This licence is given on the execution of you accepting
this licence as logged by our System
by RAMCO
ENTERPRISES PTY LTD (ABN 31 084 237 043) trading as SCNet of Level
3, 267 St George’s Terrace, Perth, Western Australia, 6000 ("us",
"we" or, "our")
to the company,
person or other legal entity described in the "Customer" ("you",
"your" or "the Merchant")
We are a provider and certified reseller of
a system for the conduct of online commerce comprising:
(a) an Internet payment gateway which is
licensed to us and which manages a connection to a final payments clearance
system; and
(b) Merchant
software, which enables you to connect via the Internet to the Payment Gateway.
1. Definitions
In this licence unless the context
otherwise requires:
“Adjustment”
has the meaning given to that term by the GST Law;
“Adjustment Event”
has the meaning given to that term by the GST Law;
“Adjustment Note”
has the meaning given to that term by the GST Law;
“Annual Licence and
Support Fee” means the annual licence and support fee
specified on the System;
“Confidential Information”
means information relating to the subject matter of this licence and includes
information relating to:
(i) the design,
specifications and content of the Merchant Software;
(ii) the
System;
(iii) the
Documentation;
(iv) the
personnel, policies, clientele or business strategies of either party;
(v) information
about our income, costs, profitability and economic future of the System;
(vi) the
terms of this licence; and
(vii) all
information which is disclosed to us by or on behalf of you or which is
otherwise acquired by us directly or indirectly from you, whether the information
is in oral, visual or written form or is recorded in any other medium and
whether the information is so disclosed or acquired before or after the date of
this Agreement, and includes (without limitation) information relating to
content, strategies, business and marketing plans, financial and other
projections, arrangements and agreements with third parties, ideas, concepts,
rating details, financial and accounting information, manuals and catalogues.
"Customer" is
the person, company or legal entity logged in as a customer to our System.
“Data”
means any data or information transmitted, received or stored by you using the
Merchant Software or the System or any part of them;
“Designated Territory”
means
“Documentation”
means the SCNet iPayBy E-Commerce Merchant Server – Installation and
Implementation Guides;
“Force Majeure”
means fire, flood, meteorological event, strike, industrial action, war, civil
disturbance, Act of God, or any other event outside the reasonable control of a
party that causes the delay or failure by that party to perform its obligations
under this licence PROVIDED THAT a failure by us to procure the Software, the
System or the Documentation for you or any services from a third party for you
shall not be an event of Force Majeure;
“GST”
means the goods and services tax as imposed by the GST Law together with any
related interest, penalties, fines or other charges;
“GST Amount”
means in relation to a Taxable Supply the amount of GST for which the supplier
is liable in respect of the Taxable Supply calculated on the basis that the
Value of the Taxable Supply is the consideration payable for the Taxable Supply
excluding any amount payable pursuant to Clause 10.1;
“GST Group”
has the meaning given to that term by the GST Law;
“GST Law”
has the meaning given to that term in A New Tax System (Goods and Services Tax)
Act 1999, or, if that Act does not exist for any reason, means any Act imposing
or relating to the imposition or administration of a goods and services tax in Australia
and any regulation made under that Act;
”Input Tax Credit”
has the meaning given to that term by the GST Law;
“Intellectual Property”
means any intellectual or industrial property including without limitation:
(a) patent,
trade mark or service mark, copyright, design, semi-conductor or circuit layout
rights, computer program, business name, trade secret or confidential
information, or
(b) any
licence or other right to use or to grant the use of any of them or to be the
registered proprietor or user of any of them.
“Invoice”
has the meaning given to that term by the GST Law;
“Licence”
means the licence granted by us to you pursuant to this licence;
“Merchant Agreement”
means an agreement between you and a bank or other financial institution that
permits you to clear debit or credit card payments using electronic
communication;
“Merchant Licence Fee”
means the transaction fees specified in Schedule 2 Item1;
“Merchant Software”
means the object code version of the SCNet iPayBy e-commerce software that
enables you access to the System as updated from time to time;
‘Payment”
means any amount payable under, by reference to, or in connection with this
Licence including, without limitation, the provision of any non-monetary
consideration and any amount dealt with by way of set off;
“Payment
Gateway” means the SCNet iPayBy e-commerce software and hardware
that provide a link with the banking network;
“Personal Credit Card
Number” means a series of characters relating to a credit card
that may be used by a person to carry out a Transaction using the Merchant
Software;
“Personal Information”
has the same meaning as defined in section 6 of the Privacy Act 1988 (as
amended).
“Privacy Obligations” mean the
obligations of us or you which:
(a) arise
under the Privacy Act 1988 (Cth) (as amended), any
guidelines or information directives issued by a Federal, State or Territory
Privacy Commissioner or any other law in respect of privacy and the confidentiality
of information about an individual; and
(b) relate
to any Personal Information handled (including but not limited to collected,
used, disclosed, stored and managed) by us or any of our employees, officers or
contractors in providing the services or our obligations set out in this
Agreement
“Representative Member”
has the meaning given to that term by the GST Law.
“Service Levels”
means the service levels specified in clause 11.6 of this licence;
“System”
means the online commerce system described in the Background at the beginning
of this licence as varied from time to time;
“Transaction”
means a financial transaction made by access to the Payment Gateway using the
Merchant Software;
“Transaction Fees”
means the transaction fees specified in Schedule 2 Item2;
“Tax Invoice”
has the meaning given to that term by the GST Law;
“Taxable Supply”
has the meaning given to that term by the GST Law;
”Value” has
the meaning given to that term by the GST Law.
”Chargeback” means
the fee charged by the bank to recover a disputed credit card transaction.
2. Interpretation
2.1 Words importing the
singular include the plural and vice versa and words importing a gender
includes each other gender and words denoting individuals shall include
corporations.
2.2 A reference to this
Licence or any other licence, instrument or deed includes the reference to this
Licence or such other licence, instrument or deed as amended, supplemented or
novated from time to time.
2.3 Headings are
inserted for convenience only and it is intended that they be ignored in
construing this Licence.
2.4 A reference to a
clause is a reference to a clause or sub-clause of this Licence.
2.5 A reference to a
sub-clause is a reference to a sub-clause of the clause in which that reference
is made.
2.6 Time shall be of the essence in the
performance of obligations under this Licence.
3. Delivery
We
shall deliver the Merchant Software and the Documentation to you via soft copy.
4. Duration
This
licence shall commence on the date of its execution and shall continue until
terminated as provided for in this licence.
5. Licence
We
grant to you a non-exclusive licence to use the Merchant Software in the
6. Access to the
System
During
the term of this licence we will provide you with access to the System upon the
terms of this licence.
7. Title
You
acknowledge that there is no transfer of title or ownership to you of the
Merchant Software or the Documentation or any modifications, updates, or new
releases of the Merchant Software.
8. Your Obligations
8.1 During this licence you shall:
(a) enter into and maintain
a Merchant Agreement;
(b) ensure your use of the
System and the Merchant Software is strictly in accordance with your Merchant
Agreement;
(c) ensure that all terms and
conditions of use and/or warning notices which we may prescribe for display to
online customers using commerce sites which use the System are displayed strictly
in accordance with our directions. However this subclause does not create any
obligation on us to create or recommend any appropriate terms and conditions of
use and/or warning notices;
(d) establish a fair policy for
dealing with refunds and disputes about Transactions;
(e) maintain for a period of at least 12 months
a copy of each audit log sent to you and each reference number supplied by us
for Transactions;
(f) comply with all
requirements which apply to you in the Documentation; and
(g) only permit use of or
access to the System for Transactions you reasonably believe are legitimate;
8.2 During this licence you shall not:
(a) permit use of or access
to the System except by operation of the Merchant Software and by any person
other than as contemplated by this licence;
(b) make or publish or cause to be made or
published any false, misleading, deceptive or mis-descriptive
statement or information in relation to the System, the Payment Gateway and/or
the Merchant Software which may give rise to any liability to us;
(c) disclose any Personal
Credit Card Number or information about the holder of any Personal Credit Card
Number or about any Transactions to any person other than:
(i) us,
(ii) the issuer of the
Personal Credit Card Number,
(iii) the bank or financial
institution which is a party to the Merchant Agreement,
(iv) as required by law,
and any such
information shall be securely stored;
(d) copy, alter, modify, reproduce or rent the
Merchant Software without our written consent except and only to the extent
permitted by law notwithstanding this limitation and except to the extent
authorised by this licence;
(e) decompile, disassemble, reverse assemble or
reverse compile or directly or indirectly allow or cause a third party to
decompile, disassemble, reverse assemble or reverse compile the whole or any
part of the Merchant Software.
9. Fees
9.1 You
will pay the Annual Licence and Support Fee and the Transaction Fees at the
time and in the manner specified in the Licence.
9.2 We
may vary the Transaction Fees or the Annual Licence and Support Fee no more
than once in any year upon giving you notice in writing not less than two (2)
months prior to any anniversary of the commencement of this licence such varied
rates to apply on and from the relevant anniversary date PROVIDED THAT the
Transaction Fees, the Annual Licence and Support Fee shall not increase as at
any review date by more than the following:
NR = ER x CPIa
CPIb
Where:
NR=
the Transaction Fees or the Annual Licence and Support Fee, as the case may be,
following the relevant review date
ER=
the Transaction Fees or the Annual Licence and Support Fee, as the case may be,
immediately prior to the relevant review date
CPIa= means the “Consumer
Price Index” (All Groups) (ABS Catalogue 6401 table 1) as at the relevant
review date
CPIb= means the “Consumer
Price Index” (All Groups) (ABS Catalogue 6401 table 1) as at the later of 1
January 2006 and the date of the previous review of the Transaction Fees or the
Annual Licence and Support Fee as the case may be
10. Payment
10.1 You
agree that;
(a) Unless expressly stated in writing by us
all Payments have been calculated without regard to GST and are inclusive of
other government taxes and imposts applicable to the supply of goods and
services or licence to use software including, without limitation, sales tax,
import duty and services tax. If any such taxes or imposts are or become
applicable, an amount equal to them shall be added to the fees and charges under
this licence and shall be payable by you to us;
(b) Both parties will comply with its
obligations under the Trade Practices Act 1974 when calculating the amount of
any Payment and the amount of any relevant Payments will be adjusted
accordingly;
(c) If a party (“the Recipient”) is liable to
make a payment or provide any other consideration to the other party (“the
Supplier”) under this Agreement (“the Payment”) for any supply of goods,
services or other things under this Agreement, the following principles apply
when determining the amount of the Payment:
(i) if GST is payable to the Australian Tax Office by the Supplier
in relation to the consideration for the supply, the Payment will be the
consideration specified in this Agreement, or as agreed between the Parties,
plus GST (if any) payable by the Recipient in respect of the taxable supply
component of the supplies made pursuant to this Agreement at the rate
prevailing at the time the Payment is made;
(ii) if the Payment is determined by reference to any cost, expense or
liability incurred by the Recipient, the reference to cost, expense or
liability means the actual amount incurred by the Recipient less the amount of
any GST input tax credit as
that term is described in section 195(1) of A New Tax System (Goods and
Services Act) 1999 that the Recipient is
entitled to claim in respect of that cost, expense or liability; and
(iii) if a party sets off an amount otherwise payable under this
Agreement, the principles set out above will be applied to calculate the amount
to be set off as if that amount had been paid.
(d) Notwithstanding any
other provision in this Agreement, the Recipient is not required to pay any GST
in relation to a supply unless and until the Recipient receives from the
Supplier a tax invoice that complies with the requirements of A New Tax System
(Goods and Services Act) 1999 or a document that will so comply on payment by
the Recipient.
(e) Each party agrees
to do all reasonable things within a reasonable period of being requested by the
other party, including providing invoices, adjustment notes or other
documentation containing stipulated information, which may be necessary or
desirable to enable or assist the other party to claim, in a timely manner, any
credit, set off, rebate or refund in relation to any GST included in any
Payment made under this Agreement.
(f) This Agreement is
subject to any other agreement between the parties before or after the
Commencement Date which deals with, amongst other things, recipient created tax
invoices as that term is described in section 195(1) of A New Tax System (Goods
and Services Act) 1999.
(g) For non-payment
of our Invoice (pursuant to subclause 10.2) Schedule 2. Item 1 and Item 2 and
no contract termination notification from you (pursuant to subclause 16.1),
You, The Customer ,give us authority to deduct the Merchant Licence Fee and
Transaction Fees (Schedule2 Item 1 and Item 2) from any registered Credit Card
in our system belonging to you The Customer.
(h) We reserve the
right to charge You, a Reconnection fee pursuant to
subclause 10.2
(i) You will pay any Chargeback, Reconnection Fee or Debt
Recovery Fee by the Bank or Us pursuant to subclause
10.2 If you default in
any undisputed payment to us:
(a) we may upon 3 Business days’ notice in
writing or via email notification suspend or cancel all further access to the
System (whether those services are services under this licence or any other
services provided by us); and
(b) you will pay all
collection costs and the legal fees incurred by us as a result of that default.
10.3 Except
in the case of a bona fide dispute, you will pay the license, support and
Transaction Fees to us within 30 days of receipt of our Invoice. If there is a
bona fide dispute in relation to any invoice then the undisputed portion shall
be paid in accordance with these terms of payment. We shall invoice you for the
Fees in accordance with the provisions of Schedule 2. The Fees are not
refundable (whether in whole or in part) to you.
11. Warranties and
Support
11.1 We warrant that:
(a) we have the right to
enter into this licence and to grant to you the rights herein granted;
(b) that the Software, the
System and the Documentation does not infringe any Intellectual Property rights
of any third party;
(c) the Software and the
System are suitable for the purpose for which it is intended; and
(d) the Merchant Software
will operate in conformity with the Documentation in all material aspects;
(e) the Documentation is
sufficient to enable you to operate the Software and the System.
11.2 If
at any time during the term of this Agreement you believe there is a defect in
the Merchant Software you shall notify us in writing.
11.3 If
at any time during the term of this Agreement you believe there is a defect in
the Merchant Software such that the Merchant Software does not comply with or
cannot be used in accordance with the Documentation:
(a) you shall notify us in
writing of such perceived defect;
(b) upon the verification
of the existence of the defect, we will rectify such defect without additional
charge to you;
(c) if after
investigation by us it is revealed that no such defect in fact exists, we may
make a reasonable additional charge in respect of such investigation.
11.4 Except
for the warranties set out in this Agreement and any warranty which cannot be
excluded by law all other warranties whether express, implied statutory or
otherwise relating in any way to this licence, including, without limitation
any warranty that any of the goods or services provided under this licence are
fit for a particular purpose are excluded.
11.5 We shall not be
obliged to put in place any substitute or alternative system should there be a
failure of or delay in the provision of the System except in the event that the
failure to provide the System is due to a breach of the provisions of clause
13.
11.6 We shall use our
best endeavours to achieve the following service levels:
(a) 98% availability of the System other than
outages to which clause 17 applies.
11.7 In consideration
for payment of the Annual Licence and Support Fee, we shall provide email
and/or telephone assistance for any technical issues encountered with the
Merchant Software or the System.
11.8 Without limiting
any other provision of this licence, you acknowledge that:
(a) performance of the System is
dependent on a number of factors outside our control, including traffic on and
technical difficulties with the Internet and the performance of the financial
payments clearance system;
(b) the System is secure
within certain technical boundaries which you have considered;
(c) payment and payment
clearance operates on the terms and conditions of the Merchant Agreement;
(d) there may be temporary
interruptions to the System
and you agree that,
without limitation, we shall not be liable for any loss or damage which you or
a third party may suffer due solely or in part as a result of one or more of
these factors, except where such factors are caused by our act or omission or the
act or omission of our officers, employees, agents or contractors or as
otherwise provided for in this agreement.
11.9 Given the
acknowledgements set out in sub-clause 11.8, we do not warrant that:
(a) access to the System will
be continuous or uninterrupted;
(b) the System will
provide you with a totally secure or confidential means of communication;
(c) the data transmitted
or received by you through the use of the System will be accurate or virus
free;
(d) the Merchant Software
is free from defects; or
(e) the Merchant Software
will operate without interruption or errors.
12. Liability
12.1 We indemnify and
shall keep you indemnified in relation to all direct loss, costs, expenses,
liabilities, fees and claims which you may suffer or incur arising in relation
to:-
(a) a material breach of
any of our obligations or a material breach of a warranty contained in this
licence; or
(b) our inability to
provide access to the System at the times and on such availability as detailed
in the Service Levels;
(c) our negligence;
or of our
employees, agents or contractors PROVIDED THAT such indemnity is reduced
proportionally to the extent that the above is caused by or as a result of your
negligence or the negligence of your employees, agents or subcontractors.
12.2 Where the law
implies any term in this licence, which cannot by law be excluded, then that
term is included in this licence. Our liability for any breach of such an
implied term will be limited, at our option, to the following:
(a) in the case of the provision
of services to the supplying of those services again, or the reasonable cost of
supplying those services again; and
(b) in the case of the
provision of goods to the replacement of those goods or the supply of
equivalent goods (or the reasonable cost of the same, the repair of those goods
or the reasonable cost of repairing those goods).
12.3 Without limiting
subclause 12.1 we shall not be liable to you:
(a) for any Transaction
disputed by any person;
(b) for any claims
resulting from fraudulent use of a Personal Credit Card Number or a credit
card; and/or
(c) any breach of the
Merchant Agreement
except to the extent that
the above is caused by or as a result of our negligence or the negligence of
our employees, agents or subcontractors.
12.4 We shall not be
liable under this licence to the extent that a defect is caused by you or a
third party, including your failure or the failure of a third party to:-
(a) integrate the Merchant
Software with other software;
(b) maintain the operating
environment designated in the Documentation; or
(c) otherwise use the
Merchant Software in accordance with specifications issued by us from time to
time, whether in the Documentation or otherwise.
12.5 Subject to clause
14, in no event will we be liable to you for any remote, indirect,
consequential, special or incidental damages, including without limitation,
damages resulting from loss of data, loss of profits or business interruption,
or cost of cover, whether based on breach of contract, tort (including
negligence), product liability or otherwise. This limitation will apply even if
we have been advised of the possibility of such damages.
12.6 Regardless of the
form of action our aggregate liability to you for all claims by you against us
arising under this licence or our performance of this licence, shall not
exceed:-
(a) $AUD100,000; and
The limitation of
liability under this clause 12 shall not apply in relation to:
(1) any claims, liabilities, losses,
damages, expenses and costs incurred by you due to our fraudulent act or
omission, wilful misconduct or wilful default or the fraudulent act or
omission, wilful misconduct or wilful default of our officers, employees,
agents or contractors;
(2) our liability under clauses 13, 14 or
15 or any liabilities, losses, damages, expenses and costs incurred by you
under clauses 13, 14 or 15.
13. Intellectual
Property Rights
13.1 All Intellectual
Property in the Merchant Software and the System remains with Ramco Enterprises
Pty Ltd.
13.2 Subject to clauses
13.3 and 13.4 we shall indemnify you against all claims, liabilities, losses,
damages, expenses and costs (including solicitors fees and costs) but limited
to direct losses or damages only arising out of, in connection with or relating
to a claim brought by a third party against you alleging that your use of the
System and/or Merchant Software constitutes an infringement of their
Intellectual Property. In addition to the above, if your use of the Merchant
Software and/or the System and/or the Documentation is enjoined, or if in our
judgment it is likely to be enjoined, we shall at our expense either (a)
substitute equivalent non-infringing software for the infringing item, (b)
modify the infringing item so that it no longer infringes but remains
functionally equivalent, or (c) obtain for you the right to continue using such
item.
13.3 We will not
indemnify you as provided in subclause 13.2 unless you:
(a) notify us in writing as
soon as practicable of any infringement, suspected infringement or alleged
infringement which becomes known to you;
(b) give us the option to
conduct the defence of such a claim, including negotiations for settlement or
compromise prior to the institution of legal proceedings;
(c) provide us with reasonable
assistance in conducting the defence of such a claim;
(d) permit us to modify,
alter or substitute the infringing part of the Merchant Software, at our
expense, to render the Merchant Software non-infringing; and
(e) authorise us to procure for
you the authority to continue the use and possession of the Merchant Software.
13.4 We shall not
indemnify you if such infringement, suspected infringement or alleged
infringement arises from:
(a) use of the System
and/or Merchant Software in combination by any means and in any form with
unsuitable goods or services;
(b) use of the System
and/or Merchant Software in a manner or for a purpose not reasonably
contemplated or not authorised by us; or
(c) modification or alteration of
the System and/or Merchant Software without our prior consent in writing.
13.5 You shall indemnify
us against any direct loss, costs, expenses, demands or liability, arising out
of a claim by a third party alleging such infringement to the extent that:
(a) the claim arises from
an event specified in subclause 13.4; or
(b) our ability to defend
the claim has been prejudiced by your failure to comply with the provisions of
subclause 13.3.
13.6 You shall ensure
each copy of the Merchant Software made pursuant to this licence, on whatever
media it may be made, bears notice of Ramco Enterprises Pty Ltd’s
Intellectual Property.
13.7 Where any of Ramco
Enterprises Pty Ltd trademarks are used on or in relation to the Payment
Gateway, the System and Merchant Software then the Payment Gateway, the System
and Merchant Software and all representations of such trademarks shall be
clearly marked or accompanied with a clear and legible statement that the trade
mark is a registered trade mark (if it is registered) and that Ramco
Enterprises Pty Ltd are the owners of the trade mark.
13.8 You will not make
or publish or cause to be made or published any false, misleading, deceptive or
misdescriptive statement or information in relation
to the Payment Gateway, the System and/or Merchant Software which may give rise
to any liability to us and you shall fully indemnify us and keep us indemnified
against any liability arising from or by reason of any such false, misleading,
deceptive or misdescriptive statement or information
in relation to the Payment Gateway, the System and Merchant Software or any
part of it.
14. Confidentiality and
Data
14.1 Neither party as
recipient shall, without the disclosing party’s prior written approval,
disclose any Confidential Information nor use the Confidential Information
except to exercise that party’s rights or obligations specified under this
licence.
14.2 Recipient shall
take all reasonable steps to ensure that their employees and agents, and any
sub-licencees who need to know the disclosing party’s
Confidential Information do not make it public or disclose any of it to any
third party.
14.3 Recipient shall on
demand return to the disclosing party any documents supplied in connection with
this licence.
14.4 The duty of
confidentiality referred to in this clause 14 will not extend to such of the
Confidential Information as
(a) was known to the party
receiving the Confidential Information;
(b) was in the public
domain, but not known to the party receiving the Confidential Information,
prior to the date of this licence;
(c) comes into the public
domain subsequent to the date of this licence otherwise than a result of a
breach of this licence; or
(d) is disclosed by the
party receiving the Confidential Information as required by law.
14.5 The
onus of proof of the matters set forth in clause 14.4 shall be upon the party
receiving the Confidential Information;
14.6 In
respect of Data:-
(a) We may monitor,
record and store the Data or any part of it.
(b) We will treat the
Data as confidential and will not without your prior written consent disclose
information comprising the Data to a third party except as required by law or
by a Merchant or a financial institution who can satisfy us that they are
entitled to such Data.
(c) We will use our
best endeavours to secure the Data and prevent unauthorised access to it.
14.7 This
clause 14 shall survive the termination of this licence and continue until the
obligation of confidentiality is released in writing by the discloser or an
event contemplated by clause 14.4 occurs.
15. Privacy
15.1 If
you disclose to us or if we have access to any Personal Information in
connection with your use of the System or the Merchant Software we:
(a) must at all times
comply with all our Privacy Obligations;
(b) must not engage in any
act or practice that is an interference with the privacy of an individual
(within the meaning of the Privacy Act 1988 (Cth));
(c) must take all
reasonable steps to ensure that the Personal Information is protected against
misuse and loss and from unauthorised access, modification or disclosure;
(d) must not, directly
or indirectly use any Personal Information except to the extent necessary to
enable you to use the System and the Merchant Software in accordance with this
licence; and
(e) must not disclose
Personal Information whether directly or indirectly to any person except on a
need to know basis, as required by law or with your prior written consent.
16. Termination
16.1 You may terminate
this licence by giving us thirty (30) days’ notice in writing prior to any
anniversary of the commencement of this licence.
16.2 We may terminate
this licence by giving you not less than thirty (30) days’ notice in writing
prior to any anniversary of the commencement of this licence.
16.3 We may terminate
this licence by notice if any undisputed payment due from you to us under this
licence remains unpaid for a period of thirty (30) days after the due date;
16.4 Without limiting
the rights which you or we may otherwise have arising from a breach of this
licence, you or we may terminate this licence immediately by notice in writing
if:
(a) the other party
breaches any clause of this licence and such breach is not remedied within
thirty (30) days of receipt of written notice by the first party;
(b) you or we become
subject to any form of insolvency administration;
(c) you or we, being a
partnership, dissolve, or resolve to dissolve or are in jeopardy of dissolving;
(d) the System fails to meet the Service Levels
during a period in excess of 5 consecutive business days in any one calendar
month; or
(e) if we deem the
Customer has engaged in any fraudulent activity whether proven by law or
otherwise.
16.5 If this licence is
terminated pursuant to subclauses 16.1, 16.2, 16.3 or 16.4 or otherwise by you
or us, we may, in addition to any additional or alternative remedies provided
by law:
(a) repossess computer programs,
documentation and equipment relevant to this licence;
(b) retain all moneys already
due and received from you;
(c) charge a reasonable sum
for work performed for which no sum has previously been paid; and
(d) both parties will be
deemed to be released from any further obligations under this licence except in
relation to the obligations specified in clauses 12, 13, 14 and 15 which
survive the termination or expiration of this licence.
17. Force Majeure
17.1 Neither
party shall be liable for any delay or failure to perform its obligations
pursuant to this licence if such delay is due to Force Majeure.
17.2 If
a delay or failure of a party to perform its obligations is caused or
anticipated due to Force Majeure, the performance of that party’s obligations
will be suspended.
17.3 If
a delay or failure by a party to perform its obligations due to Force Majeure
exceeds sixty (60) days, either party may immediately terminate the licence on
providing notice in writing to the other party.
17.4 If
this licence is terminated pursuant to subclause 17.3, we shall refund moneys
previously paid by you pursuant to this licence for goods or services not provided
by us to you.
18. Status
Neither
party is the partner or agent of the other party nor does either party have the
power or authority, directly or indirectly or through its servants or agents, to
bind the other party to any licence with a third party or otherwise to
contract, negotiate or enter into a binding relationship for or on behalf of
the other party, except as provided by this licence.
19. Sub-contracting
We
may in our discretion sub-contract the performance of any one or more of our
obligations under this licence. The appointment of subcontractors by us shall
not relieve us from any or all of our liabilities or obligations under this
Agreement nor create any liability or obligation on you. We shall be liable for
the acts and omissions of our subcontractors and employees, officers’ agents
and contractors of subcontractors as if they were our acts and omissions. We
shall properly manage and supervise any subcontractor so appointed or engaged
and shall cause each of them to comply with the terms of this Agreement.
20. Assignment and
other dealings
Except
as expressly stated in this licence, this licence shall not be dealt with in
any way by either party (whether by assignment, sub-licensing or otherwise)
without obtaining the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed.
21.
Variation
and
Waiver
21.1 No
right under this licence shall be deemed to be waived except by notice in
writing signed by you and us.
21.2 A
waiver by us of any rights or of your obligations under this licence will not
prejudice our rights in respect of any subsequent breach of this licence by
you.
21.3 Any
failure by us to enforce any clause of this licence, or any forbearance, delay
or indulgence granted by us to you, will not be construed as a waiver of our
rights under this licence.
22. Entire Licence
This
licence and the Invoice constitute the entire licence between the parties for
the subject matter of this licence. Any prior arrangement, licences,
representations or undertakings are superseded. No modification or alteration
of any clause of this licence will be valid except in writing signed by each
party.
23. Severability
If any provision of this licence is held
invalid, unenforceable or illegal for any reason, this licence shall remain
otherwise in full force apart from such provision which shall be deemed
deleted.
24.
Governing Law
This
licence shall be construed in accordance with the laws of
25.
Notices
25.1 Notices under this licence may be
delivered by hand, by mail, by electronic mail or by facsimile to the addresses
as notified to the other from time to time.
25.2
Notice will be deemed given:
(a) in the case of hand
delivery, immediately upon delivery to an officer or other duly authorised
employee, agent or representative of the receiving party;
(b) in the case of
posting, three (3) days after dispatch;
(c) in the case of
facsimile, upon completion of transmission; and
(d) in the case of
electronic mail, upon actual receipt.
provided
that, if the transmission of a facsimile or electronic mail occurs after 4pm on
a business day, it will be deemed to have been transmitted at 9am on the next
business day.
26.
Execution Warranty
26.1
The person executing this licence for and on your behalf warrants that s/he has
your authority to execute this licence on your behalf. By accepting the
following statement on purchase and checking the box indicating you have read
the "Terms and Conditions" you, The Customer are bound by the terms
and conditions in this contract. The following paragraph provides an example of
the box you have checked indicating your acceptance.
Terms and
Conditions
Please acknowledge the terms and conditions bound to this order by ticking the
following box. The terms and conditions can be read here.
[] I have read and agreed to the terms and conditions bound to this order
Schedule
2. FEES
Item1.
Merchant Licence Fees:
Whereby
the Annual Licence and Support Fee has not been previously invoiced by Us, the Merchant Licence Fee will be indicated on the order
total and is payable on the date of Execution of this Agreement on the date of
the order placement in the System. The Annual Licence and Support fee is due
per annum, the such per annum payment is payable on the date of execution of
this Agreement or the 1st day of the current month, whichever is sooner.
Item2.
Transaction Fees:
Any
Transactions not previously invoiced by Us will be
charged at 40c (ex GST) per transaction, commencing on the date of Execution of
this agreement payable in arrears within 15 days of the invoice date.