1. Introduction

1. These terms and conditions are for the KokiPay POS system.
2. By purchasing a product and/or service from KokiPay you agree to be bound by the following T&Cs by which KokiPay will provide you with rights to use the System.
3. These T&Cs govern use of and access to the System by you or an End User as part of a Subscription Plan to the System, a free Account, a free trial of the System or free access to the Website.
4. KokiPay reserves the right to periodically update and change these T&Cs with notice. You can review the most current version of the T&Cs at kokipay.com/terms-and-conditions
5. Please read these T&Cs carefully as they will govern our relation with you. These T&Cs are based on a trade and commerce relationship and relate to commercial products, not consumer product. If you do not agree to these T&Cs, please do not use the System.

2. Definitions

The following terms have the following meanings:

• Account means all KokiPay accounts or accounts created by you, on your behalf or by an End User within the System.
• API means the application programming interfaces developed by KokiPay that permits Users or their party to access certain functionality provided by the System.
• Application means any of KokiPay POS application running on POS System or tablet and other smart device applications
• Brand means KokiPay related name, product and service names, logos and registered and unregistered trademarks (inc. but not limited to KokiPay, Intouch, TT-Pay)
• Confidential Information means all systems, knowledge, ideas, know-how, programming code, concepts, trade secrets, processes, client lists, techniques, hardware, software, products, intellectual property, financial and business information and all other commercially valuable information of the Disclosing Party. Confidential Information excludes information which is:
  • available to the public at the date of its disclosure to the Receiving Party;
  • at the date of its disclosure to the Receiving Party, already properly in the possession of the Receiving Party in written form otherwise than by prior confidential disclosure from the Disclosing Party;
  • after the date of its disclosure to the Receiving Party, available to the public from sources other than the Receiving Party;
  • required to be disclosed by law.
• Content means anything that is uploaded, posted or otherwise transmitted through the System.
• Data Protection Laws:means within the EEA the EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the General Data Protection Regulation 2016/679 (GDPR) from 25 May 2018 and laws implementing or supplementing the GDPR (in the United Kingdom by the Data Protection Act 2018), in Australia the Data Privacy Act 1988 and New Zealand the  Privacy Act 1993 and to the extent applicable, the data protection or privacy laws of any other country. ‘Personal Data’ shall have the meaning defined by the applicable Data Protection Laws;
• Hardware/Device: any single item of Hardware provided by KokiPay to the Customer, including but not limited, point of sales, printers, cash drawer, bar code scanner and other peripherals.
• Disclosing Party means a party to these T&Cs which discloses information to the other party.
• Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the System provided or made available by KOKIPAY to you and End Users.
• End User means an individual authorized to use the System through your Account as an administrator, staff member or service provider as identified through a unique login.
• Intellectual Property means all intellectual property rights (including, without limitation, all registered and unregistered designs, copyright, moral rights, trademarks and patents) in the Brand and any technology, software, programming code, source code, data, Applications, programs, inventions, documents, trade secrets, works, subject matter, lists, User details and information (including, but not limited to, User emails, telephone numbers and addresses) belonging to KOKIPAY.
• Receiving Party means a party to these T&Cs which receives information from the other party.

• Service means the Point of Sale system, tools and services offered by KokiPay POS application, on the shop.kokipay.com Website including the Software, the API and any Documentation as well as any modification, update or enhancement.

• Subscription Charges means any charges associated with your access to and use of the System.
• Subscription Plan means any plan offered by KOKIPAY that you have subscribed to in respect of the System.
• Subscription Term means the period during which you have agreed to subscribe to the System.

• System means KokiPay POS application and shop.kokipay.com Website, including any Software and any related manuals.

• T&Cs means these Terms and Conditions.
• Third Party or Third-Party means an entity other than you, KOKIPAY or any of its successors or assignees.

• Website means kokipay.com, and other websites through which KOKIPAY makes its services available to you.

• User means any person or any other party who accesses or uses the System.
• You or Your means the user of the System.
• Your Data means all electronic data, text, messages or other materials submitted to the System by you, End Users in connection with your use of the System.

3. Use Of System and Service

1. Subject to your compliance with these T&Cs and your Subscription Plan, KOKIPAY grants you a non-exclusive, non-transferable licence to use the System in accordance with these T&Cs and your Subscription Plan. Your Subscription Plan will set out what rights you have to access and use the System.
2. Access to and use of the System is restricted to the number of End Users permitted under your Subscription Plan. Each End User will be identified by a unique username and password (“Login”) and that Login may only be used by one (1) End User. You must not share a Login among multiple individuals or End Users. You and your End Users are responsible for maintaining the confidentiality of all Login information for your Account.
3. The Website or the System may contain links to other websites and contains Content added by Third Parties. KOKIPAY does not endorse, sponsor or approve any Third-Party Content available on any linked website. KOKIPAY is not liable for any Third-Party Content transmitted or posted on the System or otherwise transmitted to any User including your reliance on such Content.
4. A high-speed internet connection is suggested for proper use of the System. You are responsible for procuring and maintaining the network connections that enable you to use the System, including OS upgrade, application download, and sync to use application. KOKIPAY is not responsible for the reliability or performance of any internet connection or software which is not operated or controlled by KOKIPAY.

5. KOKIPAY retains complete editorial control over any Content on the System and may alter, amend or remove any Content on the System at any time.
6. The System may not operate on a continuous basis and may be periodically unavailable (including for maintenance purposes).
7. KOKIPAY may, in KOKIPAY’s reasonable discretion, temporarily suspend your access to and use of the System:
   1. during planned downtime for upgrades and maintenance to the System. KOKIPAY will endeavour to:
      1. schedule planned downtime for off-peak hours; and
      2. notify you in advance both through KokiPay application locking screen and emailing the email address connected to your Account;
   2. during any period where the System is impacted by circumstances beyond KOKIPAY’s reasonable control, including acts of god, government and terror or civil unrest, technical failures beyond KOKIPAY’s reasonable control, inability to access the internet, acts undertaken by Third Parties and distributed denial of service attacks; and
   3. if KOKIPAY suspects or detects any malicious software connected to your Account or your use of the System.
8. Service
   1. Standard service offered by KOKIPAY shall include standard initial setup of the system Standard Software setup plan includes backoffice and POS software setup, Facebook/Google online shop setup. Menu import and online shop setup.
   2. Remote quick response support (by phone or chat) will be free for first week if you purchase software setup service. After that, there will be free chat/email support.
   3. Additional Professional Services, further traiUnless stated otherwise in a quotation, written quotations are valid for 30 days from the date of their issue. However, some effer and discount are subject to shorter timeframe.
9. Hardware Price and Warranty
   1. One-month free return with unsatisfied reason. If customer are not satisfied with the device, we need solid reason and find solution by upgrading or change of solution. If still not satisfied with reasonable reason, KokiPay only accept the return of the sold item with original packaging with all of the accessories included.
   2. One-year free standard warranty on standard price. Standard warranty means KokiPay will repair or replace all defected device with quality issue and will cover the shipping cost back to you
   3. If you encounter a faulty item, then contact us for further instruction. Some of faults maybe be resolved via telephone or email advice. A Return Maintenance Authority (RMA) form will be supplied to be completed for all warranty claims.
   4. Extended warranty are options to buy. Generally, 28% and 72% of hardware cost are needed to extend to 3 years or 5 years warranty.

4.  Your Conduct

1. By accepting these T&Cs, you agree that you:
   1. have capacity to accept these T&Cs;
   2. will maintain the security and confidentiality of your Account, login details, password and identification;
   3. use the System in accordance with all laws of your jurisdiction, Australia and New South Wales;
   4. understand and accept all risks associated with the installation, use and maintenance of the System;
   5. are solely responsible for compliance with the provisions of these T&Cs by End Users and for any and all activities that occur under your Account;
   6. are solely responsible for all Your Data and for ensuring that your use of the System to store and transmit Your Data is compliant with all applicable laws and regulations; and
   7. will maintain and promptly update your Account information and ensure that information provided is accurate, current and complete.
2. You agree not to:
   1. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the System available to any Third Party other than authorised End Users for your internal business purposes;
   2. use the System to process data on behalf of any Third Party other than End Users;
   3. modify, adapt or hack the System or attempt to gain unauthorised access to the System or related systems or networks;
   4. falsely imply any sponsorship or association with KokiPay.;
   5. use the System to send unsolicited or unauthorised junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
   6. use the System to store or transmit any Content or data that infringes on any person’s intellectual property rights;
   7. use the System in any manner that interferes with or disrupts the integrity or performance of the System and its components;
   8. attempt to reverse engineer or otherwise discover the source code or programming code of any software making up the System;
   9. post, transmit, upload, link to, send or store any Content or data on or to the System that
      • contains any viruses, malware, trojan horses, time bombs or any other similar harmful software;
      • exploits another person in any manner;
      • includes unauthorised disclosure of personal information;

advertises services for any reason which is not aligned to the purposes for which the System is intended; and violates or infringes anyone’s intellectual property rights;

5. Confidentiality

1. The Receiving Party agrees to keep confidential the Disclosing Party’s Confidential Information and to only use and disclose such Confidential Information for the purposes authorised by the Disclosing Party.
2. KokiPay will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using ssl or similar technologies). KokiPay’s compliance with this clause will satisfy its obligations to protect your Confidential Information as set out in clause 5a.
3. KokiPay collects information about you as well as your devices, computers and use of the System. KokiPay uses, discloses and protects this information as described in its Privacy Policy which can be viewed at https://kokipay.com/privacy-policy The Privacy Policy is incorporated into these T&Cs.

4. You agree that:
   1. KokiPay may store information relating to your Account;
   2. KokiPay and the service providers KokiPay uses to assist in providing the System will have the right to access your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the System;
   3. Any Third-Party service providers KokiPay utilises will only be given access to your Account and Your data as is reasonably necessary to provide the System and will be subject to confidentiality obligations; and
   4. KokiPay may also access or disclose information about you, your Account, End Users and Your Data to
      1. comply with the law, police investigation or request from a government authority;
      2. protect KokiPay’s rights or the rights or property of its customers or partners; and protect personal safety or avoid violation of any applicable laws or regulations.

6. Intellectual Property

1. Nothing in these T&Cs, the bought of POS System, the Subscription Plan and Form constitutes a transfer of any Intellectual Property rights. All Intellectual Property rights belong exclusively to KOKIPAY.
2. You must obtain express written permission from KOKIPAY if you wish to reproduce any part of the System or KOKIPAY’s Intellectual Property.
3. By using the System, posting or adding any Content onto the System, you grant KOKIPAY a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the System, reproduce, change and communicate to the public any Content, recommendations or other feedback we receive from you.
4. You represent and warrant to KOKIPAY that you have all necessary rights to grant the licences set out in clause 6.3.
5. KOKIPAY grants you a non-exclusive and non-transferable licence to use KOKIPAY’s Brand solely to identify you as a subscriber of the System. You must not, or attempt to:
   1. claim any rights in the Brand;
   2. degrade the distinctiveness of the Brand; or
   3. disparage, misrepresent or bring into disrepute the Brand or KOKIPAY’s services or products.

7. Third-Party Services

1. KOKIPAY may use Third-Party suppliers to provide hardware, software, data integration services, networking, connectivity, storage and related technology required to provide the System. KOKIPAY is not liable for any claims, liabilities, losses, expenses or damages suffered by you or your End Users as a result of any act or omission of any Third-Party supplier outside of KOKIPAY’s control.
2. KOKIPAY may run advertisements and promotions from a Third Party on the System. Your interaction with Third-Parties found on or through the System, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, is solely between you and the Third Party.
3. If you enable, access or use any Third-Party applications, devices, gateways or services (“Third-Party Services”) in connection with your use of the System, KOKIPAY:
   1. does not endorse the Third Party or the Third-Party Services;
   2. makes no representations as to such other Third-Party Services including:
      1. the quality of the Third-Party Services;
      2. the suitability and benefit of the Third-Party Services to your business requirements;
      3. the manner in which the Third-Party handles your data; and
   3. any interaction between the Third-Party Services and the System.
4. KOKIPAY is not liable for any claims, liabilities, losses, expenses or damages suffered by you or your End Users arising from or in connection with:
   1. your enablement, access or use of any Third-Party Services whether in connection with the System or not;
   2. any act, omission, default, defect, delay or failure of the Third Party or Third-Party Services;
   3. any default, defect, delay or failure of the System caused by or contributed to by your enablement, access or use of any Third-Party Services;
   4. any interaction between the Third-Party Services and the System; or your reliance on the privacy practices, data security processes or other policies of such other Third-Party Services.

8. Payment

1. Hardware Cost and Software Service Fees
   1. Unless stated otherwise in a quotation, written quotations are valid for 30 days from the date of their issue. However, some effer and discount are subject to shorter timeframe.
   2. All fees and prices here are exclusive of VAT, GST (or such other applicable sales tax). GST/VAT will be added to the invoice in addition to the fees.
   3. App prices list on KokiPay websites are subject to change without notice in advance.
   4. Features of software plan are valid from the day your subscribed to end of your payment term. But generally, we will enhance features of continuously.
   5. Standard hardware price and service cost will not cover any travel, subsistence and living expense reasonably incurred for the performance of the service or delivery of hardware.
2. Subject to section 8.3 and any Form or Subscription Plan referencing these T&Cs stating otherwise, all Subscription Charges are due in full upon commencement of your Subscription Term. If you:
   1. fail to pay your Subscription Charges or any charges for other services indicated on any Form or Subscription Plan referencing these T&Cs within seven (10) business days of the charges becoming due and payable; or
   2. do not update your payment information in your Account as necessary in order to allow the Subscription Charges to be deducted from any debit card or credit card,

in addition to any other remedies KokiPay may have, KokiPay may suspend or cancel your access to and use of the System.

3. If you upgrade your Subscription Plan during your Subscription Term (a “Subscription Upgrade”), any additional Subscription Charges associated with such Subscription Upgrade will be:
   1. prorated over the remaining period of your Subscription Term;
   2. charged to your Account;
   3. due and payable upon implementation of such Subscription Upgrade; and
   4. added to any future Subscription Term to reflect the Subscription Upgrade.
4. No refunds or credits for Subscription Charges or other fees or payments will be provided to you if you downgrade your Subscription Plan. Downgrading your Subscription Plan may cause loss of Content, features or capacity of the System and KokiPay does not accept any liability for such loss.
5. Unless otherwise stated, all charges are exclusive of any taxes (other than GST in Australia), levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You must pay any Taxes payable in respect of the provision of the System except those assessable against KokiPay.
6. If you nominate to pay your Subscription Charges and any additional charges by debit or credit card, you hereby authorize KokiPay to deduct the Subscription Charges and any additional charges from your debit or credit card in advance on a periodic basis in accordance with the terms of your Subscription Plan and any Form. KokiPay uses a Third-Party intermediary to manage debit and credit card processing and this intermediary is not permitted to store, retain or use your billing information except to process your debit or credit card information for KokiPay.
7. Subscription Plans are subject to change by KokiPay giving 14 days’ notice. KokiPay will not be liable to you, End Users, any other Users or any Third Party for any modification to the Subscription Plans.

9. Cancellation and Termination

1. These T&Cs will continue in force until such time that you withdraw your consent to these T&Cs and Privacy Policy.  Where you withdraw your consent, KOKIPAY may terminate your access to the System and your Account.
2. These T&Cs will continue in force until such time that they are varied or replaced, but KOKIPAY may suspend or terminate these T&Cs or your access to the System at any time and without prior notice. KOKIPAY reserves the right to change or discontinue any service or feature on the System in whole or in part at any time.
3. Either you or KOKIPAY may elect to cancel your Account and Subscription Plan at the end of your Subscription Term through the Website. KOKIPAY will not accept a request to cancel your Account and Subscription Plan via email or telephone.
4. Unless your Account and Subscription Plan is cancelled prior to the end of your Subscription Term, your Subscription Plan will renew for a further Subscription Term as follows:
   1. the length of the further Subscription Term will be equal to the preceding Subscription Term;
   2. unless otherwise provided, KOKIPAY’s standard Subscription Charges at the time the further Subscription Term commences will be payable in respect of the further Subscription Term.
5. If you cancel your Subscription Plan or Account prior to the end of your Subscription Term or KOKIPAY terminates your Subscription Plan or Account prior to the end of your Subscription Term due to your breach of these T&Cs or the terms of your Subscription Plan:
   1. your Subscription Charges and any additional charges are non-refundable and you will not be provided with a credit;
   2. you must immediately pay any unpaid Subscription Charges associated with the remainder of your Subscription Term unless:
      1. you cancel your Subscription Plan or Account as a result of KOKIPAY’s material breach of these T&Cs;
      2. you provided KOKIPAY with advance notice of such breach; and
      3. KOKIPAY failed to remedy the breach within 30 days of notice;
6.  KOKIPAY reserves the right to delete all of your data from your Account. Your data cannot be recovered once your Account is cancelled.
7.  KOKIPAY reserves the right to modify, suspend or cancel the System (or any part of the System), your Account, your and/or the End Users’ rights to access and use the System. KOKIPAY will email the email address connected to your Account to notify you before taking any of the foregoing actions. KOKIPAY will not be liable to you, End Users or any other Third Party for any such modification, suspension or discontinuation of rights to access and use the System.

10. Disclaimer of Warranties

1. You acknowledge that, to the fullest extent permitted by law, KokiPay does not provide any representations or warranties that may be implied at law.
2. The System including all server and network components are provided on an “as is” and “as available” basis. To the fullest extent permitted by law KokiPay does not provide any representation or warranty that:
   1. the System will meet your specific requirements;
   2. your access to the System will be uninterrupted, timely, secure or error-free;
   3. any errors or defects in the System will be corrected;
   4. that the System or the server which stores and transmits the System to you are free from viruses or any other harmful components;
   5. the results that may be obtained from the use of the System will be accurate, up to date, complete, useful or reliable; and
   6. the quality of any products, services, information, or other material purchased or obtained by you through the System will meet your expectations.

11. Limitation of Liability

1. To the greatest extent permitted by law, under no circumstances will either party to these T&Cs, or their affiliates, officers, directors, employees, End Users, suppliers or licensors be liable to the other party or any Third Party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party or Third Party in connection with these T&Cs or the System.
2. You agree that KOKIPAY’s liability, if any, arising out of any kind of legal claim or action in any way connected to the System will be limited to:
   1. the total Subscription Charges you paid during the preceding twelve (12) months; or
   2. if you are a deemed a ‘consumer’ under the Australian Consumer Law, delivering the Services again or the cost of having the Services being delivered to you by a Third Party of KOKIPAY’s choosing.
3. You agree that the Subscription Charges would have been substantially higher if KOKIPAY were to assume any further liability other than as set out in this clause. KOKIPAY has relied on these limitations in determining whether to provide you the rights to access and use the System.

12. Indemnities

1. You agree to indemnify, and continually indemnify, KOKIPAY in relation to all claims, actions, liabilities, costs, losses and expenses (including legal costs on a full indemnity basis) that KOKIPAY incurs as a result of your use of the System, your use of a Third-Party Device and/or from your failure to comply with these T&Cs and any Form and Subscription Plan.

13. General

1. These T&Cs will override any other terms provided by KOKIPAY in relation to the use of the System if they are inconsistent with these T&Cs.
2. If any provision in these T&Cs is invalid or unenforceable, the provision will be read down or severed as necessary without affecting the validity or enforceability of the remaining provisions of these T&Cs.
3. You may not assign your rights or delegate performance of your obligations under these T&Cs without KOKIPAY’s prior consent which will not be unreasonably withheld. KOKIPAY may, without your consent, assign its agreement with you to any member of the KOKIPAY Group or in connection with any merger or change of control of KOKIPAY or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to these T&Cs.
4. These T&Cs, together with any Form(s) and Subscription Plan, constitute the entire agreement, and supersede any and all prior agreements between you and KOKIPAY in relation to your use and access to the System.
5. KOKIPAY may periodically amend these T&Cs by providing notice with the varied terms to take immediate effect upon such notice. Your continued use of the System after any variation of these T&Cs will be deemed to constitute your acceptance of the varied terms.  If you do not accept the varied Terms, please discontinue your use of the System and/or terminate your Account.
6. KOKIPAY’s failure to enforce any provision of these T&Cs does not constitute a waiver of that provision and it will not affect KOKIPAY’s right to subsequently enforce that provision.
7. These T&Cs and any contract which they apply to are governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
8. Clauses 5 to 12 shall survive any termination of your agreement with KOKIPAY. Termination of such agreement shall not limit your or KOKIPAY’s liability for obligations accrued as of or prior to such termination or for any breach of these T&Cs.
9. KOKIPAY may provide any notice required under these T&Cs by publishing the notice on the Website or emailing any notice to the email address connected to your Account. You must give notice to KOKIPAY by emailing: hello@kokipay.com

10. If you are marketing and promoting the System, the KOKIPAY Advisor Terms may apply.