Terms

Kounta

Terms and Conditions

 

1. Introduction

  1. These T&Cs constitute an agreement between you and Kounta.
  2. These T&Cs govern use of and access to the Platform by you or an End User as part of a Subscription Plan to the Platform, a free Account, a free trial of the Platform or free access to the Website.
  3. By holding an Account or accessing the Platform you agree to be bound by the following T&Cs by which Kounta will provide you with rights to use the Platform.
  4. Kounta reserves the right to periodically update and change these T&Cs with notice. You can review the most current version of the T&Cs at www.kounta.com/terms.
  5. By using the Platform, you agree that you have read and understand these T&Cs and you agree to be bound by them. If you do not agree to these T&Cs, please do not use the Platform.

2. Definitions

  1. The following terms have the following meanings:
    • Account means all Kounta accounts or accounts created by you, on your behalf or by an End User within the Platform.API means the application programming interfaces developed and enabled by Kounta that permits Users to access certain functionality provided by the Platform, including the Kounta REST API that enables the interaction with a Kounta instance automatically through HTTP requests and the Kounta application development
    • API that enables the integration of a Kounta instance with other web applications.
    • Application means any of Kounta’s mobile, tablet or smart device applications and application program interfaces.
    • Brand means Kounta’s name, product and service names, logos and registered and unregistered trademarks.
    • Confidential Information means all systems, knowledge, ideas, know-how, programming code, concepts, trade secrets, processes, client lists, techniques, hardware, software, products, intellectual property, financial and business information and all other commercially valuable information of the Disclosing Party. Confidential Information excludes information which is:
      1. available to the public at the date of its disclosure to the Receiving Party;
      2. at the date of its disclosure to the Receiving Party, already properly in the possession of the Receiving Party in written form otherwise than by prior confidential disclosure from the Disclosing Party;
      3. after the date of its disclosure to the Receiving Party, available to the public from sources other than the Receiving Party;
      4. required to be disclosed by law.
    • Content means anything that is uploaded, posted or otherwise transmitted through the Platform.
    • Disclosing Party means a party to these T&Cs which discloses information to the other party.
    • Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Platform provided or made available by Kounta to you and End Users.
    • End User means an individual authorised to use the Platform through your Account as an administrator, staff member or service provider as identified through a unique login.
    • Form means any Kounta generated service order form executed or approved by you with respect to your Subscription Plan to the Platform.
    • Intellectual Property means all intellectual property rights (including, without limitation, all registered and unregistered designs, copyright, moral rights, trademarks and patents) in the Brand and any technology, software, programming code, source code, data, Applications, programs, inventions, documents, trade secrets, works, subject matter, lists, User details and information (including, but not limited to, User emails, telephone numbers and addresses) belonging to Kounta.
    • Kounta means Kounta Pty Ltd (ABN 38 160 947 384), Kounta Inc. or any of its successors or assignees.
    • Kounta Group means Kounta together with all other entities that control, are controlled by or under common control of Kounta.
    • Platform means the use of any or all of the Website, Application or Service, as applicable.
    • Receiving Party means a party to these T&Cs which receives information from theother party.
    • Service means the Point of Sale platform, tools and services offered on the Kounta Websites including the Software, the API and any Documentation as well as any modification, update or enhancement.
    • Subscription Charges means any charges associated with your access to and use of the Platform.
    • Subscription Plan means any plan offered by Kounta that you have subscribed to in respect of the Platform.
    • Subscription Term means the period during which you have agreed to subscribe to the Platform.
    • T&Cs means these Terms and Conditions.
    • Third Party or Third-Party means an entity other than you, Kounta, Kounta Inc. or any of its successors or assignees.
    • Website means www.kounta.com and other websites through which Kounta makes its services available to you.
    • User means any person or any other party who accesses or uses the Platform.
    • You or Your means the user of the Platform.
    • Your Data means all electronic data, text, messages or other materials submitted to the Platform by you, End Users in connection with your use of the Platform.

3. Use of Platform

  1. Subject to your compliance with these T&Cs and your Subscription Plan, Kounta grants you a non-exclusive, non-transferable licence to use the Platform in accordance with these T&Cs and your Subscription Plan. Your Subscription Plan will set out what rights you have to access and use the Platform.
  2. Access to and use of the Platform is restricted to the number of End Users permitted under your Subscription Plan. Each End User will be identified by a unique username and password (“Login”) and that Login may only be used by one (1) End User. You must not share a Login among multiple individuals or End Users. You and your End Users are responsible for maintaining the confidentiality of all Login information for your Account.
  3. The Website or the Platform may contain links to other websites and contains Content added by Third Parties. Kounta does not endorse, sponsor or approve any Third-Party Content available on any linked website. Kounta is not liable for any Third-Party Content transmitted or posted on the Platform or otherwise transmitted to any User including your reliance on such Content.
  4. A high speed internet connection is required for proper transmission of the Platform. You are responsible for procuring and maintaining the network connections that enable you to use the Platform, including browser software that supports the Platform and a secure socket layer (SSL) security protocol or other security protocols. Kounta is not responsible for the reliability or performance of any internet connection or software which is not operated or controlled by Kounta.
  5. Kounta retains complete editorial control over any Content on the Platform and may alter, amend or remove any Content on the Platform at any time.
  6. The Platform may not operate on a continuous basis and may be periodically unavailable (including for maintenance purposes).
  7. Kounta may, in Kounta’s reasonable discretion, temporarily suspend your access to and use of the Platform:
    1. during planned downtime for upgrades and maintenance to the Platform. Kounta will endeavour to:
      1. schedule planned downtime for weekends (pacific time zone) and other off-peak hours; and
      2. notify you in advance both through Kounta’s status page and emailing the email address connected to your Account;
    2. during any period where the Platform is impacted by circumstances beyond Kounta’s reasonable control, including acts of god, government and terror or civil unrest, technical failures beyond Kounta’s reasonable control, inability to access the internet, acts undertaken by Third Parties and distributed denial of service attacks; and
    3. if Kounta suspects or detects any malicious software connected to your Account or your use of the Platform.

4. Your Conduct

  1. By accepting these T&Cs, you agree that you:
    1. have capacity to accept these T&Cs;
    2. will maintain the security and confidentiality of your Account, login details, password and identification;
    3. use the Platform in accordance with all laws of your jurisdiction, Australia and New South Wales;
    4. understand and accept all risks associated with the installation, use and maintenance of the Platform;
    5. are solely responsible for compliance with the provisions of these T&Cs by End Users and for any and all activities that occur under your Account;
    6. are solely responsible for all Your Data and for ensuring that your use of the Platform to store and transmit Your Data is compliant with all applicable laws and regulations; and
    7. will maintain and promptly update your Account information and ensure that information provided is accurate, current and complete.
  2. You agree not to:
    1. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any Third Party other than authorised End Users for your internal business purposes;
    2. use the Platform to process data on behalf of any Third Party other than End Users;
    3. modify, adapt or hack the Platform or attempt to gain unauthorised access to the Platform or related systems or networks;
    4. falsely imply any sponsorship or association with Kounta;
    5. use the Platform to send unsolicited or unauthorised junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
    6. use the Platform to store or transmit any Content or data that infringes on any person’s intellectual property rights;
    7. use the Platform in any manner that interferes with or disrupts the integrity or performance of the Platform and its components;
    8. attempt to reverse engineer or otherwise discover the source code or programming code of any software making up the Platform;
    9. post, transmit, upload, link to, send or store any Content or data on or to the Platform that:
      1. contains any viruses, malware, trojan horses, time bombs or any other similar harmful software;
      2. exploits another person in any manner;
      3. includes unauthorised disclosure of personal information;
      4. advertises services for any reason which is not aligned to the purposes for which thePlatform is intended; and
      5. violates or infringes anyone's intellectual property rights;
    10. use the Platform to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 (US).

5. Confidentiality

  1. The Receiving Party agrees to keep confidential the Disclosing Party’s Confidential Information and to only use and disclose such Confidential Information for the purposes authorised by the Disclosing Party.
  2. Kounta will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using ssl or similar technologies). Kounta’s compliance with this clause will satisfy its obligations to protect your Confidential Information as set out in clause 5a.
  3. Kounta collects information about you as well as your devices, computers and use of the Platform. Kounta uses, discloses and protects this information as described in its Privacy Policy which can be viewed at www.kounta.com/terms/privacy. The Privacy Policy is incorporated into these T&Cs.
  4. You agree that:
    1. Kounta may store information relating to your Account;
    2. Kounta and the service providers Kounta uses to assist in providing the Platform will have the right to access your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Platform;
    3. Any Third-Party service providers Kounta utilises will only be given access to your Account and Your data as is reasonably necessary to provide the Platform and will be subject to confidentiality obligations; and
    4. Kounta may also access or disclose information about you, your Account, End Users and Your Data to:
      1. comply with the law, police investigation or request from a government authority;
      2. protect Kounta’s rights or the rights or property of its customers or partners; and
      3. protect personal safety or avoid violation of any applicable laws or regulations.

6. Intellectual Property

  1. Nothing in these T&Cs, the Subscription Plan and Form constitutes a transfer of any Intellectual Property rights. All Intellectual Property rights belong exclusively to Kounta.
  2. You must obtain express written permission from Kounta if you wish to reproduce any part of the Platform or Kounta’s Intellectual Property.
  3. By using the Platform, posting or adding any Content onto the Platform, you grant Kounta a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Platform, reproduce, change and communicate to the public any Content, recommendations or other feedback we receive from you.
  4. You represent and warrant to Kounta that you have all necessary rights to grant the licences set out in clause 6c.
  5. Kounta grants you a non-exclusive and non-transferable licence to use Kounta’s Brand solely to identify you as a subscriber of the Platform. You must not, or attempt  to:
    1. claim any rights in the Brand;
    2. degrade the distinctiveness of the Brand; or
    3. disparage, misrepresent or bring into disrepute the Brand or Kounta’s services or products.

7. Third-Party Services

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

8. Payment

  1. Subject to section 8b and any Form or Subscription Plan referencing these T&Cs stating otherwise, all Subscription Charges are due in full upon commencement of your Subscription Term. If you:
    1. fail to pay your Subscription Charges or any charges for other services indicated on any Form or Subscription Plan referencing these T&Cs within seven (7) business days of the charges becoming due and payable; or
    2. do not update your payment information in your Account as necessary in order to allow the Subscription Charges to be deducted from any debit card or credit card,

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

  2. If you upgrade your Subscription Plan during your Subscription Term (a “Subscription Upgrade”), any additional Subscription Charges associated with such Subscription Upgrade will be:
    1. prorated over the remaining period of your Subscription Term;
    2. charged to your Account;
    3. due and payable upon implementation of such Subscription Upgrade; and
    4. added to any future Subscription Term to reflect the Subscription Upgrade.
  3. No refunds or credits for Subscription Charges or other fees or payments will be provided to you if you downgrade your Subscription Plan. Downgrading your Subscription Plan may cause loss of Content, features or capacity of the Platform and Kounta does not accept any liability for such loss.
  4. Unless otherwise stated, all charges are exclusive of any taxes (other than GST in Australia), levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You must pay any Taxes payable in respect of the provision of the Platform except those assessable against Kounta.
  5. If you nominate to pay your Subscription Charges and any additional charges by debit or credit card, you hereby authorise Kounta to deduct the Subscription Charges and any additional charges from your debit or credit card in advance on a periodic basis in accordance with the terms of your Subscription Plan and any Form. Kounta uses a Third-Party intermediary to manage debit and credit card processing and this intermediary is not permitted to store, retain or use your billing information except to process your debit or credit card information for Kounta.
  6. Subscription Plans are subject to change by Kounta giving 30 days’ notice. Kounta will not be liable to you, End Users, any other Users or any Third Party for any modification to the Subscription Plans.

9. Cancellation and Termination

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

10. Disclaimer of Warranties

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

11. Limitation of Liability

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

12. Indemnities

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

13. US Federal Government

  1. If you are a U.S. Federal government department or agency or contracting on behalf of such department or agency, this Platform is a “commercial item” as that term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 c.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Platform is licensed to you with only those rights as provided under these T&Cs.
  2. The Platform and other software or components of the Platform which Kounta provides or makes available to you may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to your access to and use of the Platform, software and such other components. You must not access or use the Platform if you are located in any jurisdiction in which the provision of the Platform, software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the service to any government, entity or individual located in any Prohibited Jurisdiction.

14. General

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

These T&Cs are current and effective as and from 1 Dec 2018