These Terms are binding on any use of the Service and apply to You from the time that OrderTron provides You with access to the Service.
The Service will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of the Service.
OrderTron may change these Terms at any time and the changes will come into effect at least 1 month after the posting of modified Terms on the Website. OrderTron will make every effort to communicate these changes to You via email or notification via the Website. If You reasonably consider a material change to these Terms will have a material effect on You, then You may advise us of this in writing before the new Terms come into effect. In this case, we may allow You to terminate the Agreement without becoming subject to the payment of termination charges.
It is Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the Website.
By registering for an OrderTron Account You acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom You use the Service.
These Terms were last updated on 2 November 2016.
Unless the context requires otherwise, capitalised words shall have these meanings:
“Account Owner” means the person who registers to use the Service or the bill payer or credit card holder responsible for paying for the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“Account User” means each person from the Account Owner’s business, or Account Owner’s Customer’s business other than the Account Owner, that uses the Service with the authorisation and the access provided by the Account Owner from time to time.
“Agreement” means the agreement between You and us as set out in these Terms.
“OrderTron”, “we”, “us” or “our” means OrderTron Co Pty Limited, which is a limited liability company incorporated in Australia, and all current and future global subsidiaries.
“OrderTron Account” means a current Subscription Plan(s) to the Service.
“Confidential Information” includes all information directly or indirectly made available or exchanged between the parties to this Agreement, whether in writing, electronically or orally, including through use of the Service.
“Data” means any data inputted by You or with Your authority into the Website.
“Intellectual Property Right” means any and all intellectual or industrial property rights and interests held, owned or lawfully used, anywhere in the world, whether or not registered, including, without limitation:
(a) Patents, trademarks, service marks, copyright, registered designs, trade names, symbols and logos;
(b) Patent applications and applications to register trademarks, service marks and designs; and
(c) Formulae, methods, workflows, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costing and other information.
“Service” means the online ordering, mobile app ordering, order(s) processing, inventory, price list and rules, stock management and all related software, mobile applications, IT infrastructure and support services provided under Your Subscription Plan(s) accessed and used using Your company code, login name and password or Your Account User’s login and password. These services may be changed or updated from time to time by OrderTron via the Website. Certain services may be accessed offline, depending on Your Subscription Plan(s).
“Subscription Charges” means the monthly fee (excluding any taxes and duties) payable by You for the Services and Your Subscription Plan as notified to you (which OrderTron may change from time to time by giving you at least 20 days’ notice). For the avoidance of doubt:
(a) any such notice will replace any prior pricing arrangements you may have had with OrderTron; and
(b) the Subscription Charges will not be discounted if, in any month, you do not use all available modules, including the maximum number of Account Users, under Your Subscription Plan.
“Subscription Plan” means the modules selected by an Account Owner which determines the extent and type of Service provided, the maximum number of Account Users permitted to access the Service, and the Subscription Charges.
“Website” means the Internet site at the domain www.ordertron.com or any other site operated by OrderTron Co Pty Limited.
“You” and “Your” means the Account Owner, and where the context permits, an Account User.
2. USE OF ORDERTRON
OrderTron grants You the right to access and use the Service via the Website through your OrderTron Account according to Your Subscription Plan. Depending on Your Subscription Plan, certain Services may be available for use offline. Offline use may be dependent on you having particular technology, applications or systems set up. These will be advised to You when You select the Service. This right of use is non-exclusive, subject to these Terms and any applicable written agreement between the Account Owner and the Account Users, and any other applicable laws.
3. YOUR OBLIGATIONS
3.1 General obligations: You must only use the Service and Website for Your own lawful internal business purposes in accordance with these Terms and any notice sent by OrderTron or condition posted on the Website.
3.2 Account Owner obligations:
(a) The Account Owner is responsible for determining who can be an Account User and what level of access to the Subscription Plan modules each Account User has;
(b) The Account Owner controls each Account User’s level of access to the OrderTron Account and Subscription Plan at all times and can revoke or change an Account User’s access, or level of access, at any time and for any reason;
(c) The Account Owner is responsible for all Account Users’ use of the Service, and OrderTron has no responsibility or liability for the actions of any Account User; and
(d) OrderTron will not be a party to any dispute between an Account Owner and an Account User for any reason.
3.3 Access conditions:
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify OrderTron of any unauthorised use of Your passwords or any other breach of security and OrderTron will reset Your password and You must take all other actions that OrderTron reasonably deems necessary.
When accessing and using the Services, You must:
(a) not attempt to undermine the security or integrity of OrderTron’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(b) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(c) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to access the computer system on which the Services are Hosted;
(d) not transmit, or input into the Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law;
(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as permitted by law;
(f) ensure that each Account User is allocated to and used by only one person at any time; and
(g) ensure that each Account User does not access the Services from more than one device at any one time.
3.4 Configuration: You are responsible for Your configuration of the Services and any required hardware. OrderTron will provide helpdesk assistance as set out in these terms and conditions, but OrderTron is not responsible for any required configuration.
3.5 Paying for the Service
(a) Your Subscription Plan commences when You register for Your OrderTron Account with a 14-day free trial. Your first month’s Subscription Charges are due in full upon commencement of the paid Subscription Plan after the 14-day free trial or if you choose to end free trial Subscription Plan and upgrade to a paid Subscription Plan prior to the end of the free trial period;
(b) You authorise OrderTron to invoice and receive payment from You in advance for Subscription Charges on a monthly basis, until You terminate Your OrderTron Account and cease to use the Service. You agree to pay any Subscription Charges incurred during the time that the Service is used or subscribed to, including for any additional modules of the Service that you select during the term of Your use of the Service. This obligation to pay the Service Charges incurred by You survives the termination of Your use of the Service;
(c) In supplying Your credit card details to OrderTron’s payment service, You authorise OrderTron to invoice and the payment service provider to process payment of your Subscription Charges and any other outstanding amounts (as applicable) as they become due. If You are using OrderTron outside Australia, You agree to pay OrderTron by credit card, and You agree to pay all fees and currency charges incurred or associated with completing payments so that OrderTron receives the full amount invoiced;
(d) Invoices are calculated on a monthly basis for every 30 days from the date You have upgraded Your OrderTron Account from the free trial Subscription Plan; and
(e) We will send the Account Owner a receipt each time we receive payment of the Subscription Charges.
3.6 Changing Your Subscription Plan: Changing Your Subscription Plan by reducing the maximum number of Account Users You subscribe to may cause loss of content, features, or capacity of the Service You receive, and OrderTron does not accept any liability for losses arising as a direct or indirect consequence of this.
3.7 Refunds: No refunds or credits for Your Subscription Charge will be provided if You elect to downgrade or terminate Your Subscription Plan during a billed month. In the case of a downgrade, the new Subscription Charge for the downgraded Subscription Plan will apply from the beginning of the billed month’s cycle following the month in which the Subscription Plan was downgraded. In the case of an upgrade, the pro rata difference will be calculated for Subscription Charge increase for the remaining days before the next billing month cycle start and the payment will be processed for the Subscription Plan Upgrade.
3.8 Offline Services: If Your Subscription Plan includes offline Services, you must install the required programmes on Your system. These requirements will be notified to You at the time You select the Services. You will be responsible for the operation of the offline Services and for ensuring all required data is stored in Your system to ensure that the Service can operate correctly.
3.9 Fair use: Your use of the Service must be reasonable and not excessive. OrderTron (acting reasonably) may determine Your usage to be unreasonable and excessive if on average it materially exceeds the average level of usage of other users in that same period (Excessive Use). If We reasonably consider that Your use is Excessive Use, We may:
(a) immediately suspend, modify or limit Your use of the Services; or
(b) charge You for the Excessive Use at a rate determined by OrderTron.
4. HELP DESK
4.1 Technical Problems: In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting OrderTron. If You still need technical help, please check the support provided online by OrderTron on the Website or email us at firstname.lastname@example.org.
4.2 Service availability: Whilst OrderTron intends that the Services should be available with an uptime of 99. 7%, 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable. If for any reason OrderTron has to interrupt the Services for longer periods than OrderTron usually anticipates, OrderTron will use reasonable endeavours to publish in advance details of such activity on the Website. OrderTron will have no liability to You for unavailability of the Services.
5. WARRANTIES AND ACKNOWLEDGEMENTS
5.1 Acknowledgement: You acknowledge that:
(a) You are authorised to create the OrderTron Account (where applicable), to access and use the Services and the Website and to use the information and Data that You input into the Website, including any information or Data input into the Website by any person You have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else);
(b) OrderTron has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. You may not use the Services or access the Website on behalf of another person, except if you are an Authorised User of an OrderTron Account, accessing the OrderTron Account as permitted by the Account Owner. If You are an Authorised User, You warrant that you have the appropriate permissions from the Account Owner, and acknowledge that You must comply with these Terms, and that you are responsible for all Data You input into the Website;
(c) You are responsible for authorising any person who is given access to information or Data, and You agree that OrderTron has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address;
(d) The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk;
(e) OrderTron does not warrant that the use of the Service will be uninterrupted or error-free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. OrderTron is not in any way responsible for any such interference or prevention of Your access or use of the Services. Certain modules of your Subscription Plan may be available for offline use, and you are responsible for maintaining the required systems to the level required for those modules;
(f) OrderTron is not Your accountant and use of the Services does not constitute the receipt of accounting advice;
(g) It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used;
(h) You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to Your Data via the Software and the Website will comply with laws applicable to You (including any laws requiring You to retain records); and
(i) OrderTron may from time to time need to remove modules, or certain functionality within modules, that may be part of Your Subscription Plan. OrderTron will use reasonable endeavours to provide You with advance notice of any intention to remove modules or functionality from the Service, but You acknowledge that OrderTron will not be responsible for any failure to do so, and OrderTron will not be responsible for any loss that You may suffer as a result of the removal of that module or that functionality.
5.2 Limited warranty:
Nothing in these terms shall exclude or limit OrderTron’s warranty or liability for losses which may not be lawfully excluded or limited by the Australian Consumer Law or such other law of the state.
You expressly understand and agree that Your use of the Services is at Your sole risk and that the Services are provided “as is” and “as available”.
In particular, OrderTron does not represent or warrant to You that:
(a) Your use of the Services will meet all Your requirements;
(b) Your use of the Services will be uninterrupted, timely, secure or free from error;
(c) Any information obtained by you as a result of your use of the Services will be accurate or reliable;
(d) that defects in the operation or functionality of any Services provided to you will be corrected and there will be no claim for loss or damages arising from any defects or error.
(e) the operation, performance or functions of any third party services that OrderTron integrates into, nor for the performance of the integration; and
(f) that any customisation that may have been performed for You will be compatible with any updates to the Services, or that any such customisations will continue to work after any upgrade of the Services by OrderTron.
6. AUTHORISED PERSON
6.1 Authorised: Where a person (Authorised Person) is registering for the Service on behalf of the Account Owner, the Authorised Person warrants that:
(a) it has the authority from the Account Owner to agree to these Terms on behalf of the Account Owner and to access information and give instructions on the Account Owner’s behalf in relation to these Terms;
(b) by registering to use the Service on behalf of the Account Owner, the Authorised Person binds the Account Owner to the performance of any and all obligations (including payment obligations) of the Account Owner under these Terms, without limiting the Authorised Person’s personal obligations under these Terms;
(c) where the Authorised Person pays the Subscription Charges on behalf of the Account Owner, it shall not charge the Account Owner any premium or additional amount for the Services; and
(d) we may rely upon an act in accordance with any instructions received from the Authorised Person, as if they had been made by the Account Owner and without checking the authority of the Authorised Person.
6.2 No liability: OrderTron is not liable in respect of any act or omission of OrderTron in reliance on any notice or instructions given by the Authorised Person.
6.3 Removal of Authorised Person: If the Account Owner requests that We do so, We may remove the Authorised Person’s access to the Account Owner’s Subscription Plan and Data.
7.1 Account Owner Indemnity: You will indemnify and keep indemnified OrderTron against all expenses, fines, losses (including loss of profit), damages and costs (Loss) sustained or incurred by OrderTron arising directly or indirectly from Your breach of any of these Terms, including any costs relating to the recovery of any Subscription Charges that are due but have not been paid by You. Without limiting the foregoing, You will indemnify OrderTron against any claims or loss relating to:
(a) OrderTron’s refusal to provide any person access to Your information or Data in accordance with these Terms
(b) OrderTron’s making available information or Data to any person with Your authorisation; and
(c) any claim by any third party that You do not have the right to use any Data, or that Your use of any Data is a breach of a third party’s Intellectual Property Rights.
7.2 Authorised Person’s indemnity: Where an Authorised Person registers for the Service on behalf of an Account Owner pursuant to clause 6, the Authorised Person indemnifies OrderTron for any Loss sustained or incurred by OrderTron (including the matters set out in sub-clause 7.1(a) to (c) above (with the necessary changes) arising directly or indirectly from the Authorised Person’s breach of any of the warranties set out in clause 6.1 or that arise as a result of OrderTron acting in accordance with any instruction by the Authorised Person, including any costs relating to the recovery of any Subscription Charges that are due but have not been paid by the Account Owner.
8. LIMITATION OF LIABILITY
8.1 Exclusion: To the full extent permitted by law, and subject to clause 8.2, the parties agree that neither party to this Agreement shall have any liability, obligation or responsibility, whether in contract, tort (including but not limited to negligence), under statute or on any other basis, for any indirect, consequential, special or exemplary damages, or damages for loss of profits or revenue, resulting directly or indirectly, from any use of, or reliance on, the Service or Website, even if you have been advised of the possibility of such damages.
Under the Australian Consumer Law when implied conditions and warranties cannot be expressly excluded, OrderTron limits its liabilities in the case of Services, to the supplying of the Services again, or the payment of the cost of having the Services supplied again with such decision at the sole discretion of OrderTron;
8.2 Maximum aggregate liability: The maximum aggregate liability of OrderTron to You for any reason relating to this Agreement, these Terms, the Website or the Service will be limited in respect of any one incident, or series of connected incidents, to the Subscription Charges paid by You in the 12 months prior to the occurrence of the first incident.
8.3 Exclusive remedy: If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
9. CONFIDENTIALITY, PRIVACY AND DATA
9.1 Confidentiality: Each party (Receiving Party) shall keep the other party’s (Providing Party) Confidential Information confidential and secure and not disclose or permit disclosure of the Providing Party’s Confidential Information to any third party. This clause does not apply to any disclosure of Confidential Information:
(a) required to be disclosed by law; or
(b) that the Providing Party agrees to in writing before the disclosure is made; or
(c) is or becomes publicly available through no fault of the Receiving Party; or
(d) is independently acquired or developed by the Receiving Party without breaching any of its obligations under this Agreement or at law, and without the benefit or use of any of the Providing Party’s Confidential Information disclosed by the Providing Party; or
(e) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(f) is lawfully acquired by the Receiving Party from a third party, provided such information is not obtained as a result of a breach by that third party of any confidentiality obligations owing to the Providing Party.
9.3 Data: OrderTron may use Data inputted by You for analysis in aggregate form.
10. INTELLECTUAL PROPERTY
10.1 Existing intellectual property: Except as expressly set out in this Agreement, nothing in this Agreement will confer upon a party any rights, interest or title in Intellectual Property Rights in the other party’s materials (including any modification to that material) existing at the date of this Agreement or which is developed independently of the other party’s materials.
10.2 Your Data: We have no Intellectual Property Rights in Your Data other than to hold and make it available for the purposes contemplated by these Terms or for which it was provided.
10.3 Backup of Data: You must maintain copies of all Data inputted into the Service. If Your Subscription Plan includes offline Services, You will also need to keep copies of the Data necessary for those Services on Your system. OrderTron adheres to its best practice policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss or corruption of Data. OrderTron expressly excludes liability for any loss or corruption of Data, no matter how caused.
10.4 Termination of Service: Following the termination of Your Subscription Plan, we reserve the right to delete all Your Data in the normal course of operation. You acknowledge and confirm that Your Data cannot be recovered once it is deleted and OrderTron will have no liability for any deleted Data.
11.1 Termination for convenience:
These Terms will continue for the period that You hold an OrderTron Account and pay the Subscription Charges, unless either party terminates these Terms and Your OrderTron Account by giving notice to the other party at least  days before the end of a calendar month. OrderTron will not provide any refund for any prepaid Subscription Charges on termination. If You terminate these Terms You shall be liable to pay all relevant Subscription Charges up to and including the end of the calendar month in which You gave the notice of termination.
11.2 Termination for breach: If a Breach Event (as defined below) occurs, OrderTron may at its sole discretion and without notice to You, take any or all of the following actions:
(a) Terminate this Agreement and Your use of the Services and the Website;
(b) Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
(c) Suspend or terminate access to all or any Data.
(d) Take any of the actions in sub-clauses (a), (b) and (c) of this clause 8(2) in respect of any or all other persons whom You have authorised to have access to Your information or Data.
A “Breach Event” occurs if:
(e) You breach any of these Terms and fail to remedy the breach within 7 days after receiving notice requiring you to do so;
(f) You breach any of these Terms where that breach is not capable of remedy;
(g) You are, become, or are deemed to be, insolvent or bankrupt;
(h) You make an assignment for the benefit of, or enter into or make any arrangement or composition with Your creditors;
(i) You go into receivership or have a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of Your property; or
(j) any resolution is passed, or any proceeding is commenced, for the winding up or liquidation of that other party (other than for the purposes of a solvent reconstruction)
11.3 Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the Services and the Website.
11.4 Survival: Clauses 3, 5, 6, 7, 8, 9, 10 and 11 survive the expiry or termination of these Terms.
12.2 Rights of Third Parties: A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
12.3 Delays: Neither party will be liable for any delay in meeting, or failure to meet, its obligations under this Agreement (other than the obligation to pay money) to the extent that such delay or failure is caused by any event outside its reasonable control (including, without limitation, any delay or failure caused by any act or omission to the other party).
12.4 No Assignment: You may not assign, pledge or transfer any rights, duties or obligations to any other person except with the previous written consent of OrderTron.
12.5 Waiver: No failure or delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver, nor will any single or partial exercise preclude any other or further exercise or the exercise of any right, power or privilege under this Agreement. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
12.6 Severability: If any provision of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason the relevant provisions shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provisions shall be severed from this Agreement, without affecting the enforceability, legality or validity of any other provision of this Agreement
12.7 Governing law and jurisdiction: These Terms shall be governed and construed in accordance with the laws of NSW, Australia and unless specifically stated otherwise, You and OrderTron Co Pty Limited submit to the non-exclusive jurisdiction of the Courts of NSW, Australia.
12.8 Notices: All notices given by a party under this Agreement must be in writing and delivered by e-mail. A notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 pm or on a day which is not a business day is deemed not to have been received until the next business day. Notices to OrderTron must be sent to email@example.com or to any other email address notified by email to You by OrderTron. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.