1. ACCEPTANCE

• 1.1 Upon acceptance of this Agreement, the Client agrees to be bound by the terms and conditions of this Agreement.

2. DEFINITIONS

• 2.1 In this Agreement, unless a contrary intention appears, the definitions set out below will apply:
• 2.1.1 Account: means any accounts or instances created by or on behalf of the Client or Client Users within the MenuX Services.
• 2.1.2 Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
• 2.1.3 Agreement: means these terms and conditions together with any ordering documents such as a Statement of Work (“SOW”).
• 2.1.4 Applicable Data Protection Law: includes the Privacy Act 1988 (Cth).
• 2.1.5 AWS Services: means Amazon Web Services used to host MenuX Software as part of the MenuX Services; the Client acknowledges and accepts the AWS terms defined at https://aws.amazon.com/service-terms/.
• 2.1.6 MenuX: means MenuX Business A.B.N. 65478094323.
• 2.1.7 MenuX Group: means MenuX, together with all its Affiliates.
• 2.1.8 MenuX Services: means the MenuX Software delivered by MenuX to the Client in accordance with this Agreement and made available online by MenuX via the applicable Client login link, including, individually and collectively, the MenuX Software, updates, application programming interfaces and Documentation that the Client has purchased or deployed or to which the Client has subscribed that are provided under this Agreement, excluding however Third Party Services, including without limitation, AWS Services.
• 2.1.9 MenuX Software: means object or otherwise executable code of all and any MenuX Group’s software products, including subsequent software releases, evaluation versions, beta versions, and associated Documentation in addition to the dedicated, secure datacentre infrastructure that will be deployed and managed by MenuX to host the Client’s MenuX software instance for the Client’s use.
• 2.1.10 MenuX’s Website: means https://menux.com.au/.
• 2.1.11 Client User: means any individual (including those of the Client’s Affiliates) using the MenuX Services through the Client’s Account as an agent and/or administrator as identified through a unique login.
• 2.1.12 Confidential Information: means all information disclosed by the Client to MenuX or by MenuX to the Client which is in tangible form and labelled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to MenuX’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information.
  • (a) was already known to the receiving Party at the time of disclosure by the Disclosing Party;
  • (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information;
  • (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or
  • (d) was or is independently developed by the receiving Party without the use of the Disclosing Party’s Confidential Information.
• 2.1.13 Currency: means Australian Dollars.
• 2.1.14 Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the MenuX Services or describing Pricing Plans, as applicable, provided or made available by MenuX to the Client via any channel including the MenuX support portal including all user manuals, training materials, support information, technical documentation, white papers, release notes, system requirements and guidelines.
• 2.1.15 Fees: means the fees published from time to time on MenuX’s Website.
• 2.1.16 Intellectual Property Rights: means all present and future rights conferred by statute, common law and equity, in relation to copyright, trademarks, designs, patents, circuit layouts, business product and domain names, inventions and confidential information and other results in the industrial, commercial, scientific, literary or artistic fields whether or not capable of being registered or patentable.
• 2.1.17 Jurisdiction: means Australia.
• 2.1.18 Malicious Software: means malicious software including viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
• 2.1.19 Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity, or otherwise as defined by the Applicable Data Protection Law.
• 2.1.20 Pricing: means the pricing available from time to time on MenuX’s Website.
• 2.1.21 Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
• 2.1.22 Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by the Client and Client Users in connection with the Client’s use of such Service, which may include, without limitation, Personal Data (but shall not include the Personal Data of the Client’s Client Users in the context of Account Information as described in the Privacy Policy).
• 2.1.23 Support and Maintenance: means support and maintenance for the MenuX Software and the associated AWS Services; MenuX will:
  • (a) acknowledge all messages sent to MenuX’s service management team at [email protected] within two hours; and
  • (b) endeavour to resolve all support and maintenance queries as quickly as reasonably practicable.
• 2.1.24 Term: means the term determined in accordance with clause 13.
• 2.1.25 Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases, key management services and information which a MenuX Service links to, or which the Client may connect to or enable in conjunction with a MenuX Service, including, without limitation, Third Party Services which may be integrated directly into the Client’s Account by the Client or at the Client’s direction; third party services include AWS Services.

3. INTERPRETATION

• 3.1 The following rules apply to the interpretation of this Agreement unless the context requires otherwise:
• 3.1.1 Headings are for convenience only and do not affect interpretation;
• 3.1.2 The singular includes the plural and vice versa;
• 3.1.3 If a word or phrase is defined, its other grammatical forms have a corresponding meaning;
• 3.1.4 A reference to a party to this Agreement includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal representatives);
• 3.1.5 A reference to legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
• 3.1.6 A reference to an amount is in the Currency, unless otherwise indicated in this Agreement; and
• 3.1.7 If a party consists of more than one person or entity, the parties shall be jointly and severally liable for the obligations imposed by this Agreement.

4. BILLING AND PAYMENTS

• 4.1 Fees for the MenuX Services are payable in accordance with the payment terms set out from time to time on the MenuX Website and within these terms.
• 4.2 MenuX will charge the Client a 1% fee per transaction processed through MenuX’s Services. This fee will be automatically calculated and added to the transaction amount, and is payable by the Client in addition to any other fees set out in the Pricing Plan.
• 4.3 Unless otherwise stated, MenuX’s charges do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial, or foreign jurisdiction (collectively “Taxes”). The Client is responsible for paying Taxes except those assessable against the MenuX Group measured by its net income. MenuX will invoice the Client for such Taxes if MenuX believes MenuX has a legal obligation to do so and the Client agrees to pay such Taxes if so invoiced.
• 4.4 Payments by Client’s customers:
  • 4.4.1 MenuX uses a third-party payment platform (which at the date of this agreement is Stripe: https://www.stripe.com) (“the Payment Provider”) to process credit and debit card transactions;
  • 4.4.2 The Client acknowledges and agrees that by using the MenuX Services, all payments will be processed by MenuX’s Payment Provider;
  • 4.4.3 The Client shall be responsible for paying any processing fees chargeable by the Payment Provider (which at the date of this Agreement can be found on Stripe’s website https://www.stripe.com);
  • 4.4.4 The Client agrees that they shall not utilise their own third-party payment platform to process transactions with respect to the MenuX Services;
  • 4.4.5 MenuX is not liable for loss or damage from errant or invalid transactions processed using MenuX’s Payment Provider; this includes transactions that were not processed due to a network communication error, or any other reason;
  • 4.4.6 If the Client processes a transaction, it is the Client’s responsibility to verify that the transaction was successfully processed;
  • 4.4.7 The Client must not process stolen credit cards, or unauthorized credit cards through MenuX’s Payment Provider; and
  • 4.4.8 In the event a customer of the Client or a Client User disputes a payment made via MenuX’s Payment Provider, the Client shall provide all and any assistance to MenuX to resolve such dispute and the Client shall be liable for all and any fees payable to MenuX’s Payment Provider in relation to any such dispute and the Client shall indemnify and hold harmless all and any costs incurred by MenuX in relation to such dispute.

5. SUSPENSION OF SERVICE

• 5.1 MenuX reserves the right, in MenuX’s reasonable discretion, to temporarily suspend the Client’s access to and use of a Service by the Client and Client Users if:
  • 5.1.1 The Client fails to pay Fees when due and such Fees remain outstanding for a period of 14 days after the due date; or
  • 5.1.2 MenuX suspects or detects any Malicious Software connected to the Client’s Account or use of the MenuX Service by the Client or Client Users.

6. SERVICE LEVEL AGREEMENT

• 6.1 MenuX shall provide the MenuX Services levels set out in MenuX’s Service Level Agreement.

7. CLIENT OBLIGATIONS

• 7.1 In order to access the MenuX Services, the Client must ensure it meets system requirements as advised by MenuX from time to time.
• 7.2 A high-speed internet connection is required for proper transmission of the MenuX Services. The Client is responsible for procuring and maintaining the network connections that connect the Client’s network to the MenuX Services, including, but not limited to, “browser” software that supports protocols used by MenuX, including the Transport Layer Security (TLS) protocol or other protocols accepted by MenuX, and to follow procedures for accessing services that support such protocols. MenuX is not responsible for notifying the Client or Client Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by MenuX. MenuX assumes no responsibility for the reliability or performance of any connections as described in this clause.
• 7.3 In the Client’s use of the MenuX Services the Client agrees not to:
  • 7.3.1 License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the MenuX Services available to any third party, other than Client Users in furtherance of the Client’s internal business purposes as expressly permitted by this Agreement;
  • 7.3.2 Use the MenuX Services to Process data on behalf of any third party other than Client Users;
  • 7.3.3 Modify, adapt, or hack the MenuX Services or otherwise attempt to gain unauthorised access to the MenuX Services or related systems or networks;
  • 7.3.4 Falsely imply any sponsorship or association with MenuX or the MenuX Group;
  • 7.3.5 Use the MenuX Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights;
  • 7.3.6 Use the MenuX Services to send unsolicited or unauthorised bulk mail, junk mail, spam, other forms of duplicative or unsolicited messages, or messages that directly or indirectly support pyramid schemes or other fraudulent activities;
  • 7.3.7 Use the MenuX Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s Intellectual Property Rights;
  • 7.3.8 Use the MenuX Services in any manner that interferes with or disrupts the integrity or performance of the MenuX Services and its components;
  • 7.3.9 Attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any MenuX Software making up the MenuX Services;
  • 7.3.10 Use the MenuX Services to knowingly post, transmit, upload, link to, send or store any content that is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory;
  • 7.3.11 Use the MenuX Services to knowingly post, transmit, upload, link to, send or store any Malicious Software;
  • 7.3.12 Use or launch any automated system that accesses a service (i.e., bot) in a manner that sends more request messages to a MenuX Services server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
  • 7.3.13 Allow Client Users to share access credentials with any person; or
  • 7.3.14 Attempt to use, or use the MenuX Services in violation of this Agreement.
• 7.4 As between the Client and MenuX, the Client is responsible for compliance with the provisions of this Agreement by Client Users and for any and all activities that occur under the Client’s Account. Without limiting the foregoing, the Client is solely responsible for ensuring that the use of the MenuX Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any Applicable Data Protection Laws, privacy policies, agreements or other obligations the Client may maintain or enter into with Client Users. The Client also maintains all responsibility for determining whether the MenuX Services or the information generated within the MenuX Services is accurate or sufficient for the Client’s purposes. Subject to any limitation on the number of individual Client Users available under the applicable Pricing Plan(s) to which the Client subscribed, access to and use of the MenuX Services is restricted to the specified number of individual Client Users permitted under the Client’s subscription to the MenuX Services.
• 7.5 The Client agrees and acknowledges that each Client User will be identified by a unique username and password (“Login”) and that a Client User Login may only be used by one (1) individual. Traditional or full-time Client User subscriptions are for designated individuals only and a Login cannot be shared or used by more than one individual but may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the MenuX Services.
• 7.6 The Client and Client Users are responsible for maintaining the confidentiality of all Login information for the Client’s Account. The Client agrees and acknowledges that the Client may not use the MenuX Services, including but not limited to application programming interfaces, to circumvent the requirement for an individual Client User Login for each individual who uses the MenuX Services; Processes data; or absent a license from MenuX or otherwise, Processes data related to interactions originating from a Third Party Service that provides functionality similar to functionality provided by the MenuX Services and which would, pursuant to this Agreement, require an individual Client User Login if utilising the MenuX Services for such interaction.
• 7.7 MenuX reserves the right to periodically verify that the Client’s use of the MenuX Services complies with the Agreement including, without limitation, by accessing the Client’s Account. Should MenuX discover that the Client’s use of a MenuX Service is not in compliance with this Agreement, MenuX reserves the right to charge the Client, and the Client agrees to pay for, said usage in addition to other remedies available to MenuX.
• 7.8 The Client acknowledges that MenuX may modify the features and functionality of the MenuX Services during the Term.
• 7.9 The Client may not access the MenuX Services if the Client is a direct competitor of the MenuX Group, except with MenuX’s prior written consent. The Client may not access the MenuX Services for competitive purposes.

8. BETA VERSION OF THE MENUX SOFTWARE

• 8.1 From time to time, MenuX may make a beta of the MenuX Software available to the Client at no charge in order to give the Client a preview of upcoming releases and an opportunity to provide feedback to MenuX. The Client may choose to try such beta versions in the Client’s sole discretion. Beta versions are intended for evaluation purposes and not for production use and are not supported. Beta versions are not considered “Services” under this Agreement; however, all restrictions, MenuX’s reservation of rights and the Client’s obligations concerning the MenuX Services, and use of any Third Party Services shall apply equally to the Client’s use of beta versions. Unless otherwise stated, any beta version trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta version becomes generally available without the applicable beta versions designation. MenuX may discontinue beta versions at any time at MenuX’s sole discretion and may never make them generally available. MenuX will have no liability for any harm or damage arising out of or in connection with a beta version. MenuX makes no warranties with respect to the beta versions and the Client must not use the beta versions for live cases.

9. CONFIDENTIALITY AND PRIVACY

• 9.1 Each Party will protect each other’s Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information.
• 9.2 Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information:
  • 9.2.1 Solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information;
  • 9.2.2 As necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or
  • 9.2.3 As reasonably necessary to comply with any applicable law or regulation.
• 9.3 As between the Parties, all Service Data Processed under the terms of this Agreement shall remain the property of the Client. Except for where MenuX collects:
  • 9.3.1 The contact information of Client Users, which may include Personal Data, in the ordinary course of MenuX providing the MenuX Services to the Client; and
  • 9.3.2 Personal Data about visitors to MenuX’s Site, under no circumstances will MenuX act, or be deemed to act as a “controller” (or equivalent concept) of data processed within the MenuX Services under Applicable Data Protection Law.
• 9.4 The Client agrees that the Client is responsible for notifying Client Users that Personal Data collected, stored, used and/or processed by the MenuX Group, as described in this Agreement, is collected, stored, used and/or processed in compliance with the Applicable Data Protection Laws.
• 9.5 The Client agrees that the MenuX Group and Third Party Service providers that are utilised by the MenuX Group to assist in providing the MenuX Services to the Client shall have the right to access the Client’s Account and to use, modify, reproduce, distribute, display and disclose Service Data and the Personal Data of the Client’s Client Users to the extent necessary to provide or improve the MenuX Services, including, without limitation, in response to the Client’s support requests. Any Third Party Service providers utilised by the MenuX Group will only be given access to the Client’s Account and Service Data as is reasonably necessary to provide the MenuX Services and will be subject to confidentiality obligations which are commercially reasonable. Each party (notifying party) agrees to promptly notify the other party once the notifying party becomes aware of a breach affecting the other party’s Confidential Information.
• 9.6 MenuX receives and stores any information that the Client knowingly provides to MenuX. For example, through the registration process for MenuX’s Services and/or through the Client’s Account settings, MenuX may collect Personal Data such as the Client’s name, email address, phone number and third-party account credentials. In addition, MenuX may communicate with the Client and Client Users.
• 9.7 The Client warrants they will obtain their customer’s consent for their Personal Data to be collected and stored within the MenuX Services and will make available to their customers a copy of MenuX’s Privacy Policy.

10. INTELLECTUAL PROPERTY RIGHTS

• 10.1 Each Party shall retain all rights, title and interest in and to all its respective trademarks, patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).
• 10.2 MenuX owns the Intellectual Property Rights in the MenuX Software.
• 10.3 MenuX grants to the Client a non-exclusive, non-transferable subscription licence to use the MenuX Software during the Term in accordance with this Agreement.
• 10.4 The rights granted to the Client and Client Users to use the MenuX Services under this Agreement do not convey any additional rights in the MenuX Services or in any Intellectual Property Rights associated with the MenuX Services of the Intellectual Property Rights.
• 10.5 Subject only to limited rights to access and use the MenuX Services as expressly stated in this Agreement, all rights, title and interest in and to the MenuX Services and all hardware, MenuX Software and other components of or used to provide the MenuX Services, including all related Intellectual Property Rights, will remain with the MenuX Group and belong exclusively to the MenuX Group.
• 10.6 The Client shall not attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the MenuX Software.
• 10.7 The MenuX Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the MenuX Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback MenuX receive from the Client, Client Users or other third parties acting on the Client’s behalf.
• 10.8 MenuX names and logos used or displayed in or on the MenuX Services are registered or unregistered trademarks of MenuX (collectively, “Marks”), and the Client may use applicable Marks provided the Client does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent MenuX, MenuX’s services or products.

11. THIRD PARTY SERVICES

• 11.1 The Client may not enable, access or use Third Party Services without MenuX’s express written consent. If the Client decides to enable, access to or use of Third Party Services without MenuX’s express written consent, be advised that the Client’s access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and MenuX does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between the Client and the provider of such Third Party Services.
• 11.2 MenuX cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling the Client to any refund, credit, or compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to MenuX. The Client irrevocably waives any claim against MenuX with respect to such Third Party Services.
• 11.3 MenuX is not liable for any damage or loss caused or alleged to be caused by or in connection with the Client’s enablement, access or use of any such Third Party Services, including any key management services (and where any data is lost due to loss of encryption keys or where encryption keys are not effective to decrypt data), or the Client’s reliance on the privacy practices, data security processes or other policies of such Third Party Services. The Client may be required to register for or log into such Third Party Services on their respective websites.
• 11.4 By enabling any Third Party Services, the Client is expressly permitting MenuX to disclose the Client’s Login, as well as Service Data as necessary to facilitate the use or enablement of such Third Party Services.

12. TERM AND TERMINATION

• 12.1 The term of this Agreement commences when the Client accepts these Terms upon creating a MenuX business account and continues until terminated in accordance with this Agreement.
• 12.2 The Client may terminate this Agreement by discontinuing the use of MenuX Services and notifying the MenuX team at [email protected], in which case any Fees accrued up to the date of termination shall remain payable.
• 12.3 Either party may terminate for convenience at any time during the Term by providing one (1) month’s notice in writing to the other party.
• 12.4 Either party may terminate this Agreement for cause:
  • 12.4.1 Upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of fourteen (14) days from the date of the breaching Party’s receipt of such notice;
  • 12.4.2 Either party ceases its business; or
  • 12.4.3 If the other Party becomes the subject of an insolvency event, receivership, liquidation or assignment for the benefit of creditors.
• 12.5 If this Agreement is terminated by the Client in accordance with this clause, MenuX will, to the extent permitted by applicable law, refund the Client any prepaid fees covering the remainder of the Term following termination. If this Agreement is terminated by MenuX in accordance with this clause, the Client will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve the Client of the Client’s obligation to pay any fees payable to MenuX for the period prior to termination.
• 12.6 Hardware Ownership and Return: Any hardware, equipment, or devices provided by MenuX to the Client in connection with the MenuX Services (“Hardware”) remain the sole property of MenuX. Upon termination of this Agreement or discontinuation of the MenuX Services by the Client, the Client must promptly return all Hardware to MenuX in good working condition, reasonable wear and tear excepted. The Client is responsible for any loss or damage to the Hardware while in their possession.

13. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

• 13.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
• 13.2 MenuX warrants that during an applicable Term the MenuX Services will perform materially in accordance with the applicable Documentation.
• 13.3 Except as specifically set out in clause 13.2, the MenuX Services, including all server and network components, are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and MenuX expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. The Client acknowledges that MenuX does not warrant that the MenuX Services will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by the Client from MenuX or through the MenuX Services shall create any warranty not expressly stated in this Agreement.

14. LIMITATION OF LIABILITY

• 14.1 Under no circumstances, whether in contract, tort, negligence or otherwise, will:
  • 14.1.1 MenuX or the MenuX Group be liable to the Client or any the Client Affiliate for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by the Client or any the Client Affiliate in connection with this Agreement regardless of whether MenuX has been advised of the possibility of or could have foreseen such damages; or
  • 14.1.2 The Client or any Client Affiliate be liable to MenuX or the MenuX Group for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by MenuX or the MenuX Group in connection with this Agreement regardless of whether the Client has been advised of the possibility of or could have foreseen such damages.
• 14.2 Notwithstanding anything to the contrary in this Agreement, the MenuX Group’s aggregate liability to the Client, any Affiliate, or any third party arising out of this Agreement, the MenuX Services, shall in no event exceed the Fees paid by the Client during the twelve (12) months prior to the first event or occurrence giving rise to such liability. The Client acknowledges and agrees that the essential purpose of this clause 14 is to allocate the risks under this Agreement between the parties and limit potential liability given the Fees, which would have been substantially higher if MenuX were to assume any further liability other than as set forth in this Agreement. MenuX has relied on these limitations in determining whether to provide the Client with the rights to access and use the MenuX Services provided for in this Agreement. The limitation of liability provided for in this Agreement will apply in aggregate to the Client and its Affiliates and shall not be cumulative.
• 14.3 Any claims or damages that the Client may have against MenuX shall only be enforceable against MenuX and not any other entity or its officers, directors, representatives or agents.

15. CONFIDENTIALITY

• 15.1 Each Party agrees to keep confidential any Confidential Information disclosed to it by the other Party and to use such information only for the purposes of performing obligations under this Agreement.
• 15.2 Each Party shall protect the Confidential Information with at least the same level of care as it uses to protect its own confidential information, but no less than a reasonable standard of care.
• 15.3 The obligations in this clause 15 do not apply to information which:
  • 15.3.1 Is or becomes publicly available without breach of this Agreement;
  • 15.3.2 Is received from a third party without breach of any obligation of confidentiality; or
  • 15.3.3 Is independently developed without use of the other Party’s Confidential Information.
• 15.4 The Parties agree that any breach of this clause 15 may cause irreparable harm for which monetary damages may not be adequate. The non-breaching Party is entitled to seek injunctive relief, in addition to any other remedies available at law or in equity.

16. DATA PROTECTION AND PRIVACY

• 16.1 The Client acknowledges that it is responsible for complying with all applicable privacy and data protection laws in relation to its use of the MenuX Services.
• 16.2 MenuX will collect, store, and process Service Data in accordance with its Privacy Policy, available at https://menux.com.au/.
• 16.3 The Client consents to MenuX transferring and storing Service Data outside Australia where necessary for the provision of the MenuX Services.
• 16.4 Each Party shall implement reasonable technical and organizational measures to protect the other Party’s Personal Data against unauthorized or unlawful processing and accidental loss, destruction, or damage.

17. INTELLECTUAL PROPERTY RIGHTS

• 17.1 MenuX owns all rights, title, and interest, including intellectual property rights, in and to the MenuX Services, Documentation, and any materials provided under this Agreement.
• 17.2 The Client is granted a limited, non-exclusive, non-transferable, revocable license to use the MenuX Services solely for its internal business purposes in accordance with this Agreement.
• 17.3 Nothing in this Agreement grants the Client any rights to MenuX’s trademarks, logos, or service marks.

18. INDEMNITY

• 18.1 The Client agrees to indemnify, defend, and hold harmless MenuX, its officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, or expenses, including legal fees, arising out of or in connection with:
  • 18.1.1 The Client’s use of the MenuX Services in violation of this Agreement;
  • 18.1.2 Any data submitted or transmitted by the Client through the MenuX Services; or
  • 18.1.3 The Client’s breach of any applicable laws or regulations.

19. FORCE MAJEURE

• 19.1 Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused by events beyond its reasonable control, including acts of God, natural disasters, pandemics, government actions, labor disputes, or internet or telecommunications failures.
• 19.2 The affected Party shall promptly notify the other Party of the nature and expected duration of the force majeure event.

20. ASSIGNMENT AND SUBCONTRACTING

• 20.1 The Client may not assign, transfer, or delegate its rights or obligations under this Agreement without MenuX’s prior written consent.
• 20.2 MenuX may assign or subcontract any of its rights or obligations under this Agreement to any third party, provided that MenuX remains liable for the performance of its obligations.

21. NOTICES

• 21.1 Any notices under this Agreement must be in writing and may be delivered by hand, email, or registered post.
• 21.2 Notices to MenuX should be sent to: Email: [email protected]

22. GOVERNING LAW AND JURISDICTION

• 22.1 This Agreement is governed by and construed in accordance with the laws of the State of New South Wales, Australia.
• 22.2 Each Party submits to the exclusive jurisdiction of the courts of New South Wales, Australia for any disputes arising out of or in connection with this Agreement.

23. GENERAL PROVISIONS

• 23.1 Entire Agreement: This Agreement constitutes the entire agreement between the Parties relating to the subject matter and supersedes all prior agreements, understandings, or representations.
• 23.2 Amendments: Any amendments must be in writing and signed by both Parties.
• 23.3 Waiver: No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of that right.
• 23.4 Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
• 23.5 Relationship: Nothing in this Agreement creates a partnership, joint venture, or agency relationship between the Parties.