Hello there and welcome to SWAP KITCHEN ORDER Pty Ltd (ACN 636 479 055) Terms & Conditions of use.
These Terms & Conditions of Use are specifically for SKO customers and are intended to explain SKO’s obligations as a service provider and the Customer’s obligations as a user.
Please read them carefully.

These Terms are binding SKO and the Customer at the time SKO provides access to any product or service to the Customer.

Reference to:
(a) * One gender includes the others;
(b) * The singular includes the plural and the plural includes the singular; and
(c) * a person includes a body corporate.

* “Including” and similar expressions are not words of limitation.

* Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.

2.1 Agreement means the Terms, the SKO Proposal and any other relevant attachments agreed upon by the Customer and SKO.

2.2 * Community Plan means the License, the Software updates, the SKO Customer Support and any other services as defined in the SKO Solution and/or the SKO Proposal.

2.3 * Customer means the Customer (any person acting on behalf of and with the authority of the Customer) including but not limited to any person employed or contracted by the Customer.

2.4 * Data means all transactional information collected, stored, and used by SKO.

2.5 Direct Debit Arrangement means the arrangement between the Customer and SKO giving SKO the right to automatically debit the Customer the amount, on a regular basis (e.g: monthly), defined on the SKO Proposal and agreed by both parties.

2.6 Direct Debit Day means the day on which the direct debit will be processed as defined in the Direct Debit Arrangement and on the SKO Proposal.

2.7 * Equipment means the hardware product such as (but not limited to) the SKO 700 and/or SKO 400 devices and the parts that come with such devices.
The Equipment includes singular and plural.

2.8 Fee means the amount payable for the Equipment and/or License and/or Community Plan and/or additional services as agreed between SKO and the Customer in accordance with the SKO Proposal.

2.9 * Force Majeure Event means an event or circumstance that is beyond the control and without the fault or negligence of either party such as but not limited to: natural disasters, pandemics, emergency state etc.

2.10 License means the non-exclusive License or Licenses granted by SKO to the Licensee to use the Software pursuant to this Agreement.

2.11 Licensee means the individual, body corporate or organization which has been granted the License by SKO.

2.12 Purchase means the Customer’s payment relating to the SKO Proposal which also includes the Customer’s acceptance of the Terms of this Agreement.

2.13 * SKO means the company SWAP KITCHEN ORDER Pty Ltd (ACN: 636 479 055).

2.14 * SKO Customer Support means any method of communication reserved for the Customer and his/her representative to communicate with and find support by SKO at the times stipulated on the SKO Solution and/or SKO Proposal.

2.15 SKO Proposal means the invoice shared by SKO to the Customer and agreed upon and signed by both parties in connection with the Purchase.

2.16 * SKO Solution means the quotation & trial offer, sent by SKO to the Customer, which has to be read and agreed in conjunction with the SKO Trial Terms.

2.17 * SKO Trial means SKO’s offer to the Customer to trial the Equipment and Software, for the agreed period, as described in the SKO Solution.

2.18 * SKO Trial End Date means the date on which the SKO Trial ceased as defined on the SKO Solution.

2.19 * SKO Trial Terms means the Terms as per described in clause 1.1.

2.20 * Software means the computer program and any related customization created by SKO and all amendments, modifications, alterations, and developments made to the software by SKO from time to time.

2.21 * Terms means the terms and conditions of use.

* If provided for in the SKO Solution, the Customer has the choice of purchasing either the complete on-site installation & training on the Equipment at the Customer’s nominated address or only the remote training.

All Equipment designed and built by SKO is SKO’s ownership and has responsibility over it until such Equipment’s ownership passes on to the Customer and/or its representative or to a financing partner that would rent the Equipment to the Customer.

The Customer becomes the owner of the Equipment he/she purchased, only when the total amount, as described in the SKO Proposal, for such Equipment has been fully paid and received by SKO.

In the case the Customer chooses a financing option to use the Equipment, as described in the SKO Proposal, the ownership status will depend on what has been agreed between the Customer and SKO’s financing partner.

* The Equipment and Software installation and training may be performed on-site or remotely, according to the SKO Solution or SKO Proposal.
Furthermore, one of our SKO facilitators will be ready to guide you if something that has not been shown in any tutorial video appears incorrectly on any of the delivered Equipment and prevents you from going further in the installation process.

* SKO will provide a complete installation & training on the Equipment at the Customer’s nominated address at a time agreed between the Customer and SKO.

* By choosing this option, the Customer acknowledges that he is entirely responsible for the installation of the Equipment.
SKO shall provide tutorial videos to the Customer for the DIY (‘Do it Yourself’) installation of the Equipment, but will not at any time be held responsible for any bad event resulting from the installation or any re-installation (Equipment moved from its initial installation place) carried out by the Customer.
In addition, SKO has no obligation to provide the Customer with any support other than the tutorial videos for installation.
SKO is entitled to charge the Customer for any additional assistance, other than the tutorial videos, requested by the Customer for installation.

(a) * Unless otherwise expressly agreed by SKO, delivery of the Equipment shall be deemed to take place when the Equipment is delivered to the Customer’s nominated address (whether the Equipment is delivered by an SKO facilitator or any SKO representative or by SKO’s nominated carrier).

(b) * Where the Equipment is delivered to the Customer, the Customer will be responsible for all arrangements necessary to take delivery. In the event that the Customer is unable to take delivery of the Equipment as arranged, then SKO shall be entitled to charge a reasonable fee for redelivery and the cost incurred as a result of the failed delivery.

(c) * Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of these Terms.

(d) * SKO shall not be liable for any loss or damage whatsoever due to failure by SKO to deliver the Equipment promptly or at all, where the failure is due to circumstances beyond the control of SKO, such as, but not limited to, Force Majeure Event.

(a) * The Customer shall inspect the Equipment upon delivery and shall within forty-eight (48) hours of delivery (time being of the essence) notify SKO of any alleged defect, shortage in quantity, damage or failure to comply with the Equipment description as per the SKO Solution.

(b) * Subject to sub-clause 4.3(a), the Customer shall notify SKO, by email at
community@sk-order.com or any other communication method established by an SKO representative, of any alleged defect, shortage in quantity, damage or failure to comply with the Equipment description as defined in the SKO Solution or SKO Proposal.
The email or message must include pictures and/or videos that clearly show any defect.

(c) * Subject to sub-clause 4.3(b), the Customer shall afford SKO an opportunity to evaluate the situation within a reasonable time following the delivery, to provide the most adequate solution to the Customer.
No charges in any form will be retained upon the Customer if it is established that the defect on the Equipment was caused by an external source that was not due to the Customer or any of its representatives.
SKO’s liability is limited to either replacing or repairing the Equipment.

(d) * Subject to sub-clause 4.3(a), if the Customer fails to notify SKO of any Equipment and/or any Package defectiveness, the Equipment shall be presumed to be free from any defect or damage or shortage of quantity at the time of delivery.

(e) * Unless otherwise expressly agreed by SKO, the Equipment will not be accepted for return other than in accordance with sub-clauses 4.3(a) and 4.3(b).

* The SKO Trial, unless otherwise expressly agreed by SKO, shall start from the date of the Equipment’s delivery as described in sub-clause 4.2(a).
At any time during the SKO Trial, the Customer is entitled to notify SKO of his/her wish to cease the SKO Trial and ask SKO to organize the return of the Equipment back to SKO’s nominated address or SKO’s assembly partner’s nominated address. SKO will have no longer than three (3) business days to comply with the Customer’s request by giving the Customer written notice of SKO’s acknowledgement and planning to organize, in a reasonable time, the return of the Equipment.Furthermore, SKO will assist the Customer to prepare the Equipment for return and assist the Customer to reinstall his/her previous system, free of charge.
The Customer acknowledges that SKO is not liable for any loss, damages or defectiveness of the Customer’s previous system.

* Three (3) days before the SKO Trial End Date (as defined in the SKO Solution), the Customer will receive a written or verbal reminder notice, from SKO, to consider the option of Purchase.

* On the SKO Trial End Date, one of SKO’s representatives will be in contact with the Customer to answer all questions the Customer may have regarding the Purchase.

* No longer than three (3) business days after the SKO Trial End Date, the Customer shall give SKO a written notice with his/her decision whether to Purchase or to return the Equipment back to SKO.

* In the event, the Customer chooses not to proceed with the Purchase, SKO will organize the shipment back of the Equipment free of charge for the Customer and deactivate the Customer’s License.

* If the Customer fails to give SKO a written notice of his/her decision to Purchase or return no longer than three (3) business days after the SKO Trial End Date, SKO is entitled to recover possession of the Equipment and Software at any site owned, possessed or controlled by the Customer and the Customer agrees that SKO has an irrevocable licence to do so.Furthermore, SKO may charge the Customer a reasonable amount for not complying with the terms stated in this clause.

* The Customer acknowledges that SKO shall not be responsible for any loss or damage of the Equipment resulting from its misuse, or caused by the use of the Equipment other than in accordance with the intended purpose and this even if the Equipment is, at that time, SKO’s ownership.

(a) * One (1) year faulty part (at the time of Equipment delivery as per clause 4.2) such as, but not limited to, touch screen unresponsiveness, LCD display pixelation or any abnormal activity, weak speaker, power failure due to charger delivered by SKO
(this does not include any electrical failure that may arise from the Customer’s premise installation).

(b) * One (1) year assembly mistake (at the time of Equipment delivery as per clause 4.2).

(c) * One (1) year free repair service (at the time of Equipment delivery as per clause 4.2) including service fees as well as shipment to the factory and back to the Customer’s nominated address free of charge.

(a) * Impact on equipment with and/or on an object, body or else, made intentionally or unintentionally by the Customer, that would deteriorate externally or internally such Equipment, which includes, but is not limited to, the list below:
Fist punch, knife stab, stick hit, elbow hit, pan hit etc.
For information purposes only, SKO regularly performs impact tests to ensure the solidity and resistance of the Equipment to reasonable impacts that may occur in a kitchen environment.

(b) * Liquid immersion of the Equipment whether intentionally or unintentionally by the Customer, which includes, but is not limited to, the list below:

• Full or partial immersion of the Equipment in a pot/recipient or any Equipment filled with water, oil, sauce and/or any sort of liquid;
• Immersion of the Equipment from any angle, by pouring intentionally or unintentionally any sort of liquid, at any temperature, onto the Equipment.

Pouring here means a quantity of liquid poured of more than 50mL.

(c) * Equipment location above or too close to a very hot (≥60 degrees) surface or heat generator which includes, but is not limited to, the list below:
Burner, flat grill, flat top, plancha, oil fryer, air fryer, dry oven, combi oven, pizza oven, toaster, glass cleaning machine, cleaning machine, bain-marie, heat lamp.

(d) * Burn of Equipment caused by, but not limited to, the list below:
Torch, blowtorch, explosion, fire.

(e) * Equipment exposition to constant steam which includes, but is not limited to, the list below:
Pot, recipient and/or Equipment containing any sort of hot liquid that creates steam and that would be placed on a bench or surface just underneath the Equipment for a period of time longer than two (2) minutes.

(f) * Cuts or scratches that would be caused by the misuse of a knife or any sharp and/or pointy object that would not be appropriate to use on any Equipment.

(g) * SKO Software malfunction caused by any changes made or asked by the Customer to third-party systems used by the Customer and in direct connection with the SKO Software well function (such as but not limited to POS system, QR code ordering etc.) that was not stipulated to SKO.

(a) * When the Customer believes that an Equipment or part of Equipment is defective in any way, he/she shall immediately contact one of SKO’s facilitator to notify such defect.
Our technical support team will be in contact with you and do their best to find a solution remotely. If nothing can be done remotely, SKO will organize the shipment of the replacement Equipment and ship back the defective Equipment. It is the Customer’s responsibility to have the Equipment ready at the Customer’s nominated address on the pick up date shared by any of SKO’s representatives, however, the Equipment shall not be packaged as SKO’s nominated carrier will bring a package with him/her and take care of un-packing the replacement Equipment and in-packing the defective Equipment. Then the Equipment will be shipped back to SKO’s nominated assembly partner’s facility for evaluation.
At this stage, all logistic expenses shall be borne by SKO.

(b) * If the Equipment is evaluated by SKO’s nominated assembly partner as being defective for a reason present in clause 5.1, all costs related to the repair, replacement and shipping costs (including logistic costs) of the defective Equipment will be borne by SKO; however

(c) * If the Equipment is evaluated by SKO’s nominated assembly partner as being defective for a reason present in
clause 5.2, all costs related to the repair, replacement and shipping costs (including logistic costs) of the defective Equipment will be charged by SKO to the Customer and that also within the SKO Trial.

(d) In the event that one of the Equipment has been deemed defective for a reason mentioned in clause 5.1 and has required repairs and/or replacements at least 3 times within a period of 6 months, the Customer is entitled to request from SKO the full refund of all the Equipment purchased, including all costs related to the installation of such Equipment.
For the avoidance of doubt, the total liability of SKO, including towards the Customer and if case may be towards the Owner of the devices if the Owner is not the Customer, shall be capped at the price of the defective Equipment. The Customer hereby irrevocably agrees that no further claim towards SKO will be considered, including but not limited to alleged loss of business, reputational impact and any other business or HR impacts.
Furthermore, SKO won’t be held liable to refund any costs relating to training, customer support, software license use, additional accessories and/or expenses subject to sub-clause 5.3(c).

* SKO Software is licensed, not sold, and remains the sole and absolute property of SKO.
Furthermore, nothing in this Agreement transfers ownership of the Software or SKO’s intellectual property rights in relation to the Software to the Licensee.

(a) Subject to payment of fee described in the Direct Debit Arrangement, clause 7.1 of this Agreement, SKO grants a personal, non-exclusive, non-transferable, limited license to the Customer to use the Software (which is used in conjunction with the Equipment);

(b) And the Customer agrees to pay the License Fee as per the SKO Proposal and the Direct Debit Arrangement (clause 7.1 of these Terms) and if applicable any changes on the License Fee that could arise from an upgrade of the Software.

(c) The Customer is entitled to use the Software in respect of the Equipment and in the manner and in the quantities described on the SKO Proposal.

* The SKO Software can only be activated with a valid SKO account, on the number of Equipment as per the SKO Solution or SKO Proposal.

It is the Customer’s responsibility to ensure that sufficient funds are available on the Direct Debit Day.

The license price may change from time to time at the absolute discretion of SKO in order to provide our customers with the highest possible quality of product and service.
The Customer will be informed at least 30 days before such a change.

• The Direct Debit will automatically renew every month, on the day or next business day the Software has been activated.
• The automatic renewal will continue unless the Customer provides SKO with 30 days written notice of its intention not to renew.

Following receipt of written notice of termination from the Customer, SKO must cancel the Direct Debit automatic renewal which shall terminate (at the end of the current term or renewal term) the Community Plan as per described in the SKO Proposal.

If the Customer wants to purchase more Equipment, the additional License, that goes with, shall be added to the first number of License provided by SKO to the Customer which will combine the Direct Debit fee amount into one (1) Direct Debit fee and update the DDA taking the total number of License used by the Customer as per described on the new/latest SKO Proposal.

(a) If the Customer fails to respect the Direct Debit Arrangement, SKO will send to the Customer a seven (7) business days’ notice to pay the amount that should have been debited at the last Direct Debit Day.
If SKO does not receive any payment from the Customer before the notice date, SKO is entitled to deactivate the Customer’s account which will temporarily disable the License.

(b) Subject to sub-clause 7.2(a), if the Customer fails not more than three (3) times, whether successively or not, to respect the Direct Debit Arrangement, it will be considered as a breach of this Agreement which will result in the Termination of the Agreement between the Customer and SKO.

Subject to sub-clause 7.2(a), in the case SKO decides to deactivate momentarily the License for the Customer and the Customer wants to reactivate it, a written notice from the Customer to SKO will be required and reasonable administrative handling fees will apply and be charged upon the Customer.

(a) The Customer may ask SKO, by written notice, to hold his/her Community Plan not less than fourteen (14) days before the next scheduled Direct Debit Day, for a maximum time of twenty-eight (28) days except in the case of a Force Majeure Event.

(b) When the Community Plan is on hold, the Direct Debit shall be paused and the License deactivated until the Community Plan starts again. However, the SKO Customer Support remains active unless it is used abusively by the Customer in which case SKO reserves the right to stop or even cancel the support provided to the Customer by (but not limited to) blocking or even erasing the Customer’s account from the SKO Customer Support database.

It is the Customer’s responsibility to maintain an operating site network to enable SKO to remotely access the Licensed Software for support purposes only.

The Customer shall give SKO written notice of any contact details changes no longer than seven (7) business days.
The contact details changes include:

• Customer’s contact name details (all operators working for the Customer that would intend to use the SKO Customer Support on behalf of the Customer).
• Customer’s restaurant/business name, address, contact number and email address.

* SKO reserves the right to limit support calls and/or inquiries to half an hour and to limit each call to one issue or query.
SKO reserves the right to terminate support to a Customer for excessive or abusive manners.

Support does not include:

• Assistance in regards to a Point-of-Sale system that the Customer uses or not.
• Networking or connectivity problem resolution outside of the SKO Software.
• Any third-party software or services.
• Any inquiries on general business, accounting or taxation issues.
• In-depth training.

SKO supports live integrations that require the use of web servers, application programming interfaces and maintenance of such integrations to maintain the Customer’s Data.
SKO can only support and provide, to the Customers, the integrations included in the SKO Proposal which has been agreed to and paid upon by the Customer.

(a) Integrations as specified in heading-clause 9, SKO may require Data transfers to remote servers and third parties to have read and write access to the Customer’s Data. SKO shall expose Customer Data and allow read and write access where required to support integrations and with the intent of sale of this Data.
Data will be used anonymously and the Customer’s venue details will only be disclosed with the Customer’s consent (except for the purpose of integration with third parties where identification of the Customer is required). The Customer acknowledges and consents to the collection and use of Data in this manner.

(b) SKO will not be liable for any Data charges incurred by the Customer.

* The Customer acknowledges that all content in whichever form (including but not limited to documentation, hardware design, Software, designs, specifications) shall remain the absolute and unique property of SKO at all times and this even after Termination of this Agreement.
The Customer also acknowledges that copying, reselling and/or sharing any content provided by SKO to any individual, business, body corporate or company shall imply legal pursuit and fees for the Customer.

It is the Customer’s responsibility to maintain an operating site network to enable SKO to remotely access the Licensed Software for support purposes only.

In case any dispute or difference arises between the parties in connection with this Agreement, the parties will first strive to discuss in good faith, with the aim to find a compromise to settle the dispute or difference. In case the dispute or difference cannot be solved through good-faith discussions between parties within a one-month period, each party shall be entitled to bring the matter to the relevant jurisdiction under Article 13.

(a) For the purpose of this Agreement, the following are terminating events:

• the breach or threatened breach by either party of any of its material obligations under this Agreement;
• either party’s insolvency;
• the permanent discontinuance of use of the Software or any part of the Software by the Customer/Licensee;
• any event described in this Agreement as a terminating event; or
• the purchase of the Software by the Customer/Licensee pursuant to an agreement between the parties.

(b) SKO may terminate the License upon the happening of a terminating event as per sub-clause 12.1(a).

(c) Any termination of the License shall not affect any accrued rights or liabilities of either party nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

* This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia.
The parties irrevocably and unconditionally submit themselves to the exclusive jurisdiction of the courts of the State of Queensland, Australia.

*Any instructions received by SKO from the Customer for the supply of Equipment and/or the Customer’s acceptance of the Equipment supplied by SKO for SKO Trial shall constitute acceptance of and agreement to the SKO Trial Terms as defined in clause 1.1.

(a) Purchase of the Equipment made by full (clause 3.1) or financed payment (clause 3.2) from the Customer to SKO shall constitute acceptance of and agreement to these Terms.

(b) Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all payments of the Fees.

(c) Upon acceptance of these Terms by the Customer, the Terms are binding and can only be amended by SKO and otherwise only with the written consent of SKO.

(d) SKO makes no representation of warranties about accuracy, reliability, completeness or suitability of the Data collected or stored by the Equipment, Software or integration, for any particular purpose and disclaims all responsibility and all liability (including without limitation, liability in negligence) for all expenses, losses, damages (including indirect or consequential damage) and costs which
might be incurred as a result of the Data being inaccurate or incomplete in any way and for any reason.