TERMS AND CONDITIONS

1. Terms and Conditions of Use

1.1 Welcome to numos.io (Website). The Website allows you to access and use the Services (as that term is defined below). The Website is operated by Numos Technologies Pty Ltd (ACN 645 583 179) (Company) which operates the business of ‘Numos Technologies’.

1.2 The Website allows for access and use of the Services provided by the Company subject at all times to these terms and conditions (Terms).

1.3 You may contact us via email at [email protected] for further information the Terms.

2. Acceptance of the Terms

2.1. By expressly agreeing to these terms digitally on the Website or, should this not be an option made available to you, on use of the Website and/or the Services you (as the user of the Services and/or the Website referred to throughout these Terms as you or the User) acknowledge that you have understood and agree to be bound by these Terms. If you do not agree with the Terms, you must cease usage of the Website and any of Services, immediately, continued use of the Services and the Website is deemed continued acceptance of these Terms.

2.2. The Company reserves the right to review and change any of the Terms by updating this page at its sole discretion and upon amending these Terms the Company will use reasonable endeavours to provide you with notice of updates to the Terms through digital means on the Website or otherwise. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for record keeping purposes.

3. Services

3.1. The Company provides the following services (Services) in various tier packages which may include and exclude some or all of the variables, which are offered by the Company from time to time in respect of any specific tier (Tiers):

(a) Numos Bookings, a Shopify app for managing bookings.

3.2. You acknowledge and agree that the Tiers offered, the inclusions and exclusions of Services in the Tiers and the pricing of the Tiers may change from time to time, and may be governed by separate terms which apply specific to the tier, as published on the Website or advised to you in writing from time to time. Where special Tier- specific terms apply to you, you will be informed, and must accept those terms in the manner designated by the Company before you are given access to the Services offered within that Tier. For the avoidance of doubt in the event of conflict between these Terms and any Tier-specific terms the Tier specific terms will prevail.

3.3. Some Tiers may be governed by a separate software licencing agreement (Software Licensing Agreement) with the Company, which may amend the terms of use. For the avoidance of doubt these Terms apply unless otherwise agreed or amended by the terms of an applicable Software Licensing Agreement.

4. Acceptable use of the Service

4.1. The User agrees that the Services and the Website must only be used lawfully and in accordance with these Terms, any Tier-specific terms and/or any Software Licence Agreement. The Company reserves the right to suspend, cancel, or otherwise deny access to Users who breach these Terms including but not limited to in the following manner:

(a) To engage in any act that would disrupt the access, availability, and security of the Company’s services, including but not limited to:

1. tampering with, reverse-engineering, or hacking the Company’s servers;

2. modifying, disabling, or compromising the performance the Services or the Website or other any other services provided by the Company;

3. overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources; or

4. compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted by the Company,

(b) For any illegal purpose, or to violate any laws, including and without limitation to data, privacy, and export control laws.

(c) To stalk, harass or threaten other users and any member of the public.

(d) To misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with the Company or any third party.

(e) To access or search any part of the Services, or any other services owned or operated by the Company other than our publicly supported interface, or otherwise allowed for in an applicable Software Licensing Agreement.

(f) To post, upload, share, or otherwise circulate content in violation of the Company’s content policy.

5. Security and Data Privacy

5.1. The Company takes your privacy seriously and information provided through your use of the Website and/or Services is at all times subject to the Company’s Privacy Policy, which is available on the Website or here. The Privacy Policy also addresses the Company’s processes, policies, and obligations in respect of any security breaches if such breaches should occur.

6. Data Use

6.1. The Company collects, stores, and processes the data provided by you or otherwise. The data is used to provide Services to you, as well as to facilitate the Company’s business operations. The Privacy Policy outlines how your data is collected, stored, and processed by the Company. The Privacy Policy also addresses the Company’s processes, policies, and obligations in respect of data encryption and removal requests.

7.1 Subscription to use the Service

7.1. In order to access the paid Services, you must first purchase a subscription in one of the offered paid Tiers through the Website in the manner designated by the Company, from time to time (Subscription) and pay the applicable fee for the selected Subscription as advised by the Company to you in writing on the Website or otherwise (Subscription Fee).

7.2. In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.

7.3. Following adherence to all procedures and receipt of all information required (in the Company’s sole and absolute discretion) by the Company, the User will be granted access to the Services in accordance with the specific Tier and Subscription of the said User.

7.4. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including but not limited to email address, pseudonym, and any other personal information deemed necessary by the Company in order to provide to you or continue to provide you Services and your continued use of the Website.

7.5. You warrant that any information you give to the Company is accurate, correct and up to date and should any information you give the Company no longer be correct, then you will immediately notify the Company of the updated information.

7.6. Subject to your continuing observation of your obligations under clause 7.4, you will be a registered user of the Website (Member). As a Member you will be granted immediate access to the Services from the time you have completed the registration process (including the payment of any applicable fees) until the subscription period expires (Subscription Period) as stipulated by the specific terms or agreement applicable to your Tier.

7.7. You may not use the Services and cannot accept the Terms if:

(a) you are not of legal age to form a binding contract with the Company; or

(b) you are a person barred from receiving the Services under the laws of Australia or any other country including the country in which you are resident or from which you use the Services.

8.1 Payments

8.1. Payments made by you in relation to this agreement are made using third-party providers and such third-party providers payment applications are not owned, operated, or otherwise controlled by the Company and you acknowledge and agree that the Company will not be liable for any losses or damage arising from the Company’s use of or the operations of third-party payment provider . Further you acknowledge and warrant that you have read, understood and are bound by the terms and conditions of the applicable third-party payment provider prior to making any payment through the third-party payment provider.

8.2. You acknowledge and agree that any amounts due to the Company which are not processed, whether such non-processing is the fault of the Company or any third-party payment provider, such unpaid amounts due will continue to be due and owing and that any such non-processing is not deemed a waiver of the Company’s rights in relation to the unpaid amounts.

8.3. Subject to clause 8.2, you acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the non-processing of the Subscription Fee.

8.4. You agree and acknowledge that the Company may vary the Subscription Fee at any time at the Company’s sole and absolute discretion and that the varied Subscription Fee will come into effect at the discretion of the Company subject to the Company providing you with written of such variation.

9. Refund Policy

9.1. The Company will only provide you with a refund of the Subscription Fee in the event the Company is unable to continue to provide the Services or if the Company makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances.

10. Copyright and Intellectual Property

10.1. The Website, the Services and all of the related products of the Company are subject to copyright (as that term is defined under the Copyright Act 1968 (Cth)) protected under the laws of Australia and international jurisdictions in accordance with any international treaties to which Australia is a signatory. All intellectual property rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) are owned or licenced by the Company from the owner of such rights, and are reserved by the Company or its contributors.

10.2. All trademarks, service marks and trade names are owned, registered and/or licensed by the Company, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a User to:

(a) use the Website pursuant to the Terms;

(b) use the Services pursuant to the Terms;

(c) copy and store the Website and the material contained in the Website in your device’s cache memory; and

(d) print pages from the Website for your own personal and non-commercial use.

10.3. The Company does not grant you any other rights whatsoever in relation to the Website or the Services and all other such rights are expressly reserved by the Company.

10.4. The Company retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:

(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright to you; or

(b) right to use or exploit a business name, trading name, domain name, trade mark or industrial design to you; or

(c) thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process) to you.

10.5. You may not, without the prior written permission of the Company and/or the permission of any other relevant rights owners, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely and legally available for use or are in the public domain as “open-source” software.

11. General Disclaimer

11.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

11.2. Subject to this clause 11 and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and

(b) The Company will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

11.3. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of the Company make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of the Company) referred to on the Website, includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);

(c) costs incurred as a result of you using the Website, the Services or any of the products of the Company;

(d) the Services or operation in respect to links which are provided for your convenience; and

(e) the Company is not responsible for any loss sustained by the User as a result of the failure of any third-party software or material used by the Company on the Website or in delivery of the Services.

12. Limitation of Liability

12.1. The Company’s total liability arising out of or in connection with the Services or the Website, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the Subscription Fee paid by you in relation to the Services.

12.2. You expressly understand and agree that the Company, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

13. Termination of Contract

13.1. The Terms will continue to apply until terminated by either you or by the Company as set out below.

13.2. You may terminate these Terms by:

(a) not renewing the Subscription prior to the end of the Subscription Period;

(b) providing the Company with 30 days notice of your intention to terminate; and

(c) closing your accounts for all of the services which you use, subject to the Company making this option available to you,

and any termination of the terms under this clause 13.2, will not entitle you to a refund for any part-period of the Subscription Period, whether monthly or yearly, but will mean the non-renewal of the Subscription. For the avoidance of doubt, you will have access to the Services until the end of the Subscription Period.

13.3. Any notices pursuant to Clause 13.2 above should be sent, in writing, to the Company at the contact details in the Terms.

13.4. The Company may at any time, terminate the Terms with you if:

(a) you do not renew the Subscription at the end of the Subscription Period;

(b) you have breached any provision of the Terms or intend to breach any provision;

(c) the Company is required to do so by law; or

(d) the provision of the Services to you by the Company is, in the opinion of the Company, no longer commercially viable.

13.5. Subject to local applicable laws, the Company reserves the right to discontinue or cancel your Subscription or Account at any time and may immediately suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts the Company’s name or reputation or violates the rights of those of a third party.

14. Indemnity

14.1. You indemnify the Company, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any content you upload to the Website or to any platform operated by the Company;

(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so or the use of Services; and/or

(c) any breach of the Terms.

15. Dispute Resolution

15.1. Compulsory:

If a dispute arises out of or relates to the Terms, neither party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

15.2. Notice:

A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

15.3. Resolution:

On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties) must:

(a) Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

(b) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Small Business Development Corporation (SDBC) or his or her nominee;

(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(d) The mediation will be held in Perth, Australia;

(e) If 5 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so;

(f) In the event that the parties have not resolved the dispute in accordance with the mediation provisions in this clause 15, then the parties are prohibited from instituting legal proceedings concerning the subject matter of the dispute and any controversy or claim arising out of, relating to or in connection with these Terms, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Perth, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

15.4. Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

15.5. Venue and Jurisdiction

In the event of any dispute arising out of or in relation to the Website or the Services, you agree that the exclusive venue for resolving any dispute shall be in the Courts of Western Australia.

15.6. Governing Law

The Terms are governed by the laws of Western Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Western Australia, Australia without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

15.7. Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

15.8. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Last Updated: 23 November 2023