Bubblepay

1. Background

The Customer wishes to procure the BubblePay Services for purposes relating to its business. BubblePay is the provider of the BubblePay Services to its customers in the Jurisdiction. BubblePay has agreed to provide the Customer, and the Customer has agreed to receive from BubblePay, the BubblePay Services in accordance with the terms and conditions of this Agreement.

2. Definitions and Interpretation

Definitions. The meanings of the terms used in this Agreement are set out below, including Agreement, BubblePay Hardware, BubblePay Material, BubblePay Services, BubblePay Software, Business Day, Business Hours, Claim, Commencement Date, Confidential Information, Customer Data, Customer Material, Fees, Force Majeure Event, Intellectual Property Rights, Personal Information, Privacy Laws, Subscription Fees, Support Services, Term, Transaction Fee, Update, User and User Transaction. Interpretation. Headings are for ease of reference only and do not affect the meaning of this Agreement. The singular includes the plural and vice versa, references to a clause include schedules and annexures, references to writing include any permanent and visible form, and references to legislation include amendments or replacements.

3. Agreement

BubblePay has offered to provide to the Customer the BubblePay Services in consideration for the Fees on the terms and conditions contained in this Agreement. The Customer accepts BubblePay’s offer.

4. Term

This Agreement commences on the Commencement Date and continues in full force and effect for the Initial Term unless terminated earlier or extended. Unless the Customer gives at least 14 days’ written notice before the then current Term expires, the Term renews automatically for successive 12-month Further Terms. The Customer expressly authorises BubblePay to charge the applicable Fees for each Further Term.

5. Installation and Delivery

The BubblePay Services are deemed delivered when BubblePay provides the Customer with system access enabling use of the BubblePay Software. Upon delivery, the Customer is responsible for ensuring the BubblePay Services are used only in accordance with this Agreement.

6. BubblePay Hardware

Title and Interest. BubblePay Hardware is leased to the Customer in consideration of the Agreement and payment of Fees. BubblePay retains all title, rights and interests and may register its interest on the PPSR. Installation. Subject to payment of Fees due before installation, BubblePay will install the Hardware in accordance with the Proposal. Removal and Replacement. On expiry or termination, BubblePay may remove the Hardware. Where Hardware is damaged or unserviceable due to the Customer’s actions, replacement and installation may be at the Customer’s expense.

7. Intellectual Property

BubblePay and its licensors own all Intellectual Property Rights in BubblePay Material. Subject to payment of all Fees, BubblePay grants the Customer a limited, non-exclusive, personal, non-transferable, revocable licence to use BubblePay Material solely as necessary to enjoy the BubblePay Software for internal business purposes. The Customer grants BubblePay the rights necessary to use Customer Materials and Customer Data to provide the BubblePay Software.

8. BubblePay Software Licence

Subject to payment of Fees, BubblePay grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable and revocable licence to use the BubblePay Software and Documentation for the Customer’s business purposes during the Term. The Customer may allow Users to access the Software and Documentation only for that permitted purpose and remains responsible for their compliance.

9. Use of the BubblePay Software

Restrictions on use. The Customer and its Users must not copy, reproduce, lease, sub-license, sell, alter, modify, reverse engineer, disrupt, interfere with, compromise the security of, or otherwise make the BubblePay Software available to third parties except as permitted by this Agreement. Customer responsibilities. The Customer is responsible for its equipment, connectivity, Customer Materials, User Materials, consents and protection of the BubblePay Services from unauthorised access, use or damage.

10. Maintenance of the BubblePay Software

BubblePay will provide Support Services as required by the Proposal during Business Hours. BubblePay may carry out scheduled maintenance and Updates from time to time, and is not liable for Loss associated with the resulting unavailability.

11. Payment Collection Services

The Customer authorises BubblePay to engage a reputable third-party provider for collection services. Use of the BubblePay Services is subject to the Customer agreeing to the applicable provider terms. BubblePay may deduct Transaction Fees from Transaction Funds when a User Transaction is processed.

12. Fees

The Customer must pay the Subscription Fee and Transaction Fee in Australian dollars unless otherwise specified. Fees remain fixed for the Initial Term, and BubblePay may change Fees after that term with 30 days’ notice. Subscription Fees are charged monthly in advance; Transaction Fees are deducted when User Transactions are processed. Paid Fees are non-refundable unless required by law.

13. Confidentiality

Each party must keep the other party’s Confidential Information confidential and may disclose it only as permitted under this Agreement, including to personnel, related bodies corporate and professional advisers on a need-to-know basis. The obligation does not apply where disclosure is required by law, the information is public through no breach, independently developed or already known free of confidentiality obligations.

14. Privacy

The Customer must ensure each individual whose Personal Information is made available to BubblePay has received all required notifications and provided all necessary consents under applicable Privacy Laws for BubblePay to collect, use and disclose that Personal Information in providing the BubblePay Software.

15. Disclaimer

BubblePay does not warrant that use of the Subscription Inclusions will achieve a specific result, be uninterrupted or be free of minor bugs. The Customer enters this Agreement based on its own enquiries and is responsible for taking appropriate measures to minimise Loss arising from potential inaccuracies, interruption, corruption, degradation, loss or erasure of Customer data.

16. Indemnity

The Customer indemnifies BubblePay against Loss connected with attendance at the Customer’s Premises, third-party Claims arising from Customer or User Material, use of the Subscription Inclusions, breaches or negligent performance of this Agreement, violations of law, enforcement costs, and breaches of confidentiality or privacy obligations.

17. Liability

To the extent permitted by law, BubblePay’s aggregate liability for Loss arising in connection with the Subscription Inclusions or this Agreement is limited to the total Fees paid by the Customer in the three months before the event giving rise to liability. BubblePay is not liable for Consequential Loss, loss of profit, revenue, opportunity, data, goodwill, business, savings or reputation, subject to non-excludable obligations under Australian Consumer Law.

18. Termination of Agreement

BubblePay may terminate for late payment, unlawful or harmful use, or convenience with 60 days’ notice. After the Initial Term, the Customer may terminate for convenience with 30 days’ notice before expiry of a Further Term. Either party may terminate for insolvency, unremedied breach or material breach incapable of remedy. On termination or expiry, each party must promptly return the other’s Confidential Information.

19. Assignment

BubblePay may assign or novate all or part of its rights and obligations under this Agreement on written notice. The Customer may not subcontract, assign or novate rights under this Agreement without BubblePay’s prior written consent.

20. Disputes

Except for urgent interlocutory relief, parties must attempt to settle a dispute before external dispute resolution. The Complaining Party must provide written notice with relevant information, documentation and assistance. Appropriate senior management from both parties must meet and make a bona fide attempt to settle the dispute. If not settled within 10 Business Days, other dispute resolution avenues may be pursued.

21. Force Majeure

BubblePay is not in breach or liable for Loss where performance is prevented, hindered or delayed by a Force Majeure Event. BubblePay must notify the other party as soon as practicable, and time for performance is extended for the period of disruption while BubblePay continues using reasonable endeavours to perform its affected obligations.

22. Notices

Notices and other communications must be in legible English, signed by the relevant representative, and served by delivery, prepaid post or email. A notice takes effect when received unless a later time is specified. Posted notices are deemed received on the third Business Day after posting, or the seventh Business Day for international post; email notices are deemed received when received by the addressee’s server, subject to Business Hours.

23. General

Nothing in this Agreement creates a partnership, joint venture or authority to incur liability for the other party. Any variation or waiver must be in writing. If a provision is void, unenforceable or illegal in a jurisdiction, it is severed to the extent required without affecting the remainder. This Agreement is governed by the laws of Victoria, Australia, and each party submits to the exclusive jurisdiction of its courts and courts of appeal.

24. Survival

The continuing rights and obligations identified in the Agreement survive its termination or expiry, including the provisions addressing fees, confidentiality, privacy, indemnity, liability, disputes, notices and general terms.