Terms and Conditions of Use.

1          About the Software
1.1      Clubfit is a cloud based software platform (the “Software”) that provides Gyms with a streamlined approach to all their customer relationship management (CRM) and customer management system (CMS) requirements, including but not limited to the management of:
(a)       direct debit billing of memberships;
(b)       membership information; and
(c)       internal data collection and reporting.
(the “Services”)
1.2      The Software is operated by Clubfit Software Pty Ltd (ACN 169 187 213) (“Clubfit”). Access to and use of the Software, or any of its associated products, is provided by Clubfit. Please read these terms and conditions (the “Terms”) carefully. By using, browsing and/or signing up for use of the Software, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Software immediately.
1.3      Clubfit reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Clubfit updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2          Acceptance of the Terms
2.1      You accept the Terms by completing and signing the purchase order provided to you by Clubfit and/or making any payment as required under these Terms for use of the Services. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you by Clubfit in the user interface.
3          The Services
3.1      In order to access the Services, you are required to complete a purchase order for your licence of the Software from Clubfit (the “Purchase Order”). By completing and signing the Purchase Order you agree to be bound by these Terms.
3.2      As part of your use of the Service, you will be required to provide personal information about yourself (such as identification or contact details). You agree that any registration information you give to Clubfit will always be accurate, correct and up to date.
3.3      You may not use the Services and may not accept the Terms if:
(a)       you are not of legal age to form a binding contract with Clubfit; or
(b)       you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4          Licence Fee and Commission
4.1      As part of the Purchase Order, Clubfit will require you to pay an ongoing licence fee for the Software to facilitate your use of the Services (the “Licence Fee”).
4.2      You agree and acknowledge that Clubfit can alter the Licence Fee at any time and that, the altered Licence Fee will subsequently come into effect following the conclusion of the existing licence period particularised in the Purchase Order.
4.3      As part of the Services, Clubfit may manage the direct debit of all membership fees paid by your clients (the “Membership Fees”). In addition to the Licence Fee, you understand that Clubfit will also charge a commission of $0.60 on each Direct Debit Transaction that is performed by Clubfit as part of the Services (the “Commission Fee”).
4.4      You acknowledge and agree that all transactions in relation to the Services are performed by Paycorp Holdings Pty Ltd (ABN 969 096 353) t/as Paycorp (“Paycorp”). By using the Services you acknowledge and agree that you have read, understood and agree to be bound by the Terms and Conditions of Use, Privacy Policy and other relevant legal documentation of Paycorp.
5          Waiver and Refund
5.1      Clubfit reserves the right to waive either the Membership Fees or the Commission Fee at its sole discretion (the “Waiver”). Where Clubfit elects to provide the Waiver, this must be particularised in the Purchase Order prior to it being entered into by you.
5.2      Clubfit will only provide you with a refund of the Licence Fee in the event they are unable to continue to provide the Services. Should this occur, the refund will be in the proportional amount of the Licence Fee that remains unused by the Member (the “Refund”).
6          Copyright and Intellectual Property
6.1      The Software, the Services and all of the related products of Clubfit are subject to copyright. The material on the Software is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Software (including but not limited to text, graphics, logos, button icons, video images, audio clips, software, code, scripts, design elements and interactive features) (the “Content”) are owned or controlled for these purposes, and are reserved by Clubfit or its contributors.
6.2      All trademarks, service marks and trade names are owned, registered and/or licensed by Clubfit, who grants to you a worldwide, non-exclusive, revocable license whilst you are a member to:
(a)       download the Software to a device through the cloud;
(b)       use the Software pursuant to the Terms;
(c)       copy and store the Software and the material contained in the Software in your device’s cache memory; and
(d)       print pages from the Software for your own personal and non-commercial use.
Clubfit does not grant you any other rights whatsoever in relation to the Software or the material on the Software. All other rights are expressly reserved by Clubfit.
6.3      Clubfit retains all rights, title and interest in and to the Software and all related content.  Nothing you do on or in relation to the Software will transfer any:
(a)       business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b)       a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c)       a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
to you.
6.4      You may not, without the prior written permission of Clubfit and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Software which are freely available for re-use or are in the public domain.
6.5      If you broadcast, publish, upload, transmit, post or distribute any content on the Software (“Your Content”), then you grant to Clubfit a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content, subject to the terms and conditions of Clubfit’s current Privacy Policy.
7          Service Level Targets
7.1      Clubfit will prioritise incoming incident and support requests as follows:
(a)       Business and financial exposure – is there a significant risk of financial loss or client impact;
(b)       Number of systems or people affected;
(c)       Will work stop due to the reported issue;
(d)       Is a workaround available in the meantime;
(e)       What would be an acceptable resolution time for the circumstances.
7.2      Problems will be categorised by Clubfit upon receiving the request on the information provided at the time and may reasonably re-categorise the problems after receiving further information from you.
7.3      The Response time is the time it takes Clubfit to receipt the issue and begin analysis of the problem:

Priority	Impact / Description	Response	Rectification
1	Severe and critical impact to the business	Within 30 minutes	Rectification would be expected as soon as possible
2	Significant impact to the business	2 hours	Rectification would be expected within 2 business day
3	Minor impact to business (or significant impact to a single user)	4 hours	Rectification would be expected within 5 business days with a workaround provided within 1 business day if possible
4	No business impact, minor impact to individual or group of users	1 day	Rectification  expected within 20 business days, otherwise a workaround could be adequate resolution

7.4      In addition to the above, Clubfit will use all reasonable commercial efforts, being no less than accepted industrial standards in this regard, to ensure that the Services are available to you 99% of the time in any calendar month. If it is not, you may request, and Clubfit will consider at its absolute discretion, whether you are eligible to a credit towards the subsequent monthly Licence Fee during the subsequent month in which the problem occurred.
8          General Disclaimer
8.1      Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
8.2      Subject to this clause 8, and to the extent permitted by law:
(a)       all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b)       Clubfit will use its reasonable endeavours to provide the Services in accordance with Australian best practices, however, as Clubfit uses third party software and hardware such as Amazon Web Services, Club fit will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
8.3      Use of the Software, the Services, and any of the products of Clubfit, is at your own risk as software and hardware is inherently complex and cannot be free from errors or bugs. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Clubfit make any express or implied representation or warranty about its Content or any products or Services (including the products or services of Clubfit) referred to on the Software, save for any Customer Guarantees pursuant to the Australian Consumer Law. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a)       error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b)       the accuracy, suitability or currency of any information on the Software, the Service, or any of its Content related products (including third party material and advertisements on the Software);
(c)       costs incurred as a result of you using the Software, the Services or any of the products of Clubfit;
(d)       the Content or operation in respect to links which are provided for your convenience; or
(e)       any failure to complete a transaction, or any loss arising from e-commerce transacted on the Software as a consequence of a Force Majeure event.
8.4      For the purposes of this clause, “Force Majeure” means any act or cause beyond a party’s reasonable control including but not limited to earthquake, acts of government, industrial disputes, accident, fire, explosions, floods, interruptions in telecommunications provided Clubfit has taken all proper precautions, due care and reasonable alternative measures with the object of avoiding the delay or failure to comply with the obligations under these Terms.

9          Limitation of liability
9.1      Clubfit’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of information to you.
9.2      You expressly understand and agree that Clubfit, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
9.3      Clubfit is not responsible or liable in any manner for any content (including the Content and your Content and third party content) posted on the Software or in connection with the Services, whether posted by Clubfit or by third parties.
9.4      Clubfit does not control and is not responsible for the behaviours and actions of its members, their comments, posts or information that they upload. Accordingly, Clubfit is not responsible for any offensive, inappropriate, obscene or unlawful content or actions that you may encounter on the Software or in connection with any of the services provided on the Software.
9.5      By using the Software, you acknowledge that you are solely responsible for ensuring that you do not use the Services in such a way that you will be at risk of personal or psychological harm.
10        Termination of Contract
10.1    The Terms will continue to apply until terminated by either you or by Clubfit as set out below.
10.2    If you want to terminate the Terms, you may do so by:
(a)       providing Clubfit with thirty (30) days’ notice in writing at any time; and
(b)       closing your accounts for all of the services which you use, where Clubfit has made this option available to you.
10.3    You may also terminate the Terms immediately where Clubfit is in material breach of these Terms and:
(a)       you have provided Clubfit with 7 days written notice to rectify the material breach and Clubfit has not rectified the said material breach; or
(b)       the material breach is incapable of remedy.
10.4    Clubfit may at any time, terminate the Terms with you if:

• • • • • • • • • • • you have breached any provision of the Terms or intend to breach any provision;

• • • • • • • • • • • Clubfit is required to do so by law;

• • • • • • • • • • • the partner, if any, with whom Clubfit offered the Services to you has terminated its relationship with Clubfit or ceased to offer the Services to you;

• • • • • • • • • • • Clubfit is transitioning to no longer providing the Services in the country in which you are resident or from which you use the service; or

• • • • • • • • • • • the provision of the Services to you by Clubfit is, in the opinion of Clubfit, no longer commercially viable.

10.5    Subject to local applicable laws, Clubfit reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Software or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Clubfit’s name or reputation or violates the rights of those of another party.
10.6    When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Clubfit have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
11        Indemnity
11.1    You agree to indemnify Clubfit, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a)       all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Content;
(b)       any direct or indirect consequences of you accessing, using or transacting on the Software or attempts to do so; and/or
(c)       any breach of the Terms.
12        Dispute Resolution
12.1    Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
12.2    Notice:
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
12.3    Resolution:
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a)       Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b)       If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Queensland Law Society or his or her nominee;
(c)       The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d)       The mediation will be held in Brisbane, Australia.
12.4    Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
12.5    Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
13        Venue and Jurisdiction
The Services offered by Clubfit are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Software, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.         
14        GST
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with these Terms, are listed in Australian Dollars (AUD) and are GST exclusive. GST is only applicable to subscribers situated in Australia.
15        Governing Law
This agreement is governed by the laws of Queensland, Australia.  Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
16        Independent Legal Advice
Both parties confirm and declare that the provisions of this agreement are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
17        Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
1. Defined terms and interpretation

1. Defined terms in this document :

Acquirer means merchant bank that accepts credit card payments.

Available Cards means the Credit Cards for which Paycorp will provide Paycorp Services. As at the Commencement Date the Available Cards are American Express , MasterCard and Visa.

Business Day means a day, Monday to Friday, on which banks are open for general banking business in Sydney.

Business Hours means the hours of 8:30 am to 5.00 pm on Business Days.

Card Issuer means any institution which issues a Credit Card (which institution may or may not be the same institution as the Acquirer).

Commencement Date means the date specified in the Details (Please link to a section/clause or schedule).

Communicate means to send an electronic Message over the Internet or a secure direct telecommunications line.

Confidential Information means all data, information, material and accounts concerning or in any way connected with the business, property, customers or affairs of a party to this agreement and which is disclosed to, or otherwise becomes known to, the other party by any means as a result of or in connection with this document, and includes the Transaction Log and the Software (if any).

Credit Card means a credit card or charge card accepted by an Acquirer, the use of which is governed by the Scheme Rules.

Customer means a person who requests the Merchant to initiate a Transaction in respect of an Event by making available details of a Permitted Card.

Dispersal Means the crediting of funds from Paycorp’s Aggregation Trust accounts to the Merchants own nominated Settlement account

Event means the event which gives rise to a Customer requesting the Merchant to initiate a Transaction including the purchase of goods or services by the Customer from the Merchant.

GST has the meaning given in clause 15.

GST Act means the A New Tax System (Goods & Services Tax) Act 1999.

Initial Term is the initial term of the agreement being two years from the Commencement Date.

Intellectual Property Rights means in relation to a person, the rights of the person in and to:

any copyrights, patents, designs, trade marks, trade names, business names, circuit layout rights (whether registrable, registered or unregistered and whether protected by law in Australia or elsewhere); and

any applications for, or rights to obtain or acquire, any intellectual property rights as defined in paragraph (a); and

any information which may be protected by law or by an order of any court or tribunal.

Merchant Account means the bank account held by the Merchant with the Acquirer which is nominated in writing by the Merchant (from time to time during the Term) as the account to which the proceeds of Payment Transactions are to be credited and from which the proceeds of Reversal Transactions are to be debited.

Merchant Interface means the device or application on which the Paycorp Enabling Software is installed, by or through which the Merchant Communicates Transaction Data to Paycorp including any one or more of the following:

its Merchant Payment Page;

its interactive voice recognition software; or

its wireless application.

During the Term, the parties may agree to add, or change, Merchant Interfaces.

Merchant Payment Page means, in the case of the Merchant Interface being a Web Site, that page of the Merchant’s Web Site through which a Customer is able to initiate a Payment Transaction, using a Credit Card, for goods or services or both purchased by the Customer from the Merchant.

Message includes a set of data elements used to convey information between two persons.

Operating Procedures means the operating procedures in relation to the Paycorp Service published by Paycorp from time to time and notified to the Merchant by fax or mail at least 7 days prior to implementation.

Paycorp Service means the service provided by Paycorp to the Merchant (by Paycorp making available its infrastructure, its computer software and Transaction Protocols) between the Merchant and the Acquirer through which the Customer, Merchant, and Acquirer Communicate Transaction Requests and Transaction Responses and (if applicable) the Card Issuer processes Transactions.

Payment Transaction means a transaction initiated by a Customer or the Merchant using the Paycorp Enabling Software, being a claim for funds to be debited against a Credit Card, and (ultimately) credited to the Merchant Account, which claim is made by the Merchant against the Acquirer and, where the Acquirer is not the Card Issuer by the Acquirer against the Card Issuer.

PCI Compliance Means compliance to the version of PCI DSS against which Paycorp has most recently been certified.

Permitted Card means the Credit Card or Credit Cards (selected by the Merchant from the available Cards from time to time) as Credit Cards which the Merchant will permit to be used in respect of Paycorp Services.

PES or Paycorp Enabling Software means Paycorp’s proprietary software which enables a Merchant to use Paycorp Services.

PES Specifications means the specifications, operating manuals, training manuals and associated documentation supplied by Paycorp to Merchant in respect of the use and operation of the PES.

Privacy Laws means all legislation, principles, industry codes and policies regulating the collection, handling and use personal information (including the Privacy Act 1988 (Cth)).

Relevant Transaction Data means that part of the Transaction Data which Paycorp Communicates to the Acquirer in accordance with the Acquirer’s requirements, for the purpose of obtaining a Transaction Response.

Scheme Rules means the rules and guidelines produced by the Credit Card scheme operators, being Visa and MasterCard, from time to time relating, amongst other things, to the use of those Credit Cards and liability for Transactions effected under those Credit Cards by which the Merchant, the Customer, the Acquirer and (where the Acquirer is not the Card Issuer) the Card Issuer are bound.

Secure Environment includes the physical environment, in which the Hosted Page server is located.

Security Procedures means the security procedures relating to the use of the Paycorp Service published and implemented by Paycorp from time to time, and notified to the Merchant by fax or mail at least 7 days prior to implementation, including procedures relating to the Merchant’s use of the Digital Key and the Merchant’s access to the Transaction Logs.

Selected Services means the services which Paycorp agrees to provide the Merchant under this agreement as specified in SCHEDULE 1.

Service Fees means the fees payable by the Merchant to Paycorp for providing the Selected Services as specified in schedule 2

Settlement Mean the crediting of funds from Paycorp’s sponsoring bank to Paycorp’s Aggregation trust account

Software means the PES.

Support Services includes all of the services required to maintain the accuracy, continuity and response times for the Paycorp Services, including those services referred to in clauses 10(e), 10(f) and 11.

Tax Invoice means the same as in the GST Act.

Term means the Initial Term and includes, in the event of any renewals pursuant to clause 3.2, those additional periods for which this agreement is extended, subject to any earlier termination in accordance with clause 18.

Transaction means a Purchase, Preauthorisation request, a Completion of a preauthorisation a Reversal of any other transaction or the Refund of a Purchase or Completion.

Transaction Data Format means the scope of the Transaction Data which the Merchant will communicate to Paycorp utilising the Paycorp Enabling Software, as specified by Paycorp from time to time during the Term.

2. Interpretation

In this document, unless the contrary intention appears:

a reference to a person, document or agreement (including this document) includes a reference to that person, document or agreement as novated, changed or replaced from time to time;

a reference to a party includes its executors, administrators, successors and permitted assigns;

headings are for ease of reference only and do not affect the meaning of this document;

other grammatical forms of defined words or expressions have corresponding meanings;

a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this document and a reference to this document includes any schedules and annexures;

a reference to ‘A$’, ‘$A’, ‘dollar’ or ‘$’ is a reference to Australian currency;

a reference to ‘including’ or ‘includes’ means ‘including but not limited to’; and

a reference to any legislation or statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State legislation, as applicable.

2. Relationship

1. Appointment

Merchant appoints Paycorp to provide, and Paycorp agrees to provide the Selected Services to the Merchant during the Term, on the terms of this document.

2. Relationship

This document does not constitute a partnership or joint venture between the parties.

Except as set out in this document, no party may:

hold itself out as being authorised to bind or act as agent for or on behalf of the other party; or

attempt to bind or impose any obligation on the other party (including any costs or charges) or incur any joint liability with the other party without the written consent of the other party.

3. Contact in name of Parties

Neither party may contract or engage or release or waive or do any other act for, on behalf of or in the name of, the other party without the prior written consent of the other party, which consent can be withheld at the discretion of the other party.

4. Provision of information
Merchant and Paycorp each must, on receipt of reasonable written notice from the other party, but subject to applicable laws or other obligation by which it is bound, provide to the other party such information and data as it has in its possession that the other party reasonably requires for the purposes of complying with its obligations under this agreement.

5. Restrictions on Parties’ Activities

Merchant and Paycorp each must not, and must use all reasonable endeavours to ensure that their respective employees and contractors do not, do any of the following without the other party’s prior written consent:

(a) represent the other party; or

(b) engage solicitors to represent the other party, in any claim, suit or proceeding whether in connection with the Paycorp Services or otherwise.

3. Term

1. Term
This agreement commences on the Commencement Date and continues for the Initial Term, unless terminated earlier in accordance with clause 18.

2. Additional Periods
At the end of the Initial Term or any extension period under this clause, the Term will automatically extend for further successive extension periods of 1 month each, unless either party terminates this agreement by giving the other written notice of at least 30 days.

4. Scope of Agreement

1. Terms of engagement
On and from the Commencement Date and for the Term, the Merchant engages Paycorp to provide the Selected Services, and Paycorp must provide the Selected Services to the Merchant on the terms and conditions of this agreement. If during the Term, the Merchant wishes to engage Paycorp to provide the Hosting Service, Paycorp will provide the Hosting Service to the Merchant on the terms and conditions set out in a separate Hosting Agreement to be executed by the parties.

2. Provision of Services

Paycorp must provide the Selected Services:

Promptly, and with due care and skill;

in accordance with all relevant laws, regulations and industry codes; and

with adequate physical and technical security measures (including but not limited to encryption of communications) to protect against fraudulent Transactions or Transaction Requests, or interception, interference, monitoring, forgery or theft of Transaction Data or other data relating to a Customer, a Credit Card, the Merchant or any Transaction or Transaction Request, whether resident in the Paycorp Service, stored within Paycorp’s infrastructure, contained within the Transaction Log or in transit between Paycorp on the one hand, and the Merchant, the Acquirer or the Card Issuer on the other.

b. In consideration of Paycorp providing the Selected Services in accordance with this agreement,
the Merchant must pay Paycorp the Service Fees which are to be calculated and paid in
accordance with this agreement.
3. Use of the PES

The Merchant’s use of the PES, if provided to the Merchant, is governed by clause 8.

4. Professional Services
Paycorp may, if requested by the Merchant, provide professional services to the Merchant on such terms and conditions, as the parties agree in writing. During the Initial Term, the fees payable for such professional services are as set out in schedule 2

Merchant Interface

The Merchant agrees that in order to access and use the Paycorp Service, it will be necessary for Paycorp or the Merchant to install the Paycorp Enabling Software within the Merchant Interfaces.

Except for the Set-Up Services and any Hosting Services, the Merchant is solely responsible for developing, setting up, commissioning, running and maintaining the Merchant Interface at no cost to Paycorp.

Where the Merchant Interface is a Merchant Payment Page linked to a Web Site, the Merchant is responsible for approving the content of the Merchant’s Web Site and must ensure that the Merchant’s Web Site (other than the Paycorp Enabling Software) does not infringe or breach any applicable laws relating to the use, content or operation of the Merchant’s Web Site.

Subject to the provision by Paycorp of the Set-Up Service and the Paycorp Enabling Software, the Merchant is responsible for implementing all of the software applications required for the purpose of enabling the Merchant Interface to Communicate with the Paycorp Service.

The Merchant acknowledges and agrees that:

it has not relied on any advice given to it by Paycorp; and

it has relied on its own skill and judgment or the skill and judgment of its own advisers or both, in relation to the e-commerce enablement of its Web Site (other than in respect of the Set-Up Services, the operation of the Paycorp Enabling Software and the Paycorp Service, and the compatibility and Communication of the Merchant Interface with the PES and the Paycorp Service).
5. Merchant’s Relationship With Customers

Paycorp is not responsible for the performance by a Customer of its obligations to the Merchant or for the performance by the Merchant of its obligations to a Customer under any contract with a Customer.

The Merchant is responsible for resolving any dispute between it and a Customer in respect of any contract between the Merchant and the Customer and is responsible for resolving any dispute between it and a Customer that relates to any Transaction that has been processed using the Paycorp Service.

If a dispute arises between the Merchant and its Customer that relates to any Transaction that has been processed using the Paycorp Service, Paycorp will provide reasonable information and assistance to the Merchant in respect of that Transaction.

The Merchant acknowledges and agrees that Paycorp does not verify the identity of any Customer or its entitlement to use the Credit Card which is the subject of a Transaction.

6. General Obligations

Each party shall act honestly and faithfully towards one another, and will not do anything to cause the other party’s name or reputation to be brought into disrepute in respect of any matters that are the subject of this agreement.

Each party must notify the other in writing immediately it becomes aware of any fraudulent activity involving the Merchant Interface, the Paycorp Enabling Software, or the Paycorp Service.

The Merchant and Paycorp must comply with the Operating Procedures during the Term.

If Paycorp notifies the Merchant of a change to the Operating Procedures in accordance with this agreement, then the Merchant’s continued use of the Selected Services after that change to the Operating Procedures takes effect will be construed to be the Merchant’s acknowledgement that it is aware of the changed Operating Procedures and its agreement to comply with them. If the Merchant does not agree to comply with the changed Operating Procedures it may terminate this agreement without penalty, by 30 days written notice to Paycorp.

7. Paycorp’s Obligations

Paycorp will provide the Operating Procedures, the Security Procedures and PES Specifications to the Merchant immediately on execution of this agreement. Where the Operating Procedures, the Security Procedures or the PES Specifications change, Paycorp will notify the Merchant of the change, and promptly provide the Merchant with the changed documents, in accordance with this agreement.

Paycorp will, so far as the Transactions are within its control, ensure that Transactions are processed in real time, consistently with the Merchant’s reasonable expectations. Paycorp will provide and maintain throughout the Term, processing capacity that is adequate to accurately process the volume of Transactions reasonably expected by the Merchant to be initiated by Customers.

Paycorp will, upon receipt, test the authenticity of the origin of all Transaction Requests using the Digital Key. If the Transaction Request is authenticated using the Digital Key, Paycorp will promptly Communicate the corresponding Transaction Reference to the Merchant. The absence of a Transaction Reference will be conclusive evidence that the Transaction Request was either not authenticated or was not received by Paycorp. Where a Transaction Request cannot be authenticated using the Digital Key, Paycorp will promptly communicate that fact to the Merchant, and must not proceed with processing the Transaction.

Where a Transaction Request is authenticated using the Digital Key, Paycorp will promptly conduct Validity Tests on the Transaction Data. Paycorp will communicate the Relevant Transaction Data to the Acquirer if and only if all the Validity Tests are passed. Paycorp will immediately communicate to the Acquirer such of the Transaction Data which the Acquirer requires in order to process the Transaction which is the subject of the Transaction Request. If the Transaction Data fails any of the Validity Tests Paycorp will immediately communicate this failure to the Merchant, and must not communicate any of the Transaction Data to the Acquirer. Subject to this and the foregoing paragraphs, Paycorp is not responsible for verifying the content of the Transaction Data.

The Acquirer will normally Communicate notification to Paycorp of whether the Transaction Request has been approved or not. Paycorp will promptly upon receipt, Communicate the Acquirer’s response to the Merchant. If the Acquirer fails to respond to a Transaction Request within the time specified in the Operating Procedures, Paycorp will immediately communicate this failure to the Merchant.

Paycorp will keep and maintain a full and accurate Transaction Log which may be accessed by the Merchant at the Merchant’s request.

Paycorp will provide the Selected Services with all reasonable care, skill and attention, in a prompt and professional manner, and using suitably skilled, trained and qualified personnel.

Having regard to the exigencies of computer and telecommunication networks Paycorp is not responsible for :

subject to clause 4.2(a), data loss or misappropriation while it is being Communicated;

any internet or telecommunication connection being unavailable or not operational;

the speed at which Communications occur; or

any other event outside of Paycorp’s infrastructure which prevents Paycorp providing the Paycorp Service and which occurs beyond Paycorp’s reasonable control.

i. To the extent that is reasonably and commercially practical, Paycorp will do all things necessary
to ensure that the Paycorp Service will be available 24 hours a day, seven days a week.
Paycorp will provide at least 7 days prior notification to the Merchant of any scheduled downtime,
and must ensure that any scheduled downtime occurs outside of Business Hours. Paycorp
shall notify the Merchant as soon as practicable upon the occurrence of any unscheduled
downtime, and shall take all reasonable steps to ensure that the duration of any unscheduled
downtime is as short as possible.

j. In the event or act that Paycorp cannot provide the Merchant the services outlined within this
merchant agreement, Paycorp shall notify the Merchant as soon as practicable upon the
occurrence. If services provided by Paycorp are rendered unusable for greater than 3 business
days, Paycorp may be liable for a percentage of revenue lost from the time the service was
unusable until functional.

k. Paycorp is not responsible for anything done or omitted to be done by the Acquirer or a Card
Issuer unless such act or omission arises as a consequence of any wrongful or unlawful act or
omission or breach of this agreement by Paycorp.

8. Paycorp Enabling Software

Paycorp grants to the Merchant a licence to install and use the PES on or subject to the conditions set out in clause 9(b).

Under the licence, which is granted by Paycorp to the Merchant in respect of the PES, the Merchant is entitled:

to use the PES on a non-exclusive basis;

to use the PES during the Term;

to install and use the PES on the production server on which the Merchant Interface is installed;

to make one backup copy of the PES which the Merchant is entitled to use for the purpose of replacing the original where the original has been irretrievably lost or damaged;

to install one copy on a development server and to use that copy for the purpose of conducting test transactions; and

to receive bug fixes, releases and upgrades of the PES which may be released from time to time by Paycorp.

The Merchant must not for any reason:

copy, display, transfer, adopt, modify or distribute the PES except as may be authorised by this agreement or by Paycorp in writing;

reverse assemble, reverse compile, decode, reverse engineer or translate the PES; or

Sub-license, assign or lease the PES to any party without prior written approval from Paycorp.

d. On expiry or termination of this agreement the Merchant must remove all copies of the PES which
it is using in accordance with this licence and destroy all other copies of the PES or return them
to Paycorp in accordance with Paycorp’s written directions.

e. Paycorp will respond to any request for information or advice made by the Merchant during Business
Hours in relation to its use of the PES, provided that the request is made by telephone, facsimile or
email to the number or address provided by Paycorp for this purpose.

f. During the Term, Paycorp may release new releases or upgrades, if any, of the PES, to improve the functionality or to address errors or bugs in the PES or the Paycorp Service. If Paycorp releases an
upgrade of the PES and identifies it as being a mandatory upgrade, then the Merchant must install
the upgrade within 60 Business Days of receipt of the upgrade from Paycorp unless in the opinion
of the Merchant the upgrade would cause the Merchant unreasonable time and expense, in
which case, the Merchant must notify Paycorp and the parties shall enter into good faith negotiations to
resolve the matter.

g. Paycorp is not obliged to provide the PES support described in clause 10(d) if the request made by the Merchant arises: (i) from neglect or misuse of the PES by the Merchant; or (ii) from use by the
Merchant other than ordinary use in accordance with the Operating Guidelines; or (iii)
from modifications made to the PES by a person other than Paycorp or a person authorised by Paycorp;
or (iv) after the Merchant was required to have installed an upgrade but has not done so.

9. Support Services

Paycorp will provide telephone support to the Merchant in connection with the PES and Paycorp Service between the hours of 9 am and 5.00 pm on Business Days. Paycorp shall use its best endeavours to respond to support requests within 60 minutes.

On becoming aware of (or being notified in accordance with this clause of) a fault in the operation of the PES or the Paycorp Service, Paycorp will use all reasonable commercial efforts to restore the PES or Paycorp Service as soon as possible.

In notifying faults to Paycorp the Merchant must comply with the Operating Procedures.

In the event that Paycorp determines that the Merchant has requested Paycorp to correct a fault with the PES which was caused by:

neglect or misuse by Merchant;

operation of the PES other than in accordance with the PES Specifications;

modifications or alterations made to the PES by a person other than Paycorp or a person authorised by Paycorp; or

incompatibility between the PES and any software or hardware not supplied or specified in writing as compatible by Paycorp,

Paycorp will provide those services at Paycorp’s standard time and materials rates which are applicable at that time and which are payable in accordance with this agreement on provision of a valid Tax Invoice.

10. Provision Of Set-Up Service

Prior to the Commencement Date, Paycorp will provide the Set-Up Service to the Merchant, which Service Paycorp warrants has and will comply with the provisions of this agreement.

Upon successful provision of the Set-Up Services, evidenced by the ability to successfully and accurately Communicate and authenticate a Transmission Request and receive and process an appropriate Transaction Response, Paycorp may invoice the Merchant for the Set-Up Fee, which shall be payable in accordance with this agreement.

11. Security Procedures

The Merchant and Paycorp must each comply, and must each ensure that each of their respective employees and contractors in using or providing the Selected Services (as the case may be) complies, with the Security Procedures.

The Merchant’s continued use of the Selected Services after the implementation of a change to the Security Procedures that has been notified by Paycorp to the Merchant in accordance with this agreement will be construed to be the Merchant’s acknowledgement that it is aware of the changed Security Procedures and its agreement to comply with them unless the Merchant has notified Paycorp to the contrary within 14 days of receipt by the Merchant of Paycorp’s notification. If the Merchant does not agree to comply with any changes to the Security Procedures, it may terminate this agreement without penalty, by giving Paycorp at least 90 days written notice.

Paycorp warrants to the Merchant that :

Paycorp will take all commercially reasonable steps to ensure that its systems utilised for the provision of Selected Services are protected from such viruses, and to ensure that the Merchant’s systems are not infected with any such virus as a result of the use of the Paycorp Services or the PES;

the Security Procedures have been prepared and will be maintained in accordance with industry practice (having regard to the nature of data being Transmitted and processed under this agreement), to protect against fraudulent Transactions or Transaction Requests, interception interference monitoring forgery or theft of any Transaction Data or other data relating to a Customer, a Credit Card, the Merchant, a Transaction or a Transaction Request, whether resident in the Paycorp Service, stored within Paycorp’s infrastructure, contained within the Transaction Log or in the process of being Communicated between Paycorp on the one hand, and the Merchant, Acquirer or Card Issuer on the other.

12. Chargebacks

The Merchant is responsible for any and all Chargebacks which are issued for any Payments taken using a Merchant facility which credits the Merchant’s nominated Settlement account. As well as any fines, assessments and fees related to or arising out of such Chargebacks.

It is the Merchant’s responsibility to liaise with the cardholder issuing the Chargeback in order to attempt to resolve the dispute.

Paycorp Shall advise the Merchant via email when we receive notice from our Partner bank of any chargebacks relating Payments processed by the Merchant. Paycorp will supply sufficient information to the Merchant to identify the original transaction.

Should the Chargeback be unresolved, Paycorp will direct debit the Merchant’s nominated Settlement account for the same amount as the Chargeback. Should the debit be unsuccessful, Paycorp reserves the right to deduct the amount of the Chargeback from the Dispersal total to be credited to the Merchant’s Nominated Settlement Account.
13. PCI Compliance

It is Paycorp’s responsibly to ensure that the services it provides are PCI compliant.

The Merchant may request to sight Paycorp’s Attestation of Compliance or Compliance Certificate at any time.

The Merchant is responsible for security and compliance of their own environment.

It is the Merchant’s responsibility to ensure that they correctly implement Paycorp’s products.

14. Dispersal of Funds

Paycorp will Disperse funds to the Merchant nominated account overnight, according to the settlement day determined by the sponsoring bank and by the dispersal arrangement Agreed to between Paycorp and the Merchant.

Paycorp will only disperse on business days.

Payments made with an American Express card will disperse separately to Visa and MasterCard payments.

American Express Payments will be dispersed net fees. The agreed Merchant Service Fee will be deducted form the dispersal amount prior to it crediting the nominated merchant account.

If the amount of refunds for a given settlement is greater than the amount of purchases, then Paycorp will withhold the negative settlement until a positive settlement to the account will be made. If a month passes without the net value exceeding zero, then Paycorp will debit the Merchant account for the outstanding amount.

Paycorp reserves the right to delay Dispersal where there is payment interruption affecting settlement, funds have settled short or there is other reasonable cause to delay Dispersal to the Merchant.

15. Updates to this agreement

Paycorp may, after giving 14 days written notice, modify or update these Terms and Conditions of use.

16. Calculation And Payment Of Service Fees

All fees and charges are shown Excluding GST.

Paycorp will invoice the Merchant monthly in arrears for the Service Fees due and payable by the Merchant to Paycorp. Paycorp will provide the Merchant with a Tax Invoice that complies with the GST Act, and which contain such information and detail as the Merchant reasonably requires, enabling the Merchant to account for the services referred to in it.

The Merchant will pay all validly rendered Tax Invoices within fourteen days of receipt.

Paycorp is entitled to vary the Service Fees upon any renewal of this agreement for an additional term under clause 3.2 provided Paycorp has provided 60 days written notice of the proposed variation to the Merchant and the Merchant has not disagreed in writing to the variation.

17. Goods And Services Tax

In this clause14:

(i) “GST” means GST as defined in the GST Act or any replacement or other relevant legislation and regulations;

(ii) words used in this clause which have a particular meaning in the “GST law” (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;

(iii) any reference to GST payable by a party includes any corresponding GST payable by the representative member of any GST group of which that party is a member; and

(iv) if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.

Unless GST is expressly included, the consideration expressed to be payable under any other clause of this agreement for any supply made under or in connection with this agreement does not include GST.

To the extent that any supply made under or in connection with this agreement is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.

Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this agreement.

If a payment to a party under this agreement is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST pursuant to clause 14(c).

18. Intellectual Property

For the avoidance of doubt, all Intellectual Property Rights subsist in the Paycorp Service and the PES and any documentation or copies of documentation or information relating to the Paycorp Service and the PES remains vested in Paycorp or the person who has licensed or authorised Paycorp to use that Intellectual Property.

19. Confidentiality

Each party acknowledges that the Confidential Information of the other party is valuable to the other party and undertakes to:

keep the Confidential Information of the other party secret and to protect and to preserve the confidential nature and secrecy of the Confidential Information of the other party; and

not use the other party’s Confidential Information for any purpose other than to perform this agreement.

A party may disclose Confidential Information of the other party:

as required by law;

to an officer or an employee of the first mentioned party requiring the information for the purposes contemplated by this agreement;

to a contractor of the first mentioned party requiring the information for the purposes contemplated by this agreement; or

to its legal advisors in order to advise the first mentioned party in relation to its rights under this agreement,

but in each case, only to the extent necessary for the relevant purpose and in the case of a contractor, subject to the execution by that person of a confidentiality agreement containing terms similar to the terms of this clause 17.

Subject to clause 17(d), each party must, upon the expiry or termination of this agreement, return or destroy all Confidential Information of the other party in its possession or control promptly upon request.

Confidential Information excludes information:

that is in or enters the public domain other than through breach of this agreement or through the unauthorised disclosure of the Confidential Information by a third party; or

that a party can establish was already known to it prior to disclosure or receipt of the information from the other party, or was learned from another party, without an obligation of confidence.

20. Termination

Notwithstanding any other clause of this agreement, either party may immediately terminate this agreement by giving written notice to the other party if that other party:

is fraudulent;

commits a breach of clause 17;

commits a breach of this agreement (that is non-fraudulent) other than a breach of clause 17, and fails to remedy the breach within 20 Business Days of receiving written notice from the other party specifying the breach and requiring the breach to be remedied;

is or is deemed to be insolvent; or

enters into liquidation except for the purpose of solvent amalgamation or reconstruction, or has an administrator appointed;

disposes of the majority of its business, or merges with, or a controlling interest is acquired by a third party without the prior written consent of the other party;

ceases to carry on business; or

has a receiver appointed or enters into any scheme or arrangement with its creditors or takes the benefit of insolvency or bankruptcy.

The Merchant may terminate this agreement at any time by giving Paycorp at least 60 days written notice to that effect.

Upon the termination of this agreement the Merchant’s right to use the Paycorp Service ceases, and Paycorp will cease to communicate any Transaction Data to the Acquirer.

After the termination (or expiry) of this agreement the Merchant is entitled to continue to access the Transaction Log for a period of thirty Business Days at no cost to the Merchant. Thereafter Paycorp will deliver a complete and accurate copy of the Transaction Log to the Merchant in a comma separated format (CSV).

21. Suspension

Paycorp is entitled to suspend provision of the Services by giving written notice to the Merchant if:

the Merchant commits a breach of a material provision of this agreement and has failed to remedy the breach within 20 Business Days of receiving written notice from Paycorp specifying the breach and requiring the breach to be remedied – even if this agreement has not been terminated;

it is necessary to suspend the Service as a result of a change to any Scheme Rules;

it is necessary to do so as a result of a change in the law or any statute regulating the provision of the Services; or

Paycorp, after using all reasonable endeavours, ceases to be able to Communicate with the Acquirer or the Acquirer ceases to be able to Communicate with the Credit Card Issuer as the result of action taken by the Acquirer or Credit Card Issuer respectively (other than as a result of default or negligence on the part of Paycorp).

If Paycorp suspends the provision of Services then it will contact the Merchant to discuss the reasons for the suspension and use all reasonable commercial efforts to resolve the cause of the suspension, but if the parties are unable to resolve the cause of the suspension within 20 Business Days Paycorp or the Merchant is entitled to terminate this agreement by notice in writing to the other.

22. Information and Privacy

Paycorp will store the Transaction Data which it receives from the Merchant during the Term.

Paycorp acknowledges and agrees that:

it may maintain the Transaction Data which it collects solely for the purposes of performing the Selected Services and that Paycorp is only permitted by the Merchant to use the information for that purpose, provided that in doing so it does not disclose any Transaction Data (including any information which might identify the Credit Card number of a Customer or the financial transactions undertaken by the Customer) to any party other than the authorised representatives of the Merchant or the Merchant’s Acquirer;

it will comply with the provisions of all applicable Privacy Laws, and the Merchant’s own privacy policy (as notified in writing by the Merchant from time to time) in the collection, storage, handling and use of any “personal information” (as defined in the Privacy Laws) forming part of the Transaction Data.

23. Indemnity

The Merchant must indemnify and keep indemnified Paycorp and its officers, directors, shareholders and employees (collectively, “the indemnified parties”) against all claims, expenses, demand, loss, damage or liability, scheme fees & scheme fines, including reasonable legal fees and costs arising out of any action or claim against any indemnified party relating to:

any breach by the Merchant of its obligations under this agreement; or

any negligent acts or omissions by Merchant or any of its officers, directors, shareholders or employees.

any compromised cardholder data which can be traced back to the Merchant’s environment or Merchant Facility.

Paycorp must indemnify and keep indemnified the Merchant and its officers, directors, shareholders and employees (collectively, “the indemnified parties”) against all claims, expenses, demand, loss, damage or liability, including reasonable legal fees and costs arising out of any action or claim against any indemnified party relating to:

any breach by Paycorp of its obligations under this agreement; or

any fraudulent or negligent acts or omissions by Paycorp or any of its officers, directors, shareholders or employees.

24. Limitation Of Liability

Where conditions, warranties or other rights for the benefit of the Merchant are implied or given in respect of this agreement by the Trade Practices Act, 1974 or other laws and where it is not lawful or possible to exclude them, then those conditions, warranties or other rights apply to this agreement, but only to the extent required by law. All other implied conditions, warranties and rights, together with any implied by custom or other circumstances are excluded.

Paycorp limits its liability for breach of any implied condition, warranty or right referred to in clause 21(a) to the extent allowed by law.

Where conditions, warranties or other rights for the benefit of Paycorp are implied or given in respect of this agreement by the Trade Practices Act, 1974 or other laws and where it is not lawful or possible to exclude them, then those conditions, warranties or other rights apply to this agreement, but only to the extent required by law.

The Merchant limits its liability for breach of any implied condition, warranty or right referred to in clause 23(c) to the extent allowed by law.

25. Force Majeure

Neither party will be liable for any failure to perform, or for any delay in performing, any of its obligations under this agreement where that failure or delay is occasioned by strike or other industrial action, difficulty in procuring materials, shortage of labour, failure or delays by suppliers or contractors, legislative, governmental or other prohibitions or restrictions, fire, flood, earthquake, hostilities, commotions or other causes whatsoever beyond such party’s reasonable control. A party prevented or delayed by such a cause from performing an obligation under this agreement must take reasonable steps to remove the cause, or minimise its effects, as soon as reasonably possible.

26. Dispute Resolution

Unless a party to this agreement has complied with clauses 23(b) to (d), that party may not commence court proceedings or arbitration relating to any dispute arising from this agreement except where that party seeks urgent interlocutory relief, in which case that party need not comply with this clause before seeking such relief. Where a party to this agreement fails to comply with clauses 23(b) to (d), the other party need not comply with this clause before referring the dispute to arbitration or commencing court proceedings relating to that dispute.

A party to this agreement claiming that a dispute has arisen under this agreement must give written notice to the other party designating as its representative in negotiations relating to the dispute a person with authority to settle the dispute and the other party must, within three Business Days, give notice in writing to the first party in the dispute designating as its representative in negotiations relating to the dispute a person with similar authority.

The designated persons must, within ten Business Days of the last designation required by clause 24(b), following whatever investigations each deems appropriate, undertake good faith discussions to resolve the dispute.

If the dispute is not resolved within the ten Business Days referred to in clause 24(c) (or within such further period as the representatives may agree is appropriate) the parties must attempt to settle the dispute by the process of mediation. Within a further period of ten Business Days (or within such further period as the representatives may agree is appropriate), the parties must select a mediator from a list of three names provided by the Australian Commercial Dispute Centre (“ACDC”) or similar organisation but, failing agreement as to the mediator, the Chief Executive Officer of the ACDC will select the mediator and determine the mediator’s remuneration and seek to resolve the dispute through the process of mediation.

The parties acknowledge that the purpose of any exchange of information or documents, or the making of any offer of settlement pursuant to this clause is to attempt to settle the dispute between the parties. No party may use, directly or indirectly, any information or documents obtained through the dispute resolution process established by this clause for any other purpose than in an attempt to settle the dispute between that party and the other party to this agreement after the expiration of the time established by or agreed under clause 24(d) for agreement on a dispute resolution process, any party which has complied with the provisions of clauses 24(b) to (d) may in writing terminate the dispute resolution process provided for in those clauses and may then refer the dispute to arbitration or commence court proceedings relating to the dispute.

27. Notices

Any notice given in connection with this agreement must be in writing and must be delivered by hand or sent by facsimile or pre-paid post addressed to a party at that party’s address as set out in this agreement or such other address as may be notified for the purpose of the service of notice.

If a notice is sent by post, the date of service shall be deemed two Business Days after the date of posting; if sent by facsimile, the date of service shall be deemed to be the date when the facsimile transmission has been completed successfully. A notice that is delivered after 4 pm on a Business Day is deemed to have been served at 9 am the next Business Day.

28. Assignment

Neither party may assign novate or otherwise deal with this agreement without the prior written consent (which may not be unreasonably with held) of the other party.

29. Survival of Clauses

Clauses 10(d), 16, 17, 10(d), 18(c), 18(d), 20, 21, 22, 24 and this clause 27 survive the termination of this agreement.

30. General

This agreement may only be varied by agreement of the parties in writing, whereby the party which intends to make a change must provide in writing a notice of change within 20 business days.The Merchant and Paycorp must do all acts, and execute all documents necessary to implement or enforce the provisions of this agreement to give effect to the intentions of the parties as expressed in this agreement.

Even if a part of this agreement is for any reason invalid or unenforceable, the remaining part remains in full effect as if each party had signed it without the invalid part.

No waiver of any breach of these provisions will be effective unless such waiver is in writing and signed by the parties to this agreement against whom such waiver is claimed. No waiver of any breach will be deemed to be a waiver of any other or subsequent breach.

This agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of that State.

Selected Services

Paycorp will provide to the Merchant :

Set-Up Services

Paycorp Services- Technical Support

Support Services.

Paycorp Services – Technical Support

The Company will provide You with technical support on setup of your account, The Company issued software used for connecting with the Company Service at no additional charge. The Company will not provide development-related support for any applications, scripts, or components from third parties or those developed by You.

Support Services

Phone support is available Monday through Friday, excluding national holidays, from 9 am to 5 pm AEST. Email support is available Monday through Friday, excluding national holidays, from 9 am to 5 pm AEST and a response is returned to you during business hours. Please be prepared to provide a full description of the problem and your account username.

Premium Paycorp Support Services

Customer Support

This includes support for bank-related issues such as merchant account related issues, Response code questions, Settlement questions and general assistance with navigation of online reports

Technical Support

This includes support for technical issues such as Implementation and ongoing support of Technical interfaces including Web Services, Response code mapping and Technical assistance with online reporting, 24/7 Standard support for all operations and departments

Clubfit uses AWS as its preferred data Security platform

Why is Clubfit using Amazon Web Services (AWS)?

AWS provides highly reliable and scalable infrastructure to support computing power, database management, load balancing, data storage, backup and other related services. They have established data centres around the globe including Australia, the US, Europe, Brazil, Singapore and Japan and within those locations multiple physical locations for full redundancy.

In addition, there is a rich and vibrant ecosystem of 3rd party tools and value-added services for managing AWS deployments that Clubfit can also use to ensure that Clubfit is a reliable and robust service that our clients can depend on to run their business.

Where is Clubfit physically hosted?

Clubfit is hosted in the AWS Sydney Datacentre which has been in operation since 2012. The Sydney datacentre is the eighth global datacentre and is based on the successful design of other datacentres that stretches back to 2008. For our clients in New Zealand and Australia, this means that your data is regionally hosted and provides the fastest connection times and lowest response times compared to services hosted outside Australia such as the US or Europe.

Infrastructure

Clubfit utilises AWS services to ensure that a high redundancy, high availability infrastructure is in place for our clients. This is essential in being able to provide a service that can seamlessly cope with any number of potential infrastructure issues so that Clubfit is available whenever you need it. We use AWS servers (EC2 and RDS) across multiple availability zones (AZ) within the Australian region.

Availability zones are isolated from each other by ensuring that each zone uses different providers and connections. This means that a problem with a utility provider would only affect a single zone leaving other zones to continue to operate thereby not impacting a client’s use of Clubfit.

How Secure Is Clubfit?

Clubfit hosting has also been designed with security in mind to ensure that only authorised persons have access to the hosting service.

Physical Security

As the Clubfit infrastructure is housed in the Amazon Web Services data centres, there physical access is highly secure. Amazon’s data centres use state-of-the-art electronic surveillance and multi-factor access control systems. Data centres are staffed 24×7 by trained security guards and access is authorised strictly on a least privileged basis.

Network Security

Not only are your applications and data protected by highly secure AWS facilities and infrastructure, but they’re also protected by Amazon’s extensive network and security monitoring systems.

These systems provide basic but important security measures such as distributed denial of service (DDoS) protection and password brute-force detection on AWS Accounts. Access to the AWS infrastructure that Clubfit utilises is secured by multi-factor authentication as well as being network IP address locked so that access is only possible Data Centre and Architecture from one of the Clubfit offices. In combination, this level of security ensures that only authorised Clubfit staff have access to managing the hosting infrastructure.