Dated: 1 Dec 2011
1 About these terms
These are the terms and conditions for our supply of the Geelus point of sale software/hardware to you, including our obligations to each other (Terms).
Some words in these Terms have particular meanings:
Business Day means a week day, except for:
- Public holidays
- Saturday and Sunday
Business means the business for which the application is made and accepted for Geelus point of sale software/hardware. This would include, but is not limited to, sole traders, partnerships, companies and trusts.
Fees means fees and charges relating to the provision of the Geelus point of sale software/hardware.
Loss or Claim means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.
Geelus point of sale software/hardware means any of the services, facilities or functionality which form part of Geelus point of sale software/hardware and which we make available to you from time to time.
Personal Information means that term as defined in the Privacy Act. Basically, this is information about an identifiable individual.
Privacy Act means the Privacy Act 1988 (Cth).
Third Party means any person we have contracted with to help us provide the Geelus point of sale software/hardware.
User means a person authorized by you to use Geelus point of sale software/hardware (including a Professional Partner). Geelus point of sale software is a multi-user system.
we, us and our means Geelus PTY LTD (ABN: 88604133342) trading as Geelus located at 8/324 Marsden Rd, Carlingford NSW 2118 Australia.
you means the Business, including each User.
2 General terms
2.1 Protecting your username and password
(a) Unless you take adequate security precautions, it could be possible for an unauthorized person to gain access to your Geelus point of sale software. It is important to take all reasonable precautions to ensure your username and password are not misused, and remain secure and confidential. In particular:
(1) you must not tell anyone your username or password, including any member of your family;
(2) you must be extra careful when accessing Geelus point of sale software from public computers.
(3) downgrading of the software edition.
(b) If you think anyone else might know your password you should reset your password from within Geelus point of sale software, or contact us as soon as possible to arrange a new password.
(c) You agree to be liable if your login details are used by an unauthorized person.
2.2 Other responsibilities you have as a User
(a) No interference with Geelus point of sale software – You will not:
(1) interfere with the operation of Geelus point of sale software/hardware or overload the system;
(2) reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind Geelus point of sale software; or
(3) copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from Geelus point of sale software except where we have given you permission.
(b) Cooperation and limited authority in relation to Third Parties – You:
(1) must do all things we consider appropriate to enable us to fulfil our obligations to Third Parties in relation to Geelus point of sale software; and
(2) authorise us to give a Third Party or other person any authority, consent or instruction in respect of Geelus point of sale software, to enable us to provide the Geelus point of sale software to you.
(c) Adding other Users – You can add other users to Geelus point of sale software. Their use of Geelus point of sale software is subject to these Terms, so we suggest that you provide them with a copy. You are responsible for their use of Geelus point of sale software. You can stop their access by removing them from your user list within geelus point of sale software or by contacting us.
(d) Change of details – You must let us know of any changes to your details which you have provided to us in relation to Geelus point of sale software, and provide any proof of the change we require.
2.3 Use of Geelus point of sale software/hardware and our intellectual property
(a) What you can do – until your use of the Geelus point of sale service is terminated, you have a non-exclusive and non-transferable licence to use the Geelus point of sale software/hardware in the way that we authorise from time to time.
(b) We retain our intellectual property rights – except where specifically set out in these Terms, these Terms do not give you any intellectual property or other rights in any of our:
(1) software, documents, templates, marketing material, trademarks, business names, logos, trading styles, get-up, processes or methodologies; or
(2) other intellectual property,and you (including your staff or contractors) must not otherwise use, reproduce or modify these intellectual property rights.
(c) Intellectual property rights deriving from your use of Geelus point of sale software – You agree that any intellectual property rights in any systems, processes or methodologies developed by you which derive from your use of the Geelus point of sale software become our intellectual property.
2.4 Trial/Free user
If you are a trial user, you will be able to use Geelus point of sale software/hardware free of charge for 30 days. At the end of this period, you have the option of subscribing to the paid editions or continue using the software for free until you reach the limits.
You can keep using the software as long as you wish, however if you stop using the software for more than 30 days, your access to Geelus point of sale software will be denied. After this time, you will no longer be able to log in to Geelus point of sale software or access your data. If you do not subscribe to the paid plans, we strongly recommend that you export your data for archive purposes.
2.5 Payment of Fees and Credit Card Authority
(a) You must pay us all Fees due to us in relation to your use of Geelus point of sale software/hardware, on the due date.
(b) By giving you at least 20 Business Days’ notice before the change takes effect, we may:
(1) change the amount of any Fee and introduce a new Fee; and
(2) change the circumstances in which, or frequency with which, a Fee is payable.
Section 8 tells you about the ways in which we can give you notice.
(c) You authorise us to deduct monthly instalments and any other Fees payable to us in respect of your use of Geelus point of sale software/hardware. You give us this authority by providing us with your credit card details.
(d) Debiting of Fees will ordinarily occur on the 1st Business Day of each month (but may occur at other times as required or permitted under these Terms) and can be in advance or in arrears as we determine. We will provide a monthly statement/tax invoice detailing the Fees that have been debited.
(e) The first payment will be pro-rated according to the end of the trial period for the appropriate number of days till the end of that month.
(f) It is your responsibility to ensure you have sufficient credit available on your nominated credit card to cover your monthly payment and that your card details are current and correct.
(g) If the debit to your card is declined, we will attempt to re-draw 3 times. If these attempts fail, we will advise you by email of the decline and You will be allowed 14 days to respond. Where the fees remain unpaid, we may suspend or terminate your use of Geelus point of sale software/hardware.
(h) If you believe there has been an error in debiting your credit card, you should notify us immediately at [email protected] so that we can resolve your query promptly. If we conclude that your credit card has been incorrectly debited, we will arrange a refund of the incorrect debit.
(I) All subscription / premium support payments are non-refundable unless a your account is placed on hold for maximum period of 45 days or your account is upgraded to a higher plan which in this case your refund will be on a pro rata basis.
3 Availability of the Geelus point of sale service
The Geelus point of sale software could be disrupted if systems failure occurs due to technology used by either us or Third Parties involved in providing the Geelus point of sale software/hardware.
The Geelus point of sale service may also be unavailable for short periods because of necessary or desirable system maintenance or upgrades. If this is needed, we will try to inform you beforehand.
We are not responsible or liable to you or the Business for any Loss or Claim arising from the Geelus point of sale service or any part of it being delayed, disrupted or unavailable. Accordingly, no refund will be given arising from the Geelus point of sale service or any part of it being delayed, disrupted or unavailable.
4.1 How can you end your participation in Geelus point of sale service?
You can cancel your participation in Geelus point of sale service by giving us at least 20 days written notice before the end of the current month of your subscription. The effective date of termination will be the last day of the current month of your subscription.
Your participation in Geelus point of sale software will cease on the effective date of termination. However, during the notice period, you are still liable for any Fees in relation to your use of Geelus point of sale service up to the effective date of termination. Refer also to section 4.3 below for other important content about what happens on the effective date of termination.
4.2 When we can terminate your participation in Geelus point of sale service without prior notice
These are the situations in which we can terminate your participation in Geelus point of sale service without prior notice. We will notify you of your suspension or termination as soon as possible.
The situations are:
A breach occurs:
- you fail to remedy a material breach of these terms and conditions within 5 Business Days after we notify you of the breach;
- Something threatens Geelus point of sale software:
- in our opinion, a change to any Third Party arrangement necessary for Geelus point of sale service renders the ongoing operation of Geelus point of sale service substantially unworkable or non-functional;
- in our opinion, the actions of a regulator or a change in law or regulation makes the ongoing operation of Geelus point of sale service substantially unworkable or non-functional; or
- we believe this is necessary either to protect the security, integrity or reputation of Geelus point of sale service function or facility, or to otherwise protect our interests;
- We have concerns about your Business:
- we receive notification of a dispute from one or more of the directors or principals of your Business;
- you go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors, or in our opinion, it is reasonably likely you will do so; or
- there is a change in who owns or controls your Business.
(1) We will make reasonable attempts to notify you in writing (which includes by email) of the termination.
(2) We can reinstate a termination in our absolute discretion by written notice to you, and this takes effect on receipt or any later time specified in the notice, subject to you meeting any conditions set out in the notice.
(3) If you become aware that a circumstance which would permit us to terminate your participation or use under section 5.2(a) has arisen or may arise, you must advise us in writing as soon as possible.
4.3 What happens on the effective date of termination?
(a) Limited period for data extraction: you will have 30 days from the effective date of termination to extract your data from the Geelus point of sale system, after which time you and other Users (including your Professional Partner) will have no further access to Geelus point of sale service or your data. The data will be deleted from our servers. We strongly recommend that you extract your data for archive purposes.
(b) Continuation of limitations on liability: any limitations on liability which you have given under the Terms continue after termination in relation to your use of Geelus point of sale.
5 Liability, warranties, representations and indemnities
(a) No warranty that Geelus point of sale software/hardware is suitable for your needs
Geelus point of sale software/hardware is a generic service and its capabilities are likely to change over time. This means that point of sale software/hardware may not be, or may not remain, suitable for your needs.
You must assess the ongoing suitability of Geelus point of sale software/hardware for you and your Business. We are not aware of your individual business needs and cannot provide any specific recommendations regarding your use of Geelus point of sale software/hardware.
(b) Liability for other conditions or warranties
Apart from any condition or warranty that is expressly required by law, we provide no warranty and make no claim in relation to our performance, the performance of Geelus point of sale software/hardware, or any service associated with Geelus point of sale software/hardware. In the event of any breach of a statutory condition or warranty, if the legislation permits, our liability is limited to:
(1) the resupply of Geelus point of sale software/hardware or the service (as applicable); or
(2) the cost of resupply of Geelus point of sale software/hardware or the service (as applicable), and in any event will be limited to the fullest extent permitted by law.
(c) When we and Third Parties will not be liable to you
We and Third Parties are not responsible or liable to you or the Business for:
(1) any Loss or Claim arising from a failure by us to comply with the Terms for any cause which could not reasonably be controlled or prevented by us; or
(2) any Loss or Claim arising from a failure by you or the Business to maintain archive records of your data.
6 Changes to Terms
(a) What can we do? We may change any of the Terms (including the Fees, which are specifically dealt with in section 2.5(b) above).
(b) Prior notice- We’ll give you at least 10 days’ prior notice (longer if required by legislation or any other code of conduct we subscribe to) of any change that is likely to materially affect or disrupt the manner in which you use Geelus point of sale.
(c) Urgent changes- However if we need to restore or maintain the security of Geelus point of sale software immediately, we may change your use and access to Geelus point of sale software without advance notice.
You will agree that all communications between you and us in relation to Geelus point of sale software/hardware will be by email, unless another method is agreed to by the addressee.
Any notice or other communication to or by a party by email is regarded as being given by the sender and received by the addressee when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee).
If the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee’s time) it is regarded as received at 9.00am on the following Business Day.
We may provide a notice or other communication to you by a posting to the Geelus point of sale web site. That notice or other communication is regarded as being given by us and received by you when the posting is made to the Geelus web site. We recommend that you bookmark and regularly check the Geelus web site for notices or other communications.
You should note a few things about the Terms:
(a) This is our complete agreement – The Terms and the documents incorporated by reference, including your application, contain the whole of the agreement between us and you in relation to Geelus point of sale software/hardware. Any representations or warranties made by our staff before you are accepted for participation in Geelus point of sale software/hardware are not effective unless expressly set out in the Terms. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.
(b) What happens if some of the Terms can’t operate? If any part or provision of these Terms are void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of Geelus point of sale software/hardware at our election.
(c) No waiver by us – If we do not insist upon strict performance of any part or provision of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach or default of these Terms.
(d) Assignment – You cannot assign or otherwise transfer the benefit of the agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the agreement between us and you.
(e) Which laws apply to the Terms? The Terms are governed by the laws of Victoria and the courts of Victoria have jurisdiction over the parties to the Terms (being you and us).
9 Your privacy
The collection of limited Personal Information is essential to our ability to provide Geelus point of sale. The collection, use and disclosure of your Personal Information by us is regulated by the Privacy Act and other laws which protect your privacy. For more about our policy on the management of your Personal Information, see our Group Privacy Statement which is available by request or by clicking the ‘Privacy’ link on www.geelus.com
Notwithstanding the Group Privacy Statement, we may observe your use of Geelus point of sale and access all information you input or can access through geelus point of sale. This will enable us to assist you with problems and make improvements for future versions of Geelus point of sale and other products and services.
You must ensure that all Users read this ‘privacy’ section and the policies described above before using Geelus point of sale or providing their Personal Information to us.
If you provide any Personal Information about third party individuals to us, you must take reasonable steps to ensure that those individuals are aware of the matters in this ‘Privacy’ section and that we may collect, use and disclose their information to provide you with the Geelus point of sale.