Retailer Terms of Service

Booop is a digital platform (“Platform”) that provides Retailers with a product management system and the ability to set up an interactive mobile scan and self-checkout function to enhance the in-store shopping experience for your customers. Booop is owned and operated by Booop Technologies Pty Ltd (ACN 656 154 148) and Booop Pty Ltd (ACN 657 815 220) and its Affiliates (together “we”, “us”, “our” or “Booop”). The terms “you” and “your” refer to the Retailer (your business and any of your Affiliates).

By submitting the Onboarding Form, using the Services or accessing the Platform, you acknowledge that you have read and understood and agree to be bound by the following terms and conditions (“Terms of Service”), Terms of Use and Privacy Policy. These terms together with the Onboarding Form and Fee Schedule form a standing Agreement between you and Booop. 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.

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.

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.

In this Terms of Service, all capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or otherwise have the meanings given to them in clause 21 Definitions.

2.1 To access and use the Services, the Retailer must register for a Booop account (“Account”). To complete the Account registration, the Retailer must provide the information required on the Onboarding Form. We may reject an application for an Account, or cancel an existing Account, for any reason, at our sole discretion.

2.2 The Retailer or its authorised person must be at least 18 years of age to open an Account.

2.3 The Retailer acknowledges Booop will use the email address provided on opening an Account or as updated from time to time as the primary method for communication (“Verified Email Address”). The Retailer warrants it will monitor this email address. All email communications with Booop can only be authenticated if they come from the Verified Email Address. 

2.4 The Retailer is responsible for keeping the password secure. Booop will not be liable for any loss or damage from the Retailer’s failure to maintain the security of the Retailer’s Account and password.

2.5 Subject to clause 2.6, the person signing up for the Service by opening an Account will be the contracting party (“Retailer”) for the purposes of these Terms of Service and will be the person who is authorised to use any corresponding Account provided to the Retailer in connection with the Service. The authorised person is responsible for ensuring that the name of the Retailer (including the legal name of the company) is accurate.

2.6 If the authorised person is signing up for the Services on behalf of an employer, the employer will be the Retailer. In this case the authorised person must use his or her employer-issued email address and by signing up for the Service, he or she represents and warrants that he or she has the authority to bind the Retailer to these Terms of Service.

2.7 The Account is associated with one Retailer and a Retailer may have multiple stores.

2.8 Based on the Pricing Schedule, one or more staff accounts (“Staff Accounts”) can be created allowing access to the Retailer’s Account. The Retailer is responsible for: 

(a) ensuring employees, agents and subcontractors, including via Staff Accounts, comply with these Terms of Service; and 

(b) any breach of these Terms of Service by the Retailer’s employees, agents or subcontractors. 

The Retailer acknowledges and agrees that Retailer will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any Affiliates or subsidiaries of the Retailer.

3.1 Booop grants the Retailer a non-exclusive, non-transferable, non-sublicensable licence to use and access the Platform during the Term and on the terms set out this Terms of Service (“Licence”).

3.2 In exchange for Booop granting the Licence to the Retailer, the Retailer agrees to pay the Fees in the Fee Schedule and on the terms set out in this Terms of Service.

3.3 If this Terms of Services is terminated for any reason, then the Licence together with Booop’s Services, will terminate.

4.1 The term of this Agreement will commence on the Commencement Date and continues until terminated in accordance with this Agreement.
4.2 Both the Retailer and Booop may terminate this Agreement for convenience in accordance with clause 15, provided that the terms of this Agreement will continue to apply up to the date of termination.

5.1 Information: The Retailer agrees to provide Booop all information reasonably required to perform the Services, including financial information such as product pricing, billing details and other account information (“Payment Information”), to allow the confirmation of Transactions.

5.2 Compliance with Laws: The Retailer agrees that by receiving or requesting the Services, the Retailer:

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

(b) have a current and valid:

i. ABN/business registration; and

ii. appropriate insurance policies; and

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

5.3 Use of Platform: The Retailer agrees the Retailer will not:

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

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

(c) provide the Retailer’s customers with any information about Booop or the Platform that is inaccurate, false or misleading;

(d) make any warranty, representation or statement to any customer relating to Booop, the Platform other than those:

i. contained in materials provided to the Retailer from Booop;
ii. set out on a Related Website;
iv. expressly permitted by Booop in writing.

Booop reserves the right to request the Retailer to modify or delete content or materials that does not fit into the above description, or remove them from display and the Retailer agree to comply with such requests.

(e) except as expressly permitted by these Terms of Service:

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;

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

(f) access, store, distribute or transmit any viruses, or any material during the Retailer’s 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.

Booop reserves the right, without liability to the Retailer, to disable the Retailer’s access to or remove any Material published on the Platform that breaches the provisions of this clause 5.

5.4 Obligations in respect of Purchases

(a) When a customer makes a Purchase using the Platform, the Customer will be issued with a confirmation (“Purchase Confirmation”). Purchase details will be available to the Retailer through the Management Portal.

(b) If the product is not accessible to the customer, the Retailer must use its best endeavours to ensure the product is provided to the Customer promptly after the Purchase Confirmation unless the Retailer agrees to an alternative timeframe with the Customer or provides a refund to the Customer.

(c) The Retailer must ensure it checks the Customer has completed payment with a valid Purchase Confirmation for each Purchase. Booop will not be liable to the Retailer for products taken by Customer without a Purchase Confirmation.

(d) The Retailer agrees not to impose a card surcharge on the customer for using a by now pay later provider (“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.

5.5 Additional Retailer Obligations

The Retailer acknowledges and agrees:

(a) to provide public-facing contact information and a refund policy in the Retailer’s retail store;

(b) the Services are not a marketplace, and any party of the Service that contributes to a contract of sale is a contract directly between the Retailer and the Customer;

(c) the Retailer is responsible for the operation of its Booop Checkout, the products that it sells, and all aspects of the transaction between the Retailer and a Customer. This includes, but is not limited to, authorising any charge to the customer in respect of the customer’s purchase, refunds, returns, fraudulent transactions, required legal disclosures, regulatory compliance, alleged or actual violation of Applicable Laws (including but not limited to consumer protection laws), or the Retailer’s breach of these Terms of Service. The Retailer represents and warrants that its Booop Checkout, its contents on the Booop Checkout and the products that are paid for via the Platform are true, accurate, and complete, and will not violate any Applicable Laws or rights of third parties;

(d) the Retailer is solely responsible for the products that are paid for through the Services (including description, price, fees, tax that the Retailer has calculate, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any Applicable Laws;

(e) the API Terms govern the Retailer’s access to and use of the Booop API. The Retailer is solely responsible for the activity that occurs using its API Credentials (as defined in the API Terms) and for keeping its API Credentials secure;

(f) to co-operate with Booop in any way reasonably required by Booop to provide business efficacy to this Agreement;

(g) to carry out the Retailer’s obligations in a timely and efficient manner;

(h) to do all things reasonable to ensure that the Retailer and its Customers use the Platform in accordance with the terms and conditions of this Agreement, Terms of Use and Privacy Policy;

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

(j) to notify Booop of any intention to commence advertising or offering Restricted Goods for sale;
to obtain and shall maintain all necessary hardware and third-party software licences necessary to be able to access the Platform; and

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

5.6 Indemnity

The Retailer shall indemnify, and keep indemnified and hold harmless, Booop from and against all Loss suffered or incurred by Booop or its Affiliates as a result of a breach of this clause 5.

6.1 Subject to the terms of this Agreement, Booop will provide the Retailer with access to the Platform and the Services as specified in the Onboarding Form and Fee Schedule.

6.2 Booop agrees to provide the Services, including resolving access issues with the Platform and updating any Retailer related information on the Platform to which the Retailer does not have access.

6.3 Booop will use commercially reasonable endeavours to make the Services available to the Retailer.

6.4 Booop reserves the right to change, suspend, remove, or disable access to any feature of the Platform or Services at any time without notice. Booop will not be liable for any Loss arising the removal of or disabling of access to any such features of the Platform or Services. Booop may also impose limits on the use of or access to the Platform if Booop determines that it is in the interests of its genuine business needs in its sole discretion without any notice or liability.

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

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

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

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

(b) Booop will provide the Payment Information to the Payment Platforms, or may require that the Retailer provides its Payment Information to the Payment Platforms directly.

(c) Booop shall not authorise any Payment Platforms to use the Payment Information in any way other than to process payments for Purchases.

(d) Booop shall not be liable for any Loss of the Retailer 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 Retailer or any Purchases.

(e) The Retailer appoints Booop as its agent for the purposes of accepting payment from Customers who use the Platform to place Purchases (“Customer Payments”).

(f) Booop shall remit the Remittance Payment to the Retailer on each Remittance Date.

(a) The Retailer agrees to pay the Fees to Booop on the terms of this Agreement and in the manner set out in Fee Schedule. Booop will accept the Customer Payments and will deduct the Fees and Pass-Through Costs from these funds prior to remitting the balance to the Retailer on each Remittance Date.

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

(a) The Retailer is responsible for Refunds and can process Refunds via its Management Portal login. The Retailer acknowledges and agrees Booop’s Fees are not refunded. All Refunds will appear as a deduction line item on the Retailer’s Remittance Payments. If a Refund is requested after the funds from the relevant Transaction have already been paid out to the Retailer, Booop may not be able to process the Refund or may implement a deduction facility on a future Remittance Payment.

(b) In the event of a Chargeback or reversal, the Retailer acknowledges and agrees that the Retailer must pay:

i. the Fees;

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

iii. any other associated fees incurred by Booop in respect of the Chargeback or reversal.

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

(b) The Retailer acknowledges and agrees that Booop will not at any time host the Platform, and accordingly Booop will not be liable for any Loss suffered by the Retailer arising out of or in relation to the hosting of the Platform.

(c) Booop will notify the Retailer 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 Retailer’s request (unless this information is confidential).

(d) The Retailer indemnifies Booop from and against any Loss arising as a result of any act or omission of the Retailer out of errors, defects or incorrect information.

(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 organised, validly existing, and in good standing under the laws of Australia;

iii. the grant, execution, delivery, and performance of its 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, Booop:

i. does not warrant that the Retailer’s use of the Platform will be uninterrupted or error-free; and
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 Retailer acknowledges

ii. that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

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

(b) The Retailer:

i. acknowledges that Booop holds all Intellectual Property Rights in the Platform;

ii. acknowledges that Booop will not share identifiable Customer Data with the Retailer unless the customer opts into the Retailer’s marketing list via the Platform;

iii. will not directly or indirectly do anything that would or might invalidate or put in dispute Booop’s title in the Platform;

iv. cannot share login details to the Platform with any third party, unless Booop 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) Booop shall retain all Intellectual Property Rights in any of the material that it creates for the Retailer under this Agreement.

(d) Booop will not claim ownership of the Materials the Retailer provides to Booop. The Retailer agrees to grant Booop a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, and translate, and create derivative works of any Materials provided by the Retailer to Booop in connection with the Services. Booop may use its rights under this license to operate, provide, and promote the Services and to perform its obligations and exercise its rights under the Terms of Service. The Retailer represents, warrants, and agrees that it has all the necessary rights in the Materials to grant this license. The Retailer agrees to indemnify Booop against all third party claims in respect of any Materials provided on the Platform. The Retailer irrevocably waive any and all moral rights it may have in the Materials in favour of Booop and agrees that this waiver may be invoked by anyone who obtains rights in the Materials through Booop, including anyone to whom Booop may transfer or grant (including by way of license or sublicense) any rights in the Materials.

(e) The Retailer may at any time delete its Account. Deleting the Account does not terminate any rights or licenses granted to the Materials that Booop requires to exercise any rights or perform any obligations that arose during the period of Service.

(f) Booop may at any time review and delete any or all of the Materials submitted to the Service, although Booop is not obliged to do so.

(g) The Retailer grants Booop a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to use the names, trademarks, service marks and logos associated with the Retailer’s store (“Retailer’s Trademarks”) to operate, provide, and promote the Services and to perform Booop’s obligations and exercise its rights under the Terms of Service. This license will survive any termination of the Terms of Service solely to the extent that Booop requires the license to exercise any rights or perform any obligations that arose during the period of Service.

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

(b) To the full extent permitted by law, Booop 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 Booop 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 Booop 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 Retailer acquires.

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

(e) Booop shall have no liability for any damage caused by errors or omissions in any information, instructions or Material provided to Booop by the Retailer in connection with the Platform, or any actions taken by Booop at the Retailer’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 Booop acts as a ‘service provider’ pursuant to the Payment Card Industry Data Security Standard in respect of the Services provided under this Agreement, Booop shall be responsible for the security of cardholder data that Booop possesses or otherwise stores, processes or transmits on the Retailer’s behalf, or to the extent that Booop impacts the security of the Retailer’s cardholder data environment.

(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.

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

i. except as expressly permitted in this Agreement, the licences (including the Licence) granted under this Agreement immediately terminate and the Retailer can no longer use the Platform;

ii. Booop shall cease providing the Services to the Retailer;

iii. the Retailer must return to Booop or delete all copies of the Platform any adaptations or versions of the Platform and any other media constituting or containing Booop’s Intellectual Property Rights or any other thing provided to the Retailer under this Agreement;

iv. all amounts owing by the Retailer to Booop will become immediately due and payable to Booop without further notice and interest will accrue on this amount at the Penalty Interest Rate;

v. the Retailer must immediately pay all outstanding Fees;

vi. Booop will make any final Remittance Payment (less any fees for which the Retailer is responsible under this Agreement) to the Retailer within 7 days of termination;

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

viii. any refunds or dealings with Customers must be dealt with between the Retailer and Customer with no claims or liability to Booop.

(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 17.

(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 17, the receiving party takes into account the reasonable requests of the disclosing party in relation to the content of such disclosure.

(d) This clause 17 continues after termination of this Agreement.

(a) Booop agrees to provide the Retailer with the Customer’s order details (“Purchase Details”) to the extent necessary for the Retailer to manage and fulfil the customer’s order (“Purpose”). To the extent that the Purchase Details contains any Personal Information of the customer, the parties acknowledge and agree that:

i. The Retailer 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.

(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 Booop at the prevailing rate.

(b) Subject to this clause, any amount payable by the Retailer to Booop 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) Booop’s right to payments under this Agreement is subject to a valid Tax Invoice being delivered to the Retailer in respect of such payments.

20.1 Variation to terms

Booop reserves the right to change, modify, add or remove parts of these Terms of Service at any time, subject to providing the Retailer with 30 days’ written notice. By continuing to use or access the Platform and/or Services after the date these changes become effective, the Retailer confirms that it has read, understood and agrees to be bound by the updated Terms of Service.

20.2 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 support@boooop.it or to any other email address notified by email to the Retailer by Booop.

(c) Notices to the Retailer may be sent via electronic messages including email to the email address provided when setting up access to the Platform.

20.3 Waiver

(a) 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.

20.4 Invalidity

(a) 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.

20.5 Assignment

The Retailer acknowledges that:

(a) the Retailer may not assign its rights or obligations under this Agreement without the prior written consent of Booop; and

(b) Booop may assign or transfer its rights or obligations under this Agreement without the Retailer’s consent.

20.6 Entire Agreement

(a) 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.

20.7 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 Schedule;

(b) the Onboarding Form;

(c) the Privacy Policy;

(d) the Terms of Service; and

(e) the Terms of Use

20.8 Governing Law

(a) 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.

20.9 Electronic Agreement

The Retailer acknowledges and agrees that:

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

(b) the Retailer waives any rights to originally execute by hand this Agreement.

21.1 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.

21.2 Definitions

Affiliate means, in relation to a party, its ultimate holding company and each of its ultimate holding company’s other subsidiaries for the time being.

Agreement means these Terms of Service, the Terms of Use, Privacy Policy, Fee Schedule and Onboarding Form.

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 any buy now pay later provider integrated with Booop from time to time.

BNPL Provider Fee has the meaning given to it in the Fee Schedule, if applicable.

Booop Checkout means the Retailer’s store on the Platform that allows Customers to scan and pay digitally whilst shopping in store or online. The Booop Checkout includes but is not limited to providing Customers the ability to add products to cart, enter payment details, and checkout through an online web application.

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 Retailer 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 Retailer by Booop 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 Retailer, 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.

Customer means a customer of the Retailer.

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

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.

Documentation means all manuals, help files and other documents supplied by Booop to the Retailer relating to the

Software, whether in electronic or hardcopy form.

Fee Schedule means the document named ‘Fee Schedule’ signed by the Retailer and forming part of the Agreement.

Fees means any amount payable by the Retailer to Booop in accordance with this Agreement.

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

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) as amended.

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 3.1.

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.

Management Portal means the backend access management portal of the Platform accessible by the Retailer.

Material means the Retailer’s trademarks, copyright content, any products or services sold through the Services (including description and price), and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by the Retailer or its Affiliates to Booop and its Affiliates.

Onboarding Form means the initial onboarding form completed by the Retailer, containing information used by Booop to set up the Retailer’s Management Portal.

Parties means the parties to the Agreement and “party” means each of them.

Pass-Through Costs means any cost for which the Retailer is responsible in respect of a Transaction (including any Refunds, SMS Fees and Chargeback Fees) and paid in accordance with the Fee Schedule.

Payment Facilitator means Stripe Payments Australia Pty Ltd (ACN 160 180 343) or any other payment processing software that Booop integrates with from time to time.

Payment Facilitator Fee has the meaning given to it in the Fee Schedule.

Payment Information has the meaning given to it in clause 5.1

Payment Platforms means both BNPL Provider and Payment Facilitator and any other payment platforms that Booop 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 17(a).

Personal Information has the meaning given in the Data Protection Legislation.

Platform means the software known as “Booop”, owned by Booop and delivered to the Retailer by Booop pursuant to the Agreement.

Platform Fee has the meaning given to it in the Fee Schedule.

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

Purchase means a purchase of product placed through the Platform by a Customer.

Purchase Confirmation has the meaning given to it in clause 5.4.

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

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

Remittance Payment means the remittance to the Retailer of all Transaction payments (less the Fees) by Booop on or around the Remittance Dates.

Remittance Dates means five (5) times a week on Business Days, 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 the Retailer’s 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 Booop reasonably considers to be dangerous, inappropriate or high risk.

Retailer means any retailer or merchant using the Platform and/or any person from whom products may be purchased via the Platform.

Services means the agreed services provided by Booop and may include the following:

(i) Websites;

(ii) Booop Checkout and the Platform;

(iii) Set-up Services; and

(iv) Support Services.

Set-up Services means services to set up the Retailer’s Booop Checkout via the Platform.

SMS Fees means the SMS fees charged to Booop in respect of facilitating a Transaction.

Support Services means the software support services in relation to Platform, and may include but not limited to implementation, support, training and development services, provided by Booop to the Retailer.

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

Term of Use means the terms and conditions for the use of the Platform that all persons including Retailers and Customers must agree to.

Transaction means the Customer payment processed by Booop for a Purchase via the Platform and includes any card surcharge fees.

Websites means www.booop.it and any other site operated by Booop in connection with the Platform or Services.

You or Your means the Retailer and where the context permits, any Affiliate or person the Retailer authorises to use the Platform and or Services on its behalf.