Thank you for visiting our Terms of Use (Agreement), we are Mi Customer Pty Ltd ACN 665 815 574 of 30-32 Brisbane Rd, Warner Qld 4500 (Mi Customer Pty Ltd, we, our, us and other similar terms). We provide a digital loyalty card system and the Device needed to operate it, known as Mi Customer (Mi Customer).

This Agreement outlines the terms and conditions associated with your use of Mi Customer. It is your obligation to ensure that you have read, understood and agree to the most recent terms available at https://micustomer.com.au/ (Website).

1. Accepting this Agreement

By creating a Mi Customer Account, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Mi Customer.

You must not use Mi Customer if you are not able to form legally binding contracts or are under the age of 16. If you create an Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.

1. About this Agreement

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 17.1. They aid to clarify the terms and conditions. Please feel free to email us at support@micustomer.com.au if you have any questions.

1. Subscription Period

This Agreement will commence when you create an Account for Mi Customer and will continue for the Subscription Period or until the date of termination of this Agreement in accordance with clause 15. 

1. Automatic renewal

If this Agreement is not terminated in accordance with clause 15 and the Device is returned, prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.

1. Licence

We grant you a non-transferrable, non-exclusive and revocable licence to access Mi Customer and operate the Device for the Subscription Period, subject to the terms and conditions of this Agreement.

1. Our right to suspend

We reserve the right to limit or suspend your licence to access Mi Customer if you fail to pay the Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement. Suspending your account will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Subscription Fee.

1. Device provisioning

Within 28 days [m1] [ST2] [MB3] of entering into this Agreement, or as otherwise advised by us, we will make available a Device or Devices as set out in the Subscription Package. 

You acknowledge and agree that larger volumes of Devices may take longer to configure and deliver, and that a delay in delivery does not constitute a breach of these terms.

1. Title and risk

Risk in the Devices passes to you upon delivery to your site and remains with you for the Term of this Agreement.

Title to the Devices remains with us, unless otherwise agreed in writing between the parties. 

1. Use of the Device

You must store the Devices in a manner that readily identifies them as property of Mi Customer Pty Ltd. 

You must not assign, sub-let, charge, mortgage, pledge or create any form of Security Interest over the Devices in any way other than in accordance with this Agreement.

You must not in any way alter, modify, dismantle, disassemble, tamper with, damage, repair, deface, remove, or interfere with any identifying marks, numbers or notices on the, Devices.

You acknowledge and agree that you assume all risk for the Device irrespective of us retaining title and that you bear the liability associated with any loss or damage to the Device up to the total of the Replacement Cost.

If any of the Devices are totally or substantially lost or damaged, or you do not return the Device at the end of the Subscription Period, then you must pay, or procure that your insurer pays, the Replacement Cost of the Device. 

1. Installing software on the Devices

We will deliver the Device fully installed with all software reasonably required to operate Mi Customer. You must not install any other software on the Device without our written permission.

1. Insurance

You must keep the Device insured during the Term against loss or damage up to the Replacement Cost, and must promptly notify us in writing of any loss, damage or event which may lead to a claim under any insurance. 

We will provide you with a tax invoice for the Subscription Fee, which will be automatically deducted from your account at the begning of each Subscription Period.

Unless expressed otherwise, Subscription Fees are quoted in Australian Dollars and are exclusive of GST, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement. 

You are responsible for all bank fees and charges applied by the payment gateway provider, which you choose to use.

1. Access

You acknowledge and agree Mi Customer will only be accessible using the internet, by users with a valid Account and on the Device we provide to you. Mi Customer will not be available "locally" from your own servers or devices.

1. Support

Support for Mi Customer is provided in accordance with the support arrangements as set out on our Website and may vary from time to time. 

1. Mi Customer outages and system maintenance

If it is necessary to interrupt your use of Mi Customer, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, Mi Customer will be unavailable.

You acknowledge access to Mi Customer may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to Mi Customer which may change the interface and manner in which it functions.

You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such interruptions will not constitute a breach by us of these terms.

1. Registering an Account

In order to use Mi Customer, you are required to provide us with Personal Information and create an Account with us.

You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

We reserve the right to reject any new Account in our absolute discretion. 

1. Account security

Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process on your behalf, remains safe. We work hard to keep Mi Customer secure and we ask you to contribute.

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create an Account on behalf of your business. You also agree not to disclose your Account security credentials to another person or permit them to access your Account. You are responsible for the activities undertaken using your Account which occur via Mi Customer, whether such activities are authorised by you or not.

1. Lawful use of Mi Customer

You undertake not to upload, store or access any data on Mi Customer if such access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory). 

1. Conduct which is expressly prohibited

You may only acquire and make use of Mi Customer for the sole purpose of meeting your internal business needs. You must not use or include any part of Mi Customer in any service bureau or fee generating service offered to third parties

You must not:

1. in any way tamper with, hinder or modify Mi Customer;

2. use Mi Customer directly or indirectly for any activity or transmit any information or material unlawfully, or which is obscene, indecent, uses offensive language, defames, abuses, harasses, stalks, threatens, menaces or offends any person;

3. knowingly transmit any viruses or other disabling features to or via Mi Customer;

4. intentionally disable or circumvent any protection or disabling mechanism of Mi Customer;

5. install or store any software applications, code or scripts on or through Mi Customer;

6. use Mi Customer in any way which could be reasonably expected to interfere with or damage our systems, any other operator's systems, or another user's enjoyment of Mi Customer; 

7. use Mi Customer in connection with a breach of any law in Australia or the jurisdiction in which you operate; or

8. attempt, facilitate or assist another person to do any of the above acts. 

Privacy 

You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.  

1. Confidentiality

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause 10, a party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants.

A party will not be in breach of this clause 10 in circumstances where it is legally compelled to disclose the other party's Confidential Information.

1. Permitted Disclosures

We may disclose information, including, but not limited to, your Personal Information or a transmission made using Mi Customer, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of Mi Customer (Permitted Disclosures).

You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made. 

We warrant we own or have a licence to use the Intellectual Property in Mi Customer.

If you provide us with content, including, without limitation, text, photos, images, audio, video, code and any other materials (User Content). Your User Content stays yours. This Agreement does not transfer ownership of User Content to us.

When you provide User Content, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with Mi Customer), communicate, publish and distribute User Content for the purposes of allowing us to provide Mi Customer to you and your customers. You waive any claims against us relating to any moral rights or similar rights worldwide that you may have in the User Content.

You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content  to the extent that it is used within Mi Customer.

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:

1. create an adaptation or translation of, all or part of Mi Customer in any way;

2. use Mi Customer in a manner which may infringe any other persons Intellectual Property;

3. incorporate all or part of Mi Customer in any other webpage, site, application or other digital or non-digital format; or

4. except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Mi Customer.

Warranties

We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, we make no warranties or guarantees that Mi Customer is fault free, regarding Mi Customer’s fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, Mi Customer including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

1. Implied Conditions

We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.

1. Limitation of Liability

Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:

1. Mi Customer being inaccessible for any reason;

2. incorrect or corrupt data, lost data, or any inputs or outputs of Mi Customer;

3. computer virus, trojan and other malware in connection with Mi Customer;

4. security vulnerabilities in Mi Customer or any breach of security that results in unauthorised access to, or corruption of data;

5. negligence arising from our activities or that of our service providers;

6. any unauthorised activity in relation to Mi Customer;

7. the occurrence of an Event of Force Majeure;

8. your breach of this Agreement; or

9. any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement.

10. Limits to liability associated with goods and services

To the maximum extent possible under the law, we limit our liability for any breach to: in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and in the case of services: the resupply of the services or the payment of the cost of having the services resupplied.

1. Indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with your use of Mi Customer, including any costs arising from your breach of this Agreement, your infringement of any third party Intellectual Property rights associated with this Agreement, any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of Mi Customer and your breach of any law including, Spam and Privacy Laws.

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 14 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 14. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 14 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

1. Termination for convenience

Either party may terminate this Agreement by providing the other party notice in writing, including via email. 

Where you terminate this Agreement, termination will take effect at the end of the Subscription Period after the Device is returned.

When we terminate this Agreement, termination will take effect at the end of the then current Subscription Period.

1. Termination for cause

Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.

1. Actions upon termination

Upon termination you must immediately return the Device and stop using Mi Customer, we reserve the right to permanently erase any data associated with your Account and you will no longer have access to your Account.

You are solely responsible for taking an extraction of any data held in Mi Customer which you deem necessary to backup or otherwise retain a copy of.

Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent.

Entire Agreement - This document contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

Governing law - The laws of Queensland govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement: 

1. which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and

2. which you send, must be either delivered or posted by prepaid post to the address set out at clause 1  or sent by email to our email address set out at clause 2.2.

Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.  

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.

Variations to this Agreement - We may vary this agreement by giving one Subscription Period written notice to you. If you do not accept the terms of the variation you may terminate your subscription in accordance with clause 15.1.

1. Definitions

Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:

Account or Mi Customer Account means the username and access credentials used when you access Mi Customer.

Agreement means these terms and conditions and any document incorporated into them by reference.

Cancellation Notice means a notice sent by either party, in accordance with clause 15, requesting the termination of this Agreement.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with Mi Customer and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement.

Devices mean the mobile device which we send to you enabling you to access Mi Customer.

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Terms mean the requirement to make payment immediately on commencement of this Agreement and each subsequent Renewal Date in accordance with the Subscription Package selected.

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.

Privacy Policy means the privacy policy available on our Website as amended by us from time to time.

Renewal Date means a date one Subscription Period following the beginning of the then current Subscription Period.

Replacement Cost means $295+GST per Device plus shipping.

Spam Law means both the spam laws in the jurisdiction in which you operate and the Spam Act 2003 (Cth)

Subscription Fee means the periodic price for the Mi Customer Subscription Package as set out on our Website.

Subscription Package means one of the subscription packages advertised on our Website from time to time or as otherwise set out in writing between the parties.

Subscription Period means the period of time set out on the Subscription Package which you select. 

You or your means the person or entity using Mi Customer.

Us, we or our means Mi Customer Pty Ltd ACN 665 815 574.

Website means the website located at micustomer.com.au and any of its subdomains.

1. Interpretation

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:

1. a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;

2. unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;

3. "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;

4. where a term is defined, other grammatical forms of that term will be taken to have the same meaning;

5. headings are for convenience and will not affect interpretation;

6. words in the singular will be taken to include the plural and also the opposite;

7. when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body;

8. a reference to a party's conduct includes omissions as well as acts; and

9. if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.

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