Terms of Service (AU)

1. INTRODUCTION

Welcome to Mr Yum, the interactive mobile menu that provides customers with a way to order food, beverage and merchandise products from restaurants and venues (“Platform”).

The Platform is owned by Mr Yum Holdings Pty Ltd (ACN 631 687 673) and Mr Yum Trading Pty Ltd (ACN 631 694 132) and its Affiliates (together “Mr Yum”, "we”, "our”, or "us”) and these terms and conditions explain our obligations as a service provider and your obligations as a venue (“you”, “your”, “Venue”).

You accept that your use or access of our Platform and/or your submission of our Onboarding Form confirms your acceptance of these Terms of Service, Terms of Use and Privacy Policy.

We may change these Terms of Service at any time by notice to you in the manner set out in these Terms of Service, and your continued use of our Services or the Platform following such notice will represent an agreement by you to be bound by the Terms of Service as amended.

By using the Services or accessing the Platform, you acknowledge that you have read and understood and agree to be bound by these Terms of Service and that these Terms of Service together with the Fee Acceptance Form will form a standing agreement between you and Mr Yum (“Agreement”). In entering into this Agreement, you acknowledge that you have the authority to act on behalf of any person or entity for whom you are using the Services or accessing the Platform, and you agree to this Agreement both personally and on behalf of that person or entity.

Please read these Terms of Service carefully and if you do not agree to them, you must not continue to use the Services or the Platform.

2. DEFINITIONS

2.1 Dictionary

Capitalised words and phrases used in this Agreement have the meanings given to them where they are followed by bolded brackets, or otherwise have the meanings given to them:

(a) in clause 24.2 (Dictionary);

(b) in the Corporations Act, where they are not listed in clause 24.2 (Dictionary); and

(c) in the GST Act, where they are not listed in clause 24.2 (Dictionary).

2.2 Interpretation

The interpretation clause in clause 24.2 (Dictionary) sets out the rules of interpretation for this Agreement.

3. LICENCE

(a) Mr Yum grants to the Venue a non-exclusive, non-transferable, non-sublicensable licence to use and access the Platform during the Term on the terms set out in this Agreement (“Licence”).

(b) In exchange for Mr Yum granting the Licence to the Venue, the Venue agrees to pay the Fees on the terms set out in this Agreement.

(c) If this Agreement is terminated for any reason, then the Licence together with Mr Yum’s provision of the Services, will terminate.

4. TERM

(a) The term of the Agreement will commence on the Commencement Date and continue in perpetuity until terminated in accordance with this Agreement.

(b) This Agreement may be terminated by either party for convenience in accordance with clause 17(a), provided that the terms of this Agreement will continue to apply to the parties up to the date of termination.

5. SET-UP SERVICES

(a) If requested by the Venue, Mr Yum will provide the Set-Up Services to the Venue in a timely manner.

(b) The Venue will give Mr Yum reasonable assistance to allow Mr Yum to provide the Set-Up Services, including by providing Mr Yum with access to the Venue’s premises, POS system for menu data, as well as copies of the Venue’s menu together with such other information and assistance as Mr Yum may reasonably require from time to time.

(c) In the event that the Venue does not approve of the Set-Up Material published, it will notify Mr Yum within two (2) days. Mr Yum will use its commercially reasonable endeavours to address and rectify the Venue’s concerns in respect of any Set-Up Material.

(d) The Venue grants to Mr Yum a royalty-free, worldwide, non-transferrable licence to use and publish any of the Venue’s Intellectual Property Rights in the Set-Up Material, including trademarks and copyright in the menus or in any Set-Up Material provided by the Venue.

6. VENUE OBLIGATIONS

6.1 Provide Information

You must provide Mr Yum with all documentation, information and assistance reasonably required by us to perform the Services, including payment information such as price lists, billing details and other account information (Financial Information), to allow the processing of payments for products that the Venue provides to its customers through the use of the Platform.

6.2 Compliance with Laws

You agree that by receiving or requesting the Services, you:

(a) will not breach any applicable Laws (including any applicable privacy laws);

(b) have a current and valid:

(i) ABN/business registration;

(ii) Appropriate insurance policies; and

(iii) if you sell alcoholic beverages, liquor licence, when applicable base on state legislation; and

(c) will not infringe the Intellectual Property Rights or other rights of any third party, or breach any duty of confidentiality.

6.3 Use of Platform

You must not:

(a) use the Platform in any way that could damage the reputation of Mr Yum, or the goodwill or other rights associated with the Platform;

(b) charge any third party to use the Platform.

(c) provide Customers with any information about Mr Yum or the Payment Platforms that is false, misleading or inaccurate. Without limiting this clause 5.3(c), you must not make any warranty, representation or statement to any Customer relating to Mr Yum, the Platform or any Payment Platform, other than those:

(i) contained in materials provided to you by Mr Yum;

(ii) set out on a Related Website; or

(iii) as otherwise expressly permitted by Mr Yum in writing

and if Mr Yum is concerned that any content or materials displayed on your Platform, your website or in-store does not comply with this clause, we may request that you modify or delete the relevant content or materials, or remove them from display.

(d) except as expressly permitted by this Agreement:

(i) reproduce, make error corrections to or modify or adapt the Platform or create any derivative works based upon the Platform;

(ii) except as permitted by Laws, de-compile, disassemble or otherwise reverse engineer the Platform or directly or indirectly allow, cause or permit any third party to do so; or

(iii) modify, remove or whitewash any copyright or proprietary notices on the Platform.

(e) access, store, distribute or transmit any viruses, or any material during your use of the Platform that:

(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory;

(ii) facilitates illegal activity;

(iii) depicts sexually explicit images;

(iv) causes damage or injury to any person or property;

(v) violates any applicable laws,

Mr Yum reserves the right, without liability to the Venue, to disable your access to or remove any material published on the Platform that breaches the provisions of this clause.

6.4 Obligations in respect of Orders

(a) When a Customer makes an Order using the Platform, you will be issued with a notification (Order Notification). For Orders through the Platform, Order Notifications will be issued directly to you.

(b) Where a Customer makes an Order using the Platform, you must use best endeavours to ensure that the Ordered products are provided to the Customer promptly after the Order Notification is received, unless you expressly agree on an alternative timeframe with the Customer such as a pre-order.

(c) You must only provide products to a Customer after you have received the relevant Order Notification. Mr Yum will not be liable to you for products provided without an Order Notification.

(d) You must not impose a card surcharge on the Customer for using a BNPL Provider as a payment mechanism. A surcharge includes any BNPL Provider service fee, any charge or increase in the sale price, shipping costs or any other Customer fees and charges that are applied because the Customer has elected to use the BNPL Provider as their method of payment. This does not include weekend and public holiday surcharges.

6.5 Additional Venue Obligations

You will:

(a) co-operate with Mr Yum in any way reasonably required by Mr Yum to provide business efficacy to this Agreement;

(b) carry out your obligations in a timely and efficient manner;

(c) do all things reasonable to ensure that you and your Customers use the Platform in accordance with the terms and conditions of this Agreement and Mr Yum’s Terms of Use and Privacy Policy;

(d) be responsible for customer service relating to all Orders and delivery quality;

(e) act in good faith when requests are made by Mr Yum to promptly resolve disputes with Customers (including where necessary, taking any action reasonably directed by Mr Yum as may be required to protect our legitimate business interests;

(f) notify Mr Yum of any intention to commence advertising or offering Restricted Goods for sale;

(g) obtain and shall maintain all necessary hardware and third-party software licences necessary to be able to access the Platform; and

(h) be solely responsible for procuring and maintaining network connections and telecommunications links from your systems to the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Venue's network connections or telecommunications links.

6.6 Indemnity

The Venue shall indemnify, and keep indemnified and hold harmless, Mr Yum from and against all Loss suffered or incurred by Mr Yum or its Affiliates as a result of a breach of this clause 6.

7. OUR OBLIGATIONS

(a) Subject to the terms of the Agreement, we will provide you with access to the Platform and the Services as specified in the Onboarding Form and Fee Acceptance Form.

(b) We agree to provide the Services, including initial set up of the Menu, resolving access issues with the Platform and updating any Venue related information on the Platform to which the Venue does not have access.

(c) We will use commercially reasonable endeavours to make the Services available to you.

(d) We reserve the right to change, suspend, remove, or disable access to any feature of the Platform or Services at any time without notice. We will not be liable for the removal of or disabling of access to any such features of the Platform or Services. We may also impose limits on the use of or access to the Platform if we determine that it is in the interests of our genuine business needs in our sole discretion without any notice or liability.

8. SUPPORT SERVICES

(a) Mr Yum will provide the Support Services, which includes seeking to resolve access issues with the Platform and updating any Venue related information on the Platform to which the Venue does not have access.

(b) The Venue will promptly give Mr Yum such reasonable assistance as Mr Yum considers necessary to ensure that it can provide the Support Services.

(c) The Venue will ensure that Mr Yum is promptly granted all reasonable access, including necessary security clearances, for the purposes of providing the Support Services.

9. PAYMENT PROCESSING

(a) All financial transactions made through the Platform between the Venue and Customers will be processed by the Payment Platforms.

(b) Mr Yum will provide the Financial Information to the Payment Platforms, or may require that the Venue provides its Financial Information to the Payment Platforms directly.

(c) Mr Yum shall not authorise any Payment Platforms to use the Financial Information in any way other than to process payments for Orders.

(d) Mr Yum shall not be liable for any losses of the Venue arising out of or in relation to the processing of payments through the Platform, but will liaise with the Payment Platforms to facilitate a resolution of any issues regarding payment that arise in respect of the Venue or any Orders.

(e) The Venue appoints Mr Yum as its agent for the purposes of accepting payment from Customers who use the Platform to place Orders (Customer Payments).

(f) Mr Yum shall remit the Customer Payments (less the Fees) to the Venue on each Remittance Date.

10. FEES

(a) The Venue agrees to pay the Fees to Mr Yum on the terms of this Agreement and in the manner set out in the Payment Method.

(b) The Venue acknowledges that the Minimum Commitment Fee will be payable each month where the Venue’s GMV in that month is less than the Minimum Sales Volume. The Minimum Commitment Fee will be paid in accordance with the Payment Method.

(c) Interest shall be payable at the Penalty Interest Rate on the late payment of any Fees required to be paid by the Venue under this Agreement, accruing on a daily basis from the due date until payment is made in full, both before and after any judgment.

11. REFUNDS, REVERSALS & CHARGEBACKS

(a) The Venue is responsible for Refunds and can process Refunds via its Manage login. All Refunds will appear as a deduction line item on the Venue’s remittance payments. If the Refund is processed after the funds from the relevant Transaction have already been paid out to the Venue, Mr Yum will implement a deduction facility on a future remittance payment.

(b) In the event of a Chargeback or Reversal, The Venue acknowledges and agrees that the Venue must pay:

(i) the Fees;

(ii) the Chargeback Fee (in the event of a Chargeback); and

(iii) any other associated fees incurred by Mr Yum in respect of the Chargeback or Reversal.

12. THIRD PARTY DELIVERY SERVICES

(a) The Venue may elect to use a Delivery Provider made available under the Platform in order to facilitate the Delivery Services.

(b) In respect of the Delivery Services, the Venue acknowledges that:

(i) The Venue is responsible for the Delivery Fees, which will be paid in accordance with the Payment Method;

(ii) the Delivery Services are subject to the terms and conditions of the selected Delivery Provider, made available on the Delivery Provider’s website;

(iii) Mr Yum excludes all representations, warranties or terms (whether express or implied) in relation to the Delivery Services;

(iv) Mr Yum will not be liable for any Loss suffered by the Venue arising out of or in relation to anything caused or contributed to by the Delivery Services, including any failure or delay in the deliver of the Order to the Customer; and

(v) The Venue is wholly responsible for any conflict resolution, Customer support, additional fees or Refunds that may be required in relation to the Delivery Services.

13. HOSTING AND INTEGRATION

(a) The Platform will be hosted on a cloud server operated by a third party.

(b) The Venue acknowledges and agrees that Mr Yum will not at any time host the Platform, and accordingly Mr Yum will not be liable for any losses occasioned by the Venue arising out of or in relation to the hosting of the Platform.

(c) Mr Yum will notify the Venue of:

(i) any violations of the Privacy Act, or violations of the terms of this Agreement of which it becomes aware;

(ii) any request, claim, order, authority report made by any government or statutory authority in respect of the Platform or the data generated by the Platform; and

(iii) the details of the third party hosting of the Platform upon the Venue’s request (unless this information is confidential).

(d) Mr Yum can be integrated either:

(i) directly into the Venue’s system through an application programming interface, or

(ii) into the Venue’s point of sale system (POS) through the POS third party integration partner, which will allow Mr Yum to send the Venue’s customer’s orders directly to the Venue’s kitchen or bar.

(e) If Mr Yum is integrated into the POS, the Venue indemnifies Mr Yum from and against any loss arising as a result of any act or omission of the Venue out of errors, defects or incorrect information in the POS and POS third party integration partner.

14. REPRESENTATIONS AND WARRANTIES

(a) Each party hereby represents and warrants to the other that:

(i) it has the right to deal with the Intellectual Property Rights and has the authority to grant its respective rights under this Agreement;

(ii) it is a corporation duly organized, validly existing, and in good standing under the laws of Australia;

(iii) the grant, execution, delivery, and performance of it obligations under this Agreement have been duly authorised by all necessary action; and

(iv) this Agreement a legal, valid, and binding obligation.

(b) Notwithstanding anything else in these Terms of Service, Mr Yum:

(i) does not warrant that the Venue's use of the Platform will be uninterrupted or error-free; and

(ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including cloud and internet services, and the Venue acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

15. INTELLECTUAL PROPERTY RIGHTS

(a) Nothing in this Agreement constitutes an assignment from Mr Yum to the Venue of any Intellectual Property Rights in connection with the Platform.

(b) The Venue:

(i) acknowledges that Mr Yum holds all Intellectual Property Rights in the Platform;

(ii) acknowledges that Mr Yum will not share Customer Data this with the Venue unless the customer opts into the Venue’s marketing list via the Platform;

(iii) will not directly or indirectly do anything that would or might invalidate or put in dispute Mr Yum’s title in the Platform;

(iv) cannot share login details to the Platform with any third party, unless Mr Yum first provides written its approval; and

(v) will not copy, modify, reverse engineer, decompile or attempt to extract the source code of the Websites and associated functionality.

(c) Mr Yum shall retain all Intellectual Property Rights in any of the material that it creates for the Venue under this Agreement.

16. LIABILITY

(a) To the full extent permitted by law, Mr Yum excludes all liability in respect of loss of data.

(b) To the full extent permitted by law, Mr Yum excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

(c) To the fullest extent permitted by law, in no circumstances will Mr Yum be liable (whether before or after the expiry or termination of these Terms of Service) for special, indirect or Consequential Loss as a result of a defect in the Platform or a breach by Mr Yum of this Agreement including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Platform and the costs of any substitute software which the Venue acquires.

(d) Mr Yum’s total aggregate liability for all claims relating to these this Agreement is limited to the amount of the Platform Fees paid by the Venue under this Agreement in the 12 months preceding the relevant claim.

(e) Mr Yum shall have no liability for any damage caused by errors or omissions in any information, instructions or material provided to Mr Yum by the Venue in connection with the Platform, or any actions taken by Mr Yum at the Venue’s direction.

(f) All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

(g) To the extent, if any, that we act as a ‘service provider’ pursuant to the Payment Card Industry Data Security Standard in respect of the Services provided under this Agreement, we shall be responsible for the security of cardholder data that we possess or otherwise store, process or transmit on the Venue’s behalf, or to the extent that we impact the security of the Venue’s cardholder data environment.

17. TERMINATION

(a) Either party may terminate this Agreement at any time by providing 30 days’ written notice to the other party.

(b) Either party may terminate this Agreement immediately by notice in writing if:

(i) the other party is in breach of any term of this Agreement and such breach is not remedied within 14 days of receipt of notice;

(ii) the other party is in breach of a term of this Agreement and such breach is incapable of remedy;

(iii) the other party for any reason destroys or disposes of or loses custody of the Platform (other than in accordance with the terms of these Terms of Service); or

(iv) the other party suffers an Insolvency Event.

18. CONSEQUENCES OF TERMINATION

(a) If this Agreement is terminated or expires for any reason:

(i) the licences (including the Licence) granted under this Agreement immediately terminate and the Venue can no longer use the Platform;

(ii) Mr Yum shall cease providing the Services to the Venue;

(iii) the Venue must return to Mr Yum or delete all copies of the Platform any adaptations or versions of the Platform and any other media constituting or containing Mr Yum’s Intellectual Property Rights or any other thing provided to the Venue under this Agreement;

(iv) all amounts owing by the Venue to Mr Yum will become immediately due and payable to Mr Yum without further notice and interest will accrue on this amount at the Penalty Interest Rate;

(v) the Venue must immediately pay all outstanding Fees;

(vi) Mr Yum will make any final remittance payment (less and Fees, Delivery Costs and Pass-Through Costs and any costs for which the Venue is responsible under this Agreement) to the Venue within 7 days of termination; and

(vii) termination will not affect the parties accrued rights and obligations prior to the date of termination.

19. CONFIDENTIALITY

(a) Each party acknowledges that during the course of this Agreement they may convey to the other party Confidential Information. If any Confidential Information is received by a party, then that party agrees to keep it confidential and use it only for the purposes of performing its rights and obligations under this Agreement (Permitted Purpose).

(b) Each party shall not disclose the other party’s Confidential Information in whole or in part to any third party, except to those of its or its Affiliates employees, officers, representatives or advisers who need to know such Confidential Information for the Permitted Purpose. Each party shall inform its and its Affiliates employees, officers, representatives or advisers who need to know such Confidential Information for the Permitted Purpose of the confidential nature of the Confidential Information prior to disclosure and at all times is responsible for such persons’ compliance with the confidentiality obligations set out in this clause.

(c) Each party may disclose the other party’s Confidential Information to the extent required by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, the receiving party gives the Disclosing Party as much notice of such disclosure as reasonably possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, the receiving party takes into account the reasonable requests of the disclosing party in relation to the content of such disclosure.

(d) This clause continues even after termination of this Agreement.

20. DATA PROTECTION

(a) Mr Yum agrees to provide the Venue with the customer’s order details (Order Details) to the extent necessary for the Venue to manage and fulfil the customer’s order (Purpose). To the extent that the Order Details contains any Personal Information of the customer, the parties acknowledge and agree that:

(i) The Venue shall not access or use such Personal Information other than as necessary for the Purpose;

(ii) each party is regarded as an independent data controller for the purposes of the Data Protection Legislation; and

(iii) each party shall comply with the Data Protection Legislation at all times in its capacity as a data controller and shall, upon request, provide reasonable assistance to the other party in the event that a customer exercises its rights under the Data Protection Legislation, or a query or investigation is commenced by a Data Protection Authority.

21. GST

(a) Unless otherwise set out in this Agreement, all Fees are exclusive of GST and any other similar duties, levies or taxes (if applicable) which shall be added to the Fees by Mr Yum at the prevailing rate.

(b) Subject to this clause 21, any amount payable by the Venue to Mr Yum under this Agreement is a payment for a taxable supply.

(c) Unless otherwise specified, the party acquiring the taxable supply is liable to pay, at the same time and in the same manner as any other money is payable for the taxable supply, the amount of any GST payable in respect of the taxable supply.

(d) Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.

(e) Mr Yum’s right to payments under this Agreement is subject to a valid Tax Invoice being delivered to the Venue in respect of such payments.

22. VARIATION TO TERMS

We reserve the right to change, modify, add or remove parts of these Terms of Service at any time, subject to providing you with 30 days’ written notice. By continuing to use or access the Platform and/or Services after the date these changes become effective, you signify that you have read, understood and agree to be bound by the updated Terms of Service.

23. NOTICES

(a) Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission.

(b) Notices must be sent to hello@mryum.com or to any other email address notified by email to you by us.

(c) Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Platform.

24. GENERAL

24.1 Waiver

A waiver of a provision of or right under this Agreement is effective only if it is in writing signed by the party granting the waiver.

24.2 Invalidity

Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction only, be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are self-sustaining and capable of separate enforcement without regard to the read down or severed provision in that jurisdiction are and will continue to be valid and enforceable in accordance with their terms.

24.3 Assignment

You acknowledge that:

(a) You may not assign your rights or obligations under this Agreement without the prior written consent of Mr Yum; and

(b) Mr Yum may assign or transfer its rights or obligations under this Agreement without your consent.

24.4 Entire Agreement

This Agreement, together with any documents referred to in this Agreement or provided in conjunction with this Agreement from time to time, comprises the entire agreement between the parties with respect to the subject matter of this Agreement.

24.5 Inconsistency

If there is any inconsistency between the documents forming part of or contemplated by the Agreement, then the following order of priority applies to determine which provisions prevail to the extent of the inconsistency:

(a) the Fee Acceptance Form;

(b) the Privacy Policy; and

(c) the Terms of Service.

24.6 Governing Law

This Agreement shall be governed and construed in all respects in accordance with the laws of Victoria, Australia and, except where restricted by the applicable Law, the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.

24.7 Electronic Agreement

You acknowledge and agree that:

(a) a printed version of this Agreement will be admissible in judicial, administrative or arbitral proceedings; and

(b) you waive any rights to originally execute by hand this Agreement.

25. DICTIONARY

25.1    Interpretation

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (currency) a reference to $ or “dollar” is to Australian currency;

(c) (gender) words indicating a gender includes the corresponding words of any other gender;

(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(g) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(h) (includes) the word “includes” and similar words in any form is not a word of limitation; and

(i) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

25.2 Dictionary

Term

Definition

Affiliate

means as regards a party, its ultimate holding company and each of its ultimate holding company’s other subsidiaries for the time being.

Agreement

has the meaning given to it in clause 1 of these Terms of Service.

Applicable Laws

means all applicable laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, or decisions and awards of any court or competent authority or tribunal from time to time in force.

BNPL Provider

means Afterpay Australia Pty Ltd (ABN 151 693 429 47) or any other by now pay later provider integrated with Mr Yum from time to time.

BNPL Provider Fee

has the meaning given to it in the Fee Acceptance Form.

Business Day

means a day that is not a Saturday, Sunday or public or bank holiday in the State of Victoria, Australia.

Chargeback Fee

means the sum of $25.00.

Commencement Date

means the date the Venue submits the Onboarding Form and the Onboarding Form is accepted by us.

Confidential Information

means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure (and includes in particular the documentation and all of the Intellectual Property Rights associated with the Platform as disclosed or provided to the Venue by Mr Yum pursuant to this Agreement), but excluding:

(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and

(b) information developed independently by a party.

Consequential Loss

means indirect or consequential loss or damage arising from a breach of contract, tort (including negligence), under statute or any other basis in law or equity including, but without limitation, loss of profits, loss of revenue, loss of production, loss of denial or opportunity, loss of access to markets, loss of goodwill, loss of business reputation, future reputation or publicity, damage to credit rating, loss of use or indirect remote, abnormal or unforeseeable loss, or any similar loss whether or not in the reasonable contemplation of the parties at the Commencement Date.

Copyright Act

means the Copyright Act 1968 (Cth) (as amended).

Corporations Act

means the Corporations Act 2001 (Cth) (as amended).

Customer

means a customer of the Venue that places an Order through the Platform

Customer Data

Means any data or any other information, which is uploaded to the Platform by a Customer, including any Intellectual Property Rights attaching to those materials

Customer Payment

means the Transaction payment made by a Customer via the Platform in respect of an Order and includes any card surcharge fees.

Customer Portal

means the portal by which the Customer can access the Platform and enables the Customer’s access to the Menu.

Data Protection Legislation

means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of Personal Information to which a party is subject, including the Privacy Act and the GDPR.

Data Protection Authority

means a person or body which has regulatory or supervisory authority over all or any part of the business or activities of the relevant person in respect of Personal Information.

Delivery Fees

means the fees payable to a Delivery Provider in respect of providing the Delivery Services.

Delivery Provider

means a third-party delivery service provider integrated with the Platform to facilitate delivery of Orders to a Customer.

Delivery Services

means the services of delivering Orders to Customers operated by a Delivery Provider.

Documentation

means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form.

Fee Acceptance Form

means the document named ‘Fee Acceptance Form’ signed by you and forming part of the Agreement.

Fees

means any amount payable by the Venue to Mr Yum in accordance with this Agreement, including but not limited to the Platform Fee, Payment Processing Fee and Minimum Commitment Fee.

Financial Information

has the meaning given to it in clause 6.1

Force Majeure Event

means an act of God, fire, lightning, explosion, flood, subsidence, insurrection or civil disorder or military operation, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and, any other cause whether similar or not to the foregoing, outside of the affected party’s control.

GDPR

means the EU General Data Protection Regulation (EU) 2016/679.

GMV (or Gross Merchandise Volume)

means the total sales volume of all Transactions placed through the Platform by the Venue.

GST

has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

Insolvency Event

means the occurrence of any event or transaction in relation to any party that would cause that party to become insolvent within the meaning of section 95A(2) of the Corporations Act 2001 (Cth).

Intellectual Property Rights

means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trademarks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this Agreement, whether registered or unregistered.

Licence

has the meaning given to it in clause 3(a).

Loss

means any and all losses, damages, costs, expenses (including reasonable legal fees) and other liabilities, including Consequential Loss, and Losses shall be construed accordingly.

Manage

means the backend access management portal of the Platform accessible by the Venue.

Menu

means the Venue’s menu located on the Platform.

Minimum Commitment Fee

has the meaning given to it in the Fee Acceptance Form.

Minimum Sales Volume

means a Monthly GMV of $15,000.

Monthly GMV

means the GMV for a single calendar month.

Onboarding Form

means the initial onboarding form completed by you, containing information used by us to set up your Manage portal.

Order

means an order for food and beverage placed through the Platform by a Customer.

Parties

means the parties to the Agreement and ‘party’ means each of them.

Pass-Through Costs

means any cost for which the Venue is responsible in respect of a Transaction (including Refunds, SMS Fees, Delivery Fees and Chargeback Fees and paid in accordance with the Payment Method.

Payment Facilitator

means Stripe Payments Australia Pty Ltd (CAN 160 180 343) or any other payment processing software that Mr Yum integrates with from time to time.

Payment Facilitator Fee

has the meaning given to it in the Fee Acceptance Form.

Payment Method

Mr Yum will accept the Customer Payments and will deduct the Fees, Delivery Fees and Pass-Through Costs from these funds prior to remitting the balance to the Venue on each Remittance Date.

Payment Platforms

means both BNPL Provider and Payment Facilitator and any other payment platforms that Mr Yum integrates with from time to time.

Penalty Interest Rate

means the rate of 2% per annum plus the rate for the time being fixed by section 2 of the Penalty Interest Rates Act 1983 (Vic).

Permitted Purpose

has the meaning given to it in clause 19(a).

Personal Information

has the meaning given in the Data Protection Legislation.

Personnel

means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.

Platform

means the software known as “Mr Yum”, owned by Mr Yum and delivered to the Venue by Mr Yum pursuant to the Agreement.

Platform Fee

has the meaning given to it in the Fee Acceptance Form.

Privacy Act

means the Privacy Act 1988 (Cth) as amended from time to time.

Refunds

means a refund requested by a Customer for a Transaction and approved by the Venue.

Related Website

means the Websites or any other website of any Payment Platform.

Remittance Payment

means the remittance to the Venue of all Transaction payments (less the Fees) by Mr Yum on the Remittance Dates.

Remittance Dates

means five (5) times a week, on weekdays (Monday to Friday), 3 days in arrears.

Restricted Goods

means:

(i) goods or services that infringe third party Intellectual Property Rights;

(ii) dangerous goods, being goods that cause damage, harm or injury;

(iii) tobacco products or alcoholic beverages (except to the extent that such products or beverages are provided as part of your licenced and ordinary course of business);

(iv) adult merchandise, including (without limitation) sex toys, adult magazines and books, sexual enhancement products and pornographic materials and items;

(v) gambling-related content;

(vi) medicines and dietary supplements;

(vii) products that encourage dishonest behaviour;

(viii) cannabis products (prescription or otherwise);

(ix) without limiting the above, any goods or services which are required by law to be sold to Customers over 18 years of age; and

(x) any other goods or services which Mr Yum reasonably considers to be dangerous, inappropriate or high risk.

Services

means any and all of the following:

(i) Websites:

(ii) Platform;

(iii) Set-up Services; and

(iv) Support Services,

provided by us to you.

Set-up Material

means any material created by Mr Yum for the Venue in performing the Set-Up Services.

Set-up Services

means services to set up the Venue for trading via the Platform, including setting up Manage and providing Menu build support (the Venue is responsible for the actual menu build).

SMS Fees

means the SMS fees charged to Mr Yum in respect of facilitating a Transaction.

Support Services

means the software support services in relation to Platform, including but not limited to implementation, support, training and development services, provided by us to you.

Term

has the meaning given to it in clause 4(a).

Transaction

means the Customer payment processed by Mr Yum for an Order via the Platform and includes any card surcharge fees.

User

means any person (including any Customer) that is subject to the Terms of Use, and where the context permits, includes any entity on whose behalf that person who uses or accesses the Platform.

Venue

means any venue or merchant using the Platform and/or any person from whom food, beverages or goods may be purchased via the Platform.

Venue Data

means any documents or materials supplied by you to us under or in connection with these Terms of Service, including any Intellectual Property Rights attaching to those materials.

Websites

means www.mryum.com and any other site operated by us in connection with the Platform or Services.

You or Your

means the Venue and where the context permits, any Affiliate or person you authorise to use the Platform and/or Services on your behalf.

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