This agreement is in between POSTECH INTERNATIONAL PTY LTD (ACN 636 735 576) of Unit 14, 885 Albany Highway, East Victoria Park in the State of Western Australia (“ Supplier ”) and You (Merchant) on the day of registering the store on the aipos platform.
A. The Supplier is the developer and owner of an online Point of Sale System known as Aipos (“POS”).
B. The Merchant seeks to use the POS, as part of its operation of its business.
C. The Supplier has agreed to grant the Merchant access to and use of the POS on the terms and conditions as contained in this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
1.1. Definitions :
Commencement Date means the date when the store is registered on the aipos website.
Confidential Information means information, which is by its nature confidential, but does not include:
(a) Information already known to the receiving party at the time of disclosure by the other party; or
(b) Information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Merchant means the merchant identified at Item 1 of the Schedule attached to this Agreement, and any of its assigns, successors, subsidiaries, agents, employees, representatives, officers, directors, affiliated entitles and/or related bodies corporate.
Merchant Location means the Location at which the POS Hardware will be installed and accessed by the Merchant.
Merchant Resources means the data and information as per clause 12.2 which is entered by the Merchant into the System.
POS Software means the point-of-sale system developed and owned by the Supplier known as aipos.
POS Hardware means the hardware terminal provided by the Supplier to the Merchant, which is loaded with the POS System and through which the Merchant can access the POS System.
Rental Period means the period in which the Merchant is leasing the POS Hardware.
Rental Fee means the monthly fee payable by the Merchant to the Supplier for the POS Hardware.
Supplier means POSTech International Pty Ltd and any of its assigns, successors, subsidiaries, agents, employees, representatives, officers, directors, affiliated entitles and/or related bodies corporate.
System means the POS and the POS Hardware and any of the Supplier’s technical infrastructure, or any component thereof, as varied from time to time.
1.2 Interpretation :
(a) Words importing the singular include the plural and vice versa. Any gender includes other genders. Any reference to a person includes a reference to a corporation, firm, authority, government or governmental agency.
(b) A reference to any dollar value is Australian dollars.
(c) A reference to legislation or a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or re-enactments of that legislation or legislative provisions and any legislation or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.
(d) The clause headings in Agreement are for reference purposes only and do not in any way influence or affect the meaning of this Agreement.
(e) A reference to any deed, agreement, licence, document or other instrument, including this Agreement, includes a reference to that deed, agreement, licence, document or other instrument as renewed, extended, novated, varied or substituted from time to time.
(f) A reference to any party to this Agreement or to any other deed, agreement, licence document or other instrument required under this agreement or for the purposes of this agreement includes that party’s executors, administrators, substitutes, successors and permitted assigns.
(g) Where under or pursuant to this Agreement or anything done under this Agreement the day on or by which any act, matter or thing is to be done is not a business day, such act, matter or thing must be done on the immediately succeeding business day.
(h) Where under or pursuant to this agreement or anything done under this agreement the day on or by which any act, matter or thing is to be done is the 30th day of any month. If that day does not occur in a month, the act, matter or thing must be done on the last day of that month.
(i) References to clauses are references to clauses in this Agreement.
(j) A reference to winding up or bankruptcy includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Act) and to the circumstances and events giving rise to or contributing to these matters.
2. ACCESS TO POS & LEASE OF POS HARDWARE
(a) The Supplier and the Merchant agree that the Supplier will grant the Merchant a license to use the POS and the POS Hardware on the terms and conditions as contained in this Agreement.
(b) The Merchant agrees that where it has not purchased the POS Hardware outright, it shall pay to the Supplier the Rental Fee for the POS Hardware.
(c) Subject to the Merchants due and proper compliance with its obligations as contained in this Agreement, the Merchant is authorised to access the POS and use the POS Hardware, for the duration of this Agreement.
(d) Where the Merchant has not purchased the POS Hardware outright, upon the expiry of the Rental Period, or earlier determination of this Agreement, the Merchant shall return the POS Hardware to the Supplier within 7 Business Days from the date of expiry of the Rental Period, or earlier determination of this Agreement, whichever applies, in accordance with the remaining provisions of this Agreement.
(e) The Merchant acknowledges that the Supplier retains all right and title to the System, and that the Merchant has rights to possess the POS Hardware as a mere bailee, until the POS Hardware is paid for in full.
3. TERMS & CONDITIONS APPLICABLE TO USE & POSSESSION OF THE SYSTEM
(a) The Merchant agrees that these terms and conditions apply in addition to the terms and conditions as published on the Supplier’s website relating to the use of the POS and any related application, as varied from time to time.
(b) The Merchant acknowledges and agrees that there will be additional terms and conditions applicable to the Merchant’s use of the POS, including, without limitation terms and conditions applicable regarding the Merchant’s subscription to use POS. The Merchant acknowledges and agrees that where the context permits, those terms and conditions form part of this Agreement, unless prohibited by law or statute.
(c) The Merchant acknowledges and agrees that by maintaining possession of the POS Hardware, or retaining any data, whether in hard copy or electronic form, from the POS or component of the System, the Merchant shall be required to comply with the obligations imposed on the Merchant, applicable to such data, as contained in this Agreement.
4. RENTAL FEE FOR POS HARDWARE & OTHER CHARGES
(a) Where the Merchant is leasing the POS Hardware, the Merchant shall be liable to pay the Rental Fee to the Supplier, for the POS Hardware, in accordance with these terms and conditions.
(b) The Merchant agrees to pay to the Supplier any Additional Charges that may be payable by the Merchant to the Supplier, in accordance with the terms and conditions of this Agreement. The Merchant agrees that any Additional Charges which may be payable and not paid, are payable by the Merchant within 7 days of receiving Notice of a written Demand by the Supplier.
5. MONTHLY SUBSCRIPTION FEES FOR USE OF POS
(a) Access to the POS Software is based on a monthly subscription, to be maintained by the Merchant.
(b) The Merchant agrees that upon subscribing, it shall be liable to the Supplier for the monthly subscription fee applicable, at the time of subscribing and, as varied from time to time. The Supplier shall provide the Merchant with details subscription fee payable, on the aipos Portal, at the time of subscribing. The Merchant acknowledges and agrees that unless the Merchant cancels its subscription, in accordance with this clause, it undertakes to pay the monthly subscription fees applicable for each subsequent subscription period.
(c) The Merchant shall be responsible for maintaining its subscription and ensuring that its subscription is valid.
(d) The Merchant shall be responsible for cancelling its subscription, should it no longer wish to access and use the POS Software.
(e) Should the Merchant wish to cancel, or suspend its subscription, the Merchant bears sole responsibility for cancelling any automatic payments for the monthly subscription fee, no less than five (5) Business Days, prior to the next monthly subscription fee payment date.
(f) The Merchant shall not be entitled to a refund, in full or in part, as a result of the Merchant’s failure to cancel its subscription, in accordance with clause 5(e) above.
6. FEES FOR USE OF BRANDED MOBILE APPLICATION
(a) Where the Merchant has elected for access to the Branded Mobile Application then the Merchant agrees that it shall be liable to the Supplier for all Mobile Application Fees, which includes, without limitation, a commission payable to the Supplier for each order submitted through the Branded Mobile Application which is based on the dollar value of each order, a transaction fee, and payment gateway charges, as varied from time to time. The fees applicable at this stage is 6.75% + $0.10 on every transaction which includes the commission and payment gateway charges.
(b) The Supplier shall give notice in advance, to the Merchant of any variations to the Mobile Application Fees, which shall also be published on the Supplier’s website.
7. PURCHASE OPTION
(a) If the Merchant has leased the POS Hardware for a consecutive 12-month period, subject to the Merchant’s due and punctual performance of its obligations pursuant to these terms and conditions, the Merchant may be entitled to acquire title to the POS Hardware.
(b) The acquisition of the POS Hardware by the Merchant, in accordance with this clause, shall be subject to approval being given by the Supplier, such approval shall be at the Supplier’s sole discretion, and are subject to the Merchant agreeing to any further terms or conditions as required by the Supplier, on each occasion.
8. MERCHANT’S OBLIGATIONS & COVENANTS REGARDING POSSESSION AND USE OF POS DURING THE LEASE PERIOD
8.1 Merchant’s obligations to maintain POS Hardware in good condition
Whilst the Merchant is leasing the POS Hardware, the Merchant:
(a) must not tamper with the POS software and/or the POS Hardware in any way, including, without limitation, attempt to dismantle, repair, or make any modifications to the POS Hardware.
(b) must not attempt to copy, download or reconfigure the POS.
(c) must at all times keep and maintain the POS Hardware in proper working order and in good and substantial repair.
(d) must take all reasonable precautions to prevent any damage to the external housing of the POS Hardware which could affect the operation of the POS System.
(e) must undertake to report any damage to the POS Hardware to the Supplier, in writing, no later than 24 hours after becoming aware of the damage to the POS Hardware.
(f) must at all times comply with all directions from the Supplier in relation to the proper use and operation of the POS and POS Hardware, as varied from time to time.
(g) Ensure that the POS Hardware is stored securely at the Merchant’s Location and is accessed only by authorised persons of the Merchant.
8.2 Loss or Damage occasioned by the Merchant
(a) The Merchant shall be fully responsible to the Supplier for any loss of, or damage to the POS Hardware (however occasioned) which occurs during the period that the POS Hardware is in the possession of the Merchant, prior to the Merchant owning the POS Hardware.
8.3 Inspection of POS & POS Hardware
(a) The Merchant grants the Supplier the right, and will use its best endeavours to ensure that others grant the Supplier the right, at all reasonable times upon the Supplier giving the Merchant reasonable notice and without unduly interfering with the
Merchant’s operations to:
(i) enter with its servants, agents and experts upon or into the Location.
(ii) inspect the state of repair of the System.
(iii) carry out such tests on the System as may seem necessary to the Supplier.
(iv) observe the use of the System.
(v) inspect any maintenance records in respect of the System; and
(vi) do any act, matter or thing which may be required to be done to give proper effect to the terms of this Agreement, or to protect the Supplier’s rights in the System.
(b) In the case of an emergency, in the Supplier’s reasonable opinion, no notice will be required to be given by the Supplier to the Merchant under clause 4.3(a) and the prohibition in that clause on the Supplier unduly interfering with the Merchant’s operations will not apply.
8.4 No Unauthorised Dealings with the POS Hardware
The Merchant must not attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, let on hire, grant a security interest in, allow any lien or other encumbrance to arise in, or otherwise part with or attempt to part with the personal possession of or otherwise deal with, the POS, any part of the POS Hardware or any data contained or stored on the System. This clause survives the termination of this Agreement.
9. TRAINING FOR OPERATION OF POS SYSTEM
(a) The Supplier will provide the Merchant with training and directions on how to use the System.
(b) Should the Merchant experience any issues which affects the Merchant’s ability to continue operating the System, the Merchant may direct its enquiries to firstname.lastname@example.org or call on the number mentioned on the website.
(c) The Supplier will provide updated information and directions regarding use and operation of the POS System from time to time, notice of which shall be given to the Merchant, in writing, by email, using the contact details as provided by the Merchant.
(d) The Merchant shall bear sole responsibility for keeping the Supplier updated with its contact details for which the Supplier will give the Merchant notice of any updates or developments to the POS System.
10. EXCLUSION OF LIABILITY & INDEMNITIES
For the avoidance of doubt, this clause applies to the extent that it does not conflict with any obligation imposed by any applicable Commonwealth or State law which cannot be lawfully excluded by Agreement.
10.1 Use at the Merchant’s Risk
(a) The Merchant agrees to use the System at the Merchant’s risk. The Merchant agrees that the Supplier has no liability or responsibility for any loss or damage to the property or business operations of the Merchant. To the full extent permitted by law, the Merchant releases and discharges the Supplier, and its agents and employees from:
(i) All claims and demands on the Merchant; and
(ii) Any loss or damage whatsoever and whenever caused to the Merchant or its agents or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise,
(iii) arising directly or indirectly from or incidental to a breakdown of, or defect in, the System, or any accident to or involving the System or their use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Supplier or otherwise) or which may otherwise be suffered or sustained in, upon or near the System.
10.2 Indemnity against other costs and liabilities
The Merchant assumes liability for, and indemnifies and will keep indemnified, protected, saved and harmless the Supplier and its agents and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses legal or otherwise (including court costs and legal fees reasonably incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort):
(a) arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use (including by reason of the use or incorporation of any invention resulting in infringements of patents), repair, maintenance, storage, or operation of the System, and by whomsoever used or operated (except where used by the Supplier or any person on behalf of the Supplier).
(b) incurred by the Supplier in respect of any loss of the System by seizure, distress, execution or other legal process, confiscation or forfeiture of the System; or
(c) arising out of any claim for patent, trademark or copyright infringement, for strict liability, or for any other reason being made against the Supplier in connection with the System or their operation.
10.3 Limitation of Liability
(a) The Merchant acknowledges and agrees that the Supplier shall not be liable to the Merchant for any failure in the operation of the POS Hardware or POS Software.
(b) The Merchant acknowledges and agrees to the full extent permitted by law, the Supplier makes no warranty or representation whatsoever, in favour of the Merchant as to the suitability or fitness for ordinary or any special use or purpose of the System.
(c) The Merchant acknowledges and agrees, that under no circumstance will the Supplier be liable (whether before, or after the expiry or termination of this Agreement) for any loss or damage which the Merchant may suffer, arising from, or caused or contributed to by the Supplier’s negligence or the negligence of the Supplier’s servants or agents.
(d) The Merchant acknowledges and agrees that Merchant shall not be liable for special, indirect or consequential loss or damage as a result of a breach by the Supplier of this Agreement including but not limited to, loss of profits or revenue, the costs arising from the loss of use of the POS or the POS Hardware, and the costs of any substitute or replacement Point of Sale System which the Merchant acquires.
10.4 Survival of Indemnities
The indemnities and assumptions of liability contained in this will continue in full force and effect event though the termination of the Agreement, whether by expiration of time or otherwise as to any act or omission relating to the System occurring during the continuance of the Agreement which at any time is claimed to have created a cause of action against the Supplier or assumption of liability by the Merchant. The indemnities and assumption of liability against any claims for patent infringements will continue in full force and effect throughout the life of the System, notwithstanding any alterations or modifications to the System occurring after the termination of the Lease.
(a) Any warranty, condition, description or representation whether express or implied as to the description, state, quality, merchantability or fitness of the goods for the purpose for which they are provided is hereby excluded to the extent that Commonwealth, State and Territorial laws permit.
(b) If the Act or any other legislation implies a condition or warranty into this agreement in respect of goods supplied, and the Supplier’s liability for breach of that condition or warranty may not be excluded but may be limited, the Supplier’s liability for any breach of that condition or warranty is limited to the Supplier doing any of the following (at its election):
(i) In case of goods, any one of the following as determined by the Supplier:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of goods;
C. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D. the payment of the cost of having the goods repaired.
(ii) In the case of services, any one of the following as determined by the Supplier:
A. the supply of the services again; or
B. the payment of the cost of having the Supplier’s services supplied again.
10.6 No warranty as to accuracy
The Supplier does not warrant that the System is free from inaccuracies, defects or errors at any time. The Supplier does warrant that the System is substantially free of any known errors or defects that would substantially impede on its operation.
11. INTERRUPTION TO SERVICE & PERIODIC UPDATES
(a) The Merchant acknowledges and agrees that there may be temporary interferences with access to or use of the System where the Supplier is required to undertake any technical updates, or upgrades, or to fix any interruptions or errors interfering with the ordinary operation of the System.
(b) The Merchant acknowledges and agrees that any temporary interference with the System shall not automatically entitle the Merchant to any reduction in the Rental Fee payable, or result in any credit being applied in favour of the Merchant.
(c) Where a scheduled update to the System is anticipated, the Supplier will provide forty-eight (48) hours’ notice of the anticipated update to the Merchant, using the email address as provided by the Merchant.
12. CONFIDENTIAL INFORMATION
(a) The Merchant will treat all information supplied to it by the Supplier (including information comprised in the POS, accessed through the POS Hardware, or communicated by the Supplier to the Merchant during the term of the Agreement, as confidential, except to the extent that such information becomes public knowledge or is required, by law to be disclosed. The obligation contained in this clause survives the termination of this Agreement.
(b) The Merchant shall not, without the prior written approval of the Supplier, disclose any Confidential Information. The Merchant shall not be in breach of this clause, where it is legally compelled to disclose the Confidential Information.
(c) The Merchant shall take all reasonable steps to ensure that its employees, agents, and any sub-contractors, customers or persons who attend at the Merchant’s Location, who have access to the Supplier’s Confidential Information, do not make public or disclose the other party’s Confidential Information.
(d) This clause survives the termination or earlier determination of this Agreement.
13. RETENTION OF DATA & INTELLECTUAL PROPERTY RIGHTS
13.1 Intellectual Property Rights
(a) The Supplier retains ownership of all the Intellectual Property Rights in the System, and ownership of the System, as varied from time to time.
(b) The Merchant warrants that its use of the System will not infringe on the Intellectual Property Rights of any third party.
13.2 Retention of Data
(a) The Merchant acknowledges and agrees that the Supplier shall be entitled to retain the following data, provided by the Merchant and or entered into the POS, by the Merchant (“Merchant Resources”)
(i) Customer Base.
(ii) Customer Information.
(iii) Reporting Summary.
(iv) Processed Data.
(b) The Supplier shall not retain any title, right or interest in any of the following data, provided by the Merchant, during the course of the Merchant using the System:
(i) Merchant’s product names and descriptions.
(ii) Merchant’s product images.
(iii) Registration details.
(iv) Merchant specific transaction details.
(a) The Merchant warrants the provision of information deemed to be Personal Information, into the System, and the collection and retention of this information by the Supplier, pursuant to this Agreement, will not contravene the Australian Privacy Principles as contained in Schedule 1 to the Privacy Act 1988.
(b) The Merchant warrants that the Merchant has obtained all necessary consents from an individual, as required by law, for the Merchant to be able to disclose the information to the Supplier for the purposes as contemplated by this Agreement.
(c) To establish and manage the Merchant’s account and ongoing access to the System, the Supplier needs to:
(i) collect personal information about the Merchant in this Agreement and from other sources; and
(ii) obtain the Customer’s agreement in relation to handling this personal information.
(d) If the Merchant does not provide the information requested or give the Merchant’s agreement to this the Supplier will decline the Merchant’s application for access to the System.
(e) In accordance with the Privacy Act, the Merchant can access personal information about the Merchant held by the Supplier, and advise if the Merchant thinks it is inaccurate, incomplete or out of date.
(f) To arrange access to personal information about the Merchant, the Merchant must write to the Supplier requesting the personal information maintained by the Supplier. The Supplier shall endeavour to provide a response to the Merchant, at least 2 – 5 Business Days after receiving the request, however, shall not be liable to the Merchant, should a response be provided after this time.
(g) In this clause “personal information” means information about the Merchant, including about the Merchant’s financial circumstances, credit worthiness, credit history, credit standing, credit capacity, its use of the account with the Supplier.
(h) The Merchant agrees that, subject to the Privacy Act, the Supplier and its agents may do the following:
(i) Obtain credit reports about the Merchant from credit reporting agencies to assess its application for access and use of the System, or to collect overdue payments from it, and obtain personal information from a business that provides commercial credit worthiness information.
(ii) Disclose personal information to credit reporting agencies or any other person who enquires of the Supplier as to the Merchant’s credit worthiness before, during or after providing access to the System. This includes, but is not limited to:
A. the fact that it has applied for access to the System pursuant to this Agreement, and that the Supplier is providing access to the system on a rental basis.
B. advice about payment at least 60 days overdue and which are in collection (and advice that payments are no longer overdue).
C. advice that cheque(s) drawn by it or direct debit requests to the Supplier’s bank account which it has authorised the Supplier to make have been dishonoured more than once.
D. the Supplier’s opinion that the Merchant does not intend to meet or has not met its credit obligations or that it has committed some other serious infringement under this agreement; and
E. that credit provided to the Customer has been paid or otherwise discharged.
(i) Exchange personal information with credit providers named in this application or in a credit report issued by a credit-reporting agency. This is for purposes including but not limited to:
(i) assessing the Merchant’s credit worthiness, this application for credit and any subsequent application for credit by the Merchant.
(ii) notifying other credit providers of a default by the Merchant.
(iii) exchanging information about the Merchant’s account where the Merchant is in default with other credit providers.
(iv) the Supplier’s approval process as to any transactions the Merchant wishes to make; and
(v) the Supplier’s administration of the Merchant’s account.
(j) Exchange personal information with any person whose name the Merchant gives to the Supplier from time to time. This includes, for example, for the purpose of confirming the Merchant’s employment and income details with any employer, landlord, mortgagee, accountant, financial adviser or tax agent named in this application.
(k) Monitor and record the Merchant’s telephone conversations with the Supplier from time to time in order to train the Supplier’s staff and the Supplier’s service quality.
(l) The Merchant also agrees that where the Merchant has provided the Supplier with information about another individual in this application for, the Merchant will make sure that the individual is aware of:
(i) the Merchant supplying their information to the Supplier and the purposes why the Supplier has collected the information.
(ii) their ability to access that information in accordance with the Privacy Act (and to advise the Supplier if they think the information is inaccurate, incomplete or out of date); and
(iii) the Supplier’s contact details.
(m) If there are Guarantors, the Guarantors make the same agreement with the Supplier, as does the Merchant, as described in this clause.
15. VARIATION TO TERMS AND CONDITIONS
(a) The terms of this Agreement may be varied from time to time, should there be a variation to the terms of this Agreement, the Supplier shall give notice of the variation, in writing to the Merchant, by email transmission to the Merchant’s email address as provided by the Merchant to the Supplier.
(b) The Merchant may, after notice of the variation is deemed to have been served, may:
(i) Terminate this Agreement, in accordance with clause 14, provided that notice of Termination on the grounds of the variation to the Agreement, is given within 7 days of the Notice of Variation: or
(ii) Accept the variation by communicating its acceptance, or by conduct in continuing to use the POS and POS Hardware.
16.1 Event of Default
Each of the following events is an Event of Default, namely:
(a) if the Merchant fails to pay the Rental Fee or other moneys payable under this Agreement, on the due date for payment and such failure continues for more than one (1) Business Day.
(b) if the Merchant fails to perform or observe any of the covenants or provisions of this Agreement, and (if capable of remedy) such default continues for more than ten (10) Business Days (or such longer period as the Supplier in its absolute discretion permits) after notice from the Supplier requiring the Merchant to remedy the same.
(c) if the Supplier ascertains that the Merchant has made any false, inaccurate or misleading statements having a material effect in relation to the making of this Agreement.
(d) if an application for the winding up or bankruptcy of the Merchant or any Related Body Corporate is presented and the Merchant or the Related Body Corporate (as the case may be) cannot within ten (10) days reasonably satisfy the Supplier that the application is frivolous or vexatious or an order is made, or any resolution is passed, for the winding up of the Merchant or any Related Body Corporate provided always that it will not be an Event of Default where the winding up of the Merchant or the Related Body Corporate (as the case may be) is for the purpose of reconstruction or amalgamation and has the Supplier’s prior written consent (which consent will not be unreasonably withheld);
(e) if a receiver or receiver and manager or provisional liquidator of the undertaking or any part of the undertaking of the Merchant or any Related Body Corporate is appointed.
(f) if without the Supplier’s prior written consent, the Merchant or any Related Body Corporate suspends payment generally or ceases to carry on its business or is unable to pay its debts within the meaning of the Corporations Act (Cth).
(g) if without the Supplier’s prior written consent, the Merchant or any Related Body Corporate enters into any arrangement, reconstruction or composition with its creditors or any of them.
(h) if the Merchant or any Related Body Corporate appoints an administrator to the Merchant or the Related Body Corporate or begins any process in order to do so or if an inspector is appointed to investigate its affairs.
(i) if without the Supplier’s prior written consent (which consent will not be unreasonably withheld) the Merchant or any Related Body Corporate reduces its share capital or attempts to do so; or
(j) if, in the opinion of the Supplier, there is a material adverse change in the financial condition of the Merchant.
16.2 Consequences of Default
If an Event of Default occurs then, the Supplier at its option, may terminate the Agreement and the Merchant’s right to use the System, by notice in writing to the Merchant such termination in accordance with this clause is to take effect immediately. Upon service of such notice all rights of the Merchant to or in the use of the System will terminate and the Supplier may, directly or by its agent, take possession of the System. Any damages reasonably occasioned by the Supplier taking possession are expressly waived by the Supplier. Upon termination in accordance with this clause, the Merchant shall remain liable to the Supplier for all and any costs owing under this Agreement, including without limitation any Rental Fee.
17.1 Termination by written notice
(a) Either party may terminate this Agreement, by giving the other party (“Receiving Party”) 7 days written Notice of its intention to terminate the Agreement. Upon the expiry of 7 days’ Notice, the Agreement is deemed to be Terminated.
(b) Upon the Agreement being terminated, in accordance with clause 14.1(a) above, the Merchant is no longer authorised to use the POS or the POS Hardware, irrespective of whether or not the Merchant retains possession of the POS Hardware.
17.2 Monies Payable Upon Expiry or Termination of Rental Period
Upon the expiry or early termination of this Agreement, the Merchant shall be required to pay to the Supplier any and all monies owing by the Merchant to the Supplier under this Agreement, remaining unpaid as at the date of the expiry of the Rental period, in full, without any deduction or set-off whatsoever.
17.3 Return of System
(a) The Merchant must within 7 days of the expiry or earlier termination of this Agreement return the System to the Supplier, at the Supplier’s registered office, unless otherwise agreed or advised by the Supplier, in writing.
(b) Should the Merchant fail to return the System in accordance with this clause, then the Supplier may retake possession of the System. The Merchant agrees that the Supplier may, in accordance with this clause, without notice, liability or legal process, enter the Merchant’s Location for the purpose of repossessing the System, and may detach, or dismantle the System and remove it from the Merchant’s Location where the POS Hardware has been affixed.
(c) If the Supplier is required to remove the POS System in accordance with clause 10.2(b) above, the Merchant acknowledges and agrees that the Supplier shall not be liable for any damage that may be a necessary incidence of the Supplier removing the System from the Merchant’s Location.
17.4 Holding Over
If the Merchant retains possession of the System after the expiration or sooner termination of this Agreement, the Merchant must (without prejudice to the exercise by the Supplier of its rights, powers and remedies under this Agreement) continue to pay the Rental Fee for each 30 day period, or part thereof, that the Merchant is in possession of the System. The Merchant agrees that for any period that the Merchant retains possession
18. FORCE MAJEURE
For the purposes of this clause, Force Majeure Event means, without limitation, any of the following:
(a) earthquakes, fires or other physical natural disaster.
(b) acts of war, acts of terrorism, riots, civil or military disturbances, national or state-wide industrial dispute (excluding actions by, between or originated among employees of a party); and
(c) requisition or compulsory acquisition by any government or public authority which:
(d) is beyond the control of and has occurred without the fault or negligence of the party affected.
(e) was not foreseeable by the party affected at the date of this Agreement; and
(f) the affected party is unable to prevent or overcome by the exercise of reasonable diligence.
18.1 Suspension of obligations due to Force Majeure Event
If a party is affected, or likely to be affected by a Force Majeure Event:
(a) that party must immediately give the other party prompt notice of that fact including:
(i) full particulars of the Force Majeure Event.
(ii) an estimate of its likely duration; and
(iii) the obligations affected by it; and
(b) the obligations under this Agreement of the party giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event, and, subject to any other provision contained within this clause, such suspension will be effective for as long as the Force Majeure Event continues.
18.2 Efforts to Overcome
A party claiming that its ability to perform its contractual obligations is prevented or impeded by a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event.
(a) All notices which are required to be given under this Agreement, must be in writing and must be sent to the address of the recipient set out in the Schedule, or other address as the recipient may designate by notice, given in accordance with this clause.
(b) Any such notice will be deemed to have been served as follows:
a. If delivered by hand, at the time it is delivered.
b. If delivered by email transmission, when the email enters the recipient’s mail server.
c. If delivered by any other electronic communication such as text message, or mobile messaging application, when the message is deemed to have been delivered as recorded by the sender’s mobile application.
d. If delivered by post:
i. five (5) business days after it is posted, where the notice is sent from a location within the Commonwealth of Australia, and the receiving party’s address is located within the Commonwealth of Australia.
ii. twenty-five (25) business days after it is posted where the notice is sent internationally.
(a) This Agreement may consist of a number of counterparts, and if so, the counterparts taken together one and the same instrument.
21. NO WAIVERS
No failure, delay, relaxation or indulgence on the part of any Party in exercising any power or right conferred upon such Party in terms of this Agreement shall operate as a waiver of such power or right, nor shall any single or partial exercise of any such power or right nor any single failure to do so, preclude any other or future exercise thereof, or the exercise of any other power or right under this Agreement.
22. JOINT LIABILITY
The liability of two or more parties under this Agreement, and any one or other of them, is a joint liability of all of them, and a separate liability of each of them.
The warranties, other representations and agreements made by the Parties in this Agreement are continuing and will not merge or be extinguished by payment of any monies payable under this Agreement.
24. TIME SHALL BE OF THE ESSENCE
Time shall be of the essence and shall be an essential term in relation to the timing of the payments referred to in this Agreement.
(a) If any provision of this Agreement is, or at any time, becomes prohibited by or unlawful under any applicable law, or otherwise becomes void or unenforceable, it will be severed from this Agreement and rendered ineffective so far as possible, without having any effect on the remaining provisions of this Agreement.
(b) The remaining provisions of this Agreement will, to the extent permitted by the relevant law, regulation or other condition, continue in full force and effect.
26. ENUREMENT & ASSIGNMENT
(a) This Agreement shall be binding upon the Parties and their respective successors and permitted assigns and shall ensure to their benefit.
(b) The rights and obligations of each Party under this Agreement are personal. No Party may assign, encumber or otherwise deal with such rights and obligations without the prior written consent of all other Parties.
If any party (Trustee) has entered into this Agreement in the capacity of as trustee of any trust (Trust) under any trust deed, deed of settlement or other instrument (Trust Deed), and whether or not the other party has notice of the Trust, then the Trustee:
(a) Enters into this Agreement as trustee of the Trust as well as personally; and
(b) Represents and warrants that:
(i) the Trustee has power under the Trust Deed and, in the case of a corporation, under its constitution, to enter into and execute this Agreement and to perform the obligations imposed under this Deed as such trustee.
(ii) all necessary resolutions have been passed as required by the Trust Deed and, in the case of a corporation, by its constitution, in order to make this Agreement fully binding on the trustee.
(iii) the execution of this Deed is for the benefit of the Trust.
(iv) the Trustee is not now and will not as at the date on which the Settlement Sum is paid in full be in default under the Trust Deed.
(v) there is not now, and the Trustee will not do anything by virtue of which there will be in the future, any restriction or limitation on the right of the Trustee to be indemnified out of the assets of the Trust; and
(vi) there is no material fact or circumstance relating to the assets, matters or affairs of the Trust that might, if disclosed, be expected to affect the decision of the other party, acting reasonably, to enter into this Agreement.
28. GOVERNING LAW
This Agreement shall be governed by the law of the State of Western Australia, and the Parties submit to the non-exclusive jurisdiction of its Courts. The Parties will not object to the exercise of jurisdiction by those courts on any basis.