Your membership number is:
1. (Definitions) In this Agreement:
"Account" means the account, logon name and password, provided by Us to You for the purpose of You accessing and using the System.
"Acquiring Bank" means the bank or financial institution that You nominate to process credit or debit card payments on Your behalf.
"Administrator Profile User" means a User on Your Account who can create and delete, or revoke the authorisation of, other Users and who administers the payments of Your Fees.
"Business Day" means a day which is not a Saturday, Sunday or a national public holiday in Australia.
"Confidential Information" means all Information disclosed by a party to the other, whether orally or in writing, that is designated as confidential or that ought reasonably be understood to be confidential. Information will not be Confidential Information where:
"Customer" means any third party who owes You money for goods or services which You have or will supply to them.
"Data" means Information contained in Transactions; Information You enter into the System and the results of processing Information as part of Your use of the Services.
"Disclosing Party" means a party disclosing Confidential Information to the other.
"Effective Date" means the date You accept this Agreement by indicating Your acceptance on Our Website or by executing an Order that references this Agreement
"Fee" means the applicable fees (exclusive of all applicable taxes) payable pursuant to this Agreement, in accordance with the Pricing Page, for the Services You elect to Use, and includes annual fees, monthly fees and usage fees.
"Information" includes, but is not limited to, all Orders, Data, records, reports, documents, instruction manuals, code and other data (including without limitation data in electronic form) We provide to You in connection with this Agreement.
"Intellectual Property" means any intellectual or industrial property including without limitation any patent, trade mark or service mark, copyright, design, business name, trade secret, know-how or business process.
"Malicious Code" means code which contains a virus, worm, trojan horse or any other harmful or malicious component or program.
"Month" means a calendar month. If a period of months commences on a date in a month and there is no corresponding date in the month in which it is to end, it will end on the last Business Day of that month.
"Order" means the online forms, work requests, or written proposals for purchase of Services entered into between You and Us from time to time, including by Your completion of a form on the Web Portal.
"Payment Scheme" means each of the MasterCard, Visa, American Express or Diners Club payment schemes.
"Personal Information" means the contact name, email address, mailing address and telephone number which You provide as part of the registration process.
"Pricing Page" means Our Pricing Page, as varied from time to time, available at www.merchantsuite.com or any other internet site notified by Us.
"Receiving Party" means a party receiving Confidential Information from the other.
"Services" means the services We provide as described on the Website and the Pricing Page, that are ordered by You under an Order or as part of a free trial (where available), as modified by Us from time to time. The Services include, without limitation, the processing of Transactions by the Software, the monitoring and controlling of Transactions by a business process, the extraction, storage and use of Data by the Software, the business applications provided by Us that you may elect to use as specified in an Order, any professional services We agree to provide at Your request to assist You in designing, building and testing solutions, and any assistance We provide to You.
"Software" means any software which is used to provide any part of the Services, including the 'MerchantSuite' software.
"System" means the Website, Web Portal, Software and all related Information technology infrastructure.
"Transaction" means the use of the Services to discharge a single debt owed to You by a Customer.
"Use, Usage" means the use of the Services including use of the Services to facilitate Transactions, the use of a unit of storage or the use of a value added service.
"User, Users" means an individual who is authorised by You to use the Services pursuant to the terms of this Agreement and who has been established with a logon and password by You.
"Web Portal" means the browser-based user interface of the Software available from the Website.
"Website" means Our website located at www.merchantsuite.com or any other internet site notified by Us.
"We, Us, Our" means MerchantSuite Pty Ltd (ABN 68 164 027 927), and any related body corporate or subsidiary of another entity of which We are also a subsidiary, as those terms are defined in the Corporations Act 2001 (Cth).
"You, Your" means the entity that has registered to use the Services pursuant to this Agreement and, where the context requires, includes each of Your Users.
"Your Data" means all Data or Information submitted by You to the System through Your Use of the Services.
2. (Provision of Services)
3. (Your Password) You will choose or be provided with a logon name and password to enable You to use the System and the Services. You undertake not to disclose the password to any third party and take all reasonable measures to prevent disclosure of the password to any third parties. You are liable for all use which is made of the Services using Your password.
4. (Restrictions on the Services)
5. (Use of Services by Customers) We will not be responsible for any damages or loss suffered by You or Your Customers arising (directly or indirectly) from or in connection with their use of the Services. You indemnify Us against all actions, claims, loss, damages, costs and expenses (including without limitation legal costs) arising (directly or indirectly) from or in connection with Your or Your Customer's use of the Services.
This Agreement commences on the Effective Date and continues until this Agreement is terminated pursuant to clause 18.
7. (Use of the Services)
8. (Your Acknowledgements)
You acknowledge and agree that:
9. (Mutual Warranties)
Each party warrants that:
10. (Our Warranties)
We warrant that.to the best of Our knowledge the Services do not infringe any third party Intellectual Property rights. Your exclusive remedy for a breach of this warranty is as set out in clause 18.
11. (Your Warranties)
You warrant that:
12. (Implied Warranties)
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL IMPLIED WARRANTIES, IN CONNECTION WITH THE PROVISION OF THE SERVICES.
Unless stated otherwise, the amounts payable under this Agreement are exclusive of the Australian Goods and Services Tax, if applicable, and any sales tax, goods and services tax, value added tax, or similar tax arising from this Agreement which becomes due in any jurisdiction. You acknowledge that it is Your responsibility to pay any sales tax, goods and services tax, value added tax, or similar tax arising from this Agreement which becomes due in any jurisdiction. If You are required by any law to pay withholding tax on the monies payable to Us under this Agreement, the total amount of the monies payable to Us under this Agreement will be increased by an amount such that the amount which You will in fact pay to Us after the deduction of withholding tax is equal to the amount stated as being payable to Us under this Agreement.
16. (Modification of Terms)
We reserve the right to modify terms and conditions of this Agreement at any time, effective upon notifying You of an updated version of this Agreement, in accordance with the notification requirements in clause 32 or by way of notification on the Website, and Your acceptance of the modifications. Continuing use of the Service after any such notification shall constitute Your acceptance of such modifications.
19. (Intellectual Property Rights)
20. (Confidentiality) Each party must treat as confidential and not disclose the other party's Confidential Information other than as provided under this clause or as permitted in writing by the Disclosing Party. A party may disclose any of the Confidential Information to:
21. (Compelled disclosure of Information) Where Confidential Information is disclosed as a result of a legal compulsion, the party making the disclosure must notify the Disclosing Party in writing prior to the disclosure.
22. (Assignment and Subcontracting)
23. (Waiver) Failure by either party to exercise or enforce any term of this Agreement will not be deemed a waiver of enforcement of that term or any other term. Other than as stated in this Agreement, the remedies provided are in addition to any other remedies available to a party at equity or law.
24. (Entire Agreement) This Agreement, including all Orders, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, communications, representations and understandings related to its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless made in writing and either signed or accepted electronically by the party against whom the amendment or waiver is to be asserted.
25. (Inconsistencies) To the extent of any inconsistency between the provisions in the body of this Agreement and any Order, the terms of the Order shall prevail.
26. (Further Assurances) At the reasonable request of the other party, a party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the actions contemplated by it.
27. (Force Majeure) A party is not liable for any delay or failure to perform an obligation (other than to pay money) under this Agreement to the extent that such delay or failure is beyond that party's reasonable control.
28. (No Agency or Partnership) Nothing in this Agreement is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party. No party has the authority to incur any obligation or make any representation or warranty on behalf of, or to pledge the credit of, any other party.
29. (Governing Law) Each party agrees that this Agreement is governed by and will be construed in accordance with the laws of the State of Victoria, Australia, and is subject to the exclusive jurisdiction of the courts of Victoria. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
30. (Enforceability) Any provision of this Agreement that is prohibited or unenforceable in a jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforcement of that provision in any other jurisdiction.
31. (Survival) The following clauses will survive termination or expiration of this agreement: Clauses 3, 5, 11, 14, 15, 17, 18, 19, 20, 21, 27, 28, 29, 30, and 32.
The contact details for Us are as follows:
Address: PO Box 19, CARLTON SOUTH VIC 3053