Self Service Kiosks – Terms & Conditions

1.0 CONDITIONS OF AGREEMENT

1.1 This agreement constitutes an offer by Newbook Pty Ltd (“Newbook”, “Newbook Self Service Kiosks”, “Kiosks”, “we”, “us” or “our”) to the purchaser named on page 1 of this agreement (“Client”, “you” or “your”) for the sale of the products and/or services itemised above (“Products” or “Services”). The Client wishes to procure Products, including Kiosk hardware and Services, including software subscription services, from Newbook, who will, along with its third party delivery partners (“Delivery Partners”), deliver and install those Products and Services to you. For the avoidance of doubt, the provision of the Services to you will be the responsibility of Newbook, and the provision of the Products (including shipping and supply of the Kiosks) will be the sole responsibility of the relevant Delivery Partner.
1.2 The offer made in this agreement by us is subject to the Terms and Conditions below. You may accept this offer by signing the agreement in the provided section. By accepting this offer you accept the Terms and Conditions below.
1.3 The Newbook Self Service Kiosk package set out in this offer is for a minimum contract term of 12 months. Your plan will be automatically renewed for a further term of 12 months unless you have contacted Newbook and advised that you would not like to renew at least thirty (30) days prior to the renewal date.
1.4 If you have not accepted this offer within fourteen (14) days of the date of this agreement, this agreement will expire and will be null and void. Expiry dates on agreements are set to be able to inform us when the agreement is still active or to be discarded. Once discarded, the agreement will need to be reconsidered or reissued at the discretion of Newbook.
1.5 This agreement is standalone to any other agreement you may have with Newbook. Any disputes regarding this agreement do not constitute withholding payment of any other agreement with Newbook or vice versa.

2.0 TERMS AND AMENDMENT PROCEDURE

2.1 Subject to this clause 2, these Terms and Conditions are subject to revision at the discretion of Newbook from time to time.
2.2 We may vary these Terms and Conditions, the amount we charge for any Service set out in this offer, or the terms of the operation of any Product or Service, at any time by notice on the home page of our website at www.newbook.cloud. You will be alerted to any changes made, which will be set out in the notice, by way of email sent to your main email address provided at the time of acceptance of this offer.
2.3 Any changes will become effective upon publication of the notice. Where we vary the prices for Services, we will give at least fourteen (14) days’ notice of the change by the same means and the new prices will apply at the end of that period.
2.4 If you use the Service after that publication, your use will constitute an acceptance of the amended terms.
2.5 The Terms and Conditions contained in this offer constitute the entirety of the parties’ agreement and supersede prior agreements.

3.0 SERVICE

3.1 Newbook’s Self Service Kiosks are provided with the ability to modify their content only as outlined in this agreement.
3.2 Any changes or modifications to the Kiosk functionality outside of this scope will require a custom solution to be quoted and will incur additional fees.
3.3 Hardware and their peripherals, including any attached EFTPOS or other payment terminals not provided by Newbook or a Delivery Partner, are to be purchased and managed by the Client unless otherwise agreed upon in a separate contract with Newbook.
3.4 Newbook or its parent business are not liable to you or any other person for any cost, loss or liability including loss of profit, loss of data, marketing expense or other consequential damage arising from our supply or failure or delay in supplying the Service.
3.5 Client accepts responsibility for all information and material published through the Newbook Self Service Kiosks.
3.6 Client is responsible for dealing with people/persons who access the Kiosks, and must not refer complaints, support, billing or any other inquiries in relation to use of the Kiosks to Newbook. Any fault issues, maintenance support and other queries in relation to the Kiosk hardware should be directed to the relevant Delivery Partner as notified to you.
3.7 Client will not violate copyright or other intellectual property rights. Client will not download, reverse engineer, change, pass on, or sell any software residing on the Newbook Self Service Kiosks, Newbook’s servers or any other intellectual property that is not the property of the Client.
3.8 Client is responsible for:
3.8.1 Where delivery of the Products or Services requires the Delivery Partner to be onsite at the Client’s premises, providing a safe workplace for the Delivery Partner’s personnel;
3.8.2 Providing resources as reasonably required by the Delivery Partner to provide the Products or Services; and
3.8.3 Complying with the Delivery Partner’s directions in relation to the Products or Services.
3.9 Risk of loss of or damage to the Kiosk hardware passes to the Client upon delivery of the hardware to the Client. Title in the Kiosk hardware passes to the Client upon payment in full.
3.10 For the avoidance of doubt, Newbook (in its own right or on behalf of the Delivery Partner) retains title in the hardware until it has been paid in full by the Client. This ownership applies even in cases where Newbook or the Client have installed hardware, or it has been commingled.
3.11 The Client must permit the Delivery Partner to enter the Client’s premises where the Kiosk hardware is located and must provide the Delivery Partner with an irrevocable licence to enter the Client’s premises for this purpose, where the Client becomes insolvent (as that term is defined in the Corporations Act 2001 (Cth)).
3.12 The Client must permit the Delivery Partner to enter its premises for the purpose of inspecting any Kiosk hardware, upon reasonable notice.

4.0 PAYMENT

4.1 You must pay all service charges, minimum charges and other amounts incurred by you, designated users or incurred as a result of any use of your user access (whether authorised or not).
4.2 All additional charges incurred by you will be invoiced monthly in arrears, and are payable within seven (7) days of receiving a tax invoice from us.
4.3 You must pay all amounts billed in accordance with this offer and as varied from time to time. No credit terms are given.
4.4 The first payment and hardware purchase is to be made before the relevant Delivery Partner begins work on customising, shipping or supplying the Kiosks and any related equipment. The billing cycle will commence immediately upon signing this agreement, regardless of whether the Kiosks is in transit, being used for training or live business use.
4.5 Payments to Newbook can be made by BPay, direct debit or credit card.
4.6 Payment for all billing cycles is always due upfront / in advance, and must be received by Newbook by the payment due date to avoid interruption to the Service to be provided by Newbook. The payment due date is always the last day of your previous billing period. It is your responsibility to ensure the payment due date is met. If the payment due date is not met, the Service may be suspended without advance notice.
4.7 Accounts being paid by credit card will be charged seven (7) days prior to the commencement of the next billing period (or closest business day thereto).
4.8 Newbook reserves the right to pass on any debt collection costs and also charge interest at a rate of 10% p.a. for any outstanding amounts owing outside of the agreed payment terms.

5.0 PRICING

5.1 All prices in this agreement are exclusive of applicable taxes (such as sales tax or GST) unless specifically noted otherwise. Payments made by credit card shall incur a credit card fee applicable to that card’s vendor, which may change from time to time at that vendor’s discretion.
5.2 The prices contained in this offer or any subsequent quotation may have be varied upon agreement between Newbook and you in writing. Newbook reserves the right to alter any Product and/or Service and/or price in this offer or any subsequent quotation, provided such offer or quotation has not already been agreed to by you, including variation as to CPI increase or to account for any adjustment in price by Delivery Partners.

6.0 PRIVACY

6.1 Information collected about both you and your customers is subject to the terms of Newbook’s privacy policy, the terms of which can be found on our website www.newbook.cloud.
6.2 Newbook may conduct credit checks against the individual person signing this agreement, as well as the business/trust/company/entity and any directors/trustees/partners of the entity(/s) entering into this agreement with Newbook.
6.3 Newbook reserves the right to decline service and cancel this agreement with any individual/entity showing an adverse credit rating.
6.4 The parties must:
6.4.1 Only use or disclose personal information obtained during the course of providing the Products and Services under these Terms and Conditions for the purposes of these Terms and Conditions;
6.4.2 Take all reasonable steps to safeguard personal information from misuse, destruction, alteration, interference, loss, unauthorised access, modification and disclosure, including by not disclosing such personal information to any third party (other than the individual to whom the information relates), and maintain and observe appropriate data security policies having regard to these obligations;
6.4.3 Comply with applicable privacy laws and not engage in any practice that would breach those privacy laws or cause either party to breach privacy laws;
6.4.4 Immediately notify the other party in the event that a party becomes aware of any threatened, suspected or actual breach of any of the obligations contained in, or referred to in, this clause 6, whether by a party or any of that party’s personnel and:
6.4.4.1 Provide the other party with all reasonable assistance that it may request to mitigate, investigate and resolve the breach; and
6.4.4.2 Consult with the other party before making any notifications to regulators, impacted individuals or third parties; and
6.4.5 Ensure that any personnel who are required to deal with personal information for the purposes of these Terms and Conditions are made aware of the obligations as set out in this clause 6 (which includes any third parties holding personal information pursuant to these Terms and Conditions).

7.0 TERMINATION TERMS

7.1 You have the right to terminate the on-going Services provided by Newbook in this agreement at any time after providing at least 90 days’ written notice. However, should you wish to terminate before the contract term set out herein has expired, you will forfeit any payments that have been made to Newbook and you will be liable to pay all amounts payable to Newbook under the terms of this agreement until the expiration of your contract period.
7.2 Any promotional discounts related to the on-boarding costs i.e. Setup, Training, Migration, will be payable to the original amount if Client terminates this agreement prior to the expiration.
7.3 If you have a multi-property pricing arrangement and wish to terminate an individual property, the agreement prices for the remaining properties will be void and new prices will be provided by Newbook in its absolute discretion (including increase of prices).
7.4 Newbook is not responsible for the performance of third party integrations. Integrations may be discontinued and it does not allow for early termination of your Newbook contract.

8.0 KIOSK WARRANTIES

8.1.1 A three (3) year manufacturer warranty applies as of the delivery date of all hardware.
8.1.2 A three (3) year manufacturer warranty period does not apply where the warranty is voided.
8.1.3 The hardware warranty is limited to that provided by the relevant Delivery Partner, as is updated from time to time.

9.0 OTHER WARRANTIES AND LIABILITIES

9.1 We do not warrant that:
9.1.1 The Services provided under this agreement will be uninterrupted or error free;
9.1.2 The Services will meet your requirements, other than as expressly set out in this agreement;
9.1.3 The Services will be free from external intruders (hackers) or other persons having unauthorised access to the Services or systems of Newbook; or
9.1.4 The Services provided are compliant with any local, state or federal government requirements including but not limited to tax, invoicing, accounting or trust accounting. It is the Client’s responsibility to ensure that they comply with local, state or federal government requirements.
9.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the Services again or payment of the cost of having the Services supplied again.
9.3 Newbook will not be liable to the Client for any loss, damage, costs, claims, delay or failure in relation to the provision of its Services arising directly or indirectly from, or suffered as a result of:
9.3.1 The fraudulent, negligent or otherwise unlawful act or omission of the Client or any other third party;
9.3.2 Any information, data or other material provided to Newbook by or on behalf of any person;
9.3.3 Any issue as set out in clause 8 or 9; or
9.3.4 The Client’s failure to comply with the obligations contained in clause 3.8 above.
9.4 You warrant that:
9.4.1 At the time of entering into this agreement, you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or advertising material which we have produced;
9.4.2 You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you or downloaded by you through the Newbook service does not contain any computer virus and will not, in any way, corrupt the data or systems of any person;
9.4.3 You will incur any costs related to software, hardware, servicing, personal time or any other expense relating to your ability to access the Service; and
9.4.4 You will keep secure and keep confidential any passwords used to access the Service.
9.5 You accept responsibility for all information and material you or any third party transfers over any service, and indemnify us and hold us harmless against any liability in relation thereto. In particular, you undertake that you shall not publish or issue any information that is illegal or defamatory. You also acknowledge that we do not check or approve any information or material available through the Service and that we do not accept any liability for the information accessed or deposited through the Service or for any traffic traversing the network. To the full extent permitted by law, you access and use such information and material at your own risk.
9.6 You are solely responsible for dealing with third parties who access the Service, and must not refer complaints or inquiries from third parties to us.
9.7 We and the Delivery Partner are not liable to you or any other person for:
9.7.1 Any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
9.7.2 The content, context or confidentiality of any communications made using the Service;
9.7.3 Any inconvenience, losses, damages, costs incurred or any other issues relating to or caused by third party software/systems which are integrated for use with Newbook and Newbook Self Service Kiosks including but not limited to EFTPOS terminals, channel managers, customer databases, payment gateways, access control, security systems, PABX/telephone systems, Wi-Fi, Door Locks, Key Dispensers, Point-of-Sale (POS) systems and RFID wristband/FOB/card technologies; or
9.7.4 Data loss under any circumstances.
9.8 Newbook has the final decision making ability as to which third parties the Service will integrate with. Newbook will provide technical support at its sole discretion and may discontinue support for a third party integration in the future. A minimum thirty (30) days’ notice will be provided by Newbook to you before the cancellation of a third party integration unless agreed in writing with you.
9.9 You agree that you will protect, indemnify, save and hold Newbook harmless from any and all stipulations, claims, actions, arrears, losses, expenses (including legal fees) and assertions claimed against Newbook that may arise or result from any Service provided or executed, or agreed to be executed, or any Product or Service sold by Newbook on your behalf.
9.10 The Client indemnifies Newbook against all loss, claims, costs, expenses or other liability which Newbook incurs or suffers to the extent such loss, claim, cost, expense or other liability is suffered or incurred as a result of the following:
9.10.1 Any fraud by the Client;
9.10.2 Any breach by the Client of any applicable law;
9.10.3 Any wilful default, repudiation or negligent act or omission of the Client;
9.10.4 Any liability arising from a breach by the Client of clause 6 (Privacy) and clause 12 (Confidentiality);
9.10.5 Any claim against the Delivery Partner alleging that any of the Client’s software infringes the intellectual property rights or moral rights of any person; and
9.10.6 Any personal injury, death or loss of or damage to real or tangible personal property caused by the Client under or in connection with these Terms and Conditions.
9.11 If any Product or Service provided by Newbook is licensed by third parties, the Client must comply with the terms of such licence. The Client indemnifies Newbook against any loss, damage, claim, liability or demand incurred by Newbook arising directly or indirectly as a result of the Client’s breach of a third party licence.
9.12 Nothing in this clause 9 will be taken as in any way reducing or affecting each party’s general duty to mitigate loss suffered by it.
9.13 Nothing in these Terms and Conditions excludes or limits a party’s liability with respect to losses arising from occurrences for which that party is required to effect and maintain insurance under clause 13 (Insurance) to the extent that those losses are properly recoverable under any such insurance.

10.0 JURISDICTION

10.1 These Terms and Conditions are governed by the law in force in the State of New South Wales, Australia.

11.0 INTELLECTUAL PROPERTY

11.1 Subject to the provisions of this Agreement, each party will continue to independently own its intellectual property, including all patents, trademarks, trade names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any development or change to Newbook Self Service Technology as a result of feedback, recommendation or input from you, regardless of whether payment was or was not received by Newbook, will remain the sole intellectual property of Newbook.
11.2 The Client acknowledges that the Delivery Partner owns any and all intellectual property rights in any materials (including software) that are supplied or licensed by that Delivery Partner to the Client (at Newbook’s direction).

12.0 CONFIDENTIALITY

12.1 Each party acknowledges that it may have access to or obtain Confidential Information of the other party and/or its customers.
12.2 Each party agrees that during the contract term of this agreement, and at all times after the termination or expiry of this agreement, that:
12.2.1 It will not use or disclose the Confidential Information of the other party to any third party unless express written consent has been provided, for the purpose of performing or enabling its agents, employees and/or contractors to create and operate the Services provided by this agreement, or as may be required by law;
12.2.2 It will not make any copies of the Confidential Information without the other party’s prior written consent;
12.2.3 It will not use the Confidential Information for its own benefit or the benefit of any third party;
12.2.4 It will only use the Confidential Information for any purpose expressly agreed to in this agreement;
12.2.5 It will implement and maintain all reasonable technical and organisational measures necessary to protect the other party’s data against misuse, loss, unauthorised use, access, processing, modification or disclosure as may be required to protect the other party’s Confidential Information against misuse and unauthorised use;
12.2.6 It will not challenge the other party’s ownership of the Confidential Information; and
12.2.7 It will notify the other party if it becomes obliged to disclose any part of the Confidential Information.
12.3 The obligations set out in clause 12 do not apply to Confidential Information:
12.3.1 That is disclosed to the Client’s third party service providers or to its customers, but only to the extent necessary for the provision of the Products under this agreement;
12.3.2 That is in the public domain (except as a result of the other party’s breach of this agreement);
12.3.3 That is disclosed to either party’s legal or financial advisers to obtain advice; or
12.3.4 That must be disclosed by law.
12.4 Each party will notify the other party as soon as reasonably practicable after becoming aware of a breach or suspected breach of confidentiality of the Confidential Information, and will provide any assistance reasonably requested by the other party to investigate any breach or suspected breach of the confidentiality of the Confidential Information and to mitigate the damage or potential damage caused by the breach.
12.5 The parties agree that upon termination or expiry of this agreement or upon request by the other party, whichever is sooner, it will immediately and at its cost:
12.5.1 Deliver to that party all Confidential Information; and
12.5.2 Delete all electronic versions of the Confidential Information.

13.0 Insurance

13.1 The Client must arrange and maintain, at its own cost, Public Liability Insurance of at least $10 million per event.
13.2 The Client must provide satisfactory evidence that it has complied with its obligations pursuant to this clause.