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.
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;
“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.
2.1 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.
We shall deliver the Merchant Software and the Documentation to you via soft copy.
This licence shall commence on the date of its execution and shall continue until terminated as provided for in this licence.
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.
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:
(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.
9.1 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
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
10.1 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.
12.1 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.
15.1 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.
16.1 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.
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.
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.
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
licence shall be construed in accordance with the laws of
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.
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.