Terms of Use

1. NxtPOS Services

NxtPOS provides cloud-based point-of-sale and hospitality technology services.

Depending on the services selected by your business, NxtPOS may provide functionality including:

• point-of-sale software;
• sales and order management;
• online ordering;
• pickup and delivery ordering;
• QR and table ordering;
• menu management;
• customer records;
• kitchen and receipt printing;
• EFTPOS integrations;
• online payment integrations;
• reporting and analytics;
• staff access and permissions;
• third-party delivery integrations; and
• other services made available by NxtPOS from time to time.

The functionality available to you may depend on your selected plan, equipment, integrations and commercial agreement.

2. Eligibility and Authority

You must be legally capable of entering into an agreement to use the NxtPOS Services.

Where you create or use an account on behalf of a business, you represent that you have authority from that business to access and use NxtPOS.

The business is responsible for the activities of its authorised owners, administrators, managers, employees and other users.

3. Account Registration

You must provide accurate and current information when creating or maintaining a NxtPOS account.

You are responsible for keeping your account details up to date.

You must not:

• create an account using false information;
• impersonate another person or business;
• provide access to unauthorised persons; or
• knowingly use another user's account without authority.

4. Account Security

You are responsible for taking reasonable steps to protect your NxtPOS account, including usernames, passwords, PINs and administrator credentials.

You should:

• use secure passwords;
• restrict administrator access;
• provide staff only with appropriate permissions;
• remove access when staff leave the business; and
• notify NxtPOS promptly if you suspect unauthorised account access.

NxtPOS will take reasonable measures to protect systems and information under its control.

5. Acceptable Use

You must use NxtPOS only for lawful business purposes.

You must not use NxtPOS to:

• engage in fraudulent transactions;
• sell unlawful goods or services;
• access another Venue's information without authority;
• interfere with or disrupt the NxtPOS platform;
• introduce viruses, malware or harmful software;
• attempt to bypass security measures;
• conduct unauthorised security testing;
• scrape or extract information in a manner that materially interferes with the service;
• reverse engineer, decompile or attempt to obtain NxtPOS source code except where permitted by law;
• copy or commercially exploit NxtPOS software without permission; or
• use NxtPOS in a manner that violates applicable law.

6. Venue Responsibilities

Restaurants and other businesses using NxtPOS remain responsible for their own business operations.

This includes responsibility for:

• food and product quality;
• food safety;
• product descriptions;
• menu prices;
• GST and other tax obligations;
• trading hours;
• product availability;
• preparation times;
• allergens and dietary information where applicable;
• fulfilment of customer orders;
• refunds arising from Venue-controlled matters;
• staff conduct; and
• compliance with laws applying to the Venue.

NxtPOS provides technology to assist the Venue in operating its business but does not operate the Venue itself.

7. Hardware

NxtPOS software may support approved third-party hardware, including certain:

• Apple iPads;
• Android tablets and devices;
• Sunmi devices;
• Epson thermal printers;
• Star Micronics thermal printers;
• EFTPOS terminals; and
• other compatible equipment.

Compatibility may depend on device model, operating system, firmware, network configuration and other technical requirements.

Unless specifically sold by NxtPOS with an express warranty, NxtPOS does not manufacture or warrant third-party hardware.

A malfunction of an iPad, Android device, printer, EFTPOS terminal, router or other third-party device does not by itself constitute a failure of the NxtPOS software.

Where reasonably possible, NxtPOS will assist in determining whether an issue relates to NxtPOS software or third-party equipment.

8. Internet and Connectivity

Certain NxtPOS features require access to the internet, Wi-Fi, mobile data or telecommunications networks.

The Venue is responsible for maintaining suitable internet connectivity, networking equipment and electricity.

NxtPOS is not responsible for service interruption caused solely by matters outside NxtPOS's reasonable control, including:

• internet service provider outages;
• Venue Wi-Fi failures;
• mobile network outages;
• router failures;
• power outages;
• third-party infrastructure failures; or
• problems with Venue-controlled equipment.

9. Online Orders

NxtPOS may provide technology allowing customers to place orders with a Venue online.

The Venue is responsible for maintaining accurate menu information, prices, product availability, opening hours and fulfilment information.

An order placed through NxtPOS constitutes an order with the relevant Venue for the products or services supplied by that Venue.

NxtPOS provides the ordering technology but, unless expressly stated otherwise, is not the seller or supplier of the Venue's food, beverages or other products.

10. Payment Successfully Taken but Order Not Received

Occasionally a payment may be successfully authorised or processed while an order is not successfully received by the Venue.

If this occurs, NxtPOS will investigate the transaction.

Where NxtPOS verifies that:

1. payment was successfully processed;
2. the Venue did not receive the corresponding order; and
3. the issue arose from the NxtPOS platform or applicable integrated transaction process,

NxtPOS will take reasonable steps to arrange or facilitate the appropriate refund through the relevant payment provider.

The time required for refunded funds to appear in a customer's account may depend on the customer's bank, card provider or payment processor and is outside NxtPOS's control.

11. Payment Processing

NxtPOS may integrate with banks, merchant acquirers, payment processors, payment gateways, EFTPOS providers and other financial technology providers.

Payment services may also be governed by the relevant provider's terms and conditions.

NxtPOS does not control third-party banking and payment networks.

NxtPOS is not responsible for failures caused solely by circumstances outside its reasonable control, such as:

• card issuer declines;
• insufficient funds;
• banking network failures;
• payment processor outages;
• card network outages;
• expired or blocked cards; or
• other payment-provider restrictions.

Nothing in these Terms excludes liability that cannot legally be excluded.

12. EFTPOS and Online Payment Fees

Applicable EFTPOS processing rates, online payment rates, terminal charges, subscription charges and other commercial fees are specified in the Venue's Service Agreement, Order Form or Commercial Schedule.

Fees may differ between Venues where individual commercial arrangements have been negotiated.

The Venue must pay the fees applicable to its agreement with NxtPOS.

13. Card Surcharges

Where the Venue applies a card surcharge to its customers, the Venue is responsible for ensuring that the surcharge complies with applicable Australian laws and payment-provider requirements.

NxtPOS providing technology capable of applying a surcharge does not authorise the Venue to impose a surcharge that is prohibited by law.

14. Customer and Venue Data

As between NxtPOS and the Venue, the Venue retains ownership of the business and customer data that it enters into NxtPOS.

The Venue grants NxtPOS permission to process that data as reasonably necessary to:

• provide NxtPOS Services;
• process and transmit orders;
• provide reporting;
• provide technical support;
• maintain backups;
• protect platform security;
• prevent fraud;
• comply with legal obligations; and
• otherwise operate the contracted services.

Personal information will be handled in accordance with the NxtPOS Privacy Policy and applicable privacy requirements.

15. Exported Data

NxtPOS may allow authorised users to export or download customer, sales, order or other business information.

Once an export has been successfully transferred outside systems controlled by NxtPOS, the Venue is responsible for protecting that exported copy.

NxtPOS is not responsible for loss, deletion, corruption, misuse or unauthorised disclosure of an exported copy caused by:

• the Venue;
• Venue staff;
• Venue-controlled equipment;
• third-party applications selected by the Venue; or
• other circumstances outside NxtPOS's reasonable control.

This provision does not remove any responsibility NxtPOS may have for information that remains within systems under NxtPOS's control.

16. Deleted Data

Users must take care when deleting information.

Where an authorised Venue user intentionally deletes information, NxtPOS does not guarantee that the information can be recovered.

NxtPOS may maintain backups for security, continuity, compliance and disaster recovery purposes.

17. Privacy

Use of NxtPOS is also subject to the NxtPOS Privacy Policy.

Where applicable, NxtPOS will handle personal information consistently with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

The Venue is separately responsible for satisfying privacy obligations applying to its collection and use of customer information.

18. Third-Party Services and Integrations

NxtPOS may integrate with third-party products and services, including:

• payment providers;
• EFTPOS providers;
• delivery providers;
• accounting platforms;
• analytics providers;
• cloud infrastructure providers; and
• other hospitality technology providers.

Third-party services may be subject to separate terms and privacy policies.

NxtPOS is not responsible for an independent failure, change, suspension or termination of a third-party service except to the extent the issue results from NxtPOS's own acts or omissions or liability cannot lawfully be excluded.

19. Software Updates

NxtPOS may periodically update the software to:

• improve functionality;
• introduce new features;
• correct errors;
• improve security;
• maintain device compatibility;
• comply with legal requirements; or
• improve performance.

NxtPOS may change or replace features where reasonably necessary.

Where a change materially affects paid core functionality, NxtPOS will provide reasonable notice where practicable.

20. Maintenance

NxtPOS may perform scheduled or emergency maintenance.

Where reasonably practicable, NxtPOS will seek to minimise disruption.

Emergency maintenance may be carried out without advance notice where reasonably necessary to protect security, data or service availability.

21. Service Availability

NxtPOS aims to provide reliable service but does not guarantee that every service will operate continuously without interruption.

Temporary disruptions may occur because of maintenance, security incidents, infrastructure issues, telecommunications failures or other circumstances.

NxtPOS will use reasonable efforts to investigate and resolve problems within systems under its control.

22. Technical Support

NxtPOS will provide reasonable technical support for supported NxtPOS services.

NxtPOS support may assist with determining whether a problem originates from:

• NxtPOS software;
• a payment integration;
• a supported printer;
• third-party hardware;
• internet/network connectivity; or
• another integrated service.

NxtPOS is not required to repair third-party hardware unless separately agreed.

23. Intellectual Property

NxtPOS and its licensors retain all rights in the NxtPOS platform, including:

• software;
• source code;
• databases and platform architecture;
• trademarks;
• branding;
• interface designs;
• documentation; and
• other intellectual property.

Your subscription gives you a limited, non-exclusive and non-transferable right to use the NxtPOS Services for your authorised business purposes during your subscription.

It does not transfer ownership of the NxtPOS software to you.

24. Feedback

If you provide suggestions or feedback about NxtPOS, we may use that feedback to improve our products and services.

We will not treat feedback as transferring ownership of the Venue's confidential business or customer information.

25. Suspension of Access

NxtPOS may temporarily suspend access where reasonably necessary to:

• protect platform security;
• prevent suspected fraud;
• respond to unlawful activity;
• prevent material harm to NxtPOS or other users;
• address a serious breach of these Terms; or
• address undisputed overdue fees after reasonable notice.

Where reasonably practicable, NxtPOS will notify the Venue and provide an opportunity to remedy the issue.

26. Cancellation

Cancellation of a paid NxtPOS service will be governed by the Venue's applicable Service Agreement or Commercial Schedule.

Where the Venue has a month-to-month agreement, the agreed notice period will apply.

Termination or cancellation does not eliminate fees or liabilities properly incurred before the effective cancellation date.

27. Limitation of Liability

To the maximum extent permitted by law, NxtPOS is not responsible for indirect or consequential loss caused solely by matters outside its reasonable control.

Any limitation of liability applies only to the extent permitted by law.

Nothing in these Terms excludes, restricts or modifies rights, guarantees, remedies or liabilities that cannot lawfully be excluded under applicable Australian law, including the Australian Consumer Law.

28. Indemnity

To the extent permitted by law, a Venue may be responsible for loss reasonably incurred by NxtPOS arising from the Venue's unlawful use of the NxtPOS Services, fraud, infringement of third-party rights or material breach of these Terms.

This clause does not require the Venue to indemnify NxtPOS for loss caused by NxtPOS's own negligence, wrongful acts or breach of this Agreement.

29. Changes to These Terms

NxtPOS may update these Terms from time to time where reasonably necessary, including because of changes to:

• law or regulation;
• technology;
• security requirements;
• NxtPOS functionality;
• payment providers; or
• third-party integrations.

Where a change materially affects an existing Venue's contractual rights or obligations, NxtPOS will provide reasonable notice where practicable.

Changes to individually negotiated pricing will be governed by the Venue's Service Agreement or Commercial Schedule.

30. Australian Consumer Law

Nothing in these Terms is intended to exclude, restrict or modify any consumer guarantee, right, remedy or liability that cannot legally be excluded, restricted or modified under the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law.

31. Governing Law

These Terms are governed by the laws of Western Australia, Australia.

Subject to any rights that cannot lawfully be excluded, the parties submit to the jurisdiction of the courts and tribunals of Western Australia.

32. Contact

Questions concerning these Terms can be directed to:

Nxtwave Innovations Pty Ltd trading as NxtPOS

Email: info@nxtpos.com.au

Website: nxtpos.com.au

33. Relationship With Other NxtPOS Documents

These Terms of Use operate together with:

1. the NxtPOS Privacy Policy;
2. the Venue Service Agreement;
3. the Venue's Commercial Schedule or Order Form; and
4. any applicable third-party payment, terminal or integration terms.

If an individually signed Service Agreement or Commercial Schedule contains a negotiated commercial term that differs from these general Terms of Use, the signed commercial agreement should prevail in relation to that negotiated commercial term.