Merchant Agreement

Last updated: December 2020

PARTIES

YouPay Pty Ltd (ACN 644 120 990) as further described in item 1 of the Schedule (YouPay)

and The Merchant (Merchant)


BACKGROUND

A. YouPay owns or has the exclusive rights to the Software and has the authority to license the Software to the Merchant.

B. The Merchant is requesting YouPay to grant the Merchant a license to use the Software on the terms and conditions set out below.


AGREEMENT

In this Agreement unless the contrary intention appears, the following words and expressions have the following meanings:

“Agreement” means this agreement;

“Business Day” means any day which is not a Saturday, Sunday or public holiday in Brisbane, Queensland;

“Confidential Information” means:

  1. the terms of this Agreement, including Information submitted or disclosed by either Party during negotiations, discussions and meetings relating to this Agreement;
  2. Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
  3. all other Information belonging or relating to a Disclosing Party that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party, and in the case of YouPay includes the Software;

“Disclosing Party” has the meaning given to the term in clause 6;

“Information” means any information, whether oral, graphic, electronic, written or in any other form, including:

  1. forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
  2. copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
  3. samples or specimens disclosed by either party;

“Insolvency Event” means, in relation to a Party, any one or more of the following events or circumstances:

  1. being in liquidation or provisional liquidation or under administration;
  2. having a controller or analogous person appointed to it or to any of its property;
  3. being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
  4. being unable to pay its debts or being otherwise insolvent;
  5. becoming an insolvent under administration, as defined in section 9 of the Corporations Act 2001 (Cth);
  6. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
  7. any analogous event or circumstance under the laws of any jurisdiction,

unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation and in the case of the Merchant is approved by YouPay;

“Licence Fee” means the fee set out in item 5 of the Schedule;

“Party” means a party to this Agreement and “Parties” has a corresponding meaning;

“Purpose” has the meaning set out in item 3 of the Schedule;

“Receiving Party” has the meaning given to the term in clause 6;

“Schedule” means the schedule located in the Merchant’s dashboard;

“Software” means the software supplied by YouPay and set out in item 2 of the Schedule; and

“Term” means the period set out in item 4 of the Schedule.


2. Interpretation

In this Agreement unless the contrary intention appears:

  1. words and expressions defined in the Background or elsewhere in this Agreement have the meaning ascribed to them and form part of this Agreement;
  2. clause headings and the table of contents are inserted for convenience only and are not to be used in the interpretation or construction of this Agreement;
  3. words importing the singular include the plural and vice versa; and
  4. a reference to an annexure, clause, paragraph, recital or schedule is a reference to an annexure to, clause or paragraph of, or recital or schedule to this Agreement.


3. Licence and Term

  1. YouPay hereby grants the Merchant a non-exclusive licence to use the Software on the terms and conditions set out in this Agreement.
  2. The Merchant must only use the Software for the Purpose.
  3. The Merchant may not grant any sub-licenses of the Software, including to related or associated entities without the prior written consent of YouPay.
  4. The Term of this Agreement commences on acceptance by the Merchant of this Agreement and continues until the end of the Term unless this Agreement is otherwise terminated under clause 10 of the Agreement.
  5. At the end of the initial Term the Parties may agree in writing to extend the Term.


4. Licence Fees

  1. In consideration for the licence granted in this Agreement the Merchant shall pay YouPay the Licence Fee.
  2. The Licence Fee will be paid by the Merchant to YouPay using method the identified in the Schedule.


5. Maintenance, Support and Bug Fixes

YouPay shall be responsible for all “bug-fixes” in relation to the Software and the Merchant shall immediately report and refer any requests for bug-fixes to YouPay upon identifying any issues with the Software.


6. Confidential Information

  1. Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party ( Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 6(b), the Receiving Party must:
    1. keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
    2. take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
    3. not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.
  2. The obligations of confidentiality under clause 6(a) do not apply to any information that:
    1. is generally available to the public (other than by reason of a breach of this Agreement); or
    2. is required to be disclosed by any applicable law.
  3. Nothing in this Agreement will prevent a Party from using in any way it sees fit and disclosing to its other customers, clients and suppliers any generic knowledge, skills and expertise retained in the memories of its employees, and any programming tools, problem-solving methodologies and associated checklists, templates or forms developed as a result of performing its obligations under this Agreement which may have general application in the fields of information technology and business management. It is however understood that the foregoing shall in no circumstances extend to use or disclosure of Confidential Information of the other Party.


7. Intellectual Property

  1. The Merchant acknowledges and agrees that nothing in this Agreement shall constitute an assignment or transfer to the Merchant of any intellectual property rights in the Software or any enhancements or customisations of the Software. For the avoidance of doubt the Merchant acknowledges and agrees that YouPay is and shall remain the owner of all intellectual property rights in relation to the Software including but not limited to, copyright, design right (registered or unregistered), trade or service marks (registered or unregistered) (save those which are licensed from third parties) and patents in the design, development, production and operation of the Software, in the Software, the documentation, and any improvements in the Software (irrespective of whether such improvements are created by the Merchant) future releases and the proceeds of the Software provided by YouPay pursuant to this Agreement.
  2. YouPay acknowledges and agrees that the Merchant shall remain the owner of its pre-existing intellectual property including but not limited to, copyright and trademarks (registered or unregistered) which it may upload or use through its use of the Software.


8. Indemnity by the Merchant

The Merchant acknowledges and agrees that YouPay shall not be liable to any third party, including the Merchant’s customers, in respect of the services rendered by the Merchant or the use of the Software and the Merchant agrees and undertakes to indemnify and hold harmless YouPay against any losses, costs, damages and reasonable expenses incurred by YouPay as a result of claims by third parties against YouPay arising out of or involving the services rendered by the Merchant using the Software or otherwise.


9. Warranties and Indemnity by YouPay

  1. YouPay warrants to the Merchant that it either owns or holds a license to all intellectual property in the Software and that the Software does not infringe the intellectual property rights of any third party.
  2. To the full extent permitted by law, YouPay excludes all warranties, whether express or implied, including any warranties or representations concerning availability of the Software, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the Software, the conduct of any users, all links to or from the Software and the goods and services advertised or accessible on the Software.
  3. Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law) YouPay excludes all liability for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with this Agreement of the Software.
  4. Subject to any State or Federal laws, YouPay provides no warranties as to the compatibility of the Software to operate on the Merchant’s computer and IT systems nor does YouPay provide any warranty as to the fitness for purpose of the Software.


10. Liability of YouPay

  1. To the maximum extent permitted by applicable law, YouPay is not liable to the Merchant or any of its customers or affiliates for any indirect, special or consequential loss or damage, any loss of profit, revenue or business opportunities, loss of or damage to data, IT systems, losses, expenses or loss of goodwill arising from use of the Software or otherwise in connection with this Agreement.
  2. To the maximum extent permitted by applicable law YouPay’s aggregate liability for any loss or damage in connection with use of the Software or in connection with the Agreement to the Merchant or any of its customers or affiliates arising from use of the Software or under this Agreement, which is not excluded or limited under this clause 10, is limited to the Licence Fees paid by the Merchant for the preceding 12 months to any such claim.


11. Variations to Agreement

YouPay reserve the right to modify or terminate this Agreement for any reason, without notice at any time.


12. Termination

A non-defaulting party may terminate this Agreement if:

  1. the other Party commits a material breach of its obligations under the Agreement which cannot be remedied
  2. the other Party commits a material breach of its obligations under the Agreement but fails to remedy that breach within 14 days of being required to do so in writing by the non-defaulting party or
  3. the other Party is subject of an Insolvency Event.

13. Rights on Termination

  1. Termination of this Agreement shall be without prejudice to the rights of either Party against the other in respect of anything done or omitted to be done under this Agreement prior to such termination or in respect of any sums or claims outstanding at the time of such termination and neither Party shall be entitled to make any claim for compensation upon the other Party by reason of termination other than where such claim is based on the fault of the other Party.
  2. Immediately upon termination of this Agreement by either Party, the Merchant shall:
    1. pay any outstanding Licence Fees to YouPay and any Licence Fees not invoiced before termination;
    2. Remove the Software from the Merchant’s website and server and any and all Information or material relating to the Software and/or YouPay’s business provided to the Merchant by YouPay during the currency of this Agreement; and
    3. discontinue use of the Software and any identification which associates the Merchant with YouPay and/or the Software.

14. GST

  1. In this clause 13:
    1. the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
    2. Supplier means any Party treated by the GST Act as making a Supply under this Agreement.
  2. Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.
  3. If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
  4. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.


15. Force Majeure

Either Party shall be excused from performing any or all of its obligations under this Agreement if that Party becomes wholly or partially unable to carry out such obligations for reasons beyond its control but only for so long as those reasons prevent performance. If an event of force majeure continues for more than four (4) weeks either Party may terminate this Agreement by notice in writing to the other Party.


16. Notices

  1. Service of notices

    A notice, demand, consent, approval, invoice or communication under this agreement (Notice) must be:

    1. in writing, in English and signed by a person duly authorised by the sender; and
    2. hand delivered or sent by prepaid post or email to the recipient’s address for notices specified in the Schedule, as varied by any Notice given by the recipient to the sender.

  2. Effective on receipt

    A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

    1. (a) if hand delivered, on delivery;
    2. (b) if sent by prepaid post, four (4) Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from a place outside Australia); and
    3. (c) if sent by email, when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee,

    but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.


17. Assignment

The Merchant may not assign this Agreement or their rights or obligations under it, without the prior consent in writing of YouPay. YouPay may assign this Agreement by providing written notice to the Merchant.


18. Governing Law

This Agreement is governed by the laws of the State of Queensland, Australia. The parties irrevocably submit themselves to the jurisdiction of the courts of that State.


19. Waiver

A waiver by either Party of any of the terms and conditions of this Agreement in any one instance shall not be deemed to be a waiver of such term or condition for the future, nor or any subsequent breach thereof. All rights, remedies, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.


20. Entire Agreement

This Agreement contains the entire understanding of the parties relating to the subject matter herein contained, and this Agreement cannot be changed or terminated orally. This Agreement supersedes any previous agreements and negotiations between the parties in relation to the Software.


21. Severability

In the event that one or more provisions of this Agreement are rendered invalid because it contravenes any statute, regulation, by-law or order or otherwise contravenes or offends any provision of law or equity, that provision shall to the necessary extent be read down or excised from this Agreement.


22. No Partnership

Nothing in this Agreement shall constitute a partnership or joint venture between any of the Parties.


23. Legal Advice

Each Party has had the opportunity to obtain, and have obtained, independent legal advice before entering into this Agreement.


24. Counterparts

This Agreement may be executed in any number of counterparts (including by electronic means) and all of those counterparts taken together constitute one and the same instrument.

SCHEDULE

Item 1:

Name:YouPay Pty Ltd (ACN 644 120 990)

Address: 15b 10 Old Chatswood Road, Springwood
QLD 4127

Email: [email protected]


Item 2:

Software: YouPay API, YouPay server, YouPay plug-in, YouPay app.


Item 3:

Purpose: For the Merchant to use the Software for the purpose of allowing users of the Merchant’s website to have a third party pay for the goods or services sold by the Merchant. The Merchant may not use the Software for any illegal or unauthorised purpose nor may the Merchant, in the use of the Software, violate any laws in their jurisdiction (including but not limited to copyright laws) or the laws applicable to you in your customer’s jurisdiction.

The Merchant will not use the Software to facilitate payments that are disallowed by their chosen payment gateway, including but not limited to the sale of gambling products, firearms, weapons or any other products or services YouPay considers, at their discretion, to be inappropriate for purpose. YouPay reserves the right to cancel the Merchant’s access to YouPay in the event they believe the Software is not being used for purpose.

Item 4:

Term:This Agreement will commence from the time of acceptance until the time of termination in accordance with clause 12.

Item 5:
License fee: Merchant to pay regular payment gateway transaction fees with YouPay receiving part of those fees as part of a separate revenue share arrangement between YouPay and the payment gateway. YouPay to receive referral commission from affiliate links provided by affiliate marketing companies for customers referred to Merchant as per separate affiliate revenue share agreements between Merchant and their selected affiliate marketing company(s).

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