AAKONSULT PTY LTD
1. BY CLICKING THE “I HAVE READ AND AGREE TO THE TERMS & CONDITIONS” BUTTON AND THE “INSTALL” BUTTON DISPLAYED AS PART OF THE REGISTRATION PROCESS, OR BY SIGNING A HARD COPY OF THESE TERMS, THE PERSON, COMPANY OR OTHER ENTITY NAMED AS THE CUSTOMER DURING REGISTRATION OR SIGNING THE HARD COPY OF THESE TERMS (YOU) AGREES TO THE FOLLOWING TERMS UNDER WHICH AAKONSULT PTY LTD (AAKONSULT) AGREES TO PERMIT YOU TO DOWNLOAD AND USE THE PAYMENT2US APP (FORMERLY KNOWN AS AAKONSULT PAYMENTS). IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” AND “YOURS” REFER TO THE ENTITY. IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “CANCEL” BUTTON.
2. CONDITIONS FOR BECOMING AN AAKONSULT CUSTOMER
You warrant that:
(a) You are:
(i) a corporation or other legal entity or, if You are an individual that You are over 18 years of age;
(ii) a licensee of Salesforce.com; and
(b) in using the Software, You will comply with the terms of this agreement and with all applicable laws.
3. LICENCE AND INTELLECTUAL PROPERTY RIGHTS
(a) AAkonsult grants You a personal, non-transferable, non-exclusive licence to download and use the Software subject to the terms of this agreement.
(b) You may use the Software to process transactions on behalf of Your business only.
(c) You may not:
(i) grant sub-licences in respect of the licence granted to You in clause 3(a);
(ii) use the Software to process transactions on behalf of any other person;
(iii) make copies of the Software except as reasonably required for operational use, backup and security purposes; or
(iv) 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 Software.
(d) You must only use the Software with the payment gateway supplied by AAkonsult.
(e) You acknowledge and agree that nothing in this agreement transfers to You any right, title or interest in or to any Intellectual Property Rights in the Software other than Your rights under the licence in clause 3(a).
(f) AAkonsult warrants that it is entitled to grant the licence in clause 3(a).
4. FEES, INVOICING AND PAYMENT
(a) You will provide AAkonsult with valid and updated credit card information. If
You provide credit card information to AAkonsult, You authorize AAkonsult to charge the fees set out in the order form that You completed when registering as those fees are amended from time to time in accordance with this agreement (Fees).
(b) We may vary the Fees from time to time by notice posted on the website at http://www.aakonsult.com/AAkPayments.html. If You do not wish to pay the increased fees, You may terminate this agreement by notifying AAkonsult at email@example.com.
(c) You must make sure that the sufficient credit is available as and when necessary to pay the Fees.
(a) AAkonsult may suspend Your access to the Software:
(i) if sufficient credit is not available as and when necessary to pay the Fees; or
(ii) if payment of any invoiced amount for Services has not been made by the date specified on the invoice;
and You do not pay the overdue amount within [four] Business Days of AAkonsult’s written notice to Your billing contact.
(b) You agree that if Your access to the Software is reinstated after a suspension for non-payment in accordance with clause 5(a), You will pay a reasonable reinstatement fee. AAkonsult may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty days and AAkonsult is required to take legal action to collect the amount, You must also pay AAkonsult’s reasonable costs of collection, including legal fees costs.
(a) AAkonsult may terminate this agreement with immediate effect if:
(i) You breach any term of this agreement and the breach is not capable of being remedied, or if capable of being remedied, is not remedied within 14 days after AAkonsult notifies You of the breach; or
(ii) You suffer an Insolvency Event.
(b) If this agreement is terminated for any reason or expires, You must immediately cease using the Software, and must delete all copies of the Software that are in Your possession or control.
7. EXCLUSIONS AND LIMITATIONS OF LIABILITY
(a) To the maximum extent permitted by applicable law, and subject to the other terms of this clause 7 as applicable:
(i) all implied terms are excluded from this agreement;
(ii) AAkonsult’s total aggregate liability, whether in contract, tort (including negligence) or otherwise, to You in connection with the use of the Software and under or in connection with this agreement will not exceed the total Fees paid by You during the 12 months ending on the date of the event, or first in a series of events, giving rise to liability; and
(iii) AAkonsult will not be liable for any loss of profit, loss of revenue, loss of goodwill or business reputation, loss of data or loss of business opportunity or any consequential, indirect, or special loss or damage whether in contract, tort (including negligence) or otherwise.
(b) Nothing in this agreement excludes or limits the application of any Consumer Guarantee.
(c) Where AAkonsult is not permitted to exclude its liability for any loss or damage in connection with its breach of a Consumer Guarantee, but is permitted to limit its liability for such a breach, then, unless You are able to establish that it is not fair and reasonable for AAkonsult to do so, AAkonsult’s liability to You is limited to:
(i) if the breach relates to the supply of goods (including software), the repair or replacement of the goods, the supply of equivalent equipment or the payment of the cost of repairing or replacing the goods or supplying equivalent goods; or
(ii) if the breach relates to the supply of a service, resupplying the service or paying the cost of having the service resupplied.
(d) You acknowledge and agree that:
(i) important components of the functionality accessible to You by means of the Software are provided by third parties;
(ii) subject to the other terms of this clause 7, as applicable, AAkonsult will not be liable to You, whether in contract, tort (including negligence) or otherwise, in respect of any component or functionality provided by a third party; and
(iii) you have read and agree to comply with Direct Payment Solutions Terms and Conditions, which are available at http://www.paymentexpress.com/about/about_paymentexpress/terms_and_conditions.html.
(a) Any notice, approval, consent or other communication in relation to this agreement must be in writing and must be signed by the party giving the notice or any authorised officer of that party by pre-paid post, facsimile or email as follows:
(i) if it is AAKonsult:
Address: PO Box 175, Williamstown VIC 3016 Australia
Attention: Jeff Challis
Facsimile No.: +61 (3) 8080 6635
Email address: firstname.lastname@example.org
(ii) if it is You, to the postal address, facsimile no. or email address submitted by You as part of Your registration details. or as otherwise specified by a party by notice.
(b) Unless a later time is specified in a notice, the notice takes effect from the time it is received.
(c) A notice is taken to be received:
(i) in the case of a notice delivered by hand, when delivered to the addressee;
(ii) in the case of a notice sent by pre-paid post, on the second clear Business Day after the date of posting;
(iii) in the case of a notice sent by facsimile, when transmitted to the addressee; and
(iv) in the case of a notice sent by email, on the date on which the sender can demonstrate that the email left the computer system controlled by the sender without receipt of an error message, but if delivery or receipt is on a day which is not a Business Day or is after 5.00 pm at the place of delivery or receipt, it is regarded as given at 9.00 am on the next Business Day.
(d) A notice that is posted is valid even if the addressee does not receive it or it is returned unclaimed to the sender.
(a) This agreement replaces all previous representations, arrangements, understandings and agreements between the parties relating to the subject matter of this agreement and contains the entire agreement between the parties in relation to its subject matter.
(b) A waiver of any right under this agreement must be in writing and executed by the party granting the waiver.
(c) A failure to exercise, a delay in exercising, or a partial exercise of, a right created under this agreement does not result in a waiver of that right.
(d) A variation of any term of this agreement must be in writing and signed by the parties.
(e) A provision of or an application of a provision of, this agreement which is void, illegal or unenforceable for any reason in any jurisdiction does not affect the validity legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
(f) If a clause in this agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions of this agreement.
(g) A party must not assign its rights under this agreement unless it has the other party’s written consent. A party must not unreasonably withhold its consent/ may give or withhold its consent in its sole discretion.
(h) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or part of it.
(i) This agreement is governed by the laws of Victoria, Australia.
(j) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
(a) “Business Day” means any day that banks are open for general banking business in the place from which the relevant notice is sent.
(b) “Consumer Guarantee” has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law.
(c) “Insolvency Event” means the happening of any of these events:
(i) where a party is a natural person, the person becomes bankrupt, files or is served with a petition in bankruptcy or is served with a bankruptcy notice, the person is unable to pay his or her debts as and when they become due and payable or a creditor’s meeting in relation to that person is called;
(ii) an application is made to a court for an order or an order is made that a body corporate be wound up, and the application is not withdrawn, stayed or dismissed within 21 days of being made;
(iii) appointment of a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller in respect of a body corporate or its assets;
(iv) except to reconstruct or amalgamate while solvent a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(v) a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent or otherwise wound up or dissolved;
(vi) a body corporate is or states that it is insolvent;
(vii) as a result of the operation of section 459F(1) of the Corporations Act, a body corporate is taken to have failed to comply with a statutory demand;
(viii) a body corporate is or makes a statement from which it may be reasonably deduced that the body corporate is, the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act;
(ix) a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable law;
(x) a body corporate ceases to carry on business; or
(xi) anything analogous or having substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
(d) “Intellectual Property Rights” means:
(i) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including development or improvements of equipment, products, technology, processes, methods or techniques;
(ii) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the
(iii) confidential information and trade secrets;
(iv) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get -up; and
(v) proprietary rights under the Circuit Layouts Act 1989 (Cth).
(e) “Related Body Corporate” of an entity means any body corporate which is related to that entity within the meaning of the Corporations Act.
(f) “Software” means the Payments2Us (aka AAkonsult Payments) Application;
(g) “Services” means any services provided to You by AAkonsult, including, but not limited to, consulting services.
(a) In this agreement unless the context requires otherwise:
(i) a reference to a person includes a reference to a company, partnership, joint venture, association, corporation or other body corporate or a government body;
(ii) the singular includes the plural and the plural includes the singular;
(iii) a reference to one gender includes any gender;
(iv) a reference to a clause, party, schedule, annexure or attachment is a reference to a clause of, and a party, schedule, annexure and attachment to, this agreement and a reference to this agreement includes any schedule, annexure or attachment;
(v) a reference to a party to this agreement includes that party’s executors, administrators, successors and permitted assigns;
(vi) a reference to legislation or to any provision of any legislation includes a reference to any modification, consolidation, replacement or re-enactment of it, and includes any subordinate legislation made under it;
(vii) a reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not:
(A) which ceases to exist; or
(B) whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
(viii) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
(ix) a reference to an agreement other than this agreement includes a deed any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing;
(x) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(xi) the words ‘includes’ and ‘including’ are not words of limitation; and
(xii) if an act required to be done under this Agreement on or by a given day is done after 5:30 pm on that day, it is taken to be done on the following day.
(xiii) In this agreement, headings are for convenience only and do not affect the interpretation of this agreement;
(xiv) Where something must be done under this agreement on a given day and that day is not a Business Day then that thing must be done on the next Business Day.