Tower Systems Terms of Use

As at Friday, April 15, 2016

Welcome to Tower Systems. These terms related apply to both Tower Systems Point Of Sale Software and to the Tower Advantage Link. Tower Advantage Link is on online platform that sells both access to Tower Systems Retailer Software and connectors to third party tools websites and services that integrate with the software. Tower Systems Retailer Software is for small business in several vertical markets. These Terms of Use will explain our obligations as a service provider and your obligations as a customer.

These Terms are binding on any use of the Service and apply to you from the time that Tower Systems provides you with access to the Services purchased.

The Tower service will continue to grow with both enhancements and new connectors being added. Tower Systems reserves the right to update these Terms of Use at any time which will be enacted once posted to the website. It is your responsibility to have read, understand and agree to the most recent terms.

By registering to use any of the services offered you acknowledge that you have read and understood these Terms and have the authority to act on behalf of any entity using the Services.

1) DEFINITIONS

a) "Agreement" means these Terms of Use.

b) "Access Fee" or “Subscription Fee" means the monthly fee (excluding any taxes and duties) payable. Rates for each service offered are available on the Tower Advantage Link Web Site.

c) "Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

d) "Data" means any data supplied by you or entered by you into the Tower Advantage Link Website.

e) "Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

f) "Service" Means the Tower Advantage link product or products you have subscribed to via the Tower Advantage Link website.

g) "Website" means the Internet site at the domain talink.towersystems.com.au or any other site operated by Tower.

h) "Tower" means Tower Systems International Pty Ltd and all current and future global subsidiaries of Tower including Tower Advantage Link website.

i) "Subscriber" means the person or entity who registers to use the Service.

j) "You" and “Your” means the Subscriber or Tower Systems Customer.

k) “Support” means Tower Advantage technical help. Including but not limited to, Help Desk access, Web Site access, and Software updates.

2) USE OF SOFTWARE Tower grants you the right to access and use the Services to which you have subscribed or purchased. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.

3) YOUR OBLIGATIONS

a) Payment obligations: Payments are required for the service in advance of services being offered for the next 30 day period. Invoices for the services subscribed to will be made available to you on the Tower Advantage Link website. Tower will continue to charge you every 30 days until such time as this agreement is terminated in accordance with Termination clause.

b) General obligations: You must only use the Service and Website for your own lawful internal business purposes, in accordance with these Terms and any notice sent by Tower or condition posted on the Website.

c) Access Conditions. You must ensure that all usernames and passwords required to access the service are kept secure and confidential. You must immediately notify Tower of any unauthorised use of your passwords or any other breach of security and Tower will reset your password. You must take all other actions that Tower reasonably deems necessary to maintain or enhance the security of Tower’s computing systems and networks and your access to the services. As a condition of these Terms, when accessing and using the Services, You must:

i) not attempt to undermine the security or integrity of Tower’s computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;

ii) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;

iii) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;

iv) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and

v) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary.

d) Usage Limitations: Use of the Service may be subject to limitations. including but not limited to monthly data transmitting volumes. Any such limitations will be advised.

e) Indemnity. You indemnify Tower against: all claims, costs, damage and loss arising from your breach of any of these Terms or any obligation You may have to Tower, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.

4) CONFIDENTIALITY AND PRIVACY

a) Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:

i) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

ii) Each party's obligations under this clause will survive termination of these Terms.

iii) The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:

(1) is or becomes public knowledge other than by a breach of this clause;

(2) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(3) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

(4) is independently developed without access to the Confidential Information.

b) Privacy: Tower maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.towersystems.com.au/privacy/ and you will be taken to have accepted that policy when You accept these Terms.

5) INTELLECTUAL PROPERTY

a) General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Tower.

b) Ownership of Data: Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on payment of your subscription fees as they fall due. You grant Tower permission to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.

c) Backup of Data: You must maintain copies of all Data inputted into the Service. Tower adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. In instances where data is being on your own servers back up of data is solely your responsibility. Tower does not accept any responsibility for any lost data under any circumstances.

6) WARRANTIES AND ACKNOWLEDGEMENTS

a) Authority: You warrant that where you have registered to use the Service on behalf of an entity you agree to these Terms on behalf of that entity.

b) Acknowledgement: You acknowledge that:

i) You are authorised to use the Services and the Website to perform the actions described by the service concerned on the Tower Advantage link website.

ii) The provision of, access to, and use of, the Services is on an "as is " basis and at your own risk.

iii) Tower does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, required third party websites, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Tower is not in any way responsible for any such interference or prevention of your access or use of the Services.

iv) It is your sole responsibility to determine if the Services meet the needs and are suitable for your business.

c) No warranties: Tower gives no warranty about the Services. Tower does not warrant that the Services will meet your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

7) LIMITATION OF LIABILITY

a) To the maximum extent permitted by law, Tower excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.

b) If You suffer loss or damage as a result of Tower's negligence or failure to comply with these Terms, any claim by You against Tower arising from Tower's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.

c) If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Termination clause.

8) SERVICE COSTS AND PAYMENTS.

a) Except where specifically expressed, all prices quoted or that have appeared in our website are inclusive of tax. All prices are subject to change and you will be notified to the email address supplied, by you at time of signup, of the cost increases at least 14 days before the next billing is incurred.

b) You represent and warrant that if you are purchasing something from us that

i) Any credit information you supply is true and complete.

ii) Charges incurred by you will be honored by your credit card company.

iii) All payments are in advance of services being offered. Failure to pay will result in services being suspended until such time as payment has been received.

9) THIRD PARTY SERVICES. From time to time we need to access third-party sites and or services that are needed to perform the some aspect of the service offered. You understand that we do not operate or control the products or services offered by these third party sites. You agree that use of such sites is at your sole risk and is without warranties of any kind by us, expressed, implied or otherwise, including warranties of title, fitness for purpose, non-infringement. Under no circumstances are we liable for any damages arising from the transactions between you and these third party sites or for any information appearing on merchant sites or any other site linked to our site.

10) TERMINATION

a) Prepaid Subscriptions. Tower will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.

b) No-fault termination: These Terms will continue for the period covered by the Access Fee paid or payable under clause 3.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided you continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 14 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

c) Breach: If You:

i) breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

ii) breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) payment of Access Fees that are more than 30 days overdue); or

iii) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

d) Tower may take any or all of the following actions, at its sole discretion:

i) Terminate this Agreement and Your use of the Services and the Website;

ii) Suspend for any definite or indefinite period of time, Your use of the Services and the Website;

iii) Suspend or terminate access to all or any Data.

e) For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to your services is not made in full by the relevant due date, Tower may: suspend or terminate Your use of the Service.

f) Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:

i) remain liable for any accrued charges and amounts which become due for payment before or after termination; and

ii) immediately cease to use the Services and the Website.

11) TOWER SYSTEMS SUPPORT

a) These Terms and Conditions apply to the provision of software support by Tower Systems for software developed by Tower Systems. This support service is known as “Tower Advantage Software Update and Support Service” and referred to as “Support” in this document. These Terms and Conditions are subject to change without notice.

b) Software support coverage is offered for periods of not less than one year regardless of payment method unless otherwise indicated in writing by the company, or unless support forms part of a pre paid subscription in which case the support is for the period covered by the pre paid subscription.

c) Once the support coverage has been accepted by the customer in the form of payment of an invoiced software support charge or portion thereof, or any use whatsoever of the support service, or by use of any of the services offered through the Tower Advantage Link website, the contract between Tower Systems and its customer cannot be cancelled by the customer or refunded for the twelve month period.

d) The support agreement is between Tower Systems and the invoiced customer. Tower Systems must approve any transfer of the support agreement in the event of a change of ownership of the customers business. Tower Systems is not obligated to provide any such approval.

e) All sites owned by a customer (either directly or indirectly, wholly or in part) must be covered by support for the entire same period. Specifically, users may not take support for one business they own or part own using the system and not another. This is up to the Tower Systems customer, user, to ensure this.

f) Support coverage must be maintained in order to use the services on offer on the Tower Advantage Link website.

g) The Support coverage offered covers all points listed in this document.

h) All Tower Systems software modules purchased by a customer are to be covered by support. Customers may not take out support for one module and not another.

i) Time spent resolving a reported problem where the problem has been caused by incorrect or negligent use of the software or; data problems caused by the user may be billed at the discretion of Tower Systems.

j) Time spent resolving a reported problem where the problem has been caused by a virus or other software may be billed at the discretion of Tower Systems.

k) Tower Systems reserves the right to charge for after hours access for problems deemed by Tower Systems to not be an emergency.

l) Tower Systems reserves the right to charge for calls relating to training or lack of user knowledge.

m) Assistance with software not provided by Tower Systems or hardware not on the published Approved Hardware List provided by Tower Systems on its Knowledge Base, are not covered by Support and may be billed at the discretion of Tower Systems.

n) On site or in person help is not included in support coverage.

o) Each customer taking on support coverage undertakes to ensure that each person using the system and likely to call for support is well trained in the use of the software. Tower Systems reserves the right to charge for calls resulting from a lack of knowledge of the system.

p) Tower Systems reserves the right to withhold or cancel support coverage in the event that; any invoice from the company to the customer remains unpaid for 30 calendar days; that the software is being run on hardware that does not meet Tower Systems’ standards; or, where the software is being abused to the detriment of the good name of Tower Systems.

q) Tower Systems reserves the right to discontinue support for older versions of the software.

r) Customers are required to use the Tower Systems software on hardware acceptable to the standards laid down by the company and available from the company.

s) Any settlement discount is only available if the account is settled within the time noted by Tower Systems on your invoice.

t) Any term or condition of the support contract between Tower Systems and a customer is to be considered appropriately varied where it is in breach of the law.

u) Governing Law. Support is provided subject to the laws of the state of Victoria in the Commonwealth of Australia and by renewing support you acknowledge and submit to the exclusive jurisdiction of the courts of the state of Victoria.

v) When accepted by Tower Systems, this offer is deemed to have been accepted in the State of Victoria.

12) GENERAL

a) Entire agreement: These Terms and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Tower relating to the Services and the other matters dealt with in these Terms.

b) Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

c) Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

d) No Assignment: You may not assign or transfer any rights to any other person without Tower’s prior written consent.

e) Governing Law. Tower Systems’ support is provided subject to the laws of the State of Victoria in the Commonwealth of Australia and you acknowledge and submit to the exclusive jurisdiction of the courts of the State of Victoria.

f) Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

g) Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Tower must be sent to support@towersystems.com.au or to any other email address notified by email to You by Tower. Notices to You will be sent to the email address which You provided to Tower.

13) DIRECT DEBIT CLIENT SERVICE AGREEMENT

a) Drawing arrangements:

i) Your Credit Card will be debited on every 30 days based on the signup dates of the applicable service you are subscribing to.

ii) From time to time we may alter the amount charged for the subscribed service. On the yearly anniversary of your Tower Advantage™ membership, we reserve the right to alter the amount charged for the next twelve month period. In the event that such a change occurs we will notify you in writing at least 14 days prior, if we wish to vary the direct debit arrangement.

iii) We reserve the right to cancel your Tower Advantage™ membership, if a direct debit is unable to proceed for any reason.

iv) We will keep all information pertaining to your credit card private and confidential. We will only disclose information that we have about you:

(1) to the extent specifically required by law; or

(2) for the purposes of this agreement (including disclosing information in connection with any query or claim).

b) Your rights:

i) You may terminate your Tower Advantage™ membership direct debit arrangement after the initial twelve month period at any time, by giving written notice directly to us 7 days prior to the next direct debit.

ii) Where you consider that a drawing has been initiated incorrectly you may take the matter up directly with the Tower Systems International (Aust.) Pty. Ltd. accounts department.

c) Your responsibilities:

i) It is your responsibility to ensure that sufficient funds are available in the nominated account to meet a drawing on its due date.

ii) It is your responsibility to ensure that you are authorised to give us permission to deduct your monthly payment from your nominated card.

iii) It is your responsibility to advise us if there are any changes to your nominated credit card.

iv) It is your responsibility to arrange with us a suitable alternate payment method if you wish to cancel the Tower Advantage™ membership direct debit.

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