a manner which infringes the rights of any other person or breaches any applicable law or regulation.
(b) You indemnify SwiftPOS in respect of any loss or damage incurred by SwiftPOS as a result of any breach by you of your obligations under these Terms or as a result of any use of the Software or the Services.
Any personal information collected by us under these Terms or otherwise in connection with the Software or Services will be governed by our privacy policy and privacy collection statement, copies of which are on our website at MSL-Privacy-Policy.pdf (mslsolutions.com) MSL-Privacy-Collection-Statement.pdf (mslsolutions.com).
9. General
(a) We may amend or vary these Terms at any time by notice to you. You may elect to terminate this licence rather than agreeing to the updated Terms, but continued use of the Services will be subject to agreeing to the updated Terms, and if you continue to use the Services after a reasonable period, following receipt of notice of the updated Terms (being not more than 21 days) you agree that you will be deemed to have accepted the updated Terms.
(b) We may transfer our rights and obligations under these Terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
(c) You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
(d) Each of the clauses in these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
(e) These Terms constitutes the entire agreement between you and us on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements and arrangements.
(f) A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
(g) These Terms shall be governed by the laws of the state of Queensland, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
10. Communications
(a) If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, we will confirm receipt of this by contacting you in writing, normally by email.
(b) If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide or confirm to us.
In these Terms:
(a) Customer Data means all information provided by the Customer to be stored, transmitted, processed and/or inputted when using the Software or Services.
(b) Insolvency Event means any of the following events concerning a party:
(i) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
(ii) if the party is unable to pay its debts when they become due and payable;
(iii) if the party ceases to carry on business; or
(iv) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
(c) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.
(d) Services includes the Licensing of the Software and Documentation to you in accordance with these Terms and any support services we provide to you in accordance with these Terms.
BY CLICKING ON THE “ACCEPT” BUTTON YOU AGREE TO THESE TERMS WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THESE TERMS YOU WILL NOT BE ABLE TO PROCEED TO REGISTRATION.
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Level 1, 307 Queen Street Brisbane QLD 4000 Australia ABN: 48 079 142 662 TEL: +61 7 3351 8777 |
