Novatti Merchant Terms and Conditions

THESE STANDARD TERMS AND CONDITIONS CONSTITUTE A CONTRACT BETWEEN THE CLIENT AND NOVATTI AND GOVERN THE PROVISION OF PAYMENT AND RELATED SERVICES BY NOVATTI TO THE CLIENT.

1. PRECONDITIONS AND SERVICE PERIOD

1.1 Preconditions to provision of Services

(a) As conditions to the provision of Services by Novatti to the Client, the Client must, where deemed required by Novatti:

(i) accept all applicable Service Schedules; and

(ii) provide Novatti with the Security Deposit or have in place a settlement account (if required).

(b) If Novatti does provides the Client with any Services in anticipation of the Client satisfying the conditions in clause 1.1(a), Novatti will not be taken to have waived those conditions and, should the Client fail to meet those conditions to Novatti’s satisfaction, Novatti will be entitled to immediately cease providing any relevant Services to the Client.

1.2 Operation and Term

(a) These Standard Terms and Conditions shall come into operation with immediate effect from their date of acceptance and shall continue in full force and effect until the end of the Initial Service Period or terminated earlier in accordance with the terms set out in these Standard Terms and Conditions.

(b) At the end of the Initial Service Period, this Agreement shall continue until terminated in accordance with the provisions of clause 11.2 of these Standard Terms and Conditions.

2. SERVICES AND SERVICE MODEL

2.1 Services to Client

In consideration of the Fees, Novatti shall provide the Client with the Services.

2.2 Service Model

All Customers shall be clients of the Client for the purposes of the arrangements between the parties under this Agreement.

2.3 Schedules

The Reference Schedule and any Service Schedule accepted by the Client shall form part of this Agreement. The Client may accept any one or more Service Schedules from time to time and at any time.

3. FEES

3.1 Payment of Fees

(a) The Client agrees to pay Novatti the Fees as set out in applicable for the Fee Schedule.

(b) The Client indemnifies Novatti against all government fees, taxes or duties which Novatti is liable to pay in relation to the conduct of any account opened or operated by Novatti for the purpose of providing the Services, including when carrying out transactions on the Client’s behalf.

(c) In consideration of the services provided for and on behalf of the Client pursuant to this Agreement, the Client will pay any fees related to its Customers’ disputes.

(d) Novatti may, with notice at any time, offset any obligation due and payable by the Client to Novatti under this Agreement against any obligation due and payable by Novatti to the Client.

3.2 Billing

On a monthly basis, Novatti will provide the Client with an invoice in relation to all Fees as described in clause 3.1 applicable to the Services provided by Novatti to the Client (Invoice).

3.3 Failure to Pay

If payment is not made by the date specified in the Invoice, the Client may be charged a late payment fee each month the Invoice is overdue.

3.4 Fee Adjustments

(a) Novatti shall be entitled, at any time and from time to time, but no more than once in any 12 month period subject to clause 3.4(b), to increase the Fees.

(b) Notwithstanding and in addition to the right to increase Fees under clause 3.4(a), in the event that there is a change in Applicable Regulation or Relevant Law, or a new Relevant Law or Applicable Regulation is introduced in Australia which has the effect of increasing Novatti’s direct costs of providing the Services to the Client, then Novatti may increase its Fees. For the avoidance of doubt, this includes the introduction of a new tax.

(c) Novatti must provide the Client with at least sixty (60) days’ notice in writing before any increase in Fees under clause 3.4(b) is to take effect. Such notice under this clause must also provide sufficient details justifying the increase in Fees.

(d) If the Client disagrees with any such increase in the Fees pursuant to clause 3.4(a) or (b), the Client may within the sixty (60) day period stipulated in clause 3.4(c) terminate this Agreement with effect from the end of that sixty (60) day period by providing written notice to Novatti. If no such written notice is provided, the Client is deemed to have accepted the increase in Fees.

4. AUDIT RIGHTS

4.1 Right to inspect, monitor and audit

(a) The Parties acknowledge that a Regulator has the right to audit and inspect the Services required to be provided by Novatti under this Agreement at any time.

(b) Novatti has the right at any time, following not less than thirty (30) days’ notice, at its own cost to audit and inspect, and appoint an auditor to audit the Client’s performance of, and the Client’s compliance with, this Agreement. Novatti shall have access to any records and information solely relating to the Client’s obligations under this Agreement, whether stored electronically or in hardcopy for the purpose of conducting the audit.

(c) If the Client is involved with Non-Fiat Linked Programs, Novatti has the right to conduct enhanced auditing in line with Card Schemes requirements. The Client consents to allow Novatti to validate contracts between the Client and third parties. If the Client relies on third parties to administer its AML program and/or watchlist screening, then the Client also agrees to assist Novatti with auditing the third parties administration of the AML and/or watchlist screening program.

(d) The Parties acknowledge that this Agreement may be governed by certain standards issued by the Australian Securities and Investments Commission (ASIC) from time to time. Accordingly, each party agrees to give ASIC access to documentation related to such Services and allow ASIC to conduct on site visits to relevant premises owned or operated by Novatti or the Client respectively, if ASIC considers this necessary in its role as supervisor of Novatti and/or the Client. The Client acknowledges that in the normal course of business, ASIC may seek to obtain whatever information it requires of Novatti directly through Novatti. Neither Party will disclose or advertise the fact that ASIC has conducted an on-site visit except as necessary to coordinate with other clients receiving Services from Novatti.

(e) The Parties further acknowledge that the Card Scheme may have the right to seek independent certification of the Client’s compliance with Industry Codes. Such certification may include the conduct of on-site visits to relevant premises owned or operated by the Client, and to inspect or obtain copies of relevant records or information of the Client, to confirm compliance with such Industry Codes.

4.2 Audit reveals non-compliance

If an audit or inspection reveals non-compliance by the Client, then the Client must take remedial action, at the Client’s cost, including complying with any reasonable directions or instructions from Novatti, or any Regulator or Card Scheme.

5. COMPLIANCE AND OTHER OBLIGATIONS

5.1 Client’s obligations

(a) The Client must provide Novatti, as reasonably required and in a timely manner, with:

(i) access to the Client’s systems and sites to enable Novatti to perform Novatti’s obligations under this Agreement;

(ii) all assistance, access, information and materials reasonably necessary to enable Novatti to perform Novatti’s obligations under this Agreement;

(iii) all information and assistance which Novatti reasonably requires to comply with the Applicable Regulations; and

(iv) annual and/or periodic documentation detailing the Client’s compliance with Applicable Regulations and remediation plans for any non-compliant processes.

5.2 General compliance obligations

(a) Each Party shall have primary responsibility and liability to ensure that it complies with Relevant Laws and Applicable Regulations that apply to that Party in relation to receipt or provision of the Services and that Party’s own business and its operations.

(b) Each Party irrevocably undertakes to comply with such Relevant Laws and Applicable Regulations.

(c) Each Party must not by any act or omission cause the other Party to breach any Relevant Laws or Applicable Regulations or to jeopardise the other Party’s participation in any Card Scheme or Payment System.

(d) If there is a change of Law, Industry Code or Technical Standard by which a Party is bound in relation to the Services, that Party may submit a change request to Novatti in accordance with the Novatti change control framework in place from time to time.

5.3 Compliance with Applicable Regulations

Both Parties agree:

(a) that the Applicable Regulations shall form part of this Agreement to the extent necessary and relevant to the provision of Services, and nothing in this Agreement shall be read or construed so as to derogate from any obligation of Novatti or the Client under any such Applicable Regulations; and

(b) that in the event of any inconsistency between the Applicable Regulations and this Agreement, the Applicable Regulations shall prevail to the extent of the inconsistency, however all other terms and conditions of this Agreement shall not be affected.

5.4 Liability under Industry Codes

(a) In the event that Novatti receives instructions from a Card Scheme, Payment System or a Regulator in relation to the Services, and Novatti subsequently acts in accordance with those instructions, Novatti shall have no liability for any loss or damage sustained or incurred by the Client arising in connection with or as a result of such acts by Novatti.

(b) Novatti shall have no liability for, and the Client releases Novatti from any liability for any loss or damage sustained or incurred by the Client arising in connection with or as a result of any act or omission of a Regulator, Card Scheme, Payment System in a Card Scheme or Payment System, except to the extent arising from an act or omission of Novatti.

5.5 Client instructions

(a) The Client acknowledges and confirms that Novatti acts solely on the Client’s instructions in performing any of the functions in respect of the Services and that Novatti is not acting on the instructions of any Customer or any person acting on behalf of any Customer.

(b) The Client agrees that Novatti may delay, block or refuse to make or process a payment or transaction if Novatti believes on reasonable grounds that making that payment or transaction may breach any Law in Australia or any other country, and Novatti will incur no liability in taking such action. Novatti will, as soon as reasonably practicable and at all times subject to the requirements of the aforementioned Laws, notify the Client of this action.

(c) The Client declares and undertakes that the payment of monies by Novatti in accordance with any instructions given by the Client will not breach any Laws in Australia or any other country, as relevant.

(d) The Client must reimburse Novatti for any fines and penalties imposed by a Card Scheme, Payment System or Regulator on Novatti directly, as a result of the Client’s sole acts or omissions, except to the extent that such fines and penalties are attributable to any act or omission of Novatti.

(e) The Client acknowledges and accepts that it will settle any monetary fines that may be imposed against them for being non-compliant, including any that may impact Novatti.

5.6 Client Representations and Warranties

(a) The Client represents and warrants that:

(i) it has and will have the full right, power, title and authority to perform the obligations in this Agreement and has obtained or will in a timely manner obtain all consents, rights and permissions necessary for the performance of these obligations;

(ii) there are no liens, claims, encumbrances, restrictions or arrangements of any kind with other persons that will or might adversely affect the performance of its obligations hereunder;

(iii) there are no existing or anticipated claims which would adversely affect the performance of its obligations under this Agreement;

(iv) its execution, delivery and performance of this Agreement has been duly authorised and all other actions required to be taken by it under its organisational documents or by applicable law, and by all contracts and agreements binding upon it have been undertaken;

(v) it complies and shall continue to comply with all Applicable Regulations and Relevant Law;

(vi) in undertaking its obligations pursuant to this Agreement, it will exercise at least the same degree of competence and professionalism which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of business as that Party under the same or similar circumstances, but in no event with less than reasonable care;

(vii) it has and shall maintain for the duration of the Agreement, all necessary licences, consents and approvals for the provision of the services in accordance with this Agreement;

(viii) it shall not sell, resell, assign or otherwise transfer rights to, use, reproduce, decompile, reverse engineer, modify or distribute any proprietary information of the other Party that is not expressly authorised in this Agreement;

(ix) it shall make use reasonable endeavours to ensure its own business continuity in the event of a major disruption, disaster or failure, and shall put appropriate measures in place to provide for such circumstances; and

(x) entering into this Agreement shall not constitute or cause any breach of any other agreement to which it is a party.

6. SECURITY REQUIREMENTS

6.1 Form of security

(a) Where Novatti deems necessary, the Client may be required to provide a form of security.

(b) The form of security will be set out in the relevant Service Schedule. Novatti may amend the security requirement from time to time by providing the Client with written notice. Provision of any Services shall not commence unless and until the Client has complied with any such security requirements, where applicable.

(c) Novatti may require the Client to provide a different form of security including a cash Security Deposit, guarantee, guarantee and indemnity, lien or otherwise, in respect of the Services.

6.2 The Security Deposit Account

(a) If deemed necessary by Novatti, Novatti will open a Security Deposit Account into which the Client must deposit the amount of any Security Deposit required by Novatti. Novatti must grant viewing rights to the Security Deposit Account to the Client.

(b) Novatti will calculate the level of Security Deposit required by considering, without limitation, the nature of the Services the Client has or seeks to acquire, the risk associated with such Services, any applicable transaction value and the Client’s risk profile, including the Client’s credit rating.

(c) If there is a significant increase in transaction values and/or the Client’s risk profile changes, Novatti may increase or reduce the level of Security Deposit required in its absolute discretion and will advise the Client of the revised amount of the Security Deposit.

(d) Under this Agreement, whether current, expired, or terminated, the Security Deposit will be held by Novatti until all transactions are settled and all accounts are closed.

(e) If the Client fails to meet their daily settlement obligations, Novatti may access the Security Deposit for the purpose of settling with the Card Scheme.

6.3 Risk assessments

(a) Novatti may undertake periodic risk assessments in relation to the Client, and, if such risk assessment by Novatti determines that there has been a material adverse change in the Client’s financial state, a material increase in the volume or dollar amount of transactions processed by Novatti on behalf of the Client, or that there exists any damaging or negative financial exposure for Novatti, then Novatti may amend the Client’s security requirements, including changing the Initial Settlement Amount deposited by the Client in the Settlement Account and/or the Security Deposit Account. Novatti will provide the Client with reasonable notice of any such changes to the security requirements.

(b) To assist it with its risk assessments, Novatti may, from time to time and in accordance with this clause, require the Client to provide Novatti with any profit and loss statements, copies of accounts submitted to the Australian Securities and Investments Commission, certified copies of the Client’s auditor’s report or any other document reasonably required in support of the Client’s solvency and financial position. Novatti will provide the Client no less than five (5) Business Days’ written notice of Novatti’s requirement to view the specified documents.

(c) If the Client will be unable to comply with the requirements of clause 6.3(b), and the Client provides Novatti with written details within forty-eight (48) hours of being served with the notice from Novatti, as to why the Client is unable to comply, Novatti may, in Novatti’s absolute discretion, allow the Client more time to produce the documents. In that event, the Client must produce the documents by the expiration of the extended period.

(d) Subject to clause 6.3(c), if Novatti provides the Client with notice in accordance with clause 6.3(b), the Client must, except where the production of documents would be in violation of any confidentiality obligation undertaken by the Client, comply with the request to produce documents no later than five (5) Business Days after service of the notice.

6.4 Secured Money

(a) The Client acknowledges and agrees that for the Service Period, Novatti shall have the sole authority to operate the Settlement Account and Security Deposit Account (if applicable) for the purposes of this Agreement.

(b) Novatti may, where appropriate, set off or otherwise deal with the whole or any part of the Security Deposit or the funds represented by the credit balance in the Settlement Account.

(c) Novatti is not required to return the Security Deposit, or any part of the funds represented by the credit balance in the Settlement Account, which in Novatti’s reasonable opinion is required to satisfy the Client’s obligations under this Agreement. That part of the Security Deposit or any other such funds shall not be returned to the Client until such time that in Novatti’s reasonable opinion, there is:

(i) no prospect that any money or damages will or may become owing (actually, prospectively or contingently) by the Client to Novatti under this Agreement or in connection with the Services; and

(ii) no likelihood that any payment made by the Client towards the satisfaction of the Client’s obligation to pay the Secured Money is void or voidable as a preference under any law relating to bankruptcy or liquidation.

(d) The Client hereby warrants and represents that the Client is the sole legal and beneficial owner and is entitled absolutely to the funds that the Client has deposited into the Security Deposit Account pursuant to this Agreement.

(e) All rights and obligations of the Parties under this clause 6.4 which accrued prior to termination of the Agreement shall survive termination of the Agreement.

7. SOFTWARE

(a) Where reasonably required to ensure provision of the Services, each Party agrees to provide the other Party with necessary access rights to their respective software for providing the Services. The Parties mutually agree to integrate the Novatti Software and the Client Software for providing the Services. Any agreement, understanding or arrangement between the Parties relating to the integration of their respective Software, for the purpose of providing the Service, shall be in writing, binding on the Parties and be considered an integral part of this Agreement.

(b) All Service Instructions relating to Services shall be communicated via the Integrated System, which shall include details such as the name of the Sender, identification details of the Recipient, Transfer Amount and such other information as mutually agreed between the Parties from time to time which are deemed necessary to carry out the Services.

(c) The Parties agree to take all reasonable precautions to prevent any fraudulent transactions. The Parties agree to use the Integrated System only for providing the Services. Any reasonable instructions issued by either Party relating to the use of their respective Software shall be complied with by the other Party.

(d) All aspects of the Novatti Software, including its proprietary rights, copyrights, other intellectual property rights, programs, methods of processing, all modifications and improvements will remain the right of Novatti. The Client shall not assert any claim to the Novatti Software during the term of this Agreement or after termination of this Agreement. The Client shall not copy, reproduce, decompile, reveal, disclose or otherwise communicate, directly or indirectly, any information or guidelines concerning the Novatti Software to any third party without prior written permission from Novatti.

(e) All aspects of the Client Software, including its proprietary rights, copyrights, other intellectual property rights, programs, methods of processing, all modifications and improvements will remain the property of The Client and/or its licensor(s). Novatti shall not assert any claim to the Client’s Software during the term of this Agreement or after termination of this Agreement. Novatti shall not copy, reproduce, decompile, reveal, disclose or otherwise communicate, directly or indirectly, any information or guidelines concerning the Client Software to any third party without prior written permission from the Client.

(f) Both Parties agree to be bound by all Service Instructions given using the Integrated System. The Parties shall ensure that only their Designated Employees have access to the Integrated System. Both Parties shall be entitled to assume that any Service Instructions given to it by the other Party through the Integrated System, are given by Designated Employees of the other Party.

(g) Each Party’s right to use the other party’s Software shall terminate simultaneously with the termination of this Agreement.

8. WARRANTIES REGARDING SOFTWARE

(a) Novatti makes no representation or warranties with respect to the Novatti Software, express or implied, and to the extent permitted by law, specifically disclaims the implied warranties of fitness for a particular purpose and merchantability, and any warranty against infringement. The Novatti Software provided by Novatti under this agreement is provided to the Client as is with all faults.

(b) The Client makes no representations or warranties with respect to the Client Software, express or implied, and to the extent permitted by law, specifically disclaims the implied warranties of fitness for a particular purpose and merchantability, and any warranty against infringement. The Client Software provided by the Client under this agreement is provided to Novatti as is with all faults. The Client warrants that all information provided under this Agreement and in relation to the Agreement is true and correct at the time of provision.

(c) Notwithstanding clause 8(b), the Client will be solely responsible for operating and maintaining the Client Software. Novatti will not be responsible for any issues that arise from the use of the Client Software until the instruction is received by Novatti through the Integrated Software.

9. SUBCONTRACTORS

9.1 Entitlement to subcontract

(a) Novatti shall be entitled from time to time to sub-contract in whole or in part the provision of the Services to a sub-contractor or a Related Body Corporate provided that Novatti shall ensure that the sub-contractor or Related Body Corporate has appropriate experience and expertise and Novatti shall advise the sub-contractor of Novatti’s obligations, undertakings and liabilities pursuant to this Agreement in respect of the Services to be provided by the sub-contractor, subject to the terms of this Agreement.

(b) Although the performance by the sub-contractor of an obligation due to the Client from Novatti will discharge that obligation, Novatti’s liability under this Agreement shall not otherwise be discharged, diminished, limited or affected in any way and Novatti will remain responsible for and liable for any non-performance or defective or incomplete performance of an obligation of Novatti by a sub-contractor.

(c) Novatti shall be solely responsible and liable for any financial arrangements Novatti makes with the sub-contractor and those arrangements will have no effect on the financial arrangements under this Agreement between Novatti and the Client. (For the avoidance of doubt, this does not limit any rights Novatti has under clause 3.4 to adjust the Fees.)

10. SUSPENSION OF AGREEMENT

Novatti reserves the right to suspend the Client’s access to any one or more of the Services:

(a) the Client’s account has been inactive for more than three (3) months;

(b) in the event of the Client’s actual or anticipated breach of these Standard Terms and Conditions or a Service Schedule, including a failure to pay Fees when due;

(c) to prevent, in Novatti’s judgement, fraud or damage to, degradation of, unauthorized access to, or the security, integrity or availability of any of the Services;

(d) to prevent, in Novatti’s judgement, reputational harm to Novatti or its business;

(e) in circumstances where Novatti is directed to do so by a Card Scheme, Regulator, supplier or other third party;

(f) to prevent a breach of or comply with a Relevant Law, including any Applicable Regulations and AML/CTF Laws; or

(g) if Novatti’s relationship with a third-party services provider is adversely impacted by the Client’s activities or the relationship otherwise expires, terminates or requires Novatti to change the way any part of the Services are provided.

Novatti will use reasonable efforts to provide the Client with prior notice of any suspension of the Services, and will restore access to the Services as soon as practicable following the satisfactory resolution of the event giving rise to suspension. Notwithstanding a suspension of Services under this clause, Novatti may at any time terminate this Agreement and/or any Service Schedule in accordance with the provisions of clause 11.

11. TERMINATING THE AGREEMENT

11.1 Breach of Agreement

The Client shall notify Novatti immediately if the Client becomes aware of any breach of this Agreement, Service Schedule or of any Relevant Laws, Applicable Regulation or another event which may be materially detrimental to Novatti, the Services, a Card Scheme or Payment System.

11.2 Termination by either Party without cause

(a) After the Initial Service Period for any Service, either Party may terminate this Agreement and any Service Schedule relevant to that Service, in part or in whole, without cause by giving the other Party at least 90 days’ notice in writing specifying the Services to be terminated. The right to terminate a part of a Service Schedule is subject to any restriction stipulated in the Service Schedule which may preclude termination of any particular service. A notice to terminate this Agreement shall be deemed a notice to terminate all Service Schedules.

(b) For the avoidance of doubt, either Party may provide the written notice before the end of the relevant Initial Service Period, however the Service will terminate at the end of the notice period.

11.3 Termination of Agreement by the Client

(a) Subject to clause 11.2(b), this Agreement or any Service Schedule may be immediately terminated by the Client by notice in writing given to Novatti if:

(i) an Insolvency Event occurs with respect to Novatti; or

(ii) there is a Material Breach by Novatti and Novatti fails to remedy the breach within 20 Business Days of being notified by the Client of the breach (or such longer period that the Parties may agree to in writing); or

(iii) there is a Material Breach by Novatti which cannot be remedied.

(b) Subject to any express provision to the contrary in a Service Schedule, if the only breach committed by Novatti is a breach of the terms of a Service Schedule, the Client may only terminate that Service Schedule.

(c) The Client may terminate this Agreement, including any Service Schedule, after the date of execution of this Agreement, (including any Service Schedule), but prior to the expiry of the relevant Initial Service Period, by:

(i) providing Novatti with 90 days written notice; and

(ii) paying Novatti an early termination payment calculated by multiplying the monthly average of all Fees paid by the Client for the relevant Services from the Commencement Date to the date of termination by the number of months (including part of a month with fractions calculation by reference to days in a month) remaining in the Initial Service Period after the date of termination (Early Termination Payment).

(d) The Client agrees that the payment of the Early Termination Payment shall not be considered a penalty pursuant to this Agreement but a reasonable and agreed estimate of contractual damages to compensate Novatti for the early termination of an agreed minimum term agreement.

(e) For the avoidance of doubt, if the Client terminates this Agreement under clause 11.2(b) before the end of the Initial Service Period, the Early Termination Payment will apply.

11.4 Termination of Agreement by Novatti

(a) Subject to clause 11.3(b), this Agreement or any Service Schedule may be immediately terminated by Novatti by providing the Client with written notice if:

(i) an Insolvency Event occurs with respect to the Client;

(ii) there is a Material Breach by the Client and the Client fails to remedy the breach within 20 Business Days of being notified by Novatti of the breach (or such longer period that the Parties may agree to in writing);

(iii) there is a Material Breach by the Client which cannot be remedied;

(iv) an Event of Default occurs; or

(v) the Client fails to pay Novatti the Fees or any other amount owing under this Agreement or fails to comply with the provisions of this Agreement in relation to settlement or any security requirements.

11.5 Effect of termination

(a) Termination of this Agreement or any Service Schedule for any reason shall not affect the right of either Party to seek damages for any breach of this Agreement or the Service Schedule, as relevant, which occurred before such termination, including (if applicable) damages arising from any breach which gave rise to termination.

(b) On termination, all Fees owing to Novatti up to the date of termination which relate to that part of the Services terminated, become immediately due and payable.

(c) On termination of this Agreement, Novatti may exercise Novatti’s rights under this Agreement in relation to Security Deposits and Settlement (as applicable).

(d) Regardless of the date of termination of this Agreement, the Parties agree to continue to be bound by all relevant terms set out in this Agreement during any termination notice period, and that Novatti’s provision of Services to the Client during any termination notice period are subject to the Client’s compliance with its obligations under the terms of this Agreement.

11.6 Survival of clauses after termination

In addition to anything else provided for in this Agreement, the obligations in clauses 3, 9, 11-18 (inclusive) and 20, as relevant, are continuing obligations and shall survive termination of this Agreement.

12. DISPUTE RESOLUTION REGARDING CONTRACTUAL OBLIGATIONS

12.1 Dispute Resolution in relation to this Agreement

(a) A Party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute or disagreement arising out of, in relation to or in connection with this Agreement (Contractual Dispute) unless it has complied with clauses 12.1-12.3.

(b) Each Party must use its best efforts to resolve each Contractual Dispute.

12.2 Notification of Dispute in relation to this Agreement

(a) A Party claiming that a Contractual Dispute has arisen (the Claimant) must notify the other Party in writing of the Contractual Dispute, providing sufficient details regarding the nature of the Contractual Dispute and the remedies sought (the Dispute Notice).

(b) The other Party (the Respondent) must, within seven (7) Business Days of receipt of the Dispute Notice, notify the Claimant in writing of its response to the Dispute Notice (Response).

(c) Each Party must cooperate with the other Party and promptly provide all information and assistance reasonably required by the other Party in formulating a Dispute Notice or a Response.

12.3 Escalation of Dispute regarding this Agreement

(a) The Parties must arrange for their authorised representatives or their respective nominees of at least equivalent seniority in the organisation to meet and use reasonable endeavours to resolve the Contractual Dispute within ten (10) Business Days after the receipt by the Claimant of the Response or a longer period agreed in writing by the Parties (the Initial Period).

(b) If the Parties fail to resolve the Contractual Dispute within the Initial Period, the Parties must arrange for their General Managers or their respective nominees of at least equivalent seniority in the organisation to meet and use reasonable endeavours to resolve the Contractual Dispute within ten (10) Business Days after the end of the Initial Period or a longer period agreed in writing by the Parties (the Second Period).

(c) Both Parties must cooperate to ensure that the meetings required by this clause 12.3 take place in a timely manner, and that they participate in such meetings in good faith.

(d) The Parties may only initiate court proceedings if they have complied with the dispute resolution process in this clause 12 and failed to resolve the Contractual Dispute within the Second Period.

12.4 Continuation of Services

Notwithstanding that the Parties may be in a Contractual Dispute, both Parties shall continue to comply with their obligations under this Agreement.

13. PRIVACY

13.1 Collection of Personal Information by Novatti

(a) Where Novatti collects or receives any Personal Information which was made available by the Client in connection with the provision or use of the Services, Novatti:

(i) must comply with all Relevant Laws, Applicable Regulations and Novatti’s own privacy policy with regards to the collection, protection and use of that Personal Information; and

(ii) must take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, and from unauthorised access, modification or disclosure.

13.2 Client’s collection of Personal Information from Customers

(a) Where the Client collects any Personal Information from the Client’s Customers in connection with the provision or use of the Services, and such Personal Information is to be disclosed to Novatti for the purposes of this Agreement, the Client must ensure that it complies with all Relevant Laws with respect to the collection and disclosure of such Personal Information.

(b) Without limiting clause 13.2(a), the Client must ensure that, where relevant, at or before the time the Personal Information of a Customer is disclosed to Novatti, the Customer is made aware of:

(i) the disclosure of the Customer’s Personal Information to Novatti;

(ii) how the Customer can contact Novatti;

(iii) the fact that the Customer can gain access to their Personal Information held by Novatti;

(iv) the purposes for which their Personal Information is collected by Novatti,

(v) any organisations which Novatti advises the Client it may disclose Customers’ Personal Information to;

(vi) the fact that AML/CTF Laws require the collection of the Customer’s Personal Information; and

(vii) that without the Customer’s Personal Information, Novatti may not be able to provide the Services.

13.3 Use of Personal Information on termination

On termination of this Agreement, except where Novatti is required by Relevant Law to retain the Personal Information, Novatti must promptly return to the Client or destroy all copies of the Personal Information.

14. DATA PROTECTION

14.1 Processing Personal Information by Novatti

Novatti in performing its obligations hereunder will process Personal Information existing in Client Customer Data on the Client’s behalf and in any such case, Novatti shall:

(a) process Client Customer Data only in accordance with the Client’s instructions from time to time and shall not process Client Customer Data for any purpose other than those expressly authorised by the Client;

(b) without unreasonable delay following a written request made by the Client, securely return or destroy all Client Customer Data, provided that it shall be entitled to retain a copy of the Client Customer Data:

(i) for internal audit and record keeping purposes; and

(ii) to the extent required to comply with its regulatory and other obligations under applicable law;

(c) not permit those of its employees who do not need to access the Client Customer Data for the purposes of its performance of the Payment Service to access such data and shall take reasonable steps to ensure the reliability of those of its employees who are permitted access to the Client Customer Data; and

(d) without unreasonable delay inform the Client upon becoming aware that any Client Customer Data in Novatti’s possession or under its control is lost or destroyed or is damaged or materially corrupted. In such circumstances, Novatti will use reasonable endeavours to restore such Personal Data at its own expense.

14.2 Processing Personal Information by the Client

The Client warrants that it will process the Client Customer Data and shall not instruct Novatti to process the Client Customer Data otherwise than in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments which are legally binding upon it and that any Client Customer Data supplied by it, its employees, contractors or agents has been lawfully obtained and will be lawfully supplied to Novatti.

14.3 Data Protection Indemnification and acknowledgements

(a) Each Party agrees to indemnify and keep indemnified and defend at its own expense the other Party against all losses, liabilities, fines, penalties, costs and / or expenses incurred by the other Party or for which the other Party may become liable to the extent due to any failure by the first Party or its officers, employees or agents to comply with any of its obligations under this clause 14.

(b) The Client acknowledges that Novatti is reliant on the Client for direction as to the extent to which Novatti is entitled to use and process the Client Customer Data. Consequently, Novatti will not be liable for any losses, liabilities, fines, penalties, costs and/or expenses incurred by the Client and arising from any action or omission by Novatti, to the extent that such action or omission resulted from the Client’s instructions.

15. CUSTOMER INFORMATION

(a) Novatti and the Client understand and agree that any and all Customer Information that could identify an individual customer is Confidential Information.

(b) The Parties acknowledge that all Customer Information is the property of both Parties. Without limiting the foregoing obligations in this clause 15 as they apply to Customer Information, the Parties shall, so long as they are in possession, custody or control of Customer Information:

(i) use adequate physical, organizational and technological security measures to protect Customer Information against loss, theft and unauthorised access, disclosure, copying, use, or modification, and otherwise as may be specified by Novatti pursuant to this clause 15;

(ii) immediately inform the other Party of:

(A) any loss, theft or accidental or unauthorized access, disclosure, copying, use, or modification of Customer Information and

(B) any disclosures made or proposed to be made that are required by law, unless such notification to Novatti is expressly prohibited by applicable laws;

(iii) designate an individual to handle all aspects of performance of its obligations hereunder that relate to the handling of Customer Information, whose name and contact details and any changes thereof shall be promptly communicated to the other Party;

(iv) on reasonable notice and during normal business hours, permit Novatti or its designee to inspect any Customer Information in the custody or possession of the Client in connection with this Agreement and to audit the Client’s compliance with its obligations described in this clause, including the security measures used to protect Customer Information, and shall permit Novatti to enter onto the Client’s premises for such purposes, and shall otherwise promptly and properly respond to all reasonable inquiries from Novatti with respect to the Client’s handling of Customer Information in connection with this Agreement; and

(v) not subcontract, assign or delegate its obligations with respect to collection, use, disclosure, handling or processing of Customer Information in connection with this Agreement without the prior written consent of Novatti and without obtaining written contractual commitments substantially the same as those of this clause.

(c) This clause shall survive the termination of this Agreement for a period of seven (7) years.

16. CONFIDENTIALITY

16.1 Confidentiality

(a) Subject to clause 16.1(b), each Party agrees and undertakes to hold in complete confidence any Confidential Information disclosed to it, and not to disclose it in whole or in part at any time to any third party, nor use Confidential Information for any purpose other than the performance of its obligations under this Agreement, or as otherwise permitted hereunder. This provision shall survive the termination of this Agreement for any reason for a period of five (5) years.

(b) Neither Party will at any time without the prior written consent of the other (which may be given on such terms and conditions as such other Party may consider appropriate or which may, in its absolute discretion, be refused) make any public announcement, press release, communication or circular about, or disclose or reveal to any person or party (other than either Party’s representatives on a need to know basis who are directly concerned with the implementation of business between Novatti and the Client and whose knowledge of such Confidential Information is essential or desirable for such purposes and who shall be informed of the confidential nature of the information; or as required by law or regulation (and then, except where notice would be unlawful, only after prior written notice to the other Party)):

(i) the Confidential Information; or

(ii) the fact that discussions or negotiations are taking place or any of the terms, conditions or other facts with respect to the implementation of business between Novatti and the Client contemplated herein involving either Party including the status thereof.

(c) Novatti may include references to the Client to be agreed in advance by the Client (such agreement not to be unreasonably withheld, conditioned or delayed) in Novatti’s promotional material.

(d) Each party shall keep in confidence the Confidential Information using the same degree of care it uses to protect its own confidential or proprietary information, but in any event no less than reasonable care. Each party also agrees not to use or disclose such Confidential Information to any person or for any purpose except as necessary to perform its obligations under this Agreement, unless it has received the other party’s prior written consent to any other use or disclosure of Confidential Information. The Client shall immediately notify Novatti if the Client comes to know of or suspects unauthorised disclosure of any Confidential Information or Customer Information. The Client shall also assist Novatti in any necessary investigation(s) related to such unauthorised disclosure.

(e) The Client agrees that it shall not use, copy, transfer or destroy any Confidential Information other than as necessary in the course of performing its obligations under the Agreement, without Novatti prior consent, and the Client shall take all reasonable precautions to prevent inadvertent use, copying, transfer or destruction of any Confidential Information.

(f) The prohibition set out in this clause 16 above does not apply to any Confidential Information if:

(i) the Confidential Information is not Customer Information and is available to the public or in the public domain at the time of such disclosure or use, without breach of this Agreement;

(ii) the disclosure is made to a court which is determining the rights of the parties under this Agreement; provided that before disclosure is made under this clause 16.1(f)(ii) notice is given to the other party (unless specifically prohibited by law or court order) and the other party is afforded an opportunity to dispute the requirement; or

(iii) the disclosure is made by the Client to Novatti.

(g) Either party may disclose Confidential Information in the event it is required to be disclosed by law or regulation, provided that, and where such notification is not unlawful, the Receiving Party immediately notifies the Disclosing Party of such requirement to enable representations to be made to the authority concerned.

(h) This clause shall survive the termination of this Agreement for a period of seven (7) years.

16.2 Personnel

The Receiving Party must enforce each undertaking of its personnel to keep Confidential Information confidential. The Receiving Party is liable to the Disclosing Party for all acts or omissions of its personnel which, if they were acts or omissions of the Recipient, would breach the terms of this Agreement.

16.3 Return of Materials

On termination or expiry of this Agreement or a Service Schedule, or earlier on reasonable request by the Disclosing Party, the Receiving Party must at the option of the Disclosing Party promptly return to the Disclosing Party or destroy any or all copies of Confidential Information of the Disclosing Party save for any copy that the Receiving Party is required by Law to retain or which cannot be located or permanently deleted from any back up logs, in which case any right to use, copy and disclose that Confidential Information ceases.

16.4 Survival

The Recipient’s obligations under clauses 16.1 - 16.3 continue indefinitely in relation to Confidential Information of the Disclosing Party, even if that Confidential Information is returned to the Disclosing Party or destroyed, or this Agreement expires or is terminated.

17. INTELLECTUAL PROPERTY

17.1 Ownership of Intellectual Property

(a) All Intellectual Property which is owned by, or is proprietary to, the Client as at the Commencement Date, or which is developed separately from this Agreement by the Client during the Service Period shall at all times remain owned by the Client exclusively.

(b) All Intellectual Property which is owned by, or is proprietary to, Novatti as at the date of execution of this Agreement, or which is developed separately from this Agreement by Novatti, shall at all times remain owned by Novatti exclusively.

(c) Subject to clauses 17.2(a) and 17.3, all rights to Intellectual Property used in providing the Services or developed in the course of providing the Services vests in Novatti.

17.2 Licences to use Novatti Intellectual Property

(a) In consideration of the Fees, Novatti grants to the Client a non-exclusive, non-transferable, revocable licence during the Service Period, to use, reproduce, publish, perform and communicate or adapt Novatti’s Intellectual Property, but only for the purposes of receiving the Services as a client of Novatti under this Agreement.

(b) Nothing in this Agreement shall assign, transfer or act to vest in the Client any Novatti Intellectual Property or intellectual property rights in any adaptations, modifications or enhancements of the Novatti Intellectual Property.

(c) The Client acknowledges and agrees that Novatti may use all data that is not Personal Information for Novatti’s internal and commercial purposes.

(d) Novatti will ensure that it has the necessary licenses in respect of any Novatti Software. The parties acknowledge that the ownership of Novatti Software remains with the licensor of the Software.

(e) The Client must not do, cause or authorise the doing of any act or omission which may adversely affect the distinctiveness, goodwill or Novatti’s rights in relation to Novatti’s Intellectual Property.

17.3 Certain rights not affected

Nothing in this Agreement shall give Novatti any rights in the Client’s name or any other trade name or mark owned by the Client, unless Novatti has received the Client’s consent.

17.4 The Client’s Intellectual Property Rights

(a) The Client grants to Novatti the rights to use the Client’s Intellectual Property during the Term:

(i) on or in respect of the Services including to the purpose of preparing invoices and other relevant materials for distribution to Participants and or other third parties; and

(ii) otherwise in accordance with this Agreement.

(b) Novatti acknowledges that the rights granted to it in clause 17.4(a) are non-exclusive and that the Client may permit any other person to use any of the Client’s Intellectual Property in relation to any goods or services.

(c) Novatti must not do, cause or authorise the doing of any act or omission which may adversely affect the distinctiveness, goodwill or the Client’s rights in relation to the Client’s Intellectual Property.

(d) The Client warrants to Novatti that it is the owner of or has the consent of the owner of the Client’s Intellectual Property to provide the licence in this clause.

17.5 Marketing

Other than as permitted by this Agreement, the Client must not without prior written approval of Novatti make or purport to make any representations or warranties on behalf of Novatti, a Card Scheme or a Payment System.

17.6 Use of Client data

(a) Subject to the restrictions as set out in clause 17.6(b), the Client acknowledges and agrees that Novatti may use the Client’s transactional data for the following purposes:

(i) to monitor and analyse any aspect of the usage, quality, and value of Novatti’s services;

(ii) to analyse any aspect of the efficiency and effectiveness of Novatti’s services, with, for example, the aim of ensuring continuous improvement;

(iii) to develop new products and services, or to enhance existing products and services for the ultimate benefit of Novatti’s clients; and

(iv) to measure trends, and to understand and develop industry benchmarks for the benefit of Novatti’s clients.

(b) Novatti’s use of the Client’s transactional data for the purposes as set out in clause 17.6(a), is subject to the following restrictions:

(i) Novatti will use elements of Personal Information only in so far as they are required to appropriately categorise or analyse a transaction for any of the purposes set out in clause 17.6(a);

(ii) Any summaries or categorisations of transaction data produced by Novatti will not permit the identification of any individual;

(iii) Novatti will not use transaction data or any analysis, summary or categorisation of it in any way that competes with, or conflicts with, the commercial interests of the Client; and

(iv) Novatti will not share or sell any disaggregated data to any third party.

(c) Notwithstanding any provisions to the contrary in this Agreement, the Parties acknowledge and agree that the Client shall always own and maintain all rights to the disaggregated transactional data relating to its Customers.

18. INDEMNITIES AND LIABILITY

18.1 Indemnities

Without limiting any other rights or remedies of a Party, but subject to clauses 18.2 - 18.4, each Party (Indemnifying Party) shall indemnify the other Party (Indemnified Party) from and against all claims, liabilities, damage, suits and losses, made against or suffered by an Indemnified Party as a direct result of:

(a) any fraudulent, wilful or negligent act or omission of the Indemnifying Party which arose in connection with this Agreement or any Service Schedule;

(b) any act or omission of the Indemnifying Party which causes the Indemnified Party to be in breach of a Relevant Law or Applicable Regulation;

(c) any claim by a third party against the Indemnified Party alleging that the use of the Services or any materials owned and provided by the Indemnifying Party pursuant to this Agreement infringe the Intellectual Property of any person; and

(d) personal injury or death, or property damage caused or contributed to by the Indemnifying Party (to the fullest extent permissible by Law).

18.2 Notice of Claim

The Client shall immediately notify Novatti upon becoming aware of any claim or potential claim or circumstances which may lead to a claim being made against Novatti in relation to any services provided under this Agreement, prior to this Agreement or otherwise arising from this Agreement.

18.3 Complaints Procedure

If a complaint or claim is made to or against the Client or Novatti by a Customer or Participant, the parties agree to:

(a) abide by the complaints procedures adopted by Novatti; and

(b) provide any reasonable records and any such information and documentation as Novatti may from time-to-time request.

18.4 Limitations on Indemnities and Liability

(a) Notwithstanding any provisions to the contrary in this Agreement, no Party shall be considered to be in breach of this Agreement or be held liable for damages and each Party releases the other Party from any costs, expense or damages that any Party may incur as a result of it being unable to comply strictly with this Agreement due to an occurrence of a Force Majeure Event.

(b) The indemnity in clause 18.1 shall not apply to an Indemnified Party if it can be demonstrated that the Indemnified Party is in breach of its obligations under this Agreement in respect of the subject matter of the indemnity.

(c) The indemnities in clause 18.1 and explicitly referenced in any Service Schedule shall not apply to the extent that the Indemnified Party has caused or contributed to the indemnified loss.

(d) The indemnity in clause 18.1 is subject to any limitations on liability set out in this Agreement and any Service Schedule.

(e) Notwithstanding any other provision in this Agreement to the contrary, and after full consideration of the nature of the obligations and the Services to be provided pursuant to this Agreement, the Parties agree that neither Party is liable for any indirect or consequential loss or damage (including loss of profit, loss of production, loss of contracts or loss of opportunity) arising out of, or in connection with this Agreement whether such liability arises in contract, tort or otherwise.

18.5 Operation of indemnities

(a) Each indemnity in this Agreement survives the expiry or termination of this Agreement, however, a claim made under clause 18.1 may only be made by an Indemnified Party within three (3) years after the expiry or termination of this Agreement.

(b) For the avoidance of doubt, each indemnity in these Standard Terms and Conditions applies to all Service Schedules, unless stated otherwise.

(c) A Party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given. However, payment under an indemnity cannot be recovered, until the proceeds in respect of that payment are obtained under any insurance policy, where relevant.

18.6 Cap on Liability

Notwithstanding any provision in this Agreement but subject to clause 18.6(b), Novatti total cumulative liability for all claims, actions, suits, damage, loss or costs (including solicitor and own client costs) of any kind, however caused, in contract, tort (including negligence) or under any indemnity, under any statute or otherwise arising from or relating in any way to this Agreement, or its subject matter, is limited in aggregate to the lesser of:

(a) the total Fees paid to Novatti pursuant to this Agreement for the twelve (12) month period prior to the month in which the most recent event giving rise to liability occurred, or such lesser period if the Agreement has been in force for less than twelve (12) months; or

(b) $100,000 Australian Dollars.

19. INSURANCE

19.1 Client Insurance Obligations

Without limiting the Client’s obligations under this Agreement, the Client must maintain, with a reputable insurer or insurers, during the Service Period policies of insurance (if any) for the risks and minimum cover as set out in the Reference Schedule.

19.2 Evidence of insurances

The Client shall produce on request, satisfactory evidence that they have complied with and continue to comply with its obligations under clause 19.1.

20. RECORDS, AUDIT AND REPORTING

(a) During the Term and for at least three years following termination of this Agreement, Novatti shall have the right to inspect, audit and review the Client’s books and records related to the Services. The Client shall permit Novatti to inspect any and all records and accounts in connection with the Services provided by the Client under this Agreement and allow any authorised representative, auditor or agent of Novatti to inspect such records and shall furnish such representative, auditor or agent with full and complete information and explanations in connection with such records and accounts.

(b) Regulatory authorities shall also have the right to audit, review and inspect the Client’s provisions related to the Services and compliance with applicable laws and regulations. The Client agrees to fully cooperate, subject to clause 16(b)(v), with such audit/inspection and provide reasonable assistance and access to information so requested.

(c) The Client agrees to immediately inform Novatti (for further reporting to Regulators or other law enforcement authorities, if necessary) any and all suspicious transactions.

(d) The Client understands that AML/CTF Laws requires the Client to monitor all unusual or suspicious transactions irrespective of its value or size taking place during the course of providing the Services to identify suspicious transactions.

(e) On Novatti’s request, the Client must provide Novatti with any information of Sender / Recipient or details of a transaction or series of transactions conducted by the Client;

(f) The Client hereby agrees to immediately notify Novatti upon suspicion of such transactions. Novatti undertakes to file the Suspicious Matter Reporting obligations on behalf of the Client and file the necessary reports to AUSTRAC.

21. NOTICES

21.1 Notices

(a) Any notice given under this Agreement, or any Service Schedule must be in writing and must be addressed to the address specified by the relevant party for that purpose, as amended from time to time.

(b) A notice must be delivered either by hand delivering it, sending it by pre-paid registered post or by email.

(c) A notice hand delivered before 5:00pm on a Business Day is taken to have been given on that day. Otherwise, a hand delivered notice is taken to have been given on the following Business Day.

(d) A notice sent by pre-paid registered post is taken to have been given on the third Business Day after posting unless it was actually received before that date.

(e) A notice sent by email before 5:00pm (recipient’s time) on a Business Day is taken to have been given on that day. Otherwise, a notice sent by email is taken to have been given on the following Business Day. This clause does not apply where the person sending the transmission receives a notification which confirms the email was not delivered.

22. FORCE MAJEURE

(a) If any Party is wholly or partially unable to perform its obligations under this Agreement (excluding any confidentiality obligation) because of a Force Majeure Event (the Affected Party), then as soon as possible after the Force Majeure Event arises, the Affected Party must notify the other Party of the extent to which the Affected Party is unable to perform its obligations; and describe in a reasonable level of detail the nature of the Force Majeure Event, and its likely effect on the Affected Party’s obligations under this Agreement.

(b) The Affected Party will not be liable for any failure or delay in the performance of its obligations under this Agreement, to the extent such failure or delay is caused directly by a Force Majeure Event.

(c) If Novatti is the Affected Party, the Client is not obliged to pay any Fees for the period in which Novatti is unable to provide the Services because of a Force Majeure Event.

(d) In response to a Force Majeure Event, the Affected Party must use its best endeavours to overcome the effect of the Force Majeure Event and resume performing its obligations as soon as possible.

23. GENERAL

23.1 Amendment

(a) Novatti may immediately vary this Agreement in order to comply with any Relevant Law, Applicable Regulation or Industry Code, provided that Novatti provides the Client with written notice of such variation as soon as is reasonably practicable after making the variation.

(b) Novatti may also vary this Agreement by posting a revised version of the Standard Terms and Conditions on its website and by giving the Client written notice of such variation. The revised version will be effective on and from the date set out in that written notice. If the Client disagrees with such variation the Client may, within 30 days of the date on which the variation takes effect, provide Novatti written notice setting out the changes that are not agreed. If Novatti does not withdraw the relevant changes within 30 days of receipt of that notice from the Client, the Client may terminate this Agreement with immediate effect by providing further written notice to Novatti. If no such further written notice is provided within those 30 days, the Client is deemed to have accepted the changes.

23.2 Assignment

A Party may only assign or transfer this Agreement, or its interest, by obtaining the consent of the other Party. However, Novatti shall be entitled to assign and/or transfer its rights and obligations under this Agreement to its Related Body Corporates, in whole or in part, without obtaining consent from the Client.

23.3 Legal relationship

Nothing in this Agreement is intended to create any relationship between the Parties of partnership or of principal and agent (except as expressly stated), and no Party shall have the authority to bind the other except as specifically provided under this Agreement.

23.4 Giving effect to this Agreement

Each Party must do everything (including execute any document) and must ensure that its employees and agents do everything (including execute any document), that the other Party may reasonably require to give full effect to this Agreement. Each Party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement and any part of it.

23.5 Waiver of rights

A right may only be waived in writing, signed by the Party giving the waiver. No other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right. A waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again. The exercise of a right does not prevent any further exercise of that right or of any other right.

23.6 Entire Agreement

This Agreement and any schedule, addendum and appendix hereto, contains the entire agreement between the Parties about its subject matter, and any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.

23.7 Severability

If a provision of this Agreement is or becomes ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The ineffective provision shall be replaced, to the extent permitted by law, by a different effective provision which comes as close as possible to the commercial intention the parties had or would have had if they had considered the ineffectiveness of the provision.

23.8 Counterparts

This Agreement may be executed in counterparts.

23.9 Good faith

Each Party must act in good faith and be just and faithful to, and cooperate with, the other Party in relation to all matters concerning the provision of the Services and this Agreement.

23.10 GST

Where GST is imposed on any supply made under this Agreement by one Party (the Supplying Party) to another Party (the Receiving Party), the Receiving Party must pay, in addition to and at the same time as the GST Exclusive Consideration is payable, an additional amount of GST. All prices, quotes, costs and Fees or other amounts invoiced by Novatti in accordance with this Agreement are exclusive of any GST, unless otherwise stated.

23.11 Representations

(a) Each party irrevocably warrants and represents that:

(i) it is a corporation validly organised and existing under the laws of Australia and has full power and authority under its constituting document to execute this Agreement;

(ii) there is no pending, or to the best of the knowledge of that party, threatened, any action, suit or proceeding before or by any court or other government authority or self-regulatory organisation to which that party or any of its directors or responsible managers is a party, which might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, of that party;

(iii) all statements and information provided by that party directly or indirectly to another party are, to the best of that party’s knowledge, true and accurate in every particular; and

(iv) it is solvent and will immediately notify the other party if that ceases to be the case.

(b) this Agreement constitutes a binding and valid obligation on both Parties;

(i) at the Commencement Date no conflict of interest exists in relation to this Agreement or is likely to arise during the Term; and

(ii) neither the execution and performance of this Agreement nor any transaction contemplated by this Agreement will violate any provision of any document, agreement, or other arrangement which is binding upon either Party or its assets.

23.12 Governing Law

These Standard Terms and Conditions and the Service Schedules are governed under the laws of the jurisdiction outlined in the Reference Schedule and the parties submit to the courts of that jurisdiction.

24. DEFINITIONS AND INTERPRETATION

24.1 Definitions

The following terms have the stated meaning:

Agreement means these Standard Terms and Conditions together with any Service Schedule relevant to a Service provided by Novatti to the Client.

Applicable Regulations means the Industry Codes, Technical Standards, Card Scheme Rules, Payment System Rules and any other regulations established by a Regulator as it applies to this Agreement and any Service Schedules executed between the Parties.

AML/CTF Laws means the laws established pursuant to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

BECS (or Bulk Electronic Clearing System) means the direct entry payment system.

BPAY Scheme means the electronic payments services, owned and promoted by BPAY which enables billers to receive payments.

Business Day means a day other than a Saturday, Sunday, bank holiday or public holiday in Victoria, Australia, beginning at 9.00am and ending at 5.00pm.

Card Scheme means VISA, Mastercard or any other similar global association of which Novatti is or may become a principal member in the future.

Card Scheme Rules means the written rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by a Card Scheme.

Client means the party detailed as such in the Reference Schedule.

Client Software means the Client’s Software application which shall be provided to Novatti for the Integrated System.

Commencement Date means the date Novatti first commences to provide any Service to the Client or such other date agreed in writing between the Parties. Different Services may commence on different dates and for each Service selected as at the date these Standard Terms and Conditions are executed, the date of commencement is set out in the Reference Schedule.

Confidential Information means all information disclosed, made available or accessible (whether orally, in writing or in any other form) by one Party or its personnel or Related Body Corporates (Disclosing Party) to another Party or its personnel or Related Body Corporates (the Recipient) and which the Receiving Party knows or ought to know is confidential. Confidential Information also includes (without limitation):

(a) information relating to the financial affairs of the Disclosing Party, or a customer of the Client and in particular includes information relating to the assets or liabilities of the Disclosing Party, or the customer of the Client and any other matter that does or may affect the financial position or reputation of the Disclosing Party;

(b) information relating to the internal management and structure of the Disclosing Party or the personnel, policies and strategies of the Disclosing Party;

(c) information relating to the Disclosing Party’s advertising, marketing or promotional activities, materials and strategies;

(d) any information designated as confidential or any other information of the Disclosing Party that has any actual or potential confidentiality to the Disclosing Party or to the person who supplied that information to the Disclosing Party;

(e) the fact that a Regulator has required or conducted an inspection or sought information from a Party in relation to the Services.

but does not include:

(f) information which is in the public domain;

(g) information obtained by one Party under circumstances which do not breach the confidential undertaking in this Agreement; or

(h) information disclosed under compulsion of law or court order.

Controller means, in relation to a person’s property:

(a) a receiver or receiver and manager of that property; or

(b) anyone else who (whether or not as agent for the person) is in possession, or has control, of that property to enforce an encumbrance.

Corporations Act means the Corporations Act 2001 (Cth) as amended from time to time.

CPI (or Consumer Price Index) means the weighted average of the All Groups Price Index Numbers for the eight capital cities of the states and territories of Australia published from time to time by the Australian Bureau of Statistics or, if that index number is no longer published, its substitute as a cumulative indicator of the inflation rate in Australia.

Customer means a person to whom the Client has on-provided Services, and/or holds an account with the Client.

Customer Information means a Customer’s name, address, phone number, email address, identification document details, transaction history or any other financial details.

Designated Employees means the employees of either party who are trained in using the Integrated System.

Disclosing Party means a Party or a Party’s personnel who makes Confidential Information available or accessible to the other Party or the other Party’s personnel.

Direct Entry means the system of effecting transactions through BECS.

Early Termination Payment (or ETP) means the fee that the Client must pay Novatti for terminating the agreement within the Initial Service Period, to be calculated in accordance with clause 11.3(c).

Event of Default means any of the events, omissions or occurrences specified in clause 6.4.

Fees means the fees payable by the Client for the Services as detailed in the Fee Schedule attached and as otherwise provided for in this Agreement and any relevant Service Schedule.

Force Majeure Event means any act or omission outside of the control of a Party and includes, but is not limited to, an act of God, national emergency, insurrection, riot or war, action or inaction by a government agency, or telecommunications failure, but does not include circumstances or events arising from any act or omission of either Party’s personnel.

GST means the tax imposed or to be imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.

GST Exclusive Consideration means any consideration payable under this Agreement that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration.

Industry Code means the EFT Code of Conduct, the ATM Access Code, the BROP Rules, TOPS, the BECS rules, regulations and procedures, the CECS rules, regulations and procedures, the EPAL rules and regulations, any SWIFT rules and regulations, any standards set by the PCI SSC including the PCI Security Standards, and the rules, regulations, procedures and any other conditions or requirements which apply to participation in any payment clearing and settlement system relevant to the Services, including participation in a Card Scheme.

Initial Settlement Amount means an amount, in cleared funds, determined by Novatti to be an amount equal to 6 times the estimated daily average settlement volume over 6 days.

Initial Service Period means the period which starts from the Commencement Date and continues for the time period as set out in the Reference Schedule, in respect of each Service.

Insolvency Event means, in respect of a person:

(a) an administrator being appointed to the person;

(i) the person resolving to appoint a Controller or analogous person to the person or any of the person’s property;

(ii) an application being made to a court for an order to appoint a Controller, provisional liquidator, trustee for creditors or in bankruptcy or analogous person to the person or any of the person’s property; or

(iii) an appointment of the kind referred to in subparagraph (ii) being made (whether or not following a resolution or application);

(b) the holder of a Security Interest or any agent on its behalf, appointing a Controller or taking possession of any of the person’s property;

(c) the person being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

(d) an application being made to a court for an order for its winding up;

(e) an order being made, or the person passing a resolution, for its winding up;

(f) the person:

(i) suspending payment of its debts, ceasing (or threatening to cease) to carry on all or a material part of its business, stating that it is unable to pay its debts or being or becoming otherwise insolvent; or

(ii) being unable to pay its debts or otherwise insolvent;

(g) the person taking any step toward entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;

(h) a court or other authority enforcing any judgment or order against the person for the payment of money or the recovery of any property; or

(i) any analogous event under the laws of any applicable jurisdiction,

unless this takes place as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved by the other party.

Integrated System means the Novatti Software and the Client Software integrated to provide the Services.

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to all inventions, patents, patent applications, trademarks, designs, circuit layouts, copyright (including copyright in any computer software or hardware or any works associated with such software or hardware), technical know-how and commercially sensitive information, trade, business or company names and all other proprietary rights and intellectual property rights as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not they are able to be registered or patentable.

Material Breach means:

(a) an event identified as a material breach in this Agreement;

(b) a substantial or significant failure by a Party to perform its obligations under this Agreement, which has a material impact on the provision of Services; or

(c) an ongoing failure, or numerous or recurring failures by a Party to perform its obligations under this Agreement, which has a material impact on the provision of Services.

Non-Fiat Linked Programs means payment programs and infrastructure developed for the transfer of digital currency.

Novatti means the entity providing the Services as stipulated in the relevant Service Schedule.

Novatti Software means the internet based application of Novatti to which access is provided to the Client for the Integrated System.

Party means a party to this Agreement.

Pass Through Expenses means the expenses for services that Novatti procures from third party service providers (such as Payment System fees or Card Scheme fees), and which are passed on to the Client on an ‘as is’ basis, as set out in the relevant Service Schedule or, for Card Schemes, as published by the Card Schemes.

Payment System means the BPAY Scheme, SWIFT, the New Payments Platform and any payment systems governed by ATM Access Company or APN (including BECS, CECS and APCS), NPP Australia Limited or the Reserve Bank of Australia.

Payment System Rules means the written rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by a Payment System.

PCI Security Standards means the security standards set and governed by the PCI SSC, including:

(a) Data Security Standard (PCI DSS), which applies to the storage, processing or exchange of cardholder data;

(b) Payment Application Data Security Standard (PA-DSS) which apply to software applications that process cardholder data; and

(c) PIN Transaction Security (PTS) requirements, which apply to the security of cardholder data at the point of interaction, such as at an ATM or EFTPOS terminal.

PCI SSC or Payment Card Industry Security Standards Council is an open global forum, launched in 2006, that is responsible for the development, management, education, and awareness of the PCI Security Standards.

Personal Information has the meaning given to that phrase under the Privacy Act 1988 (Cth) as amended from time to time.

personnel of a Party means officers, employees, agents and contractors of that Party; and

(a) in relation to Novatti, includes subcontractors and their officers, employees, agents and contractors and also officers, employees, agents and contractors of any related body corporate of Novatti’s; and

(b) in relation to the Client, includes officers, employees, agents and contractors of the Client and any Related Body Corporate of the Client.

Prepaid Card Schedule means the schedule outlining the provision of prepaid card issuing services by Novatti to the Client.

Recipient means the customer to whom the Transfer Amount is paid.

Receiving Party means a Party or a Party’s personnel to whom Confidential Information is disclosed or made available or accessible by the other Party or the other Party’s personnel.

Reference Schedule means the document named reference schedule containing details of the Client and certain commercial terms, including the Services to be received by the Client and Fees.

Regulator means any regulator of Novatti or the Client, or any related body corporate of Novatti or the Client including; any government or governmental, semi-governmental or judicial entity or authority; any minister, department, office, commission, delegate, instrumentality, agency, board, authority or organisation of any government; any regulatory organisation established under Law; or any applicable stock exchange or any regulatory organisation established by or under the rules of any such stock exchange.

Related Body Corporate has the meaning given to it in the Corporations Act.

Relevant Law means all laws applicable to the parties in connection with the subject matter of these Standard Terms and Conditions including laws specified in a Services Schedule and, as amended or replaced from time to time; AML/CTF Laws, Corporations Act; Australian Securities and Investments Commission Act 2001 (Cth); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); Payment Systems (Regulation) Act 1998 (Cth); Privacy Act 1988 (Cth) (including the National Privacy Principles); Spam Act 2003 (Cth); EFT Code of Conduct (to the extent applicable); any regulations made pursuant to the above; any requirements of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Authority which have the force of law; Card Scheme or Payment System membership requirements, mandates and approvals.

RMT (Remaining Monthly Term) means the number of calendar months (whole or in part) remaining under this Agreement (including any relevant Service Schedule), which is to be calculated from the date of termination (after the end of 90 days’ notice period), until the expiry of the Initial Service Period, for the terminated Service.

Secured Money means all monies and damages arising out of the Agreement and the provision of the Services and includes monies which, now or in the future, are owing or may become owing (whether actually or contingently) by the Client to Novatti.

Security Deposit means the cash funds deposited into the Security Deposit Account in accordance with clause 8.3 of these Standard Terms and Conditions.

Security Deposit Account means an account opened in accordance with clause 6.2 of these Standard Terms and Conditions for the purpose of securing the Client’s obligations in relation to any Services.

Sender means the customer who avails the Services to transmit funds to Recipient through a Virtual Account.

Service Instructions means the various instructions given by the Client to Novatti from time to time, concerning the Services.

Services means payment services pursuant to which Novatti enables a client to make and receive payments by arranging access to a variety of payments infrastructure, including:

(a) any services or facilities specified in the Reference Schedule and expressed in the Service Schedules, whether selected as at the date these Standard Terms and Conditions are accepted by the Client or after that date as addendums to these Standard Terms and Conditions; and

(b) any other deliverables that Novatti agrees from time to time to provide to the Client.

Service Period means the entire period during which Novatti provides the Client with Services, starting from the Commencement Date, and continuing until the Agreement is terminated in accordance with these Standard Terms and Conditions.

Service Schedule means schedule to these Standard Terms and Conditions for the provision of specific Services.

Software means either or both of the Client Software and Novatti Software.

Technical Standards means those standards established the International Organisation for Standardisation, Standards Australia, PCI SSC, a Card Scheme or a Payment System (as amended from time to time) which the SLS stipulate apply to the Services or which the parties otherwise agree in writing are to apply to the Services.

Term is defined in clause 1.2.

Transaction means the act, initiated by a Customer, of transferring funds using applicable payment infrastructure providing to the Client under these Standard Terms and Conditions.

Transfer Amount means the funds collected from Sender, to be paid to a Recipient through the Services (excluding all applicable fees and charges).

24.2 Interpretation

Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.

(a) A reference to:

(i) legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(ii) a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;

(iii) a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assignee of that party;

(iv) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;

(v) the word ‘include’ or ‘including’ are to be construed without limitation;

(vi) a clause or party is a reference to a clause of, or a party to this Agreement;

(vii) a Schedule or a Part means a schedule or a part of this Agreement; and

(viii) anything (including a right, obligation or concept) includes each part of it.

(b) A singular word includes the plural, and vice versa.

(c) A word which suggests one gender includes the other genders.

(d) If a word is defined, another part of speech has a corresponding meaning.

(e) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

(f) The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.

(g) The words subsidiary, holding company and related body corporate have the same meanings as in the Corporations Act.

(h) A reference to a body, whether statutory or not:

(i) which ceases to exist; or

(ii) whose powers or functions are transformed to another body;

(iii) is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

(i) Reference to the word ‘may’ means that a Party can do that which is permitted in the clause, at the party’s discretion. Reference to the word ‘shall’ means that a Party must do or perform that which is described in the clause.

(j) If the day on which anything is to be done is not a Business Day it shall be done on the next Business Day.

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