Merchant Agreement
DETAILS OF PARTIES
Name YouPay Pty Ltd
YouPay
ACN 644 120 990
Address Unit 15B, 10 Old Chatswood Road SPRINGWOOD QLD 4217
Email Address: [email protected]
OPERATIVE PROVISIONS
1. INTRODUCTION
This Agreement is entered into between YouPay and the Merchant from the earlier of the date it is accepted by the Merchant or the date upon which the Merchant commences using the YouPay Services, which will be deemed to constitute the Merchant’s acceptance of this Agreement.
YouPay and the Merchant agree that this Agreement supersedes any and all previously executed merchant agreements or other arrangements between YouPay and the Merchant with respect to the YouPay Services and to the extent there are conflicting terms, this Agreement will prevail. Any future agreements with negotiated discounts will supersede this document.
All schedules to this Agreement are expressly part of this Agreement.
2. ACKNOWLEDGEMENT
1. YouPay
YouPay acknowledges and agrees, as consideration for the Fee, to allow the Merchant to use the YouPay Services.
2. Merchant
The Merchant acknowledges and agrees to use the YouPay Services in accordance with the terms of this Agreement.
3. YOUPAY SERVICES
1. The YouPay Services include:
a. access to the YouPay Shared Payment App;
b. the facilitating the purchase of the Goods from a Merchant by a Controllers by providing the Controllers details to the Permitted Payment Provider via the YouPay Shared Payment App.
2. The parties acknowledge that the YouPay Services allow a Controllers to purchase Goods offered by the Merchant on the Merchant’s Website.
4. FEES AND TERMS OF PAYMENT
1. Fees
a. You shall pay for the YouPay Services the fees informed on our website and as amended from time to time. Unless otherwise instructed on our website, the YouPay Services is invoiced by Shopify on your Shopify invoice.
b. All Fees are quoted in US Dollars, unless expressly stated otherwise.
c. By installing the YouPay Shared Payment App, you give your consent to being billed for the Fees, in addition to any applicable taxes and surcharges or commissions charged by the payment processor.
d. All amounts payable to us are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges.
e. You are responsible for the payment of all such applicable taxes or charges. The Fees you pay are non-refundable.
f. You are responsible for paying all applicable Fees whether or not you actually used or otherwise benefited from the YouPay Services. .
2. Timing of Fee payment
a. As soon as practicable after the Merchant enters into this Agreement, YouPay will provide written notice to the Merchant as to when the Fee, or accumulated Fees, are payable by the Merchant to YouPay.
b. YouPay may at any time during the term of this Agreement, by written notice to the Merchant, change the timing for payment of the Fee by the Merchant to YouPay and this change will take effect five Business Days after the date the notice was provided.
3. Merchant’s Restrictions
a. The Merchant must not charge or impose a surcharge or any extra fee to a Controllers on account of the Fee and the Merchant acknowledges that the Cost of Goods for the Controllers must not increase as a consequence of the Merchant’s obligations to YouPay for the Fee.
b. If the Merchant is in breach of clause 4.3(a), YouPay may, at its discretion, terminate this Agreement in accordance with clause 15.
5. TERM OF AGREEMENT
1. Term
The parties agree and acknowledge that this Agreement operates for the Term and any renewal to the Term in accordance with clause 5.2.
2. Renewal of Term
a. Subject to a party providing notice in accordance with clause 5.2(b), upon expiration of the Term, this Agreement will renew for a further period equal in length to the original term and the provisions of this Agreement will apply during that renewal period as if the renewal period was the original term of the Agreement.
b. Should either party not want the Term to rollover or renew upon expiration of the existing Term, either party may provide notice at least 30 days before the expiry of the Term that the party does not want the Agreement to renew for a further period and that the Agreement will end upon expiration of the Term.
3. Termination of Agreement
Nothing in this clause 5 constitutes a waiver, amendment or variation of a party’s rights under this Agreement, including but not limited to the ability to terminate this Agreement pursuant to clause 15.
6. YOUPAY OBLIGATIONS
1. YouPay grants to the Merchant the right to access and use the YouPay Services in accordance with the terms of this Agreement
2. Subject to the terms of this Agreement, YouPay agrees to:
a. provide the Merchant with the YouPay Services;
b. provide the Merchant with access to standardised reports regarding any YouPay Purchases.
3. YouPay will use its best and reasonable endeavours to ensure that the YouPay Services are readily available to the Merchant and its Customers.
7. MERCHANT OBLIGATIONS
1. The Merchant is responsible for:
a. establishing, hosting and maintaining the Merchant’s Website and its connection;
b. fulfilling all orders for Goods sold by Merchant to its Customers on the Merchant’s Website;
c. reviewing transactions in its account on a regular basis and notifying YouPay promptly of suspected unauthorised activity through its account;
d. maintaining commercially reasonable business practices in conjunction with use of the YouPay Services, collecting, storing and transmitting its Controllers data in a secure manner and protecting the privacy of its Controllers data;
e. updating to the most current software version and security updates and patches necessary to properly operate the YouPay Services and keeping all the Merchant enrolment and payment information current and updated on the Merchant’s Website;
f. ensuring that its Customers are at least 18 years of age, should the Merchant sell Goods that legally require a consumer of the Goods to be at least 18 years of age.
2. The Merchant shall comply with YouPay’s requests for reasonable action on the Merchant’s part, to the extent necessary, to maintain security and integrity of the YouPay Services.
3. The Merchant acknowledges and agrees that:
a. it will use the YouPay Services in accordance with the applicable user guides, this Agreement and any other documentation provided by YouPay;
b. it will not use or permit others to use information obtained through the use of the YouPay Services for any purpose other than in conjunction with the YouPay Services and in a manner described in any documentation for the YouPay Services.
8. SOFTWARE LICENCE
1. YouPay grants the Merchant a non-exclusive, non-transferable, royalty-free licence (without any right to sublicence) for the term of the Agreement to use all software provided by YouPay under this Agreement solely to the extent required for the performance of the Merchant’s obligations and its receipt of the YouPay Services under this Agreement.
2. To the maximum extent permitted by law, and subject to clause 16.2:
a. any software provided by YouPay to the Merchant is provided on an “as is” basis; and
b. YouPay excludes all representations and warranties, whether express or implied, regarding the software, and gives no undertaking or assurance in respect of the performance of the software or its reliability, accuracy, adequacy or completeness (including whether it is error free and will provide continuous, uninterrupted or secure access to the YouPay Services).
3. On termination of this Agreement, the Merchant must permanently delete all copies of the software in the Merchant’s possession or control.
9. REFUNDS
1. Should a refund or exchange be requested by a Controllers after a YouPay Purchase, the Merchant acknowledges and agrees that it is the Merchant’s obligation to attend to the Controllers’s request.
2. The Merchant acknowledges and agrees that any refunds will not be processed via the YouPay Shared Payment App.
3. For the avoidance of doubt, YouPay will have no dealing with, and is not required to assist the Merchant with, any refund request made by a Controllers.
10. INTELLECTUAL PROPERTY
1. Except as expressly provided in this Agreement, neither party will acquire any rights in respect of the Intellectual Property of the other party.
2. Neither party may use the Intellectual Property of the other party in any way except:
a. with the prior written approval of the other party (such approval not to be unreasonably withheld), and in accordance with the terms of any such approval; or
b. as specifically authorised in this Agreement (including this clause 10).
3. YouPay grants the Merchant a non-exclusive, non-transferable, revocable and royalty free licence to use and reproduce:
a. the YouPay Trade Marks; and
b. any other YouPay Intellectual Property provided to the Merchant in connection with this Agreement,
solely in connection the Merchant’s performance of its obligations under this Agreement, and as permitted under this Agreement or any other written directions YouPay may give the Merchant, including any guidelines that YouPay may notify the Merchant of from time to time. YouPay confirms that it will not revoke the licence permitted in this clause 10 in a manner inconsistent with the Merchant’s rights and obligations under this Agreement.
4. The Merchant must submit an application for the proposed use of YouPay’s Intellectual Property to YouPay for YouPay’s written approval prior to use, except to the extent that such use is expressly permitted under this Agreement or otherwise expressly agreed in writing by YouPay. For the avoidance of doubt, the Merchant may use content provided by YouPay which incorporates YouPay Intellectual Property (including any approved description of the YouPay Shared Payment App provided by YouPay and any Promotional Materials) without YouPay’s consent, provided the Merchant uses such content solely for the purposes permitted in accordance with this Agreement.
5. The Merchant must immediately discontinue the use or display of any YouPay Intellectual Property, or change the manner in which the YouPay Intellectual Property is used or displayed whenever YouPay reasonably requests the Merchant to do so.
6. Without limiting this clause 11.5, if this Agreement is amended to remove the Merchant’s right to offer the YouPay Shared Payment App online, the Merchant must immediately discontinue the use or display of any YouPay Intellectual Property, and must return any associated:
a. Promotional Materials; and
b. other content or material incorporating YouPay Intellectual Property to YouPay, unless otherwise agreed in writing by YouPay.
7. Except as expressly provided in this Agreement, the Merchant may not do any acts and will not have any powers referred to in section 26 of the Trade Marks Act 1995 (Cth).
8. The Merchant permits YouPay to use the Merchant’s name, logo and details in any of YouPay’s marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn, Instagram and any other social media platform that YouPay deems reasonable), and in the directory listing of YouPay’s merchants.
9. The Merchant agrees to obtain on YouPay’s behalf any third-party consents or licences required to enable YouPay to use such Intellectual Property of the Merchant as contemplated by the Agreement, without attribution and without charge to YouPay. If the Merchant notifies YouPay that it would like its name, logo and/or details removed from any marketing material or would prefer YouPay to use a different image, YouPay will do so as soon as reasonably possible.
10. The Merchant agrees that YouPay may share, re-post and otherwise use any images and other content the Merchant includes on its social media account or pages on YouPay’s website, social media accounts and pages, without the Merchant’s consent, and without payment to the Merchant, provided YouPay:
a. credits the Merchant as the source of such image or content, or include any other statement of attribution that the Merchant may reasonably require; and
b. promptly removes or alters such image or content as the Merchant may request in writing.
11. AFFILIATE MARKETING PROGRAM
1. Participation in Affiliate Marketing Programs
a. At any time, and from time to time, after the parties enter into this Agreement:
i. YouPay may request the Merchant to participate in an Affiliate Marketing Program with YouPay; or
ii. YouPay may request the Merchant to approve YouPay as an affiliate in an Affiliate Marketing Program in which the Merchant is participating.
b. The Merchant may, at its discretion, accept or decline a request from YouPay under clause 11.1(a).
c. YouPay or the Merchant may, by providing written notice at any time during the Term, elect to cease participation in an Affiliate Marketing Program or cancel the approval of YouPay in respect of an Affiliate Marketing Program.
2. Affiliate Marketing Program terms
a. YouPay and the Merchant will be bound by, and must act in accordance with, the terms and conditions of the relevant Affiliate Marketing Program.
b. All commission and referral fee incentives are subject to the terms and conditions of the Affiliate Marketing Program and do not form part of the obligations, payments or liabilities of the parties under this Agreement.
12. YOUPAY MARKETING, ADVERTISING AND PROMOTIONAL ACTIVITIES
1. The Merchant consents to YouPay advertising and marketing, in any form and at any time determined by YouPay, that Customers can make YouPay Purchases for a Merchant’s Goods.
2. YouPay may, in its discretion, determine how it publishes, posts, promotes or undertakes any advertising or marketing in accordance with clause 12.1.
3. To assist YouPay with the advertisement and marketing in accordance with clause 12.1, the Merchant grants YouPay a licence and the right to use the following:
a. Merchant’s name;
b. Merchant’s logo;
c. any promotional activities or advertisements of the Merchant’s Goods;
d. any exclusive offers of the Merchant’s Goods;
e. any images created by the Merchant;
f. any social media posts made or posted by the Merchant;
g. any data extrapolated by the Merchant;
h. any public announcements made by the Merchant;
i. any news, headlines, articles or stories about the Merchant or the Merchant’s Goods; and
j. any other material that YouPay requires to advertise or market in accordance with clause 12.1.
13. SHARED PAYMENTS PLATFORM EXCLUSIVITY
1. By the Merchant entering into this Agreement, the Merchant agrees to exclusively use the YouPay Services and not engage or use the services of any other Shared Payments Platform.
2. If at any time the Merchant uses another Shared Payments Platform, YouPay may at its discretion and by written notice to the Merchant, cease to provide the YouPay Services.
14. CONFIDENTIALITY
1. Except as expressly permitted or required by this Agreement, each party must not use any of the other party’s Confidential Information.
2. Except as expressly permitted or required by this Agreement, each party must not disclose to any other person any of the other party’s Confidential Information.
3. Each party may disclose the Confidential Information of the other party:
a. when required to do so by Relevant Law or any regulatory authority or registered stock exchange;
b. to a director, officer, employee, agent or contractor of the first party whose duties reasonably require such disclosure, provided such person has agreed to keep the information confidential;
c. to its professional advisers, investors or financiers (or potential investors or financiers), who have agreed to keep the information confidential; and
d. when reasonably necessary for the purposes of any legal or arbitral proceedings involving the first party or any of its related bodies corporate.
4. Each party must take all reasonable steps to ensure that no Confidential Information of the other party is used, directly or indirectly, in any way that is detrimental or adverse to the other party and that each person to whom any Confidential Information of the other party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments.
5. Each party must take steps no less rigorous than those which it takes in respect of its own information to prevent any unauthorised use, disclosure or loss of, or unauthorised access or damage to, the Confidential Information of the other party under its possession or control.
15. TERMINATION
1. Termination for cause
a. Either party may terminate this Agreement immediately (or on such other date as it may nominate) by giving the other party written notice of termination if:
i. the other party breaches any provision of this Agreement, and:
i. such breach is incapable of remedy; or
ii. the other party has failed to remedy such breach within 14 days of the date of a written notice issued to it by the first party requiring rectification of the breach;
ii. the other party engages in any fraudulent activity or conduct;
iii. YouPay ceases providing the YouPay Services in accordance with this document;
iv. the other party is unable to perform its obligations as a result of a force majeure event, and such event continues for a period of 30 days; or
v. the other party is subject to an Insolvency Event.
b. Additionally, YouPay may terminate this Agreement immediately by giving the Merchant notice of termination if:
i. YouPay reasonably believes that the Merchant has breached any of the warranties pursuant to clause 16.1;
ii. the Merchant is offering for sale any Restricted Goods through the Merchant’s Website; or
iii. the Merchant undergoes a Change of Control Event.
2. Mutual termination
YouPay and the Merchant may agree to terminate this Agreement by documenting the agreement in writing signed by both parties.
3. Termination consequences
a. Termination of this Agreement does not affect any right or obligation which arose under this Agreement before such termination and is without prejudice to the parties’ other rights and remedies.
b. Upon termination of this Agreement for any reason:
i. each party must return to the other any Confidential Information or property of the other in the first party’s possession or control;
ii. all rights and licences granted under this Agreement will terminate immediately, except as expressly provided in this Agreement, and the Merchant must:
i. immediately cease using YouPay’s Intellectual Property, including by removing all references to YouPay from the Merchant’s Website; and
ii. comply with its obligations pursuant to clause 9.3.
c. Without limiting the other provisions of this Agreement, clauses 4, 11, 15.3, 16 and 20, and all other terms which by their nature are required to survive termination of this Agreement, will survive termination of this Agreement.
16. WARRANTIES
1. Merchant’s representations and warranties
a. The Merchant represents and warrants to YouPay that:
i. the Merchant will not do anything to prevent any amounts owing to YouPay in connection with a YouPay Purchase from being paid as part of the YouPay Purchase transaction;
ii. the Merchant controls the content on the Merchant’s Website;
iii. all information provided by the Merchant, or otherwise provided to YouPay in connection with this Agreement, is complete, current and correct; and
iv. the Merchant’s respective officers, directors, employees, agents or persons who entered into this Agreement on behalf of the Merchant were duly authorised to do so, and consequently, bind the Merchant to this Agreement.
b. Additionally, the Merchant makes the following representations and warranties to YouPay in relation to each YouPay Purchase:
i. the Merchant does not know of or have any reason to suspect any fraud or suspicious activity relating to the YouPay Purchase, and neither the Merchant nor its officers, directors or agents have concealed or otherwise failed to disclose to YouPay any information of which the Merchant or its directors, employees or agents have become aware is contrary to any of the statements made in the YouPay Purchase or in any other information or documentation provided by the Merchant to YouPay, or otherwise engaged in any fraudulent conduct in connection with the YouPay Purchase;
ii. the YouPay Purchase represents a bona fide sale of the Goods by the Merchant in the ordinary course of the Merchant’s business;
iii. the information the Merchant provides includes all Goods involved in the YouPay Purchase, and only Goods sold by the Merchant are the subject of the YouPay Purchase;
iv. the Merchant can legally sell the Goods involved in the YouPay Purchase;
v. in accordance with clause 7.1(f), the Merchant will do all things necessary (including but not limited to undertaking all necessary checks and enquiries) to ensure that a Controllers is at least 18 years of age, should the Goods legally require the Controllers to be at least 18 years of age;
vi. the Merchant has delivered or has arranged for delivery of all the Goods involved in the YouPay Purchase;
vii. the Goods, at the time they are delivered to the Controllers, will be fit for any particular purpose which the Controllers made known to the Merchant or the Merchant’s agents or employees;
viii. in relation to Goods that are goods for sale:
i. the Controllers has, or will have, title to the Goods listed clear of all encumbrances, liens and claims;
ii. the Goods, at the time they were delivered to the Controllers, were of merchantable and acceptable quality;
iii. the Goods match any sample or demonstration model shown to the Controllers; and
ix. the Merchant has not sought or obtained, and will not seek or obtain, any special arrangement or condition from, nor discriminated in any way against, the Controllers with respect to the terms of the YouPay Purchase.
2. YouPay warranties and the Merchant’s Non-Excludable Rights
a. Certain legislation, including consumer protection legislation, may imply warranties or conditions into this Agreement, or otherwise impose obligations on YouPay, which cannot be excluded, restricted or modified, except to a limited extent (referred to in this Agreement as Non-Excludable Rights). For example, consumer protection legislation may imply non-excludable warranties that financial services will be provided with due care and skill, and that the YouPay Services and any materials supplied in connection with them will be fit for any specified purpose.
b. This Agreement must be read subject to such laws, and nothing in this Agreement is intended to restrict the effect of any Non-Excludable Rights, except to the extent that the relevant laws allow.
c. Given the nature of the YouPay Services (including the YouPay Services’ reliance on systems and services that YouPay do not own or control), YouPay cannot guarantee continuous, uninterrupted or secure access to the YouPay Services, and YouPay makes no representations or warranties regarding the amount of time needed to complete processing of payment transactions.
d. YouPay does not give any express warranties, including any express warranty as to the suitability of the YouPay Services, except as may be expressly provided in this Agreement.
e. To the extent permitted by law, and subject to clause 16.2(a), YouPay does not give any implied warranties.
17. LIABILITY AND INDEMNITY
1. Limited Liability
a. The limitations on YouPay’s liability contained in this Agreement are made to the extent permitted by law, and subject to clause 16.2. For the avoidance of doubt, nothing in this Agreement is intended to limit YouPay’s liability or impose further liability on the Merchant in a manner which would be considered unfair under the relevant consumer protection laws.
b. Subject to clause 17.1(a), and to the extent that the relevant laws permit YouPay to do so, YouPay limits its liability in connection with the Non-Excludable Rights (including its liability for breach of any implied condition or warranty) to, at YouPay’s option:
i. in the case of goods:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired.
c. To the full extent permitted by law, and subject to clauses 17.1(a) and 17.1(b):
i. YouPay will not be liable for any loss or damage which the Merchant may incur as a result a result of the YouPay Services being unavailable, except where such loss or damage arises as a result of YouPay’s negligence, wilful misconduct or breach of this Agreement;
ii. YouPay’s liability for all claims no matter how they arise, whether in contract, tort (including negligence), or otherwise, will not exceed $5,000; and
iii. YouPay and its related bodies corporate, or any third party providing services on behalf of YouPay, will not be liable to the Merchant for any Consequential Loss.
d. To the extent permitted by law, a party’s liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.
e. The parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.
2. Indemnity
a. The Merchant indemnifies YouPay and its related bodies corporate and their respective officers, directors, employees and agents from and against all claims, actions, losses, offsets, liabilities, damages, judgments, amounts paid in settlement, costs and expenses (including reasonable legal fees and disbursements and collection fees) resulting from or arising in connection with:
i. any transaction, contract, understanding, promise representation, warranty or other relationship, actual, asserted or alleged, between the Merchant and any Controllers relating to the YouPay Purchase of the Goods;
ii. any Goods (including, without limitation, any product liability or warranty claim relating to those Goods, any claim that the supply of the Goods breaches a statutory guarantee, and any claim by the Controllers relating to the quality or sufficiency of the Goods);
iii. any false or misleading representation or fraudulent conduct by the Merchant or the Merchant’s officers, directors, employees or agents in connection with a YouPay Purchase or any related Goods or any related matter;
iv. any Goods deemed to be illegal, in any capacity whatsoever, that are connected to a YouPay Purchase; and
v. any breach of the Merchant of its obligations under 7.1 (f) or the representation under clause 16.1(b)(iv).
b. This indemnity is a continuing obligation, independent of the Merchant’s other obligations under this Agreement and continues after this Agreement ends. It is not necessary for YouPay to incur expense or make payment before enforcing a right of indemnity under this Agreement. However, YouPay will not exercise the right of indemnity under clause 17.2 where it relates to a particular Controllers’s YouPay Purchase until after YouPay has raised the relevant issue with the Merchant for discussion, and the Merchant have had a reasonable time to respond or to remedy the issue with that Controllers to YouPay’s reasonable satisfaction.
18. NOTICES
1. Service of Notice
A Notice must be:
a. in writing, in English and signed by the party giving it, or by their agent; and
b. delivered or sent:
i. by prepaid post;
ii. by email; or
iii. via an electronic signature platform,
to the party’s address specified in this document, or any other address notified by a party to the other party as its address for service.
2. Effective Service
a. A Notice given in accordance with clause 18.1 takes effect when received, or at a later time specified in it.
b. A Notice is taken to be received at the time specified below:
i. if hand delivered – when delivered;
ii. if sent by prepaid post – on the third Business Day after the date of posting (or on the tenth Business Day after the date of posting if posted to, or from, a place outside Australia);
iii. if sent by email – when, under the Electronic Transactions (Queensland) Act 2001 (Qld), an electronic communication is taken to be received;
iv. if sent via an electronic signature platform – when the electronic signature platform records that it was sent.
c. However, if the time at which a Notice is taken to be received is not on a Business Day, or is after 5.00pm on a Business Day, it is taken to be received at 9.00am on the next Business Day.
3. Ineffective Service
A Notice is taken not to be received if:
a. in the case of service by post, the Notice is returned to sender because the postal service was unable to deliver it;
b. in the case of service by email, the party sending the Notice receives an automated email response specifying that the email containing the Notice was undeliverable;
c. in the case of service by fax, the sender’s fax system generates a message stating that transmission was unsuccessful, or the Notice is not received in full and legible form.
4. Additional Provisions Regarding Email and Electronic Signature Platforms
a. A Notice given by email or via an electronic signature platform is taken to be in writing, even if it remains in digital form and is not printed.
b. A Notice may be an attachment to an email, or accessible by a link in the email.
c. A Notice given by email or via an electronic signature platform is taken to be signed by the party if:
i. the party’s name is typewritten into the Notice;
ii. the party’s handwritten signature (which may be a digital image or copy of the signature) appears in the Notice; or
iii. a signature adopted by the party as its signature appears in the Notice.
d. If:
i. the originator of an email requests a read receipt from the addressee; and
ii. the originator receives a read receipt from the addressee specifying the time and date that the email was read or received,
the email is taken to be received no later than the time and date specified in the read receipt.
A read receipt does not by itself amount to an admission by the recipient regarding the content or effect of a Notice.
e. Nothing in this clause 15 affects the provisions of the Electronic Transactions (Queensland) Act 2001 (Qld) regarding attribution of electronic communications.
19. DISPUTES
1. A party must not commence court proceedings in respect of a dispute arising out of or in connection with this agreement ( Dispute) unless it has first complied with the remainder of this clause 19.
2. If any Dispute arises, the party claiming that a Dispute has arisen must notify the other parties (giving details of the Dispute) and the parties must make every effort to resolve the Dispute by mutual negotiation followed by mediation in accordance with this clause 19.
3. During the seven day period after a notice is given under clause 19.2 (or such longer period agreed to in writing by the parties to the Dispute) ( Initial Period), each party must use its best efforts to resolve the Dispute through mutual negotiation between a representative from each party with authority to agree to a resolution of the Dispute.
4. If the parties are unable to reach a resolution of the Dispute by mutual negotiation of their representatives by the end of the Initial Period, each party agrees that the Dispute must be referred for mediation in accordance with the mediation guidelines published by the Resolution Institute, at the request of either party, to:
a. a mediator agreed on by the parties; or
b. if the parties are unable to agree on a mediator within seven days after the end of the Initial Period, a mediator nominated by the President of the Resolution Institute.
5. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.
6. Any information or documents disclosed by a party under this clause 19 must be kept confidential, and may not be used for any purpose except to attempt to resolve the Dispute.
7. Each party must bear its own costs of complying with this clause 19 and the costs of the mediator must be borne equally by YouPay, on the one hand, and the Merchant, on the other hand.
8. If a party has complied with clauses 19.1 to 19.4 (both inclusive) and the Dispute has not been resolved within 21 days from the end of the Initial Period, then any party may terminate the dispute resolution process by giving written notice to the other parties.
20. MISCELLANEOUS
1. Assignment
A party may only dispose of, deal with, declare a trust over or otherwise create an interest in, its rights under this document with the prior consent of each other party.
2. Discretion in Exercising Rights and Giving Consents
A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this document expressly states otherwise.
3. No Warranty by Giving Consent
By giving its approval or consent, a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
4. No Liability for Loss
A party is not liable to another party for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right or remedy under this document.
5. Conflict of Interest
A party’s rights and remedies under this document may be exercised even if it involves a conflict of interest or a party has a personal interest in their exercise.
6. Remedies Cumulative
The rights and remedies provided in this document are in addition to other rights and remedies given by law independently of this document, except to the extent that those other rights and remedies are expressly excluded in this document.
7. Exclusion of Contrary Legislation
Any legislation that diminishes the obligation of a party, or adversely affects the exercise by a party of a right or remedy, under or relating to this document is excluded to the full extent permitted by law.
8. Amendment
a. YouPay may amend this Agreement from time to time by providing either:
i. the details of the amendments; or
ii. a copy of an updated version of this Agreement incorporating the amendments to the Merchant at least 7 days prior to the effective date for the amendments.
b. If the Merchant does not accept the amendments to this Agreement by YouPay, the Merchant may terminate this Agreement by written notice to YouPay.
c. Subject to clause 20.8(b), acceptance of the amended Agreement may be by way of the Merchant:
i. continuing to use the YouPay Services on or after the effective date of the amendments and the amended Agreement;
ii. confirming or communicating to YouPay by electronic means (including but not limited to email communication or acceptance via an electronic acknowledgement) that it accepts the amended Agreement; or
iii. signing and returning the amended Agreement to YouPay prior to the date the amended Agreement becomes effective.
9. Waiver
A right under this document can only be waived by notice signed by the party or parties waiving the right. A party does not waive its rights under this document because it grants an extension or forbearance to any other party. A waiver of a right on one or more occasions does not operate as a waiver of that right if that right arises again. The exercise of a right does not prevent any further exercise of that right or of any other right. If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.
10. No Merger
None of the rights and obligations of a party under this document merge:
a. on completion of any transaction contemplated by this document;
b. with any security interest, guarantee, judgement or other right or remedy that a party may hold at any time; or
c. as a consequence of anything done under this document,
and those rights and obligations at all times remain in full force and effect.
11. Survival of Rights and Obligations
The following survive termination or expiration of this document:
a. Rights accrued to a party up to the date of termination or expiration of this document.
b. Indemnities and obligations of confidence given by a party under this document.
12. No Payment Required to Claim Indemnity
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this document.
13. Giving Effect to this Document
Each party agrees, at its own expense, to do anything (including ensuring that its employees and agents do anything) that any other party reasonably requires (such as obtaining consents, signing and producing documents) as may be necessary or desirable to give full effect to the provisions of this document and the transactions contemplated by it.
14. Entire Agreement
This document embodies the entire agreement between the parties and supersedes all previous agreements, understandings, negotiations, warranties and representations on the subject matter of this document.
15. Inconsistencies
If this document is inconsistent with any other agreement between the parties, this document prevails to the extent of the inconsistency.
16. Construction
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document.
17. Severability
If the whole, or any part, of a provision of this document is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of this document has full force and effect, and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance materially alters the nature or intended effect of this document.
18. Costs and Expenses
Each party will bear its own costs and expenses in relation to the negotiation, preparation, execution, delivery, registration and completion of this document and any related documentation.
19. Execution under Power of Attorney or Agency
Each person who executes this document as:
a. attorney for a party, or
b. agent of a party,
warrants that he or she has authority to do so, and will produce written evidence of that authority to any party who requests it.
20. Governing Law
This document is governed by the law in force in Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Queensland, and any court that may hear appeals from any of those
courts for any proceeding in connection with this document, and waives any right it may have to claim that those courts are an inconvenient forum.
21. Counterparts
This document may be executed in any number of counterparts. A party may execute this document by signing any counterpart. All counterparts together are taken to constitute one instrument.
Schedule 1
Definitions and Interpretation
1. DEFINITIONS
The following definitions apply in this document:
Affiliate Marketing Program means an affiliate marketing program whereby a party markets another party’s products and is paid a commission in respect of any sale of products achieved as a result of the first party’s marketing of the other party’s products.
Agreement means this document.
Business Day means a day on which banks are open for retail banking, other than a Saturday, Sunday or public holiday, in Brisbane, Australia.
Change of Control Event occurs in respect of the Merchant:
1. where the Merchant is a company any person (whether alone or with others), other the shareholders as at the date of this document, without the prior consent of YouPay becomes entitled to:
1. the power, whether directly or indirectly, and by whatever means to:
a. exercise, or Control the exercise of, more than or equal to fifty percent (50%) of the voting power in the Merchant;
b. dispose of, or Control the disposal of, more than or equal to fifty percent (50%) (by value) of the shares in the Merchant;
c. appoint, or Control the appointment of directors having more than or equal to fifty percent (50%) of the votes (either directly or indirectly) at board meetings;
d. Control (either directly or indirectly) of the Merchant in accordance with the provisions of the Corporations Act;
e. determine, or Control the determination of the Merchant’s affairs, business activities, or decisions in relation to the interests in the Merchant; or
2. at least 50% of the economic benefit associated with the shares of the company.
2. where the Merchant is a trust, any person (whether alone or with others), other than the holders of any trust interest or any shareholders as at the date of this document, without the prior consent of the other shareholders/members becomes entitled to:
1. exercise, or Control the exercise of the voting power of the Merchant in its capacity as trustee of the trust or can otherwise influence, direct or control the voting power (whether as a shareholder and/or at a board level) or any other matter in respect of the trust;
2. dispose of, or Control the disposal of or otherwise influence dealings with or in respect of the shares in the Merchant;
3. Control (either directly or indirectly) or influence the appointment of directors or trustees;
4. determine, or Control the determination of the affairs, business activities, or decisions in relation to the Merchant
Confidential Information means the terms of this Agreement and any information (of whatever form and nature) disclosed by a party to the other party, but Confidential Information does not include information which:
a. at the time of the first disclosure to a party, was already in the lawful possession of the party.
b. is in or comes into the public domain otherwise than by disclosure in breach of this Agreement; or
c. becomes available to a party legitimately from any other third party source that is legally entitled to that information.
Consequential Loss means any loss, damage or costs incurred that are indirect or consequential, whether they arise directly or indirectly from the relevant act or omission; loss of revenue; loss of income; loss of
business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings; payment of liquidated sums or damages under any other agreement; and/or loss or denial of opportunity.
Control means in respect of the Merchant:
1. where the Merchant is a company, means control as that term is understood in section 50AA of the Corporations Act;
2. where the Merchant is a body corporate, means control of the body corporate, as that term is understood in section 47 of the Corporations Act.
Corporations Act means the Corporations Act 2001
(Cth).
Cost of Goods means the total cost required (including delivery costs), excluding GST, for the Controllers to purchase the Goods from the Merchant.
Controllers means a person or persons who purchases or receives Goods from the Merchant.
Fee means the fee payable to YouPay as described on our website or as agreed separately in writing.
Goods means the items and/or services supplied and/or provided by the Merchant to a Controllers under a YouPay Purchase.
Insolvency Event means in respect of a person, the occurrence of any of the following in respect of that person (as applicable):
1. an order is made or an effective resolution is passed for the winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration of that person;
2. a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of the undertaking or property of that person;
3. a holder of an encumbrance takes possession of or exercises any other rights arising from the
encumbrance over the whole or any substantial part of the undertaking and property of that person, or indicates an intention to do so;
4. that body corporate becomes insolvent or any circumstance exists or arises which would require a court to presume that that person is insolvent;
5. that person enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them;
6. that person receives a deregistration notice under section 601AB of the Corporations Act or any communication from ASIC that might lead to such notice;
7. that person stops, suspends or threatens to stop or suspend paying its debts as and when they fall due;
8. that persons becomes an “insolvent under administration” within the meaning given in section 9 of the Corporations Act, or any steps are taken or any order is made to cause that person to become an insolvent under administration, as defined; or
9. any analogous event under the laws of any applicable jurisdiction.
Intellectual Property includes both in Australia and throughout the world and for the duration of the rights:
1. any patent, utility models, copyrights, registered or unregistered trade marks or service marks, trade name, brand names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations;
2. any invention, discovery, trade secret, know- how, computer software and confidential, scientific, technical and product information;
3. any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products; and
4. any letters patent, deed of grant, certificate or document of title for anything referred to in paragraphs (a), (b) or (c) of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied
Merchant’s Website means any electronic retail sales facilities (including any website and mobile or tablet sites or applications) operated by the Merchant.
Notice means a notice, demand, certificate, consent, approval, waiver or communication given under this document.
Permitted Payment Providers means the permitted payment providers at the date of this document specified in Schedule 2 and as updated from time to time by YouPay by notice to the Merchant.
Promotional Materials means electronic banners and logos, lightboxes, point of sale materials, and any other marketing, advertising and promotional materials relating to YouPay and provided by YouPay to the Merchant from time to time.
Related Bodies Corporate has the meaning given to the term by section 9 of the Corporations Act.
Relevant Law means any law, regulation, code, ordinance, rule or other legislative instrument, or any guideline issued by any regulator or statutory authority or any relevant industry codes including, without limitation, the Competition and Consumer Act 2010 (Cth), the Anti-Money Laundering and Counter- Terrorism Financing Act 2006 (Cth) and the Privacy Act 1988 (Cth).
Restricted Goods means:
1. goods that infringe third party Intellectual Property, including (without limitation) counterfeit goods and pirated content;
2. for making explosives or products, tobacco products;
3. gambling-related content;
4. harmful dietary foods, prescription medicines or supplements
5. dangerous goods, being goods that cause damage, harm or injury, including (without limitation), recreational drugs (chemical or herbal), psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions
6. products that enable dishonest behaviour;
7. hacking software or instructions, fake documents and academic cheating products;
8. without limiting the above, any goods which are required by law to be sold to Customers over 18 years of age; and
9. any other goods which YouPay considers, in its reasonable discretion, to be dangerous, inappropriate or high risk.
Shared Payments Platform means any software or product that facilitates a Controllers’ Shopping Cart and/or order to be purchased by a third party or multiple third parties.
Shopping Cart means a central area where Customers accumulate a list of Goods for purchase.
Term means:
1. the period commencing on the date this Agreement and ending 12 months after the date of this Agreement; and
2. if applicable, means any renewal of the Term in accordance with clause 5.2.
Trade Marks means signs, trade marks, service marks, brand names, rights in get up or trade dress, logos, slogans, stylizations, devices and similar rights, whether registered or unregistered and whether within or outside Australia.
YouPay Intellectual Property means all Intellectual Property owned or licensed by YouPay, including the Promotional Materials and YouPay Trade Marks, but excluding the Merchant’s Intellectual Property.
YouPay Purchase means a purchase by a Controllers of Goods via the Merchant’s Website by using the YouPay Services as the payment method.
YouPay Services means the services provided by YouPay as specified in clause 3.
YouPay Shared Payment App means the software used by the Controllers to facilitate the process of sharing the Shopping Cart for the purchase of Goods and funding the purchase of those Goods.
YouPay Trade Mark means all Trade Marks owned or licensed by YouPay, excluding the Merchants Trade Marks.
2. INTERPRETATION
This clause 2 specifies the rules for interpreting this document, except where the context makes it clear that a rule is not intended to apply.
1. The Background (if any) and headings are for convenience only and do not affect the interpretation of this document.
2. A reference to:
1. legislation (including subordinate legislation) is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it;
2. a document (including this document), or a provision of a document (including a provision of this document), is to that document or provision as amended or replaced;
3. a party to this document, or a party to any other document or agreement, includes that party’s executors, administrators, permitted substitutes and permitted assigns;
4. a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
5. anything (including a right, obligation or concept) includes each part of it;
6. property includes real, personal and intangible property;
7. any body or agency, if that body or agency ceases to exist, is renamed, reconstituted, replaced or has its powers or functions removed ( Defunct Body), means the agency or body which succeeds to the Defunct Body’s powers or functions, or performs most closely the functions of the Defunct Body;
8. AUD$, A$, $A, dollar or $ is to Australian currency unless stated otherwise; or
9. a clause, schedule or annexure is to a clause of, or schedule or annexure to, this document.
3. A singular word includes the plural, and vice versa.
4. A word which suggests one gender includes any other genders.
5. If a word is defined, another part of speech or grammatical form of that word has a corresponding meaning.
6. An obligation on, warranty by, or right of:
1. two or more persons; or
2. a party that comprises two or more persons,
is the obligation, warranty or right (as the case may be) of those persons jointly and severally.
7. Time is reckoned as follows:
1. A reference to the date or time of day, is a reference to that date or that time of day in Queensland, Australia.
2. If a period expressed in days, beginning on a given day, act or event is provided or allowed for any purpose, the period is calculated by:
a. excluding the day, or the day of the act or event; and
b. including the day on which the purpose is to be fulfilled.
3. If a period expressed in weeks, months or years, beginning on a given day, act or event is provided or allowed for any purpose, the period is calculated from:
a. the day, or the day of the act or event; until
b. the corresponding day in the next appropriate week, calendar month or year.
4. If there is no corresponding day for the purposes of clause 2 because of the differing number of days in calendar months, the corresponding day is taken to be the last day of the relevant calendar month.
5. If something is to be done on a particular day, it must be done by 5.00pm on that day.
6. If something is to be done on a day which is not a Business Day then that thing must be done on the next Business Day.