English
These merchant terms and conditions (“Terms”) are between GoTab Pty Ltd (ACN 678 984 506) (“GoTab”, “we”, “us”) and the customer entity (“Merchant”, “you”) identified in the Order Form (defined below). These Terms govern the Order Form, Merchant’s use of the GoTab Solution and GoTab’s supply of any other products, services, or other online offerings specified in the Order Form. A reference to this “Agreement” is a reference to the Order Form together with these Terms.
Capitalised terms in this Agreement, unless defined above, have the meanings set out in this clause or as defined locally within a clause:
“Access Protocols” means the passwords, access codes, links, policies, technical specifications, connectivity standards or protocols, or other relevant procedures provided by GoTab to allow Merchant (and Authorised Users) to access the GoTab Solution.
“Authorised User” means an employee, agent or independent contractor of a Merchant Group Member who is authorised by or on behalf of Merchant (or a Merchant Group Member) to access the GoTab Solution.
“Confidential Information” is defined in clause 9.1.
“Documentation” means the technical documentation and user materials made available by GoTab to Merchant in hard copy or electronic form describing the use and operation of the GoTab Solution.
“Error” means a reproducible failure of the GoTab Solution to substantially conform to the Documentation.
“Error Corrections” means bug fixes to correct Errors in the GoTab Solution or workarounds that allow for the same or similar functionality.
“Feedback” is defined in clause 3.5.
“Fees” means all fees and charges payable for the use of the GoTab Solution by all Merchant Group Members and for any other Offering, as set out in the Order Form and subject to adjustment in accordance with clause 11.1.
“GoTab Solution” means the GoTab software-as-a-service mobile ordering and payment platform that is designed to allow Guests to place food and beverage orders on-demand and communicate such orders to Merchant’s systems for processing and fulfillment.
“Guests” means patrons or customers of Merchant Group who access the consumer-facing application of the GoTab Solution to place food and beverage orders on-demand from Merchant.
“Guest Data” means any data or information provided or submitted by or on behalf of a Guest to or through the GoTab Solution, which is shared with Merchant Group by the GoTab Solution for the purposes of fulfilling an order placed by such Guest.
“Guest Payments” means all amounts paid by Guests in connection with orders placed through the GoTab Solution.
“Initial Term” means the initial term of this Agreement as specified in the Order Form.
“Intellectual Property Rights” means any and all now known or hereafter existing intellectual property rights of any kind in any jurisdiction in the world, whether registered or registrable, including: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights, and any registered or unregistered marks, names, logos, slogans and other brand identifiers; (c) trade secret rights and rights to have confidential information protected; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; (f) domain names, database rights and any rights in software code; and (g) all registrations, applications, renewals, extensions, or reissues of the foregoing.
“Merchant Application” means the application form and other processes which each Merchant Group Member must complete with a Payment Processor (determined by the Payment Processor) in order to use that Payment Processor for the purposes of the GoTab Solution, subject to clause 4.5.
“Merchant Content” means any content, data and information provided or submitted by or on behalf of Merchant, any Merchant Group Member or any Authorised Users into or for use with the GoTab Solution (but does not include Usage Data or Guest Data).
“Merchant Group” means Merchant and all entities registered by or on behalf of Merchant as a sub-merchant or sub-sub-merchant subject to clause 12, as permitted by available functionality in the GoTab Solution.
“Merchant Group Member” means any entity which is a member of the Merchant Group.
"Merchant Share" is defined in clause 4.2.
“Offerings” means any products, services and other offerings provided by GoTab to Merchant under this Agreement (as specified in the Order Form), including the GoTab Solution and any Professional Services.
“Order Form” means an order form, proposal, scope of work, statement of work or other document issued by GoTab and executed by Merchant which sets out the Offerings, applicable charges and other details of Merchant’s order which are governed by these Terms.
“Payment Processor” means a third party payment processor used by the GoTab Solution to facilitate Guest Payments (who, at the date of this Agreement are Adyen N.V. and any other payment processor listed on the Order Form), subject to clause 4.5.
“Payment Processor Fees” means any fees and charges imposed by a Payment Processor in accordance with the applicable terms of that Payment Processor.
“Professional Services” means any professional services provided by GoTab to Merchant as described in an Order Form, including configuration or customisation services.
"Provisioning Date" is defined in clause 2.1.
“Support” means standard user support provided by GoTab to users of the GoTab Solution which may include issue logging and helpdesk support via GoTab-designated communication channels, in accordance with GoTab’s then-current support processes as set out in the Order Form or updated by GoTab from time to time (without substantially degrading the overall level of support provided).
“Term” means the Initial Term plus all extensions of the Initial Term in accordance with clause 11.1.
“Usage Data” is defined in clause 3.5.
2.1 Access. Within a reasonable time after Merchant’s (or Merchant Group Member’s) Merchant Application is accepted by the relevant Payment Processor, GoTab will provide Merchant the necessary Access Protocols to allow Merchant (or Merchant Group Member, as applicable), Guests, and Authorised Users to access the GoTab Solution (“Provisioning Date”). Subject to Merchant’s payment of applicable Fees and compliance with this Agreement, GoTab will provide Merchant with access to the GoTab Solution during the Term. Merchant will use commercially reasonable efforts to prevent unauthorised access to, or use of, the GoTab Solution, and notify GoTab promptly of any such unauthorised use known to Merchant. Merchant may provide Merchant Group Members with access to the GoTab Solution subject to this Agreement.
2.2 Support Services. Subject to this Agreement, GoTab will, during the Term: (a) provide Support, (b) keep the GoTab Solution operational and reasonably available to Merchant, and (c) provide Error Corrections in the event of any Errors, via Support.
2.3 Hosting. GoTab will, at its own expense, provide for the hosting of the GoTab Solution (and Merchant Content) using third party hosting providers determined in GoTab’s discretion from time to time, provided that GoTab will, unless otherwise approved by Merchant: (a) not transition to a hosting provider offering substantially poorer availability or security overall; and (b) ensure Merchant Content is hosted in Australia. GoTab is not responsible for providing access to the internet or any telecommunications or computer network hardware required by Merchant Group Members or Authorised Users to access the GoTab Solution.
2.4 Merchant Content. During the Term, Merchant may download reports and extracts of Merchant Content using available functionality within the GoTab Solution. GoTab recommends that Merchant use this functionality during the Term to ensure it has sufficient access to Merchant Content records independently of GoTab Solution availability. Following the Term, GoTab has no obligation to host or maintain Merchant Content, however on request by Merchant, will use commercially reasonable efforts to make available access to the GoTab Solution to enable Merchant to download reports and export extracts of Merchant Content (to the extent such Merchant Content is retained and available). GoTab may charge reasonable rates (as notified in advance by GoTab) where such access is made available more than 60 days after the end of the Term.
2.5 Modifications. GoTab is responsible for maintaining, updating and modifying the GoTab Solution and Documentation from time to time, which it may do in its discretion provided that it does not substantially degrade the functionality or security of the GoTab Solution.
3.1 Grant of Rights. Subject to this Agreement, GoTab grants to Merchant a non-exclusive, non-transferable (except as permitted under this clause and clause 12) right during the Term, for the internal business purposes of Merchant Group and in accordance with the limitations (if any) set out in the Order Form: (a) to access and use the GoTab Solution solely within the Merchant’s environment which must meet the minimum hardware, software, and connectivity configuration requirements for the use of the GoTab Solution as specified in the Documentation or Order Form, and in accordance with the Documentation and this Agreement; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Merchant Group’s use of the GoTab Solution. Merchant may permit Authorised Users of all Merchant Group Members to access and use the GoTab Solution provided that Merchant is responsible and liable for such access and use by all Authorised Users (as if acts and omissions of each Authorised User are those of Merchant itself) and must ensure all Authorised Users are informed of and comply with all relevant and applicable usage restrictions in this Agreement.
3.2 Restrictions. Merchant will not, and will not permit any Authorised User, Merchant Group Member or other person to: (a) allow any third party to access the GoTab Solution or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the GoTab Solution or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the GoTab Solution or Documentation for the benefit of any unauthorised third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of the GoTab Solution, except as permitted by law; (e) interfere in any manner with the operation of the GoTab Solution or the hardware and network used to operate the GoTab Solution; (f) modify, copy or make derivative works based on any part of the GoTab Solution or Documentation; (g) access or use the GoTab Solution to build a similar or competitive product or service; (h) attempt to access the GoTab Solution through any unapproved interface; or (i) use Guest Data for any reason other than solely as necessary to fulfill orders placed by such Guests through the GoTab Solution, or otherwise use the GoTab Solution or Documentation in any manner that exceeds the scope of use permitted under clause 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement.
3.3 GoTab Solution Ownership. The GoTab Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing and any enhancements, updates or modifications to them now or in future, are the exclusive property of GoTab and its suppliers. All rights in and to the GoTab Solution and Documentation not expressly granted to Merchant in this Agreement are reserved by GoTab and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Merchant, any Merchant Group Member or any other person regarding the GoTab Solution or Documentation.
3.5 Feedback and Usage Data. Merchant Group Members or their Authorised Users may provide feedback, suggestions or requests relating to the GoTab Solution (including Support requests) (“Feedback”). In addition, GoTab may monitor and collect metadata and statistical, technical and usage data concerning Merchant Group Members’ (and Authorised Users’) use of the GoTab Solution (“Usage Data”). Merchant authorises GoTab (on behalf of each Merchant Group Member and Authorised User) to use Feedback and Usage Data for its internal business purposes including to develop or improve the Offerings. GoTab owns Usage Data.
4.1 Fees. Merchant must pay GoTab all applicable Fees. Fees must be paid in accordance with this clause 4.
4.2 Payment Processing. Within the GoTab Solution, the Payment Processor will receive Guest Payments and: (a) deduct its Payment Processor Fees daily or as otherwise determined subject to the Payment Processor’s applicable terms; (b) forward to GoTab its applicable Fees for the GoTab Solution (plus applicable GST in accordance with clause 4.6); and (c) forward the remaining balance to Merchant (“Merchant Share”). GoTab may invoice Merchant for any Fees (plus applicable GST in accordance with clause 4.6) not forwarded in full to GoTab by the Payment Processor, and Merchant must pay such amounts within 14 days of a tax invoice.
4.3 Payment Processor Timing. Subject to the Payment Processor’s applicable terms, if Merchant is using a dedicated merchant account, Merchant will receive the Merchant Share according to the Payment Processor’s policy. If Merchant is using a shared merchant account, Merchant shall receive the Merchant Share on a weekly basis, for all Guest Payments received in such week, within four (4) business days of the end of each such week.
4.4 Expenses. GoTab will be reimbursed only for expenses that are expressly provided for in an Order Form or that have been approved in advance in writing by Merchant, provided GoTab has furnished such documentation for authorised expenses as Merchant may reasonably request. Merchant will maintain complete, accurate and up-to-date Merchant billing and contact information at all times.
4.5 Payment Processors.
(a) GoTab will specify the Payment Processor in the Order Form or on written notice to Merchant. GoTab may also nominate an optional “failover” Payment Processor in the Order Form or by written notice. GoTab may, from time to time, change its nominated Payment Processors on reasonable notice to Merchant.
(b) In order to use the GoTab Solution: (i) Merchant must be enrolled as a sub-merchant of GoTab with its nominated Payment Processor; (ii) Merchant may be enrolled as a sub-merchant of GoTab with its nominated “failover” Payment Processor (and if it is not, there will be no “failover” Payment Processor in the event of primary Payment Processor unavailability); and (iii) each Merchant Group Member must be enrolled as a sub-merchant of GoTab with GoTab’s nominated Payment Processor(s) (and if it is not, the Merchant Group Member will not be able to use the GoTab Solution).
(c) Merchant agrees to comply and ensure each Merchant Group Member’s compliance with the applicable standard terms of the Payment Processors they are enrolled with (as notified by GoTab or the Payment Processor).
(d) To successfully enrol, each Merchant Group Member must complete the relevant Merchant Application and have it accepted by the relevant Payment Processor. GoTab has no control over the Merchant Application process.
(e) GoTab is not responsible for the performance or availability of Payment Processors and the impact that such Payment Processors have on the availability of the GoTab Solution.
(f) If: (i) a primary or “failover” Payment Processor rejects Merchant or Merchant Group Member’s Merchant Application; or (ii) GoTab changes the primary or “failover” Payment Processor, and Merchant or a Merchant Group Member reasonably objects to the use of the nominated Payment Processor (including because the Payment Processor and its applicable terms are materially less favourable to Merchant Group Member than those of the existing Payment Processor), then Merchant may: (iii) if Merchant is affected, terminate this Agreement with respect to all Merchant Group Members; or (iv) if Merchant is not affected, terminate this Agreement with respect to the affected Merchant Group Members only.
(g) At the date of this Agreement, Adyen N.V. (“Adyen”) is a Payment Processor. Payments processed by Adyen under this Agreement are subject to the Adyen for Platforms Terms & Conditions (available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms) (“Adyen Terms and Conditions”). Merchant agrees to be bound by the Adyen Terms and Conditions, as may be modified by Adyen from time to time.
(h) As a condition of GoTab enabling payment processing services through Payment Processors, Merchant agrees to provide GoTab accurate and complete information about Merchant Group’s business, and authorises GoTab to share such information and Merchant Content with Payment Processors to the extent relevant to the payment processing services provided by the Payment Processor.
4.6 GST. Words defined in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) have the same meaning when used in this clause. The consideration for any supply made under or in connection with this agreement is exclusive of goods and services tax (“GST”). If any supply is a taxable supply, the amount payable by the recipient is the consideration specified in this agreement plus an amount (additional amount) equal to the amount of the consideration multiplied by the current rate of GST imposed in respect of the supply. The recipient must pay the additional amount at the same time and in the same manner as the consideration to which it relates, provided the supplier issues an invoice (itemising the additional amount) in respect of the supply. Despite that GoTab may collect or receive GST amounts payable on Fees on a daily basis under this Agreement, GoTab will issue tax invoices to Merchant itemising the GST amounts paid, on a monthly basis.
4.7 Taxes. Subject to clause 4.6, the Fees are otherwise exclusive of all other applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Merchant will be responsible for payment of all such taxes (other than taxes based on GoTab’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, Guest Payments and the provision of the Offerings to Merchant (“Taxes”). If Merchant withholds or is required by law to withhold any Taxes, the amount payable by Merchant to GoTab under this Agreement is taken to increase automatically such that the total amount received by GoTab is the amount invoiced (as if there had been no withholding or payment of Taxes), and if GoTab is required to pay any Taxes, the amount GoTab is entitled to invoice or receive from Merchant under this Agreement increases by the amount of such Taxes.
5.1 License; Ownership. Merchant is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Merchant Content. Merchant will obtain all third-party licenses, rights, consents and permissions needed for GoTab to use Merchant Content to provide the GoTab Solution and in accordance with, or to perform, this Agreement. Merchant grants GoTab a non-exclusive, worldwide, royalty-free and fully paid licence and right during the Term to use: (a) Merchant Content to perform and administer this Agreement and to provide and improve the GoTab Solution; (b) Merchant trademarks, service marks, and logos as required to provide the Offerings, but only to the extent expressly instructed to do so by Merchant; and (c) Merchant Content in an aggregated and anonymised form (including after the Term) to: (i) improve the Offerings and other products and services; (ii) perform analytics and benchmarking; and (iii) generate Usage Data provided that no statistics identifying a Merchant Group Member will be disclosed to third parties without Merchant’s consent. Merchant Content, and all Intellectual Property Rights in it, is (as between GoTab and Merchant) the exclusive property of Merchant.
5.2 Merchant Content Warranty. Merchant represents and warrants that any Merchant Content will not: (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage GoTab’s system or data; or (e) otherwise violate the rights of a third party. Merchant agrees that any use of the GoTab Solution contrary to or in violation of the representations and warranties of Merchant in this clause 5.2 constitutes unauthorised and improper use of the GoTab Solution.
5.3 Privacy. Both parties must comply with the Privacy Act 1988 (Cth) in their handling of Merchant Content and Guest Data. Merchant must ensure, and warrants, that prior to entering Merchant Content into the GoTab Solution, it has made all necessary enquiries of GoTab in relation to the GoTab Solution and: (i) provided all notices; (ii) obtained all consents; (iii) established a lawful basis for collecting and processing; and (iv) otherwise taken all actions required by applicable laws (including any privacy and data protection laws anywhere in the world which may be applicable to Merchant Content), to ensure that the processing of Merchant Content by GoTab and within the GoTab Solution as contemplated by this agreement is lawful, does not breach any laws and does not violate the rights of any person (including privacy and data protection rights, intellectual property rights or any other rights).
5.4 Merchant Responsibility for Guest Data and Security. Merchant and its Authorised Users will have access to Guest Data as part of the GoTab Solution and will be responsible for all changes to and/or deletions of Guest Data made by Merchant, Authorised Users or others using Access Protocols provided to Merchant. If any Merchant Group Member receives Guest Data that is personal information within the meaning of the Privacy Act 1988 (Cth)), then: (a) Merchant must comply and ensure its Merchant Group Members and Authorised Users comply with all applicable privacy, data protection and information security laws applicable to the personal information, and (b) solely use such information for the purpose of fulfilling orders placed by Guests and no other purpose.
5.5 GoTab Responsibility for Merchant Data. GoTab will implement reasonable and appropriate technical and organisational security measures designed to protect Merchant Content from unauthorised or unlawful processing, access, disclosure, alteration and destruction. GoTab will implement a reasonable backup schedule or failover storage designed to protect against a total loss of Merchant Content, however, GoTab is not responsible for and does not guarantee against loss of Merchant Content. Merchant is solely responsible for regularly downloading reports and extracts of its Merchant Content (using functionality available in the GoTab Solution) (“Exports”) as necessary for its record-keeping purposes, and backing up such Exports to ensure availability despite any unavailability of the GoTab Solution. If there is a loss of Merchant Content, GoTab will use commercially reasonable efforts to restore Merchant Content from the last available and successful backup and if the loss of Merchant Content was not caused by GoTab’s breach of this Agreement, GoTab reserves the right to reasonably charge for such assistance at its then-current professional services rates.
5.6 Data breach handling. GoTab must maintain an incident response plan designed to support its management of cybersecurity incidents. In the event of any actual or reasonably suspected unauthorised access to Merchant Content, or any other material cybersecurity incident affecting Merchant Content, GoTab will: (a) promptly notify Merchant and provide reasonable available details; (b) keep Merchant reasonably informed; (c) take immediate steps to mitigate and manage the impact of the incident, as appropriate; and (d) reasonably cooperate with Merchant in investigating the incident and provide reasonable assistance (on request) to Merchant in Merchant’s management of the incident, its impact and any regulatory (including reporting) obligations. Merchant must also take reasonable and appropriate steps to manage and mitigate the incident and its impact.
The details of any agreed Professional Services will be set out in an Order Form, which will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees payable for the Professional Services. GoTab will perform Professional Services with due care and skill, using appropriately trained and qualified personnel, and in accordance with the Order Form. If GoTab fails to comply with this clause, provided Merchant promptly notifies GoTab, GoTab will, at its own expense, rectify any non-compliance by performing any supplementary Professional Services or re-performing any Professional Services required to ensure compliance. If unable to do so within a reasonable time, either party may terminate the Agreement and, on termination, GoTab will refund any Fees paid in advance for the Professional Services or any other Offerings not supplied. Merchant agrees to reasonably cooperate with, and provide all documentation, information, and materials requested by GoTab to enable to perform the Professional Services.
7.1 Limited Warranty. GoTab warrants that the GoTab Solution will operate free from Errors during the Term, provided that such warranty will not apply to Errors arising, in whole or in part, from (a) any use of the GoTab Solution other than in accordance with this Agreement or the Documentation; (b) any use of the GoTab Solution in combination with other products, equipment, software or data not supplied by GoTab; or (c) any modification of the GoTab Solution by any person other than GoTab or its authorised agents. If GoTab fails to comply with this warranty, GoTab will (as Merchant’s sole remedy), provided Merchant notifies GoTab within a reasonable time via Support and provides sufficient information to enable GoTab to investigate and reproduce the Error: (d) provide Error Corrections via Support; or (e) if unable to provide an Error Correction, Merchant may terminate this Agreement by written notice and receive a pro-rata refund of any pre-paid Fees for the GoTab Solution (calculated by reference to the remaining portion of the pre-paid period).
7.2 Disclaimer. Other than warranties expressly provided in these Terms, to the maximum extent permitted by law: (a) GoTab excludes and disclaims all other warranties and representations as to the Offerings and Documentation (whether express, implied or statutory); (b) the GoTab Solution, Support and Documentation is provided “as is”; and (b) GoTab does not warrant that the GoTab Solution, Support and Documentation are error-free, uninterrupted or constantly available (and Merchant acknowledges that no software or software-as-a-service solution can be completely free of errors, uninterrupted or invulnerable to attack or failure). Merchant agrees that if the GoTab Solution supports any essential business function of Merchant Group, it is Merchant’s responsibility to have in place alternative or backup systems and processes to ensure adequate business continuity in the event of unexpected downtime or Errors in the GoTab Solution. Despite this, nothing in this Agreement modifies, displaces or excludes any statutory provision (including any provision of the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded. If such statutory provision implies or imposes such a guarantee or warranty, then where and to the extent permitted by law, GoTab’s liability under such provision will be limited at GoTab’s election to: (i) in the case of goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and (ii) in the case of services: the supply of the services again or payment of the cost of having the services supplied again.
8.1 Types of Damages. To the maximum extent permitted by law (and subject to clause 8.2), in no event will either party be liable to the other for any indirect, incidental, special or consequential loss or damages, or for any loss of profits or sales, business interruption, loss of or damage to data (subject to GoTab’s obligations in clause 5.4), liabilities to third parties (subject to any indemnities given under this Agreement), failure to realise anticipated savings or benefits, regardless of the basis of the claim (and whether in contract, tort (including negligence), under statute, in equity or otherwise), even if a party is aware of the possibility of such loss or damages.
8.2 Amount of Damages. To the maximum extent permitted by law, the liability of a party under or in connection with this Agreement will not exceed the total Fees received and retained by GoTab under this Agreement during the Agreement Year in which the event(s) giving rise to the relevant claim occur. Such limit applies in the aggregate to all events occurring within the same Agreement Year. (An “Agreement Year” is a 12 month period commencing on the date of this Agreement and each anniversary of it during the Term.) This limit on liability does not apply to: (a) Merchant’s liability to pay Fees, GST and Taxes (including for each Merchant Group Member); (b) a party’s obligation to indemnify the other under this Agreement; (c) malicious conduct of a party (or in the case of Merchant, any Merchant Group Member); (d) death or personal injury; (e) Merchant’s breach of clause 3 or 5 (including any act or omission of a Merchant Group Member that would, if committed by Merchant, be a breach of clause 3 or 5); or (f) a party’s breach of its confidentiality obligations under clause 9 (including any act or omission of a Merchant Group Member that would, if committed by Merchant, be a breach of clause 9).
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Agreement (including in clauses 8 and 10) are a reasonable and essential basis of the bargain between the parties on which GoTab relies in entering this Agreement at the agreed Fees.
9.1 Confidential Information. “Confidential Information” means any non-public information of either GoTab or Merchant (on behalf of each Merchant Group Member) (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The non-public aspects of the Offerings, Documentation, and all enhancements and improvements thereto, as well as the Order Form and Fees, are Confidential Information of GoTab.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorised Users (with respect to Merchant) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those in this clause, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorised use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or on termination or expiration of this Agreement, subject to clause 2.4, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information of the Disclosing Party that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence, subject to any need for the Receiving Party to retain such Confidential Information under a requirement of a law or stock exchange.
9.3 Exceptions. The confidentiality obligations set forth in clause 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to perform or enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.1 By GoTab. GoTab will defend at its expense any claim brought against a Merchant Group Member, and will pay any settlement GoTab makes or approves, or any damages finally awarded in such claim plus all reasonable costs and expenses relating to the claim, to the extent based on an allegation by any third party alleging that the GoTab Solution infringes such third party’s Intellectual Property Rights. If any portion of the GoTab Solution becomes, or in GoTab’s opinion is likely to become, the subject of a claim of infringement, GoTab may, at GoTab’s option: (a) procure for Merchant Group the right to continue using the GoTab Solution; (b) replace the GoTab Solution with non-infringing software or services which do not materially impair the functionality of the GoTab Solution; (c) modify the GoTab Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the then-current Term, and on such termination, Merchant must (and must ensure each Merchant Group Member) immediately ceases all use of the GoTab Solution and Documentation. However, GoTab will have no obligation under this clause 10.1 or otherwise with respect to any infringement claim where based on: (i) any use of the GoTab Solution other than in accordance with this Agreement; (ii) any use of the GoTab Solution in combination with other products, equipment, software or data not supplied by GoTab; or (iii) any modification of the GoTab Solution by any person other than GoTab or its authorised agents (collectively, the “Exclusions” and each, an “Exclusion”). This clause 10.1 states the sole and exclusive remedy of Merchant (on behalf of all Merchant Group Members) for infringement claims and actions.
10.2 By Merchant. Merchant will defend at its expense any claim or investigation (and any reasonable costs and expenses or fines resulting from the claim or investigation) brought against GoTab and its affiliates, and will pay any settlement Merchant makes or approves, or any damages finally awarded in such claim, to the extent based on or arising from: (a) an Exclusion (as defined in clause 10.1), or (b) any Merchant Group Member’s breach of clauses 5.2–5.4. Merchant will have no obligation under this clause 10.2 where the claim or investigation directly and solely results from GoTab’s breach of this Agreement.
10.3 Procedure. The indemnifying party’s obligations as set forth above are conditioned on: (a) the indemnified party promptly notifying the indemnifying party in writing of the claim or any threat of it (provided that a failure to promptly notify the indemnifying party will only affect the indemnifying party’s obligation to indemnify, to the extent it was actually prejudiced by the delay); (b) the indemnifying party having sole control of the defence or settlement of the claim; and (c) the indemnified party cooperating with the indemnifying party and promptly providing all information reasonably required, to facilitate the settlement or defence of the claim or suit.
11.1 Term. Provided the Order Form has been fully executed, this Agreement commences on the Provisioning Date and continues for the Initial Term, unless earlier terminated in accordance with this Agreement. The Initial Term will automatically renew immediately prior to its expiry until the last day of the then-current calendar month, and then immediately prior to the end of such calendar month and each subsequent calendar month, will automatically renew on a month-to-month basis at GoTab’s then-current rates, unless either party gives written notice of non-renewal to the other party at least fourteen (14) days (in the case of Merchant) and at least sixty (60) days (in the case of GoTab) prior to the date of the next automatic renewal. GoTab will, reasonably in advance, inform Merchant before its Initial Term comes to an end and the month-to-month subscription commences (and of the applicable Fees). GoTab may modify the Fees on written notice to Merchant at least ninety (90) days prior to the end of the then-current Term (such modification to take effect on renewal of the Term).
11.2 Termination for Breach. Without limiting their rights at law, either party may terminate this Agreement immediately on notice to the other party if the other party materially breaches this Agreement, and such breach (provided it is capable of cure) remains uncured more than thirty (30) days after receipt of written notice of such breach.
11.3 Effect of Termination. On termination or expiration of this Agreement for any reason: (a) all rights granted under this Agreement to the GoTab Solution will immediately terminate (with respect to every Merchant Group Member); (b) promptly after the effective date of termination or expiration, each party will comply with their obligations in clause 9; and (c) any amounts owed to GoTab under this Agreement will become immediately due and payable. Clauses intended by their nature to survive and clauses 2.4, 3.3, 3.5, 4.6, 4.7, 5.1(c), 8–10 and this clause 11.3 will survive expiration or termination of this Agreement.
12.1 Merchant may, from time to time, register Merchant Group Members via the GoTab Solution as sub-merchants or sub-sub-merchants. If Merchant does so:
12.2 If Merchant does not agree to the terms of clause 12.1, it must not register or allow registration of the Merchant Group Member and should instead invite the proposed Merchant Group Member to enter into these Terms directly with GoTab under a separate order form (to be issued by GoTab).