Terms

The following terms apply to the products and services provided by Okendo Pty Ltd (ACN 165 005 989) as accessed by merchants.

In this document:

1. “Administrator” means your employees, agents, contractors, directors or representative that have access to the Service on your behalf;

2. “Content” means all information, personally identifiable information, data, documents and creative expressions, and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Service;

3. “End User” means any third party user of the Service who has been contacted by us on your behalf to use the Service, who has entered into the “End User Terms” Agreement with us, and who’s interaction with the Service arises directly out of this Agreement;

4. “State Level US Data Protection Laws” means the CCPA, the Colorado Privacy Act, Colorado Rev. Stat. 6-1-1301 et seq. (the “CPA”); the Connecticut Act Concerning Personal Data Protection and Online Monitoring, Conn. PA 22-15 § 1 et seq. (the “PDPOM”); Iowa Consumer Data Protection Act, S.J. 708, (the “ICDPA”); the Indiana Consumer Data Protection Act, S.B. 5 (the “INCDPA”); the Montana Consumer Data Privacy Act, S.B. 384 (the “MCDPA”); the Tennessee Information Protection Act, H.B. 1181 (the “TIPA”); the Utah Consumer Privacy Act, Utah Code 13-61-101 et seq. (the “UCPA”); the Virginia Consumer Data Protection Act, Code of Virginia title 59.1, Chapter 52 (the “VCDPA”); the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.; the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.; the Children’s Online Privacy Protection Act, 15 U.S.C. § 6501 et seq.; Section 5 of the FTC Act, 15 U.S.C. § 45 and any applicable guidance issued by the U.S. Federal Trade Commission, and any data protection or privacy laws of the United States of America and any states therein

5. “Service” refers to http://okendo.io and any Okendo software application or software service;

6. the words “we”, “our”, “us” and “Okendo” refers to Okendo Pty Ltd (ACN 165 005 989), the operator of the Service and all of its related entities; and

7. the words “you” and “your” mean both you, any entity or firm you’re authorised to represent.

This Terms of Use should be read in conjunction with, and you agree to, the:

1. Okendo Merchant Privacy Policy, which is available at https://okendo.io/legal-merchants/privacy/;

2. If you are subject to:

   1. EU Directive 95/46/EC (as transposed into domestic legislation of each member state of the European Union, and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR) (“GDPR”); and/or

   2. the UK Data Protection Act 2018, or the GDPR as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) (“UK-GDRP”); and/or

   3. any State Level US Data Protection Laws;

   the Okendo Data Processing Addendum, which is available at https://okendo.io/legal-merchants/dpa/ and;

3. if you are using or accessing Okendo Loyalty, the Okendo Supplementary Terms of Loyalty, which is available at https://okendo.io/legal-merchants/supplementary-terms-for-loyalty/

4. any supplementary terms agreed, or incorporated by reference, in the Service; (collectively, the 'Agreement').

By using or accessing the Services, you agree to all the terms and conditions of the Agreement, and if you do not agree to all the terms and conditions of the Agreement you should not and are not permitted to use the Services.

Okendo reserves the right in its sole discretion, to modify the Agreement at any time with notice, and by posting a revised Agreement to the Service. Together with notice, we will specify the effective date of the modifications.

Modifications to these Terms will take effect at the next renewal of your subscription term following the date specified in our notice and will automatically apply as of that date unless you elect to cease use of the Service.

Use of and access to the Service may be subject to a subscription fee (“Subscription Fee”), which is payable on a recurring basis.

Use of and access to the specific elements of the Service may be subject to service fees (“Service Fee”), payable as described.

Fees are not refundable or partially refundable, except as required by law.

All payments received by Okendo are processed through third party secure transaction service providers.

Any information you provide to us, either intentionally or incidentally, via the Service is subject to our Privacy Policy, which governs our collection and use of your information. You agree that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information.

You warrant that any information you provide to us, either intentionally or incidentally about any third party:

1. where it is personal information, has been collected, obtained and is processed in compliance with all applicable data privacy laws;

2. where it is the basis for any electronic marketing, you have secured all necessary consents, or otherwise have a valid legal basis for processing, in compliance with all applicable electronic marketing laws;

If you provide any information to us, either intentionally or incidentally about any other person through your use of the Services, including but not limited to medical or health information about that third party, you:

1. if that third party is a minor, agree that through your use of the Services you consent to the collection and use of this information; and

2. if that third party is a minor, give permission for that third party to consent to the collection and use of this information;

3. if that third party is not a minor, warrant that the third party has reviewed and consents to these terms; and

4. if that third party is not a minor, warrant to Okendo that the third party has reviewed and consents to the Privacy Policy.

We collect personal information about you in order to process your registration and provide you with services and for purposes otherwise set out in our Privacy Policy.

We may disclose that information to third parties that help us deliver our services (including information technology suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, we may not be able to provide all of our services and products to you.

We may also disclose your personal information to recipients that are located outside of your country.

In the event of a data breach, or the discovery of any data security vulnerability in the Service, we will notify you within 24 hours.

In order to use the Service you may be required to provide or authorise us to access personal details, including payment details.

All information provided to us must:

1. be accurate and correct to the best of your knowledge; and

2. not infringe on the rights of any third parties, including but not limited to, content that infringes on privacy rights or intellectual property rights, such as copyright and trademark rights.

You are responsible for keeping your system access passwords, tokens and other authorisations secure and are responsible for all use and activity carried using them.

All use of the Service by End Users is subject to the Okendo End User Terms of Use & Service as amended, replaced or superseded from time to time, and you may not impose any terms pertaining to their use of the Service or take any steps that amend, supersede or interfere with their operation.

You will provide all required disclosures to and will obtain and maintain all required consents from Administrators and End Users to authorise your compliance with the Agreement. You will provide evidence of such consents upon our reasonable request.

You and your use of the Services (including use by your Administrators or End Users) must comply at all times with the Agreement and any applicable laws.

You represent, warrant and covenant to us that your use of the Services shall comply with all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to:

1. communication by telephone, message or email for advertising, marketing or other purposes;

2. monitoring or recording of electronic or telephonic communications;

3. the privacy, security or protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy laws, including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of personal information; or

4. requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies.

You shall provide and make available to End Users a privacy notice that describes the collection, use and disclosure of End Users’ personal information in connection with your use of the Services, including without limitation, the collection, use and disclosure contemplated by the Agreement.

You may not do any of the following while accessing or using the Services:

1. access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of Okendo and/or its service providers;

2. probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures;

3. access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Okendo (and only pursuant to those terms and conditions);

4. scrape the Services, and particularly scrape Content (as defined below) from the Services, without the express prior written consent of Okendo;

5. use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers;

6. interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services; or

7. take any action that may undermine the quality of information contained on the Service, the feedback systmes or the ratings systems used on the Service.

For Content uploaded by you, or given to us, for use on the Service, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license for its use.

For Content uploaded by an End User to the Service, or given to us by an End User for use on the Service, we grant to you a non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license for its use.

You represent and warrant that:

1. you have obtained all necessary rights, releases and permissions to submit all Content to the Service and to grant the rights granted to us in these Terms; and

2. all Content and its submission and use as you authorize in these Terms will not violate:

   1. any Laws,

   2. any third-party intellectual property, privacy, publicity or other rights, or

   3. any of your or third-party policies or terms governing the Content.

Okendo assumes no responsibility or liability for any content uploaded by you, or any End User, to the Service, and you are solely responsible for the Content and the consequences of submitting and using it with the Service.

Reproduction of Content that appears on the Service is prohibited, except where explicitly authorised by this Agreement.

Unless otherwise indicated, all materials on the Service, and the website itself, are protected by copyright, trade marks and/or other intellectual property rights. Except for the bona fide purpose of considering an invitation to treat from Okendo or as otherwise permitted by law, this site or any portion of this site may not be reproduced, duplicated, copied, sold, re-sold or otherwise exploited for any commercial purpose that is not expressly permitted by Okendo.

Any other use of materials on the Service without the prior express written permission of Okendo is strictly prohibited.

For Content uploaded by you, or given to us, for use on the Service, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license for its use.

For Content uploaded by you, or given to us, for use on the Service, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license for its use.

You will defend, indemnify, and hold us harmless (and our affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) resulting from any breach by you, or any End User, of the Agreement, or any claim arising from your use of the Service, or use of the Service by an End User.

Except in relation to:

1. liability for personal injury (including sickness and death) or property damage;

2. gross negligence, and

3. willful misconduct,

the liability of Okendo hereunder in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) will not exceed the amount of the sum of any fees paid by the you to Okendo for the immediately preceding twelve months (or if the agreement has not been in effect for a twelve (12) month period, then the average monthly amount of fees paid or owing in the period since the commencement of the agreement multiplied by twelve (12), even if a party has been advised by the other party as to the possibility of such losses being incurred.

The information contained on the Service is for general information purposes only. The information is provided by Okendo and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Service or the information, products, services, or related graphics contained on the Service for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Okendo shall not be liable for any indirect or consequential damages and, in particular, shall accept no liability whatsoever for loss of income deriving from the use of the Services.

The Service may contain links to other websites and software applications. Okendo is not responsible for the availability of, or any content or material contained in, or obtained through, any such websites and software applications. Any link to another website, and reference to third-party information, products or services linked to The Service, is not, and should not be construed as, an express or implied endorsement by Okendo. Any questions or comments relating to such other websites and software applications and software applications should be addressed to the operator or operators of those websites and software applications.

The Service may contain content, imagery, text and other media generated by users of the Service. We make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Service or the information, products, services, or related graphics contained on the Service for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Every effort is made to ensure the efficient operation of the Service and Services and that the information contained within the Service is accurate at all times. However, Okendo takes no responsibility, and will not be liable for the Service becoming temporarily unavailable in the instance of technical issues or any associated problems arising from technical or other associated issues beyond our control.

Okendo may, in its absolute discretion and with immediate effect, terminate this Agreement and remove you from the Service.

Okendo may, in its absolute discretion, refuse service to any person or entity, including but not limited to any End User

Okendo may, without notice to you and in Okendo’s sole discretion issue you a warning, restrict your activities on the Service, temporarily suspend, indefinitely suspend or terminate your login and refuse to provide services to you if:

1. you have, or Okendo believes that you have, breached this Agreement;

2. Okendo are unable to verify or authenticate any information you have provides via the Service;

3. Okendo believes that your actions may cause loss or damage to or otherwise unlawfully harm you, Okendo’s users, third parties or Okendo, related bodies corporate or affiliates and its directors, employees or agents; or

4. if Okendo reasonably believes that any of your information is incorrect, miseleading, inappropriate or of an offensive nature.

We may refuse to process a payment if we believe there is a risk associated with it or if it breaches any law, statute, ordinance or regulation, or is may cause loss to us or our users.

If the whole or any part of any clause of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

This Agreement:

1. accurately reflects the agreement between the parties as to its subject matter;

2. records the entire agreement between the parties with respect to the subject matter of the Agreement;

3. supersedes all prior representations and agreements in connection with that subject matter; and

4. may only be altered in writing signed by both parties.

The failure of Okendo at any time to insist in performance of any obligation of you under this Agreement is not a waiver of its right:

1. to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and

2. at any other time to insist on performance of that or any other obligation of the other party under this Agreement.

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act 1. will not apply to these Terms regardless of when or where adopted.

This Agreement does not create a relationship of employment, agency or partnership between the parties.

This Agreement is governed by the laws and the Parties submit to the non exclusive jurisdiction, of the courts of New South Wales, Australia.