The Company provides the Tayble venue ordering technologies. This Agreement sets out the terms and conditions on which venues can accept orders and payments using the Tayble,
The following terms are used regularly throughout this Agreement and have a particular meaning:
ABN means Australian Business Number.
Agreement means this Venue Agreement.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
Company means Tayble App Pty Ltd ABN 52 608 870 168.
Confidential Information has the meaning given to it in clause 10.
CRM means customer relationship management.
Customer means a registered user of Tayble App.
Device means a mobile device or tablet used for running Tayble POS.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
Menu Item means an item of food, drink or other goods sold by a Venue at a Venue.
Order means an order of one or more Menu Items from a Venue made via Tayble App.
Privacy Act means the Privacy Act 1989 (Cth).
Remote Access means the Company accessing a Device remotely (i.e. from a location other than the Venue) for the purposes of providing support services.
Service Fee means the fee charged by the Company for use of Tayble App by the Venue.
Table Number means the unique name or number used to identify the locations within a Venue where an Order is to be delivered.
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Tayble means the platform constituted by Tayble POS and Tayble App, plus any other associated technologies.
Tayble App means the Tayble App mobile application, used by Customers to place Orders.
Tayble POS means the Tayble POS mobile application, used by Venues to process Orders
Terms of Service means the terms and conditions of using Tayble App, as updated from time-to-time, which can be found at www.tayble.co/terms-and-conditions.
Third Party Systems means software or hardware system that integrates with Tayble.
Venue means the entity registered as a licensed user of Tayble POS and the counterparty to this Agreement with the Company.
Venue Settings means:
In-venue and/or order ahead options;
Website means the website operated by the Company, accessible at http://www.tayble.co
As consideration for the Service Fees, the Company grants the Venue a licence to use the Tayble POS on the terms of this Agreement to:
Offer Menu Items via the Tayble App; and
Process Orders placed via Tayble App.
This Agreement shall be ongoing until terminated in accordance with this Agreement.
The person whom accepts the terms of the Agreement warrants that they are authorised to do so on behalf of the Venue.
In providing Tayble, the Company provides a technology platform only for the placement and fulfilment of orders, and for clarity the Company doesn’t provide or purchase any of the goods or services that may be offered or requested through Tayble.
The Venue agrees that it shall comply with all local laws in the jurisdiction in which it is located with respect to the sale of Menu Items, including (without limitation) alcohol and tobacco products.
The Company will provide the Venue with a Device to run Tayble POS.
The Company will register the Venue with a venue-account in Tayble POS.
The Venue will set up Venue Settings, either within Tayble POS or with the assistance of the Company, and those details will be published in the Tayble App.
Customers will place Orders via Tayble App, which the Venue can accept or reject in Tayble POS.
Customer will pay for their accepted Orders via Tayble App, which will be regularly remitted to the Venue (less any Service Fee).
Orders are placed via Tayble App for either in-venue consumption (using table numbers) or take-away (order ahead), depending on the Venue Settings.
Each Order will contain the Customer’s details, including name and table number (if relevant).
The Venue may accept or reject any Order in its discretion.
The Venue agrees to fulfil any accepted Order.
The Venue authorises the Company to refund the Customer for any unfulfilled or incorrect Order, as determine reasonably by the Company.
The Venue acknowledges that each Order placed and paid for by the Customer via Table App creates any agreement supply and purchase between the Venue and Customer when the Venue receives the Order, in accordance with the Terms of Service.
Tayble POS can only be used on compatible Devices, as advised by the Company.
Where the Company provides the Venue with a Device the Venue acknowledges and agrees that:
The Company remains the owner of the Device and the Venue will be considered a bailee (i.e. borrower) of the Device at law;
The Venue must not use the Device for any purpose other than using Tayble POS;
The Company may require the Venue to pay an additional Fee for using a Device;
If the Device is lost or damaged, the Venue shall be responsible for the costs of repairing or replacing the Device as is reasonably required.
The Company is not responsible for the performance of any Device or other hardware under any circumstance.
Tayble POS may be integrated with other Third Party Systems
The Venue acknowledges and agrees that functionality of Tayble POS may become limited if the Third Party System becomes unavailable, and that the Venue may lose functionality or content that is shared between the Third Party System and Tayble POS;
The Venue may disconnect the connection between Tayble POS and the Third Party System at any time.
The Company has no relationship with any Third Party System provider and cannot guarantee the efficacy of any Third Party Service.
Where a Venue connects a Third Party System with Tayble POS, the Venue authorises the Company to use data from that Third Party System in order to provide Tayble to the Venue and Customers.
The Company provides support via in-app chat, email and telephone using such contact details as notified to the Venue (including via Tayble POS or the Company’s website).
The Company shall endeavour to respond to all support enquiries as soon as possible.
The Company may require approval and/or authentication of a Venue before responding to any support request, and the Venue acknowledges that support may not be able to be provided without all necessary logins, codes and/or access to Third Party Systems (which if provided shall be maintained as Confidential Information pursuant to this Agreement).
In some cases, the Company may be able to provide implementation or support via Remote Access. The Company shall notify the Venue prior to accessing the Device, and the Venue shall provide the Company with any additional consent it requires in order provide services via Remote Access.
CRM AND ANALYTICS
Tayble App may include CRM and analytics tools designed to maintain relationships between the Venue and its Customers, in order to generate sales.
CRM tools and analytics are dependent on the quality of information provided by the Venue and its Customers. The Company does not warrant:
The efficacy of any CRM tool incorporated within Tayble POS; or
The accuracy of any analytics incorporated within Tayble POS.
The Customer is responsible for its use of Tayble App, including its own compliance with anti-spam legislation.
FEES AND PAYMENTS
The Venue shall set the sales tax-inclusive price of Menu Items in its absolute discretion.
At the commencement of this Agreement, the Service Fee shall be $0.20 plus 5% of the GST-exclusive value of each Order.
The Company may waive or reduce any of the Service Fee at any time without the consent of the Customer.
The Company may increase the Service Fee from time-to-time by providing the Venue with 10 Business Days’ written notice. If the Venue does not accept a review of the Service Fee, the Customer may terminate this agreement by providing the Company with 30 days’ written notice.
Payments for Orders made via Tayble App shall be processed by the Company.
The Company shall deduct the Service Fee from the payment for each Order from the Customer.
The Company will remit payment for Orders (less any Service Fees) within 8 Business Days to the Venue’s nominated bank account
For clarity, the Company is under no obligation to pay the Venue any amount prior to funds being received from a Customer.
Expenses & Taxation
The Venue is responsible for all expenses incurred in fulfilling an Order.
The Venue acknowledges that it is solely responsible for the assessment and payment of its own taxes, and that pricing of Menu Items in Tayble App is inclusive of any relevant sales-taxes.
Where the Venue is located in Australia or operated by an Australian entity:
The Company shall charge GST on top of the Service Fee, and shall provide the Venue with a Tax Invoice for the Service Fee and GST; and
At the Company’s discretion (which will be notified to the Venue in writing):
The Venue must provide the Company with a Tax Invoice (or if the Venue is not registered for GST, just an invoice) for any payments made to it by the Company in the previous week by no later than 5.00pm each Monday; or
The Company will issue the Venue a Recipient Created Tax Invoice (or if the Venue is not registered for GST, just a recipient created invoice) for its Service Fees in the payment period.
The Venue agrees and acknowledges that:
The Venue is not a contractor, partner or joint venturer of the Company, and the Venue does not provide any goods or services to Customers on behalf of the Company;
The Venue is not an employee of Company;
The Company is not an agent of the Venue or the Customer; and
The Company makes no representation as to the quality of Menu Items provided by the Venue.
The Venue agrees that it is solely responsible for the provision of Menu Items and services to the Customer.
The Venue warrants that:
All information submitted to the Company, or a Customer, is true and accurate to the best of the Venue’s knowledge, including with regard to the Menu Items made available via Tayble App; and
The Venue holds all current permits and licences necessary to operate in its local jurisdiction.
The Company is under no obligation to ensure that a Venue receives an Order, and makes no warranty or representation that the Venue will receive an Order.
MODIFICATION OF TERMS
The terms of this Agreement may be updated by the Company from time-to-time.
Where the Company modifies the terms, it will provide the Venue with no less than 10 Business Days’ written notice, and the Venue will be required to accept the modified terms in order to continue using Tayble as a Venue.
The modified terms shall come into effect the next time the Venue accesses Tayble POS following expiry of the notice period for the updated terms//
TERMINATION AND SUSPENSION
Either party may terminate this Agreement by giving the other party 5 Business Days’ written notice.
The Company may suspend (to investigate) the Venue’s use of Tayble POS without penalty or liability if (without limitation):
The Company reasonably believes that the Venue:
Is in breach, or will become in breach, of this Agreement;
Is no longer actively trading; and/or
Customers are making complaints about the Venue.
Termination or suspension does not affect any of the rights accrued by a party prior to termination or suspension, and the rights and obligations under clauses 10, 11 and 12 survive termination of this Agreement. The Venue agrees and acknowledges that following termination:
The Venue shall return any Device owned by the Company provided to the Venue for use subject to this Agreement; and
Will grant the Company access to each Venue in order to remove any Device it owns, or uninstall/disconnect a Device from Tayble POS
The Company makes no warranty as to the suitability of Tayble with regards to the Venue’s privacy obligations at law or contract, and it is the Venue’s responsibility to determine whether Tayble is appropriate for the Venue’s circumstances.
The Venue agrees to maintain all personal information that comes into their possession or knowledge via Orders or Remote Access (in particular, the names, addresses and contact details of Customers) as Confidential Information under this Agreement.
For the purposes of this Agreement, Confidential Information means any written or verbal information that:
Is expressly identified in this Agreement to be Confidential Information;
Is about each party’s business or affairs;
Is about the conduct of each party under this Agreement and the during the term of this Agreement;
A party informs the other party that it considers it confidential and/or proprietary;
A party would reasonably consider to be confidential in the circumstances; and
Is personal information within the meaning of the Privacy Act,
however Confidential does not include information that a party can establish:
Was in the public domain at the time it was given to that party;
Became part of the public domain, without that party’s involvement in any way, after being given to the party;
Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
A party shall not:
Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
Disclose any of the Confidential Information except in accordance with clause 10.2.
Subject to clause 10.3, a Party may disclose Confidential Information that a Party is required to disclose:
By law or by order of any court or tribunal of competent jurisdiction; or
By any Government Agency, stock exchange or other regulatory body.
If a party is required to make a disclosure under clause 10.2, that party must:
To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
Only disclose Confidential Information to the extent necessary to comply.
The Venue and the Company must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
LIABILITY & INDEMNITY
The Venue agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with:
The Venue’s interaction with a Customer (including fulfilling Orders); and
The Venue’s breach of this Agreement.
In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, illness, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Venue’s access to, or use of, or inability to use any of the Company’s services and/or Tayble App or Tayble POS, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, illness, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
The re-supply of services or payment of the cost of re-supply of services; or
The replacement or repair of goods or payment of the cost of replacement or repair.
If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
Includes or is accompanied by full and detailed particulars of the Dispute; and
Is delivered within 10 Venue Days of the circumstances giving rise to the Dispute first occurring.
Within 10 Venue Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
ELECTRONIC COMMUNICATION AND NOTICES
The parties agree they intend to be bound by the terms of this Agreement if it is signed, entered into and/or exchanged electronically.
The Venue can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the Venue of a change of details from time-to-time.
The Company will send the Venue notices and other correspondence to the details that the Venue submits to the Company, or that the Venue notifies the Company of from time-to-time. It is the Venue’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing. To the extent that any Special Conditions are inconsistent with the terms of this agreement, the Special Conditions will prevail.
The Venue may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Venue.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
No Joint Venture or Partnership. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law. This Agreement is governed by the laws of the state of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
Time. Time is of the essence in this Agreement.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
Interpretation. The following rules apply unless the context requires otherwise:
Headings are only for convenience and do not affect interpretation.
The singular includes the plural and the opposite also applies.
If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
A reference to a clause refers to clauses in this Agreement.
A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.