Terms of Service

Effective date: 20th May, 2024

These Terms of Service ("Terms") form a binding agreement between Next Experience Pty Ltd (ABN 61 673 229 126) ("we", "us" or "our") and the business or individual that creates an account or accesses or uses Next Experience POS (the "Service") ("you" or the "Customer"). By creating an account, or by accessing or using the Service, you agree to be bound by these Terms and our Privacy Policy. If you accept these Terms on behalf of a company or other entity, you represent and warrant that you have the authority to bind that entity, in which case "you" refers to that entity. If you do not agree to these Terms, you must not access or use the Service.

1. The Service

The Service is a browser-based point of sale and retail management platform, including sales processing, inventory and stocktake management, customer and loyalty management, reporting, and integrations with third-party payment terminal providers. The till is designed to continue operating during internet outages and to synchronise your data when connectivity is restored. You are responsible for the hardware, browsers, peripherals, networks and internet connectivity you use to access the Service.

We are continually improving the Service and may add, change or remove features over time. If a change materially reduces the functionality of the Service during a paid billing period, we will give you reasonable prior notice.

2. Eligibility and accounts

You must be at least 18 years old and using the Service for business purposes to create an account. You must provide accurate, current and complete registration information and keep it up to date. You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account, including the actions of your staff users. You must ensure your staff users are given only the permissions appropriate to their role, and you must notify us promptly at support@nextexperience.com.au if you become aware of any unauthorised access to, or use of, your account.

3. Free trial

New accounts receive a 30-day free trial. No platform fees are charged during the trial. To continue using the Service after the trial ends, you must provide billing details and begin a paid subscription. If you do not, we may suspend your access to the Service until billing details are provided. Clause 14 explains what happens to your data if your account remains inactive.

4. Fees, billing and payment

  • The Service is billed as a platform fee calculated as a percentage of the gross turnover you process through the Service, billed monthly in arrears. The current rate (2.5%) is displayed at sign-up and on our website.
  • Billing is administered on our behalf by a third-party billing provider. You authorise us and our billing provider to charge your nominated payment method for all fees payable, and invoices are issued through that provider.
  • Fees are exclusive of GST and other applicable taxes unless expressly stated otherwise. You are responsible for paying any GST and similar taxes that apply.
  • If a payment fails or fees remain unpaid, we will notify you. If the amount owing is not paid within 7 days of that notice, we may suspend your access to the Service until payment is made. Continued non-payment may result in termination of your account under clause 14.
  • We may change our fees or rate from time to time by giving you at least 30 days' prior written notice (by email or in-app notice). Your continued use of the Service after the effective date of a change constitutes acceptance of the new fees. If you do not agree, you may cancel your subscription before the change takes effect.
  • Except as required by law (including under the Australian Consumer Law), fees are non-refundable and we do not provide refunds or credits for partial billing periods.

5. Third-party payment processing

In-person card payments you accept through the Service are processed by the third-party EFTPOS or payment terminal provider you choose to connect, under your separate agreement with that provider. We are not the merchant of record for your sales, we do not hold or handle settlement funds, and we are not responsible for that provider's acts, omissions, fees, settlement timing or availability. Chargebacks, refunds and disputes are governed by your agreement with your payment provider. You must comply with your payment provider's terms and any applicable card scheme and security requirements.

6. Your data

  • You retain all rights, title and interest in the data you, your staff and your customers submit to the Service, including your products, inventory, sales records, customer contacts and loyalty program data ("Customer Data").
  • You grant us a non-exclusive, worldwide, royalty-free licence to host, store, reproduce, process and transmit Customer Data solely to the extent necessary to provide, maintain, secure and improve the Service, and as required by law.
  • You are responsible for the accuracy, quality and legality of Customer Data. You represent and warrant that you have all rights, authorities and consents necessary to provide Customer Data to us (including any personal information of your customers and staff) and that your collection and use of that information complies with the Privacy Act 1988 (Cth).
  • We may create and use aggregated or de-identified data that does not identify you or your customers to operate, analyse and improve the Service.
  • You are responsible for maintaining your own exports and backups of Customer Data. You may request an export of your Customer Data at any time while your account is active, and during the post-termination period described in clause 14.

7. Acceptable use

You must not, and must not permit anyone using your account to:

  • use the Service for any unlawful, misleading or fraudulent purpose;
  • infringe the intellectual property, privacy or other rights of any person;
  • transmit malicious code, or interfere with, disrupt or impose an unreasonable load on the Service or other customers' use of it;
  • probe, scan or test the vulnerability of the Service, or attempt to bypass security or access controls;
  • reverse engineer or attempt to extract the source code of the Service, except to the extent this restriction is prohibited by law;
  • resell, sub-licence or provide access to the Service to any third party without our prior written consent; or
  • use the Service to develop a competing product or service.

We may investigate suspected breaches of this clause and suspend access under clause 14 while an investigation is underway.

8. Intellectual property

We (or our licensors) own all intellectual property rights in the Service, including the software, user interfaces, documentation, and our names, logos and trade marks. We grant you a limited, non-exclusive, non-transferable, revocable licence, for the duration of your subscription, to access and use the Service in accordance with these Terms. You own your own branding and trade marks; you grant us a licence to use them within the Service only as needed to provide the Service to you (for example, on receipts and invoices you issue). If you give us feedback or suggestions about the Service, we may use and develop them without restriction or payment, and without any obligation to keep them confidential.

9. Confidentiality

Each party may receive information of the other that is confidential or by its nature should be treated as confidential. The receiving party must keep that information confidential, use it only for the purposes of these Terms, and protect it with at least reasonable care. These obligations do not apply to information that is public (other than through breach), was already lawfully known, is independently developed, or must be disclosed by law.

10. Privacy

Each party must comply with the Privacy Act 1988 (Cth) in connection with these Terms. Our Privacy Policy explains how we collect, hold, use and disclose personal information. For personal information about your customers that is processed through the Service, you are the entity that collects it and determines how it is used, and we handle it on your behalf as your service provider.

11. Warranties and consumer guarantees

We warrant that the Service will be provided with due care and skill and will substantially conform to its documentation. Otherwise, to the extent permitted by law, the Service is provided "as is" and "as available", and we exclude all other warranties, representations and guarantees, whether express or implied, including any warranty that the Service will be uninterrupted, error-free or fit for a particular purpose.

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy you may have under the Australian Consumer Law or any other law that cannot lawfully be excluded, restricted or modified. Where the law permits us to limit our liability for breach of a non-excludable guarantee, our liability is limited, at our option, to supplying the services again or paying the cost of having the services supplied again.

12. Limitation of liability

To the maximum extent permitted by law:

  • neither party is liable to the other for any indirect, special or consequential loss, or for loss of profits, revenue, anticipated savings, goodwill or data, arising out of or in connection with the Service or these Terms; and
  • our total aggregate liability arising out of or in connection with the Service or these Terms is limited to the fees you paid us in the 12 months immediately preceding the event giving rise to the liability or, if you have not paid any fees, AUD $100.

Nothing in this clause limits or excludes liability that cannot be limited or excluded by law, including under the Australian Consumer Law, liability for fraud, your obligation to pay fees, or your indemnity under clause 13.

13. Indemnity

You indemnify us and our officers, employees and agents against all claims, losses, damages, liabilities and costs (including reasonable legal costs) arising out of or in connection with any third-party claim related to: your breach of these Terms; your unlawful or unauthorised use of the Service; the Customer Data (including claims by your customers or staff that their personal information was collected or handled without proper authority); or your infringement of any third party's rights.

14. Suspension and termination

  • You may cancel your subscription at any time through your account settings or by contacting us. Cancellation takes effect at the end of your current monthly billing period, and the platform fee for that final period remains payable. There is no minimum term or lock-in.
  • We may suspend your access immediately if we reasonably believe your use of the Service poses a security risk to us or other customers, involves unlawful or fraudulent activity, or if payment has failed and remains unpaid 7 days after we notify you. We will lift a suspension once the issue is resolved, where reasonably practicable.
  • We may terminate your account if you materially breach these Terms and do not remedy the breach within 14 days of written notice, or immediately if the breach cannot be remedied or involves unlawful conduct. Either party may terminate if the other becomes insolvent or subject to external administration.
  • When your account ends, your access stops at the end of the final billing period. We retain Customer Data for 30 days after the end date, during which you may request an export. After that period we may delete the Customer Data, subject to any legal retention obligations.
  • We may delete trial or inactive accounts that have had no paid subscription and no significant activity for a prolonged period, after giving reasonable notice to your account email address.

15. Changes to these Terms

We may amend these Terms from time to time. If we make a material change, we will give you at least 30 days' notice by email or by prominent notice within the Service, and the updated Terms will be posted on this page with a revised effective date. Your continued use of the Service after the effective date of the updated Terms constitutes acceptance of them. If you do not agree to the updated Terms, you may cancel your subscription before they take effect.

16. General

  • These Terms are governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales and the courts entitled to hear appeals from them.
  • Before starting court proceedings about a dispute (other than for urgent injunctive or interlocutory relief), a party must give the other written notice of the dispute and allow at least 30 days for the parties to attempt in good faith to resolve it.
  • Neither party is liable for any failure or delay caused by events beyond its reasonable control, including failures of third-party networks, hosting or payment providers. This does not excuse your obligation to pay fees due.
  • You may not assign or transfer these Terms without our prior written consent, which must not be unreasonably withheld. We may assign these Terms to a related body corporate, or in connection with a merger, acquisition or sale of assets, by giving you notice.
  • We send notices to the email address on your account. You may send notices to us at support@nextexperience.com.au. An emailed notice is taken to be received when sent, unless the sender receives a delivery failure notification.
  • These Terms, together with our Privacy Policy, are the entire agreement between you and us about the Service. If any part of these Terms is held to be invalid or unenforceable, the remainder continues in force. A right may only be waived in writing. Nothing in these Terms creates a partnership, joint venture or employment relationship.

17. Contact us

If you have any questions about these Terms, please contact us at support@nextexperience.com.au. Next Experience Pty Ltd (ABN 61 673 229 126) is located in Sydney, New South Wales, Australia.