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Terms of Service (AU/NZ)

Effective: 24 December 2024

Unless otherwise agreed, the following terms apply to Agreements entered into on or after December 24, 2024.

For Agreements entered into on or before November 21, 2024, please see the relevant terms here.

For Agreements entered into between November 22,2024 and December 23, 2024, please see the relevant terms here.

 

1. Agreements for the supply of products and services

1.1 We may issue a quote to you from time to time (Quote). Our quotes are only open for acceptance for 30 days from the date that they are issued.

1.2 Each time a Quote that we issue to you is accepted by you and you have provided us with the accepted Quote and any other documents required to be executed in accordance with the Quote, a separate legally binding contract will be entered into consisting of the following documents:

  1. these Terms of Service;
  2. the Service Schedule(s);
  3. the Quote; and
  4. any other documents executed in accordance with the Quote, including, but not limited to an executed:
    1. deed of personal guarantee;
    2. direct debit form; and
    3. credit application,

as required,
(together, the Agreement).

1.3 To the extent of any inconsistency between any 2 of the documents listed in subclauses 1.2(a) to 1.2(d), the document listed first in clause 1.2 shall prevail.

1.4 We will notify you within 30 days of our receipt of the results of any credit application if we are not satisfied with them.

1.5 We have no obligation to supply any products or services under an Agreement other than the Ordered Products and/or Services that are expressly set out in the applicable Quote. We are also not obliged to supply any Ordered Products and/or Services if you fail to pay us any deposit set out in the applicable Quote.

2. Term

2.1. Each Agreement will commence on the commencement date specified in the Quote, or if the Quote does not specify a commencement date, the Agreement will commence on the date of execution of the Quote by the last party to execute it (Commencement Date).

2.2 If a contract term, initial term or minimum period is specified in a Quote (each, a Minimum Period), upon expiry of the Minimum Period, the Agreement will automatically extend on a month to month basis (each such month, a Renewal Period), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least 30 days prior to the expiry of the Minimum Period or the then current Renewal Period (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Minimum Period or the then current Renewal Period (as applicable).

 

3. Supply of Ordered Products and/or Services

3.1 Subject to your payment of any deposit, and your provision to us of any executed deed of personal guarantee, direct debit form and/or credit application that is specified in a Quote, to our satisfaction, we will use our best endeavours to supply and/or procure the supply of the products and/or services specified in the Quote or otherwise supplied by us (Ordered Products and/or Services) to you, substantially in accordance with any Specifications. 

3.2 You must provide all necessary:

  1. cooperation, permissions, authorisations, assistance and consents; and 
  2. access to Your Equipment, Your Personnel, servers, networks, data, content, facilities, documentation, records, resources, records, equipment, premises and information,

as reasonably required by us to supply and/or procure the supply of the Ordered Products and/or Services to you.

3.3 Where required by us, you must also arrange safe and timely access to Your Premises for Our Personnel to provision, install, support and maintain the applicable Ordered Product and/or Service. Support and maintenance in relation to any Ordered Product and/or Service are not within the scope of the Agreement unless the applicable Quote clearly states that they will be provided. This means that even where a Service Schedule refers to the provision of support and/or maintenance services, we have no obligation to provide such services unless the applicable Quote clearly states that they will be provided.

3.4 We are not liable for:
(a) the content or security of any communications that you receive, access, transmit or rely upon when using any Ordered Product and/or Service;
(b) carrying out any installation, integration, configuration or setup of any Ordered Product and/or Service; or
(c) ensuring that Your Equipment is compatible or interoperable with any Ordered Product Service,
except as expressly set out to the contrary in a Quote or Service Schedule.
3.5 With respect to any proposed installation, integration, commencement or start dates specified in a Quote, if any:
(a) such time is not of the essence and such dates are estimates only;
(b) where Our Personnel are unable to provision any Ordered Product and/or Service by any agreed or estimated installation or integration date for any reason: (i) we may terminate the relevant Agreement at any time prior to the provisioning being completed, by notice to you, without liability; and (ii) you may terminate the relevant Agreement prior to the provisioning being completed, by notice to us, without liability, but only if the Ordered Product is not installed or integrated in accordance with any Specifications (as applicable), or the Ordered Services are not first supplied, within 60 days after the agreed or estimated installation or integration date specified by us, for any reason;
(c) you must pay all costs and expenses that we may suffer or incur as a result of any delay in the installation, procurement, integration, commencement and/or implementation of any Ordered Product and/or Service caused directly or indirectly by you or Your Personnel; and
(d) upon termination of the Agreement under clause 3.5(b), we will refund any monies paid by you to us in advance for the relevant Ordered Product and/or Service that was not provisioned, unless the termination was caused because of any delay in the installation, procurement, integration, commencement and/or implementation of any Ordered Product and/or Service caused directly or indirectly by you or Your Personnel.

 

4. Performance and availability of Ordered Products and/or Services

4.1 We warrant that all Ordered Products and/or Services will perform materially in accordance with the Specifications. 

4.2 Subject to any non-excludable guarantees implied in an Agreement under the ACL or any other Applicable Law, we do not warrant or guarantee that any Ordered Product or Service will be:

  1. uninterrupted or error-free, free from fault or external intrusion;
  2. be fit for any purpose or have any specific quality, performance of compatibility; or
  3. suitable for or will meet your requirements,

unless such warranties or guarantees are expressly set out in a Quote or Service Schedule.

4.3 Before entering into an Agreement for our provision of Ordered Products and/or Services to you, you must ensure that the details in our Quote are correct and free of any errors or mistakes and that applicable products and/or services specified in the Quote are suitable for your intended use, needs and purposes.

4.4 If there are Service Levels specified in a Quote:

  1. we will use our best endeavours to ensure that the applicable Ordered Services comply with those Service Levels; and
  2. any breach of the Service Levels will not constitute a breach of the Agreement.

4.5 We may in our sole discretion, vary any Ordered Product and/or Service at any time or from time to time, provided that such variation does not have a material adverse effect on their performance.

 

5. Your Equipment and Our Equipment

5.1 An Agreement does not transfer or assign title to Your Equipment to us.

5.2 An Agreement does not transfer or assign title to Our Equipment to you.

5.3 You must not, without our prior written consent, grant or permit the grant or existence of any security interest in Our Equipment (except a security interest in our favour).

5.4 We are not responsible for Your Equipment. You must ensure that Your Equipment is:

  1. compatible with Ordered Products and/or Services; and
  2. maintained, including by ensuring that it is used, and all applicable security and other patches are applied, in accordance with the manufacturer’s recommendations.

5.5 You acknowledge and agree that we may, at any time in our sole and absolute discretion, on prior written notice to you, choose to replace or update Our Equipment where we reasonably believe this is required to ensure optimal provision of the Ordered Products and/or Services. Unless stated otherwise in a Quote, we will be responsible for the costs incurred to replace or update Our Equipment in the following circumstances only:

  1. if the replacement is required due to a defect under warranty has been caused by us or our Personnel, or we are not permitted to charge you by law;
  2. if you pay for the use of Our Equipment on the basis of an ongoing monthly subscription, and provided that you are not liable for such replacement pursuant to clause 5.7; and
  3. where such replacement or update is required to ensure compliance with applicable Payment Card Industry Data Security Standards,
    and in all other circumstances, you will be liable for the costs incurred to replace or update Our Equipment.

5.6 If we elect to replace or update Our Equipment in accordance with clause 5.5, You must provide all necessary assistance and cooperation reasonably required by us to enable the replacement or update.

5.7 You acknowledge and agree that after we deliver Our Equipment to you, you are liable for any loss or damage to Our Equipment and will be responsible for the cost of its replacement, except to the extent caused or contributed to by Us or Our Personnel or as otherwise covered under warranty. If Our Equipment is damaged or not operational for any reason at any time during the Term you must immediately notify us and return Our Equipment to us to be assessed.

5.8 If you return Our Equipment to us in accordance with clause 5.7 we may, following an assessment and in our sole and absolute discretion, determine the equipment to be faulty due to damage by You and choose to either repair or replace Our Equipment. You acknowledge and agree that if you are found to be at fault for any damage, you will be liable for the amount equal to that which is required for such repair or replacement of Our Equipment and any associated handling or service fees (including any delivery or postage costs).

5.9 On termination or expiry of this Agreement for any reason, you acknowledge and agree that you must return Our Equipment to us as soon as reasonably possible. If required by law, we will be responsible for the proper disposal of Our Equipment in accordance with the applicable rules and regulations and accept all costs associated therewith.
5.10 We reserve the right to charge you a fee for any of Our Equipment that is not returned in accordance with clause 5.9.

 

6. Your Data

6.1 Data in any form entered into, uploaded into or generated from any Ordered Product and/or Service (Your Data) is, as between you and us, owned by you and an Agreement does not transfer any IPR in Your Data to us.

6.2 You hereby grant us a non-exclusive, transferable, assignable and sub-licensable worldwide, irrevocable, perpetual licence to collect, record, organise, structure, use, store, adapt, modify, alter, retrieve, disclose, disseminate, align, combine, erase, destroy, commercialise and exploit Your Data:

  1. to perform our obligations under an Agreement with you;
  2. to comply with our legal obligations; and
  3. for any other reason, in our absolute discretion.

6.3 You must ensure that:

  1. your End Users are fully entitled (and where applicable, licensed) to disclose to us all of Your Data that is entered into Your Equipment, Our Equipment and any Ordered Product and/or Service;
  2. all of Your Data is accurate and up-to-date; and
  3. the exercising of our rights under the licence granted pursuant to clause 6.2 by us and/or Our Personnel does not breach any Applicable Law or any person’s rights; and
  4. you have obtained all necessary consents required for us and/or Our Personnel to exercise our rights under the licence granted pursuant to clause 6.2.

6.4 Some of our products and services may be “cloud-based” services; this means that they are hosted using physical servers located in third party data centres (or any virtual servers implemented on those physical servers). For cloud-based Ordered Products and/or Services, Your Data may be hosted by us or our Third Party Providers on hardware or infrastructure located inside or outside Australia that may or may not be owned by us.

6.5 Data loss and corruption is unpredictable and can occur from time to time. In the event of any loss, destruction, alteration, corruption or damage to any of Your Data that is stored in any Ordered Products and/or Services, subject to any non-excludable remedies available to you under Applicable Law:

  1. your sole and exclusive remedy as against us, shall be to request that we use reasonable endeavours to restore that data from the latest back-up that we or Our Personnel maintain; and
  2. we shall not have any liability for any such loss, destruction, alteration, corruption or damage, or for any unauthorised access or disclosure, to Your Data unless it is caused by our wilful misconduct or intentional breach of the Agreement.

6.6 For the avoidance of doubt, we do not provide data backup services unless an applicable Quote clearly states that they will be provided.

6.7 You hereby indemnify us in respect of any loss and damage that we may suffer or incur as a result of any third party claim that:

  1. the exercising of our rights under the licence granted pursuant to clause 6.2 by us and/or Our Personnel; or
  2. access to and/or use of Your Data by any End User,
    infringes the IPR and/or other rights of any person or breaches any Applicable Law.

 

7.    Our Intellectual Property Right

7.1 As between you and us, we own all IPR in:

  1. any Ordered Product and/or Service (including any software, Source Code, Object Code, databases and database structures that are incorporated into, installed on, or supplied in connection with, the Ordered Product and/or Service);
  2. any modifications, improvements, inventions, discoveries, upgrades or updates to any Ordered Product and/or Service (whether made or suggested by or on our behalf or by you or on your behalf); and
  3. all reports and other output (except to the extent that it comprises Your Data) made available in or via any Ordered Product and/or Service; and
  4. any software tools, libraries, reports, configurations, Source Code, Object Code and reports that we develop at any time,
    (collectively, Our IPR).

7.2 You must not represent that you own any of Our IPR. 

7.3 You must not, and must ensure that Your Personnel do not, directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR, nor authorise the commission of any act that would or might be inconsistent with Our IPR.

7.4 You hereby assign to us all and any IPR in all and any modifications, improvements, inventions, discoveries, upgrades, updates and comments that you or your employees make with respect to any Ordered Product and/or Service and any requests for new features, that you and/or your employees may make or suggest regarding them (each, an Improvement). Each such Improvement becomes our sole and exclusive property upon assignment to us. The assignment is effective when you and/or your employees make or suggest the Improvement including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your employees, and on request by us, supply to us, an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any Improvement by us or any third parties that we authorise.  

 

8.    Confidentiality

8.1 Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or is deemed confidential by Applicable Law (Confidential Information).

8.2 The party who receives Confidential Information from the disclosing party (receiving party) may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to:

  1. exercise its rights (including by exercising its rights under any licence granted to it under this Agreement); and
  2. perform its obligations,
    under the Agreement or comply with Applicable Law.

8.3 Where we are required to do so under any contract with any supplier, we may disclose your Confidential Information to the supplier, including, where the supplier provides us with services that we use to provide any Ordered Product and/or Service.

8.4 Confidential Information does not include information:

  1. that is independently developed, obtained or known by the receiving party, without breaching any obligation of confidence to the disclosing party;
  2. that the receiving party can prove was already known to it at the time of disclosure to it by the disclosing party;
  3. that is in the public domain, except where due to a breach of the Agreement or any breach of any obligation of confidence; or
  4. that the receiving party must disclose under the rules of any stock exchange on which it or its holding company is listed.

8.5 Notwithstanding any other provisions of this Agreement, we may include your name, logo and location, as well as a general description of the Ordered Products and/or Services that you obtain from us, in any marketing, sales or promotional material that we publish (including on any website or software product or elsewhere).

8.6 Notwithstanding the definition of “Confidential Information” in clause 8.1, Your Data is not subject to the provisions of this clause 8.

 

9.    Your Obligations

9.1 You must ensure that any person who accesses and/or uses an Ordered Product and/or Service (each, an End User):

  1. complies with all applicable Documentation, Applicable Law and our directions and policies (including any security policy and our Acceptable Use Policy) in the course of such access and/or use;
  2. does not infringe or permit any person to infringe any of our, or our licensors’, IPR;
  3. provides us with access to Your Data, Your Personnel, Your Equipment and any cooperation and assistance reasonably required by us to carry out our obligations under the Agreement;
  4. does not provide their passwords or other access credentials for any Ordered Product and/or Service to any other person; and
  5. immediately notifies us of any unauthorised or suspected unauthorised use or disclosure of any access credentials for any Ordered Product and/or Service.

9.2 You must:

  1. ensure that you maintain a reliable internet connection for us to use to connect remotely to Your Equipment (and where Our Equipment is installed at Your Premises, Our Equipment) where reasonably required by us to provide any Ordered Product and/or Service (except where the Ordered Product and/or Service includes an internet connection);
  2. ensure that your premises are suitable and maintained in a manner suitable for the use of Ordered Products and/or Services;
  3. procure and maintain in good working order all building cabling (existing and new) at Your Premises in accordance with all applicable industry standards necessary for the Ordered Products and/or Services; and
  4. not do anything, or allow any of Your Personnel to do anything, that interferes with or prevents the proper functioning of any Ordered Product and/or Service.

9.3 The availability of any Ordered Product and/or Service will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Specifications and/or Documentation.

9.4 You must not remove, or allow any person to remove, any trade marks, copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Ordered Product or Service.

9.5 Unless otherwise expressly specified in the Agreement, you must not, and must not permit any person to, use any Ordered Product and/or Service:

  1. to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance any Ordered Product or Service;
  2. in a manner that in any way breaches Applicable Laws or violates all or any legal rights of any person in any jurisdiction (including any person's privacy, such as by way of identity theft or "phishing");
  3. to license, sublicense, resell, assign, transfer, distribute, or provide others with access to, any Ordered Product or Service without our written consent;
  4. to develop or manufacture any competing product or service;
  5. to “frame”, “mirror” or serve any Ordered Product or Service on any web server or other computer server over the Internet or any other network;
  6. to infringe our or any third party’s IPR;
  7. to store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);
  8. make fraudulent offers of goods or services;
  9. to create derivative works from or any other material including, incorporating, using or adding to any of our IPR;
  10. to carry out security breaches or disruptions of network communication (security breaches include, accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes);
  11. in any way that causes damage or injury to any person or property;
  12. to execute any form of network monitoring which will intercept data not intended for you; or
  13. to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or Third Party Providers.

9.6 You must indemnify us from and against all and any loss or damage that we suffer or incur as a result of any breach of clause 9.5 by you or your End Users.

9.7 You must promptly notify us if you become aware that:

  1. any person has breached, or is likely to breach, clause 9.5; and
  2. if any person alleges that any Ordered Product or Service breaches any third party IPR or other rights, and fully cooperate with us in connection with any such claims. You agree and will ensure that:
  3. we have full control over any action and proceedings that we may wish to commence or pursue in connection with any of our IPR; and
  4. you do not take any action or step (including in any proceedings) in connection with our IPR (including by challenging our IPR) in any Ordered Products and/or Services.

 

10. Fees

10.1 You must pay the Fees to us in accordance with the Payment Terms and the applicable Service Schedule, without setoff, deduction or counterclaim.

10.2 You must also reimburse us for all out of pocket expenses reasonably incurred by us in connection with the supply of any Ordered Product and/or Service, including parking fees and where applicable, interstate travel, overnight accommodation and meals.

10.3 Except as otherwise set out in a Quote, the Fees are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any Supply (as that term is defined in the GST Law) made for the purposes of an Agreement. You must pay all such taxes, at the same time as the Fees.

10.4 If you fail to make any payment due to us under an Agreement in accordance with the Payment Terms then, without limiting our rights and remedies:

  1. we may suspend our obligations under the Agreement (in whole or in part) and your access to Ordered Products and/or Services (in whole or in part) until you pay any outstanding amounts;
  2. you shall pay interest on the overdue amount at a rate equal to 2% per annum above the current overdraft rate that we have with our principal banker from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and you shall pay the interest together with the overdue amount upon demand by us;
  3. you must indemnify us from and against all and any legal costs and disbursements (on a full indemnity basis) that we incur in connection with your failure to pay any monies in accordance with the Payment Terms, including any debt recovery fees, and any legal costs and expenses (including solicitors fees, barristers fees and disbursements on a full indemnity basis) that we are required to pay in connection with any legal proceedings commenced to recover any monies that you owe to us;
  4. we may refuse to deliver any Ordered Product and/or Service that has not yet been delivered by us under an Agreement;
  5. we may deduct any monies owed by you to us under an Agreement from any deposit or other advance payment made by you in connection with any Agreement and require you to replenish the deposit or advance payment within 7 days;
  6. we may repossess any Ordered Products or any of Our Equipment already delivered to you that you have not fully paid us for (at your expense); and/or
  7. we may terminate the Agreement under clause 15.1.

10.5 We may increase the Fees payable under an Agreement:

  1. annually by 3%; and
  2. at any other time to accommodate any currency fluctuations.

10.6 Without limiting any of our other rights under the Agreement, we (including without limitation Our Personnel) may deduct or set off from payments to you or amounts held on your behalf, any amounts which: 

  1. you must reimburse us;
  2. we pay on your behalf;
  3. you owe to us or any of our Oolio Group Entities; or
  4. relate to a claim to money which we, or any of our Oolio Group Entities, may have against you whether for damages or otherwise.

You acknowledge and agree that we may, in our sole and absolute discretion, elect to recover any amounts owing to us or any of our Oolio Group Entities, whether under this Agreement or otherwise, by direct debiting your account in accordance with the terms of your direct debit form. If we exercise this right, we will provide you reasonable prior notice of the amount that will be debited and the date that this will take place.

 


11. Liability

11.1 The output of an Ordered Product and/or Service (including any report generated from an Ordered Product or Service) does not and shall not constitute our advice, including financial, legal or other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on the output that you obtain from any Ordered Product and/or Service. You must not represent (either expressly or implied) that the output of any Ordered Product and/or Service is or may constitute our advice.

11.2 We are not liable for any failure to perform or deliver any Ordered Product and/or Service caused by any breach of an Agreement by you or your Personnel.

11.3 We and Our Personnel are not liable to you, and you are not liable to us or Our Personnel, for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees), loss of savings or loss of data, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage was foreseeable or not.

11.4 We are not liable for any loss or damage due to fair wear and tear of any Ordered Product or for any loss or damage caused by any Ordered Product and/or Service due to any Force Majeure Event.

11.5 To the extent that our liability is not already excluded, the total aggregate liability of us and Our Personnel under or in connection with this Agreement and the Ordered Products and/or Services is capped at:

  1. where the liability relates to a specific Ordered Product and/or Service, an amount equivalent to the value of the Fees (excluding the cost of any purchased equipment) paid by you under this Agreement in respect of that Ordered Product and/or Service in the 6-month period preceding the relevant claim; and
  2. otherwise, an amount equivalent to the value of the Fees (excluding the cost of any purchased equipment)paid by you under this Agreement in the 6-month period preceding the relevant claim.

Any claims shall be reduced to the extent that you, your Personnel or End Users caused, were responsible for, or contributed to, such loss or damage.

11.6 Where liability for breach of any guarantees under the ACL or equivalent state or territory Applicable Law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of services again or the cost of re-supplying the services again.

11.7 Other than any non-excludable guarantees implied into an Agreement under the ACL or other Applicable Law (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.

11.8 Notwithstanding any other provisions of this clause 11, nothing in this clause 11 limits your liability for any breach of clauses 6 7, 8 or 9 by you or under any indemnity given by you under any Agreement.

11.9 Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual or potential breach of the Agreement.

11.10 To the extent permitted by law and notwithstanding any other provision of this Agreement, you acknowledge and agree that the Ordered Products and/or Services are at all times only provided on a best endeavours basis.

 

12. Force Majeure Event

12.1 We are not liable for any failure by us to perform our obligations under the Agreement if such failure was caused by a Force Majeure Event.

12.2 If a Force Majeure Event continues for 30 consecutive days, we may terminate the Agreement by written notice to you.

 

13. Insurance

13.1 We will, at our own cost and expense, obtain and maintain during the term of the Agreement and for three (3) years thereafter, the following insurances for all and any claims arising in connection with the performance of the Agreement:

  1. workers compensation insurance covering liability for your employees;
  2. public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim;
  3. cyber liability and privacy protection insurance in the amount of at least five million dollars ($5,000,000).

 

14.    Trustee Provisions

14.1 This clause 14 applies if you enter into an Agreement as a trustee of a trust (Trust).

14.2 You represent and warrant to us that:

  1. the Trust has been validly created and is in existence as at the date of the Agreement;
  2. the Trust is solely constituted by the trust deed of the Trust as varied (if at all);
  3. the trustee has been validly appointed as trustee of the relevant Trust, is the sole trustee of the Trust and no action has been taken or is proposed to be taken to remove it as trustee of its Trust;
  4. the trustee has power and authority under the Trust to enter into the Agreement and perform its obligations under the Agreement;
  5. the trustee enters into this Agreement for a proper purpose of the Trust;
  6. the trustee has the right to be indemnified fully out of the Trust property before the Trust’s beneficiaries for all liabilities the trustee may incur under or in connection with the Agreement;
  7. there are no proceedings which could have a material effect on the assets or financial position of the Trust; and
  8. no action has been taken or is proposed to be taken to terminate the Trust.

14.3 You must not, without our prior written consent, distribute any capital of the Trust, retire as trustee or be replaced as trustee, re-settle the Trust, amend the trust deed of the Trust or otherwise vary the terms of the Trust, grant a security interest over any of the assets of the Trust, or breach any terms of the Trust, and the trustee must notify us in writing immediately if any of these events occur.

14.4 You acknowledge and agree that in enforcing any security interest provided for by an Agreement, we may have recourse to and may satisfy any of the trustee liability directly out of the Trust assets.

 

15.    Termination

15.1 A party (the first party) may terminate an Agreement by written notice to the other party if the other party (the defaulting party) commits a breach of the Agreement that is not remediable, or if the breach is a remediable breach and the defaulting party fails to remedy the breach within 14 days of written notice from the first party requiring the breach to be remedied.

15.2 We may terminate our provision or supply of any Ordered Products and/or Services to you under an Agreement, if:

  1. you undergo a Change of Control without our prior written consent;
  2. you breach, challenge or dispute the validity of any of our IPR;
  3. you purport to assign any of your rights or novate any of your obligations under an Agreement without our prior written consent;
  4. you breach any Applicable Law or any person’s rights;
  5. we reasonably suspect, in our sole and absolute discretion, that you may be ineligible to receive the Ordered Products and/or Services due to fraud, credit risk, or other associated risk;
  6. the bank account owned and operated by you that is associated with our delivery of the Ordered Products and/or Services experiences a negative balance on 3 or more occasions;
  7. your Approval is refused or revoked in accordance with clause 2 of the Payments Solution Service Schedule;
  8. a Third Party Provider ceases to provide hardware, software, products or services that we require to comply with our obligations to supply any Ordered Product or Service to you;
  9. a termination right arises under clauses 15.12 or 15.13 of the Service Schedule; or
  10. you fail to meet the average monthly transaction volume set out in a Quote in 2 or more quarters.

15.3 Either party may terminate an Agreement by written notice to the other party if the other party suffers an Insolvency Event.

15.4 If an Agreement is terminated for any reason:

  1. you shall, at our option and upon our request, promptly return or destroy all copies of our Confidential Information in your possession or control;
  2. you shall pay to us all monies payable, due for payment or owing by you under the Agreement, including any Fees due;
  3. you shall pay to us all costs and expenses that we incur in connection with the termination of the Agreement, including any terminal collection fees, debt collection and legal costs and expenses (including solicitor and barrister fees and disbursements on a full indemnity basis), except where the Agreement is terminated for our breach;
  4. we shall, at your option and upon request, promptly return or destroy all copies of Your Confidential Information in our possession or control;
  5. we shall henceforth cease to have any further obligation to deliver or provide any Ordered Product and/or Service;
  6. any licenses and rights granted by us to you pursuant to the Agreement immediately terminate; and
  7. we may retake possession of (and deal with, in our discretion) Our Equipment, and you acknowledge and agree that you will be solely responsible for any terminal collection fees associated with effecting such repossession.

15.5 Clause 15.4 does not apply to any information that a party is required to retain in order to comply with Applicable Law.

15.6 Without limiting any other rights or remedies available to us, if an Agreement is terminated prior to the expiry of the Minimum Period (other than due to our breach or if we suffer an Insolvency Event), you will pay any outstanding amounts that we calculate or reasonably estimate would have been payable by you under the Agreement for Ordered Products and/or Services during the remainder of the Minimum Period which, for the avoidance of doubt, includes (but is not limited to) any terminal fees (collectively, the Outstanding Amount). If an Outstanding Amount is payable, we shall send you a tax invoice in respect of the Outstanding Amount and you will pay that invoice within 30 days. You agree that: (i) payment of the Outstanding Amount is not intended to be, and will not be construed as punitive and will compensate us for reasonable losses resulting from early termination of the Agreement; and (ii) the Outstanding Amount is no more than is necessary to compensate us for our genuine pre-estimate of loss that we will suffer as a result of the early termination of an Agreement.

15.7 Any rights or obligations that, by their nature, survive termination or expiry shall so survive termination or expiry of an Agreement, including any provision dealing with confidentiality, IPR, obligations on termination, liability, indemnities, dispute resolution and jurisdiction.

15.8 Termination does not affect any accrued rights of either party.

 

16.    Notices

16.1 All notices required or permitted to be made under an Agreement shall be in writing in English and shall be deemed delivered if:

  1. delivered in person;
  2. sent by post to the recipient’s postal addresses identified in the relevant Quote; or
  3. sent by email to the recipient’s email addresses identified in the relevant Quote. 

16.2 Notice given under subclause 16.1(a) shall be deemed to have been validly and effectively given upon delivery.

16.3 Notice given under subclause 16.1(b) shall be deemed to have been validly and effectively given 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.

16.4 Notice given under subclause 16.1(c) shall be deemed to have been validly and effectively given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.

16.5 Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 16.

 

17.    General

17.1 Subject to clause 17.2, a party may not assign its rights or novate its obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, and without limiting our rights under clause 15.2(a), you acknowledge and agree that you must notify us in writing of any actual or potential Change of Control event as soon as reasonably practicable after becoming aware of that event.

17.2 We may assign or novate our rights and/or obligations under an Agreement at any time in connection with any corporate restructure, merger or acquisition, without your prior written consent.

17.3 If any provision of an Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable.

17.4 The relationship between you and us is non-exclusive and nothing in an Agreement will prevent us from supplying any goods or services to any third party in our absolute discretion. We are an independent contractor and nothing contained in an Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.

17.5 Each Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements or agreements between you and us about its subject matter.

17.6 We may amend the terms of this Agreement (including without limitation any Service Schedules(s)) by giving you at least 30 days written notice. If the change has a material adverse effect on you, you may, within 60 days of receipt of the amendment notice and by providing no less than 30 days prior written notice, notify us that you do not accept these changes and that you wish to terminate this Agreement. Where we don’t withdraw the proposed amendments during such notice period, this Agreement will terminate on expiry of such notice.  For the avoidance of doubt, you will not be entitled to terminate the Agreement if we withdraw such change.

17.7 We may be required to amend the terms of this Agreement from time to time to comply with law or to otherwise comply with the terms of our third-party acquirers. If we are required to amend the terms of this Agreement in accordance with this clause 17.7, you acknowledge and agree that:

  1. we may not, in all circumstances, be able to provide you with 30 days prior notice (noting that the timeframe required for the change to ensure compliance may be shorter), but will provide as much notice as is possible; and
  2. you will not have the right to terminate under clause 17.6.

17.8 Our rights under an Agreement may not be waived except in writing signed by us.

17.9 Each Agreement is governed by the laws in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts located in the State of New South Wales and the courts of appeal from them in relation to any proceedings and disputes concerning the Agreement.

17.10 You acknowledge and agree that:

  1. we may provide Your Data and any information or documents received in connection with your receipt of the Ordered Products and/or Services to any Oolio Group Entity as reasonably required for us to provide the Services;
  2. each Oolio Group Entities may use Your Data and any such information or documents for any purpose in connection with this Agreement or the provision of Services to you, including without limitation to assist with the performance of our obligations and direct marketing purposes; and
  3. no Oolio Group Entity other than us will have any liability to you in connection with this Agreement.

 

18.    Definitions and Interpretation

18.1 In an Agreement, words defined in bold font in parentheses or otherwise, have the meanings given to them therein. In addition, the following words have the following meanings:

Acceptable Use Policy means the Oolio Acceptable Use Policy, as amended from time to time and made available at: https://www.oolio.com/legal/oolio/acceptable-use-policy-aup.

ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).

Agreement has the meaning given to it in clause 1.2.

Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Law, in any applicable jurisdiction.

Approval has the meaning given to that term in the Payments Solution Service Schedule.

Business Day means any day from Monday to Friday excluding public holidays in the State of Victoria.

Business Hours means 9:00am – 5:00pm on Business Days, in the location of the applicable Site(s).

Change of Control means a change in the beneficial ownership of more than 50% of: (a) the issued share capital of a company; or (b) the legal power to direct or cause the direction of the general management of the company.

Commencement Date has the meaning given to it in clause 2.1.

Confidential Information has the meaning given to it in clause 8.1.

Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth). 

Documentation means any user manuals, notes, technical instructions and documentation issued to you by us in respect of Ordered Products and/or Services.

End User has the meaning given to it in clause 9.1.

Fees means any fees, rates and charges set out in the relevant Agreement.

Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic, harmful code or component, communication outage, Internet outage, interruption of service, denial of service attack, downtime of any third party hosting provider, fire, threatened or actual act of terrorism, earthquake, act of God, or other circumstances beyond our reasonable control, that prevents us from providing Ordered Products or Ordered Services under an Agreement.

GST and GST Law: have the respective meanings given to them by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Improvement has the meaning given to it in clause 7.4.

Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above occurs under the law of any applicable jurisdiction.

IPR means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.

Minimum Period has the meaning given to it in clause 2.2.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Object Code means Source Code in compiled or binary form.

Oolio Group Entity means any entity which is a related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of us and any of the following, wherever registered or incorporated in the world:

  1. the ultimate holding company of us; and
  2. each direct and indirect subsidiary of the ultimate holding company of us.

Ordered Product means a product (including software and hardware) specified in a Quote.

Ordered Products and/or Services has the meaning given to it in clause 3.1.

Ordered Service means a service (including any software-as-a-service) specified in a Quote.

Our Equipment means any equipment, payment devices, systems, software, networks, servers, hardware, cabling, ports, switches and other ancillary equipment owned and/or operated by us.

Our IPR has the meaning given to it in clause 7.1.

Our Personnel means our officers, agents, employees, contractors, subcontractors and suppliers.

Outstanding Amount has the meaning given to it in clause 15.6.

Payment Terms means payment terms set out in the applicable Quote.

Payments Solution Service Schedule means the Service Schedule which is identified as applying to the payments solution in the title of the document.

Personnel means Our Personnel and/or Your Personnel, as the context dictates.

Quote means a document that meets all of the following criteria: (a) it is entitled “Quote” or similar; (b) it is prepared by us; (c) it is issued to you by us; (d) it has been validly executed by you within 30 days of the date of issue; (e) you have provided us with the version executed by you; and (f) the executed version that you have provided to us does not include any additional terms and conditions or amendments specified by you, and other than being executed by you, is identical to the version that we provided to you.

Renewal Period has the meaning given to it in clause 2.2.

Service Schedule means a document with “Service Schedule” or “Services Schedule” or similar in the title of the document, that we supply to you.

Source Code means human readable computer code.

Specifications means the technical and non-technical specifications for Ordered Products and/or Services set out in a Quote or otherwise issued in writing by us to you from time to time.

Term means the term of an Agreement determined pursuant to clause 2.

Trust has the meaning given to it in clause 14.1.

Third Party Provider means any of our third party suppliers, subcontractors and/or providers who provide any goods or services that we supply or resupply as part of Ordered Products and/or Services, or that we rely on to supply any Ordered Products and/or Services.

Your Data has the meaning given to it in clause 6.1.

Your Equipment means any systems, software networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned by you or operated by you or on your behalf, excluding Our Equipment.

Your Personnel means your officers, agents, employees, contractors and suppliers, excluding us and Our Personnel.

Your Premises means any premises owned, controlled or occupied by you specified in a Quote. 
you means you, if you have entered into an Agreement with us by accepting a Quote.

We, our and us means Oolio Pty Limited ABN 95 657 508 426.

18.2 In any Agreement, unless the context requires otherwise:

  1. a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;
  2. where a party has an obligation to use ‘best endeavours’ that party shall be required to take steps that are reasonable in the circumstances, taking into account their own commercial, economic and operational interests, and does not require the relevant party to actually perform the obligation or achieve the outcome where to do so would cause it considerable detriment;
  3. headings and underlinings are for convenience only and do not affect the construction of the Agreement;
  4. a provision of an Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
  5. currency or “$” refers to Australian dollars;
  6. a reference to "in writing" or "written" includes email;
  7. a reference to a statute or regulation includes amendments thereto;
  8. a reference to time is to time in New South Wales;
  9. a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
  10. the words 'such as', 'including', 'particularly' and similar expressions are not words of limitation and shall be interpreted as if the words ‘but not limited to’ immediately followed them in each case; and
  11. a reference to the singular incudes the plural and vice versa.