Aston Club Pty Ltd - Merchant Agreement v2

Introduction
A. You are in the business of providing Goods and Services to Your Customers.
B. You have requested that We provide You with Merchant Facilities. We have agreed to
provide You with the Merchant Facilities on and subject to the terms of this Agreement.
Part 1 - Commercial terms 1. Merchant Facilities
We agree to provide to You the Merchant Facilities in accordance with this Agreement. You agree to pay Us Our Fees and to otherwise comply with Your obligations under this Agreement.
2. Process
2.1 Each Customer who wishes to use the Merchant Facilities must:
2.1.1 before using the Merchant Facilities, download the App on their mobile device;
2.1.2 once Goods and Services have been received by that Customer from You, authorise payment for those Goods and Services (by the payment method available on the App nominated by that Customer) for the Goods and Services You provide to that Customer; and
2.1.3 once the payment authority has been given by that Customer, pay to Us, using the App, the price of those Goods and Services less the monetary amount being redeemed by that Customer of any Aston Club Voucher or Merchant Voucher for Us to hold as agent for You.
2.2 If a Customer is required to set the Pre Authorised Amount:
2.2.1 the total payments under clause 2.1.2 must not exceed the Pre Authorised
Amount; and
2.2.2 We will not be liable for any loss or damage You suffer or incur as a result of You providing Goods and Services above the value of the Pre Authorised Amount and You not being able to recover the amount in excess of the Pre Authorised Amount from the relevant Customer.
2.3 Y ou:
2.3.1 must allow all Customers to use the App to pay for Goods and Services
provided by You to Customers;
2.3.2 agree and irrevocably authorise Us to pay You the Transaction Funds, less Our Fees (‘Balance Funds’) into Your Nominated Account; and
2.3.3 must allow Customers to redeem Aston Club Vouchers and Merchant Vouchers through the Merchant Facilities for Goods and Services which You provide to Customers;

2.3.4 must not reload any amount or increase the amount of credit stored on any Aston Club Voucher or Merchant Voucher; and
2.3.5 must not market any Aston Club Voucher or Merchant Voucher other than as a gift voucher.
3. Fees and Payment
3.1 We will use Our best efforts to pay the Cash Funds to Your Nominated Account
within 10 business days of receiving the relevant Transaction Funds.
3.2 We will use Our best efforts to pay the Voucher Funds to Your Nominated Account within 60 business days after a redemption occurs in relation to that Aston Club Voucher.
3.3 You authorise Us to retain from the Transaction Funds in Our bank account without notice:
3.3.1 Our Fees, including all fees, charges and costs owing to Us by You whether under this Agreement or otherwise;
3.3.2 all amounts (including bank or other fees) referable to a Refund Event (including the Refund Fee) less any amounts in respect of such transaction already debited to Us;
3.3.3 costs, damages and losses You cause Us, including any amount We claim from You because of a breach of a condition, indemnity or warranty by You under this Agreement;
3.3.4 all taxes (including GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) on Our Fees) incurred or payable by You in connection with this Agreement; and
3.3.5 all fines, penalties and other charges incurred by Us as a result of any act or omission of Yours including a breach of this Agreement by You.
4. Refunds
4.1 You must notify Us if a Refund Event occurs.
4.2 If You notify Us that a Refund Event has occurred then, in Our absolute and unfettered discretion, We may (as directed in Our notice) either:
4.2.1 immediately refund so much of the Balance Funds as relates to a Refund Event (including the Refund Fee) to Us; or
4.2.2 set-off the amount payable to Us by You under clause 4.2.1 if that clause applied against future payments of the Balance Funds.
5. Failed Transaction
5.1 We may, in Our absolute and unfettered discretion do any one or more of the
following:
5.1.1 refuse to provide the Merchant Facilities;
5.1.2 revoke the POS System Licence; or

5.1.3 suspend any payments that are otherwise required to be made under this Agreement,
in relation to transactions involving one or more Customers.
5.2 The following transactions are examples of transactions for which We may exercise this discretion:
5.2.1 We become aware that the Merchant Facilities or POS Software are not operating, or are likely not to operate, correctly;
5.2.2 maintenance or repairs are required to the Merchant Facilities or POS Software;
5.2.3 the Transaction is illegal, including because it is in breach of any law governing, for example, the sale of prescription medicines, controlled substances or other regulated products;
5.2.4 the provider of point of sale equipment to You no longer supports the Merchant Facilities or POS Software;
5.2.5 the card used to deposit the Transaction Funds with Us is used without the authority of the cardholder;
5.2.6 the transaction is recorded in a currency other than Australian dollars;
5.2.7 the transaction value exceeds the Pre Authorised Amount set by a Customer, and We did not obtain authorisation for a transaction above the Pre Authorised Amount;
5.2.8 the Customer has not received the Goods and Services as required by the terms of the transaction between You and the Customer;
5.2.9 the Goods and Services to which the transaction relates were supplied from outside Australia without Our consent;
5.2.10 in Our reasonable opinion, the Customer justifiably disputes liability for the transaction for any reason;
5.2.11 the Customer makes a claim for set off or counter claim in respect of the transaction against Us; or
5.2.12 the transaction is not authorised by Us or the authorisation request is declined for any reason.
6. Promotional Material
6.1 We may supply You with signs, decals and other promotional material as agreed in
writing from time to time.
6.2 You must prominently display in Your premises each decal and other promotional material supplied by Us.
6.3 You must not use any of Our promotional material except as authorised by Us. You must not use the name, logo, any trademarks, brand names, business names or copyright belonging to Us or Qantas without Our prior written approval.

6.4 You authorise Us to publish the names, addresses, telephone numbers, facsimile numbers and email addresses of Yours and to use any logo applicable to You in any correspondence, circular or publication of Ours.
6.5 You may only publish, distribute or otherwise use promotional material that refers to the QFF Program or Qantas if We have provided Our prior written approval.
6.6 You must tell Us how You intend to publish, distribute or otherwise use Our, Qantas’s or Your promotional material. If We determine that You cannot publish, distribute or use the promotional material in a particular way, then You must not publish, distribute or use the promotional material in that way.
7. Merchant Vouchers
7.1 You may ask us to issue Merchant Vouchers. Any such request must specify the number and face value of each Merchant Voucher and the expiry date beyond which those Merchant Vouchers will not be capable of being redeemed.
7.2 We are not obliged to issue any Merchant Voucher and any Merchant Voucher we do issue may be cancelled or withdrawn by us for any reason prior to its redemption via the App.
7.3 We will not issue Merchant Vouchers for redemption by You that have not been authorised in advance by you.
8. POS Software
8.1 Use
8.1.1 We grant to You a revocable, non exclusive, non assignable licence to use the POS Software for the Permitted Use. You must not use the POS Software otherwise than in accordance with the Permitted Use (‘POS Software Licence’).
8.1.2 We may deliver the POS Software to You electronically or by any physical means to You.
8.1.3 You must not:
(a) sub-license, assign or novate the benefit or burden of the POS
Software Licence in whole or in part;
(b) allow the POS Software Licence to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of the POS Software Rights and obligations under this Agreement,
without Our prior written consent. We may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the POS Software Licence without notice.
8.1.4 You must (unless otherwise directed by Us) provide Us with:
(a) reasonable prior notice of any installation, replacement or upgrade of any POS System and/or software relating to such POS System and any expected or likely interruption of the operation of the POS System or software relating to such POS System; and

(b) immediate notice of any failure or interruption of the operation of the POS System or software relating to such POS System.
8.1.5 You have no right and will not Yourself (nor permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the POS Software in whole or in part.
8.1.6 We may market and licence the POS Software to any person in any manner We think fit.
8.2 Site access
You must permit Us to inspect and have access to any premises (and to the POS System located there) at or on which the POS Software is being kept or used, and have access to any records kept in connection with the POS Software Licence, for the purposes of ensuring that You or any Customer is complying with the terms of the POS Software Licence or any licence granted to a Customer, provided that We provide reasonable advance notice to You of such inspections, which must take place at reasonable times.
8.3 Remote access
8.3.1 We may provide Support Services via remote access, whereby We will access, control and gather information on Your POS System through the installation and use of POS Software. You consent to Us accessing your POS System remotely.
8.3.2 Nothing in this Agreement obliges Us to provide Support Services. For the avoidance of doubt, We will not provide Support Services relating to problems or issues arising out of or from:
(a) the use of POS Software as a server-based application;
(b) the use or modification of POS Software in a manner for which the
POS Software is not intended to be used or modified;
(c) third-party products or technologies and their effects on or interactions with the POS Software;
(d) damage to the media on which POS Software is provided, or to any computer on which POS Software is installed;
(e) use of a computer system that is incompatible with POS Software; and
(f) issues relating to internet, email, file management, network configuration, scripting, FX scripting, programming, compiling, debugging, infrastructure design, content creation, content customization, multimedia project planning/design, resource management, budgeting, training, or onsite diagnosis.
8.3.3 You acknowledge that You are responsible for any and all restoration or reconstruction of lost or altered files, data, or programs resulting from or arising in connection with the installation or use of the POS Software.
8.3.4 You will maintain and implement a data backup and disaster recovery plan in respect of any and all data stored on any POS System that has or will have installed on it the POS Software. You are solely responsible for any and all security of Your confidential, personal and proprietary information.

9. Audit
If there is a dispute involving a transaction under or in connection with this Agreement or We suspect that fraud is involved, You must comply with Our reasonable directions in respect of that dispute or Our investigations regarding that suspicion of fraud.
10. Conduct
10.1 You must, and must use best endeavours to ensure that Your employees and
contractors:
10.1.1 understand and actively promote and market the operation of the Merchant Facilities through the App; and
10.1.2 provide goods and services in connection with the Merchant Facilities; and
10.1.3 accept orders and payments through the Merchant Facilities.
10.2 You must not engage in conduct that is misleading, deceptive or false in relation to:
10.2.1 the supply of the Goods and Services;
10.2.2 the provision of any Merchant Voucher(s) or Aston Club Voucher(s); and
10.2.3 the services We supply You with, including the Merchant Facilities.
10.3 In relation to the QFF Program, You must not:
10.3.1 represent to any person that:
(a) Your goods or services have sponsorship, approval, support or endorsement of Qantas; or
(b) a person may earn points in any manner other than as a redemption of Credits through the App;
10.3.2 credit, sell, transfer or otherwise deal with any QFF Program points or offer or purport to do so;
10.3.3 raise Your prices for Your (or any other person’s) products because of a person's participation in the QFF Program; or
10.3.4 charge persons any fee of any type in relation to the crediting of QFF Program points.
11. Intellectual Property
11.1 Unless specified in this Agreement:
11.1.1 You must not use Our Intellectual Property Rights without Our prior written consent; and
11.1.2 We may use Your Intellectual Property Rights without Your prior written consent.
11.2 No ownership or title to a party’s Intellectual Property Rights is transferred to the other party by virtue of the terms of this Agreement.

11.3 Each party will ensure that each reference to and use of the other party’s trade marks (if any) are in a manner from time to time approved by the other party in writing and accompanied by an acknowledgement in a form agreed with the other party that it is a trade mark of that party.
11.4 You must not create or make any improvements, changes, or modifications to Our Intellectual Property Rights.
11.5 You must not use any Intellectual Property Rights of Our Loyalty Partners, Industry Partners or Promotional Partners without Our prior written consent.
12. Customer Data
12.1 We own all:
12.1.1 information provided by Customers to Us when Customers download the App (‘Customer Profile Data’); and
12.1.2 data relating to transactions between You and the Customers collected in connection with the Merchant Facilities or the POS Software (‘Customer Transaction Data’).
12.2 We may, at Our absolute and unfettered discretion, grant to You a license to use the Customer Profile Data and the Customer Transaction Data. We are not, however, under any obligation to grant to You such a licence.
12.3 If We grant any such licence to You, You:
12.3.1 must use the Customer Profile Data and the Customer Transaction Data in
accordance with Our directions; and
12.3.2 assign to Us all Intellectual Property Rights in any data which You create in connection with the Customer Profile Data and/or Customer Transaction Data.
12.4 Each party must comply with their respective obligations under the Privacy Act 1988 (Cth) (if any).
13. Representations and Warranties
13.1 Each party warrants to the other party that:
13.1.1 it has taken all necessary corporate action to enable it to enter into this Agreement;
13.1.2 this Agreement is executed by its duly authorised representatives with full power and authority to bind it;
13.1.3 it has the authority to grant the rights provided to the other party as set out in this Agreement; and
13.1.4 it holds all licences, approvals and permits required by law to perform its obligations under this Agreement.
13.2 We do not represent or warrant that:
13.2.1 access to the Merchant Facilities or POS Software will be uninterrupted, reliable or fault free;
13.2.2 the Merchant Facilities and/or POS Software are fault or bug free;
13.2.3 the timing of payment of Balance Funds to You will be uninterrupted, reliable or on time;
13.2.4 the content of Our website will be accurate, complete or reliable.
13.3 To the extent permitted by law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
14. Limitation of liability
14.1 Except as expressly stated in clause 14.2:
14.1.1 We will not in any circumstances have any liability for any losses or damages which may be suffered by You (or any person claiming under or through You), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(a) special damage even if You were aware of the circumstances in which such special damage could arise;
(b) loss of profits;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of goodwill;
(f) loss or damage suffered because any telephone line or other communications device or service is malfunctioning or not operating;
(g) loss, liability or damage which You may suffer or incur resulting from Our failure to credit You due to technical or administrative difficulties relating to the banking system used for the transfer of funds to You; and
(h) loss or corruption of data,
provided that this clause 14.1.1 will not prevent claims for loss of or damage to Your tangible property that fall within the terms of clause 14.1.2 or any other claims for direct financial loss that are not excluded by any of categories in clauses 14.1.1(a) to 14.1.1(h) inclusive of this clause 14.1.1;
14.1.2 the total liability of Ours, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, be limited to $100; and
14.1.3 You agree that, in entering into this Agreement, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if You did rely on any representations, whether written or oral, not expressly set out in this

Agreement) that You will have no remedy in respect of such representations and (in either case) We will have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.
14.2 To remove any doubt and without limiting the generality of this clause 14, the Merchant Facilities are dependent on messaging, communications, processing and other systems which are subject to interruption or breakdown for a variety of reasons. We will not have any liability for any failure, delay or other matter resulting from such interruption or breakdown (including any interruption or breakdown in connection with a Customer’s mobile device).
14.3 If any interruption or breakdown in respect of the Merchant Facilities or POS
Software lasts for 10 minutes or more, We will:
14.3.1 automatically close all accounts or tabs which Customers have with You which have not been paid at the start of that interruption or breakdown; and
14.3.2 notwithstanding clause 24, notify (electronically) You and the relevant Customers that the relevant account or tab has been closed.
14.4 The exclusions in clause 13.3 and clause 14.1 will apply to the fullest extent permissible at law, but We do not exclude liability for any other liability which may not be excluded by law.
14.5 All references to ‘We’, ‘Our’, or ‘Us’ in this clause 14 will, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of the Ours, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause. We hold that benefit as their agent and may enforce that benefit in Our or their names.
15. Indemnity
15.1 You indemnify Us against all claims, damages, actions, losses and liabilities (including all fines, penalties and other charges incurred by Us as a result of any act or omission of Yours) which We or any of Our employees, contractors or agents suffer or incur arising directly or indirectly from:
15.1.1 You or of one of Your employees’, contractors’ or agents’ negligence or fraud;
15.1.2 Your failure, or the failure of one of Your employees, contractors or agents, to observe any of Your obligations under this Agreement;
15.1.3 any dispute arising between the Customer and You in respect of the availability, supply, use, quality or fitness for purpose of Goods or Services or the Merchant Facilities or the POS Software or any Merchant Voucher;
15.1.4 any use of an electronic terminal or POS Software by Us, You or Your employees, contractors or agents;
15.1.5 any representation, warranty or statement made by You or Your employees, contractors or agents to a Customer;
15.1.6 any failure of systems located or used on Your premises to be able to process payments utilising the Merchant Facilities or POS Software;
15.1.7 any act or omission of Yours or Your personnel which if done or omitted to be done by You would have been a breach of this Agreement or induce a breach of any agreement between Us and Qantas; or
15.1.8 any misrepresentation, breach of contract and/or failure of consideration relating to any contract for the supply of Goods or Services or the Merchant Facilities or POS Software by You and Us respectively to a Customer,
except that You are not obliged to indemnify Us or any of Our employees, contractors or agents against any claims, damages, actions, losses or liabilities which are solely the result of Our fraud. We hold the benefit of all indemnification under this clause for a person other than Us as the agent of that person and may enforce that benefit in Our or their names.
15.2 You must, upon Our written request, sign a deed-poll in a form specified by Us, so that Our employees, contractors and agents may benefit from the indemnity under clause 15.1.
16. Default and termination
16.1 Default
16.1.1 A Material Default occurs when a party (‘Defaulting Party’) does not observe or perform any material obligation under this Agreement.
16.1.2 An Innocent Party is any party, except the Defaulting Party, who did not directly cause or induce the Material Default.
16.1.3 Notice to Remedy means a notice which:
(a) identifies the alleged Material Default;
(b) identifies what action (if any) the Innocent Party reasonably thinks will remedy the Material Default in all material respects; and
(c) specifies the time (not less than 10 business days) by which the Material Default must be remedied.
16.2 Notice to Remedy
16.2.1 An Innocent Party may give a Defaulting Party a Notice to Remedy.
16.2.2 A Notice to Remedy may only be given where the relevant act or omission (or, if a series of acts or omissions, the first act or omission in that series) occurred no more than 12 months before the Notice to Remedy is given.
16.3 Notice to Remedy – second notice If:
16.3.1 a Notice to Remedy is given under clause 16.2; and
16.3.2 that Material Default has not been remedied in all material respects or
waived within the time specified in the Notice to Remedy,
the Innocent Party may give a second Notice to Remedy.
16.4 Termination
16.4.1 An Innocent Party may terminate this Agreement by notice if:
(a) a Material Default:
(i) occurs; and
(ii) is not remedied in all material respects within the times specified in the Notices to Remedy given in clause 16.2 and clause 16.3; and
(b) no party has relied upon clause 23 in respect of the Material Default or, if any party has relied upon clause 23, any proceedings under clause 23 have been concluded in favour of the Innocent Party.
16.4.2 We may terminate this Agreement by notice if:
(a) We give You five business days notice of doing so;
(b) in Our opinion, an unacceptable number of Refund Events occur;
(c) it becomes illegal or impossible in practice for Us to continue to provide the Merchant Facilities to You; or
(d) an Insolvency Event occurs in relation to You.
16.4.3 This Agreement terminates immediately when a termination notice is given
to all parties.
16.4.4 When this Agreement terminates:
(a) any licence granted under clause 12 automatically terminates; and
(b) You must destroy all copies of the Customer Profile Data and the Customer Transaction Data (in any media) within the possession and/or control of You or any of Your employees, contractors or agents within five business days of this Agreement terminates.
Part 2 - Standard terms
17. Effect of introduction
The introduction is correct and forms part of this Agreement.
18. Entire contract
This Agreement records the entire contract between the parties as to its subject matter.
Subject to its express terms:
18.1 only terms which must be implied by law are implied in this Agreement;
18.2 as to any representation given by a party which is not expressed in this Agreement:
18.2.1 that representation is withdrawn;
18.2.2 that representation is not relied upon by any person; and
18.2.3 the parties release each other (and their officers, servants and agents) from all claims in connection with it; and
18.3 as to any prior or collateral contract:
18.3.1 this Agreement supersedes that prior or collateral contract; and
18.3.2 the parties release each other from all claims arising from any prior or collateral contract.
19. Confidentiality
19.1 ‘Confidential Information’ means the fact and terms of this Agreement and
information (in any media):
19.1.1 exchanged between parties or about another party obtained in connection with this Agreement (including any Customer Profile Data or Customer Transaction Data which We license You to use under clause 12); and
19.1.2 that a party (‘Discloser’) identifies as ‘confidential’ or ‘proprietary’ before it is disclosed to another party.
It does not include information that is:
19.1.3 in the public domain other than by a breach of this Agreement or any other duty of confidence; or
19.1.4 otherwise lawfully known by another party.
19.2 The obligations in this clause 19 do not apply to a party dealing with its own
Confidential Information.
19.3 Each party must:
19.3.1 keep the Confidential Information confidential;
19.3.2 use its best efforts to prevent any unauthorised access, copying, use or
disclosure of the Confidential Information; and
19.3.3 immediately notify the Discloser if it suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information.
19.4 A party must not access, copy, use or disclose any Confidential Information (in any media) unless and to the extent:
19.4.1 reasonably necessary to perform this Agreement;
19.4.2 required so the party can obtain funds to perform this Agreement;
19.4.3 required by applicable law or the applicable rules of a securities exchange (provided that as soon as reasonably practicable before making a disclosure, it informs the Discloser of the fact of, and the reasons for, that intended disclosure); or
19.4.4 all other parties consent.
19.5 A party must not disclose any Confidential Information (in any media) except to a
person who has:
19.5.1 been approved by the Discloser or is an employee of, or a professional adviser to, the party; and
19.5.2 undertaken to comply with this clause 19.
The disclosing party is liable to the Discloser for any breach of those undertakings.
19.6 Within five business days of notice to do so from the Discloser, a party must return or destroy any document containing the Confidential Information and confirm in writing that it has complied with that notice.
19.7 The obligations in this clause 19 continue until the day before the third anniversary of the date of this Agreement.
20. Other acts
Each party must, at their expense:
20.1 use their best efforts to promptly do all things reasonably necessary to give full effect to this Agreement; and
20.2 maintain all consents, approvals and authorities necessary for any party to perform their obligations under this Agreement.
21. Costs
21.1 Each party must bear their own costs in relation to the negotiation, preparation and
execution of this Agreement.
21.2 You must pay all stamp duty, registration fees and any other government charges payable in respect of this Agreement and any document required by this Agreement.
22. Suspension of obligations (force majeure)
22.1 ‘Suspending Event’ means an event or circumstance:
22.1.1 which a party did not cause;
22.1.2 to which that party did not materially contribute; and
22.1.3 which that party is unable to prevent or materially influence.
It is sometimes known as a force majeure event.
22.2 A party may, by notice, elect to suspend performance of an obligation under this Agreement (except an obligation to pay money) to the extent and for so long as that party is prevented from performing that obligation by a Suspending Event.
22.3 The party whose obligation is suspended must:
22.3.1 immediately give notice of the Suspending Event, the obligation to be
suspended and the effect of the Suspending Event upon that obligation;
22.3.2 use their best efforts to overcome the effect of the Suspending Event;
22.3.3 recommence performance of their obligations as soon as possible; and
22.3.4 immediately give notice of any change in the Suspending Event and of the measures taken to comply with this clause 22.
22.4 If a material obligation is suspended under this clause 22 for at least six months, a party affected by its suspension may terminate the further performance of this Agreement by 20 business days notice, provided that the Suspending Event is still operating when that notice period expires.
23. Dispute resolution
23.1 General
23.1.1 The parties must try to resolve any dispute or claim in connection with this Agreement or its performance (‘Dispute’) in accordance with this clause 23. The parties must not commence any Court proceedings (other than an application for an urgent interlocutory or declaratory relief) until these proceedings are exhausted.
23.1.2 All procedures in this clause 23 will occur in Melbourne, Victoria.
23.1.3 A party must continue to perform this Agreement despite the application of
this clause 23.
23.1.4 This clause 23 continues indefinitely.
23.2 Negotiation
23.2.1 A party may at any time give the other parties notice of a Dispute (‘Dispute Notice’). The date upon which the Dispute Notice is delivered is referred to as the Dispute Notice Date.
23.2.2 The parties must deliver to each other a written response (‘Answer’) within 10 business days after the Dispute Notice Date. The Dispute Notice and the Answer must include:
(a) a statement of each party’s position and a summary of arguments supporting that position; and
(b) what action (if any) that party thinks will resolve the Dispute.
23.2.3 Representatives of all parties who are authorised to resolve the Dispute must meet within 20 business days of the Dispute Notice Date to negotiate in good faith to resolve the Dispute.
23.3 Mediation
If the Dispute has not resolved within 20 business days of the Dispute Notice Date it will be mediated in accordance with the Australian Commercial Disputes Centre Guidelines for Commercial Mediation current at the Dispute Notice Date. Those Guidelines are incorporated into this Agreement. Where there is any inconsistency between those Guidelines and this Agreement, this Agreement prevails.
24. Consents, approvals, requests and notices
24.1 Where conduct requires a consent or approval, that consent or approval must be
given before that conduct occurs.
24.2 Any consent or approval may be subject to any conditions and may be withheld for any reason.
24.3 A consent, approval, request or notice must be in writing and signed by the party or their agent. It may be given by:
24.3.1 pre-paid post to the address on page 1 or last notified to all parties;
24.3.2 email or facsimile to the address or number last notified to all parties; or
24.3.3 by any other means allowed by law.
24.4 Unless stated otherwise, a copy of any consent, approval, request or notice must be given to each party.
24.5 A consent, approval, request or notice, if validly given, is taken to have been received:
24.5.1 if posted, the third business day after posting;
24.5.2 if sent by email and the sender does not receive a bounce message
notifying the sender that the email has failed to be delivered:
(a) during business hours, on the day the notice is sent; and
(b) outside business hours, at 10.00 am on the next business day;
24.5.3 if sent by facsimile and the sender receives a transmission confirmation report:
(a) during business hours, on the day the notice is sent; and
(b) outside business hours, at 10.00 am on the next business day; or
24.5.4 at any other time allowed by law.
24.6 Where two or more persons comprise a party, notice to one is effective notice to all.
25. Governing law
The laws in Victoria govern this Agreement. The parties submit to the exclusive jurisdiction of the Courts of Victoria and the Federal Court of Australia (Melbourne Registry).
26. Rights and obligations granted by this Agreement
The rights and obligations under this Agreement:
26.1 are not conferred upon a person who is not a party;
26.2 are in addition to and do not affect any other rights that party may have;
26.3 will not merge with any act done to complete or perform this Agreement;
26.4 can be amended by Us giving You notice of amendments and You consenting to the amendments; and
26.5 cannot be waived except by express notice specifying the waiver.
27. Payments
27.1 Unless stated otherwise, a reference to money means Australian currency.
27.2 Unless stated otherwise, payments must be made without set off or deduction.
27.3 Payments must be made in the manner nominated by the payee.
27.4 The payee may, at its option, apply money received from a payer against any money then due by the payer to the payee.
27.5 The amount payable for any taxable supply in connection with this Agreement excludes GST and must be increased by the rate of GST imposed by law. Each party acknowledges that it is more efficient and practical for a supplier making a payment that is the subject of a taxable supply to issue a recipient created tax invoice in relation to such supplies. Unless otherwise agreed, each party agrees that a supplier making a payment to a recipient under this Agreement where that payment is a taxable supply, must issue a recipient created tax invoice in respect of that supply, and that the recipient will not issue a tax invoice where a recipient created tax invoice is to be issued by a supplier.
Terms used in this clause 27.5 have the meanings given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
27.6 Any late payment attracts interest. Interest will be calculated at four percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time. That interest will accrue and be recoverable from day to day.
28. Time
28.1 Time means Victorian time.
28.2 A month means a calendar month.
28.3 A business day means any day that is not a Saturday, Sunday or public holiday in Victoria. If an act must be done on a day that is not a business day, it may be done on the next business day.
28.4 Business hours means between the hours of 9.00 am and 5.00 pm on a business day.
28.5 Where time is to be calculated from a day or event, that day or the day of that event must be excluded from that calculation.
28.6 Unless stated otherwise, time is of the essence.
29. Parties
29.1 A promise, representation, warranty or indemnity in this Agreement:
29.1.1 on the part of two or more persons binds them jointly and severally; and
29.1.2 in favour of two or more persons is for the benefit of them jointly.
29.2 Unless stated otherwise, this Agreement does not create a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.
30. Assignment and change in control
30.1 Your rights and obligations under this Agreement are personal and cannot be assigned without Our prior consent. We may elect that a purported assignment without that consent is void. We may assign Our rights and obligations by giving notice to You.
30.2 A party includes the party’s successors and permitted assigns.
30.3 If You are a trustee of a trust, You must not, without Our consent, :
30.3.1 allow any change to the power (whether legally enforceable or not) to control, whether directly or indirectly:
(a) the appointment of any new or additional trustee of the trust;
30.3.2 30.3.3 30.3.4 30.3.5
30.4 If You power
30.4.1 30.4.2 30.4.3
(b) the removal of the trustee of the trust; and/or
(c) the management of the affairs of the trust;
do anything which could bring about Your removal or retirement as trustee; default under the provisions of the trust deed;
allow Your right of subrogation as trustee of the trust to be restricted; or allow the vesting date of the trust to be determined.
are a corporation, You will not allow without Our consent, any change to the (whether legally enforceable or not) to control, whether directly or indirectly:
the composition of Your board of directors;
the voting rights of the majority of Your voting shares; or the management of Your affairs.
31. Trustee
A party that is a trustee is bound by this Agreement both personally and in its capacity as a
trustee.
Part 3 - Interpretation
32. Rules of interpretation
32.1 Any provision of this Agreement must be read down to any extent necessary to be valid. If that is not possible, it must be severed. All other provisions of this Agreement are unaffected.
32.2 A provision of this Agreement must not be construed to the disadvantage of a party because that party was responsible for including that provision and/or that provision benefits that party.
32.3 In this Agreement, unless the contrary intention appears:
32.3.1 a person includes any other legal entity and vice versa;
32.3.2 the singular includes the plural and vice versa;
32.3.3 a gender includes the other gender;
32.3.4 where an expression is defined, its other grammatical forms have a corresponding meaning;
32.3.5 a clause or annexure is a clause of or an annexure to this Agreement;
32.3.6 reference to a document is to that document as amended or varied;
32.3.7 any legislation includes any subordinate legislation and amendments;
32.3.8 conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
32.3.9 ‘writing’, ‘written’ and ‘in writing’ include any mode of representing or reproducing words in a visible form; and
32.3.10 ‘including’, or similar words, does not limit what else might be included.
32.4 Headings are for convenience and do not affect the interpretation of this Agreement.
33. Dictionary
In this Agreement, unless the contrary intention appears:
33.1 ‘Agreement’ means this agreement;
33.2 ‘App’ means Our mobile software application by which Customers can use the Merchant Facilities and which can assist You to manage credit accounts for Customers. That mobile software application is titled ‘Aston Club’;
33.3 ‘Aston Club Voucher’ means a voucher issued by Us to any Customer which:
33.3.1 entitles that Customer to a credit equal to the monetary amount of the voucher which may be applied as payment for Goods and Services which You provide to the Customer. For any Customer who has set a Pre Authorised Amount, the monetary amount of the voucher will be added to the Pre Authorised Amount; and
33.3.2 may be redeemed by that Customer by entering a code provided by Us to that Customer via the App;
33.4 ‘Balance Funds’ has the same meaning as in clause 2.3;
33.5 ‘Cash Funds’ means in respect of any payment period, that proportion of the Balance Funds that the money paid by Customers to Us (through the Merchant Facilities) in that payment period represents to the Transaction Funds in respect of that payment period;
33.6 ‘Credits’ means ‘Aston Club Points’ earned by a Customer in accordance with the App as a result of the acquisition by that Customer of Goods and Services;
33.7 ‘Customer’ means a customer of Yours to which You:
33.7.1 have provided; or
33.7.2 are providing; or
33.7.3 will provide,
Goods and Services;
33.8 ‘Goods and Services’ means goods and/or services You provide to Customers where those Customers utilise the Merchant Facilities for making payments to You;
33.9 ‘Industry Partner’ means any entity with which We conducted, are conducting or will conduct cross-promotional marketing campaigns that focus on increasing the number of end users of the App to drive marketing campaigns which drive sales of that entity’s products;
33.10 ‘Insolvency Event’ means each of the following events occurring to a person, or any action being taken that could result in any of the following events occurring to a person:
33.10.1 being Deregistered;
33.10.2 stating that they are, or being, Insolvent;
33.10.3 being an Insolvent Under Administration;
33.10.4 having a Controller appointed over any of their assets;
33.10.5 becoming an Externally-Administered Body Corporate;
33.10.6 having a Provisional Liquidator appointed to them;
33.10.7 any of the events listed in section 459C(2) of the Corporations Act 2001 (Cth);
33.10.8 except to reconstruct or amalgamate while solvent, entering into a scheme of arrangement, composition with or assignment for the benefit of creditors;
33.10.9 obtaining protection from their creditors under any applicable law; or
33.10.10 anything analogous or having a substantially similar effect to any of these
events.
Unless otherwise defined in this Agreement, any term in title case used in this clause 33.8 has the meaning given by the Corporations Act 2001 (Cth);
33.11 ‘Intellectual Property’ means any intellectual or industrial property including any:
33.11.1 work or sound recording as defined in the Copyright Act 1968 (Cth);
33.11.2 trade mark as defined in the Trade Marks Act 1995 (Cth), whether registrable or not;
33.11.3 design as defined in the Designs Act 2003 (Cth), whether registrable or not;
33.11.4 invention as defined in the Patents Act 1990 (Cth), whether patentable or
not; and
33.11.5 trade secrets, know how or other information protected by law;
33.12 ‘Intellectual Property Rights’ means rights in relation to Intellectual Property;
33.13 ‘Loyalty Partner’ means any entity which has allowed, allows or will allow end users of the App to convert Credits earned through Our loyalty or reward program into points or credits with that entity’s loyalty or other reward program;
33.14 ‘Merchant Facilities’ means the services which We provide Customers through which they can pay monies in exchange for Goods and Services You provide to them;
33.15 ‘Merchant Voucher’ means a voucher authorised by you and issued via the App to any Customer which:
33.15.1 entitles that Customer to a credit equal to the monetary amount of the voucher which may be applied as payment for Goods and Services which You provide to the Customer; and
33.15.2 may be redeemed by that Customer by entering a code provided by Us to that Customer via the App;
33.16 ‘Nominated Account’ means the bank account You nominate to Us in writing;
33.17 ‘Our Fees’ means the fees specified in Item 1 if the Schedule and the Refund Fee;
33.18 ‘Permitted Use’ means the use of processing payments made in connection with the App and the Merchant Facilities;
33.19 ‘POS Software’ means the software owned by Us and installed on Your POS System and includes the underlying code and all technical information and documentation required to operate it and includes any changes, improvements, modifications and interfaces developed in such software by Us or any other person and includes any software or code that allows Us to update, modify, remove or otherwise change such software remotely;
33.20 ‘POS Software Licence’ has the meaning given to that term in clause 8.1;
33.21 ‘POS System’ means such hardware used by You to process sales to Customers and
on which the POS Software will be used;
33.22 ‘Pre Authorised Amount’ (if applicable) means the maximum amount a Customer will spend in relation to the Goods and Services which You provide to that Customer via the App;
33.23 ‘Promotional Partner’ means any entity with which We conducted, are conducting or will conduct cross-promotional campaigns that focus on giving benefits (such as discounts or preferential treatment) for end users of the App;
33.24 ‘Qantas’ means Qantas Airways Limited ACN 009 661 901 or any of its related bodies corporate (as defined in the Corporations Act 2001 (Cth));
33.25 ‘QFF Program’ means the loyalty program currently known as the Qantas Frequent Flyer program;
33.26 ‘Refund Event’ means each event where a Customer is entitled to or otherwise obtains a refund from You in relation to the Goods and Services You provide to that Customer;
33.27 ‘Refund Fee’ means the amount specified in Item 2 of the Schedule plus GST;
33.28 ‘Support Services’ means the act of updating or otherwise modifying the POS
Software;
33.29 ‘Transaction Funds’ means:
33.29.1 the money paid by a Customer to Us (through the Merchant Facilities) in cleared funds; plus
33.29.2 the value of any Aston Club Voucher(s) redeemed by that Customer (through the Merchant Facilities),
for Goods and Services You provide to that Customer. It excludes the value of any Merchant Voucher(s) redeemed by that Customer (through the Merchant Facilities) for Goods and Services You provide to that Customer;
33.30 ‘Voucher Funds’ means in respect of any payment period, that proportion of the Balance Funds that the value of any Aston Club Voucher(s) redeemed by Customers
(through the Merchant Facilities) in that payment period represents to the Transaction Funds in respect of that payment period;
33.31 ‘We’, ‘Us’, and ‘Our’ means Aston Club Pty Limited ACN 163 875 590; and
33.32 ‘You’ and ‘Your’ means the Merchant.
Schedule
Item 1 – Our Fees
1.9% + 10c Per Transaction of:
1. the money paid by Customers to Us (through the Merchant Facilities or POS Software) in cleared funds; plus
2. the value of all Aston Club Vouchers redeemed by Customers (through the Merchant Facilities or POS Software); plus
3. the value of all Merchant Vouchers redeemed by Customers (through the Merchant Facilities or POS Software),
for Goods and Services You provide to Customers, plus GST.
Item 2 – Refund Fee
4.5% of the amount which You refund to a Customer in connection with a Refund Event, plus GST.

Parties

LOKE Digital Pty Ltd ABN 51 167 259 341, 8 Gough Street, Cremorne, Victoria, Australia 3121 (“Tidy”)

And;

The Party as detailed in the Schedule in the sign up form used to create an account to use the Tidy Application (“Client”)

Background

a)      Tidy is the owner and operator of the Tidy Application.
b)      The Client wishes to obtain a licence to use the Tidy Application to promote itself and to advertise its own goods and services to customers.
c)      Tidy is willing to grant, and the Client has agreed to accept, a licence for the Client to use the Tidy Application to advertise its goods and services in accordance with the terms of this Agreement.

Agreed Terms & Conditions

1.      Defined terms & interpretation

1.1    Defined terms

In this Agreement:

Tidy Application means the software application used to deliver the Tidy service to the Client and any User and includes any improvements, enhancements, modifications or developments of that software (including any new releases and new versions) made available by Tidy.

Tidy Licence Fees and Charges mean the fees and charges payable by the Client to Tidy.

Tidy User Manual means all documentation provided by Tidy relating to the use of the Tidy Application by the Client.

Commencement Date means the date of execution of this agreement as specified by the acceptance of these terms and conditions of use by the Client in any format or such other date as otherwise agreed by the parties.

Confidential Information of a party means all information concerning the business or products and services of a party (including trade secrets and confidential know-how) disclosed by that party to the other party for the purposes of this agreement and includes all information relating to the Tidy Application (including its composition and method of operation), regardless of its form and whether the Client becomes aware of it before or after the Commencement Date.

Intellectual Property Rights or IPR means all intellectual property rights, including but not limited to, the following rights:

a)      patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
b)      any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c)      all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia), whether or not such rights are registered or capable of being registered.

Term has the meaning set out in clause 10.1.

Third Party Advertising means the promotion of goods or services using trade marks not owned by the Client.

Third Party Service means any third party software, application or website through which Client Content is available and which the Client has consented to Tidy's use of or interface to.

User means any user who accesses or interacts with the Tidy Application.

Client Content means any data, information, logos and other identifiers provided or made available by the Client to Tidy (whether personally via the Client's website(s) or otherwise using a Third Party Service nominated by the Client) and which is uploaded into and/or used in the Tidy Application. Client Content does not include any Third Party Advertising.

Website means the website operated by Tidy for the Tidy Application located at [www.tidyroi.com] or such other address as may be notified to the Client from time to time.

2.      General

2.1    Registration

The Client must:

a)      register and provide all information that is required by Tidy during (or at any time following) the registration process to use the Tidy Application; and
b)      comply with the terms and conditions of this agreement and any other directions reasonably issued by Tidy from time to time regarding the Client's use of the Tidy Application provided that those directions are not inconsistent with the other provisions of this Agreement and do not unreasonably restrict the proposed use by the Client of the Tidy Application.

2.2    Account responsibility

Tidy is not responsible for any activity that may occur as a result of disclosure of any information by the Client to Tidy or any third party. At all times the Client is solely responsible for all activity that occurs via the Client's account created under clause 2.1 and/or its use of the Tidy Application.

2.3    Amendments

Tidy reserves the right to amend the Tidy Application (including any of its functionality) or the terms of this agreement at any time (including as a result of amendments made by a relevant Third Party Service to its functionality or terms and conditions of use). Subject to any right the Client has to terminate this agreement, any amendments made to these terms and conditions will be effective immediately on them being available on the Website and/or via the Tidy Application. The Client's ongoing use of the Tidy Application will constitute acceptance of the varied terms. Provided that if the following specific functions are removed or substantially altered in a manner which the client reasonably considers detrimental to its use of the Tidy Application, then the Client shall be entitled to forthwith terminate this Agreement and the Aston Club Merchant Agreement and obtain an immediate refund of the upfront fee:
 
1.      Compiling and storing the Client’s customers profile details in the secure database with the Client’s uninterrupted (99% availability at all time) access to it.
2.      Processing the payment for the products which are sold to the Client’s customers at the Client’s outlets with the use of bank debit or credit cards or various online payment system details during the Client’s stores business hours (Transactions).
3.      Compiling and storing all Transactions History in the secure database with the Client’s uninterrupted (99% availability at all time) access to it.
4.      Providing the Client’s authorized personnel with an uninterrupted (99% availability at all time) access to the system tools to create and manage customized promotions in particular:
a.      create and manage the graphic image of a promotion in the system
b.      manage the order the promotions appear in the system for users
c.      manage the period of promotions’ active status and their periodic recurrence
d.      manage the type of the benefit that the Client’s customers can have by using/applying these promotions
e.      set and manage the limits of the benefits that the Client’s customers can have in value and time
5.      Creating data exchange with the POS system KOUNTA for registering transactions without data double entry
6.      Customising Tidy Application for all mobile devices operating systems in particular iOS, Android, Windows with the Client’s brand features on all levels of users interface
7.      Providing the Client authorized personnel with an access to the systems tools to manage/change he Client’s legal documents – Privacy Policy, Terms of Use and other.


2.4    Third Party Advertising

Tidy reserves the exclusive right to include content advertising third party goods or services or its own advertising content as part of the Tidy Application subject to the consent of the Client which will not be unreasonably withheld unless the Client reasonably considers the proposed advertising to be in conflict with the Client’s business or brand. The Client must not use the Tidy Application for the display of Third Party Advertising without the prior written consent of Tidy.

3.      Licence

3.1    Licence

Subject to the timely payment of the Tidy Licence Fee and compliance with the terms of this agreement, Tidy grants to the Client a revocable, non-exclusive, non-transferable licence to use the Tidy Application for the purpose of advertising its own goods and services during the Term.

3.2    Licence restrictions

The Client must not:

a)      alter, adapt or modify the Tidy Application;
b)      remove any of Tidy's copyright notices, logos or other marks from the Tidy Application;
c)      reverse engineer or decompile the Tidy Application (except as permitted by law), or attempt to do so;
d)      sell, assign or sub-license any of its rights or obligations under this agreement without Tidy's prior written consent; or
e)      copy or reproduce (including engaging any other person to copy or produce) the Tidy Application by any means or in any form without Tidy's prior written consent.

3.3    Service limitations

The Client acknowledges that:

a)      the Tidy Application is provided on an 'as-is' basis;
b)      Tidy cannot and does not guarantee that access and use of the Tidy Application will be uninterrupted or that the Tidy Application will operate error-free provided that Tidy must ensure that the Tidy Application is available at least 99% of the time, and that all errors are remedied within 24 hours;
c)      Tidy and its licensors, contractors or partners have implemented reasonable security measures in relation to the Tidy Application, however Tidy is in no way responsible for any unauthorised access to the Tidy Application, or any disclosure, loss or corruption of Client Content.

4.      Client Content

4.1    Tidy Application

The Tidy Application is a platform through which the Client can advertise its own goods and services. It is the Client’s sole responsibility to continually revise and update all of its Client Content.

4.2    Warranties

The Client warrants that all Client Content:

a)      does not, and its use and/or uploading to the Tidy Application will not, infringe the Intellectual Property Rights, confidentiality rights, or privacy rights of any person or organisation;
b)      is not offensive, defamatory, obscene, vulgar, harmful, threatening, abusive, harassing or ethically objectionable, and its upload to and use in the Tidy Application will not breach any law or infringe the rights of any person;
c)      to the best of its’knowledge, information and belief, is current, accurate and up-to-date;
d)      contains no false, misleading or deceptive representations;
e)      has only been uploaded after the Client has obtained any releases, permissions or consents required for use of its Client Content;
f)       complies with all terms of use of relevant Third Party Services Tidy is directed to obtain Client Content from;
g)      does not contain information about a third party or its goods and/or services unless the Client has the express permission of that third party to do so; and
h)      which is uploaded by the Client will comply with any technical specifications and other requirements set out in the Tidy User Manual.

4.3    Client Content licence

The Client grants to Tidy, with effect from the Commencement Date a non-exclusive, irrevocable, perpetual, royalty-free licence to use the Client Content in a de-identified form for benchmarking and statistical purposes in accordance with the Privacy Act 1988 (Cth) and any other purpose which is in accordance with the Privacy Act 1988 (Cth) which is approved by the Client which approval will not be unreasonably withheld.

4.4    Removal

Tidy reserves the right to reject, block, modify, suspend or remove any Client Content made available via the Tidy Application at any time if the Client breaches 4.2 and Tidy has given prior written notice to the Client to remedy the breach and such breach remains unremedied within a reasonable period as specified in the notice

4.5    Release

By advertising its goods and services via the Tidy Application, the Client acknowledges and agrees that it:

a)      is solely responsible for its advertising of its own goods and services via the Tidy Application; and
b)      must resolve any complaints or disputes from recipients of the advertising to the satisfaction of Tidy whether referred to the Client by Tidy or otherwise.

5.      Privacy

a)      Tidy may deal with the Client's information (including Client Content) and all other information in accordance with the requirements of the Privacy Act 1988 (and the terms of any privacy policy adopted by Tidy), including to:

                                   i.         monitor the Client’s use of the Tidy Application;
                                  ii.         customise any advertising or promotional material made available via the Tidy Application;
                                  iii.         obtain demographic or analytical data relevant to the Tidy Application;
                                 iv.         contact the Client with information regarding the Tidy Application; and
                                 v.         update or improve the Tidy Application.

b)      Tidy may log information about any mobile device or computer used to access the Tidy Application (including the IP address, operating system and browser type of any User) and the date and time of access.
c)      No data transmitted via the Tidy Application can be guaranteed to be secure. Any information the Client or its Users submit using the Tidy Application is done so at the Client’s sole risk.

6.      Fees and payment

6.1    Fees and charges

a)      In consideration for being provided access to the Application, the Client must pay to Tidy the Tidy Licence Fees and Charges.
b)      The Fees and Charges may consist of an initial Setup fee as well as ongoing Monthly fees and any other fees as per Tidy deems appropriate based on features found in the Tidy Application. The Client acknowledges that all the Fees and Charges have been explained to them.
c)      Unless otherwise notified by Tidy, the Tidy Licence Fees and Charges will be calculated monthly during the Term, or part thereof, beginning on the Commencement Date.

6.2    Payment terms

a)      All invoices issued by Tidy must be paid within seven (7) days of the invoice date.
b)      Tidy may require the Client to register a direct debit facility as a condition of the Clients's use of the Tidy Application either before or after the Commencement Date.

6.3    No Deduction

The Tidy Licence Fee must be paid in Australian or US dollars free and clear of any taxes imposed by or under the authority of any government or public authority.

6.4    Suspension

If any amount payable under this agreement by the Client is outstanding, Tidy may (without limiting its other rights) suspend the Client’s access to the Tidy Application until all outstanding charges are paid in full.
7.      Goods And Services Tax (GST)

7.1    Consideration does not include GST

Unless specifically described in this agreement as 'GST inclusive', any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this agreement does not include any amount on account of GST.

7.2    Gross up of consideration

Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this agreement is subject to GST (other than a supply the consideration for which is specifically described in this agreement as 'GST inclusive'):

a)      the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and
b)      the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.

7.3    Reimbursements

If any payment to be made to a party under or in accordance with this agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with clause 7.2.

7.4    Tax invoices

The Supplier must issue a tax invoice to the Recipient in respect of any taxable supply made by the Supplier under or in accordance with this agreement, such tax invoice to be issued no later than 28 days after the Supplier receives the consideration for that taxable supply and the Recipient requests a tax invoice from the Supplier.

7.5    Adjustments

If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this agreement, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred. 

7.6    Interpretation

A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.

8.      Intellectual Property Rights

8.1    Ownership and rights

The Client acknowledges and agrees that:

a)      nothing in this agreement transfers or assigns to the Client any Intellectual Property Rights owned or used under licence by Tidy (including in or in relation to the Tidy Application);
b)      all existing goodwill in the Tidy Application is vested, and all future goodwill in the Tidy Application will vest, in Tidy; and
c)      the Client must not during the term or after termination of this agreement, apply for registration as a trade mark, domain name, business or company name any word or logo that is the same as, or substantially identical with or deceptively similar to any trade marks, business name or any other trade marks owned or used under licence by Tidy.

9.      Liability and indemnity
 
a)      To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this agreement. Where legislation implies any condition or warranty, and that legislation prohibits Tidy from excluding or modifying Tidy Application of, or its liability under, any such condition or warranty, that condition or warranty will be deemed included but Tidy's liability will be limited for a breach of that condition or warranty to the minimum remedy provided for in that law.
b)      If a supply by Tidy under these terms and conditions is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these terms and conditions excludes, restricts or modifies the Tidy Application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits Tidy to limit its liability, then Tidy's liability shall be limited to:
                                   i.         in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
                                  ii.         in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
c)      The Client acknowledges that, to the extent permitted by law, Tidy (or any of its contractors) does not accept liability for any errors, omissions, expenses, losses or damages caused by:
                                   i.         the Client’s access to and/or use of the Tidy Application;
                                  ii.         the Client’s dealings with Users arising from use of the Tidy Application; and/or
                                  iii.         any failure of the networks or servers used to provide the Tidy Application.
d)      As a condition of the Client’s use of the Tidy Application, the Client agrees to indemnify and keep indemnified Tidy and all of its officers, agents, employees or contractors (Personnel) against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Tidy or its Personnel) that Tidy or its Personnel may sustain or incur as a result, whether directly or indirectly, of:
                                   i.         any breach of this agreement by the Client;
                                  ii.         the Client’s access to and/or use of the Tidy Application; and
                                  iii.         any loss of, or damage to, any property, or injury to, or death of, any person  caused by the Client’s access to and/or use of the Tidy Application except to the extent caused or contributed to by any act or omission of Tidy.
e)      Tidy excludes all liability to the Client for any consequential, indirect, incidental or punitive loss or damages, however arising, including from a breach of a contract, tort (including negligence) or under statute.

10.    Term & Termination

10.1  Term

This agreement commences on the Commencement Date and will continue until terminated in accordance with this clause 10.

10.2  Termination

a)      Tidy may terminate this agreement:
                                   i.         with immediate effect if the Client:
A.      breaches a term of this agreement and does not rectify that breach within 30 days of a notice from Tidy requiring the Client to do so; or
B.      becomes subject to any form of insolvency administration.
b)      The Client may terminate this agreement:
                                   i.         with immediate effect if Tidy breaches a term of this agreement and does not rectify that breach within 30 days of a notice from the Client requiring it to do so; or
                                  ii.         the minimum term of this agreement on a Pay As You Go plan is four months, effective from the date of the first payment made by the Client to LOKE. Following this period either party can terminate this agreement with 30 days written notice. Any payments scheduled within the 30-day notice period are still required to be paid. If the Client is on a Pay As You Go plan no termination fees apply.
                                  iii.         if the client is on a 6-month plan, the “Termination Fees” are equal to 100% of the value of the remaining fees payable for the duration of the Agreement. If the client is on a 12 or 24-month plan, the “Termination Fees” are equal to 50% of the value of the remaining fees payable for the duration of the Agreement.

10.3  Consequences of termination

a)      If this agreement expires or is terminated for any reason:
                                   i.         the Client’s licence to use the Tidy Application will immediately cease and Tidy may immediately suspend the Client’s access to the Tidy Application;
                                  ii.         the Client must immediately cease using all Intellectual Property Rights of Tidy that it was permitted to use during the term of the agreement; and
                                  iii.         the Client will stop using Tidy's Confidential Information and will return or destroy such Confidential Information as directed by Tidy.
b)      Termination of this agreement under this clause 10 does not affect any accrued rights or remedies of either party.

10.4  Survival of certain provisions

The following clauses will survive expiry or termination of this agreement: clause 7 (Intellectual Property Rights), clause 9 (Liability and indemnity), clause 10.3 (Consequences of termination) and clause 12.6 (Governing law).

11.    Confidential Information

11.1  Use and disclosure

The Client:

a)      may use Confidential Information only for the purposes of this agreement; and
b)      must keep confidential all Confidential Information except:
                                   i.         for disclosure permitted under clause 11.2; and
                                  ii.         to the extent (if any) the Client is required by law to disclose any Confidential Information.

11.2  Permitted disclosure

The Client may only disclose Confidential Information to persons who:

a)      have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
b)      before disclosure have been directed by the Client to keep confidential all Confidential Information (each a Direction).

11.3  Obligations

The Client must:

a)      ensure that each person to whom it discloses Confidential Information under clause 11.2 complies with each Direction; and
b)      notify Tidy of, and take all steps to prevent or stop, a suspected or actual breach of any Direction.

11.4  Disclosure by law

If the Client is required by law to disclose any Confidential Information to a third person (including, but not limited to, government) the Client must:

a)      before doing so:
                                   i.         notify Tidy; and
                                  ii.         give Tidy a reasonable opportunity to take any steps that Tidy considers necessary to protect the confidentiality of that information; and
b)      notify the third person that the information is confidential information of Tidy.

12.    Miscellaneous

12.1  Execution warranty

a)      The Client warrants and represents to Tidy that:
                                   i.         the entry into this agreement by the Client has been properly authorised by all necessary corporate action; and
                                  ii.         it has full corporate power and lawful authority and the legal power to execute and deliver this agreement and to perform or cause to be performed its obligations under this agreement.
b)      The individual person who purports to enter into this agreement on behalf of the Client in the manner prescribed by Tidy personally warrants that he or she has the express authority of the Client to bind the Client to the terms of this agreement.

12.2  Relationship

Nothing in this agreement constitutes a relationship of employer and employee, principal and agent or partnership between Tidy and the Client.

12.3  Severance

Part or all of any provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions of this agreement continue in force.

12.4  Delay
 
Tidy accepts no liability for any failure or delay in complying with this agreement where such failure or delay is due to circumstances beyond Tidy's reasonable control.

12.5  Waiver

If Tidy waives any rights available to it under this agreement on one occasion, this does not mean that those rights will be automatically waived on any other occasion. Waivers must be in written form and signed by Tidy or its authorised representative.

12.6  Governing law

This agreement is governed by the law applicable in Victoria, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.

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1.             Merchant Facilities
We agree to provide to You the Merchant Facilities in accordance with this Agreement. You agree to pay Us Our Fees and to otherwise comply with Your obligations under this Agreement.
2.             Process
2.1          Each Customer who wishes to use the Merchant Facilities must:
2.1.1          before using the Merchant Facilities, download the App on their mobile device;
2.1.2          once Goods and Services have been received by that Customer from You, authorise payment for those Goods and Services (by the payment method available on the App nominated by that Customer) for the Goods and Services You provide to that Customer; and
2.1.3          once the payment authority has been given by that Customer, pay to Us, using the App, the price of those Goods and Services less the monetary amount being redeemed by that Customer of any Aston Club Voucher or Merchant Voucher for Us to hold as agent for You.
2.2          If a Customer is required to set the Pre Authorised Amount:
2.2.1          the total payments under clause 2.1.2 must not exceed the Pre Authorised Amount; and
2.2.2          We will not be liable for any loss or damage You suffer or incur as a result of You providing Goods and Services above the value of the Pre Authorised Amount and You not being able to recover the amount in excess of the Pre Authorised Amount from the relevant Customer.
2.3          You:
2.3.1          must allow all Customers to use the App to pay for Goods and Services provided by You to Customers;
2.3.2          agree and irrevocably authorise Us to pay You the Transaction Funds, less Our Fees (‘Balance Funds’) into Your Nominated Account; and
2.3.3          must allow Customers to redeem Aston Club Vouchers and Merchant Vouchers through the Merchant Facilities for Goods and Services which You provide to Customers;
2.3.4          must not reload any amount or increase the amount of credit stored on any Aston Club Voucher or Merchant Voucher; and
2.3.5          must not market any Aston Club Voucher or Merchant Voucher other than as a gift voucher.
3.             Fees and Payment
3.1          We will pay the Cash Funds to Your Nominated Account within 3 business days of receiving the relevant Transaction Funds.
3.2          We will pay the Voucher Funds to Your Nominated Account within 3 business days after a redemption occurs in relation to that Aston Club Voucher.
3.3          You authorise Us to retain from the Transaction Funds in Our bank account without notice:
3.3.1          Our Fees, including all fees, charges and costs owing to Us by You whether under this Agreement or otherwise;
3.3.2          all amounts (including bank or other fees) referable to a Refund Event (including the Refund Fee) less any amounts in respect of such transaction already debited to Us;
3.3.3          costs, damages and losses You cause Us, including any amount We claim from You because of a breach of a condition, indemnity or warranty by You under this Agreement;
3.3.4          all taxes (including GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) on Our Fees) incurred or payable by You in connection with this Agreement; and
3.3.5          all fines, penalties and other charges incurred by Us as a result of any act or omission of Yours including a breach of this Agreement by You.
4.             Refunds
4.1          You must notify Us if a Refund Event occurs.
4.2          If You notify Us that a Refund Event has occurred then, in Our absolute and unfettered discretion, We may (as directed in Our notice) either:
4.2.1          immediately refund so much of the Balance Funds as relates to a Refund Event (including the Refund Fee) to Us; or
4.2.2          set-off the amount payable to Us by You under clause 4.2.1 if that clause applied against future payments of the Balance Funds.
5.             Failed Transaction
5.1          We may, in Our absolute and unfettered discretion do any one or more of the following:
5.1.1          refuse to provide the Merchant Facilities;
5.1.2          revoke the POS System Licence; or
5.1.3          suspend any payments that are otherwise required to be made under this Agreement,
in relation to transactions involving one or more Customers in circumstances the same or similar to those referred to in clause 5.2, subject to first giving written notice to the Client of our intention to do so to give the Client a reasonable opportunity to rectify the particular issue.
5.2          The following transactions are examples of transactions for which We may exercise this discretion:
5.2.1          We become aware that the Merchant Facilities or POS Software are not operating, or are likely not to operate, correctly;
5.2.2          maintenance or repairs are required to the Merchant Facilities or POS Software;
5.2.3          the Transaction is illegal, including because it is in breach of any law governing, for example, the sale of prescription medicines, controlled substances or other regulated products;
5.2.4          the provider of point of sale equipment to You no longer supports the Merchant Facilities or POS Software;
5.2.5          the card used to deposit the Transaction Funds with Us is used without the authority of the cardholder;
5.2.6          the transaction is recorded in a currency other than Australian dollars;
5.2.7          the transaction value exceeds the Pre Authorised Amount set by a Customer, and We did not obtain authorisation for a transaction above the Pre Authorised Amount;
5.2.8          the Customer has not received the Goods and Services as required by the terms of the transaction between You and the Customer;
5.2.9          the Customer makes a claim for set off or counter claim in respect of the transaction against Us; or
5.2.10       the transaction is not authorised by Us or the authorisation request is declined for any reason.
6.             Promotional Material
6.1          We may supply You with signs, decals and other promotional material as agreed in writing from time to time.
6.2          You must prominently display in Your premises each decal and other promotional material supplied by Us.
6.3          You must not use any of Our promotional material except as authorised by Us. You must not use the name, logo, any trademarks, brand names, business names or copyright belonging to Us or Qantas without Our prior written approval.
6.4          You authorise Us to publish the names, addresses, telephone numbers, facsimile numbers and email addresses of Yours and to use any logo applicable to You in any correspondence, circular or publication of Ours subject to the Client’s prior approval which approval is not to be unreasonably withheld.
6.5          You may only publish, distribute or otherwise use promotional material that refers to the QFF Program or Qantas if We have provided Our prior written approval.
6.6          You must tell Us how You intend to publish, distribute or otherwise use Our, Qantas’s or Your promotional material. If We determine that You cannot publish, distribute or use the promotional material in a particular way, then You must not publish, distribute or use the promotional material in that way provided that this doesn’t restrict the Client from using promotional material that makes no reference to Qantas or Us.
7.             Merchant Vouchers
7.1          You may ask us to issue Merchant Vouchers.  Any such request must specify the number and face value of each Merchant Voucher and the expiry date beyond which those Merchant Vouchers will not be capable of being redeemed.
7.2          We are not obliged to issue any Merchant Voucher and any Merchant Voucher we do issue may be cancelled or withdrawn by us for any reason prior to its redemption via the App.
7.3          We will not issue Merchant Vouchers for redemption by You that have not been authorised in advance by you.
8.             POS Software
8.1          Use
8.1.1          We grant to You a revocable, non exclusive, non assignable licence to use the POS Software for the Permitted Use. You must not use the POS Software otherwise than in accordance with the Permitted Use (‘POS Software Licence’).
8.1.2          We may deliver the POS Software to You electronically or by any physical means to You.
8.1.3          You must not:
(a)            sub-license, assign or novate the benefit or burden of the POS Software Licence in whole or in part;
(b)            allow the POS Software Licence to become the subject of any charge, lien or encumbrance; and
(c)            deal in any other manner with any or all of the POS Software Rights and obligations under this Agreement,
without Our prior written consent. We may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the POS Software Licence without notice.
8.1.4          You have no right and will not Yourself (nor permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the POS Software in whole or in part.
8.1.5          We may market and licence the POS Software to any person in any manner We think fit.
8.2          Remote access
8.2.1          We may provide Support Services via remote access, whereby We will access, control and gather information on Your POS System through the installation and use of POS Software. You consent to Us accessing your POS System remotely for Support Services.
8.2.2          Nothing in this Agreement obliges Us to provide Support Services. For the avoidance of doubt, We will not provide Support Services relating to problems or issues arising out of or from:
(a)            the use of POS Software as a server-based application;
(b)            the use or modification of POS Software in a manner for which the POS Software is not intended to be used or modified;
(c)            third-party products or technologies and their effects on or interactions with the POS Software;
(d)            damage to the media on which POS Software is provided, or to any computer on which POS Software is installed;
(e)            use of a computer system that is incompatible with POS Software; and
(f)             issues relating to internet, email, file management, network configuration, scripting, FX scripting, programming, compiling, debugging, infrastructure design, content creation, content customization, multimedia project planning/design, resource management, budgeting, training, or onsite diagnosis.
8.2.3          You acknowledge that You are responsible for any and all restoration or reconstruction of lost or altered files, data, or programs resulting from or arising in connection with the installation or use of the POS Software.
8.2.4          You will maintain and implement a data backup and disaster recovery plan in respect of any and all data stored on any POS System that has or will have installed on it the POS Software. You are solely responsible for any and all security of Your confidential, personal and proprietary information.
9.             Audit
If there is a dispute involving a transaction under or in connection with this Agreement or We suspect that fraud is involved, You must comply with Our reasonable directions in respect of that dispute or Our investigations regarding that suspicion of fraud.
10.          Conduct
10.1       You must, and must use best endeavours to ensure that Your employees and contractors:
10.1.1       understand and actively promote and market the operation of the Merchant Facilities through the App; and
10.1.2       provide goods and services in connection with the Merchant Facilities; and
10.1.3       accept orders and payments through the Merchant Facilities. 
10.2       You must not engage in conduct that is misleading, deceptive or false in relation to:
10.2.1       the supply of the Goods and Services;
10.2.2       the provision of any Merchant Voucher(s) or Aston Club Voucher(s); and
10.2.3       the services We supply You with, including the Merchant Facilities.
10.3       In relation to the QFF Program, You must not:
10.3.1       represent to any person that:
(a)            Your goods or services have sponsorship, approval, support or endorsement of Qantas; or
(b)            a person may earn points in any manner other than as a redemption of Credits through the App;
10.3.2       credit, sell, transfer or otherwise deal with any QFF Program points or offer or purport to do so;
10.3.3       raise Your prices for Your (or any other person’s) products because of a person's participation in the QFF Program; or
10.3.4       charge persons any fee of any type in relation to the crediting of QFF Program points.
11.          Intellectual Property
11.1       Unless specified in this Agreement:
11.1.1       You must not use Our Intellectual Property Rights without Our prior written consent which is not to be unreasonable withheld; and
11.1.2       We may use Your Intellectual Property Rights with Your prior written consent which is not to be unreasonably withheld.
11.2       No ownership or title to a party’s Intellectual Property Rights is transferred to the other party by virtue of the terms of this Agreement.
11.3       Each party will ensure that each reference to and use of the other party’s trade marks (if any) are in a manner from time to time approved by the other party in writing and accompanied by an acknowledgement in a form agreed with the other party that it is a trade mark of that party.
11.4       You must not create or make any improvements, changes, or modifications to Our Intellectual Property Rights.
11.5       You must not use any Intellectual Property Rights of Our Loyalty Partners, Industry Partners or Promotional Partners without Our prior written consent.
12.          Customer Data
12.1       We own all:
12.1.1       information provided by Customers to Us when Customers download the App (‘Customer Profile Data’); and
12.1.2       data relating to transactions between You and the Customers collected in connection with the Merchant Facilities or the POS Software (‘Customer Transaction Data’);
12.1.3       Provided that the Customer Profile Data and Customer Transaction Data will only be used by Us in a manner permitted by this Agreement.
12.2       We grant to You an exclusive perpetual license to use the Customer Profile Data and the Customer Transaction Data.  .
12.3       Each party must comply with their respective obligations under the Privacy Act 1988 (Cth) (if any).
13.          Representations and Warranties
13.1       Each party warrants to the other party that:
13.1.1       it has taken all necessary corporate action to enable it to enter into this Agreement;
13.1.2       this Agreement is executed by its duly authorised representatives with full power and authority to bind it;
13.1.3       it has the authority to grant the rights provided to the other party as set out in this Agreement; and
13.1.4       it holds all licences, approvals and permits required by law to perform its obligations under this Agreement.
13.2       We do not represent or warrant that:
13.2.1       access to the Merchant Facilities or POS Software will be uninterrupted, reliable or fault free provided that We will ensure that the Merchant Facilities will be available at least 99% of the time, and all faults in the Merchant Facilities are remedied within 24 hours;
13.2.2       the Merchant Facilities and/or POS Software are fault or bug free provided that We will ensure that all faults and bugs in the Merchant Facilities are remedied within 24 hours;
13.2.3       the timing of payment of Balance Funds to You will be uninterrupted, reliable or on time;
13.2.4       the content of Our website will be accurate, complete or reliable.
13.3       To the extent permitted by law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
14.          Limitation of liability
14.1       Except as expressly stated in clause 14.2:
14.1.1       We will not in any circumstances have any liability for any losses or damages which may be suffered by You (or any person claiming under or through You), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(a)            special damage even if You were aware of the circumstances in which such special damage could arise;
(b)            loss of profits;
(c)            loss of anticipated savings;
(d)            loss of business opportunity;
(e)            loss of goodwill;
(f)             loss or damage suffered because any telephone line or other communications device or service is malfunctioning or not operating;
(g)            loss, liability or damage which You may suffer or incur resulting from Our failure to credit You due to technical or administrative difficulties relating to the banking system used for the transfer of funds to You; and
provided that this clause 14.1.1 will not prevent claims for loss of or damage to Your tangible property that fall within the terms of clause 14.1.2 or any other claims for direct financial loss that are not excluded by any of categories in clauses 14.1.1(a) to Error! Reference source not found. inclusive of this clause 14.1.1;
14.1.2       the total liability of Ours, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, be limited to the greater of the level of our Insurance Cover and $100; and
14.1.3       You agree that, in entering into this Agreement, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or in the proposal we We emailed to You on 18 July 2015, or (if You did rely on any representations, whether written or oral, not expressly set out in this Agreement or that proposal) that You will have no remedy in respect of such representations, and (in either case) We will have no liability in any circumstances, otherwise than in accordance with the express terms of this Agreement.
14.2       To remove any doubt and without limiting the generality of this clause 14, the Merchant Facilities are dependent on messaging, communications, processing and other systems which are subject to interruption or breakdown for a variety of reasons. We will not have any liability for any failure, delay or other matter resulting from such interruption or breakdown (including any interruption or breakdown in connection with a Customer’s mobile device).
14.3       If any interruption or breakdown in respect of the Merchant Facilities or POS Software lasts for 10 minutes or more, We will:
14.3.1       automatically close all accounts or tabs which Customers have with You which have not been paid at the start of that interruption or breakdown; and
14.3.2       notwithstanding clause 24, notify (electronically) You and the relevant Customers that the relevant account or tab has been closed.
14.4       The exclusions in clause 13.3 and clause 14.1 will apply to the fullest extent permissible at law, but We do not exclude liability for any other liability which may not be excluded by law.
14.5       All references to ‘We’, ‘Our’, or ‘Us’ in this clause 14 will, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of the Ours, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.  We hold that benefit as their agent and may enforce that benefit in Our or their names.
15.          Indemnity
15.1       You indemnify Us against all claims, damages, actions, losses and liabilities (including all fines, penalties and other charges incurred by Us as a result of any act or omission of Yours) which We or any of Our employees, contractors or agents suffer or incur arising directly or indirectly from:
15.1.1       You or of one of Your employees’, contractors’ or agents’ negligence or fraud;
15.1.2       Your failure, or the failure of one of Your employees, contractors or agents, to observe any of Your obligations under this Agreement;
15.1.3       any dispute arising between the Customer and You in respect of the availability, supply, use, quality or fitness for purpose of Goods or Services or the Merchant Facilities or the POS Software or any Merchant Voucher;
15.1.4       any use of an electronic terminal or POS Software by Us, You or Your employees, contractors or agents;
15.1.5       any representation, warranty or statement made by You or Your employees, contractors or agents to a Customer;
15.1.6       any failure of systems located or used on Your premises to be able to process payments utilising the Merchant Facilities or POS Software;
15.1.7       any act or omission of Yours or Your personnel which if done or omitted to be done by You would have been a breach of this Agreement or induce a breach of any agreement between Us and Qantas; or
15.1.8       any misrepresentation, breach of contract and/or failure of consideration relating to any contract for the supply of Goods or Services or the Merchant Facilities  or POS Software by You and Us respectively to a Customer,
except that You are not obliged to indemnify Us or any of Our employees, contractors or agents against any claims, damages, actions, losses or liabilities which are solely the result of Our fraud or any other act or omission on Our part. We hold the benefit of all indemnification under this clause for a person other than Us as the agent of that person and may enforce that benefit in Our or their names.
15.2       You must, upon Our written request, sign a deed-poll in a form specified by Us, so that Our employees, contractors and agents may benefit from the indemnity under clause 15.1.
16.          Default and termination
16.1       Default
16.1.1       A Material Default occurs when a party (‘Defaulting Party’) does not observe or perform any material obligation under this Agreement.
16.1.2       An Innocent Party is any party, except the Defaulting Party, who did not directly cause or induce the Material Default.
16.1.3       Notice to Remedy means a notice which:
(a)            identifies the alleged Material Default;
(b)            identifies what action (if any) the Innocent Party reasonably thinks will remedy the Material Default in all material respects; and
(c)            specifies the time (not less than 10 business days) by which the Material Default must be remedied.
16.2       Notice to Remedy
16.2.1       An Innocent Party may give a Defaulting Party a Notice to Remedy. 
16.2.2       A Notice to Remedy may only be given where the relevant act or omission (or, if a series of acts or omissions, the first act or omission in that series) occurred no more than 12 months before the Notice to Remedy is given.
16.3       Notice to Remedy – second notice
If:
16.3.1       a Notice to Remedy is given under clause 16.2; and
16.3.2       that Material Default has not been remedied in all material respects or waived within the time specified in the Notice to Remedy,
the Innocent Party may give a second Notice to Remedy.
16.4       Termination
16.4.1       An Innocent Party may terminate this Agreement by notice if:
(a)            a Material Default:
(i)              occurs; and
(ii)             is not remedied in all material respects within the times specified in the Notices to Remedy given in clause 16.2 and clause 16.3; and
(b)            no party has relied upon clause 23 in respect of the Material Default or, if any party has relied upon clause 23, any proceedings under clause 23 have been concluded in favour of the Innocent Party.
16.4.2       We may terminate this Agreement by notice if:
(a)            in Our opinion, an unacceptable number of Refund Events occur being not less than 3 times the average across all of our clients;
(b)            it becomes illegal or impossible in practice, through no fault of Our own, for Us to continue to provide the Merchant Facilities to You; or
(c)            an Insolvency Event occurs in relation to You.
16.4.3       If we terminate this Agreement pursuant to this clause 16.4, otherwise than pursuant to clause 16.4.2(b), then upon termination:
(a)            any licence granted under clause 12 automatically terminates; and
(b)            You must destroy all copies of the Customer Profile Data and the Customer Transaction Data (in any media) within the possession and/or control of You or any of Your employees, contractors or agents within five business days of this Agreement terminates.
 
Part 1 -    Standard terms
17.          Effect of introduction
The introduction is correct and forms part of this Agreement.
18.          Entire contract
This Agreement records the entire contract between the parties as to its subject matter.  Subject to its express terms:
18.1       only terms which must be implied by law are implied in this Agreement;
18.2       as to any representation given by a party which is not expressed in this Agreement:
18.2.1       that representation is withdrawn;
18.2.2       that representation is not relied upon by any person; and
18.2.3       the parties release each other (and their officers, servants and agents) from all claims in connection with it; and
18.3       as to any prior or collateral contract:
18.3.1       this Agreement supersedes that prior or collateral contract; and
18.3.2       the parties release each other from all claims arising from any prior or collateral contract.
19.          Confidentiality
19.1       ‘Confidential Information’ means the fact and terms of this Agreement and information (in any media):
19.1.1       exchanged between parties or about another party obtained in connection with this Agreement (including any Customer Profile Data or Customer Transaction Data which We license You to use under clause 12); and
19.1.2       that a party (‘Discloser’) identifies as ‘confidential’ or ‘proprietary’ before it is disclosed to another party.
It does not include information that is:
19.1.3       in the public domain other than by a breach of this Agreement or any other duty of confidence; or
19.1.4       otherwise lawfully known by another party.
19.2       The obligations in this clause 19 do not apply to a party dealing with its own Confidential Information.
19.3       Each party must:
19.3.1       keep the Confidential Information confidential;
19.3.2       use its best efforts to prevent any unauthorised access, copying, use or disclosure of the Confidential Information; and
19.3.3       immediately notify the Discloser if it suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information.
19.4       A party must not access, copy, use or disclose any Confidential Information (in any media) unless and to the extent:
19.4.1       reasonably necessary to perform this Agreement;
19.4.2       required so the party can obtain funds to perform this Agreement;
19.4.3       required by applicable law or the applicable rules of a securities exchange (provided that as soon as reasonably practicable before making a disclosure, it informs the Discloser of the fact of, and the reasons for, that intended disclosure); or
19.4.4       all other parties consent.
19.5       A party must not disclose any Confidential Information (in any media) except to a person who has:
19.5.1       been approved by the Discloser or is an employee of, or a professional adviser to, the party; and
19.5.2       undertaken to comply with this clause 19.
The disclosing party is liable to the Discloser for any breach of those undertakings.
19.6       Within five business days of notice to do so from the Discloser, a party must return or destroy any document containing the Confidential Information and confirm in writing that it has complied with that notice.
19.7       The obligations in this clause 19 continue until the day before the third anniversary of the date of this Agreement.
20.          Other acts
Each party must, at their expense:
20.1       use their best efforts to promptly do all things reasonably necessary to give full effect to this Agreement; and
20.2       maintain all consents, approvals and authorities necessary for any party to perform their obligations under this Agreement.
21.          Costs
21.1       Each party must bear their own costs in relation to the negotiation, preparation and execution of this Agreement.
21.2       You must pay all stamp duty, registration fees and any other government charges payable in respect of this Agreement and any document required by this Agreement.
22.          Suspension of obligations (force majeure)
22.1       ‘Suspending Event’ means an event or circumstance:
22.1.1       which a party did not cause;
22.1.2       to which that party did not materially contribute; and
22.1.3       which that party is unable to prevent or materially influence.
It is sometimes known as a force majeure event.
22.2       A party may, by notice, elect to suspend performance of an obligation under this Agreement (except an obligation to pay money) to the extent and for so long as that party is prevented from performing that obligation by a Suspending Event. 
22.3       The party whose obligation is suspended must:
22.3.1       immediately give notice of the Suspending Event, the obligation to be suspended and the effect of the Suspending Event upon that obligation;
22.3.2       use their best efforts to overcome the effect of the Suspending Event; 
22.3.3       recommence performance of their obligations as soon as possible; and
22.3.4       immediately give notice of any change in the Suspending Event and of the measures taken to comply with this clause 22.
22.4       If a material obligation is suspended under this clause 22 for at least six months, a party affected by its suspension may terminate the further performance of this Agreement by 20 business days notice, provided that the Suspending Event is still operating when that notice period expires.
23.          Dispute resolution
23.1       General
23.1.1       The parties must try to resolve any dispute or claim in connection with this Agreement or its performance (‘Dispute’) in accordance with this clause 23.  The parties must not commence any Court proceedings (other than an application for an urgent interlocutory or declaratory relief) until these proceedings are exhausted.
23.1.2       All procedures in this clause 23 will occur in Melbourne, Victoria.
23.1.3       A party must continue to perform this Agreement despite the application of this clause 23.
23.1.4       This clause 23 continues indefinitely.
23.2       Negotiation
23.2.1       A party may at any time give the other parties notice of a Dispute (‘Dispute Notice’).  The date upon which the Dispute Notice is delivered is referred to as the Dispute Notice Date.
23.2.2       The parties must deliver to each other a written response (‘Answer’) within 10 business days after the Dispute Notice Date.  The Dispute Notice and the Answer must include:
(a)            a statement of each party’s position and a summary of arguments supporting that position; and
(b)            what action (if any) that party thinks will resolve the Dispute.
23.2.3       Representatives of all parties who are authorised to resolve the Dispute must meet within 20 business days of the Dispute Notice Date to negotiate in good faith to resolve the Dispute.
23.3       Mediation
If the Dispute has not resolved within 20 business days of the Dispute Notice Date it will be mediated in accordance with the Australian Commercial Disputes Centre Guidelines for Commercial Mediation current at the Dispute Notice Date.  Those Guidelines are incorporated into this Agreement.  Where there is any inconsistency between those Guidelines and this Agreement, this Agreement prevails.
24.          Consents, approvals, requests and notices
24.1       Where conduct requires a consent or approval, that consent or approval must be given before that conduct occurs.
24.2       Any consent or approval may be subject to any conditions and may be withheld for any reason. 
24.3       A consent, approval, request or notice must be in writing and signed by the party or their agent.  It may be given by:
24.3.1       pre-paid post to the address on page 1 or last notified to all parties;
24.3.2       email or facsimile to the address or number last notified to all parties; or
24.3.3       by any other means allowed by law.
24.4       Unless stated otherwise, a copy of any consent, approval, request or notice must be given to each party.
24.5       A consent, approval, request or notice, if validly given, is taken to have been received:
24.5.1       if posted, the third business day after posting;
24.5.2       if sent by email and the sender does not receive a bounce message notifying the sender that the email has failed to be delivered:
(a)            during business hours, on the day the notice is sent; and
(b)            outside business hours, at 10.00 am on the next business day;
24.5.3       if sent by facsimile and the sender receives a transmission confirmation report:
(a)            during business hours, on the day the notice is sent; and
(b)            outside business hours, at 10.00 am on the next business day; or
24.5.4       at any other time allowed by law.
24.6       Where two or more persons comprise a party, notice to one is effective notice to all.
25.          Governing law
The laws in Victoria govern this Agreement.  The parties submit to the exclusive jurisdiction of the Courts of Victoria and the Federal Court of Australia (Melbourne Registry).
26.          Rights and obligations granted by this Agreement
The rights and obligations under this Agreement:
26.1       are not conferred upon a person who is not a party;
26.2       are in addition to and do not affect any other rights that party may have;
26.3       will not merge with any act done to complete or perform this Agreement;
26.4       can be amended by Us giving You notice of amendments and You consenting to the amendments; and
26.5       cannot be waived except by express notice specifying the waiver.
27.          Payments
27.1       Unless stated otherwise, a reference to money means Australian currency.
27.2       Unless stated otherwise, payments must be made without set off or deduction.
27.3       Payments must be made in the manner nominated by the payee.
27.4       The payee may, at its option, apply money received from a payer against any money then due by the payer to the payee.
27.5       The amount payable for any taxable supply in connection with this Agreement excludes GST and must be increased by the rate of GST imposed by law.  Each party acknowledges that it is more efficient and practical for a supplier making a payment that is the subject of a taxable supply to issue a recipient created tax invoice in relation to such supplies. Unless otherwise agreed, each party agrees that a supplier making a payment to a recipient under this Agreement where that payment is a taxable supply, must issue a recipient created tax invoice in respect of that supply, and that the recipient will not issue a tax invoice where a recipient created tax invoice is to be issued by a supplier.
Terms used in this clause 27.5 have the meanings given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
27.6       Any late payment attracts interest.  Interest will be calculated at four percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time.  That interest will accrue and be recoverable from day to day.
28.          Time
28.1       Time means Victorian time.
28.2       A month means a calendar month.
28.3       A business day means any day that is not a Saturday, Sunday or public holiday in Victoria.  If an act must be done on a day that is not a business day, it may be done on the next business day.
28.4       Business hours means between the hours of 9.00 am and 5.00 pm on a business day.
28.5       Where time is to be calculated from a day or event, that day or the day of that event must be excluded from that calculation.
28.6        Unless stated otherwise, time is of the essence.
29.          Parties
29.1       A promise, representation, warranty or indemnity in this Agreement:
29.1.1       on the part of two or more persons binds them jointly and severally; and
29.1.2       in favour of two or more persons is for the benefit of them jointly.
29.2       Unless stated otherwise, this Agreement does not create a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.
30.          Assignment and change in control
30.1       Your rights and obligations under this Agreement are personal and cannot be assigned without Our prior consent.  We may elect that a purported assignment without that consent is void. We may assign Our rights and obligations by giving notice to You.
30.2       A party includes the party’s successors and permitted assigns.
30.3       If You are a trustee of a trust, You must not, without Our consent, :
30.3.1       allow any change to the power (whether legally enforceable or not) to control, whether directly or indirectly:
(a)            the appointment of any new or additional trustee of the trust;
(b)            the removal of the trustee of the trust; and/or
(c)            the management of the affairs of the trust;
30.3.2       do anything which could bring about Your removal or retirement as trustee;
30.3.3       default under the provisions of the trust deed;
30.3.4       allow Your right of subrogation as trustee of the trust to be restricted; or
30.3.5       allow the vesting date of the trust to be determined.
30.4       If You are a corporation, You will not allow without Our consent, any change to the power (whether legally enforceable or not) to control, whether directly or indirectly:
30.4.1       the composition of Your board of directors;
30.4.2       the voting rights of the majority of Your voting shares; or
30.4.3       the management of Your affairs.
31.          Trustee
A party that is a trustee is bound by this Agreement both personally and in its capacity as a trustee.
 
Part 2 -    Interpretation
32.          Rules of interpretation
32.1       Any provision of this Agreement must be read down to any extent necessary to be valid.  If that is not possible, it must be severed.  All other provisions of this Agreement are unaffected.
32.2       A provision of this Agreement must not be construed to the disadvantage of a party because that party was responsible for including that provision and/or that provision benefits that party.
32.3       In this Agreement, unless the contrary intention appears:
32.3.1       a person includes any other legal entity and vice versa;
32.3.2       the singular includes the plural and vice versa;
32.3.3       a gender includes the other gender;
32.3.4       where an expression is defined, its other grammatical forms have a corresponding meaning;
32.3.5       a clause or annexure is a clause of or an annexure to this Agreement;
32.3.6       reference to a document is to that document as amended or varied;
32.3.7       any legislation includes any subordinate legislation and amendments;
32.3.8       conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
32.3.9       ‘writing’, ‘written’ and ‘in writing’ include any mode of representing or reproducing words in a visible form; and
32.3.10    ‘including’, or similar words, does not limit what else might be included.
32.4       Headings are for convenience and do not affect the interpretation of this Agreement.
33.          Dictionary
In this Agreement, unless the contrary intention appears:
33.1       ‘Agreement’ means this agreement;
33.2       ‘App’ means Our mobile software application by which Customers can use the Merchant Facilities and which can assist You to manage credit accounts for Customers.  That mobile software application is titled ‘Aston Club’;
33.3       ‘Aston Club Voucher’ means a voucher issued by Us to any Customer which:
33.3.1       entitles that Customer to a credit equal to the monetary amount of the voucher which may be applied as payment for Goods and Services which You provide to the Customer.  For any Customer who has set a Pre Authorised Amount, the monetary amount of the voucher will be added to the Pre Authorised Amount; and
33.3.2       may be redeemed by that Customer by entering a code provided by Us to that Customer via the App;
33.4       ‘Balance Funds’ has the same meaning as in clause 2.3;
33.5       ‘Cash Funds’ means in respect of any payment period, that proportion of the Balance Funds that the money paid by Customers to Us (through the Merchant Facilities) in that payment period represents to the Transaction Funds in respect of that payment period;
33.6       ‘Credits’ means ‘Aston Club Points’ earned by a Customer in accordance with the App as a result of the acquisition by that Customer of Goods and Services;
33.7       ‘Customer’ means a customer of Yours to which You:
33.7.1       have provided; or
33.7.2       are providing; or
33.7.3       will provide,
Goods and Services;
33.8       ‘Goods and Services’ means goods and/or services You provide to Customers where those Customers utilise the Merchant Facilities for making payments to You;
33.9       ‘Industry Partner’ means any entity with which We conducted, are conducting or will conduct cross-promotional marketing campaigns that focus on increasing the number of end users of the App to drive marketing campaigns which drive sales of that entity’s products;
33.10    ‘Insolvency Event’ means each of the following events occurring to a person, or any action being taken that could result in any of the following events occurring to a person:
33.10.1    being Deregistered;
33.10.2    stating that they are, or being, Insolvent;
33.10.3    being an Insolvent Under Administration;
33.10.4    having a Controller appointed over any of their assets;
33.10.5    becoming an Externally-Administered Body Corporate;
33.10.6    having a Provisional Liquidator appointed to them;
33.10.7    any of the events listed in section 459C(2) of the Corporations Act 2001 (Cth);
33.10.8    except to reconstruct or amalgamate while solvent, entering into a scheme of arrangement, composition with or assignment for the benefit of creditors;
33.10.9    obtaining protection from their creditors under any applicable law; or
33.10.10 anything analogous or having a substantially similar effect to any of these events.
Unless otherwise defined in this Agreement, any term in title case used in this clause 33.8 has the meaning given by the Corporations Act 2001 (Cth);
33.11    ‘Intellectual Property’ means any intellectual or industrial property including any:
33.11.1    work or sound recording as defined in the Copyright Act 1968 (Cth);
33.11.2    trade mark as defined in the Trade Marks Act 1995 (Cth), whether registrable or not;
33.11.3    design as defined in the Designs Act 2003 (Cth), whether registrable or not;
33.11.4    invention as defined in the Patents Act 1990 (Cth), whether patentable or not; and
33.11.5    trade secrets, know how or other information protected by law;
33.12    ‘Intellectual Property Rights’ means rights in relation to Intellectual Property;
33.13    ‘Loyalty Partner’ means any entity which has allowed, allows or will allow end users of the App to convert Credits earned through Our loyalty or reward program into points or credits with that entity’s loyalty or other reward program;
33.14    ‘Merchant Facilities’ means the services which We provide Customers through which they can pay monies in exchange for Goods and Services You provide to them;
33.15    ‘Merchant Voucher’ means a voucher authorised by you and issued via the App to any Customer which:
33.15.1    entitles that Customer to a credit equal to the monetary amount of the voucher which may be applied as payment for Goods and Services which You provide to the Customer; and
33.15.2    may be redeemed by that Customer by entering a code provided by Us to that Customer via the App;
33.16    ‘Nominated Account’ means the bank account You nominate to Us in writing;
33.17    ‘Our Fees’ means the fees specified in Item 1 if the Schedule and the Refund Fee;
33.18    ‘Permitted Use’ means the use of processing payments made in connection with the App and the Merchant Facilities;
33.19    ‘POS Software’ means the software owned by Us and installed on Your POS System and includes the underlying code and all technical information and documentation required to operate it and includes any changes, improvements, modifications and interfaces developed in such software by Us or any other person and includes any software or code that allows Us to update, modify, remove or otherwise change such software remotely;
33.20    ‘POS Software Licence’ has the meaning given to that term in clause 8.1;
33.21    ‘POS System’ means such hardware used by You to process sales to Customers and on which the POS Software will be used;
33.22    ‘Pre Authorised Amount’ (if applicable) means the maximum amount a Customer will spend in relation to the Goods and Services which You provide to that  Customer via the App;
33.23    ‘Promotional Partner’ means any entity with which We conducted, are conducting or will conduct cross-promotional campaigns that focus on giving benefits (such as discounts or preferential treatment) for end users of the App;
33.24    ‘Qantas’ means Qantas Airways Limited ACN 009 661 901 or any of its related bodies corporate (as defined in the Corporations Act 2001 (Cth));
33.25    ‘QFF Program’ means the loyalty program currently known as the Qantas Frequent Flyer program;
33.26    ‘Refund Event’ means each event where a Customer is entitled to or otherwise obtains a refund from You in relation to the Goods and Services You provide to that Customer;
33.27    ‘Refund Fee’ means the amount specified in Item 2 of the Schedule plus GST;
33.28    ‘Support Services’ means the act of updating or otherwise modifying the POS Software;
33.29    ‘Transaction Funds’ means:
33.29.1    the money paid by a Customer to Us (through the Merchant Facilities) in cleared funds; plus
33.29.2    the value of any Aston Club Voucher(s) redeemed by that Customer (through the Merchant Facilities),
for Goods and Services You provide to that Customer.  It excludes the value of any Merchant Voucher(s) redeemed by that Customer (through the Merchant Facilities) for Goods and Services You provide to that Customer;
33.30    ‘Voucher Funds’ means in respect of any payment period, that proportion of the Balance Funds that the value of any Aston Club Voucher(s) redeemed by Customers (through the Merchant Facilities) in that payment period represents to the Transaction Funds in respect of that payment period;
33.31    ‘We’, ‘Us’, and ‘Our’ means Aston Club Pty Limited ACN 163 875 590; and
33.32    ‘You’ and ‘Your’ means the Merchant.

 
Schedule
Item 1 – Our Fees
3.5% of:
1.     the money paid by Customers to Us (through the Merchant Facilities or POS Software) in cleared funds; plus
2.     the value of all Aston Club Vouchers redeemed by Customers (through the Merchant Facilities or POS Software); plus
3.     the value of all Merchant Vouchers redeemed by Customers (through the Merchant Facilities or POS Software),
for Goods and Services You provide to Customers, plus GST.
 
Item 2 – Refund Fee
4.5% of the amount which You refund to a Customer in connection with a Refund Event, plus GST.