- During the Term, Eat Digital Pty Ltd will provide the Services, together with access for the Customer to the Management Application.
- The Term will comprise the Initial Term, and such subsequent terms of the duration as the Initial Term (unless the Customer provides at least 30 daysâ€™ notice in writing prior to the expiry of the relevant term).
- Eat Digital Pty Ltd may exercise its sole discretion as to the configuration of the Services and the Applications without prior notification to the Customer.
- The Customer is responsible for providing its own internal facilities (including terminal, software, modem and telecommunications facilities) necessary for utilising the Services.
- Eat Digital Pty Ltd will, upon request from the Customer, supply such information and assistance as is reasonably required by the Customer to enable the Customer to operate the Management Application.
- The Customer will provide a Free Coffee of the patrons choice on their birthday upon producing valid identification.
- During the Term, the Café© must not, whether directly or indirectly, and whether itself or in any other manner, and whether alone or with any other person, acquire a product, service, right or licence, or in any way or enter into any agreement with a third party, that conflicts or competes with any or all of the Services or the intention and provisions of this Agreement.
- This clause survives termination of this Agreement for any reason
- The Customer acknowledges that the Data remains the property of Eat Digital Pty Ltd.
- The Customer will not, without the prior written approval of Eat Digital Pty Ltd, disclose Eat Digital Pty Ltd™ Confidential Information.
- The Customer will take all reasonable steps to ensure that its employees and agents and any subcontractors engaged by the Customer, do not make public or disclose Eat Digital Pty Ltd Confidential Information.
- This clause shall survive the termination of this Agreement.
- Save for where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, all other conditions or warranties are hereby excluded. The liability of Eat Digital Pty Ltd for any breach of non-excludable condition or warranty shall be limited, at the option of Eat Digital Pty Ltd, to the supplying of the services again or the payment of the cost of having the services supplied again.
- Except in relation to liability for personal injury (including sickness and death), Eat Digital Pty Ltd will be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) that may be suffered or incurred or that may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of Eat Digital Pty Ltd to comply with its obligations under this Agreement.
- The Customer shall at all times indemnify and hold harmless Eat Digital Pty Ltd and its officers. employees and agents from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of them arising from any proceedings against them where such loss or liability was caused by: (a) a breach by the Customer of its obligations under this Agreement: or (b) any wilful, unlawful or negligent act or omission of the Customer.
Failure to supply Services
- Eat Digital Pty Ltd will not be responsible for any failure to supply the Services if such failure is caused by factors beyond Eat Digital Pty Ltd™ reasonable control including, but not limited to, telecommunications failure or fault, defective network or Internet connections, defective equipment utilised by the Customer or incorrect operation of the Services or Applications by the Customer.
- Eat Digital Pty Ltd will not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure, and if a delay or failure by Eat Digital Pty Ltd to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
Suspension and termination
- If the Customer is in breach of any term of this Agreement, Eat Digital Pty Ltd may suspend provision of the Services, and suspend access to, and use of, the Management Application, without prior notice to the Café© but this Agreement remains on foot in all other respects, including the obligation on the Customer to pay all Charges. Eat Digital Pty Ltd will reinstate the provision of the Services and access to the Management Application once the breaches have been remedied and the Café© pays a $500.00 reconnection fee to Eat Digital Pty Ltd.
- Without limiting the generality of any other clause in this Agreement, Eat Digital Pty Ltd may terminate this Agreement immediately by notice in writing if: (a) the Customer is in breach of any term of this Agreement and such breach is not remedied within seven (7) days of Eat Digital Pty Ltd notifying it; (b) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency or external administration; (c) the Customer ceases or threatens to cease conducting its business in the normal manner.
In this Agreement, unless the contrary intention appears:
Application means the computer software application made available by Eat Digital to Patrons for use on electronic devices;
Confidential Information means the confidential information of a party which relates to the subject matter of this Agreement and includes: (a) confidential information relating to the technology and design of the Management; (b) confidential information relating to the Data; (c) information relating to the personnel, policies or business strategies of Eat Digital Pty Ltd; (d) information relating to the terms upon which the Services are provided to the Customer pursuant to this Agreement;
Data means data obtained by Eat Digital Pty Ltd from Patrons in connection with the Services or data which may otherwise be generated, compiled, arranged or developed using the Management Application;
Force Majeure means a circumstance beyond the reasonable control of Eat Digital Pty Ltd that results in Eat Digital Pty Ltd being unable to observe or perform on time in obligation under this Agreement, including: (a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, Fires and any natural disaster; (b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and (c) strikes;
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
The Website means the computer software application made available by Eat Digital Pty Ltd to Patrons for use.
Management Application means the computer software application made available by Eat Digital Pty Ltd to the Customer over the World Wide Web for the purposes of the Services;
Patrons mean those customers of the Café© who use the The Website in connection with the Café©;
Services means: (a) Eat Digital Pty Ltd maintaining a database of the Data; (b) Eat Digital Pty Ltd providing the Customer with access to the Data through the Management Application; and (c) Eat Digital Pty Ltd supplying Patrons with access to the The Website in accordance with the terms of its end user license agreement.