Agreement<\/strong><\/span><\/h3>\nThe Supplier will provide the Services to the Merchant in consideration for the Fees during the Term on the terms and conditions set out in this Agreement.<\/span><\/li>\n\nFees<\/strong><\/span><\/h3>\n\n- In consideration for the Supplier providing the Services, the Merchant will pay the Supplier the Fees.<\/span><\/li>\n
- Without limiting the Merchant\u2019s liability in respect of unpaid Fees, the Merchant may pass on the cost of Passable Fees directly to Customers who must pay the relevant Fees directly to the Supplier through the System.<\/span><\/li>\n
- The Merchant must pay any Fee Shortfalls in respect of a preceding calendar month within three business days of being issued a Shortfall Invoice by the Supplier.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Services<\/strong><\/span><\/h3>\nThe Services to be provided by the Supplier under this Agreement are as follows:<\/span><\/p>\n\n- providing web-access to and use of the Software to the Merchant and its Customers;<\/span><\/li>\n
- systematically collecting Customer payments of outstanding Customer Invoices in accordance with the procedures outlined in the Agreement, including:<\/span>\n
\n- 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;<\/span><\/li>\n
- 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);<\/span><\/li>\n
- processing Customer Invoice payments from Customers and forwarding such payments to the Merchant;<\/span><\/li>\n
- issuing payment reminder notices to the Customers via email and\/or short message services (\u2018SMS\u2019); and<\/span><\/li>\n
- providing Merchant administrators with access to online reports and visibility as to Customer payment performance in terms of paying outstanding Customer Invoices.<\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n
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Dishonour Fees<\/strong><\/span><\/h3>\n\n- Each time a direct debit on a Customer\u2019s 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\u2019s bank) then the Dishonour Fee may be invoiced and debited to the Merchant as a Fee Shortfall in accordance with this Agreement.<\/span><\/li>\n
- The Supplier will promptly issue dishonour notices via email and SMS to all Customers that dishonour on their payments.<\/span><\/li>\n
- The Merchant will have timely access to reports of dishonoured direct debits on Customers\u2019 nominated bank accounts or credit cards via the Software.<\/span><\/li>\n
- 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 \u2018Suspend Collections Activities\u2019.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Customer Invoices<\/strong><\/span><\/h3>\nThe Supplier will only provide the Services in respect of a Customer Invoice if:<\/span><\/p>\n\n- the Merchant and\/or its agent creates a valid Customer Invoice as required by law; and<\/span><\/li>\n
- the Supplier or its agent is granted access to the Customer Invoice data and the Customer\u2019s personal information including contact details and email addresses for the purpose of providing the Services; and<\/span><\/li>\n
- the Supplier has (at its absolute discretion) accepted the Customer Invoice into the System.<\/span><\/li>\n<\/ul>\n<\/li>\n
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System<\/strong><\/span><\/h3>\n\n- The Supplier may, in its absolute discretion, reject any and all Customer Invoices from the System.<\/span><\/li>\n
- 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:<\/span>\n
\n- 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 \u2018Uniform Resource Locator\u2019) link to connect to a secure payment gateway for the purpose of settling the Customer Invoice(s);<\/span><\/li>\n
- 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:<\/span>\n
\n- a. credit card payments will be settled directly to the Merchant with next day settlement (subject to any relevant processing cut-off times); and<\/span><\/li>\n
- b. all bank account direct debit payments will be settled directly to the Merchant on the day of being confirmed as \u2018cleared funds\u2019 (usually three business days post direct debit of a Customer bank account) subject to any relevant processing cut-off times.<\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n
- 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.<\/span><\/li>\n
- The Merchant and the Supplier must comply with the System in respect of each Customer Invoice accepted into the System.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Notify Customer payments received (only applies to server based accounting systems)<\/strong><\/span><\/h3>\nIf 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 \u2018Manual Payment Received\u2019.<\/span><\/li>\n- \n
Software<\/strong><\/span><\/h3>\n\n- The Supplier is the owner of the Software and any copies of the Software coding remain the property of the Supplier.<\/span><\/li>\n
- 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.<\/span><\/li>\n
- The Merchant (via System Authorised Administrators) will use the Software to generate reports and manage the System.<\/span><\/li>\n
- The Merchant must ensure the Software including any part of it is used strictly in accordance with this Agreement.<\/span><\/li>\n
- The Merchant must not attempt to copy or replicate (including but not limited to by reverse engineering) the Software.<\/span><\/li>\n
- 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.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Warranties<\/strong><\/span><\/h3>\n\n- The Merchant warrants in respect of each Customer Invoice submitted to the Supplier for participation in the System that:<\/span>\n
\n- the full amount of the Customer Invoice is unpaid (or such lesser amount as the Supplier approves);<\/span><\/li>\n
- 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;<\/span><\/li>\n
- the Customer Invoice has been validly rendered to the Customer by the Merchant; and<\/span><\/li>\n
- the Customer is an arms length party to the Merchant.<\/span><\/li>\n<\/ul>\n<\/li>\n
- 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:<\/span>\n
\n- 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 <\/em>(Cth), the Personal Information Protection and Electronic Documents Act<\/em> (Canada), and any other similar privacy laws applicable to enable the Supplier to access and use the Customer\u2019s personal information to provide the Services; and<\/span><\/li>\n
- the Merchant has provided the Customer with a link to the Supplier\u2019s privacy policy (as notified by the Supplier).<\/span><\/li>\n<\/ul>\n<\/li>\n
- 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 <\/em>(Cth) (Australia), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act<\/em> (Canada), and any regulations, rules and other subordinate instruments promulgated thereunder.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Indemnity<\/strong><\/span><\/h3>\nThe 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:<\/span><\/p>\n\n- 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;<\/span><\/li>\n
- any act or omission of the Merchant and\/or its agents (including any System Authorised Administrators);<\/span><\/li>\n
- any failure to comply with a condition of this Agreement or a breach of warranty under this Agreement; and<\/span><\/li>\n
- any failure of the Merchant to comply with any law relevant to the provision of the Services.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Compliance with Privacy Policy <\/strong><\/span><\/h3>\n\n- The Supplier maintains its privacy policy in compliance with the provisions of the Australian Privacy Act<\/em> 1988 (Cth), the Personal Information Protection and Electronic Documents Act<\/em> (Canada), and any other similar privacy laws applicable in relation to any personal and sensitive information that the Supplier collects about the Merchant and Customers.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Termination<\/strong><\/span><\/h3>\n\n- The Supplier may terminate this Agreement:<\/span>\n
\n- at any time by providing seven days written notice to the Merchant; or<\/span><\/li>\n
- immediately at any time without notice and with immediate effect if the Merchant engages in a serious or material breach of this Agreement.<\/span><\/li>\n<\/ul>\n<\/li>\n
- The Merchant may terminate this Agreement at any time by providing written notice to the Supplier without cost penalty.<\/span><\/li>\n
- Upon termination:<\/span>\n
\n- the Merchant\u2019s access to the Software will cease; and<\/span><\/li>\n
- the Supplier will cease providing the Services.<\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n
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Confidentiality<\/strong><\/span><\/h3>\n\n- 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.<\/span><\/li>\n
- 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.<\/span><\/li>\n
- This clause will survive termination of this Agreement for a period of three years.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Standard terms<\/strong><\/span><\/h3>\n\n- This Agreement may only be amended in writing signed by the parties.<\/span><\/li>\n
- This Agreement is governed by the laws of Canada.<\/span><\/li>\n
- This Agreement constitutes the entire agreement between the parties as to the subject matters on which it provides.<\/span><\/li>\n
- 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.<\/span><\/li>\n
- This Agreement may be signed in counterparts or accepted by electronic means.<\/span><\/li>\n
- An obligation under this Agreement cannot be waived except by a written instrument executed by the party and specifying the waiver.<\/span><\/li>\n
- 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.<\/span><\/li>\n
- 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.\u00a0 All other provisions of this Agreement continue to be valid and enforceable in accordance with their terms.<\/span><\/li>\n
- 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.<\/span><\/li>\n
- 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.<\/span><\/li>\n<\/ul>\n<\/li>\n
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Relationship<\/strong><\/span><\/h3>\nNothing in this Agreement creates a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.<\/span><\/li>\n- \n
Offer and acceptance<\/strong><\/span><\/h3>\nThe parties agree to be bound by the terms of this Agreement by:<\/span><\/p>\n\n- the Merchant providing this Agreement and the completed Schedule to the Supplier in any reasonable format including online; and<\/span><\/li>\n
- the Supplier communicating acceptance of this Agreement to the Merchant in any reasonable manner (including through an online acceptance process).<\/span><\/li>\n<\/ul>\n<\/li>\n
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Interpretation<\/strong><\/span><\/h3>\n\n- In this Agreement, unless the contrary intention appears:<\/span>\n
\n- a person includes any other legal entity and vice versa;<\/span><\/li>\n
- the singular includes the plural and vice versa;<\/span><\/li>\n
- a gender includes the other gender;<\/span><\/li>\n