Terms of Service
Welcome to OrderPoint.net.au website and associated applications. OrderPoint.net.au is a website operated by Barter Technologies Pty Ltd 37 615 339 501, ACN 615 339 501, whose registered office is at 16 Darwinia Loop, Canning Vale Western Australia 6155, Australia. The Subscription form or other ordering document, including a registration webpage, which includes confirmation of Customer’s (defined below) subscription and fees for use of OrderPoint Online and any associated OrderPoint software products (“Subscription Form”) and these Terms of Service form a legally binding agreement between Customer and Barter Technologies Pty Ltd trading as “OrderPoint” and governs Customer’s use of OrderPoint Online and any associated OrderPoint software. The OrderPoint Online service in combination with associated OrderPoint software products (including all Applications, APPs, updates, revisions, enhancements or releases thereof) are collectively referred to as “OrderPoint Products” herein.
The term “Agreement” means these Terms of Service and the Subscription Form, including any schedules, exhibits or appendices thereto, whether attached or incorporated by reference. The term “Customer” means the business or other legal entity named on the Subscription Form. This Agreement controls over any click-through agreement contained in any OrderPoint Product.
Article 1 – Service Subscriptions
1.1 Use of OrderPoint Products is licensed, not sold. Subject to compliance with this Agreement, OrderPoint grants Customer, a nontransferable (except for assignment of this Agreement under Section 10), nonexclusive right to access and use those OrderPoint Products described on the Subscription Form, solely for the duration of the Subscription Term (including any permitted renewals) and solely for Customer’s internal business purposes. OrderPoint Online may only be used online at the applicable URL (the “Web Site”) and OrderPoint Products may only be used within the scope of any usage parameters or limits described in the Subscription Form and only by employees and agents of, and contractors of, Customer who are authorized by Customer to access and use the OrderPoint Products solely for the benefit of Customer (Authorized Users”).
1.2 Each Authorized User must have a unique user ID and password combination (“User Account”) for using OrderPoint Products. Multiple individuals shall not share a User Account. New User Accounts may be set up for new Authorized Users in replacement of User Accounts that have been de-activated for individuals who have terminated employment with Customer or otherwise changed job status or function and no longer require use of OrderPoint products. Customer shall be responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Customer.
1.3 Except for the limited licenses granted herein, OrderPoint retain all right, title and interest in: i) all OrderPoint Products and all patent, copyright, trademark and other intellectual property rights embodied therein (including all software text, graphics, images, audio and visual information, online tutorials, documents, specifications, and materials made available to Customer); and ii) any improvements, updates, revisions, design contributions or derivative works thereto conceived or created by either party.
1.4 Customer shall not, and shall ensure that its Authorized Users do not: (a) license, sell, lease, rent, outsource, host, use as a service bureau (e.g. perform data migration or data integration work as a billable service) or otherwise make available any OrderPoint Product, or any part thereof, to third parties, other than Authorized Users (unless Customer has purchased a license specifically allowing the OrderPoint Product to be used for third parties); (b) remove or alter any copyright, trademark or other proprietary notices or legends contained in any OrderPoint Product; (c) disassemble, decompile, or reverse engineer any OrderPoint Product; (d) interfere with or disrupt, or disobey any requirements, procedures, policies or regulations associated with, OrderPoint products or any systems used to host or provide OrderPoint applications; (e) circumvent the user authentication or security of OrderPoint Products or any host, network, or account related thereto; (f) make any use of any OrderPoint Product in violation of any law or regulation; (g) access or copy any OrderPoint Product in Subscription to build a similar or competitive product or service; or (h) copy, sell, redistribute, or otherwise transfer any OrderPoint Product, Customer’s access thereto, or any materials provided to Customer in connection with OrderPoint Products. Customer shall promptly notify OrderPoint of any known or suspected breach of security or use of OrderPoint Product in breach of this Agreement or breach of security (including unauthorized use of User Accounts).
Article 2 –Service Levels, Product Changes
2.1 OrderPoint will use commercially reasonable efforts to provide OrderPoint Products in accordance with the highest level of service levels. The provisions of this Section do not apply to any free version of any OrderPoint Product made available to Customer for test, evaluation, or other purposes (“Free Products”). Customer agrees that: (i) OrderPoint has no obligation to provide any particular service level or support services for Free Products; and (ii) OrderPoint may cease providing any on-line service portion of any Free Products at any time without notice. This Section supersedes any conflicting term of this Agreement.
2.2 OrderPoint may change or modify any OrderPoint Product at any time. OrderPoint will not provide any advance notice if the change or modification: (i) is not within industrial standards and/or customary in the industry; and (ii) does not extend and/or enhance the functionalities or architecture of the applicable OrderPoint Product. In the event of any such change, Customer may terminate the Subscription Term by providing notice to OrderPoint within such thirty (30) day period and receive a refund of a prorated portion of the Subscription Fee paid to OrderPoint that is applicable to the portion of the Subscription Term following termination.
Article 3 –Customer Data and Security
3.1 All data submitted for processing by any OrderPoint Product (“Customer Data”) is proprietary to Customer. Customer is responsible for all Customer Data submitted through its User Accounts and hereby represents and warrants to OrderPoint that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by OrderPoint or its subcontractors to provide the OrderPoint Products. Customer is responsible for back-up of all Customer Data.
3.3 Customer is responsible for acquiring and maintaining computer systems and telecommunication services necessary to use all OrderPoint Products. OrderPoint does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and OrderPoint does not warrant secure operation of OrderPoint Products or that such security technologies will be able to prevent third party disruptions of OrderPoint Products.
3.4 OrderPoint shall be entitled to monitor Customer’s compliance with the terms of this Agreement, including but not limited the number of Authorized Users accessing OrderPoint Products. OrderPoint may use Customer usage information to provide Customer with reports on its use of, and to improve, OrderPoint Products.
3.5 Eligibility to use the services: Customer hereby represent and warrant that they are at least eighteen (18) years of age or above and are fully able and competent to understand and agree the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms.
Compliance with Laws. Customer is in compliance with all laws and regulations in the country in which they live when accessing and use OrderPoint Products and Services. Customer agree to use the Services only in compliance with these Terms and applicable law, and in a manner that does not violate OrderPoint legal rights or those of any third party(ies).
Article 4 – Prices and Terms of Payment
Subscription fees for the initial Subscription Term described in the Subscription Form are as set forth in the Subscription Form and will be invoiced as set forth therein. Subscription fees for any renewal period will be the Subscription fees described in any new Subscription Form entered into between OrderPoint and Customer with respect to the renewal period or, if a new Subscription Form is not entered into, OrderPoint’s prevailing subscription fees for the OrderPoint Products. Unless either party provides the other written notice of non-renewal at least 30 days prior to the renewal date, the Subscription Term will automatically renew for the renewal period. Unless otherwise set forth on the applicable Subscription Form, all Subscription fees are invoiced monthly in advance and payment is net due from receipt. All orders are non-cancellable and all Subscription Fees are nonrefundable. All sales will be billed in Australian dollars unless otherwise specified in the Subscription Form. Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for any reason. Undisputed past due amounts bear interest at 1.5% per month or the maximum permitted by law, whichever is less. All fees are exclusive of, and Customer will pay, all taxes, levies, or duties imposed by taxing authorities, excluding taxes based solely on OrderPoint’s income.
Article 5 – Term, Termination and Termination Support
5.1 The term of this Agreement begins on the Effective Date set forth in the Subscription Form and shall continue for the duration of the Subscription Term, including all renewals thereof. Notwithstanding the foregoing, either party may terminate this Agreement in the event of a breach of any provision of the Agreement which is not cured by the other party within thirty (30) days of notification by the non-breaching party. Except for termination by reason of the breach hereof by OrderPoint, termination will not relieve Customer from the obligation to pay fees that remain unpaid.
5.2 OrderPoint may terminate the Subscription Term, or suspend Customer’s subscriptions to OrderPoint Products: i) if applicable Subscription Fees have not been paid; or ii) Customer is in material breach of this Agreement. OrderPoint will promptly notify Customer of any suspension and will work with Customer in good faith to resolve the issue(s) which prompted suspension. In no event will any such termination or suspension give rise to any liability of OrderPoint to the Customer for a refund or damages. OrderPoint reserves the right to assess a reconnection fee in the event the suspension results from Customer’s failure to pay the applicable Subscription Fees or Customer’s intentional violation of this Agreement. Termination and/or suspension is without prejudice to other remedies available to OrderPoint for any violation of this Agreement by Customer. Upon termination of the Subscription Term, Customer will immediately discontinue use of all OrderPoint Products and delete or destroy all copies of any OrderPoint Products and documentation in Customer’s possession. Upon OrderPoint’s request, Customer will provide written certification that all OrderPoint Products and documentation have been destroyed.
Article 6 – Warranties by OrderPoint
6.1 OrderPoint warrants that OrderPoint Products will perform substantially in conformance with OrderPoint’s version controlled electronic documentation made available to Customer under this Agreement (“Documentation”). The foregoing warranty shall not apply to Free Products, including trial licenses to OrderPoint Products. Free Products are provided as-is with no warranty. OrderPoint will use reasonable efforts to ensure, but does not warrant, that OrderPoint Product will be secure and free of viruses or other harmful components, operate uninterrupted and error-free, and achieve any results expected by Customer.
6.2 Customer shall report any failure of any OrderPoint Product to conform to the foregoing warranties, including a detailed description of the non-conformity, to OrderPoint in writing without undue delay.
6.3 Customer’s sole and exclusive remedies for any breach of any warranty contained in this Section shall be, at OrderPoint’s option: (i) to correct the non-conformity; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the applicable OrderPoint Product during the period of time for which the non-conformity impacted Customer’s use of the OrderPoint Product.
6.4 EXCEPT FOR THE EXPRESSED WARRANTIES DESCRIBED IN THIS SECTION, ORDERPOINT DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF ORDERPOINT PRODUCTS, OR ANY INFORMATION TECHNOLOGY SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE UNINTERRUPTED OR ERROR FREE.
Article 7 – Confidential Information
7.1 “Confidential Information” means any information of a party in any form marked or noted as confidential, or information or materials which a reasonable person should conclude is confidential, of the disclosing party. In the case of OrderPoint, such information would include without limitation: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the OrderPoint Products; (ii) Documentation, benchmark results, program listings, data structures, logic diagrams, functional specifications, file formats; (iii) system infrastructure, security/architecture design and/or operations processes (iv) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the OrderPoint Products; and (iv) product offerings, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies. In the case of Customer, such information would include without limitation Customer Data.
7.2 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. Each party shall take all reasonable steps (defined below) to keep all Confidential Information of the other party strictly confidential, provided each party may disclose Confidential Information to its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “reasonable steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
7.3 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
Article 8 – Indemnification
8.1 OrderPoint will defend or settle, at its own expense, any action brought against Customer alleging any OrderPoint Product, or use thereof, infringes any patent, copyright or other proprietary right enforceable in Australia (a “Claim”), provided Customer; (a) gives prompt notice to OrderPoint in writing of the Claim and permits OrderPoint to control and defend or settle such Claim at OrderPoint’s expense and with OrderPoint’s choice of counsel; (b) does not perform any action prejudicial to OrderPoint’s ability to defend the claim; and (c) Customer cooperates with OrderPoint, at OrderPoint’s expense, in defending or settling such Claim. Customer may join in the defense with counsel of Customer choice at Customer own expense. OrderPoint shall pay any settlement made by it of such OrderPoint Infringement Claim and shall pay and indemnify Customer against any damages awarded against Customer as the result of a judgment rendered in such OrderPoint Infringement Claim defended by OrderPoint. OrderPoint has no liability for any claim based on use of OrderPoint Product: i) in violation of this Agreement; or ii) in combination with other software or hardware not provided by, or specified by, OrderPoint. If use of any OrderPoint Product is enjoined despite OrderPoint’s commercially reasonable efforts to procure rights to continue operating the OrderPoint Product or modify the OrderPoint Product to make it non-infringing, OrderPoint may terminate the Subscription Term and issue a refund of a prorated portion of the Subscription Fee paid that is applicable to the portion of the Subscription Term following termination. This Section states OrderPoint’s entire liability for any claim of infringement of any intellectual property rights of any kind. THIS SECTION STATES ORDERPOINT’S ENTIRE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM RELATING TO ORDERPOINT PRODUCTS.
8.2 Customer shall indemnify and hold OrderPoint harmless from third party claims arising from or related to (i) any use of OrderPoint Products (a) in breach of this Agreement, (b) in contravention of any policies of OrderPoint applicable to OrderPoint Products and made known to Customer and (c) in violation of any applicable law or regulation or in violation of the legal rights of others or (ii) the Customer Data. The foregoing is, however, conditional upon OrderPoint (i) notifying Customer thereof in writing and in detail without undue delay, (ii) authorizing Customer to conduct any judicial and extrajudicial proceedings with such third party on its own, and (iii) providing Customer at the expense of Customer with any reasonable assistance so that Customer can defend against the claim.
Article 9 – Limitation of Liability
OrderPoint will only be liable for actual direct damages incurred by Customer as a direct result of OrderPoint’s gross negligence, willful misconduct, or failure to exercise reasonable care in providing OrderPoint Products. OrderPoint has no liability for any indirect, consequential, or punitive loss, damage or expense, including any loss of data, revenue, profits or use, even if advised of the possibility of such loss or damage. Except for OrderPoint’s liability pursuant to Section 8 (Indemnification), in no event will OrderPoint’s aggregate liability exceed the amount of fees paid to it for OrderPoint Products in the one (1) month period preceding the date on which the claim of action first arose.
Article 10 – Miscellaneous
10.1 This Agreement may not be assigned by Customer without the prior written consent of OrderPoint, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void.
10.2 If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
10.3 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
10.4 This Agreement shall be governed by and construed under the laws of the State of Western Australia, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action arising out of or in connection with this Agreement will be heard in the state or local courts in Western Australia, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute related to this Agreement will be settled by binding arbitration under the Rules of the land by arbitrators appointed in accordance with the Rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration.
10.5 OrderPoint may provide notices to Customer by emailing it to the email address or by mailing it to Customer’s postal address, in each case as recorded in OrderPoint’s account information. Notices to OrderPoint must be sent by mail or courier to Barter Technologies Pty Ltd, The Garden Office Park, Level 2, Building C, 355 Scarborough Beach Road, Osborne Park, WA 6017, Australia. Attention: Finance department. Notices sent by email will be effective 24 hours after emailing unless OrderPoint receives notice that the email was not delivered. Other Notices are effective upon receipt.
10.6 Excluding payment obligations, any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
10.7 This Agreement constitutes the complete and exclusive statement of the agreement between OrderPoint and Customer, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement. This Agreement may be modified by OrderPoint. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to OrderPoint. This Agreement shall not be assigned by Customer.
10.8 The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the Subscription Form; and (ii) and these Terms and Conditions.
10.9 By accessing or using the OrderPoint Products and Platform, Customers are agreeing to these Terms and concluding a legally binding contract with Barter Technologies Pty Ltd and/or its affiliates or, if you are in Australia. Customer may not use the Services if they do not accept the Terms or are unable to be bound by the Terms. Use of the OrderPoint Products and Platform is at Customer’s own risk, including the risk that customer might be exposed to content that is objectionable, or otherwise inappropriate.
In order to use the Services, Customer must first agree to the Terms. Customer can accept the Terms by:
- Clicking to accept or agree to the Terms, where it is made available to Customer by OrderPoint in the user interface for any particular Service; or
- Actually using the Services. In this case, customer understand and agree that OrderPoint will treat customer’s use of the Services as acceptance of the Terms from that point onwards.
OrderPoint may vary or amend or change or update these Terms, from time to time entirely at its own discretion. Customer shall be responsible for checking these Terms from time to time and ensure continued compliance with these Terms. Use of OrderPoint Products or Platform after any such amendment or change in the Terms shall be deemed as express acceptance to such amended/changed terms and customer also agree to be bound by such changed/amended Terms.