BXT Technology's Terms of Service

Introduction

Welcome to BXT Technology! By signing up for a BXT Technology Account (as defined in Section 2) or by using any Services (as defined below), you are agreeing to be bound by the following terms and conditions (Terms of Service).

The Platform is owned by BXT Technology Pty Ltd and its Affiliates (together "BXT Technology", "we", "our", or "us") and these Terms of Service explain our rights and obligations as a service provider and your rights and obligations as a single merchant or as a person acting for and on behalf of multiple merchants ("you" or "your") as identified in the Merchant Agreement. If you are acting for and on behalf of multiple merchants, where an obligation in these Terms of Service requires you to perform an obligation you agree to procure that each merchant performs that obligation.

BXT Technology provides a commerce Platform that provides merchants with solutions to sell their products, experiences and services to the BXT Technology network of consumer and corporate customers. Any such service or services offered by BXT Technology are referred to in these Terms of Service as the "Service(s)". Any new features or tools which are added to the current Services will also be subject to the Terms of Service.

We may change these Terms of Service at any time by notice to you in the manner set out in these Terms of Service, and your continued use of our Services or the Platform following such notice will constitute an agreement by you to be bound by the Terms of Service as amended.

By using the Services or accessing the Platform, you acknowledge that you have read and understood and agree to be bound by these Terms of Service and that these Terms of Service together with the Merchant Agreement will form a standing agreement between you and BXT Technology ("Agreement"). In entering into this Agreement, you acknowledge that you have the authority to act on behalf of any person or entity for whom you are using the Services or accessing the Platform, and you agree to this Agreement both personally and on behalf of that person or entity/entities. You must tell us immediately if that authority is withdrawn.

BXT Technology is not a party to the contracts entered into directly between Merchants and Customers, nor is BXT Technology responsible for the delivery or insurance of the products, services or experiences offered by Merchants via the Platform. BXT Technology is not acting as an agent in any capacity for either a Merchant or Customer, except as explicitly specified in these Terms of Service.

Please read these Terms of Service carefully and if you do not agree to them, you must not continue to use the Services or the Platform.

Definitions

Capitalised words and phrases used in this Agreement have the meanings given to them where they are followed by bolded brackets, or otherwise have the meanings given to them in the Dictionary clause below, the Corporations Act, and the GST Act.

Account Terms

• To access and use the Services, you must register for a BXT Technology account (Account). To complete your Account registration, you must provide us with your full legal name or entity name, ABN, business address, primary contact person, phone number, a valid email address, and any other information indicated as required. We may reject your application for an Account, or cancel an existing Account, for any reason, at our sole discretion.
• You confirm that you are receiving any Services provided by BXT Technology for the purposes of carrying on a business activity and not for any personal, household or family purpose.
• You acknowledge that BXT Technology will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you. You agree to monitor the email address you provide to us for the purpose of receiving the Services.
• You are responsible for keeping your password secure. BXT Technology will not be liable for any loss or damage from your failure to maintain the security of your Account and password.

Licence

• BXT Technology grants to you a non-exclusive, non-transferable, non-sublicensable licence for the Merchants to use and access the Platform during the Term on the terms set out in the Agreement (Licence).
• In exchange for BXT Technology granting the Licence to you, you agree to pay the Fees on the terms set out in this Agreement.
• If this Agreement is terminated for any reason, then the Licence together with BXT Technology's provision of the Services, will immediately terminate.

Term

• The term of the Agreement will commence on the Commencement Date and continue until terminated in accordance with the Agreement (Term).
• The Agreement may be terminated by either party for convenience, provided that the terms of this Agreement will continue to apply to the parties up to the date of termination.

Set-Up Services

• BXT Technology will provide the Set-Up Services for the Merchants.
• You must give BXT Technology reasonable assistance to allow BXT Technology to provide the Set-Up Services, including by providing BXT Technology with copies of logos and branding assets and any other information and assistance as BXT Technology may reasonably require from time to time.
• In the event that a Merchant does not approve of the Set-Up Material published (such approval not to be unreasonably withheld, delayed or conditioned), you will notify BXT Technology within two (2) days of publication. BXT Technology will use its commercially reasonable endeavours to address and rectify your reasonable concerns in respect of any Set-Up Material.
• You grant to BXT Technology a royalty-free, worldwide, non-transferrable licence to use and publish any of the Merchant's Intellectual Property Rights in the Set-Up Material, including trademarks and copyright in any Set-Up Material provided by the Merchant.

API Access

During the course of performing under this Agreement, BXT Technology may assign Merchant certain confidential API authorisation keys for use with the API (API Key), in which you agree:

• to store on a secure server with controlled access, firewall and intrusion detection, network monitoring and other reasonable requirements as may be communicated to the Merchant by BXT Technology in writing from time to time;
• that the API Key must be concealed or encrypted to prevent unauthorized access and/or use;
• that BXT Technology may change the API Keys from time to time and such modifications of the API Key may affect Merchant's API access requiring the Merchant to make changes to continue to be compatible with or interface with the API; and
• that the API Key is the property of BXT Technology and may not be sold, transferred, sublicensed or otherwise disclosed to unauthorized third-parties by Merchant.

Your Obligations

Provide Information

You may be required to provide BXT Technology with documentation, information and assistance reasonably required by us to perform the Services, including billing details and other account information (Financial Information) if you do not hold a Stripe account and require that we set one up for you, to allow the processing of payments for products and services that the Merchants wish to provide via the Platform.

Compliance with Laws

You agree that by receiving or requesting the Services, you:

• will not breach any applicable Laws (including any applicable privacy laws);
• have a current and valid ABN/business registration, appropriate insurance policies, and — if the Merchants sell alcoholic beverages — a liquor licence, when applicable as required under relevant state legislation; and
• are not and will not infringe the Intellectual Property Rights or other rights of any third party, or breach any duty of confidentiality.

Use of Platform

You must not:

• use the Platform in any way that damages or could damage the reputation of BXT Technology, or the goodwill or other rights associated with the Platform;
• charge any third party to use the Platform;
• provide Customers with any information about BXT Technology that is false, misleading or inaccurate;
• except as expressly permitted by this Agreement, reproduce, make error corrections to or modify or adapt the Platform or create any derivative works based upon the Platform; de-compile, disassemble or otherwise reverse engineer the Platform; or modify, remove or whitewash any copyright or proprietary notices on the Platform; or
• access, store, distribute or transmit any viruses, or any material during your use of the Platform that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory; facilitates illegal activity; depicts sexually explicit images; causes damage or injury to any person or property; or violates any applicable laws.

You shall use all reasonable endeavours to prevent any unauthorised access to, or use of your Account or the Platform and, in the event of any such unauthorised access or use, promptly notify BXT Technology. BXT Technology reserves the right, without liability to you or the Merchants, to disable your Account or remove any material published on the Platform that breaches these provisions.

Obligations in respect of Orders

• When a Customer makes an Order using the Platform, the Merchant will be issued with a notification (Order Notification).
• When a Customer makes an Order in relation to a Product, you must: dispatch all standard delivery products within 24 hours of receipt of Order; ensure the tracking number is added to the Product within 2 days from the date of the Order; ship and/or deliver the Product to the Customer via the Platform only; notify the Customer of any delays to the shipment of the Product; and ensure that if an Order is unable to be completed for whatever reason, you must notify the Customer and submit a refund via the Platform within 24 hours of receiving the Order.
• BXT Technology is not responsible for the delivery of the Product (the Merchant is responsible for ensuring the Product is properly shipped to the Customer), damaged Products, or warranty of the Products.
• The Merchant is responsible to ensure all services and experiences are provided as advertised and to a high standard to ensure Customer satisfaction; to ensure Products or services are provided as advertised; and for updating and keeping all stock inventory or booking calendars up to date.

Obligations and Restrictions on Use of Integrations

• Merchant must prevent unauthorised access to, or use of the Integrations and notify BXT Technology promptly of any such unauthorized access or use (including any caused by misuse or misappropriation of the API Key or passwords); notify BXT Technology promptly if the API Key is disclosed, lost or stolen; comply with all applicable laws related to privacy, data security, and data protection; and co-operate with any of BXT Technology's reasonable directions in relation to the processing of any personal information for the purposes of complying with BXT Technology's Privacy Policy.
• Merchant must not use the Integrations in violation of applicable laws; send or store infringing, obscene, threatening, or otherwise unlawful material; send or store malicious code; interfere with or disrupt performance of the Integrations; attempt to gain unauthorised access to the Integrations or related systems; modify, copy or create derivative works based on the Integrations; license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer as a service, or otherwise make the Integrations available to any third party; reverse engineer or decompile any portion of the Integrations; access the Integrations in order to build any competitive or commercially available product or service; copy any features, functions, integrations, interfaces or graphics of the Integrations; or allow, permit or assist any third party to do any of the foregoing.

Additional Merchant Obligations

• Ensure that the Merchant's inventory for its Products is kept up to date on their Account.
• Co-operate with BXT Technology in any way reasonably required by BXT Technology to provide business efficacy to this Agreement.
• Carry out your obligations in a timely and efficient manner.
• Do all things reasonable to ensure that you, the Merchants and your Customers use the Platform in accordance with this Agreement and BXT Technology's Terms of Use (https://www.bxttechnology.com.au/terms-condition) and Privacy Policy (https://www.bxttechnology.com.au/privacy-policy).
• Be responsible for customer service relating to all Orders and delivery quality.
• Act in good faith when requests are made by BXT Technology to promptly resolve disputes with Customers (including where necessary, taking any action reasonably directed by BXT Technology as may be required to protect our legitimate business interests).
• Not commence advertising or offering Restricted Goods for sale without the prior written consent of BXT Technology.
• Obtain and maintain all necessary hardware and third-party software licences necessary to be able to access the Platform.
• Be solely responsible for procuring and maintaining network connections and telecommunications links from the Merchant systems to the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Merchant's network connections or telecommunications links.

Indemnity

You shall indemnify, and keep indemnified and hold harmless, BXT Technology from and against all Loss suffered or incurred by BXT Technology or its Affiliates as a result of a breach of this clause.

Our Obligations

• Subject to the terms of the Agreement, we will provide you with access to the Platform and the Services.
• In order for you to obtain the benefit of the Platform, we will provide you with a plugin to our platform (Plugin Access) and where the Plugin Access is not available, access to our application programming interface (API Access) will be provided.
• We agree to provide the Services, including the Set-up Services, resolving access issues with the Platform and updating any Merchant related information on the Platform to which the Merchant does not have access.
• We reserve the right to change, suspend, remove, or disable access to any feature of the Platform or Services at any time without notice and BXT Technology will not be liable for such change, suspension, removal or disabling of access. We may also impose limits on the use of or access to the Platform if we determine that it is in the interests of our genuine business needs in our sole discretion without any notice or liability.

Support Services

• BXT Technology will provide the Support Services, which includes seeking to resolve access issues with the Platform and updating any Merchant related information on the Platform to which the Merchant does not have access.
• You will promptly give BXT Technology such reasonable assistance as BXT Technology considers necessary to ensure that it can provide the Support Services.

Payment Processing

• All financial transactions made through the Platform between the Merchants and Customers are to be processed via the Payment Platform.
• BXT Technology will provide the Financial Information to the Payment Platform, or may require that the Merchants provide their Financial Information to the Payment Platform directly.
• BXT Technology shall not authorise any Payment Platform to use the Financial Information in any way other than to process payments for Orders.
• BXT Technology shall not be liable for any losses of the Merchants arising out of or in relation to the processing of payments through the Platform, but will liaise with the Payment Platform to facilitate a resolution of any issues regarding payment that arise in respect of the Merchant's Accounts or any Orders.
• The Merchants appoint BXT Technology as its agent for the purposes of accepting payment from Customers who use the Platform to place Orders (Customer Payments).
• BXT Technology shall remit the Customer Payments (less the Fees) to the Merchants on each Remittance Date.

Fees

• You agree to pay the Fees to BXT Technology on the terms of this Agreement.
• BXT Technology will accept the Customer Payments and will deduct the Fees and Pass-Through Costs from those funds prior to remitting the balance to the Merchants on each Remittance Date.
• Interest shall be payable at the Penalty Interest Rate on the late payment of any Fees required to be paid by you under this Agreement, accruing on a daily basis from the due date until payment is made in full, both before and after any judgment.

Refunds, Reversals & Chargebacks

• You shall be responsible for all costs related to reimbursement to the Customer in the event that a Customer requests a refund in relation to an Order.
• In the event of a Chargeback or Reversal, you acknowledge and agree that you must pay: the Fees; the Chargeback Fee (in the event of a Chargeback); and any other associated fees incurred by BXT Technology in respect of the Chargeback or Reversal.

Hosting and Integration

• The Platform will be hosted on a cloud server operated by a third party.
• You acknowledge and agree that BXT Technology will not at any time host the Platform, and accordingly BXT Technology will not be liable for any losses occasioned by you or the Merchants arising out of or in connection with the hosting of the Platform.
• BXT Technology will notify you of any violations of the Privacy Act, or violations of the terms of this Agreement of which it becomes aware; and any request, claim, order, authority report made by any government or statutory authority in respect of the Platform or the data generated by the Platform.

Representations and Warranties

• Each party hereby represents and warrants to the other that: it has the right to deal with the Intellectual Property Rights and has the authority to grant its respective rights under this Agreement; it is a corporation duly organized, validly existing, and in good standing under the laws of Australia; the grant, execution, delivery, and performance of its obligations under this Agreement have been duly authorised by all necessary action; and this Agreement is a legal, valid, and binding obligation.
• Notwithstanding anything else in this Agreement, BXT Technology does not warrant that the Merchant's use of the Platform will be uninterrupted or error-free; and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including cloud and internet services, and you acknowledge that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Intellectual Property Rights

• Nothing in this Agreement constitutes an assignment from BXT Technology to you or the Merchants of any Intellectual Property Rights in connection with the Platform.
• You acknowledge that BXT Technology holds all Intellectual Property Rights in the Platform; will not directly or indirectly do anything that would or might invalidate or put in dispute BXT Technology's title in the Platform; will not share login details to the Platform with any third party, unless BXT Technology first provides approval in writing; and will not copy, modify, reverse engineer, decompile or attempt to extract the source code of the Platform, Website or any other associated functionality.
• BXT Technology shall retain all Intellectual Property Rights in any of the material that it creates for you and the Merchants under this Agreement.

Liability

• To the full extent permitted by law, BXT Technology excludes all liability in respect of loss of data.
• To the fullest extent permitted by law, in no circumstances will BXT Technology be liable (whether before or after the expiry or termination of the Agreement) for Consequential Loss as a result of a defect in the Platform or a breach by BXT Technology of this Agreement.
• Nothing in this Agreement excludes the liability of BXT Technology for death or personal injury caused by BXT Technology's negligence; or for fraud or fraudulent misrepresentation.
• BXT Technology's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement is limited to the amount of the Fees paid by you under this Agreement in the 12 months preceding the relevant claim.
• BXT Technology shall have no liability for any damage caused by errors or omissions in any information, instructions or material provided to BXT Technology by you or the Merchants in connection with the Platform, or any actions taken by BXT Technology at the Merchants' direction.
• All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement.
• Except as expressly and specifically provided in this Agreement, the Platform is provided to you on an "as is" basis.

Termination

• Either party may terminate this Agreement at any time by providing 60 days' written notice to the other party.
• Either party may terminate this Agreement immediately by notice in writing if: the other party is in breach of any term of this Agreement and such breach is not remedied within 14 days of receipt of notice; the other party is in breach of a term of this Agreement and such breach is incapable of remedy; or the other party suffers an Insolvency Event.

Consequences of Termination

• If this Agreement is terminated or expires for any reason: the licences (including the Licence) granted under this Agreement immediately terminate and you and the Merchants can no longer use the Platform; BXT Technology shall cease providing the Services to you and the Merchants; you must return to BXT Technology or delete all copies of any media constituting or containing BXT Technology's Intellectual Property Rights or any other thing provided to you and the Merchants under this Agreement; all amounts owing by you to BXT Technology will become immediately due and payable to BXT Technology without further notice and interest will accrue on this amount at the Penalty Interest Rate; you must immediately pay all outstanding Fees; and termination will not affect the parties' accrued rights and obligations prior to the date of termination.

Confidentiality

• Each party acknowledges that during the course of this Agreement they may convey to the other party Confidential Information. If any Confidential Information is received by a party, then that party agrees to keep it confidential and use it only for the purposes of performing its rights and obligations under this Agreement (Permitted Purpose).
• Each party shall not disclose the other party's Confidential Information in whole or in part to any third party, except to those of its or its Affiliates' employees, officers, representatives or advisers who need to know such Confidential Information for the Permitted Purpose.
• Each party may disclose the other party's Confidential Information to the extent required by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, the receiving party gives the Disclosing Party as much notice of such disclosure as reasonably possible and takes into account the reasonable requests of the disclosing party in relation to the content of such disclosure.
• This clause continues even after termination of this Agreement.

Data Protection

BXT Technology agrees to provide you and the Merchants with the customer's order details (Order Details) to the extent necessary for the Merchants to manage and fulfil the customer's order (Purpose). To the extent that the Order Details contains any Personal Information of the customer, the parties acknowledge and agree that:

• you and the Merchants shall not access or use such Personal Information other than as necessary for the Purpose;
• you will destroy any copies of such Personal Information as soon as it is no longer needed by the Merchant for the Purpose; and
• you will comply with the Data Protection Legislation at all times, and shall, upon request, provide reasonable assistance to the other party in the event that a customer exercises its rights under the Data Protection Legislation, or a query or investigation is commenced by a Data Protection Authority.

GST

• Unless otherwise set out in this Agreement, all Fees are exclusive of GST and any other similar duties, levies or taxes (if applicable) which shall be added to the Fees by BXT Technology at the prevailing rate.
• Any amount payable by you to BXT Technology under this Agreement is a payment for a taxable supply.
• Unless otherwise specified, the party acquiring the taxable supply is liable to pay, at the same time and in the same manner as any other money is payable for the taxable supply, the amount of any GST payable in respect of the taxable supply.
• Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.
• BXT Technology's right to payments under this Agreement is subject to a valid Tax Invoice being delivered to you in respect of such payments.

Variation to Terms

We reserve the right to change, modify, add or remove parts of these Terms of Service at any time, subject to providing you with a minimum of 14 days' notice. By continuing to use or access the Platform and/or Services after the date these changes become effective, you signify that you have read, understood and agree to be bound by the updated Terms of Service.

Notices

• Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission.
• Notices must be sent to shaun@bxttechnology.com.au or to any other email address notified by email to you by us.
• Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Platform.

General

Waiver

A waiver of a provision of or right under this Agreement is effective only if it is in writing signed by the party granting the waiver.

Invalidity

Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction only, be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are self-sustaining and capable of separate enforcement without regard to the read down or severed provision in that jurisdiction are and will continue to be valid and enforceable in accordance with their terms.

Assignment

• You may not assign your rights or obligations under this Agreement without the prior written consent of BXT Technology; and
• BXT Technology may assign or transfer its rights or obligations under this Agreement without your consent.

Entire Agreement

This Agreement, together with any documents referred to in this Agreement or provided in conjunction with this Agreement from time to time, comprises the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and cancels all prior agreements and negotiations.

Inconsistency

If there is any inconsistency between the documents forming part of or contemplated by the Agreement, then the following order of priority applies to determine which provisions prevail to the extent of the inconsistency: the Merchant Agreement; the Privacy Policy; and these Terms of Service.

Governing Law

This Agreement shall be governed and construed in all respects in accordance with the laws of Victoria, Australia and, except where restricted by the applicable Law, the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.

Electronic Agreement

• A printed version of this Agreement will be admissible in judicial, administrative or arbitral proceedings; and
• You waive any rights to originally execute by hand this Agreement.

Dictionary

Interpretation

• (singular and plural) words in the singular includes the plural (and vice versa);
• (currency) a reference to $ or "dollar" is to Australian currency;
• (gender) words indicating a gender includes the corresponding words of any other gender;
• (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
• (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
• (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
• (headings) headings and words in bold type are for convenience only and do not affect interpretation;
• (includes) the word "includes" and similar words in any form is not a word of limitation; and
• (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

Definitions