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1. Agreement to Terms

These Terms of Service ("Terms") govern your access to and use of the services provided by Upmerk POS Pty Ltd (ABN XX XXX XXX XXX) ("Upmerk", "we", "us", or "our"), including our website, mobile applications, point of sale software, hardware, and related services (collectively, the "Services").

By creating an account, accessing, or using our Services, you agree to be bound by:

• These Terms of Service
• Our Privacy Policy
• Our Cookie Policy
• Any additional terms applicable to specific Services

If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these Terms.

2. Our Services

2.1 Description of Services

Upmerk provides cloud-based point of sale software and related services designed for hospitality and retail businesses, including:

• Point of sale software for processing transactions
• Inventory management tools
• Customer relationship and loyalty management
• Reporting and analytics
• Integration with third-party services
• Hardware products (terminals, kiosks, peripherals)

2.2 Service Availability

We strive to maintain 99.9% uptime for our cloud services. However, we do not guarantee uninterrupted access, and services may be temporarily unavailable due to:

• Scheduled maintenance (we will provide advance notice where practicable)
• Emergency maintenance or security updates
• Factors outside our reasonable control

2.3 Offline Mode

Our software includes offline functionality allowing continued operation during internet outages. Data will sync automatically when connectivity is restored. We are not liable for any data discrepancies that may occur during extended offline periods.

3. Account Registration

3.1 Eligibility

To use our Services, you must:

• Be at least 18 years of age
• Be capable of entering into a legally binding contract
• Not be prohibited from using the Services under Australian law or the laws of your jurisdiction
• Provide accurate and complete registration information

3.2 Account Security

You are responsible for:

• Maintaining the confidentiality of your account credentials
• All activities that occur under your account
• Notifying us immediately of any unauthorised access
• Ensuring your account information remains accurate and up-to-date

3.3 Business Verification

We may require verification of your business identity, including ABN/ACN verification, before activating certain Services or payment processing features.

4. Subscriptions and Payments

4.1 Subscription Plans

We offer various subscription plans with different features and pricing. Current plans and pricing are displayed on our website. All prices are in Australian Dollars (AUD) unless otherwise specified and are exclusive of GST.

4.2 Free Trial

We may offer a free trial period for certain plans. At the end of the trial, you will be automatically enrolled in the selected paid plan unless you cancel before the trial ends. No charges will be made without prior notification.

4.3 Billing and Payment

• Subscription fees are billed in advance on a monthly or annual basis
• Payment is due on the billing date specified in your account
• We accept major credit cards and direct debit (where available)
• All fees are non-refundable except as required by Australian Consumer Law

4.4 Price Changes

We may modify our pricing with at least 30 days' notice. Price changes will take effect at the start of your next billing cycle. You may cancel your subscription if you do not agree to the new pricing.

4.5 GST

All prices are exclusive of GST. GST will be added to your invoice in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4.6 Late Payment

If payment is not received by the due date, we may:

• Suspend access to your account
• Charge interest on overdue amounts at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic)
• Recover reasonable debt collection costs

5. Consumer Guarantees

5.1 Consumer Guarantees for Services

Under the Australian Consumer Law, we guarantee that our Services will be:

• Provided with due care and skill
• Fit for their specified purpose
• Provided within a reasonable time (when no time is specified)

5.2 Consumer Guarantees for Goods (Hardware)

Hardware products come with guarantees that they will:

• Be of acceptable quality
• Be fit for any disclosed purpose
• Match their description
• Have spare parts and repair facilities available for a reasonable time

5.3 Remedies

If our Services or goods fail to meet a consumer guarantee:

• Major Failure (Services): You may cancel the contract and obtain a refund, or seek compensation for the reduction in value
• Major Failure (Goods): You may reject the goods and obtain a refund or replacement
• Minor Failure: We may choose to repair, replace, or refund at our discretion

5.4 Hardware Warranty

In addition to consumer guarantees, Upmerk hardware is covered by a 12-month manufacturer's warranty against defects in materials and workmanship. This warranty does not cover damage from misuse, accidents, or unauthorised modifications.

6. Acceptable Use

6.1 Permitted Use

You may use our Services only for lawful business purposes in accordance with these Terms.

6.2 Prohibited Conduct

You must not:

• Use the Services for any illegal purpose or to process proceeds of crime
• Violate any applicable laws, including the Competition and Consumer Act 2010 (Cth)
• Infringe any intellectual property rights
• Transmit viruses, malware, or harmful code
• Attempt to gain unauthorised access to our systems
• Interfere with or disrupt the Services
• Use automated systems to access the Services without permission
• Resell or redistribute the Services without authorisation
• Process transactions for prohibited businesses (e.g., illegal gambling, controlled substances)

6.3 Compliance with Payment Card Rules

You must comply with all applicable payment card network rules (Visa, Mastercard, etc.) and PCI-DSS requirements when using our payment processing features.

7. Intellectual Property

7.1 Our Intellectual Property

The Services, including all software, designs, text, graphics, logos, and other content, are owned by Upmerk or our licensors and are protected by Australian and international intellectual property laws. You are granted a limited, non-exclusive, non-transferable licence to use the Services during your subscription period.

7.2 Restrictions

You may not:

• Copy, modify, or create derivative works of the Services
• Reverse engineer, decompile, or disassemble the software
• Remove any proprietary notices or labels
• Sublicense, sell, or transfer your rights to the Services

7.3 Feedback

If you provide feedback or suggestions about our Services, you grant us a perpetual, royalty-free licence to use that feedback to improve our Services.

8. Your Data

8.1 Ownership

You retain ownership of all data you input into our Services ("Your Data"). We do not claim ownership of Your Data.

8.2 Licence to Us

You grant us a limited licence to use Your Data solely to provide and improve the Services. This includes creating anonymised, aggregated data for analytics and product development.

8.3 Data Export

You may export Your Data at any time through our export functionality. Upon termination, we will make Your Data available for export for 30 days before deletion.

8.4 Data Security

We implement industry-standard security measures to protect Your Data. However, no method of transmission or storage is 100% secure. You are responsible for maintaining backups of critical business data.

8.5 Customer Personal Information

If you collect personal information from your customers using our Services, you are responsible for compliance with the Privacy Act 1988 (Cth), including:

• Providing appropriate privacy notices to your customers
• Obtaining necessary consents for marketing communications
• Responding to access and correction requests

9. Third-Party Services

9.1 Integrations

Our Services integrate with third-party applications (e.g., delivery platforms, accounting software). Your use of third-party services is subject to their own terms and privacy policies. We are not responsible for the availability, accuracy, or conduct of third-party services.

9.2 Payment Processors

Payment processing is provided by third-party payment processors. By using payment processing features, you agree to the terms of the applicable payment processor and payment card networks.

10. Limitation of Liability

10.1 Exclusion of Certain Damages

To the maximum extent permitted by law, we are not liable for:

• Indirect, incidental, special, consequential, or punitive damages
• Loss of profits, revenue, data, or business opportunities
• Damages arising from your use of third-party services
• Damages caused by factors outside our reasonable control

10.2 Cap on Liability

Our total liability for any claims arising from or related to these Terms or the Services is limited to the greater of:

• The amount you paid us in the 12 months preceding the claim; or
• $500 AUD

10.3 Exceptions

Nothing in these Terms excludes or limits our liability for:

• Death or personal injury caused by our negligence
• Fraud or fraudulent misrepresentation
• Breach of consumer guarantees under Australian Consumer Law
• Any liability that cannot be excluded by law

11. Indemnification

You agree to indemnify and hold harmless Upmerk, its directors, officers, employees, and agents from any claims, damages, losses, and expenses (including legal fees) arising from:

• Your breach of these Terms
• Your violation of any law or third-party rights
• Your use of the Services
• Any data you submit through the Services

12. Termination

12.1 Termination by You

You may cancel your subscription at any time through your account settings or by contacting us. Cancellation takes effect at the end of your current billing period. No refunds are provided for unused portions of prepaid periods, except as required by Australian Consumer Law.

12.2 Termination by Us

We may suspend or terminate your access to the Services:

• Immediately if you breach these Terms
• If your payment is overdue by more than 14 days
• If we are required to do so by law
• If we discontinue the Services (with 90 days' notice)

12.3 Effect of Termination

Upon termination:

• Your licence to use the Services ends immediately
• You must pay any outstanding fees
• You may export Your Data for 30 days
• We will delete Your Data after 30 days (unless legally required to retain it)

13. Dispute Resolution

13.1 Informal Resolution

Before initiating formal proceedings, you agree to contact us and attempt to resolve the dispute informally for at least 30 days.

13.2 Mediation

If informal resolution fails, either party may refer the dispute to mediation administered by the Resolution Institute (formerly IAMA) under its mediation rules. Mediation will take place in Sydney, NSW.

13.3 Governing Law and Jurisdiction

These Terms are governed by the laws of New South Wales, Australia. You agree to submit to the exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia sitting in Sydney.

13.4 Class Action Waiver

To the extent permitted by law, any dispute must be brought in your individual capacity and not as a plaintiff or class member in any class or representative proceeding.

14. General Provisions

14.1 Entire Agreement

These Terms, together with our Privacy Policy and any additional terms, constitute the entire agreement between you and Upmerk regarding the Services.

14.2 Amendments

We may modify these Terms by posting updated Terms on our website. Material changes will be notified via email or in-app notification at least 30 days before taking effect. Continued use of the Services after changes take effect constitutes acceptance of the modified Terms.

14.3 Severability

If any provision of these Terms is held to be invalid or unenforceable, that provision will be modified to the minimum extent necessary, and the remaining provisions will continue in full force and effect.

14.4 Waiver

Our failure to enforce any right or provision of these Terms does not constitute a waiver of that right or provision.

14.5 Assignment

You may not assign your rights under these Terms without our prior written consent. We may assign our rights to any affiliate or in connection with a merger, acquisition, or sale of assets.

14.6 Force Majeure

We are not liable for any failure or delay in performing our obligations due to circumstances beyond our reasonable control, including natural disasters, government actions, pandemic, or internet failures.

14.7 Notices

Notices to you may be sent to the email address associated with your account. Notices to us should be sent to legal@upmerkpos.com or our registered address.

15. Contact Information