The Services to be provided by the Supplier under this Agreement are as follows:
3.1. providing web-access to and use of the Software to the Merchant and its Customers;
3.2. systematically collecting Customer payments of outstanding Customer Invoices in accordance with the procedures outlined in the Agreement, including:
3.1.1 contacting Customers via email with a summary of their outstanding Customer Invoices and inviting them to take action to settle these Customer Invoices via secure these Customer Invoices via a secure payment portal;
3.1.2 via the secure, branded payment portal providing various methods of payment to the Customers (including Payment On Terms via direct debit as defined in the Agreement);
3.1.3 processing Customer Invoice payments from Customers and forwarding such payments to the Merchant;
3.1.4 issuing payment reminder notices to the Customers via email and/or short message services (‘SMS’); and
3.2.5 providing Merchant administrators with access to online reports and visibility as to Customer payment performance in terms of paying outstanding Customer Invoices.
4.1 Each time a direct debit on a Customer’s bank account is dishonoured, the Customer must pay the Supplier the Dishonour Fee. The Merchant agrees that if this fee is not paid by the Customer (or honoured by the Customer’s bank) then the Dishonour Fee may be invoiced and debited to the Merchant as a Fee Shortfall in accordance with this Agreement.
4.2 The Supplier will promptly issue dishonour notices via email and SMS to all Customers that dishonour on their payments.
4.3 The Merchant will have timely access to reports of dishonoured direct debits on Customers’ nominated bank accounts or credit cards via the Software.
4.4 The Merchant may notify the Supplier to cease payment reminder notices and collections attempts at any time via the System Authorised Administrators in respect of any Customer by using the Software function denoted as ‘Suspend Collections Activities’.
The Supplier will only provide the Services in respect of a Customer Invoice if:
5.1 the Merchant and/or its agent creates a valid Customer Invoice as required by law; and
5.2 the Supplier or its agent is granted access to the Customer Invoice data and the Customer’s personal information including contact details and email addresses for the purpose of providing the Services; and
5.3 the Supplier has (at its absolute discretion) accepted the Customer Invoice into the System.
6.1 The Supplier may, in its absolute discretion, reject any and all Customer Invoices from the System.
6.2 Where the Supplier has agreed to accept a Customer Invoice issued by the Merchant into the System, then the following process will be followed by the Supplier:
6.2.1 Customers to which the Customer Invoice relates will be contacted via email and provided with an outstanding Customer Invoice summary that relates to them and they will be invited to use a URL (web-based ‘Uniform Resource Locator’) link to connect to a secure payment gateway for the purpose of settling the Customer Invoice(s);
6.2.2 within the secure payment gateway the Customers will then be offered various options for payment of outstanding Customer Invoices as pre agreed between the Merchant and the Supplier in the System Business Rules and generally:
6.3 The Supplier will at all times administer a debt collections program and facilitate Payment On Terms through the Software in accordance with the System Business Rules.
6.4 The Merchant and the Supplier must comply with the System in respect of each Customer Invoice accepted into the System.
If a Customer makes any payment directly to the Merchant in respect of a Customer Invoice(s) that is accepted into the System by the Supplier, then the Merchant (via its System Authorised Administrators) must, within two business days, notify the Supplier of the relevant payment via the Software function denoted as ‘Manual Payment Received’.
8.1 The Supplier is the owner of the Software and any copies of the Software coding remain the property of the Supplier.
8.2 The Merchant is authorised by the Supplier to use the Software hosted by the Supplier on the internet in accordance with the terms of this Agreement and any other requirements as notified by the Supplier to the Merchant from time to time.
8.3 The Merchant (via System Authorised Administrators) will use the Software to generate reports and manage the System.
8.4 The Merchant must ensure the Software including any part of it is used strictly in accordance with this Agreement.
8.5 The Merchant must not attempt to copy or replicate (including but not limited to by reverse engineering) the Software.
8.6 The intellectual property in any enhancements or improvements to the Software made by the Merchant and/or its personnel will vest in the Supplier and the Merchant will do whatever is necessary and sign any document required by the Supplier to ensure that such intellectual property rights are vested solely in the Supplier as soon as practicable after its creation.
9.1 The Merchant warrants in respect of each Customer Invoice submitted to the Supplier for participation in the System that:
9.1.1 the full amount of the Customer Invoice is unpaid (or such lesser amount as the Supplier approves);
9.1.2 the Merchant is not aware of any complaint or challenge from the Customer in relation to the goods or services provided by the Merchant to the Customer or in relation to the Invoice;
9.1.3 the Customer Invoice has been validly rendered to the Customer by the Merchant; and
9.1.4 the Customer is an arms length party to the Merchant.
9.2 The Merchant warrants, in respect of any information relating to a Customer which is submitted to the Supplier by the Merchant or uploaded onto the Software by the Merchant, that:
9.2.1 the Merchant has obtained all necessary consents from the relevant Customer in accordance with the Australian Privacy Principles contained in Schedule 1 of the amended Privacy Act 1988 (Cth) to enable the Supplier to access and use the Customer’s personal information to provide the Services; and
9.3 The Merchant warrants, in respect of each Customer in respect of which a Customer Invoice is submitted to the Supplier for participation in the System, that the Merchant is not aware and has no reason to suspect that the money used by the Customer to fund the Customer Invoice is derived from any activities contrary or related to any money laundering, terrorism financing or similar activities as prohibited by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), rules and other subordinate instruments.
The Merchant indemnifies the Supplier and agrees to keep the Supplier indemnified against any cost, claim, demand, loss or expense incurred directly or indirectly by the Supplier by reason of:
10.1 any payment being received from a Customer which is subsequently dishonoured or the subject of a charge-back by a banking or other financial institution;
10.2 any act or omission of the Merchant and/or its agents (including any System Authorised Administrators);
10.3 any failure to comply with a condition of this Agreement or a breach of warranty under this Agreement; and
10.4 any failure of the Merchant to comply with any law relevant to the provision of the Services.
12.1 The Supplier may terminate this Agreement:
12.1.1 at any time by providing seven days written notice to the Merchant; or
12.1.2 immediately at any time without notice and with immediate effect if the Merchant engages in a serious or material breach of this Agreement.
12.2 The Merchant may terminate this Agreement at any time by providing written notice to the Supplier without cost penalty.
12.3 Upon termination in accordance with clause 12:
12.3.1 the Merchant’s access to the Software will cease; and
12.3.2 the Supplier will cease providing the Services.
13.1 Subject to clause 13.2, each party must maintain the confidentiality of and not disclose any trade secret, confidential information or commercially sensitive information about each other party obtained during the Term and the terms of this Agreement, other than when required by law (other than section 275(1) of the Personal Property Securities Act 2009 (Cth)) or when the information falls into the public domain other than by breach of this Agreement.
13.2 The Merchant irrevocably authorises the Supplier to provide a copy of this Agreement (including all related schedules and annexures) to the entity that referred the Merchant to the Supplier.
13.3 This clause 13 will survive termination of this Agreement for a period of three years.
14.1 This Agreement may only be amended in writing signed by the parties.
14.2 This Agreement is governed by the laws of South Australia.
14.3 This Agreement constitutes the entire agreement between the parties as to the subject matters on which it provides.
14.4 If the Merchant enters into this Agreement as trustee then the Merchant enters into this Agreement in its personal capacity and for each trust for which it acts as trustee.
14.5 This Agreement may be signed in counterparts or accepted by electronic means.
14.6 An obligation under this Agreement cannot be waived except by a written instrument executed by the party and specifying the waiver.
14.7 This Agreement may not be amended except by a written document executed by all parties who may be affected by the amendment and specifically referring to the provisions of this Agreement as being amended.
14.8 Any provision of this Agreement that is invalid or unenforceable must be read down to the extent necessary to avoid that effect or if that is not possible, it must be excluded from this Agreement but only to the extent necessary. All other provisions of this Agreement continue to be valid and enforceable in accordance with their terms.
14.9 The rights and obligations of the parties will not merge on completion of any transaction under this Agreement or upon the execution of any other agreement or other document in connection.
14.10 Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.
Nothing in this Agreement creates a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.
The parties agree to be bound by the terms of this Agreement by:
16.1 the Merchant providing this Agreement and the completed Schedule to the Supplier in any reasonable format including online; and
16.2 the Supplier communicating acceptance of this Agreement to the Merchant in any reasonable manner (including through an online acceptance process).
17.1 In this Agreement, unless the contrary intention appears:
17.1.1 a person includes any other legal entity and vice versa;
17.1.2 the singular includes the plural and vice versa;
17.1.3 a gender includes the other gender;
17.1.4 where an expression is defined, its other grammatical forms have a corresponding meaning;
17.1.5 a clause or annexure is a clause of or an annexure to this Agreement;
17.1.6 reference to a document is to that document as amended or varied;
17.1.7 any legislation includes any subordinate legislation and amendments;
17.1.8 conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
17.1.9 ‘writing’, ‘written’ and ‘in writing’ include any mode of representing or reproducing words in a visible form; and
17.1.10 ‘including’, or similar words, does not limit what else might be included.
17.2 Headings are for convenience and do not affect the interpretation of this Agreement.
In this document, unless the context requires otherwise:
18.1 ‘Agreement’ means this agreement including all schedules and annexures;
18.2 ‘ABN’ means Australian Business Number;
18.3 ‘Commencement Date’ means the date specified as the ‘Supplier Acceptance Date’ in the Schedule;
18.4 ‘Customer’ means persons or entities who are provided services by the Merchant (usually the invoiced entity or person);
18.5 ‘Customer Invoice’ means an invoice issued by the Merchant to a Customer;
18.6 ‘Dishonour Fee’ means the fee set out in Annexure A relating to dishonoured direct debit transactions;
18.7 ‘Fee’ means the fees payable to the Supplier as set out in Annexure A;
18.8 ‘Fee Shortfall’ means, on a look back basis, any Fees for a calendar month that remain unpaid and are due to the Supplier;
18.9 ‘GST’ means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST Act’) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
18.10 ‘Merchant’ means the entity specified in the Schedule;
18.11 ‘Payment On Terms’ means an agreement between a Customer and the Merchant or a third party financier where the Customer agrees to pay a Customer Invoice in a scheduled series of instalment payments. The agreement for payment on terms will be issued by the Software and comply with the System Business Rules;
18.13 ‘Passable Fees’ means certain Fees specified in Annexure A as giving the Merchant the ability to pass on those fees to the Customer;
18.14 ‘Services’ mean the services to be provided by the Supplier to the Merchant specified in clause 3 or as otherwise agreed between the parties;
18.15 ‘Shortfall Invoice’ means an invoice which details any Fee Shortfall payable by the Merchant in the previous calendar month for each of the relevant Customer Invoices;
18.16 ‘Software’ means the software provided and/or operated by the Supplier as part of the Services to support the System;
18.17 ‘Supplier’ means Onebox Professional Pty Limited ABN 52 613 105 561 for merchants that are Lawyers or accountants OR OneBox Services Pty Ltd ABN 88 613 105 776, for merchants that are neither a legal or accounting firm, both trading as Apxium and/or nominee;
18.18 ‘System’ includes the debt collections management system and processes operated by the Supplier, including through the Software, in relation to the collection of payments from Customers in connection with the payment of Customer Invoices and the process by which those payments are paid to the Merchant;
18.19 ‘System Authorised Administrators’ means those staff members of the Merchant that are nominated by the Merchant to have System administration rights when accessing the Software’;
18.20 ‘System Business Rules’ means the ‘System Business Rules’ set out in the Schedule; and
18.21 ‘Term’ means the period commencing on the Commencement Date until terminated in accordance with this Agreement.