1. This is a legally binding agreement
    1. The terms and conditions set out in this document form a legally binding agreement between you and AirService in relation to your access to and use of AirService’s services, apps, products, software and websites (excluding any services provided to you by AirService under a separate written agreement). “AirService”, “we” or “us” means AirService Digital Australia Pty Ltd ABN 79 163 461 792, whose principal place of business is at Suite 26, 450 Elizabeth Street, Surry Hills NSW 2010, Australia. This legal agreement is referred to below as the “Terms” or the “agreement”.
    2. The Terms apply to your use of the following services, apps, products, software and websites (referred to collectively as the “Services” in this document):
      1. the AirService wireless commerce platform supplied by AirService to bars, restaurants, hotels and other venues and organisations. This is referred to as the “AirService Platform” below, and the venues and organisations that use it are referred to as “Clients”;
      2. the AirService Terminal applications (downloaded from the Apple App Store, Android Market, and other app stores), which allow Clients to access and operate the AirService Platform;
      3. the AirService applications for mobile devices (downloaded from the Apple App Store, Android Market, and other app stores), which allow customers to interact with, and place orders through, the AirService Platform;
      4. the applications for mobile devices produced by AirService but available under other names (downloaded from the Apple App Store, Android Market, and other app stores), which allow customers to interact with, and place orders through, the AirService Platform;
      5. any part of the AirService Platform accessible as part of an application or website not wholly produced by AirService;
      6. the AirService website (www.airservice.com) (referred to below as the “Website”); and
      7. any support, maintenance, marketing and promotion, customer service, administration or associated services offered by AirService to Clients or customers from time to time, whether via the Website or otherwise.
    3. It is important that you take the time to read this document carefully. Before you continue, you should print off or save a local copy of the Terms for your records.
  2. Accepting the Terms
    1. In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
    2. You can accept the Terms by:
      1. clicking to accept or agree to the Terms, where this option is made available to you by AirService in the user interface for any Services (for example, when a Client first registers for the AirService Platform); or
      2. by actually accessing or using the Services. In this case, you understand and agree that AirService will treat your access to or use of the Services as acceptance of the Terms from that point onwards.
    3. You may not use the Services and may not accept the Terms if you are not of legal age to form a binding contract with AirService.
  3. Provision of the Services by AirService
    1. While AirService will use all reasonable endeavours to ensure that the Services are accessible at all times, AirService cannot guarantee that this will be the case. AirService will use all reasonable endeavours to post a notice on the Website prior to performing any maintenance that will result in the Services being unavailable. AirService is not responsible for any problems associated with the use of the public internet.
    2. The Services are designed for use only with certain devices or internet browsers, and require certain functionality (such as javascript and cookies) to be enabled in order to properly function. Details of these requirements are specified on the Website. These requirements may change over time to reflect evolving technologies. AirService will provide you with reasonable notice of any such changes.
    3. While AirService endeavours to ensure that the Services are free from viruses and other harmful code, you are responsible for taking appropriate steps (including the use of up-to-date anti-virus and anti-spyware software) to protect your computer systems from viruses and other harmful code.
    4. You acknowledge and agree that AirService is only responsible for the provision of the Services as contemplated under these Terms. AirService is not responsible for the fulfillment of any orders or transactions between Clients and customers which are conducted via the AirService Platform, the AirService Terminal applications or any other AirService applications, apps, products, software or websites. For customers, please refer to our Refund Policy if you have experienced a problem with an order you have placed via the AirService Platform.
  4. Your use of the Services
    1. Access to and use of the Services is limited to the territory specified on the Website (the “Territory”). You may only access and use the Services within the Territory.
    2. Unless you and AirService have specifically agreed otherwise in writing, you are responsible for providing at your own cost all computer and telecommunications facilities that you require in order to access and use the Services, and for configuring those facilities (for example, by having appropriate security and firewall settings) so that you can access and use the Services.
    3. In order to access certain Services, you may be required to provide information about yourself (such as identification and/or contact details) as part of the registration process for the Services, or as part of your continued use of the Services. You agree that any registration information you give to AirService will always be accurate, complete and up to date.
    4. You agree to use the Services only for purposes that are permitted by:
      1. the Terms; and
      2. any applicable laws, regulations or generally accepted practices or guidelines.
    5. As a Client, you have certain additional obligations in relation to your use of the Services:
      1. You must ensure at all times that your menus and other venue information accessible to customers via the AirService mobile applications are accurate, complete and up-to-date.
      2. You must monitor the AirService Terminal applications, or any other means of receiving orders from the AirService Platform, regularly so that you can review and respond to customers’ orders.
      3. You must use all reasonable endeavours to deliver food, drinks and other items ordered by customers via the AirService Platform promptly and correctly.
      4. You must respond promptly and courteously to any concerns or complaints raised by customers in relation to food, drinks or other items ordered via the AirService Platform. If complaints are escalated to AirService, we will deal with them in accordance with our Refund Policy at http://www.airservice.com/refund-policy. You agree to reimburse us in full, on demand, for any amounts that we pay to customers under the Refund Policy, together with any other costs or expenses we incur in dealing with customers’ complaints.
      5. You must ensure that your use of the Services, including use for any marketing, promotions or competitions, is in accordance with these Terms, the Privacy Policy, the Refund Policy and any applicable laws, regulations, governmental authority regulations, orders, guidelines, policies or directives governing such marketing, promotions or competitions.
      6. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by AirService, unless you have been specifically allowed to do so in a separate written agreement with AirService.
      7. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
      8. Unless you have been specifically permitted to do so in a separate written agreement with AirService, you agree that you will not reproduce, duplicate, distribute, sell, trade or resell the Services for any purpose.
      9. You agree that you are solely responsible for (and that AirService has no responsibility to you or to any third party for):
        1. any breach of your obligations under the Terms; and
        2. the consequences (including any loss or damage which AirService may suffer) of any such breach.
      10. You must ensure that if any of your employees or contractors are accessing or using the Services on your behalf (“Users”), they comply with all of your obligations under the Terms as if a reference to “you” included your Users. You agree that you will be liable to AirService for the acts and omissions of your Users as fully as if they were your acts and omissions.
  5. Payment for the Services
    1. This clause 5 applies where you are required to pay AirService directly for your access to any part of the Services (“Paid Services”). This includes Clients and customers who place orders with venues using the AirService Platform. Even if you are not using any Paid Services, you may still incur charges incidental to your access to or use of the Services, for example charges for internet access or cellular network data transmissions.
    2. You authorise AirService to charge you for the Paid Services in the amounts, at the times and in the manner specified on the Website (as updated from time to time), on any part of the AirService Platform which allow customers to interact with, and place orders through, the AirService Platform, or otherwise as specified between you and AirService, or between you and a company for whom AirService is providing an application(s) available under other names (downloaded from the Apple App Store, Android Market, and other app stores), which allow customers to interact with, and place orders through, the AirService Platform. Where we collect amounts from customers of your venue for purchases of food, drinks and other items using the AirService Platform, you authorise us to deduct the applicable fees for the Paid Services, together with any other amounts which are payable by you to us under these Terms, from those amounts before we remit the balance to you.
    3. As a customer of a venue using the AirService Platform, you authorise us to charge you the applicable amounts for the food, drinks or other items you have ordered, at the prices specified in the venue’s menu, together with any additional fees including transaction fees listed when you place your order.
    4. The price stated for the Paid Services excludes GST, but includes all other taxes, unless stated otherwise.
    5. You must be authorised to use the credit card, PayPal account, bank account or other account that you enter when you create a billing account with AirService. You must keep all information in your billing account current at all times. You can access and modify your billing account from the Website (in the case of a Client) or via the AirService application (in the case of customers). You may change your details at any time, but please give us as much advance notice as possible so we can ensure transactions are not directed to the wrong account.
    6. Unless AirService notifies you otherwise, if you are participating in any free trial period or similar offer in respect of the Paid Services, you must cancel your access to the Paid Services before the end of the trial period to avoid incurring new charges. If you do not cancel your access to the Paid Services before the end of the trial period, you authorise us to charge you for the Paid Services from the end of the trial period.
    7. AirService will notify Clients in advance if we change the price of any of the Paid Services charged to Clients. This does not apply to changes in the prices of menu items at venues using the AirService Platform, or to charges to customers:
      1. If you have agreed to take any Paid Services for a specific period of time and at a specific price (referred to as a “Fixed Price Period” below), then the price will not change during the Fixed Price Period. After the Fixed Price Period ends, your access to the Paid Services will be charged at the new price unless you and AirService agree otherwise.
      2. If your Paid Services are offered on a periodic basis (for example, monthly), then AirService will give you at least 30 days’ notice before any price change.
    8. If you do not agree to any price change, you must cancel your access to, and stop using, the Paid Services before the date on which the price change is stated to come into effect, or before the end of the current Fixed Price Period if applicable. If you cancel, then your access to the Paid Services will end at the end of the current Fixed Price Period or, if AirService bills your account on a periodic basis, at the end of the period in which you cancelled.
    9. Except as specifically provided in the Terms, or where required by law, all charges for the Paid Services are earned when received and non-refundable.
    10. AirService will provide you with an online tax invoice and billing statement via your online billing account. You can view, print or request a paper copy of the tax invoice and billing statement, but if you request a paper copy, AirService may charge you an administration fee.
    11. If AirService makes an error on your bill, we will correct it promptly after you tell us and we investigate. You must tell AirService within 90 days after an error first appears on your bill. If you don’t tell us within that time, AirService won’t be required to correct the error, and you release AirService from all liability and claims of loss or damage resulting from the error. We may correct billing errors on our own initiative at any time.
    12. You may cancel your access to Paid Services at any time, with or without cause (including where you terminate this agreement under clause 14(2)(1) of the Terms). Information on how to cancel the Paid Services is available on the Website. If you are in a Fixed Price Period, you may be required to pay some or all of the charges due for the remainder of that Fixed Price Period. In some cases, you may also be required to pay cancellation or administration charges.
    13. AirService may impose a late charge if you do not make any payment on time. You must pay these late charges when we bill you for them. The late charges will be calculated daily based on an annual interest rate of 4% above the average 90 day bank bill swap rate as published in the Australian Financial Review in the week prior to the date on which the payment was due.
    14. AirService may suspend or cancel your access to the Paid Services (in whole or in part), without notice to you, if you fail to pay in full on time and you don’t remedy your failure within 7 days after receiving notice from AirService of your overdue payment.
    15. AirService may use a third party to collect overdue payments. You must pay all reasonable costs we incur to collect any overdue payments from you, including reasonable legal fees.
  6. Your passwords and account security
    1. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
    2. Accordingly, you agree that you will be solely responsible to AirService for all activities that occur under your account.
    3. If you become aware of any unauthorised use of your password or of your account, you agree to notify AirService immediately by sending an email to admin@airservice.com.
  7. Personal information and data
    1. For information about AirService’s data protection practices, please read the Privacy Policy at http://www.airservice.com/privacy/. The Policy explains how AirService treats your personal information, and protects your privacy, when you access or use the Services.
    2. You agree to the use of your personal information and data in accordance with AirService’s Privacy Policy.
    3. Clients agree not to use any personal information of customers, which is collected via the AirService™ Platform, for any purpose that is not expressly permitted by the Privacy Policy or otherwise permitted under the Privacy Act 1988 (Cth) as amended from time to time (“Privacy Act”). If you, as a Client, use any personal information of a customer, your use must be in accordance with our Privacy Policy and otherwise in accordance with the Australian Privacy Principles set out in the Privacy Act. If you misuse any customer information, we reserve the right to immediately suspend or cancel your access to and use of the Services, without notice to you.
    4. You agree that you are solely responsible for (and that AirService has no responsibility to you or any third party for):
      1. all data that you submit or store, or that is generated, in the course of your use of the Services (referred to as “Your Data” below); and
      2. backing up Your Data, and the consequences (including any loss or damage you may suffer) of you failing to do so.
    5. If your access to the Services is suspended or cancelled (including where this agreement is terminated under clause 14(3) of the Terms), AirService may permanently delete Your Data from our servers. AirService has no obligation to return Your Data to you after your access to the Services is suspended or cancelled. Any of Your Data that is deleted may be irretrievable.
  8. Content in the Services
    1. You understand that all content (such as data files, written text, computer software, audio files or other sounds, and videos, photographs or other images) which you may have access to as part of, or through your use of, the Services is the sole responsibility of the person from which such content originated. This is referred to below as “Content”.
    2. You should be aware that Content presented to you as part of the Services may be protected by intellectual property rights that are owned by other users of the Services (including Clients), or by sponsors or advertisers who provide the Content to AirService for inclusion in the Services. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you are specifically authorised under a separate written agreement with AirService or the owner of the Content.
    3. You understand that by using the Services, you may be exposed to Content that you may find offensive, indecent or objectionable, and that, in this respect, you use the Services at your own risk. AirService reserves the right (but has no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Services.
    4. You agree that you are solely responsible for (and that AirService has no responsibility to you or any third party for):
      1. any Content that you create, transmit or display while using the Services; and
      2. the consequences (including any loss or damage that AirService may suffer) of you doing so.
  9. Proprietary rights
    1. You acknowledge and agree that AirService (or AirService’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights that subsist in the Services (whether those rights are registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information that is designated confidential by AirService, and you agree not to use or disclose such information without AirService’s prior written consent.
    2. Except as provided below, or if you have a separate written agreement with AirService, nothing in the Terms gives you a right to use any of AirService’s trade names, trade marks, service marks, logos, domain names or other distinctive brand features.
    3. Clients have a limited right to display the AirService name and logo on their website and menus, at the venue and in advertising and promotional materials. You agree that your use of these brand features will comply at all times with the Terms and any brand feature use guidelines notified to you by AirService from time to time.
    4. Other than the limited licence granted under clause 11, AirService acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services (referred to as “Your Content” below), including any intellectual property rights that subsist in Your Content (whether those rights are registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with AirService, you agree that you are responsible for protecting and enforcing those rights and that AirService has no obligation to do so on your behalf.
    5. You agree not to remove, obscure or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services.
  10. Licence of software
    1. AirService gives you a personal, royalty-free, non-assignable and non-exclusive licence to use the software provided to you by AirService as part of the Services (referred to as the “Software” below) solely as provided to you by AirService and solely in the Territory. This licence is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by AirService, in the manner permitted by the Terms.
    2. You may not (and may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically authorised to do so in writing by AirService.
    3. Unless AirService has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
    4. Your use of any applications that you download from any app store or similar for the purposes of accessing, or as part of your use of, the Services is also governed by the terms of the Licensed Application End User Licence Agreement, which forms part of the appropriate App Store Terms and Conditions. If there is any inconsistency between the Terms and the Licensed Application End User Licence Agreement, the Terms will prevail to the extent of that inconsistency.
  11. Content licence from you
    1. You retain copyright and any other rights you already hold in Your Content. By submitting, posting or displaying Your Content, you give AirService a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute Your Content. This licence is for the sole purpose of enabling AirService to display, distribute, operate and promote the Services.
    2. You understand that AirService, in performing the required technical steps to provide the Services to Clients, customers and other users, may:
      1. transmit or distribute Your Content over various public networks and in various media; and
      2. make such changes to Your Content as are necessary to conform and adapt Your Content to the technical requirements of connecting networks, devices, services or media.
    3. You agree that the licence granted under paragraph 11(1) permits AirService to take these actions.
    4. You confirm and warrant to AirService that you have all the rights, power and authority necessary to grant the licence of Your Content under this clause 11, and that the use of Your Content by AirService in accordance with the Terms will not infringe the rights (including intellectual property rights) of any other person or organisation.
  12. Software updates
    1. The Software may automatically download and install updates from time to time from AirService, or you may be prompted to download and install such updates. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive or download (as applicable) such updates, and permit AirService to deliver them to you, as part of your use of the Services.
  13. External links
    1. The Services may include hyperlinks to websites, content, advertising or other materials that are provided by persons or organisations other than AirService (“External Links”). AirService may have no control over any External Links.
    2. You acknowledge and agree that AirService is not responsible for the availability of, and does not endorse the content of, any such External Links.
    3. You acknowledge and agree that AirService is not liable for any loss or damage that you may suffer as a result of the availability of, or your access to, any External Links, including as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such External Links.
  14. Ending your relationship with AirService
    1. The Terms will continue to apply until terminated by either you or AirService as set out below.
    2. If you want to terminate your legal agreement with AirService:
      1. if you are a Client, you may do so by notifying AirService at any time by email to contact@airservice.com. Note that if you are using any Paid Services, you may still be required to make further payments following any termination of your legal agreement with AirService: see clause 5 of the Terms; or
      2. if you are only a customer (and not a Client), you may do so by deleting the AirService application from your mobile device.
    3. AirService may terminate the agreement (and cancel your access to the Services) with immediate effect by notice to you if you:
      1. breach any of your obligations under the Terms and fail to remedy that breach within 7 days of receiving notice of the breach; or
      2. become insolvent, have any winding up petition presented against you, are placed under official management, administration, liquidation or provisional liquidation, a receiver, receiver and manager or other controller is appointed over any part of your property or undertaking, are unable to pay your debts as they fall due, or cease to carry on business or threaten to do so.
    4. Where AirService has a right to terminate under this paragraph 14(3), we may instead choose to suspend your access to the Services (in whole or in part).
    5. Following the termination of this agreement for any reason:
      1. if you are a Client, you must immediately remove all references to AirService from your signage, menus, website, advertising or other promotional materials;
      2. you will remain liable to AirService for all amounts due in respect of your access to and use of the Services up to the date of expiry or termination and, if AirService has terminated the agreement under paragraph 14(3), any amounts due for the remainder of any then-current Fixed Price Period;
      3. any legal rights, remedies or liabilities that have accrued prior to the date of expiry or termination are unaffected; and
      4. clauses 4(9), 4(10), 5, 7(5), 8, 9, 11, 13(3), 14(5), 15, 16, 17 and 19 of the Terms, together with any other provisions that are intended by their nature to survive termination, will continue in force in accordance with their terms.
  15. Exclusion of warranties
    1. You may have rights under statutory consumer protection laws, including the Competition and Consumer Act 2010 (Cth), which cannot be excluded, restricted, limited or modified. The following exclusions of warranties, and the limitation of liability in clause 16 below, apply subject to any rights you may have under such laws.
    2. You expressly understand and agree that your access to and use of the Services is at your sole risk and that the Services are provided “as is” and “as available”. In particular, AirService does not represent or warrant to you that:
      1. your access to and use of the Services will meet your requirements (and you expressly acknowledge that you have relied upon your own experience, skill and judgement to evaluate the Services and that you are satisfied as to the suitability of the Services to meet your requirements); or
      2. your access to and use of the Services will be uninterrupted, timely, secure or free from error.
    3. Without limiting the foregoing, and to the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in the Terms (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.
    4. If any condition, warranty, guarantee or other provision is implied or imposed in relation to the legal agreement between you and AirService (whether based in legislation, the common law or otherwise) and cannot be excluded (a “Non-Excludable Term”), and AirService is able to limit your remedy for a breach of such a Non-Excludable Term, then AirService’s liability for such a breach of the Non-Excludable Term is limited to one or more of the following at AirService’s option:
      1. in relation to goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
      2. in relation to services, the supplying of the services again or the payment of the cost of having the services supplied again.
  16. Limitation of liability
    1. You acknowledge and agree that AirService is only responsible for the delivery of the Services as contemplated under these Terms and the Client is solely responsible for:
      1. the fulfillment of any orders or transactions with customers which are facilitated by the Services as contemplated under these Terms; and
      2. ensuring that the Client’s use of the Services complies with these Terms, the Privacy Policy, the Refund Policy and any applicable laws, regulations, governmental authority regulations, orders, guidelines, policies or directives governing such marketing, promotions or competitions.
    2. Subject to AirService’s obligations under the Non-Excludable Terms, and to the maximum extent permitted by law, the maximum aggregate liability of AirService for all claims arising under or in relation to this agreement, or otherwise as a result of your access to and use of the Services, during any 12 month period is limited to the greater of $100 or the amounts (if any) paid by you to AirService for your access to the Services during the relevant 12 month period.
    3. Subject to AirService’s obligations under the Non-Excludable Terms, and to the maximum extent permitted by law, in no event is AirService liable under or in relation to this agreement or its subject matter for any indirect, special or consequential loss or damage or for any loss of goodwill, opportunities, anticipated savings or profits.
    4. The limitations and exclusions in paragraphs 16(2) and 16(3) apply regardless of whether the liability arises in contract, tort (including negligence), in equity, under statute, under an indemnity, or on any other basis.
  17. Indemnification
    1. You agree to indemnify, defend and hold harmless AirService, and its directors, officers, employees, agents and contractors, from and against any loss, damage, liability, cost or expense (including reasonable legal fees) suffered or incurred in connection with a claim brought against any of them, to the extent that such third party claim arises out of your breach of any obligation or warranty in the Terms.
  18. Changes to the Terms
    1. AirService may make changes to the Terms from time to time. Before these changes come into effect, AirService will make a new copy of the Terms available on the Website. You understand and agree that if you access or use the Services after the date on which the Terms have changed, AirService will treat this as acceptance of the updated Terms. The Terms were last updated on 20 July 2016.
  19. General
    1. AirService is not liable for any failure to perform its obligations under the Terms where that performance is delayed, prevented, restricted or interfered with for any reason outside AirService’s control.
    2. This agreement is governed by the laws of New South Wales, Australia, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
    3. This agreement may be superseded by a signed agreement or contract between AirService and a Client or other party.
    4. With the exception of paragraph 19(3), this agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.
    5. The words “including”, “such as”, “in particular” and “for example”, when used in this agreement, are not words of limitation.
    6. Except as expressly provided in this agreement, nothing in this agreement is intended to constitute a fiduciary relationship or an agency, partnership or trust, and no party has authority to bind any other party.
    7. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms.
    8. Any provision of this agreement that is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected.