Payapps Pty Ltd ACN 115 789 065 with its registered office situated at Level 4, 257 Collins St, Melbourne VIC 3000 Australia (hereinafter “Payapps” “we” “our” and “us”) and the person or entity whose full legal name and physical address is specifically identified in the registration for a User Account on the Web Site (hereinafter “the User Organisation”).
Payapps owns and operates the Web Site and is the provider of the Services.
The User Organisation has requested to use the Web Site and the Services.
The Parties have agreed for Payapps to:
(a) grant a licence to the User Organisation (and its Authorised Users) to use the Web Site; and
(b) provide the User Organisation with the Services
in accordance with the terms and conditions of this Agreement.
Should you object to this Agreement or any of its terms, your sole option is to immediately cease your use of the Website and Services.
1. DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS IN THIS AGREEMENT, THE FOLLOWING DEFINITIONS SHALL APPLY, UNLESS THERE IS A CONTRARY INTENTION:
(a)”Agreement” means this agreement;
(aa) Authorised User means any individual who has been authorised by the User Organisation to access and use the Web Site and Services on behalf of the User Organisation and is granted such access by Payapps.
(b)”Confidential Information” of a Party means all personal, organisational, technical, business and financial information, know-how, trade secret(s) and all other commercially valuable information of that Party, in whatever form and of whatever description, which that Party claims is confidential to itself and over which it has full control and includes all other such information that maybe in the possession of that Party, but does not include information which:
(i)is already in the public domain; or
(ii)hereafter becomes part of the public domain, through no fault of the Receiving Party; or
(iii)is received by the receiving Party on a non-confidential basis from a third party lawfully entitled to disclose the same; or
(iv)is rightfully known by the receiving Party (as evidenced by its written record) prior to the date of first disclosure to it hereunder; or
(v)is independently developed by an officer or employee of the receiving Party who has no knowledge of such information;
(c)”Commencement Date” means either:
(i)the date upon which the User Organisation pays the Service Fee; or
(ii)the date upon which a User uses or clicks the “I ACCEPT” interactive function button, which is displayed on the Web Site; or
(iii)the date upon which a User first uses the Web Site for the Purpose:
whichever is the first to occur;(d)”End Date” means either:
(i) the date upon which the User Organisation ceases to pay the Service Fee; or
(ii) the date upon which a User notifies Payapps in writing that they wish to cease using the Services. An email to “support@payapps.com” will serve as notification:
whichever is the first to occur;(e)”Force Majeure Circumstance” means in respect of a Party, any circumstance or event which, despite using all reasonable endeavours, the Party is unable to control, including without limitation, any act of God, flood, fire, damage caused by lightening, storm or tempest, floods, industrial strikes or lock outs or other industrial disturbances, acts of war, civil disturbance or terrorism or any policy enactments of any government;
(f)”GST” means any tax imposed on the supply of goods or services (including without limitation the supply of Intellectual Property Rights) under the laws of the Commonwealth of Australia or of any Commonwealth of Australia State and Territory law, including without limitation under the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) or under the laws of any other applicable jurisdiction;
(g)”Intellectual Property Rights” means all statutory, proprietary and other rights throughout the World in respect of patents (including without limitation, patents for inventions, innovations, improvements, additions or utility),registered and unregistered trade marks (including service marks), registered designs, circuit layouts, eligible layouts, copyrights (both existing and future copyrights), confidential information (including trade secrets and know-how) and all other rights with respect to intellectual property as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
(h)”Moral Rights” means those rights that are accorded to authors as defined under Part IX of the Copyright Act 1968 (Cth), including without limitation:
(i)the right of attribution of authorship;
(ii)the right not to have a work falsely attributed; and
(iii)the right of integrity of authorship:
-and any other equivalent right in any jurisdiction throughout the World;
(i)”Party” means either party to this Agreement and “Parties” shall mean both of them;
(j)”Privacy Statement” means Payapps’ privacy policy which is published in the Web Site and any amended privacy policy which is displayed on the Web Site after the Commencement Date;
(k)”Purpose” means for the purpose of Payapps providing the Services to the User Organisation;
(l)”Services” means the web-site contract payment management services to be provided by Payapps and which are specifically defined in the Schedule;
(m)”Service Fee” means service fee and which is specified in the Subscription Plan;
(n)”Subscription Plan” means the financial plan and time periods of which the User Organisation has agreed to pay Payapps for the Services under this Agreement and which is separately displayed on the Web Site;
(o)”Trade Mark” means the Australian registered and/or Australian unregistered trade mark of the User;
(p)”User Content” means all information (including without limitation, all numerical, literary and financial data and material), the User Code and all literary works (including all written reports, texts and graphics) and all other subject matter which is originally created by the User Organisation for the Purpose and first uploaded by an Authorised User onto the Web Site;
(q)”User Code” means numerical and/or literary code and password issued to each Authorised User by Payapps for the purpose of that Authorised User accessing the Web Site under this Agreement and where the context requires, includes that Authorised User’s personal name, IP address, mobile telephone, land line telephone number, street address and e-mail address;
(r)”Web Site” means the collection of web page(s) having a specific hypertext transfer protocol (“HTTP”) address and accessible through the internet and which is situated at www.Payapps,.com including without limitation: all “look and feel” and functionality (including all graphic user interfaces, tool bars and interactive click buttons); all software (including all object code, source code and meta-tags); all literary works (including financial forms, financial spread-sheets and tables, scripts, all numerical text, financial and business data, advertisements, including third party advertisements); all artistic works(including photographs and drawings), music works, sound recordings (including audio streaming), cinematographic films (including video and digital images);all registered and unregistered trade marks; this Agreement; the Subscription Plan; the Privacy Statement; and the copyright notices; and any other legal notices; but in all cases excluding both the Web Site Content and the User Content;
(s)”Web Site Content” means all information (including without limitation, all numerical, literary and financial data and material) and all literary works(including all written reports, texts and graphics) and all other subject matter which is either:
(i)created and uploaded onto the Web Site by Payapps as a result of using the User Content for the Purpose; or
(ii)created and uploaded onto the Web Site by any third party users as a result of using the User Content for the Purpose;
(t)”World” means all countries of the world
1.2 INTERPRETATION
In this Agreement, except where the context indicates to the contrary:(a)Words importing the singular shall include the plural (and vice versa); and
(b)Words denoting a given gender shall include all other genders; and
(c)The word “person” includes a reference to an individual, a body corporate, a joint venture, partnership, agency, trust or other body; and
(d)Headings are for convenience only and shall not affect the interpretation of this Agreement; and
(e)All monetary amounts shall be deemed to be in Australian currency; and
(f)A reference to any statute and/or regulation or any provision of a statute and/or regulation, includes a reference to that statute and/or regulation, as amended, re-enacted, modified, replaced or substituted; and
(g)A reference to a “day” in this Agreement is a reference to any calendar day and not necessarily a business day; and
(h)A reference to a “document” in this Agreement, includes a reference to a document in hard copy, electronic or digital form.
1.3 RECITALS AND SCHEDULE
The Schedule and the Recitals form part of this Agreement.
2. COMMENCEMENT AND TERM
This Agreement and the Services will both commence on the Commencement Date and will continue until the End Date, subject to earlier termination under clause20.
3. WEB SITE SERVICES
Payapps hereby agrees to provide the User Organisation with the Services in accordance with Subscription Plan and otherwise in accordance with the terms and conditions of this Agreement.
4. THE USER’S ROLE, RISKS AND RESPONSIBILITIES
4.1 The User Organisation confirms and agrees that it has registered and each of its Authorised Users has received her or his User Account from Payapps to use the Services.
4.2 The User Organisation agrees to cause its Authorised Users to upload the User Content to the Web Site to the maximum extent necessary in order for Payapps to properly provide the Services under the Agreement.
4.3 The User agrees to cause each of its Authorised Users to upload the User Content on the Web Site only using the specific User Account allocated to that particular Authorised User.
4.4 The User Organisation agrees that:
(a) use of the User Account under this Agreement is entirely at the User Organisation’s risk; and
(b) the User Organisation must immediately notify Payapps (whether by email or telephone) of any third party unauthorised use or access to a User Account.
4.5 Without limiting clause 4.4, the User Organisation shall be liable for all actions taken through the Web Site by any person using one or more components of a User Account and the User Organisation and the User Organisation and each Authorised User shall be bound by any additional terms and conditions specified in the Web Site at the time such actions are taken as if such provisions were set forth in this Agreement in full, which provisions are also incorporated into this Agreement by this reference.
4.6 Without limiting clause 4.5, the User Organisation is responsible and fully liable for its Authorised Users’ use of the Services and for compliance with this Agreement by its Authorised Users. In particular, the User Organisation is responsible, and liable, for any access to and/or use of the Website, the Services, User Content and other materials stored on and/or uploaded to the Website, that is effected through a User Account issued to any Authorised User, irrespective of whether that access and/or use is effected by the particular individual to whom the User Account was given.
5. GRANT OF LICENSE TO USE THE SERVICES
5.1 Subject to the User Organisation complying with all of its obligations under this Agreement, including the payment of the Service Fee, Payapps hereby grants to the User Organisation and the User Organisation hereby accepts from Payapps, a non-exclusive, non-transferable and revocable licence throughout the World for the User Organisation’s Authorised Users to access and use the Services for the Purpose, including uploading User Content via the Web Site and accessing the Web site content.
5.2 The User Organisation agrees that Payapps’ grant of licence under clause 5.1 is subject to the following conditions:
(a) that each Authorised User only uses his or her registered User Account; and
(b) that an Authorised User has no rights to use the Services for any other purpose other than for the Purpose.
5.3 The User Organisation has the right to sub-license any of its rights granted under clause 5.1 to any of its Authorised Users for the purpose of this Agreement, provided that those Authorised Users agree to be personally bound by the User Organisation’s obligations under this Agreement to the extent that such obligations relate to the Authorised User’s use of the Services.5.4 The Parties further acknowledge and agree that:
(a)The User Organisation has no rights to grant any sub-licence to any third parties other than in accordance with clause 5.3; and
(b)That any Authorised User contemplated under clause 5.3 will have no rights to grant any further sub-licences of its rights to any third parties in any way whatsoever.
6. OWNERSHIP OF THE WEB SITE AND SERVICES
The Parties confirm and agree that ownership of all title, rights and interest in and to the Services and the Web Site (including all Intellectual Property Rights throughout the World subsisting therein) remain vested solely in Payapps.
7. OWNERSHIP OF THE WEB SITE CONTENT
7.1 The Parties agree that ownership of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein) will remain vested solely in Payapps, at the time of creation.
7.2 The User Organisation agrees to execute any further documents (including executing any written assignments in favour of Payapps or its nominee) and do all such further acts and things as may be necessary, to ensure the transfer of ownership to Payapps of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein), contemplated by clause 7.1, at the cost of Payapps.
8. OWNERSHIP AND GRANT OF LICENCE TO USER CONTENT
8.1 The Parties agree that ownership of all title, rights and interest in and to the User Content (including all Intellectual Property Rights throughout the World subsisting therein) will remain vested solely in the User Organisation, at the time of creation.
8.2 The User Organisation hereby grants to Payapps and Payapps hereby accepts from the User Organisation, a royalty-free, non-exclusive, non-transferable, perpetual and irrevocable licence throughout the World, to use, reproduce, adapt and communicate the User Content on the Web Site for the purpose of providing the Services.
9. USER FEEDBACK
The User Organisation hereby unconditionally, irrevocably, genuinely and comprehensively consents in favour of Payapps (and all of its successors, assigns and licensees) for Payapps to use, reproduce, adapt and communicate the User Content (including any User feedback, suggestion, enhancement request, recommendation or correction) on the Web Site without reference to the User.
10. WARRANTIES
10.1 The User Organisation hereby makes the following warranties to Payapps:
(a)That each of the User Organisation’s Authorised Users will use her or his best endeavours to upload the User Organisation’s User Content to the Web Site to the maximum extent necessary in order for Payapps to properly provide the Services;
(b)That all of the User Content uploaded to the Web Site by any person using a User Account under this Agreement is accurate, suitable, complete and current to enable Payapps to provide the Services;
(c)That all of the User Content uploaded to the Web Site by any person using a User Account under this Agreement is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site;(d)That all of the User Content uploaded to the Web Site by any person using a User Account under this Agreement will not infringe any third party’s Intellectual Property Rights in any part of the World; and
(e)Without limiting the generality under clause 10.1(d), that all of the User Content uploaded to the Web Site by any person using a User Account under this Agreement will comply with all applicable laws.
11. SUBSCRIPTION PLAN AND SERVICE FEE
11.1 The User Organisation must pay Payapps the Service Fee in the time and manner specified in the Subscription Plan.
11.2 If no separate payment terms are specified in the Subscription Plan the Service Fee must be paid as follows:
(a) if the User Organisation is a head contractor or general contractor, the Service Fee must be paid annually in advance on the Commencement Date and on each anniversary thereafter; and
(b) if the User Organisation is a subcontractor, the Subscription Fee must be paid (i) monthly in advance if the User Organisation has elected to pay for its Subscription Plan on a monthly basis; or (ii) each time a claim is raised by the subcontractor via the Web Site if the User Organisation has elected to pay for its Subscription Plan on a “pay per claim” basis.
11.3 Payapps will issue a Tax Invoice at such time and intervals as specified in the relevant Subscription Plan. Invoices can be accessed via the Payment details tab in the Account details section in the user’s account.
11.4 Unless otherwise agreed with the User Organisation, Payapps may, with effect from the start of a Subscription Period (as specified in your Subscription Plan), increase the Service Fees. If such increase occurs, we will tell you in writing 14 days beforehand, which may include notifying you by email of such increases.
11.5 To the extent permitted by law and subject to clause 20.1, no refund of any part of the Service Fee will be paid to the User Organisation if in the event of earlier termination of this Agreement by either Party.
12. CONFIDENTIAL INFORMATION
12.1 In respect of each Party’s Confidential Information, the other Party agrees to:
(a)keep it confidential; and
(b)use it on the Web Site only for the Purpose; and
(c)not make any copies of it from the Web Site other than strictly required for the Purpose; and
(d)limit its disclosure to those of the other Party’s directors, officers, contractors and employees and professional advisers, on a need to know basis for the Purpose; and
(e)not disclose it to any third party other than those persons referred to under clause 12.1
(d) above, unless with the prior written consent of the first mentioned Party; and
(f)keep the Confidential Information secure and protected from loss and unauthorised use and disclosure and maintain appropriate security measures, including where appropriate marking each document embodying the first mentioned Party’s Confidential Information, with the following notation: "Confidential Information;”
12.2 Each Party’s obligations under this clause 12 will survive expiration or earlier termination of this Agreement and will continue until such time as each part of the other Party’s Confidential Information lawfully becomes part of the public domain.
13. CHANGES TO THESE TERMS AND CONDITIONS
13.1 If Payapps decides in its sole discretion to amend any term or condition of this Agreement, Payapps will provide notice of the amendments to the User Organisation including displaying such amendments on the Web Site (the “Amendments”) or by way of e-mail to the User Organisation. The Amendments may include changes needed to reflect changes to the law, changes to our terms of trade, changes to the Services, or to the features or functionality of the Web Site.
13.2 The User Organisation will have 14 days after notice of the Amendments to request termination of the Services under this Agreement, if any of the Amendments are unacceptable to the User Organisation.
13.3 If the User Organisation and/or its Authorised Users continue to use the Web Site after expiry of this 14 day period, the User Organisation is deemed to have agreed to the Amendments for the purpose of this Agreement, commencing from the date of the receipt of notice of the Amendments under this clause 13.
14. USE OF A PARTY’S TRADE MARK AND CORPORATE NAME
14.1 For the term of this Agreement, the User Organisation hereby grants to Payapps and Payapps hereby accepts from the User Organisation, a royalty-free, non-exclusive, non-transferable and revocable licence throughout the World to use and display the User Organisation’s Trade Mark on the Web Site.
14.2 For the avoidance of doubt:
(a)Payapps will have no other rights granted to use the Trade Mark for any other purpose other than provided under clause 14.1.
(b)Payapps will have no rights to grant sub-licences of its rights granted under clause 14.1 in any way whatsoever.
14.3 The User Organisation will have the right to use the name or corporate logo of Payapps in relation to this Agreement, subject to Payapps’s prior written consent and any other conditions attached to such consent.
15. USER’S WEB SITE BEHAVIOUR
15.1 Without limiting the generality of all of the User Organisation’s obligations under this Agreement, the User Organisation agrees that it and its Authorised Users must not, and must not undertake or procure any third party to do any of the following:
(a)Removing or obscuring, by framing or otherwise, any portion of the Web Site, the Web Site Content and the User Content;
(b)Hyperlinking the Web Site, the Web Site Content and the User Content to a third party website;
(c)Communicating over the Internet (including by way of e-mail) any part of the Web Site, the Web Site Content and the User Content to any third party not permitted by this Agreement;
(d)Framing, mirroring, scraping or data-mining the Web Site, the Web Site Content and the User Content;
(e)Leaving the computing devices (including without limitation, the computer terminal, iPad™, iPhone™, any other smart phone or tablet) unattended whilst accessing the Web Site;
(f)Allowing any directors, officers, employees, agents and consultants of the User Organisation who are not Authorised Users to access the Web Site using a User Account;
(g)Using a third party’s User Account to access the Web Site;
(h)Creating a false identity on the Web Site;
(i)Uploading any User Content that is defamatory, pornographic or obscene;
(j) Using the Web Site to send unsolicited or unauthorised mail, spam, other forms of duplicative or unsolicited communications;
(k) Using the Web Site to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s Intellectual Property Rights;
(l) Attempting to decipher, decompile, reverse engineer or otherwise discover the source code of any software which comprises the Web Site; or
(m) Any other internet based activity, which, in the sole discretion of Payapps, is not in the best interests of the proper functioning, performance and integrity of the Web Site.
16. RISK MANAGEMENT
16.1 Payapps hereby warrants to the User Organisation that it will provide the Services and the Website on an “as is,” “as available” basis.
16.2 Subject to clause 16.1, and to the extent permitted by law, Payapps has not made and hereby excludes all other warranties, conditions, terms and undertakings whether express or implied, written or oral, statutory or otherwise, including any implied warranty of merchantability or fitness for purpose, in respect of the Services, the Web Site and the Web Site Content. In so far as liability may not be excluded, such liability is limited at the exclusive option of Payapps to:
(i) the re-performance of the Services; or
(ii) the payment of the costs of having the Services being re-performed again.
16.3 Without limiting the generality of this clause 16, Payapps will not be liable for any special, indirect or consequential damages arising under or pursuant to this Agreement.
16.4 Without limiting the generality of this clause 16, Payapps hereby excludes the following warranties:
(a) That the Web Site will be operating continuous and uninterrupted; and
(b) That the Web Site and Web Site Content is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and
(c) That the Web Site and the Web Site Content will not infringe any third party’s Intellectual Property Rights in any part of the World; and
(d) That the User’s software, computing devices and Internet service, will be fit for purpose for use with the Web Site.
(e) That the Web Site and the Services will satisfy all of the User Organisation’s applicable contractual, legal and statutory obligations, including without limitation, all those statutory obligations under the Building and Construction Industry (Security of Payments) Act (Vic) or any other equivalent applicable legislation in any other State or Territory of the Commonwealth of Australia.
16.5 The User Organisation hereby releases and indemnifies and continues to release and indemnify Payapps (and all of its respective directors, officers, employees, agents, contractors, sub-contractors and representatives) all individually and collectively referred to in this clause 16.5 as the “Indemnified Party”) from and against all actions, claims, proceedings and demands, which may be brought by any person whether against the Indemnified Party or both the User Organisation and the Indemnified Party, either on their own or jointly with third parties, in respect of any loss, injury or damage (whether personal, property, financial, consequential financial loss or infringement of any Intellectual Property Rights throughout the World) howsoever arising, that the Indemnified Party may suffer, incur or sustain as a result of:
(a)the User Organisation’ (or any Authorised User) illegal, negligent acts or omissions in relation to this Agreement; or
(b)the User Organisation’s (or any Authorised User) breach of any of its obligations under this Agreement; or
(c)the use of a User Account by any person; or
(d)any person accessing and using the Web Site using a User Account; or
(e)any person uploading User Content onto the Web Site using a User Account; or
(f)any person access the Web Site Content; or
(g)Payapps’ use of the Trade Mark:
and from and against all damages, costs and expenses incurred or sustained, in defending or settling any such actions, claims, proceedings or demands.
16.6 The User Organisation hereby warrants to Payapps that:
(a)It owns all title, right and interest in and to the Trade Mark (including all Intellectual Property Rights throughout the World subsisting therein);
(b)To its actual knowledge, information and belief as of the Commencement Date and after making all enquiries, the use of the Trade Mark by Payapps will not infringe any third party’s Intellectual Property Rights in any part of the World.
16.7 Whilst Payapps provides the Services and the Web Site under this Agreement, the User Organisation must seek independent legal and accounting advice to satisfy itself that it has complied with all applicable contractual, legal and statutory obligations, including those statutory obligations under the Building and Construction Industry (Security of Payments) Act 2002 (Vic) or any other equivalent applicable legislation in any other State or Territory of the Commonwealth of Australia.
16.8 This clause 16 will survive expiration and earlier termination of this Agreement.
17. THIRD PARTY PROCEEDINGS
17.1 Each Party must immediately notify the other Party of:
(a)any claim or allegation that the exercise of any of its rights under this Agreement constitutes an infringement of the rights, including the Intellectual Property Rights of any third party in any part of the World in respect of the Web Site, the Services, the Web Site Content and the Trade Mark; or
(b)any third party’s actual infringement or threatened infringement of any of the Party’s rights, including any Intellectual Property Rights in any part of the World in respect of the Web Site, the Services, the Web Site Content and the Trade Mark:
-that it becomes aware of.
17.2 The Parties must confer as to what steps, if any, are to be taken against any person infringing any part of the Web Site, the Web Site Content and the Trade Mark.
17.3 If Payapps decides to commence legal proceedings, Payapps will be responsible for all legal costs, damages and expenses incurred, sustained or awarded and will be solely entitled to any damages, account of profits or other compensation recovered by such applications or legal proceedings. The User Organisation must furnish all such necessary assistance in relation to those applications or legal proceedings, at the cost of Payapps.
17.4 The terms and conditions of this clause 17 will survive expiration or earlier termination of this Agreement.
18. GOOD AND SERVICES TAX
18.1 Any amount which is payable as a consequence of this Agreement, including the Service Fee is expressed exclusive of GST, unless expressly stated otherwise.
18.2 If the User Organisation is a recipient of supply as defined by the law of GST under this Agreement, the User must reimburse Payapps in respect of GST (if any) payable on the Service Fee.
18.3 The User Organisation must pay the GST (if any) to Payapps as a consequence of this Agreement.18.4 Notwithstanding clause 11, Payapps must provide the User Organisation with a Tax Invoice or other document which identifies clearly the amount of GST to be reimbursed to Payapps under this Agreement, so as to enable the User Organisation to obtain an input tax credit as defined by the law of GST.
19. FORCE MAJEURE
19.1 Where a Party is unable, wholly or in part, by any Force Majeure Circumstance to carry out any obligation under this Agreement:
-that obligation is suspended so far as it is affected by the Force Majeure Circumstance during the continuance of that Force Majeure Circumstance and that Party shall be allowed a reasonable extension of time to perform its obligations.
19.2 If the Force Majeure Circumstance continues for a period of one (1) month, the Parties will meet in good faith to achieve a satisfactory resolution to the problem.
19.3 Notwithstanding the above provisions, an obligation to pay money is not excused by a Force Majeure Circumstance.
20. TERMINATION
20.1 This Agreement and the Services may be terminated by either Party (the “Terminating Party”) in its sole discretion without cause, by providing thirty (30) days advanced written notice to the other Party. If a User Organisation is the Terminating Party, an email to “support@Payapps.com” will serve as notification of the termination. If Payapps terminates without cause under this clause 20.1 then the Service Fee will be refunded to the User Organisation on a pro-rata basis.
20.2 This Agreement and the Services may be terminated by either Party in its sole discretion (also the “Terminating Party”) by providing written notice to the other Party (also the “Defaulting Party”) where the Defaulting Party has committed a breach of any of its obligations under this Agreement and the Defaulting Party has not rectified the breach (where the breach is capable of remedy) within seven (7) days from the date of written notice by the Terminating Party to rectify the breach-such termination to be immediately effective from the date of the first mentioned written notice.
20.3 This Agreement and the Services may also be terminated immediately by either Party in its sole discretion (also a “Terminating Party”) by providing written notice to the other Party (also a “Defaulting Party”) on the happening of any one or more of the following events:
(a)if the Defaulting Party breaches any of its obligations under this Agreement, where the breach is incapable of remedy (including where the User Organisation has ceased to pay the Service Fee when due); or
(b)if the Defaulting Party is the subject of winding up (voluntary or otherwise) liquidation proceedings, whether voluntary or compulsory, otherwise than for the purpose of and followed by, a reconstruction, amalgamation or reorganisation; or
(c)if the Defaulting Party has become insolvent, bankrupt or is subject to the appointment of a mortgagee, a receiver or manager or an inspector to investigate its affairs, enters into any arrangement or composition with its creditors generally, or is unable to pay its debts as and when they become due; or
(d)if execution is levied upon all or any part of the assets of the Defaulting Party, except where the execution is contested in good faith within seven (7)days after it is levied, payment is made in full to the judgment creditor in question of all amounts owing to such judgment creditor:
-such termination to be immediately effective upon receipt by the Defaulting Party of the first mentioned written notice.
20.4 In the event of termination of this Agreement and the Services pursuant to clause 20.1 or 20.2 or 20.3, the User Organisation’s access to the Services will cease and:
(a) each Party is entitled to retain all monies (including, if applicable, the Service Fee) received or paid prior to the date of termination;
(b) the User Organisation must promptly pay Payapps all monies (including, if applicable, the Service Fee) outstanding, as at the date of termination; and
(c) the User Organisation must, at Payapps’ election, deliver up to Payapps (as the Terminating Party) all written and electronic documents relating to all Web Site Content (and the Defaulting Party must not retain copies in any form) in its possession or control or otherwise securely destroy such material if Payapps has not elected to have the information delivered to it;
(d) each Party must maintain the confidentiality of the Confidential Information of the other Party in accordance with clause 12;
(e)the licence granted by the User Organisation to Payapps under clause 8 shall continue in perpetuity;
(f) the licence granted by the User to Payapps under clause 14 shall terminate;
(g) Payapps must immediately remove the Trade Mark from the Web Site; and
(h) If requested by the User Organisation, Payapps will make available for export or download an electronic copy of the User Content and any Confidential Information of the User Organisation, provided that such request is made by the User Organisation within 30 days of termination.
20.5 Termination of this Agreement and the Services for any reason whatsoever:
(a) is without prejudice to the rights of each Party to sue for and recover any fees, monies, or payments then due and to the rights of that Party in respect of any previous breach of any of the provisions of this Agreement; and
(b) Does not relieve either Party of its respective obligations of confidentiality (clause 12) and risk management (clause 16) contained herein;
(c) Clauses 6, 7, 8, 9, 10, 12, 16 and this clause 20 will survive expiration or earlier termination of this Agreement.
20.6 If the User Organisation is the “Defaulting Party” under clauses 20.2 or 20.3, Payapps may, in the alternative to terminating this Agreement and the Services and without limiting any of its other rights under this Agreement, suspend all or any part of the Services.
20.7 Without limiting any of its other rights under this Agreement, if an individual Authorised User does or fails to do anything that would be a breach of this Agreement by the User Organisation, Payapps may, in is absolute discretion, revoke, suspend or terminate that Authorised User’s (i) access to and use of the Services via the Website and/or (ii) User Account.
20.8 The exercise by Payapps of its rights under clause 20.6 or 20.7 will not excuse the User Organisation from any obligation to make payments under this Agreement.
21. DISPUTE RESOLUTION
21.1Each Party must not commence any Court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute, unless it has complied with this clause 21.
21.2 Any Party claiming that a dispute has arisen must notify the other Party in writing, giving details by express mail (the “Dispute”).
21.3 During twenty-one (21) days after notice of the Dispute (the “Initial Period”) each Party must use its reasonable efforts to resolve the Dispute by good faith negotiation between the Parties.
21.4 If the Parties are unable to resolve the Dispute within the Initial Period, each Party agrees that the Dispute must be referred to meditation at the request of either Party to:
(a)a mediator agreed by the Parties; or
(b)if the Parties are unable to agree on a mediator, within seven (7) days after the end of the Initial Period, a mediator nominated by the current President of the Law Institute of Victoria or its nominee.
21.5 If the Parties fail to resolve the Dispute in accordance with clause 21.4, by thirty (30) days upon referral to the mediator, either Party is free to initiate proceedings in a Court of appropriate jurisdiction.
22. APPLICABLE LAW
This Agreement is governed by and shall be construed in accordance with the laws of the State of Victoria. The Parties hereby irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of the State of Victoria and the Courts of Appeal.
23. NON-ASSIGNMENT
The User Organisation must not assign, mortgage or charge or any of its rights, title and interest under this Agreement to any third party, unless it has obtained the prior written consent of Payapps, which may be withheld by Payapps in its absolute discretion.
24. NO WAIVER
The User Organisation must not assign, mortgage or charge or any of its rights, title and interest under this Agreement to any third party, unless it has obtained the prior written consent of Payapps, which may be withheld by Payapps in its absolute discretion.
25. SEVERANCE
25.1 Each word, phrase, sentence, paragraph and clause (a “Provision”) of this Agreement is severable.
25.2 If a Court determines that a Provision is unenforceable, illegal or void then the Court may sever that Provision. The Parties agree that the unenforceability, illegality or voidness of the severed Provision, will not affect the validity of the other Provisions of this Agreement.
26. NOTICES
26.1 Any notice to be given by a Party to the other Party under this Agreement must be:
(a)In writing; and
(b)Directed to the recipient’s e-mail address specified in the User Account or the Web Site (as the case may be) with a read request receipt and delivery receipt option; and
(c)Sent by e-mail to that e-mail address and which will be deemed to be duly given upon receipt of the request receipt and delivery receipt for the sender.
26.2 Either Party will have the right to amend its Address for Notices under this clause 26.1, subject to prior written notice to the other Party.
26.3 For the avoidance of doubt and without limiting the generality of clause 26.2, Payapps will have the right to amend its Address for Notices on the Web Site itself without further notice to the User.
27. RELATIONSHIP
The Parties agree that this document does not create or evidence the relationship between them of partnership, joint venture, employer and employee, trust, agency or otherwise but that of independent contractors.
28. COSTS
Each Party is responsible for its own legal costs incurred in relation to the negotiation and settlement of this Agreement.
29. PRIVACY
(a) The User Organisation’s (and each Authorised User’s) rights to access the Web Site and/or the Services under this Agreement are subject to the Privacy Policy, which is incorporated into this Agreement by reference.
(b) Any personal information forming part of the User Content will be collected and used by Payapps in accordance with its Privacy Policy issued or made available to User Organisation from time to time and otherwise in accordance with applicable privacy laws.(c)The User Organisation acknowledges and agrees that in collecting, soliciting, holding, using and/or disclosing personal information as part of its use of the Web Site and/or the Services, the User Organisation is responsible for complying with privacy laws at all times (to the extent such laws are applicable to the User Organisation).
30. ENTIRE AGREEMENT
This Agreement contains the whole understanding of the Parties relating to its subject matter and it supersedes and cancels any and all representations, agreements, commitments, warranties and promises, made by the same Parties with respect to the same subject matter. Any purported representations, agreements, commitments, warranties and promises of the Parties not recorded in this Agreement are of no effect.
31. LEGAL AUTHORITY TO ENTER INTO AGREEMENTS
The User Organisation warrants that any person who uses a User Account or is otherwise given access to the Web Site and uses the Services on the User Organisation’s behalf has the authority from the User Organisation to use the Web Site as an Authorised User.
32. INCONSISTENCY
In the event of any inconsistency, the following items prevail over the other items from highest paramountcy to lowest paramountcy as herein presented:
(a) The terms and conditions of the Subscription Plan;
(b)The terms and conditions of this agreement;
(c)The terms and conditions of any Schedule; and
(d)The terms and conditions of Privacy Policy.
