POS Solution Services Schedule

Effective: July 22, 2022

1. About this Service Schedule

1.1 This POS Solution Service Schedule (this Service Schedule) applies with respect to the following items of a Oolio POS Solution that we agree to supply to you:

(a) Oolio Hardware;

(b) Oolio Software;

(d) Support Services.

1.2 The specific components of the Oolio POS Solution that we agree to supply to you are specified in the Quotation.

1.3 This Service Schedule must be read in conjunction with the Quotation, our Terms of Service and the other documents that comprise the Agreement.

1.4 In this Service Schedule, any reference to a clause is to a clause of this Service Schedule unless otherwise specified.

2. Implementation Plan

2.1 We will provide you with a short Implementation Plan for the implementation of the Oolio POS Solution at the Site(s) which includes:

(a) date(s) for pre-install inspection(s) of the Site(s) where we consider such inspection(s) to be necessary;

(b) Site preparation requirements that you must comply with;

(d) dates by which we will aim to deliver, install and configure the Oolio Software at the Site(s) (where the Oolio POS Solution is an on-premise solution);

(e) dates by which we will aim to configure the Oolio Software to be accessed from the Oolio Hardware or Other Hardware at the Site(s) as specified in the Quotation (where applicable, including where the Oolio POS Solution is a cloud-based solution);

(f) dates by which we will aim to integrate the Oolio Hardware, Other Hardware, Oolio Software and Customer Software, to the extent specified in the Quotation;

(g) a date by which we will aim for the Oolio POS Solution to be Ready for Service; and

(h) any other particulars of the implementation that we wish to include in the Implementation Plan.

2.2 You must prepare the Site(s) in accordance with any requirements set out in the Implementation Plan or that we otherwise notify you of. You will also be responsible for ensuring that all Customer Software and Other Hardware is installed, set up, configured, fit for purpose, in working order and available to us, and that all internet connections and network connections are complete and operational, no later than the relevant date(s) specified in the Implementation Plan.

2.3 Each party must use reasonable endeavours to comply with the Implementation Plan.

2.4 There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one of more of the following events occur:

(a) we agree to a change to the Implementation Plan or any part of the Oolio POS Solution;

(b) a shipping or Third Party Provider delay occurs, or another Force Majeure Event occurs, that prevents us from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan;

(d) an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.

2.5 For any extension of time the subject of clause 2.4:

(a) we may amend the Implementation Plan; and

(b) we will provide you with a copy of the amended Implementation Plan.

2.6 You must:

(a) ensure that all Oolio Hardware and Other Hardware is installed and kept at the Site(s), under suitable conditions, as specified in any applicable Operating Manuals, and that you follow any operating instructions as we may give from time to time;

(b) at all reasonable times permit full and free access to the Site(s) and to the Oolio POS Solution to us and Our Personnel and provide us and them with an adequate and safe working space, and any telecommunications facilities as are reasonably required to enable us to perform Ordered Services while at the Site(s); and

3. Implementation Management

3.1 You will notify us of the name and qualifications of the person appointed as your Project Coordinator upon request by us.

3.2 You must ensure that your Project Coordinator co-operates with our Implementation Coordinator and attends meetings scheduled by the Implementation Coordinator to advise and assist on all matters relating to the implementation of the Oolio POS Solution at the Site(s) requested by the Implementation Coordinator.

3.3 You agree that your Project Coordinator will not be replaced before the Target Implementation Completion Date without notice to us, unless:

(a) the individual to be replaced is prevented by ill-health from carrying out his or her duties in connection with the Agreement for a significant period;

(b) the individual resigns from your employment;

(d) we make a reasonable, written request to you to replace the individual because he or she has in our opinion performed unsatisfactorily or has caused a breach of any of your obligations under the Agreement howsoever arising.

3.4 In the event that your Project Coordinator is replaced in accordance with clause 3.3, you hereby agree that you will consult with the Implementation Coordinator regarding the suitability of any replacement and ensure that the replacement person is suitably appraised of the progress of the implementation and where required by us, undergoes any “catch-up” training required by us at our hourly rates then in effect to ensure that the replacement does not result in any delay in the Implementation Work.

4. Site Preparation

4.1 You must provide all cabling, cabinet works (holes through benchtops, access holes for cables, installation of brackets etc.) and carry out all other works and provide all other equipment needed to prepare the Site(s) for the installation of the Oolio Hardware, including any equipment needed to connect and interface the Oolio Hardware with any other hardware at the Site(s).

4.2 If you do not comply with clause 4.1:

(a) we may, but are not obliged to, carry out the relevant works and supply the relevant cabling and other equipment for an additional fee specified by us;

(b) you must pay such additional fee at the time(s) specified by us;

(c) we are not liable for any loss or damage incurred as a result of our provision of such works or supply of such cabling or such other equipment;

(d) you warrant that we are authorised to carry out all such works (including, where applicable, by any landlord where you are a tenant of the Site(s)); and

(e) you must indemnify us from and hold us harmless from and against all and any loss and/or damage that we incur as a result of us carrying out such works.

5. Acceptance of Oolio Hardware

5.1 The Oolio Hardware may come with guarantees that cannot be excluded under the ACL.

5.2 In addition to any non-excludable guarantees that may apply to Oolio Hardware under the ACL and any other Applicable Law, we warrant that the Oolio Hardware supplied by us under the Agreement will:

(a) upon delivery by us to the Site(s), conform to the Specifications and be free from material defects in design, material and workmanship; and

(b) upon us confirming that the Oolio Solution is Ready for Service, be of merchantable quality and in Good Working Order.

5.3 Other than with respect to any non-excludable guarantees that apply to the Oolio Hardware under the ACL and other Applicable Law and the warranties set out in clause 5.2, all implied rights, representations, guarantees, conditions, warranties, undertakings and other remedies that you may otherwise have in relation to the Oolio Hardware are waived and excluded from the Agreement, to the maximum extent permitted by law.

5.4 You may reject as defective any Oolio Hardware delivered to the Site(s) that does not comply with any of the express warranties set out in clause 5.2, provided that:

(a) you gives us written notice of rejection:

(i) in the case of a defect that is apparent on normal visual inspection, within 5 Business Days of delivery of the Oolio Hardware to the Site(s); 

(ii) in the case of a latent defect that occurs within 20 Business Days of delivery to the Site(s), within 5 Business Days after the time when the latent defect become apparent; and

(b) none of the events listed in clause 5.5 apply.

5.5 We are not liable for any loss, damage or malfunction of any Oolio Hardware (or a failure of any Oolio Hardware to comply with any warranty set out in clause 5.2) as a result of fair wear or tear, or as a result of any of the following events:

(a) You, Your Personnel or any third party make any further use of that Oolio Hardware after giving notice in accordance with clause 5.4;

(b) a defect arises because you, Your Personnel or any third party has failed to follow our (or the manufacturer’s) oral or written instructions for the storage, commissioning, installation, use or maintenance of the Oolio Hardware or best industry practice;

(d) you, Your Personnel or any third party alters or repairs the Oolio Hardware without our prior written consent;

(e) you or Your Personnel losing the Oolio Hardware;

(f) theft of Oolio Hardware from any Site; or

(g) a defect arises as a result of your (or Your Personnel’s) or any third party’s wilful or accidental damage, negligence, or abnormal storage or working conditions.

5.6 You must indemnify us from and hold us harmless from and against all and any loss and/or damage that we incur as a result of any of the events listed in clause 5.5, including, where applicable the cost of replacing or repairing any lost Oolio Hardware or damage to the Oolio Hardware.

5.7 If you reject Oolio Hardware under clause 5.4 then we may, at our option:

(a) replace the rejected Oolio Hardware or supply equivalent goods;

(b) repair the rejected Oolio Hardware;

(d) reimburse you for the cost of repairing the rejected Oolio Hardware;

(e) if you have not paid the Price to us for the rejected Oolio Hardware, release you from any obligation to pay the Price for the rejected Oolio Hardware; or

(f) if you have already paid the Price for the rejected Oolio Hardware, refund to you the Price for the rejected Oolio Hardware, subject to you first restoring unencumbered title to the rejected Oolio Hardware to us.

5.8 Once we have complied with clause 5.7, we are not liable to you, and you will have no further remedy arising out of or in connection with the rejected Oolio Hardware's failure to comply with clause 5.2.

5.9 If we breach any guarantee under the ACL that applies to the supply of the Oolio Hardware to you, you may exercise your rights under the ACL instead of exercising your rights under clause 5.4, and in such circumstances you will not be entitled to exercise your rights under that clause. Where our liability for breach of any guarantees under the ACL or any other Applicable Law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of services again or the cost of re-supplying the services again.

5.10 Nothing in clause 5.4 limits your applicable rights under the ACL to make a claim in respect of a non-excludable guarantee under the ACL.

5.11 The terms of the Agreement apply to any repaired or replacement Oolio Hardware supplied by us.

6. Your obligations in relation to the Oolio Hardware

6.1 You must not make any representation or give any warranty in relation to the Oolio Hardware not expressly authorised by us in writing.

6.2 You must not do anything which might affect the reputation of any of the Oolio Hardware, us or our Related Bodies Corporate.

6.3 You must:

(a) promptly inform us of all material complaints or claims in relation to the Oolio Hardware;

(b) not admit liability on our behalf in respect of any complaint or claim in relation to the Oolio Hardware; and

(c) not resolve or settle any complaint or claim in relation to the Oolio Hardware, including where doing so may result in us or our Related Bodies Corporate incurring any liability to any party.

7. Title to the Oolio Hardware

7.1 Title to any Oolio Hardware will pass to you upon our receipt of your payment in full of the Price.

7.2 Until title to any Oolio Hardware passes to you in accordance with clause 7.1, you must not do any of the following in relation to any of the Oolio Hardware without our express prior written consent:

(a) sell or otherwise dispose of the Oolio Hardware;

(b) create or allow any interest (except a security interest in our favour) in, or dispose or part with possession of, the Oolio Hardware;

(d) allow the Oolio Hardware to become an accession to or commingled with any other property; or

(e) grant any security interest in relation to the Oolio Hardware.

7.3 If you deal with the Oolio Hardware in contravention of clause 7.2, without limiting any other rights or remedies available to us, you will hold the proceeds of any sale or disposal of the Oolio Hardware, and in all other circumstances an amount equalling the replacement cost of the Oolio Hardware, on trust for us.

8. Software and Documentation

8.1 We will use reasonable endeavours to install the Oolio Software on applicable Oolio Hardware or Other Hardware by the Target Implementation Completion Date, in accordance with the Implementation Plan.

8.2 We will provide to you from time to time copies of the Documentation containing sufficient up-to-date information for the proper use of the Oolio POS Solution. Such Documentation may be supplied in electronic form.

8.3 Any Open-Source Software provided by us may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, and if and to the extent permissible by Applicable Law, is provided "as is".

9. Payment

9.1 You will make payment of all Fees to us in accordance with the Payment Terms (as specified in the applicable Quotation).

9.2 Reasonable out-of-pocket expenses may also be charged by us on production of reasonable evidence of expenditure to you.

10. Change Control

10.1 You may, by giving written notice to us at any time during the Term, request a change to the Oolio POS Solution.

10.2 We may (but are not obliged to):

(a) prepare a fee estimate for the implementation of the change at our standard rates then in force (if we offer to implement the changes on a time and materials basis); or

(b) prepare a written quote for the implementation of the change (if we offer to implement the change at a fixed price);

(d) notify you of any effect that the requested change may have on the Implementation Plan.

10.3 You must inform us in writing of whether or not you wish the requested change to be made. No change will be implemented or deemed to have been agreed unless it is agreed by you and us in writing.

10.4 We specifically deny any implied or express representation that the Oolio POS Solution will be fit to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with the Oolio POS Solution.

11. Ownership

11.1 As between you and us, all of the IPRs and other right, title and interest in the Oolio Software are, and will remain, our sole property (irrespective of whether the Oolio Software is installed on any Oolio Hardware or Other Hardware and whether or not you own the hardware on which it is installed), and we reserve the right to commercialise the Oolio Software (in whole or in part) in any way we deem fit, including by granting licences to use the Oolio Software to any other party or parties.

11.2 As between you and us, all of the IPRs in the configuration of the Oolio POS Solution are, and will remain, vested solely in us, are our sole property and we reserve the right to commercialise the Oolio POS Solution (in whole or in part) in any way we deem fit, including by replicating the configuration thereof for any other party or parties.

11.3 The Oolio POS Solution, Documentation and Implementation Plan are proprietary to us or our licensors and you acquire no rights in or to the Oolio POS Solution (including the Oolio Software), Documentation or Implementation Plan other than those that may be expressly granted to you by an Agreement.

11.4 You will do and execute, or arrange for the doing and executing of, each necessary act, document and thing that we may consider necessary or desirable to perfect our right, title and interest (including IPRs) in and to the Oolio POS Solution, Documentation and Implementation Plan.

11.5 You must prevent any infringement of our IPRs in the Oolio POS Solution, Documentation and Implementation Plan in your possession or control and will promptly report to us any such infringement that comes to your attention. In particular, you will:

(a) ensure that each Licensed User, before commencing use of the Oolio Software, is made aware that the Oolio Software is proprietary to us and that it may only be used and copied in accordance with the Agreement;

(b) implement suitable disciplinary procedures for, and immediately notify us of, any Licensed User who makes unauthorised use or copies of the Oolio Software, except as provided for in clause 1.1;

(d) not permit third parties to have access to the Oolio Software without our prior written consent, which may require that such third parties executes a written confidentiality agreement in our favour on terms approved by us, before being given access to the Oolio Software.

12. Oolio SaaS Software

12.1 We grant to you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable right for your Licensed Users to access the Oolio Software from the applicable Oolio Hardware or Other Hardware at the Site(s), specified in the Quotation, in accordance with the Specifications and the Documentation, to manage your point of sale transactions at the Site(s) (your Business) and for the other purposes set out in the Documentation (collectively, the Licensed Purposes).

12.2 We undertake to use reasonable endeavours to host or procure the hosting of the Oolio Software the subject of the Oolio Licence.

12.3 If you transfer the whole of Your Business permanently from any Site to another Site, the Oolio Software may be used from the applicable Oolio Hardware or Other Hardware, specified in the Quotation, from the other Site by the Licensed Users, provided that we are informed in writing of the change of Site before use of the Oolio Software commences at the other Site.

12.4 If the Oolio Hardware or Other Hardware that the Oolio Software is operated from at a Site becomes inoperable for any reason, the Oolio Software may be temporarily used (for up to 30 days) from backup equipment at the Site that we approve until the applicable Oolio Hardware or Other Hardware is repaired.

12.5 You must comply with the Third Party Licences and will indemnify and hold us harmless from and against any loss of damage which we may suffer or incur as a result of your breach of the Third Party Licences howsoever arising.

12.6 We may treat your breach of any Third Party Licence as a breach of the Agreement.

12.7 Notwithstanding any other provisions of the Agreement, you have no right or licence to download or install the Oolio Software on any computer or device.

13. No adaptations, modifications, variations etc. of Oolio Software

You may not make adaptations, modifications or variations of the Oolio Software without our prior written consent.

You may not disassemble, decompile, reverse translate or in any other manner decode, the Oolio Software, except as expressly permitted by Applicable Law.

You may not use any Oolio Software to develop, or in connection with the development of, a competing product.

14. Initial Training

14.1 We will make Initial Training Services in the Oolio Software available to you either remotely or on Site (as determined by us) on a date specified by us, for no additional charge.

14.2 Any additional training in the Oolio Software required by you that we agree to provide will be provided by us at our standard rates then in force.

15. Third Party Tools

15.1 There may be third party software, applications, integrations, feeds, products and platforms that you may use in connection with, or that we supply, to you as part of the Oolio POS Solution, and which are used in connection with the Oolio Software (Third Party Tools).

15.2 You must indemnify us from and against any loss and/or damage that we may suffer or incur as a result of your use of, or interfacing with, any Third Party Tools.

15.3 You agree and acknowledge that:

(a) the providers of the applicable Third Party Tools, and not us, are the suppliers and publishers of the Third Party Tools;

(b) we are not responsible for the accuracy, quality or correctness of any Third Party Tools and/or their providers;

(c) your use of Third Party Tools is pursuant to a contract between you and the applicable Third Party Tool provider(s), and not pursuant to a contract between us and you;

(d) your use of Third Party Tools is at your sole risk, and not our risk;

(e) we do not make any representations or warranties with respect to any Third Party Tools (whether as to their performance, availability, compatibility with the Oolio Software and/or otherwise) and/or with respect to any providers of Third Party Tools;

(f) we are not responsible for the practices, and/or terms and/or policies of Third Party Tool providers;

(g) you warrant that you have read, understood and consented to all and any third party end user agreements, terms, conditions and policies set out in the Quotation (Third Party Terms);

(h) you will comply with, and ensure that each of your Personnel comply with, the Third Party Terms;

(i) you must indemnify us from any loss and/or damage that we may suffer or incur as a result of you or any of your Personnel’s breach of any Third Party Terms;

(j) you agree that we shall have no obligation to provide any technical support or other assistance in connection with any Third Party Tools and that if we do provide any such technical support or other assistance, you will pay us for all time that we incur in connection therewith at a rate agreed prior to commencement of the technical support or other assistance, to be paid by you into our nominated bank account within thirty (30) days of an invoice that we issue to you for same;

(k) you shall be deemed to have irrevocably released us from any claims that you may otherwise have had against us with respect to any non-performance of the Oolio Software, and with respect to any loss, damage or corruption of any Your Data, caused by Third Party Tools and/or the interfacing of any Third Party Tools with Your Data and/or the Oolio Software;

(l) except where we otherwise expressly specify in writing to the contrary, the providers of Third Party Tools are not our partners, co-joint venturers, representatives or agents and any link to any Third Party Tool from the Oolio Software and/or interfacing and/or integration of the Oolio Software with a Third Party Tool does not imply that we are affiliated with or sponsor, endorse or approve the Third Party Tool and/or its provider;

(m) we are not responsible for any downtime in the Oolio Software that occurs because a third party who operates software that the Oolio Software connects to, modifies any part of that software; and

(n) we are not responsible for any loss and/or damage that may be incurred by you directly as a result of claims that your use of Third Party Tools breaches the IPRs of any third party.

16. Support Services

16.1 If you discover a Software Defect in any Oolio Software:

(a) you must promptly notify us of the Software Defect, and where such notification is made by telephone, you must provide us with written confirmation (which may be sent by e-mail) of the Software Defect within 1 Business Day;

(b) we will acknowledge receipt of the notification, determine, in consultation with you, how seriously the Software Defect affects your business operations and use our reasonable endeavours to resolve the Software Defect.

16.2 Unless otherwise agreed in writing by us, all Support Services will be performed remotely.

16.3 We do not warrant or guarantee that we will be able to rectify all Software Defects.

16.4 Subject to the ACL, we have no obligation to perform any servicing, maintenance or repair with respect to Oolio Hardware, Other Hardware or otherwise.

16.5 Where Oolio Hardware was delivered by us to the Site no more than 12 months before you notify us that any Oolio Hardware is malfunctioning or has failed, we will escalate the repair to the manufacturer if it is under a Manufacturer’s Warranty.

16.6 While any Oolio Hardware is removed from the Site for repair under any applicable Manufacturer’s Warranty, you may, subject to availability, rent replacement Oolio Hardware from us for a fee specified by us.

17. How to contact us for Support Services

17.1 Your Personnel may issue a Support Request to us by telephone (available every day, except Christmas Day, Boxing Day, Good Friday and Anzac Day, between 9am and 10.00pm AEST), live chat (via Oolio Cloud only), e-mail or by logging a ticket using our online service desk tool, as follows:

Telephone: 1800 084 559 Email: support@oolio.com Online Helpdesk: As notified by us.

18. Support Services Cooperation

18.1 You must co-operate with us in any manner reasonably required by us in order to carry out the Support Services, including by:

(a) providing us with access to information and data,

(b) making available suitably qualified Personnel;

(d) subject to clause 16.2, providing access for our support staff at the Site(s) including by obtaining all permissions necessary to obtain such access;

(e) subject to clause 16.2, when Our Personnel are working on the Site(s), providing facilities and supplies reasonably required by us, such as power and computer consumables; and

(f) allowing us to take all or any part of the Oolio POS Solution offline temporarily while we carry out the Support Services.

19. Definitions

19.1 In this Service Schedule, words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service. In addition, the following words have the following meanings:

Customer Software means any software identified in the Implementation Plan that is not Oolio Software or Third-Party Software that we supply to you.

Direct Competitor means any third party engaged in the business of providing point of sale software, systems, services or solutions.

Good Working Order means the Oolio Hardware operates in accordance with the applicable Operating Manuals with all known vulnerabilities and errors.

Implementation Coordinator means a person who we nominate to be our project manager for the purposes of the implementation of the Oolio POS Solution at the Site(s).

Implementation Plan means an implementation plan that we prepare for the implementation of the Oolio POS Solution which includes the elements set out in clause 2.1.

Implementation Work means the work and services listed in the Implementation Plan.

Initial Training Services means training in the use of the Oolio Software as set out in the Implementation Plan.

Licensed User means any of your officers, employees or other persons authorised by you to conduct Your Business at the Site(s), who are not employed, engaged by or affiliated with any of our Direct Competitors and who are not restricted from using the Oolio Software because of any restrictions specified in the Quotation.

Manufacturer’s Warranty means any warranties provided by any third party manufacturer of any Oolio Hardware.

New Release means an update, upgrade or new release of the Oolio Software that is designed to correct bugs, errors or defects and is not a New Version.

New Version means a new version of the Oolio Software that is marketed or described by us as a new version.

Oolio Hardware means any hardware that we agree to supply to you under an Agreement, as set out in a Quotation.

Oolio Licence means the right granted under clause 12.1.

Oolio POS Solution means the point of sale solution described in the Quotation comprising the Oolio Software, Customer Software, Oolio Hardware and the Other Hardware, integrated together.

Oolio Software means any software that we describe in a Quotation as “Oolio Software”, our software or any Oolio software module that is included by us in a software subscription or a hardware and software subscription, including New Releases and New Versions, but excluding Open-Source Software and Third Party Software.

Open-Source Software means any software licensed under any form of open source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php)

Operating Manual means all operating manuals and specifications relating to the Oolio Hardware that we provide to you or notify you of.

Other Hardware means any hardware and equipment set out in the Quotation and/or Implementation Plan that is not Oolio Hardware.

Price means the price for the provision of the Implementation Work and/or the purchase of the Oolio Hardware, set out in the Quotation.

Project Coordinator means the person who you nominate as your project coordinator for the purposes of the implementation of the Oolio POS Solution at the Site(s).

Ready for Service means the date that we determine that the Oolio POS Solution is ready for use in a live environment.

Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth).

Site(s) means Your Premises identified in a Quotation for the installation of the Oolio POS Solution.

Software Defect means a material defect in any Oolio Software that cause the Oolio Software not to perform materially in accordance with the Specifications for the Oolio Software.

Support Request means a request for Support Services made under clause 17.1.

Support Services means the support of the Oolio Software as specified at clause 16.1.

Target Implementation Completion Date means the target date(s) for completion of all of the Implementation Work at the Site(s), as set out in the Implementation Plan.

Third Party Licences means the standard licence terms and conditions provided by the relevant owners, licensors or distributors of the Third Party Software.

Third-Party Software means any software comprised in the Oolio POS Solution that we notify you is owned by any third party.

Your Business means your sale of goods and/or services at the Sites.

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