Welcome to Mr Yum, the interactive mobile menu that provides customers with a way to order food, beverage and merchandise products from restaurants and venues (Platform).
The Platform is owned by Mr Yum Trading Pty Ltd and its associated entities (together “Mr Yum”, "we," "our," or "us") and these terms and conditions explain our obligations as a service provider and your obligations as a Venue.
We may change these Terms of Service at any time by notifying you, and your continued use of the Platform following such an update will represent an agreement by you to be bound by the Terms of Service as amended.
In these Terms of Service, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms of Service.
Please read these terms and conditions carefully and if you do not agree to these Terms of Service, you must not continue to use the Platform.
1.1. Mr Yum grants to the Venue a non-exclusive, non-transferable, non-sublicensable licence to use and access the Platform during the Term on the terms of these Terms of Service (Licence).
1.2. In exchange for Mr Yum granting the Licence to the Venue, the Venue agrees to pay the Implementation Fee and the Service Fees on the terms of these Terms of Service.
1.3. Upon expiration of the Term (or a Further Term, as the case may be), these Terms of Service will automatically renew for subsequent Further Terms, unless either Party provides at least notice in writing in the Renewal Notice Period before the expiry of the then current Term that it does not wish for the Term to be renewed (Termination Notice).
1.4. If these Terms of Service is terminated for any reason, then the licence to the Platform and Mr Yum’s provision of Support Services to the Venue will terminate.
2.1. If requested by the Venue, Mr Yum will provide the Set-Up Services to the Venue in the Set-Up Timeframe.
2.2. The Venue will give Mr Yum reasonable assistance to allow Mr Yum to provide the Set-Up Services, including by providing Mr Yum with access to the Venue’s premises, POS system for menu data, as well as copies of the Venue’s menus.
2.3. If the Venue delays or prevents Mr Yum from providing the Set-Up Services, then the Venue will grant Mr Yum an extension to the Set-Up Timeframe equal to the period of delay.
2.4. In the event that the Venue does not approve of the Set-Up Material published, it will notify Mr Yum within 2 days. Mr Yum will use its reasonable endeavours to address and rectify the Venue’s concerns in respect of any Set-Up Material.
2.5. The Venue grants to Mr Yum a royalty-free, worldwide, non-transferrable licence to use and publish any of the Venue’s Intellectual Property Rights in the Set-Up Material, including trademarks and copyright in the menus or in any Set-Up Material provided by the Venue.
3.1. The Venue must not:
(a) use the Platform in any way that could damage the reputation of Mr Yum or the goodwill or other rights associated with the Platform;
(b) permit any third party to use the Platform other than a customer of the Venue through the Customer Portal;
(c) except as expressly permitted by these Terms of Service:
(i) reproduce, make error corrections to or modify or adapt the Platform or create any derivative works based upon the Platform;
(ii) de-compile, disassemble or otherwise reverse engineer the Platform or directly or indirectly allow, cause or permit any third party to do so; or
(iii) modify, remove or whitewash any copyright or proprietary notices on the Platform.
3.2. The Venue must not knowingly access, store, distribute or transmit any Viruses, or any material during its use of the Platform that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) causes damage or injury to any person or property;
and Mr Yum reserves the right, without liability to the Venue, to disable access to or remove any material published on the Platform that breaches the provisions of this clause.
3.3. The licence granted under these Terms of Service is granted to the Venue only and is granted to any subsidiary or holding company of the Venue.
4.1. The Venue requests and Mr Yum agrees to provide the Support Services, which includes resolving access issues with the Platform and updating any Venue related information on the Platform that the Venue does not have access to.
4.2. Mr Yum will use commercially reasonable endeavours to make the Support Services available to the Venue.
4.3. The Venue will give Mr Yum such reasonable assistance as Mr Yum considers necessary to ensure that it can provide the Support Services.
4.4. The Venue will ensure that Mr Yum is granted all reasonable access, including necessary security clearances, for the purposes of providing the Support Services
5.1. The Venue will provide Mr Yum with its payment information such as price lists, billing details and other account information (Financial Information), to allow the processing of payments for products that the Venue provides to its customers through the use of the Platform.
5.2. All financial transactions that are made through the Platform between the Venue and the Venue’s customers will be processed by a third party payment processer.
5.3. Mr Yum will provide the Venue’s Financial Information to the third party provider, or may require that the Venue provides its Financial Information to the third party payment processer directly.
5.4. Mr Yum shall not authorise any third party payment processer to use the Venue’s Financial Information in any way other than to process payments.
5.5. Mr Yum shall not be liable for any losses of the Venue arising out of or in relation to the processing of payment through the Platform, but will liaise with the third party payment processer to facilitate a resolution of any issues regarding payment that arise in respect of the Venue.
5.6. The Venue appoints Mr Yum as its agent for the purposes of accepting payment from its customers who use the Website to place orders for products with the Venue (Customer Payments).
5.7. The Venue acknowledges and agrees that Customer Payments accepted by Mr Yum shall be deemed to have been made by the Customer to the Venue.
5.8. Mr Yum shall remit the Customer Payments (less the Fees and any costs for which the Venue is responsible under these Terms of Service), to the Venue on each Remittance Date.
5.9. The Venue shall be responsible for all costs related to reimbursement to the Venue’s customers in the event that its customers requests a refund, and shall deduct such costs from the remittance of Customer Payments to the Venue.
6.1 The Platform will be hosted on a cloud server operated by a third party.
6.2 The Venue acknowledges and agrees that Mr Yum will not at any time host the Platform, and accordingly Mr Yum will not be liable for any losses occasioned by the Venue arising out of or in relation to the hosting of the Platform.
6.3 Mr Yum will notify the Venue of:
(a) any violations of the Privacy Act, or violations of the terms of these Terms of Service that is becomes aware of;
(b) any request, claim, order, authority report made by any government or statutory authority in respect of the Platform or the data generated by the Platform; and
(c) the details of the third party hosting of the Platform upon the Venue’s request (unless this information is confidential).
6.4 Mr Yum can be integrated either:
(a) directly into the Venue’s system through an application programming interface, or
(b) into the Venue’s point of sale system (POS) through the POS third party integration partner, which will allow Mr Yum to send the Venue’s customer’s orders directly to the Venue’s kitchen or bar.
6.5 If Mr Yum is integrated into the Venue’s POS, the Venue indemnifies Mr Yum from and against any loss arising as a result of any act or omission of the Venue out of errors, defects or incorrect information in the POS and POS third party integration partner.
7.1 The Venue will:
(c) provide Mr Yum with all necessary co-operation in relation to these Terms of Service;
(d) comply with all applicable laws and regulations with respect to its activities under these Terms of Service;
(e) carry out its obligations in a timely and efficient manner;
(f) ensure it uses the Platform in accordance with the terms and conditions of these Terms of Service;
(g) manage fulfilment of orders;
(h) be responsible for customer service relating to order and delivery quality;
(i) obtain and shall maintain all necessary hardware and third party software licences necessary for the Venue to be able to access the Platform; and
(j) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Venue's network connections or telecommunications links.
8.1 If the Venue believes there is a defect in the Platform and that the Platform does not comply with or cannot be used by the Venue’s customers, the Venue will notify Mr Yum of the perceived defect.
8.2 Mr Yum will investigate the perceived defect and if Mr Yum considers that there is a defect then Mr Yum will rectify the defect as soon as possible, unless the defect is because of a failure on the part of the Venue’s computer systems, servers or hardware or third party network or telecommunications links.
8.3 The Venue releases Mr Yum from any Loss suffered by the Venue as a result of any defect of the Platform, provided that Mr Yum complies with its obligations contained in clause 8.2.
8.4 The Venue agrees that Mr Yum will not be liable for any Loss suffered by the Venue arising out of or in relation to any defect caused or contributed to by the Venue or other third party, including the failure of the Venue or its customers to use the Platform in accordance with specifications or the instructions or directions issued by Mr Yum from time to time.
9.1 The Venue agrees to pay the Fees without deduction or set off as follows:
(a) The Implementation Fee will be paid within 7 Business Days from the issuance of an Invoice by Mr Yum, according to the payment schedule outlined in the Contract Details section of these Terms of Service;
(b) The Service Fee will be paid in accordance with the Payment Method.
9.2 The Fees are inclusive of GST.
9.3 If the Venue has not paid an invoice in full by the due date:
(a) Mr Yum can take the invoice amount out of transactions processed on the next payout;
(b) Mr Yum can suspend the Venue’s access to the Platform and the provision of the Services until any unpaid amount is received in full by Mr Yum.
10.1 Each party hereby represents and warrants to the other that:
(a) it has the right to deal with the Intellectual Property Rights and has the authority to grant its respective rights under these Terms of Service;
(b) it is a corporation duly organized, validly existing, and in good standing under the laws of Australia;
(c) the grant, execution, delivery, and performance of it obligations under these Terms of Service have been duly authorized by all necessary action;
(d) these Terms of Service is a legal, valid, and binding obligation.
10.2 Notwithstanding anything else in these Terms of Service, Mr Yum:
(a) does not warrant that the Venue's use of the Platform will be uninterrupted or error-free; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including cloud and internet services, and the Venue acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.1 Nothing in these Terms of Service constitutes an assignment from Mr Yum to the Venue of any Intellectual Property Rights in connection with the Platform.
11.2 The Venue:
(a) acknowledges that Mr Yum holds all Intellectual Property Rights in the Platform;
(c) will not directly or indirectly do anything that would or might invalidate or put in dispute Mr Yum’s title in the Platform;
(d) cannot share login details to the Platform with any third party, unless permitted by the Platform and;
(e) will not copy, modify, reverse engineer, decompile or attempt to extract the source code of the Website and its associated functionality.
11.3 Mr Yum shall retain all Intellectual Property Rights in any of the Set-Up Material that it creates for the Venue under these Terms of Service.
12.1 During the Term, Mr Yum may make updates or new releases of the Platform.
12.2 Where an update or new release is provided pursuant to this clause 12, these Terms of Service will continue to apply to the update or new releases.
13.1 To the full extent permitted by law, Mr Yum excludes all liability in respect of loss of data, interruption of business or any Loss, Consequential Loss and consequential or incidental damages.
13.2 To the full extent permitted by law, Mr Yum excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms of Service.
13.3 To the fullest extent permitted by law, in no circumstances will Mr Yum be liable (whether before or after the expiry or termination of these Terms of Service) for special, indirect or Consequential Loss or damage as a result of a defect in the Platform or a breach by Mr Yum of these Terms of Service including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Platform and the costs of any substitute software which the Venue acquires.
13.4 Mr Yum’s total aggregate liability for all claims relating to these Terms of Service is limited to the amount of the Service Fees paid by the Venue under these Terms of Service in the 12 months preceding the relevant claim.
13.5 To the extent possible under statute, Mr Yum limits its liability in respect of any claim to, at Mr Yum’s option:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the repair of the goods.
(b) in the case of services:
(i) the supply of the services again.
13.6 Mr Yum shall have no liability for any damage caused by errors or omissions in any information, instructions or material provided to Mr Yum by the Venue in connection with the Platform, or any actions taken by Mr Yum at the Venue's direction.
13.7 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms of Service.
13.8 To the extent, if any, that we act as a ‘service provider’ pursuant to the Payment Card Industry Data Security Standard in respect of the services provided under these Terms of Service, we shall be responsible for the security of cardholder data that we possess or otherwise store, process or transmit on the Venue’s behalf, or to the extent that we impact the security of the Venue’s cardholder data environment.
14.1 Either party may terminate these Terms of Service at any time by providing 30 days’ written notice to the other party.
14.2 Either party may terminate these Terms of Service immediately by notice in writing if:
(a) the other party is in breach of any term of these Terms of Service and such breach is not remedied within the Remedy Notice Period.
(b) the other party is in breach of a term of these Terms of Service and such breach is incapable of remedy;
(c) the other party for any reason destroys or disposes of or loses custody of the Platform (other than in accordance with the terms of these Terms of Service);
(d) the other party suffers an Insolvency Event.
15.1 If these Terms of Service is terminated or expires for any reason:
(a) the licences granted under these Terms of Service immediately terminate and the Venue can no longer use the Platform;
(b) Mr Yum shall cease providing the Services to the Venue; and
(c) the Venue must return to Mr Yum or delete all copies of the Platform any adaptations or versions of the Platform and any other media constituting or containing Mr Yum’s Intellectual Property Rights or any other thing provided to the Venue under these Terms of Service;
(d) all amounts owing by the Venue to Mr Yum will become immediately due and payable to Mr Yum without further notice and interest will accrue on this amount at the Interest Rate;
(e) the Venue must immediately pay all outstanding Fees;
(f) Mr Yum may retain all money paid in respect of these Terms of Service;
(a) termination will not affect the parties accrued rights and obligations prior to the date of termination.
16.1 Each party acknowledges that during the course of these Terms of Service they may convey to the other party confidential information concerning their business including confidential information concerning the Products, the Intellectual Property, business plans, strategies, proposals, marketing, suppliers, customers, product pricing, business processes and know-how. If any confidential information is received by a party, then that party agrees to keep it confidential and use it only for the purposes of relationship created by these Terms of Service.
16.2 This clause continues even after termination of these Terms of Service.
17.1 Mr Yum agrees to provide the Venue with the customer’s order details (Order Details) to the extent necessary for the Venue to manage and fulfil the customer’s order (Purpose). To the extent that the Order Details contains any Personal Data of the customer, the parties acknowledge and agree that:
(a) The Venue shall not access or use such Personal Data other than as necessary for the Purpose;
(b) each party is regarded as an independent data controller for the purposes of the Data Protection Legislation; and
(c) each party shall comply with the Data Protection Legislation at all times in its capacity as a data controller and shall, upon request, provide reasonable assistance to the other party in the event that a customer exercises its rights under the Data Protection Legislation, or a query or investigation is commenced by a Data Protection Authority
18.1 Subject to this clause 17, any amount payable by the Venue to Mr Yum under these Terms of Service is a payment for a taxable supply.
18.2 Unless otherwise specified, the party acquiring the taxable supply is liable to pay, at the same time and in the same manner as any other money is payable for the taxable supply, the amount of any GST payable in respect of the taxable supply.
18.3 Costs required to be reimbursed or indemnified under these Terms must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.
18.4 Mr Yum’s right to payments under these Terms of Service is subject to a valid Tax Invoice being delivered to the Venue in respect of such payments.
19.1 The Venue can’t assign any right under these Terms of Service without the prior written consent of Mr Yum.
19.2 Mr Yum can assign any right under these Terms of Service without needing the Venue’s consent.
20.1 These Terms of Service is the entire agreement and supersedes and cancels all prior agreements and negotiations.
20.2 These Terms of Service may only be altered in writing signed by all parties.
21.1 Any waiver of a breach of these Terms of Service needs to be in writing signed by the party granting the waiver.
22.1 These Terms of Service is governed by and is to be construed in accordance with the laws of the State of Victoria, Australia.
22.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria.
23.1 A notice to be given by a party to another party under these Terms of Service shall be in writing, be left at or sent by registered post to a party’s address or any email address nominated by the parties from time to time and be in the English language.
23.2 A notice shall be regarded as being given by the sender and received by the addressee, if by post two (2) Business Days from posting by ordinary post and if by email, at the time the email is sent.
23.3 For the purpose of this clause 22, a party’s address for service shall be the ordinary addresses the parties use to communicate with each other.
24.1 The parties agree that all the provisions of these Terms of Service are reasonable in all the circumstances and that each provision is and shall be deemed to be severable and independent.
24.2 The parties agree that if part or all of any one or more provisions are judged invalid or unenforceable in all the circumstances, that portion shall be deemed to be deleted and shall not affect the validity or enforceability of the remaining provisions.
In these Terms of Service except where the context otherwise requires the following words and expressions have the following meanings:
Agreement means this Software as a Service Agreement;
Business Day means a day that is not a Saturday, Sunday or public or bank holiday in the State of Victoria, Australia;
Commencement Date means the date of these Terms of Service;
Confidential Information means all information provided by one party to the other in connection with these Terms of Service where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure (and includes in particular the Documentation and all of the Intellectual Property Rights associated with the Platform as disclosed or provided to the Venue by Mr Yum pursuant to these Terms of Service), but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of these Terms of Service; and
(b) information developed independently by a party;
Consequential Loss means loss or damage arising from a breach of contract, tort (including negligence), under statute or any other basis in law or equity including, but without limitation, loss of profits, loss of revenue, loss of production, loss of denial or opportunity, loss of access to markets, loss of goodwill, loss of business reputation, future reputation or publicity, damage to credit rating, loss of use or indirect remote, abnormal or unforeseeable loss, or any similar loss whether or not in the reasonable contemplation of the parties at the time of the execution of these Terms of Service.
Commencement Date means the date specified as such in Schedule 1;
Copyright Act means the Copyright Act 1968 (Cth) (as amended);
Corporations Act means the Corporations Act 2001 (Cth) (as amended);
Customer Portal means the manner in which the Venue’s customers can access the Platform in respect of the Venue;
Data Protection Legislation means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including the Privacy Act and the GDPR;
Data Protection Authority means a person or body which has regulatory or supervisory authority over all or any part of the business or activities of the relevant person in respect of personal data;
Fees means any amount payable by the Venue to Mr Yum in accordance with these Terms of Service and your Onboarding Agreement.
Force Majeure Event means an act of God, fire, lightning, explosion, flood, subsidence, insurrection or civil disorder or military operation, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and, any other cause whether similar or not to the foregoing, outside of the affected party's control;
GDPR means the EU General Data Protection Regulation (EU) 2016/679;
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Insolvency Event means the happening of any one or more of the following events:
(a) an application (not being an application that is being contested in good faith and that is withdrawn or dismissed within five (5) Business Days of its commencement) is made to a court for an order or an order is made that a body corporate be wound up or that a liquidator or provisional liquidator be appointed to a body corporate;
(b) a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(c) a body corporate resolves to wind itself up or otherwise dissolve itself, or gives notice of intention to do so, or is otherwise wound up or dissolves;
(d) a body corporate is unable to pay its debts as they fall due or is or states that it is insolvent or is treated as or presumed insolvent under any applicable legislation;
(e) a receiver, receiver and manager, trustee, administrator or similar official is appointed over any or all of the assets or undertaking of a body corporate;
(f) a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation;
(g) anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries;
Onboarding Agreement means the agreement between you and Mr Yum in respect of the provision of services by Mr Yum related to the Platform pursuant to these Terms of Service;
Parties means the parties to these Terms of Service and party means each of them;
Personal Data shall have the meaning given in the Data Protection Legislation;
Platform means the software known as “Mr Yum”, owned by Mr Yum and delivered to the Venue by Mr Yum pursuant to these Terms of Service;
Privacy Act means Privacy Act 1988 (Cth) as amended from time to time;
Set-Up Material means any material created by Mr Yum for the Venue in performing the Set-Up Services;
Support Services means the services to be provided by Mr Yum relating to software support of the Platform;
Term means the term of these Terms of Service, including the Initial Term and all Further Terms;
Virus means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
In these Terms of Service, except to the extent that the context otherwise requires
(a) words importing the singular include the plural;
(b) a reference to an Act of Parliament includes any statutory modification, re-enactment, substitution and statutory instruments issued under that Act.
(c) where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
(d) references to a clause, schedule or annexure shall be construed as references to a clause of or schedule or annexure to these Terms of Service and references to these Terms of Service include its schedules and any annexures;
(e) a reference to a party to these Terms of Service or any other document or agreement includes its successors and permitted assigns;
(f) a reference to a party shall be is a reference to a party to these Terms of Service;
(g) a reference to a document or agreement including these Terms of Service includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(h) in the interpretation of these Terms of Service, headings shall be disregarded;
(i) references to currency shall be construed as references to Australian currency; and
(j) a reference to writing includes typewriting, printing, email and any other mode of representing or reproducing words in a permanent and visible form.