9. Copying  
9.1 Other than as permitted by clause 7.1 or otherwise reasonably required to give effect to this agreement you shall not copy or reproduce the Merchant Software or Documentation by any means or in any form without our prior written consent. 
9.2 We will ensure that backup copies of the merchant software are available for emergency replacement use should the original fail for any reason. These back up copies may not include any recent transactions made.
9.3 It is your responsibility to create backup copies of your GOpay® records daily or more often as you consider necessary to prevent loss of data should our systems or server fail.

10. Modifications  
10.1 Will be made to the Merchant Software at our discretion, at our cost and we will use our best endeavours to ensure that no modification results in unreasonable inconvenience or detriment to you or the way the system works for you. In addition changes made for security reasons may be made immediately at any time without notice. If a modification must necessarily alter the system to your detriment, you may terminate this agreement without any further liability to us. 

11. Reverse Engineering  
You shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Merchant Software.

12. Title  
All Intellectual Property Rights in the Merchant Software remain with GOpay® and the Payment Gateway Provider.

13. Distribution  
13.1 You are licensed to use the Merchant Software solely for purposes associated with the performance of your obligations under this agreement.

14. Your Obligations  
During the term of this agreement you shall:  
14.1 act in good faith at all times towards us and the Payment Gateway Provider and give us and the Payment Gateway Provider such assistance and co-operation as we reasonably request;  
14.2 maintain such records of transactions, inquiries and complaints as specified in Schedule 12;  
14.3 not make or publish or cause to be made or published any false, misleading, deceptive or mis-descriptive statement or information in relation to the Services, the Payment Gateway and/or the Merchant software which may give rise to any liability to us or the Payment Gateway Provider;   
14.4 ensure that all terms and conditions of use and/or warning notices which us or the Payment Gateway Provider may prescribe for display to online customers using commerce sites which use the Services are displayed strictly in accordance with ours or the Payment Gateway Provider’s directions. However this clause does not create any obligation to create or recommend any appropriate terms and conditions of use and/or warning notices;  
14.5 back up your records held on the system as often as you consider necessary as they could be lost at any time should a server malfunction;   
14.6 do not rely on GOpay® to archive your data as your data could be lost should we have a server malfunction;  
14.7 ensure your use of the Services and the Merchant Software is strictly in accordance with your Financial Institution Agreement or credit card company merchant agreement or bank agreement;  
14.8 establish a policy for dealing with refund and disputes about Transactions;  
14.9 retain for a period of twelve (12) months each reference number supplied by us for each Transaction; and  
14.10 not disclose any Personal Credit Card Number or information about the holder of any Personal Credit Card Number or about any Transaction to any person other than:  
(a) us, 
(b) the issuer of the Personal Credit Card Number, 
(c) the bank or financial institution which is a party to a Financial Institution Agreement with the Merchant, 
(d) as required by law, 
(e) the Payment Gateway Provider
and any such information shall be securely stored in accordance with security requirements of the credit card companies, banks and the Payment Gateway Provider.

15. Audit
Should it be required you shall, upon reasonable notice and at the Payment Gateway Provider’s expense, permit the Payment Gateway Provider’s officers and employees reasonable access to your premises, books, records, documents, equipment and other property relevant to the performance of this agreement. Such access includes, but is not limited to, access for the purpose of liaison, reporting and inspection and for verification of compliance by you with your obligations under this agreement and your likely capacity to continue to comply with your obligations in the future. Without limiting the foregoing, such audits may include, but need not be limited to: 
(a) invoices and receipts; 
(b) accounts for payment; 
(c) security and administration practices and facilities; and
(d) any other material relevant to determining the past and future effectiveness and viability of this agreement and the discharge by you or your obligations under this agreement. 

16. Confidentiality 
16.1 Neither Party shall, without the other Party’s prior written approval, disclose the Confidential Information.
16.2 Neither Party shall be in breach of subclause 16.1 in circumstances where legally compelled to disclose the Confidential Information. 
16.3 Despite Clause 16.1 each party acknowledges that the other party can disclose the Confidential Information to their employees, officers, agents (this includes the Payment Gateway Provider in GOpay®’s case), licencees, partners and contractors if all reasonable steps are taken to ensure that every person to whom the information is to be disclosed to will not make public or disclose the other parties Confidential Information. 
16.4 Each Party shall on demand return to the other Party any documents supplied in connection with this agreement. 
16.5 The duty of confidentiality referred to in clause 16 will not extend to such of the Confidential Information as 
(a) was known to the party receiving the Confidential Information; 
(b) was in the public domain, but not known to the Party receiving the Confidential Information, prior to the date of this agreement;
(c) comes into the public domain subsequent to the date of this agreement otherwise than a result of a breach of this agreement; 
(d) is disclosed by the Party receiving the Confidential Information as required by law. 
16.6 The onus of proof of the matters set forth in clause 16.5 shall be upon the Party receiving the Confidential Information; 
16.7 This clause 16 shall survive the termination of this agreement.
16.8 As required by law we will disclose information about you and your GOpay® system when required to do so by federal, state or local law. If you are involved in a lawsuit or a dispute, we may disclose information about you in response to a court or administrative order. We may also disclose information about you and your GOpay® system in response to a subpoena, discovery request, or other lawful process by someone else involved in the dispute, but only if efforts have been made to tell you about the request or to obtain an order protecting the information requested. We may release information if asked to do so by a law enforcement official: In response to a court order, subpoena, warrant, summons or similar process; To identify or locate a suspect, fugitive, material witness, or missing person; About the victim of a crime if, under certain limited circumstances, we are unable to obtain the person's agreement; About a death we believe may be the result of criminal conduct; About criminal conduct; and In emergency circumstances to report a crime; the location of the crime or victims; or the identity, description or location of the person who committed the crime. We may release information about you to authorized federal officials for intelligence, counterintelligence, and other national security activities authorized by law. You will be liable for any costs incurred by GOpay® in providing this information, billed at the hourly rate of US$125 an hour for each GOpay® person involved, in addition to any other reasonable expenses incurred by GOpay® in the carrying out of such requests.

17. Intellectual Property Rights  
GOpay® and the Payment Gateway Provider hold Intellectual Property Rights to the System and you agree not to infringe our copyrights.
  
18. Compliance with Laws  
You shall not breach, infringe or offend any laws (whether Australian law or otherwise), through your use of the Merchant Software or permit anyone else to do so.

19. Handling of Data  
19.1 We and the Payment Gateway Provider may monitor, record and store the Data or any part of it. 
19.2 We will treat the Data as confidential and will not without your prior written consent disclose such confidential information to a third party except as required by law. 
19.3 We will use our best endeavours to secure the Data from unauthorised access and will require our employees who have access to the Data to execute a non-disclosure agreement.   
19.4 Our obligation under this clause 19 shall survive the termination of this agreement. 
19.5 We will hold data on current accounts for a period determined at our discretion but it may be no longer than 12 months and recommend you regularly export your data in case of data loss caused by system or hardware failure. 

20. Fees  
20.1 You will pay to us the Licence Fees at the time and in the manner specified in Schedule 5. 
20.2 You will pay the Transaction Fees at the times and in the manner specified in Schedule 10.

21. Payment 
21.1 Unless expressly stated in writing by us all fees and charges are exclusive of government taxes and imposts applicable to the supply of goods and services of licence to use software including, without limitation, sales tax, GST, import duty and services tax. If any such taxes or imposts are or become applicable, an amount equal to them shall be added to the fees and charges under this agreement and shall be payable by you to us.
21.2 If you default in any payment to us:  
(a) we may suspend or cancel all further supplies and the provision of services (whether those services are Services under this agreement or any other services provided by us); and
(b) you will pay all collection costs and the legal fees reasonably incurred by us as a result of that default.  
21.3 We may increase our fees and charges, including the Transaction Fees, upon giving you not less than two (2) months’ notice in writing prior to the expiration of this agreement or any renewed term and will take effect upon the commencement of the renewed term of this agreement. Either party may terminate the agreement subject to clause 24 if Fee changes are unacceptable.
21.4 Subject to sub-clause 21.5 you will pay the Transaction Fees to us within 14 days of receipt of our invoice or as stipulated in the Schedule. The Transaction Fees are not refundable (whether in whole or part) to you. 
21.5 Where you have authorised us to charge the Transaction Fees against your credit card you authorise us to charge the Transaction Fees immediately as and when they become due and payable (irrespective of whether an invoice has been issued). However, you may cancel that authorisation at any time by notice in writing to us provided that any such cancellation will not have any effect until all moneys owed by you to us have been charged to your credit card.  
21.6 You shall pay to us interest on any arrears of Transaction Fees, or the late payment of the Licence Fee, due by you to us at the rate per annum specified in Schedule 13 and interest as herein provided shall accrue daily and shall be payable, if demanded, on and from the due date for payment to us.
  
22. Warranties  
22.1 For the duration of the Initial Term, we warrant that the GOpay® system will operate in conformity with the Documentation in all material aspects.  
22.2 If at any time during the Initial Term you believe there is a defect in the Merchant Software such that the Merchant Software does not comply with or cannot be used in accordance with the Documentation, you shall notify us of such perceived defect.  
22.3 GOpay® and the Payment Gateway Provider shall investigate the perceived defect notified pursuant to subclause 22.2 and shall, upon the verification of the existence of the defect, rectify such defect without additional charge to you.  
22.4 If due investigation by us or the Payment Gateway Provider of a defect reported pursuant to subclause 22.2 reveals that no such defect in fact exists, we or the Payment Gateway Provider may make a reasonable additional charge in respect of such investigation.  
22.5 GOpay® and the Payment Gateway Provider shall not be liable under this clause to the extent that a defect is caused by you or a third party, including your failure or the failure of a third party to operate the operating environment designated in the Documentation or to otherwise use the Licensed Software in accordance with specifications issued by GOpay® or the Payment Gateway Provider from time to time, whether in the Documentation or otherwise.  
22.6 Except for the warranty in sub-clauses 22.1 and any warranty which cannot by law be excluded all other warranties whether express, implied, statutory or otherwise relating in any way to this agreement, including, without limitation any warranty that any of the goods or services provided under this agreement are fit for a particular purpose are excluded. You acknowledge that you have solely exercised and relied upon your own skill and judgement in determining whether the goods and services provided under this agreement meet your particular requirements, and have not relied on any statement or representation made on behalf of us or by us.
22.7 We shall not be liable for any loss or damage you suffer if a terminal or telephone line is not working.
22.8 We and the Payment Gateway Provider do not warrant that:
(a) The provision of the services or any part of them will be continuous or uninterrupted;
(b) The provision of the services will provide you with a secure or confidential means of communication.;
(c) The data transmitted or received by you through the use of the services will be accurate or virus free; 
(d) The merchant software is free from defects; or  
(e) The merchant software will operate without interruption or errors;

23. Liability 
23.1 We shall not be liable to you for any loss or damage (including without limitation, consequential loss or damage) suffered by you whether arising directly or indirectly from the supply of any services under this agreement except where that loss has been the result of us being negligent, fraudulent or acting in bad faith; 
23.2 Where the law implies any term in this agreement, which cannot by law be excluded, then that term is included in this agreement. Our liability for any breach of such an implied term will be limited, at our opinion, to the following;  
(a) In the case of the provision of services to the supplying of those services again, or the reasonable cost of supplying those services again; and  
23.3 Without limiting sub-clause 23.1 we shall not be liable to you or any third party;  
(a) For any transaction disputed by any person; 
(b) For any claims resulting from fraudulent use of System passwords, personal credit card number or a credit card; and / or 
(c) Any breach of an agreement between you and a financial institution related to the making of credit or debit card payments.
23.4 Regardless of the form of action and without limiting the other provisions of clause 24, our aggregate liability for damages shall not exceed the sum paid to us by you under this agreement. 
23.5 In no event will we be liable to you or any customer or other person for any remote, indirect consequential special or incidental damages, including without limitation, damages resulting from loss of data, loss of profits or business interruption, or cost of cover. This limitation will apply even if we have been advised of the possibility of such damages, 
23.6 Without limiting any other provision of this agreement, you acknowledge that:  
 (a) performance of the System is dependent on a number of factors outside our control, including traffic on and technical difficulties with the internet and the performance of the financial payments clearance system; 
(b) the System is secure within certain technical boundaries which you have considered; 
(c) payment and payment clearance operates on the terms and conditions of each Financial Institution Agreement; 
(d) there may be interruption or failure of the System;  
and agree that, without limitation, all liability to you or a third party may suffer due solely or in part as a result of one or more of these factors is your responsibly.
23.7 User agrees to indemnify and hold GOpay® , its parents, members, subsidiaries, partners, affiliates, service providers, licensors, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys’  fees, made by any third party due to, or arising out of or related to User’s  use of the Service, User’s violation of this Agreement, or User’s violation of any rights of another.
23.8 Disclaimer of Warranties. USER EXPRESSLY AGREES THAT USE OF SERVICE IS AT USER’S  SOLE RISK. THE SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. GOpay® EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GOpay® MAKES NO WARRANTY THAT THE SERVICE WILL MEET USER’S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES GOpay® MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. USER UNDERSTANDS AND AGREES THAT THE SERVICES CANNOT BE MADE COMPLETELY SECURE AND THAT USER IS RESPONSIBLE FOR TAKING ALL STEPS TO PROTECT THE USER’S INFORMATION AND TO VERIFY THE ACCURACY AND SUCCESSFUL TRANSMISSIONS OF ANY INFORMATION TRANSMITTED VIA THE SERVICES. GOpay® MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM GOpay® OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
23.9 Limitation of Liability. GOpay® SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF GOpay® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
User acknowledges that GOpay® and the Payment Gateway Provider have agreed to provide the Service in reliance upon the disclaimers and limitations of liability, and the disclaimers of warranty set forth in this Agreement, that the same form an essential basis of the bargain between the parties, and that GOpay® would not have agreed to provide the Service but for such disclaimers and limitations.
23.10 Security of information: Unfortunately, no data transmission over the internet can be guaranteed as totally secure.  Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you or your customers transmit to us.  Accordingly, any information which you or your customers transmit to us is transmitted at your / their your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information. The following clauses deal with specific risk areas where third party providers are involved.
                 i) E-Commerce Funds Indemnity - Because third party providers of services such as banks, payment gateways, networks, security systems and firewall maintenance are involved in the delivery of the system you agree to indemnify GOpay® for any Claim directly or indirectly related to, based upon, attributable to, or in consequence of any misuse (or unauthorized use) of personal identifying information or arising from or related to any act error or omission by or on behalf of GOpay® or any Civil Liability related to any services related to any electronic transfer of funds/payments or systems (including liability arising directly or indirectly from any failure to electronically transfer funds/payments). This clause overrides anything else to the contrary which is expressed or implied in these Terms and Conditions. 
                  ii) Firewall Security Indemnity - Because third party providers of services such as networks, security systems and firewall maintenance are involved in the delivery of the system you agree to indemnify GOpay® for any claim directly or indirectly related to, based upon, attributable to or in consequence of any fact or circumstance arising from, or caused by loss of data or a breach in Computer Firewalls or Security Systems, the consequence of which may be (but not necessarily limited to) the following: Contamination by Computer viruses and or the manipulation, destruction, contamination, or loss of any computer data, or for any loss, in consequence of an unauthorized person gaining access to or copying data from any computer system or memory. This clause overrides anything else to the contrary which is expressed or implied in these Terms and Conditions.
23.11  Survival - This clause 23 shall survive termination of this Agreement.

24. Termination  
24.1 Unless specified differently in the Schedule, you may terminate this agreement by giving us thirty (30) days notice in writing.  
24.2 Without limiting the rights which you or us may otherwise have arising from a breach of this agreement, you may terminate this agreement immediately by notice in writing if:  
(a) we breach any clause of this agreement and such breach is not remedied within thirty (30) days of written notice by you; 
(b) we become subject to any form of insolvency administration; 
(c) we being a partnership, dissolve, or resolve to dissolve or are in jeopardy of dissolving; 
(d) we provide 60 days notice in writing to you to terminate, unless agreed to differently under Schedule Clause 4; 
(e) if the Services become unavailable for a period in excess of one month.

24.2 Without limiting the rights which we may otherwise have arising from a breach of this agreement, we may terminate this agreement immediately by notice in writing if:  
(a) any payment due from you to us under this agreement remains unpaid for a period of fourteen (14) days after the due date; 
(b) you breach any clause of this agreement and such breach is not remedied within thirty (30) days of written notice by us or you; 
(c) you become subject to any form of insolvency administration; 
(d) you, being a partnership, dissolve, or resolve to dissolve or are in jeopardy of dissolving; 
(e) you, being a natural person, die;
(f) we provide 60 days notice in writing to you to terminate; 
(g) if the Services become unavailable for a period in excess of one month.
(h) if we determine the Services are open to security risk or criminal attack or malicious attack or do not comply with accepted security provisions the Services may at our unfettered discretion  be terminated immediately
(g) if you increase your Transaction volume by more than 100,000 transactions a month without advising us first in writing and receiving written confirmation and approval from GOpay®.

24.3 If this agreement is terminated pursuant to sub-clauses 24.1 or 24.2 or 24.3 or otherwise by you or us, we may, in addition to any additional or alternative remedies provided by law:  
(a) retain all moneys already received from you; 
(b) charge a reasonable sum for work performed for which no sum has previously been paid; and 
(c) be deemed to be discharged from any further obligations under this agreement.
(d) should a payment gateway request be paid for and then later cancelled before connection, a 50% cancellation charge will apply. Once connected to the payment gateway a refund is not possible.

25. Force Majeure
25.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure. 
25.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.
25.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the agreement on providing notice in writing to the other Party. 
25.4 If this agreement is terminated pursuant to subclause 3, we shall refund moneys previously paid by you pursuant to this agreement for goods or services not provided by us to you.
  
26. Sub-contracting  
We and the Payment Gateway Provider may in our discretion sub-contract for the performance of this agreement or any part of this agreement. We shall provide to notice of our intent to sub-contract 14 days prior to commencement of the sub-contract.
  
27. Assignment  
This agreement shall not be dealt with in any way by you or us (whether by assignment, sub-licensing or otherwise) without prior written consent.
  
28. Variation and Waiver  
No right under this agreement shall be deemed to be waived except by notice in writing signed by you and us. 

29. Dispute Resolution   
You and we agree that in the event of an unresolved dispute between you and us about any aspect of this agreement, you and we will mediate the dispute before commencing legal action. All parties must agree on terms and cost of mediation and the identity of the mediator, and allow the parties to commence legal action if they fail to agree on these particulars within 30 days.
  
30. Entire Agreement  
This agreement including the schedules to this agreement constitutes the entire agreement between the Parties for the subject matter of this agreement. Any prior arrangement, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in writing signed by each Party.
  
31. Severability  
If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted. 

32. Governing Law 
This agreement shall be construed in accordance with the laws of Queensland and the Parties to this agreement submit to the jurisdiction of the Courts of Queensland and the Commonwealth of Australia with respect to all matters arising under or relating to this agreement.  
33. Notices  
33.1 Notices under this agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 14. 
33.2 Notice will be deemed given: 
(a) in the case of hand delivery, immediately upon delivery to an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of posting, three (3) business days after dispatch; and
(c) in the case of facsimile, upon completion of transmission.  
33.3 If a notice is delivered on a non-business day, it shall be deemed to have been delivered on the next business day after delivery.
33.4 Despite anything else in this agreement, if we exercise a right on your default, we agree not to exercise that right until we have given you notice setting out what the default was, how you may remedy that fault and you failed to remedy that default on expiry of 14 days after you received that notice.
  
34. Amendments to Terms and Conditions
We reserve the right to amend these Terms and Conditions from time to time.  Amendments will be effective immediately upon notification on the Site.  Your continued use of the Site following such notification will represent an agreement by you to be bound by the Terms and Conditions as amended. You should check our Terms and Conditions from time to time to see if we have made any changes to it.

35. Execution Warranty  
The persons executing this agreement for and on, our, and your behalf warrants that s/he have the authority to execute this agreement.  If you have a clear understanding of our Terms and Conditions and agree to abide by our terms and conditions then; 

Execution of this agreement will be via the GOpay® online Application Form which has the Schedules attached. 

TO RETURN TO THE SITE
By returning to the site, you acknowledge that you have read, understand and accept the above Terms and Conditions.

Form: GOpayTerms-090325
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