POS Wheeler Terms and Conditions

Welcome to POS Wheeler! We provide a POS system for restaurants, cafes and other hospitality providers

(Services), as set out in more detail on our website (Site).

In these Terms, when we say you or your, we mean you as an individual if you are accepting these Terms

for yourself. If you are accepting these Terms on behalf of an entity (such as your employer) and you are

authorised to do so, then you or your means that entity. When we say we, us, or our, we mean POS

WHEELER (ABN 26 651 178 538).

These terms and conditions (Terms) form our contract with you, and set out our obligations as a service

provider and your obligations as a customer. You cannot use the Services unless you agree to these Terms.

Some capitalised words in these Terms have defined meanings, and each time that word is used in these

Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of

these Terms.

OUR DISCLOSURES

Please read these Terms carefully before you accept. We draw your attention to:

● our privacy policy (on the Site) which sets out how we will handle your personal information;

● clause 1.9 (Variations) which sets out how we may amend these Terms;

● clause 3 (Fees) which sets out important information about payments and recurring services, including

whether you can cancel the Services and whether any of the Services auto-renew; and

● clause 10 (Liability) which sets out exclusions and limitations to our liability under these Terms.

We may receive a benefit (which may include a referral fee or a commission) should you visit certain third

party websites through a link in the Services, or for featuring certain goods or services on the Services.

These Terms do not intend to limit your rights and remedies at law, including any of your Consumer

Law Rights.

1. Engagement and Term

1.1 These Terms apply from the time you agree to these Terms, until the date these Terms are terminated

in accordance with their Terms (Term).

1.2 Subject to your compliance with these Terms, we will provide you with access to the Services. The

Services require compatible hardware (including but not limited to tablets, card readers, receipt

printers, and cash drawers) to function properly. We do not supply hardware as part of the Services.

While we may refer you to third-party hardware suppliers, you are solely responsible for purchasing,

installing, and maintaining all hardware required to use the Services. We make no representations or

warranties regarding any third-party hardware or suppliers, and any arrangements you make with

hardware suppliers are independent of these Terms.

1.3 Where we require access to your premises or computer systems in order to provide the Services, you

agree to provide us with such access free from risk to the safety of our employees and contractors.

1.4 Where the Services include the provision of an application programming interface (API), you agree to

only use the API in accordance with the documentation that we provide to you through our Site or

otherwise.

1.5 We will provide the Services, which include access to our POS system software and Support Services.

Our Support Services may include technical assistance, software updates, and troubleshooting,

subject to any limitations or service levels set out on our Site, these terms or in your Account. We will

not be responsible for any other services unless expressly set out in these Terms or on our Site.

1.6 If we provide you with access to any new or beta services, you acknowledge that because of the

developmental nature of such services, you use them at your own risk and we have no obligation to

maintain or provide error corrections. Any new or beta services we provide you with access to are for

evaluation purposes only and not for production use, and we may discontinue those services at any

time at our sole discretion.

1.7 Where you engage third parties to operate alongside the Services (for example, any third-party

software systems you wish to integrate with the Services, or third-party hardware suppliers), those

third parties are independent of us. You are responsible for (meaning we will not be liable for) the

goods or services they provide, including any hardware you purchase to use with the Services, unless

we expressly agree otherwise in writing. While we may refer you to hardware suppliers or other third-

party providers, such referrals do not constitute an endorsement, recommendation, or warranty of any

kind. We are not liable for the quality, compatibility, performance, or any other aspect of third-party

hardware or services.

1.8 You are responsible for ensuring that any hardware you use with the Services meets our minimum

specifications and compatibility requirements, which are set out on our Site and may be updated from

time to time. We do not guarantee that the Services will be compatible with all hardware, and we are

not liable for any issues arising from the use of incompatible, faulty, or improperly configured

hardware. If we provide you with hardware specifications or refer you to hardware suppliers, this

information is provided for convenience only and does not constitute a warranty that such hardware

will be suitable for your specific needs or will function without error.

1.9 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or

continuing to use the Services after the notice or 30 days after notification (whichever date is earlier),

you agree to the amended Terms. If you do not agree to the amendment, you should cease using the

Services. If you have paid upfront for recurring access to any of the Services (excluding one-time

purchases) and you would like to cancel them, please contact us in writing within 30 days of receiving

notice to cancel that recurring access and we will issue you a pro-rata refund for such Services.

2. Account

2.1 You must sign up for an Account in order to access and use the Services.

2.2 You may invite Authorised Users to access and use the Services under your Account. You are

responsible for ensuring that your Authorised Users comply with these Terms. You may change who

your Authorised Users are at any time through your Account, and what access rights or permissions

they have when using the Services. Any limitations on the number of Authorised Users you can have

will be set out in your Account or on the Services.

2.3 While you have an Account with us, you agree to (and to ensure your Authorised Users agree to):

(a) keep your information up-to-date (and ensure it remains true, accurate and complete);

(b) keep usernames and passwords secure and confidential, and protect them from misuse or

being stolen; and

Account or any logins linked to your Account.

2.4 If you close your Account, you and your Authorised Users will lose access to the Services.

3. Fees

3.1 You may choose to purchase Services from us, as set out on our Site (Paid Services). Paid Services

may include one-time purchases or recurring Services. You must pay all amounts due under these

Terms in accordance with these Terms or as set out on our Site (as applicable).

3.2 We may offer free trials for certain Paid Services. At the end of the free trial, you will either begin to be

charged for the Paid Service or lose access to it (unless you sign up to it as a Paid Service), as

specified in the trial offer you sign up to.

3.3 Details of our Paid Services, including features, limitations, fees and billing cycles (for recurring

services) are set out on our Site or as advised by us to you. For recurring services, you will be billed

on a regular basis, as set out on our Site or advised by us to you, at the beginning of each billing

cycle. All other Paid Services must be paid for at the time you order the Service.

3.4 Cancellation: All recurring Services continue for the agreed Service term (that you selected when

purchasing the Service) (Service Term). At the end of each Service Term, provided you have paid all

fees owing, your recurring Services will be automatically renewed for the same term. If you wish to

cancel your recurring Services, you may do so through your Account. Your cancellation will take effect

at the end of your current Service Term, and the recurring Services will not be renewed (meaning you

will need to continue paying all fees due up until your current Service Term ends). If you are on an

annual Service Term, we will provide you with a renewal reminder at least 30 days prior to the

Services renewing.

3.5 Our payments methods will be set out at the time you purchase the Services. If you choose to pay

your fees using one of our third-party payment processors, you may need to accept their terms and

conditions (if this is the case, these will be set out at the time you make payment).

3.6 You must not pay, or attempt to pay, any fees due under these Terms or as a result of your use of the

Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be

the authorised card holder. If payment is made by direct debit, by providing your bank account details

and accepting these Terms, you authorise our nominated third-party payment processor to debit your

bank account, and you confirm that you are either the holder or an authorised signatory of that bank

account.

3.7 If any fees due under these Terms or as a result of your use of the Services are not paid on time, we

may:

(a) suspend your access to the Services; and

(b) charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s

cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.

3.8 You are responsible for paying any levies or taxes associated with your use of the Services, for

example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect

these on your behalf).

4. Licence

4.1 During the Term, we grant you and your Authorised Users a right to use our basic Services in

accordance with these Terms. This right cannot be passed on or transferred to any other person.

4.2 When you purchase our Paid Services, your access rights will vary based on the type of service. For

one-time purchases, we grant you and your Authorised Users the right to access the purchased

Service until the earlier of the specified duration of access, the termination of these Terms or your

cancellation of the specific Service. For recurring services, we grant you and your Authorised Users a

right to access the relevant Services only for the duration that you continue to pay for the Service,

subject to these Terms. These rights cannot be passed on or transferred to any other person.

4.3 You must not (and you must ensure that your Authorised Users do not):

(a) access or use the Services in any way that is improper or breaches any laws, infringes any

person's rights (for example, intellectual property rights and privacy rights), or gives rise to any

civil or criminal liability;

(b) interfere with or interrupt the supply of the Services, or any other person’s access to or use of

the Services;

(d) use any unauthorised or modified version of the Services, including but not limited to for the

purpose of building similar or competitive software or for the purpose of obtaining unauthorised

access to the Services;

(e) attempt to access any data or log into any server or account that you are not expressly

authorised to access;

(f) use the Services in any way that involves service bureau use, outsourcing, renting, reselling,

sublicensing, concurrent use of a single user login, or time-sharing;

(g) circumvent user authentication or security of any of our networks, accounts or hosts or those of

any third party; or

(h) access or use the Services to transmit, publish or communicate material that is, defamatory,

offensive, abusive, indecent, menacing, harassing or unwanted.

4.4 If the Services include API access, you may use any provided APIs in accordance with our API

documentation and usage policies. You may make necessary modifications to facilitate such

integration, provided that such modifications do not alter or compromise the core functionality or

security of the Services.

5. Support Services

5.1 We will provide Support Services as part of the Services, subject to the terms of your subscription or

as otherwise agreed in writing.

5.2 Our Support Services may include:

(a) technical assistance with the operation of the Services;

(b) troubleshooting software-related issues;

(d) such other support as described on our Site or in your Account.

5.3 Support Services do not include:

(a) assistance with hardware installation, configuration, troubleshooting, or repair;

(b) issues caused by third-party software, hardware, or services;

(d) custom development or modifications to the Services; or

(e) issues arising from your breach of these Terms or improper use of the Services.

5.4 We may provide Support Services through various channels (such as email, phone, or online ticketing

systems) as specified on our Site. Response times and availability of Support Services may vary

depending on your subscription level and the nature of the issue and we will not be held liable for any

delay in responding and/or availability.

5.5 To receive Support Services, you must provide us with accurate information about the issue and

reasonable access to relevant systems and information. We are not liable for delays in providing

Support Services caused by your failure to provide such information or access.

6. Availability, Disruption and Downtime

6.1 While we strive to always make the Services available to you, we do not make any promises that

these will be available 100% of the time. The Services may be disrupted during certain periods,

including, for example, as a result of scheduled or emergency maintenance.

6.2 The Services may interact with, or be reliant on, products or services provided by third parties, such as

cloud hosting service providers. To the maximum extent permitted by law, we are not liable for

disruptions or downtime caused or contributed to by these third parties.

6.3 We will try to provide you with reasonable notice, where possible, of any disruptions to your access to

the Services.

7. Intellectual Property and Data

7.1 We own all intellectual property rights in the Services. This includes how the Services look and

function, as well as our copyrighted works, trademarks, inventions, designs and other intellectual

property. You agree not to copy or otherwise misuse our intellectual property without our written

permission (for example, to reverse engineer or discover the source code of our intellectual property),

and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the

Services.

7.2 We may use any feedback or suggestions that you give us in any manner which we see fit (for

example, to develop new features), and no benefit will be owed to you as a result of any use by us of

your feedback or suggestions.

Your Data

7.3 We do not own any of Your Data, but when you enter or upload any of Your Data into the Services,

you grant us the right to access, analyse, backup, copy, store, transmit, and otherwise use Your Data

for the duration of your use of the Services (and for a reasonable period of time afterwards). We may

use Your Data (or disclose it to third party service providers) to:

(a) supply the Services to you and your Authorised Users (for example, to enable you and your

Authorised Users to access and use the Services), and otherwise perform our obligations under

these Terms;

(b) diagnose problems with the Services;

(d) send you information we think may be of interest to you based on your marketing preferences;

(e) perform analytics for the purpose of remedying bugs or issues with the Services; or

(f) perform our obligations under these Terms (as reasonably required).

7.4 You acknowledge and agree that because of the nature of the internet, the processing and

transmission of Your Data by us may occur over various networks.

7.5 You are responsible for (meaning we are not liable for):

(a) the integrity of Your Data on your systems, networks or any device controlled by you or your

Authorised Users; and

(b) backing up Your Data.

7.6 When you use the Services, we may create anonymised statistical data from Your Data and usage of

the Services (for example, through aggregation). Once anonymised, we own that data and may use it

for our own purposes, such as to provide and improve the Services, to develop new services or

product offerings, to identify business trends, and for other uses we communicate to you. This may

include making such anonymised data publicly available, provided it is not compiled using a sample

size small enough to make underlying portions of Your Data identifiable.

7.7 If you do not provide Your Data to us, it may impact your ability to receive the Services.

7.8 This clause 7 will survive the termination or expiry of these Terms.

8. Confidential Information and Personal Information

8.1 While using the Services, you may share confidential information with us, and you may become aware

of confidential information about us. You agree not to use our confidential information, and to take

reasonable steps to protect our confidential information from being disclosed without our permission,

and we agree to do the same for your confidential information. This also means making sure that any

Authorised Users, employees, contractors, professional advisors or agents of ours or yours only have

access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is

absolutely necessary), and that they also agree to not misuse or disclose such confidential

information.

8.2 However, either you or we may share confidential information with legal or regulatory authorities if

required by law to do so.

8.3 We collect, hold and disclose and use any Personal Information you provide to us in accordance with

our privacy policy, available on the Site, and applicable privacy laws.

8.4 You must only disclose Personal Information to us if you have the right to do so (such as having the

individual’s express consent).

8.5 We may need to disclose Personal Information to third parties, such as our related companies or our

service providers (for example, IT and administrative service providers and our professional advisors).

8.6 Where we are required by law to report on our activities, you acknowledge that from time to time we

may request certain information from you in order to meet our requirements, and you agree to provide

us with such information within the timeframes reasonably requested by us.

8.7 This clause 8 will survive the termination or expiry of these Terms.

9. Consumer Law Rights

9.1 In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer

Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by

your Consumer Law Rights and the express wording of these Terms.

9.2 Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in

circumstance.

9.3 If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude,

restrict or modify the application of, or any rights or remedies you may have under, any part of the

Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

9.4 This clause 9 will survive the termination or expiry of these Terms.

10. Liability

10.1 To the maximum extent permitted by law, we will not be liable for, and you release us from liability for,

any Liability caused or contributed to by, arising from or in connection with:

(a) your computing environment (for example, your Hardware, software, information technology and

telecommunications services and systems); or

(b) any use of the Services by a person or entity other than you or your Authorised Users.

10.2 Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:

(a) neither we or you are liable for any Consequential Loss;

(b) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent

the relevant Liability was caused or contributed to by the actions (or inactions) of the other

party, including any failure by the other party to mitigate its loss;

consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our

Liability is limited (at our discretion) to supplying the Services again or paying the cost of having

the Services supplied again; and

(d) our aggregate liability to you for any Liability arising from or in connection with these Terms will

be limited to the amount of any fees paid by you to us during the 12 months immediately

preceding the event giving rise to the Liability, or if you have not paid for the Service, to

AU$1,000.

10.3 This clause 10 will survive the termination or expiry of these Terms.

11. Notice Regarding Apple

11.1 To the extent that you are using or accessing the Services on an iOS device through a mobile

application from the Apple App Store, you further acknowledge and agree to the terms of this clause.

You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and

Apple is not responsible for the Services and any content available on the Services.

11.2 Apple has no obligation to furnish you with any maintenance and support services with respect to the

Services.

11.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple

will refund the purchase price of the mobile application to you. To the maximum extent permitted by

applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile

application and any other claims, losses, liabilities, damages, costs or expenses attributable to any

failure to conform to any warranty will be our responsibility.

11.4 Apple is not responsible for addressing any claims by you or any third party relating to our mobile

application or your use of our mobile application, including but not limited to: (1) product liability

claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory

requirement; and (3) claims arising under consumer protection or similar legislation.

11.5 Apple is not responsible for the investigation, defence, settlement and discharge of any third-party

claim that our mobile application infringes that third party’s intellectual property rights.

11.6 You agree to comply with any applicable third-party terms when using our mobile application.

11.7 Apple and Apple subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance

of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce

these Terms against you as a third-party beneficiary of these Terms.

11.8 You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S.

Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting"

country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

12. Suspension and Termination

Suspension

12.1 We may suspend your access to the Services where we reasonably believe there has been any

unauthorised access to or use of the Services (such as the unauthorised sharing of login details for

the Services). If we suspend your access to the Services, we will let you know within a reasonable

time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we

may terminate these Terms and your access to the Services will end.

Termination

12.2 We may terminate these Terms (meaning you will lose access to the Services, and any recurring

Services will be cancelled) if:

(a) you fail to pay your fees when they are due;

(a) you or your Authorised Users breach these Terms and do not remedy that breach within 14

days of us notifying you of that breach;

(b) you or your Authorised Users breach these Terms and that breach cannot be remedied; or

written notice and if you have paid upfront for ongoing access to any of the Services (excluding

one-time purchases) we will issue you a pro-rata refund for such Services; or

(d) you experience an insolvency event (including but not limited to bankruptcy, receivership,

voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).

12.3 You may terminate these Terms if:

(a) we breach these Terms and do not remedy that breach within 14 days of you notifying us of that

breach; or

(b) we breach these Terms and that breach cannot be remedied, and if you have paid fees for

recurring Services upfront, you will be issued a pro-rata refund of any unused part of those fees

based on the portion of the then-current Services period remaining.

12.4 You may also terminate these Terms at any time by notifying us through your Account or to our email

for notices (as set out in clause 13.8), and if you have purchased any recurring services, termination

will take effect at the end of your current Services period.

12.5 Upon termination of these Terms, we will retain Your Data (including copies) as required by law or

regulatory requirements.

12.6 Termination of these Terms will not affect any other rights or liabilities that we or you may have.

12.7 This clause 12 will survive the termination or expiry of these Terms.

13. General

13.1 Assignment: You may not transfer or assign these Terms (including any benefits or obligations you

have under these Terms) to any third party without our prior written consent. We may assign or

transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or

other third party.

13.2 Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or

claim arising from, or in connection with, these Terms (including any question regarding its existence,

validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute.

Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable

relief from a court of appropriate jurisdiction.

If the Dispute is not resolved at that initial meeting:

(a) where you are resident or incorporated in Australia, refer the matter to mediation, administered

by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for

Commercial Mediation; or

(b) where you are not resident or incorporated in Australia, refer the matter to arbitration

administered by the Australian Centre for International Commercial Arbitration, with such

arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and

in accordance with the ACICA Arbitration Rules.

13.3 Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations

(including the Services), if such delay or failure is caused or contributed to by an event or

circumstance beyond our reasonable control.

13.4 Governing law: These Terms are governed by the laws of New South Wales, and any matter relating

to these Terms is to be determined exclusively by the courts in New South Wales and any courts

entitled to hear appeals from those courts.

13.5 Illegal Requests: We reserve the right to refuse any request for or in relation to the Services that we

deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.

13.6 Marketing: You agree that we may send you electronic communications about our products and

services. You may opt-out at any time by using the unsubscribe function in our electronic

communications.

13.7 Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to

create, a partnership, joint venture, employment or agency relationship between us and you.

13.8 Notices: Any notice you send to us must be sent to the email set out at the beginning of these Terms.

Any notice we send to you will be sent to the email address registered against your Account.

13.9 Professional Services Disclaimer: The Services do not constitute, and are not a substitute for,

financial, legal or risk management advice.

13.10 Publicity: You agree that we may, with your written consent, advertise or publicise the fact you are a

customer of ours, for example on the Site or in our promotional material, and you grant us a right to

display and use your logo and branding solely for that purpose.

14. Definitions

14.1 In these Terms:

Account means an account accessible to the individual or entity who signed up to the Services, under

which Authorised Users may be granted with access.

Authorised User means a user that you have invited to use the Services through your Account.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss

of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of

savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute,

contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us

any amounts for access to or use of the Services (including the Services) will not constitute

“Consequential Loss”.

Hardware means any physical equipment, devices, or peripherals required to access and use the

Services, including but not limited to tablets, point-of-sale terminals, card readers, receipt printers,

cash drawers, barcode scanners, and networking equipment.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation,

demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence),

indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present,

unascertained, future or contingent and whether involving a third party or us or you or otherwise.

Personal Information means any information or opinion about an identified individual, or an individual

who is reasonably identifiable, whether the information or opinion is true or not, and whether the

information or opinion is recorded in a tangible form or not.

Services means the services we provide to you, as detailed at the beginning of these Terms.

Support or Support Services means the technical assistance, maintenance, updates, and

troubleshooting services we provide in connection with the Services, as described on these terms, on

our Site or as otherwise agreed in writing.

Your Data means the information, materials, logos, documents, qualifications and other intellectual

property or data supplied by you and your Authorised Users when receiving the Services or stored by

or generated by your use of the Services, including any Personal Information collected, used,

disclosed, stored or otherwise handled in connection with the Services. Your Data does not include

any data or information that is generated as a result of your usage of the Services that is a back-end

or internal output or an output otherwise generally not available to users of the Services.