Payment Services Agreement

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INTRODUCTION

A. Monoova Payments Pty Ltd (ABN 38 126 015 227) trading as Monoova (Monoova), is an authorised representative of Monoova Global Payments Pty Limited (ABN 77 106 249 852) an Australian Financial Services Licensee (AFSL 421 414). Monoova’s authorised representative number is 428 863. The Services provided by Monoova are provided on behalf of Monoova Global Payments Pty Limited.

B. Monoova operates a payment processing service that allows the Client to receive, manage and disburse funds.

C. The Client has agreed to acquire, and Monoova has agreed to supply, the relevant Services in accordance with the terms set out in this Agreement.

1. DEFINITIONS AND INTERPRETATION

1. Definitions

Account means the bank account(s) nominated by the Client or the Client’s Customer (as applicable) for acceptance of credit and debit of funds under this Agreement (including an Appendix, as applicable).

ADI means an authorised deposit-taking institution as defined in the Banking Act 1959 (Cth).  

Agreement means this document and any relevant Service Contract or Appendix.

AML/CTF Laws means The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and related rules, regulations, procedures and other relevant legislations that relate to anti-money laundering and counter-terrorism financing.

Appendix means the applicable appendix that forms part of this Agreement and which sets out the relevant Services offered by Monoova and includes, as applicable, Appendix 1 – NPP Client Terms, Appendix 2 – BPAY Biller Agreement, Appendix 3 – BPAY Payer Terms, Appendix 4 – PayTo Client Terms, Appendix 5 – Online Card Payment Services Terms.

API means Monoova’s application programming interface which allows access to the Service.

Authorised Payment Mandate has the meaning given to that term in the PayTo Client Terms.

Authorised Person means a person authorised by a Client to represent the Client in relation the Agreement including employees, officers, contractors and advisers of the Client that provide or arrange Services to Customers.

Beneficiary Account means the transactional account(s) the Client has instructed Monoova to credit in accordance with this Agreement (and it may include a Virtual Account).

BPAY Biller Agreement means the terms and conditions which govern a Client’s appointment as a Sub Biller and the Services offered by Monoova as provided for in Appendix 2 to this Agreement.

BPAY Payer means a person or organisation that makes a BPAY Payment.

BPAY Payer Terms means the terms and conditions for the Services offered by Monoova as provided for in Appendix 3 to this Agreement.

BPAY Payment means a payment transacted using the BPAY Scheme and in accordance with the BPAY Payer Terms and/or BPAY Biller Terms (as applicable).

BPAY Scheme means the electronic payment and biller service promoted by BPAY Pty Limited (ABN 69 079 137 518).

Business Day means a day other than a Saturday, Sunday or national public holiday in Sydney, Australia.

Client means the person or entity that has applied for the Services pursuant to the relevant Service Contract(s), and has been accepted by Monoova.

Confidential Information means any information of whatever kind disclosed or revealed by versa a party to another under or in relation to this Agreement that:

1. is by its nature confidential;

2. is designated by Monoova or the Client as confidential; or

3. the Client or Monoova knows or reasonably ought to know is confidential,

and includes the terms of the Service Contracts, but does not include information that is published or has otherwise entered the public domain without a breach of this Agreement, information obtained from a third party who has no obligation of confidentiality to Monoova or the Client or information independently developed (without use of or reference to the Confidential Information) or obtained by Monoova or the Client without breach of this Agreement.

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(s) means a customer or Sub-Merchant of the Client or customer of a Sub-Merchant who uses or has used the Service for (whichever the case may be):

1. making a payment into a Monoova Account (on the Client’s instruction); and/or

2. receiving a payment from Monoova (on the Client’s instruction), and

includes, where relevant in this Agreement, any BPAY Payer.

Direct Debit Authorisation means the authorisation the Client grants Monoova to deduct payments from the Client’s Account pursuant to the Direct Debit Request Service Agreement, a copy of which is available upon request from Monoova.

Fee Schedule means the separately signed document setting out the fees and charges applicable to the Client, transaction-workflow diagram for the relevant Service/s selected by the Client and any other terms and conditions applicable to the Services to be provided by Monoova, as agreed between the parties.

Force Majeure Event means anything outside a party’s reasonable control including fire, flood, drought, storm, lightning, acts of God, earthquakes, peril of sea or air, malicious damage, revolution, explosion, sabotage, accident, embargo, labour dispute or shortage, any computer or other technology malfunction, any error or delay due to network or telecommunications connections, any act or omission of any service providers (including Interchange Parties), civil commotion, act of war and war, terrorism, any natural disasters or any change in any Relevant Law or the application of any Relevant Law which is not reasonably foreseeable or within the reasonable control of a party.

Government Agency means a government or any governmental, semi-governmental, legislative, administrative, fiscal, quasi-judicial or judicial entity, authority, regulator, department or other body, whether foreign, federal, State, Territorial or local (including any self-regulatory organisation established under statute or any stock exchange).

Insolvency Event means, in respect of a party:

1. the party is unable to pay its debts as and when they fall due;

2. the party is unable to pay its debts as and when they fall due;

3. the party is presumed to be insolvent under the Corporations Act 2001 (Cth) (or its equivalent in the place the party is incorporated);

4. the party, if an individual, commits an act of bankruptcy under the Bankruptcy Act 1966 (Cth) (or its equivalent in the place the party ordinarily resides);

5. an application is made to wind up the party, other than an application which Monoova is satisfied, acting reasonably, is capable of being set aside; or an order is made or a resolution is passed to any steps are taken to pass a resolution for the winding up or liquidation of the party;

6. an administrator is appointed, or any steps are taken to appoint an administrator;  

7. the party enters into, or resolves to enter into, an arrangement, composition or compromise with, or assignment for the benefit of, any of its creditors, or proposes a reorganisation, moratorium or other administration involving it;

8. the party enters into a debt arrangement or composition with its creditors pursuant to the Corporations Act 2001 (Cth) (or its equivalent in the place the party is incorporated) or the Bankruptcy Act 1966 (Cth) (or its equivalent in the place the party ordinarily resides); or

9. a controller (including a receiver, or receiver and manager, or anyone else who (whether or not as agent for the party) is in possession, or has control, of property of the party) is appointed or any steps are taken to appoint a controller to the party or over an asset of the party unless, in the case of an appointment, Monoova is satisfied that the appointment of the controller is capable of being set aside, and it is set aside, within 5 Business Days of the appointment being made.

Intellectual Property Rights means patents, trademarks, service marks, registered designs, applications for any of the foregoing, copyright, design rights, know-how, domain names, trade secrets, circuit layout rights, technical information, Confidential Information, trade and business names, and any other similar protected rights in any country including any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future.

Interchange Party means third parties (other than the Client and Monoova), including financial institutions, banks or credit unions that are involved in the processing and settlement of Transactions.

Monoova means Monoova Payments Pty Ltd ABN 38 126 015 227, being the authorised representative (No. 428 863) of Monoova Global Payments.

Monoova Application Form means the form called “Monoova Application Form” (or any variations or previous or subsequent versions) submitted by the Client and accepted by Monoova.

Monoova Account means the account or settlement facility in Monoova’s name that Monoova has established with an ADI for the purposes of receiving funds from the Client or its Customers in order for Monoova to complete Transactions.

Monoova Global Payments means Monoova Global Payments Pty Ltd ABN 77 106 249 852; AFSL No. 421414.

Monoova Material means any material and Intellectual Property Rights:

1. owned by Monoova or which Monoova has or acquires a licence to use; and

2. which is provided by Monoova to the Client for the purposes of or in connection with this Agreement.

Monoova Portal means Monoova interface giving the Client access to the Service.  

NPP means the New Payments Platform operated by NPP Australia Limited.

NPP Client Terms means the terms and conditions for the Services offered by Monoova as provided for in Appendix 1 to this Agreement.

NPP Payment means a payment cleared and settled via the NPP.

NPP Terms means the terms and conditions which govern the use of, and access to, the NPP.  

Online Card Payment Services Terms means the terms and conditions for the Services offered by Monoova as provided for in Appendix 5 to this Agreement.

PayID means the identifier the Client chooses to use to receive NPP Payments.

PayTo Client Terms means the terms and conditions for the Services offered by Monoova as provided for in Appendix 4 to this Agreement.

PayTo Services means the services provided by Monoova which enable:

1. the Client to request, and Customer(s) to pre-authorise an NPP Payment, or a series of NPP Payments, in accordance with an Authorised Payment Mandate; and

2. clients and Customers to amend, suspend, unsuspend, port and cancel Authorised Payment Mandates.

Personal Information has the meaning given to it under the Privacy Act 1988 (Cth).

Personnel means employees, agents, advisers, auditors, consultants or contractors of Monoova or the Client.

Privacy Law means all legislation and principles and industry codes or policies, relating to the collection, use, disclosure, storage and granting of access rights to Personal Information as well as data protection, surveillance, security, direct marketing and other related matters, including Privacy Act 1998 (Cth) and the Australia Privacy Principles.

Related Entities means any related bodies corporate of the entity as that term is defined in the Corporations Act 2001 (Cth).

Relevant Law means any:

1. statute, ordinance, exemption, code or other law including regulations pursuant to them;

2. code of practice, practice notes, regulatory guides, guidelines, standards and rules;

3. membership rules, standards; and

4. relevant rules, regulations and procedures which regulate participation in payment schemes or associations including those imposed by BPAY and NPP Australia Limited, Visa, Mastercard and EFTPOS (as applicable), as amended from time to time,

whether or not having the force of law, applicable to this Agreement and includes the Corporations Act 2001 (Cth), the Competition and Consumer Act 2010 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), Privacy Laws, any statute or regulation relating to the proceeds of crime and economic sanctions, the terms and conditions of the Australian financial services licence held by Monoova Global Payments and the terms and conditions of authorised representative appointment granted to Monoova by Monoova Global Payments.

Reserve means Client funds held by Monoova and which might be set aside with the Client’s consent (which the Client agrees will not be unreasonably withheld) to cover Reversals, refunds or other payment obligations arising under the Service Contracts.

Reversal means Monoova reverses the settlement of funds from a processed Transaction that the Client received because:

1. the settlement funds were sent to the Client in error by:

1. Monoova or an Interchange Party;

2. the processors or suppliers of Monoova; or

3. any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above;

2. the sender of the payment did not have authorisation to send the payment (for example, the Customer accessed an account unlawfully to make a payment); or

3. the Client received the payment for activities that violated this Agreement.

Service means the relevant payment processing service and such services as described in the applicable Appendix to this Agreement.

Service Contracts means the following documents (as applicable):

1. the Monoova Application Form;

2. this Agreement;

3. Appendix 1 – NPP Client Terms;

4. Appendix 2 – BPAY Biller Agreement;

5. Appendix 3 – BPAY Payer Terms;

6. Appendix 4 – PayTo Client Terms;

7. Appendix 5 – Online Card Payment Services Terms;

8. each Fee Schedule;  

9. the Direct Debit Authorisation; and

10. any other agreement or deed or document as agreed by the Client and Monoova in connection with the Services provided by Monoova to the Client, or as otherwise specified by Monoova (in such case, Monoova will provide reasonable prior notice to the Client) as a ‘Service Contract’ at the commencement of this Agreement or during the Agreement (in either case, Monoova will provide reasonable prior notice to the Client and in the event of the latter, if the Client does not agree to the Service Contract, the Client may terminate this Agreement in accordance with clause 17.2).

Sub Biller means an organisation approved by Monoova to receive BPAY Payments from Customers.

Subcontract means any agreement between Monoova and any third party, where that party agrees to provide the Services or any part of them to the Client.

Subcontractor means a subcontractor engaged by Monoova under a Subcontract.

Sub-Merchant is a merchant Customer of the Client approved by Monoova and any Interchange Party (where required) that uses the Service to facilitate Transactions.

Term means the term of the Service, as specified in the Fee Schedule (or revised Fee Schedule, as applicable) or another Service Contract, or otherwise agreed by the parties in writing.

Transaction means a transaction to:

1. debit or credit the Client’s (or the Customer’s, as applicable) Account, a Beneficiary Account or the Client’s Virtual Account,

2. to make a NPP Payment; or

3. make or receive a BPAY Payment;  

4. to receive an online card payment; or

5. make or receive any other types of payment as agreed by the parties or otherwise covered under any other applicable Appendix to this Agreement (from time to time),  

as applicable.

Virtual Account means the unique client identifier provided by Monoova to the Client which Monoova reconciles Transactions and includes sub-virtual accounts which the Client or Sub-Merchant may be able to provide to their respective Customers.

Wilful Misconduct means a deliberate act or omission done (or omitted to be done) which knowingly constitutes a breach of the Agreement or under the Relevant Laws, or is intended to cause, or is in reckless disregard of or wanton indifference to, foreseeable and harmful consequences.

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2. SERVICE CONTRACTS AND CONDITIONS PRECEDENT

(a) The Client agrees and acknowledges that:

(i) the Service is offered to the Client subject to the Service Contracts which together with this agreement, comprise the terms of the Client’s Agreement with Monoova;

(ii) the Agreement will become binding on the Client on the earlier of the occurrence of the following: the Client signing and returning an Application Form to Monoova, the Client clicking a button or link on a website, email or portal provided by Monoova to the Client for confirming acceptance of this Agreement or a Service Contract, the Client signing the Fee Schedule (or revised Fee Schedule as agreed by Monoova, as applicable), where agreed with Monoova, the Client returning a signed copy (including e-signing where approved by Monoova) of this Agreement, or otherwise initiating a Transaction via Monoova’s Service with Monoova’s written approval;

(iii) Monoova is not required to provide the Services to the Client until the Client has met each of the following conditions:

(A) the Client has obtained any licence, registration or authorisation required under Relevant Law to carry on its business and meet its obligations under this Agreement;

(B) the Client has satisfied the necessary due diligence checks as notified in writing to the Client by Monoova (for itself or on behalf of any Interchange Party) including from credit risk, regulatory compliance (including AML/CTF Laws), and security and data perspectives;

(C) the Client has provided to Monoova any document, information, system access or tools reasonably required by Monoova in connection with the provision of the Services in such form and substance as reasonably directed by Monoova, including having complied with any system or portal integration requirements made available to the Client (including as part of the sandbox environment);

(D) Monoova has assessed information and material relating to the Client’s compliance with the matters above and Monoova has determined (acting reasonably) that it is appropriate to provide the Services to the Client;

(E) any Interchange Party or sponsor that sponsor Monoova in relation to a payment system has approved Monoova providing the Service to the Client (if applicable); and

(F) any other conditions that the parties may agree in writing, including as set out in the Fee Schedule or such other Service Contract.

(b) Unless otherwise agreed in writing by Monoova and the Client, in the event of an inconsistency between the terms of this Agreement and the terms of any Service Contract, the terms of this Agreement shall prevail to the extent of the inconsistency.

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3. MONOOVA’S OBLIGATIONS

3.1 Monoova provides the Service

Subject to this Agreement, Monoova will provide the Service during the Term, including (as appropriate and depending on the applicable Service Contract for the Client):

(a) giving the Client the capacity for receiving, managing and disbursing funds by instructing Monoova including through the API, Monoova Portal or such other methods agreed by Monoova and the Client in writing;

(b) issuing the Client with a Virtual Account with which to receive funds and from which to pay funds;

(c) issuing the Client with unique client identifiers in the form of bank state branch (BSB) and account numbers which can be used to receive direct debit and direct credit transactions from its Accounts;

(d) issuing the Client with PayIDs for the purpose of facilitating NPP Payments;

(e) providing PayTo Services;

(f) facilitating the making and receipt of NPP Payments and BPAY Payments;

(g) online card payment services, which involves accepting payments sourced from relevant debit cards or credit cards (as applicable), by means of a virtual card acceptance terminal; and

(h) issuing reports and statements relating to payments received and made by or to the Client.

3.2 Processing of Transactions

(a) Subject to this Agreement and the relevant Appendix applicable to the Service, Monoova will:

(i) collect and make payments as authorised by the Client through the API and Monoova Portal from time to time;

(ii) issue the Client with unique account identifier numbers on request to facilitate reconciliation of incoming payments;

(iii) make available to the Client information on Transactions through the API and Monoova Portal. Additional information can be made available on request in writing by the Client, provided that the Client gives reasonable prior notice to Monoova.

(b) Monoova relies on information provided by Interchange Parties to settle Transactions. The parties agree to cooperate and use best endeavours to correct any errors or inaccuracies if they occur.

(c) Monoova is not responsible for delays in the Transaction settlement processes caused by Interchange Parties’ computer systems being inoperable or communication links being down, or the relevant network or telecommunications connections being down.

(d) Monoova will use its reasonable endeavours to seek to resolve any issues relating to access to, and use of, the Service, and the distribution of funds to or from the designated Account(s) and Beneficiary Account(s).

(e) The Client is responsible for providing its services (including payments services, as applicable) to its Customers, and for any and all issues related to its products and services, including any fraud suffered, incurred or perpetrated by Customers, and any disputed transaction or complaint raised by, or because of, a Customer. Monoova will provide reasonable assistance to the Client for any issues caused or contributed by Monoova.

(f) Provided Monoova acts in good faith in seeking to promptly process Transactions in accordance with instructions given by the Client (or appearing to have been given by or on behalf of the Client), the mutual intention of the parties is that Monoova will be compensated for its costs of providing the Services and for amounts paid in respect of the Client in accordance with the Agreement.

3.3 Funds held in the Monoova Account

Monoova holds funds attributable to the Client and/or its Customers in the course of processing Transactions in the Monoova Account, separate from Monoova's own corporate funds. Monoova will not make these funds available to other creditors in the event of Monoova’s insolvency. Should Monoova become insolvent, such funds would in effect be held on a resulting trust and would not be available for other creditors. The Client agrees that:

(a) it is not entitled to any interest associated with the funds held in the Monoova Account pending disbursement to one or more Beneficiary Accounts;

(b) it may not assign any interest or right in the Monoova Account without Monoova’s prior written consent which shall not be unreasonably withheld; and

(c) Monoova is entitled to keep the interest earned on the Monoova Account.

3.4 Refusal to accept, process or settle Transactions and other obligations and dealings

Despite anything to the contrary in this Agreement, Monoova may, acting reasonably and to the extent reasonably necessary to protect its legitimate business interests:

(a) refuse to accept, process or settle any Transaction if:

(i) the Transaction is invalid (or Monoova has reasonable grounds to believe a Transaction is invalid) in accordance with clause 4.5; or

(ii) Monoova is ordered to do so by any Government Agency under any Relevant Law;

(iii) Monoova is required to do so by any Interchange Party;

(iv) Monoova is aware, or has reasonable grounds to suspect, that:

(A) an action required or requested for it to take under this Agreement;

(B) its involvement in any Transaction that is any way connected with the Agreement;

(C) its performance of any Services for any person in connection with the Agreement,

might in any way cause Monoova to breach any Relevant Law, or commit, aid, abet or procure an unlawful act; and

refuse to deal in any way with a person (natural, corporate or government) that is subject to sanctions or is connected in any way to any person that is subject to sanctions, under economic and trade sanctions imposed by Australia, the United Nations, the European Union or any other countries.

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4. CLIENT OBLIGATIONS IN RELATION TO THE SERVICES

4.1 Client Obligations

The Client must:

(a) authorise Monoova to process instructions relating to paying, holding and disbursing funds as required for the proper operation of the Service;

(b) not reverse Transactions if the Transaction has been appropriately authorised and processed by Monoova (and in a case where the Client believes a Transaction requires review, such as where a Customer informs the Client that a Transaction has been requested in error, the Client must promptly inform Monoova under clause 4.1(j);

(c) use its best endeavours to provide Monoova (or its nominated Interchange Parties or service providers) with all necessary information and assistance as reasonably requested by Monoova (provided that Monoova will give the Client reasonable prior notice of any request) to enable Monoova to provide the Service (including in respect of the recovery or tracing of monies for Customers’ Transactions), to enable Monoova to comply with obligations under agreements with Interchange Parties or Subcontractors, and/or to comply with Relevant Laws;

(d) authorise Monoova to share, retrieve and verify information about the Client’s identity, source of funds and business through appropriate Subcontractors for the purpose of and only to the extent necessary to enable Monoova to provide the Service, comply with Relevant Laws and/or in accordance with Monoova’s Privacy Policy, (which is updated from time to time and latest copy is available at https://www.monoova.com/privacy);

(e) process all Transactions in Australian dollars;

(f) subject to the Relevant Laws, maintain records of all Transactions, containing details reasonably requested by Monoova, for a period of seven (7) years from the date of the last Transaction and to promptly make these records available to Monoova upon request;

(g) comply with all Relevant Law in connection with the Client’s use of the Service;

(h) comply with the obligations set out in the Agreement so far as they apply to the Client and the Services they have elected to be provided with under the Service Contracts and approved by Monoova;

(i) without limiting clause 4.1 maintain confidentiality and security of any Personal Information, user data and Confidential Information in the Client’s possession including API keys and login credentials to Monoova Portal. If material deficiencies are found in the Client’s data security in the context of the Service, the Client must promptly and within two (2) Business Days (or such other reasonable timeframe as the parties may agree, acting reasonably) notify Monoova  after the Client became aware of or suspects that there may be such deficiencies and the Client agrees to work with Monoova to resolve those deficiencies;

(j) subject to the Relevant Laws that may apply to the Client, notify Monoova promptly and within five (5) Business Days (or such other timeframe as the parties may reasonably agree) of any complaints, allegations, disputes, correspondence or investigations (including from its Customers or a Government Agency) which may involve or affect Monoova and/or the Service; and

(k) not on-sell, re-sell, white-label, distribute, reverse engineer or otherwise arrange for another party to do the foregoing in respect of Monoova’s API or Services.

4.2 Sub-Merchants

(a) Subject to the conditions and following the process set out in this clause 4.2 the Client may appoint Sub-Merchants.

(b) Each Sub-Merchant nominated by the Client requires the prior written approval of Monoova and any Interchange Parties (where required) before they can use the Virtual Account or receive the Services.

(c) For each Sub-Merchant nominated by the Client, the Client agrees to, prior to obtaining Monoova’s approval of the Sub-Merchant and on an ongoing basis:

(i) provide to Monoova any information reasonably required for Monoova to review, verify and approve the appointment of a nominated Sub-Merchant;

(ii) provide Monoova with any information reasonably requested in connection with the provision of the Services to the Sub-Merchant, provided that Monoova shall provide the Client with reasonable prior notice of any such request and that Monoova shall only use that information for the purposes of providing the Services and meeting its obligations in connection with this Agreement or Relevant Laws;

(iii) retain any and all records regarding the Sub-Merchant and any and all Transactions facilitated by the Sub-Merchant, which shall be accessible by Monoova on reasonable prior notice for the purposes of meeting audit, taxation or regulatory requirements;

(iv) ensure that its Sub Merchants comply with the terms of this Agreement, Relevant Laws and any reasonable directions regarding the Services, given by Monoova or an Interchange Party from time to time and without delay;

(v) suspend or terminate the Sub-Merchant’s use of the Virtual Account or receipt of the Services where reasonably requested by Monoova, a Government Agency, or an Interchange Party.

(d) The Client further agrees and acknowledges that where a Sub-Merchant is approved by Monoova (or any Interchange Parties, where applicable) to use and access the Service:

(i) the Sub-Merchant acts as an agent of the Client;

(ii) any instructions, communications or actions taken by the Sub-Merchant shall be deemed as having been given, made or taken by the Client; and

(iii) Monoova is authorised to act upon such instructions, communications or actions from the Sub-Merchant as if they were directly received from the Client.

(e) The Client indemnifies and holds Monoova harmless from and against any and all claims, liabilities, losses and damage arising out of or in connection with any act or omission or the Sub-Merchant to the extent it is not caused by Monoova’s fraud, fraudulent misrepresentation, Wilful Misconduct, gross negligence or material breach of this Agreement.

4.3 Client’s Customers

The Client must, subject to Relevant Laws:

(a) provide Monoova with any information reasonably requested in relation to the Client’s Customers in connection with the provision of Services to the Client, provided that Monoova shall provide the Client with reasonable prior notice of any such request and that Monoova shall use such information for the purposes of providing the Services and meeting its obligations in connection with this Agreement and/or Relevant Laws;

(b) ensure its Customers agree to comply with all Relevant Laws applicable to the Services, the Customer and its activities;

(c) promptly notify Monoova (in any case within five (5) Business Days) if the Client becomes aware or has formed reasonable suspicions that its Customer has breached or will likely breach any Relevant Law;

(d) follow any reasonable directions from Monoova in relation to the continued provision of Services to the Customer (if any), including the tracing or recovery of monies in relation to the Customer’s Transactions (to the extent the Client is reasonably able to take these steps based on information available to it in its systems) or reviews of any unlawful or potentially unlawful act or omissions of the Customers; and

(e) where its Customer seeks to make a BPAY Payment, make the BPAY Payer Terms available to the Customer.

4.4 Processing Transactions

The Client must not process, or continue to process, a Transaction:

(a) if to do so would result in the Transaction being processed through the Service more than once or be duplicated by mistake;

(b) if the Client is aware that the Service is not online or is not functioning normally;

(c) if the Client becomes aware, or forms a reasonable suspicion, that any Account(s) or Beneficiary Accounts are being used fraudulently or in contravention of the terms of the Agreement, or any Relevant Law;

(d) in relation to a BPAY Payment, where to do so would result in a breach of the BPAY Payer Terms; and

(e) where to do so would result or would likely result in a breach of any Relevant Law or the terms of this Agreement.

4.5 Invalid Transactions

For the purposes of this Agreement, a Transaction is invalid if:

(a) it relates to or is in furtherance of a contravention of Relevant Law;

(b) the Customer’s and/or Client’s authorisation of a Transaction is obtained by fraud or deception, is unauthorised or otherwise illegal;

(c) the authority for completion of the Transaction is forged, unauthorised by the Client or not signed where a signature was required;

(d) the Transaction has not occurred as contemplated by this Agreement; or

(e) any event referred to under clause 4.4 inclusive occurs.

4.6 Mistaken payments

The Client agrees and acknowledges:

(a) to use its best endeavours to take all reasonable steps to recover and trace (or assist Monoova in recovering) any mistakenly paid funds to the Client’s or Customer’s nominated recipient of a payment; and

(b) where a mistaken payee of a Transaction or payment made by Monoova under this Agreement is held by a person or entity with whom the Client has a personal, business or pre-existing business relationship with (including through Related Body Corporate or Associate of the Client), the Client must promptly take all reasonable steps to assist Monoova in recovering any such funds. To the extent that the Client’s failure to take such reasonable steps impacts Monoova’s ability to recover the funds from the mistaken payee or causes the Client or its Customer further loss, any liability of Monoova to the Client or a third party shall be proportionally reduced to the extent that Monoova’s act or omission directly caused the mistaken payment.

4.7 Notification obligation

Subject to this Agreement and Relevant Laws, either party must notify the other as soon as practicable if it reasonably suspects or if it becomes aware of:

(a) a breach, or attempted breach, or other incident, that puts at risk of either party’s systems, data security, Relevant Law or Confidential Information which could impact the security or operation of the Service in any way (in such case, either party must use best endeavours to notify the other party at no later than two (2) Business Days after being made aware of the breach, attempted breach or suspected breach or other incident);

(b) any technical or operational error in relation to a Transaction; or

(c) the Service being unable to process a Transaction or the Service not functioning generally.

4.8 Reporting obligations

The Client must promptly notify Monoova (which shall be no longer than five (5) Business Days from any change unless such longer period is accepted by Monoova, acting reasonably and having regard to its legitimate business interests and compliance with Relevant Law) or otherwise complete and submit all forms and documents reasonably requested by Monoova that are necessary in connection with the Services (provided that Monoova gives reasonable notice to the Client of such request) where:

(a) there is a change to the Client’s full legal name, business name, Australian business number, telephone number(s), email address, principal and postal business address, bank account details for the purposes of the Service, or the Client’s directors or other officeholders;

(b) there is any change in the direct or indirect beneficial ownership or control of the Client’s business (unless the Client is listed on the Australian Securities Exchange);

(c) the Client disposes of the whole or any part of its assets, operations or business;

(d) the Client ceases to carry on business;

(e) the Client ceases to be able to pay its debts as they become due;

(f) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Clients assets, operations or business;

(g) any step is taken to enter into any arrangement between the Client and its creditors;

(h) any step is taken to appoint a receiver, a manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the Client’s assets or business; or

(i) the Client is a partnership, any step is taken to dissolve that partnership.

Failure to notify could result in a termination event as contemplated by clause 17.3.

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5. CLIENT ACCOUNT AND RESERVE

5.1 Client Account

(a) The Client must maintain an Account and advise Monoova of the details of that Account.

(b) On instructions provided by the Client, Monoova will credit the Client’s Account(s) or the Beneficiary Account(s) with the amount that the Client has notified.

(c) The Client will notify Monoova as soon as practicable if the Account or Beneficiary Account(s) details change.

5.2 Monoova can debit the Client’s Account

In consideration of Monoova providing the Client with the Services, Monoova will deduct or charge its fees, charges and amounts as set out in clause 7 (including any document referred to under clause 7(a)(viii)). Subject to clause 5.3(b), if the Client fails to pay an invoice when due, Monoova may deduct the Client’s fee from the Client’s Virtual Account.

5.3 Payment of debts

(a) The Client must pay on demand the full amount of any debt it owes Monoova under this Agreement.

(b) If there is any dispute between the parties as to whether the debt is payable, the parties must deal with the dispute in accordance with clause 22 and payment of the disputed portion of the debt will not be required until the dispute is resolved, or an order of the Court is made for payment of the debt.

5.4 Payments after an audit

Monoova can debit or credit the Client’s Account with an amount agreed with the Client in respect of any charges Monoova, acting reasonably, has established are payable following an audit or check of the Client’s Account.

5.5 Reserve

(a) Subject to clause 5.5(b) and to the extent necessary to protect the legitimate business interests of Monoova, Monoova may, acting reasonably, establish a Reserve as security for the Client’s obligations to Monoova under this Agreement.  The parties acknowledge that the primary purpose of the Reserve is to protect Monoova’s legitimate business interests where Monoova reasonably determines that it has significant and legitimate concerns about the Client’s willingness or ability to pay the fees, charges or costs owing to Monoova under clause 7.

(b) Prior to making any decision as to whether or not a Reserve may be initially required in relation to a Client, the Client acknowledges that:

(i) Monoova may review the Client's operations in connection with this Service, Transaction history, business activities and payment history from time to time;

(ii) Monoova may request the Client to provide all reasonably necessary information (provided reasonable notice is given to the Client) to assist with the review of the Client’s operations, including quarterly financial statements or annual audited financial statements prepared in accordance with generally accepted accounting principles, information relating to Client’s involvement in any disproportionately high number of reversals, invalid or disputed Transactions and/or the Client’s Transaction processing and fraud monitoring protocols; and

(iii) having assessed the information provided above, and considered in good faith any responses received the Client in relation to the Reserve, Monoova may determine whether it has significant and legitimate concerns about the Client’s payment or settlement obligations under this Agreement, and as such, a Reserve is required for the Client.

(c) Subject to clause 5.5(a), for the purposes of the Reserve referred to in clause 5.5(b)(iii) , the amount of the Reserve shall be the average of the total fees, charges and other costs payable and owing to Monoova by the Client under this Agreement over the previous 3-month period.

(d) Subject to this clause 5.5 and clause 18, Monoova will provide reasonable notice to the Client (which shall be not less than thirty (30) days) in relation to any decision it has made in relation to imposing, removing or changing the amounts subject of a Reserve, which shall be made reasonably and having regard to the same processes set out in clause 5.5(b) and subject to any varied amount being reasonably considered by Monoova to be necessary. The Client may request a review of the Reserve in accordance with clause 5.5(e).

(e) After a Reserve is imposed on the Client, the Client may request for the removal or review of a Reserve requirement (or the variation of the amount subject of the Reserve) by notifying Monoova in writing and providing all relevant information to support its request for Monoova’s consideration, including the types of information set out in clause 5.5(b).

(f) Upon receipt of the Client’s request in clause 5.5(e) , Monoova will act reasonably and promptly consider any such information provided by the Client within fourteen (14) days. Following the consideration of such information, Monoova will act in good faith and reasonably determine whether it continues or cease to have any significant and legitimate concerns about the Client’s solvency and its payment or settlement obligations under this Agreement, and provide the Client with reasonable prior notice before decreasing any Reserve amount or removing the Reserve requirement.

(g) Subject to the above, the Client agrees and acknowledges that:

(i) Monoova may either request that the Reserve amount be paid to Monoova in cleared funds or if the Reserve is not paid when requested, Monoova may immediately withhold the Reserve from funds otherwise due to be paid to the Client; and

(ii) Monoova may deduct from, or set-off against, such a Reserve any and all amounts payable and owing by the Client to Monoova under the Service Contracts.

5.6 Interest

The Client agrees that Monoova may charge interest on any sum that remains payable to Monoova after it fell due at the cash rate target (or such higher rate as permitted by the Relevant Law) of the Reserve Bank of Australia (or of such monetary authority as may replace it). Interest will accrue and will be calculated daily and be compounded monthly from the date payment was due until the date full payment is made by the Client.  

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6. OPERATING PROCEDURES

6.1 Client to maintain connection

The Client will be responsible for maintaining its own active connection to the Service.  For the avoidance of any doubt, this does not affect Monoova’s obligations under this Agreement for providing the Service to the Client in accordance with the terms of this Agreement.

6.2 Compliance with guidelines and standards

The Client must comply with all relevant guidelines and standards issued by Monoova (acting reasonably and provided reasonable notice has been given by Monoova) addressing technical and security aspects of the Service, including in connection with the system or portal integration requirements made available to the Client. Subject to clause 18, Monoova will provide reasonable prior notice to the Client of any proposed updates to such guidelines and standards from time to time.

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7. FEES, CHARGES AND OTHER AMOUNTS

(a) The Client must pay to Monoova:

(i) all service charges, fees and other charges as contained in the Client’s Fee Schedule (or any varied Fee Schedule, as applicable);

(ii) all government charges and taxes that apply to the Services;

(iii) for the avoidance of any doubt, the value of all Transactions where Monoova is instructed to process a payment to any person (including a Client) on behalf of a Client;

(iv) for the avoidance of any doubt, the value of any Transaction involving Monoova making a payment to the Client, to the extent that the value (or part thereof, as applicable) is not received by Monoova or is subsequently reversed, cancelled, or required to be paid to some other person (including but not limited to a chargeback);

(v) the value of any duplicate payment or over credits in respect of Transactions due to (or contributed to by) acts, errors or omissions of the Client, except to the extent caused by the fraud, Wilful Misconduct or gross negligence of Monoova;

(vi) the value of any duplicate payment or over credits in respect of Transactions not connected to errors or omissions of the Client, except to the extent that the Client can demonstrate that the Client cannot recover the over credit and cannot receive value for it;

(vii) the amount (if any) paid by Monoova in connection with an invalid Transaction (as defined in clause 4.5 of this Agreement), except to the extent that the invalid Transaction is caused or contributed to by the fraud, Wilful Misconduct or gross negligence of Monoova;

(viii) any fees, fines or penalties that Monoova is required to pay to Interchange Parties as a direct or indirect result of the Client’s failure to observe its obligations under the Agreement, other than as a result of Monoova’s breach or the fraud, Wilful Misconduct or gross negligence of Monoova;

(ix) any amounts that Monoova is required to pay to any Interchange Parties on a pass through or cost recovery basis; and

(x) any other money the Client owes Monoova under the Agreement.

(b) Monoova shall be entitled, on an annual basis only at 1 July each year (or such other month post July of each year at its absolute discretion), to increase the fees set out in clause 7(a)(i) proportionately in line with any increases in the CPI.  Such increases, if any, are to be based on the 12 month period (or part thereof) immediately preceding the relevant fee increase.

(c) Subject to clause 7(b), the fees and charges referred to in clause 7(a)(i) may be varied by, and any new fee or charge may be introduced by Monoova, provided that Monoova gives the Client at least thirty (30) days’ notice of variation. Any variations to the Client’s Fee Schedule are deemed accepted if the Client continue to utilise the Services or do not cancel or terminate the Services in accordance with this Agreement. If the Client does not accept variations to the Client’s Fee Schedule, they may terminate the Agreement in accordance with clause 17.2(a).

(d) All payments by the Client under this Agreement are to be made without any condition made by the Client and without the Client making any deduction or withholding for any Tax or any other reason (unless the deduction or withholding is required by applicable law), and are payable in any currency that Monoova may reasonably require or determine.

(e) The Client agrees and acknowledges that Monoova may (acting reasonably and if it is in its legitimate business interests to do so and/or where it reasonably considers that it is necessary to manage a material or immediate risk to its business or services), determine that all amounts owing as between parties ordinarily are irrevocably automatically set-off and netted across all amounts then owing as between the parties in respect of all services, to derive a single net amount owing by one party to the other.  If Monoova does determine so pursuant to this clause, Monoova will provide reasonable notice to the Client before set-off or netting pursuant to this clause. Notwithstanding the above, the Client agrees that Monoova may, from time to time and at any time (whether or not either party is in default) demand or invoice the Client for an amount owing by the Client which is separately identified in that demand or notice to be paid without set-off, where Monoova or Monoova Global Payments have a legitimate business interest to do so and where it is necessary to manage a material or immediate risk to Monoova’s business in respect of the Client’s use of the services.

(f) Where the Client holds an interest or uses a different financial product or service issued by, or uses another service provided by, Monoova or its Related Entities, the Client agrees and acknowledges that where it owes an amount to a Monoova Related Entity under this Agreement or such other agreement in relation to such other product or service, Monoova has the option (by giving notice to the Client) to deduct an amount the Client holds with such other Monoova Related Entity under such other product or service and apply that amount to money the Client must pay Monoova in relation to this Agreement, provided that Monoova acts reasonably and has a legitimate business interest to do so, including to manage a material risk to one or more of the businesses of any Monoova Related Entity in respect of the Client’s use of relevant services.  In addition, if the liabilities to be set-off under the relevant agreement(s) referred to above are expressed in different currencies, the Client agrees and acknowledges that Monoova may convert either liability at a market rate of exchange for the purpose of set-off.

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8. INTELLECTUAL PROPERTY

(a) The Client has no right, title or interest in Monoova Material, other than the right to use Monoova Material for the purpose of performing its obligations under this Agreement or as expressly permitted under the Service Contracts or in writing by Monoova.

(b) Monoova grants the Client a limited, non-exclusive, royalty-free, non-transferable, non- sublicensable and non-assignable licence to display Monoova’s name and logo on the Client’s interfaces until such time as this Agreement is terminated, provided that Monoova (acting reasonably) reviews and agrees to the placements on Client’s interfaces and provides prior written consent.

(c) The Client grants Monoova a limited, non-exclusive, royalty-free, non-transferable, non- sublicensable and non-assignable licence to display the Client’s name, logo, or any other brand asset on the Monoova website, the Monoova Portal and on Monoova's marketing, promotional and sales materials until such time as is this Agreement is terminated.

(d) The Client acknowledges and agrees that all right, title and interest in any testimonial, quotation, feedback or metrics relating to Monoova's services provided by the Client to Monoova will vest in Monoova.

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9. COMPLIANCE WITH RELEVANT LAWS

(a) If there is any change (or proposed change) in, any making of, or any change (or proposed change) in the interpretation or application of any Relevant Law, or a request or directive of a Government Agency or an Interchange Party, Monoova (acting reasonably) reserves the right to vary any of the terms of this Agreement to comply with these changes.

(b) If the circumstances in clause 9(a)  apply, then subject to clause 18.2(b) , Monoova will:

(i) provide the Client with reasonable notice (which shall be at least thirty (30) days) of any changes Monoova will be required to make to the Agreement; and

(ii) give the Client reasonable time to implement any changes required as a result of Monoova varying the Agreement.

(c) Each party warrants and represents that it holds, and will continue to hold, maintain and keep current, all licences, permits and authorisations required by Relevant Law to perform its respective obligations pursuant to the Agreement.

(d) Without limiting the rights of Monoova under this Agreement or other Service Contract, the Client must reimburse Monoova for any fines and penalties incurred by or imposed on Monoova directly as a result of the Client’s acts or omissions, except to the extent that those fines and penalties are caused by or contributed to by any negligent act or omission of Monoova.

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10. ANTI MONEY LAUNDERING AND SANCTIONS

(a) Subject to any applicable Relevant Laws, the Client must promptly provide all information to Monoova which Monoova requests with reasonable prior notice, and requires in order to (including but not limited to):

(i) manage anti-money laundering, counter terrorism financing risk, including in relation to ongoing due diligence;

(ii) comply with any Relevant Laws (including laws relating to anti-money laundering and counter-terrorism financing and sanctions), regulations or prohibitions that may be applicable to Monoova with respect to any Transaction; or

(iii) avoid any unlawful act.

(b) The Client agrees that Monoova may disclose any information concerning the Client to any law enforcement agency, Government Agency or court where required to do so under any Relevant Law (including that of a foreign place or jurisdiction).

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11. CONFIDENTIALITY

(a) Both parties agree to keep confidential all Confidential Information.

(b) If either party is uncertain as to whether any information is Confidential Information, it must treat the information as Confidential Information and as not in the public domain unless and until the other party agrees in writing that the information is in the public domain.

(c) Each party must take all steps and do all such things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

(d) Each party may use and disclose Confidential Information of the other party:

(i) with the prior written consent of the other party; or

(ii) only on a ‘need-to-know’ and confidential basis, and solely for the exercise of rights, or the performance of obligations under this Agreement:

(A) to its Personnel;

(B) to its Related Entities and their Personnel; or

(C) to third parties whom Monoova or the Client engages, or is considering engaging, after termination or expiry of this Agreement.

(e) The recipient of Confidential Information must enforce each undertaking of its Personnel to keep Confidential Information confidential.  The recipient is liable to the discloser of the Confidential Information 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.

(f) Without limiting the above, the Client must (and must procure that its Personnel) maintain confidentiality and security of API keys and login credentials to Monoova Portal. The Client agrees to immediately notify Monoova if it becomes aware of any deficiencies in its system (or that of its supplier’s) which may compromise the security of the API keys and login credentials.

(g) Monoova agrees to maintain confidentiality and security of any Personal Information, user or Account data directly in relation to the Services, and Confidential Information in Monoova’s possession in accordance with standard industry practices.

(h) On termination or expiry of this Agreement, or earlier on reasonable request by the discloser of the Confidential Information, the recipient of any Confidential Information must at the option of the discloser promptly return to the discloser or destroy any or all copies of Confidential Information of the discloser save for any copy that the recipient is required by the Relevant 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.

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12. PRIVACY

(a) Each party agrees to comply with the Privacy Laws in relation to Personal Information.

(b) The Client consents to Monoova’s Privacy Policy (which is updated from time to time and latest copy is available at https://www.monoova.com/privacy), which sets out how Monoova deals with Personal Information that may relate to the Client.

(c) The Client must ensure any person to whom it discloses Personal Information is aware of and complies with the obligations under this clause 12.

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13. RECORDINGS

(a) The Client authorises Monoova to record any or all incoming and outgoing voice communications (including phone calls) with the Client and each of its Authorised Person(s) without making a disclosure to the Client of this nature each and every time the Client or its Authorised Person(s) speak with a representative of Monoova. These calls may be recorded with or without an audible tone.  The Client may at any time by notice (in writing) to Monoova cancel such authorisation.

(b) Monoova may use such recordings for the purposes of monitoring and training its staff, monitoring compliance with regulatory and contractual obligations, and resolving disputes. Aside from under Relevant Laws, Monoova is not obliged to keep a recording or to notify the Client that it has destroyed a recording.

(c) Subject to clause 13(a), Monoova may upon request, provide copies of any telephone recording or transcript relating to dealings with the Client if there is a dispute or anticipated dispute with respect to such dealings. In such case, the Client agrees to pay any reasonable cost associated with providing any such transcript or copy.

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14. REPRESENTATIONS AND WARRANTIES

14.1 Monoova warranties

(a) Monoova will provide the Service with due care and skill.

(b) Monoova will provide the Service in accordance with Relevant Laws.

(c) Subject to the Agreement, the Service is provided “as is” and Monoova makes no representation or warranty, express or implied, that the Service will meet the Client’s requirements, or that the Service will be uninterrupted, timely or error free.

14.2 Client warranties

(a) The Client warrants and undertakes that it will not request Monoova to take any action or perform any obligation, in connection with the Agreement that causes or might cause Monoova to be involved in any unlawful act or breach any Relevant Laws.

(b) The Client represents and warrants to Monoova that:

(i) the information contained in the Agreement relating to the Client and its Customers is true and not misleading (by omission or otherwise);

(ii) all information provided to Monoova from time to time (including, in relation to Transactions) is true and complete when provided and, to the extent such information ceases to be true and complete, the Client will update Monoova as soon as practicable;

(iii) Transactions processed using the Service are valid, to the extent that it is within the Client’s control;

(iv) the Client is not aware of and has no reason to suspect that any Transaction contravenes Relevant Law;

(v) any funds deposited into the Client’s Account have not been derived from, or related to, any criminal or fraudulent activities or other contravention of any Relevant Law;

(vi) any funds that Monoova pays out of the Client’s Account in reliance of, and acting on, the Client’s instructions will not be used in relation to any criminal or fraudulent activities;

(vii) it will provide any necessary information Monoova reasonably requires for the purposes of meeting Monoova’s regulatory and compliance obligations under the Relevant Laws and/or its policies and procedures (or that of any Interchange Party), (including information about the source of funds used to purchase any crypto assets, virtual or digital assets the Client might sell;

(viii) it will not initiate, engage or give effect to any Transaction that breaches or may be in breach of any Relevant Laws;

(ix) it will not take measures to protect, conceal or anonymise the identities of persons or transaction particulars using its products or services such as IP Anonymises, Onion Routers, the use of “Privacy Coins” or other similar mechanisms;

(x) each representation and warranty the Client has made is repeated and ongoing, and is true, complete and accurate in all material respects, and is not deceptive or misleading nor likely to deceive or mislead;

(xi) it has obtained legal advice on whether it needs to be registered with AUSTRAC as a ‘reporting entity’ or ‘remitter’ as those terms are defined in the AML/CTF Laws, and that if so required, the Client has registered and continues to maintain those registrations. The Client undertakes to advise Monoova within 24 hours of the registrations being terminated, suspended or otherwise withdrawn; and

(xii) it has undertaken an assessment of the effectiveness of, and is satisfied with, the AML/CTF Law compliance programmes of any counterparties that the Client conducts business with.

(c) The Client agrees and acknowledges that Monoova has agreed to provide the Service under the terms of this Agreement in absolute reliance of the Client’s representations, warranties and undertakings made under this Agreement.

(d) The Client must notify Monoova as soon as possible if any of the representations and warranties contained in the Agreement become incorrect or misleading in any respect.

(e) The Client agrees to meet its own costs of maintaining its active connection to the Service.

14.3 Additional Trustee Representations and Warranties

If the Client is a trustee of a trust (Trust), the Client represents and warrants to Monoova that:

(a) the Trust has been duly constituted and is validly existing in compliance with all applicable laws and the trust deed constituting the trust (Trust Deed) has been duly executed and duly stamped, in each case in accordance with the laws of each State and Territory of Australia;

(b) the Trust Deed and its constituent documents enable the Client to enter into this Agreement on despite any conflict of interest and duty which may arise on the Client’s part; and, if the Client is a company, any directors of that company, when entering into the Transactions contemplated with Monoova;

(c) all necessary resolutions have been duly passed and all consents have been obtained and all other procedural matters have been attended to as required by the Trust Deed, any other document or any law for the entry into, observance and performance by it of its obligations under this Agreement;

(d) each of the Client’s obligations under, and the Transactions contemplated by this Agreement constitute binding obligations and are completely and lawfully enforceable against the Client and the Trust's property in accordance with their terms;

(e) Monoova’s rights under this Agreement and any other of the Client’s agreements with Monoova have priority over the interests of the beneficiaries of the Trust;

(f) the Client is the only trustee of the Trust;

(g) no property of the Trust has been re- settled, set aside or transferred to any other trust or settlement;

(h) the Trust has not been terminated, nor has the date or any event for the vesting of the Trust's property occurred;

(i) no determination has been made to distribute the Trust's property on a date which is earlier than the latest date under the Trust Deed by which the Trust's property must be distributed;

(j) no action has been taken, or has been proposed, to remove the Client as trustee of the Trust, or to appoint additional or alternate trustees;

(k) there is no conflict of interest on the Client’s part in entering into this Agreement and performing its obligations under the Agreement or the Transactions contemplated by the Agreement;

(l) (as appropriate) each of the manager and the investment manager of the Trust is authorised to act on the Client’s behalf and to instruct Monoova in relation to any dealing and in relation to all other matters arising under this Agreement;

(m) the Client will be bound by any instructions given to Monoova by or any actions of the manager or the investment manager (as the case may be) as if the actions of the investment manager were the Client’s actions for the purposes of this Agreement;

(n) the Client authorises each of the manager and the investment manager to accept any notices or documents on its behalf and if Monoova has an obligation to serve any document or notice on the Client pursuant to this Agreement, or any law, service upon either the manager or the investment manager (as the case may be) will be effective service on the Client;

(o) the Client has an unrestricted right to be fully indemnified or exonerated out of the Trust's property in respect of any losses or liabilities incurred by the Client (except only in respect of fraud or breach of the Trust Deed of or the Client’s trustee duties) and the Trust documents do not restrict the right of Monoova to have recourse to the assets of the Trust to satisfy and liability to Monoova properly incurred by the Client arising out of the Transactions contemplated with Monoova and the Trust's property is sufficient to satisfy that right of indemnity or exoneration;

(p) the Client has complied with your obligations relating to the Trust;

(q) the Client is authorised to open bank accounts; and

(r) the Client is authorised to enter into contracts in relation to trust property, in the Client’s personal capacity.

14.4 Both parties’ warranties

Each party warrants that:

(a) it holds all appropriate regulatory licences and authorisations to operate its business activities, or is otherwise legally exempt from such requirements;

(b) It has the authority to enter into and perform its obligations under this Agreement;

(c) it has voluntarily entered into this Agreement without any duress from the other party;

(d) other than as set out in this Agreement, the other party has not made any promises, representations or inducements to it to enter into this Agreement;

(e) it has had full opportunity to consult its legal advisers concerning the nature, effect and extent of this Agreement; and

(f) it is aware that the other party is relying on the warranties under this clause in executing this Agreement.

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15. LIABILITY AND INDEMNITY

15. LIABILITY AND INDEMNITY

15.1 Liability for fraud, fraudulent misrepresentation, gross negligence and Wilful Misconduct

Nothing in this Agreement operates to exclude or limit a party’s liability for such party or its Personnel’s fraud, fraudulent misrepresentation, gross negligence or Wilful Misconduct.

15.2 Limitation of liability

Despite anything to the contrary, and to the maximum extent permitted by the Relevant Laws:

(a) Subject to clause 15.1, Monoova is not liable to the Client or the Client’s Customers or third parties, and is fully released from any loss or liability (including reasonable legal fees) to the extent directly suffered or incurred by Client or the Client’s Customers or third-parties, arising from or in connection with:

(i) a missing or erroneous payment made beyond the reasonable control of Monoova (including due to a failure by the Client to notify Monoova of correct and up-to-date Account and Beneficiary Account details);

(ii) any process, computer failure or Service disruption beyond the control of Monoova;

(iii) suspension or termination of the Agreement in accordance with clause 17;

(iv) an Interchange Party processing, not processing or delaying Transactions;

(v) any Reversal, subject to those which are made by Monoova due to its own fault only;

(vi) any illegal or fraudulent use of the Service by the Client or Customers; and

(vii) any scheduled maintenance of the Service as notified by Monoova or unscheduled maintenance or the Service that is beyond the control of Monoova,

except where such loss or liability is directly caused or contributed by Monoova’s fraud, fraudulent misrepresentation, gross negligence, Wilful Misconduct, or material breach of this Agreement.

(b) Subject to clause 15.1, and unless otherwise agreed in the Agreement with the Client, Monoova’s total maximum and cumulative liability for any and all claims, actions, suits, damages, loss or costs (including solicitor and own client costs) of any kind or indemnity provided under this Agreement in connection with performance or non-performance of the obligations under the Agreement howsoever arising (including in contract, tort, under statute or otherwise) is limited to the lesser of:

(i) the total amounts paid by the Client under the Agreement during the period of six (6) months immediately preceding the date on which such claim first arose, or such lesser period if the Agreement has been in force for less than six (6) months; or

(ii) AUD$100,000,

other than in the case any such losses are directly caused or contributed by Monoova’s fraud, fraudulent misrepresentation, Wilful Misconduct or gross negligence or material breach of this Agreement.

(c) Except for warranties expressly set out in this Agreement, and to the extent permitted by the Relevant Laws, Monoova and its licensors disclaim any implied warranty of merchantability, fitness for a particular purpose, title, or non- infringement, and implied warranties arising from course of dealing or course of performance.

(d) Monoova’s liability to the Client under this Agreement shall be proportionally reduced to the extent that (as applicable):

(i) Monoova could not reasonably have predicted the Client’s loss;

(ii) Monoova has acted in accordance with its obligations under this Agreement;

(iii) Monoova has acted in accordance with its obligations under the Relevant Laws in relation to this Agreement; and/or

(iv) the loss has been contributed to or partly caused or exacerbated by the Client’s or any third party’s act or omission in relation to this Agreement (including the Client’s failure to take reasonable steps to mitigate its loss or damage).

(e) To the extent permitted by the Relevant Laws, where it is fair and reasonable to do so, the maximum and cumulative liability of Monoova and its licensors for any breach of any conditions or warranties in this Agreement, or any breach of any statutory guarantees, will be limited, at its option, to:

(i) in the case of products: the replacement of products or resupply of equivalent products; repair of the products; payment of the cost of replacing the products or acquiring equivalent products; or the payment of the cost of having the products repaired; and

(ii) in the case of services: the supply of the services again; or payment of the reasonable cost of having the services supplied again.

(f) Monoova does not assume any liability for the products or services purchased by the Client (other than the Service, if applicable under this Agreement) or the Client’s Customers using the Service.

(g) Monoova expressly disclaims any and all liability for losses suffered or incurred by Customers or any third party(ies) transacting on the Customer’s instructions where it has acted in accordance with this Agreement or the Client’s instructions or as otherwise required by the Relevant Laws.

15.3 Consequential loss

Despite anything to the contrary in this Agreement but provided that it is to the maximum extent permitted by the Relevant Laws, neither party shall be liable to the other for lost profits or business, loss of goodwill or damage to reputation, increased overheads or any costs or expenses incurred, loss of production, or any other indirect, consequential, special, incidental, exemplary or punitive damages or loss, whether based in agreement or tort (including negligence, strict liability or otherwise) whether or not either party has been advised of the possibility of such damages or loss under the Agreement.

15.4 Monoova indemnity

(a) Subject to clauses 15.2(b) and 15.3 and to the maximum extent permitted by the Relevant Laws, Monoova will indemnify the Client against damages they incur as a direct result of any third-party claim that the Monoova Material infringes the Intellectual Property Rights of a third party, except if the damage was caused or contributed by:

(i) the combination of all or part of the Monoova Material with other products or technology not supplied by Monoova;

(ii) modification of all or part of the Monoova Material other than by Monoova; or

(iii) the Client’s fraud, fraudulent misrepresentation, gross negligence or Wilful Misconduct or material breach of this Agreement provided however that the Client must use reasonable endeavours to seek to remedy the breach within a reasonable period of time as agreed by the parties (acting reasonably at all times),,

in which case this indemnity shall be proportionately reduced.

(b) Subject to clause 15.2(b) and to the maximum extent permitted by the Relevant Laws, Monoova will indemnify the Client against any loss (other than the losses referred to in clause 15.3, if any and applicable) or liability suffered or incurred (including reasonable legal costs and expenses) as a direct result of a material breach of Monoova’s obligations under this Agreement which is unable to be remedied within a reasonable period of time as agreed by the parties, unless any such loss or liability was caused or contributed to by the Client’s fraud, fraudulent misrepresentation, gross negligence or Wilful Misconduct or material breach of this Agreement (provided however that the Client must use reasonable endeavours to seek to remedy the breach within a reasonable period of time as agreed by the parties, acting reasonably at all times) including a failure to take reasonable steps to mitigate its loss or liability (in which case this indemnity shall be proportionately reduced).

15.5 Client indemnity

(a) Subject to clause 15.3 and to the maximum extent permitted by the Relevant Laws, the Client and its successors and assigns (collectively, Indemnifying Parties) shall defend, indemnify and hold Monoova, its officers, employees and agents (collectively, Indemnified Parties) harmless from and against any and all loss (other than the losses in clause 15.3, if any and applicable) or liability suffered or incurred (including reasonable legal costs and expenses) by the Indemnified Parties where such loss or liability arises out of or in connection with:

(i) any material breach of the terms of use of the Service by the Client or its Customers (to the extent it is within the Client’s or its Customer’s control) pursuant to the Agreement and such other applicable Service Contract where such breach is unable to be remedied within a reasonable period of time as reasonably determined by Monoova;

(ii) any infringement, misuse or misappropriation of any third-party Intellectual Property Rights by the Client or its Customers in relation to use of the Service, including Intellectual Property Rights subsisting in Monoova Material;

(iii) any breach or failure on the part of the Client or its Customers (to the extent it is within the Client’s or its Customer’s control) to comply with any Relevant Laws in relation to use of the Service where such breach or failure is unable to be remedied within a reasonable period of time as reasonably determined by Monoova;

(iv) a refusal by Monoova to make payment where the refusal arises from a direction to refuse payment given by the Client, Customer or as a result of Monoova exercising any of its rights pursuant to the Agreement;

(v) a claim or demand of any kind against Monoova or its Related Entities or affiliates by the Client’s Customers or any other person (including an Interchange Party) arising from or relating to a Transaction caused, actioned or instructed (as applicable) by the Client or its Customer(s); and

(vi) any incorrect payment of money to, or the incorrect debiting of an Account or an account operated by another financial institution caused or contributed by the acts, omissions, negligence or fraud on the Client’s part or that of its Customers, including for the full amount of any funds credited or debited erroneously due to a failure by the Client to provide Monoova with notice of changed Account or Beneficiary Account details,

unless any such loss was directly caused or contributed by Monoova’s fraud, fraudulent misrepresentation, gross negligence, Wilful Misconduct, or material breach of this Agreement provided however that Monoova must use reasonable endeavours to seek to remedy the breach within a reasonable period of time as agreed by the parties (acting reasonably at all times) (in which case this indemnity shall be proportionately reduced).  This clause 15.5(a) is subject to Monoova taking reasonable steps to mitigate any losses or liability and any indemnified amount by the Indemnifying Parties shall be proportionately reduced accordingly.

(b) For the purposes of this clause, the Client agrees Monoova will not be taken to have been negligent if it has acted as required or contemplated by this Agreement or at the express request or direction of the Client or an Interchange Party even if those acts of Monoova might otherwise be considered negligent.

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16. AUDIT AND COMPLIANCE

(a) Subject to clause 16(b), Monoova or a person nominated or authorised by Monoova, acting reasonably, may conduct audits and reviews of the Client and its Sub-Merchant’s compliance with its obligations under the Agreement, including in relation to:

(i) processes, practices and procedures as they relate to the Agreement; and

(ii) the accuracy of the Client’s records and reports in relation to the Agreement.

(b) Any such audit referred to in clause 16(a) will be conducted on the Client’s or Sub-Merchant’s premises during business hours and following reasonable notice provided by Monoova. Monoova and its authorised representatives will treat as confidential any Confidential Information that is contained in the records or other information provided by the Client during such audit or in response to such request, and only use such information for the purposes of ensuring the Client’s and its Sub-Merchant’s compliance with this Agreement, and enforcing the conditions of this Agreement.

(c) In addition, the Client agrees and acknowledges that a Government Agency may (to the extent authorised to under the Relevant Laws) seek to audit any data or information in connection with the Transactions or the Service, in which case the Client must act in good faith and co-operate with Monoova in providing the requested data or information to the Government Agency and within the requisite timeframes imposed by the Government Agency or as reasonably directed by Monoova.

(d) To the extent necessary to protect the legitimate business interests of Monoova and in compliance with any Relevant Law, Monoova or a person nominated or authorised by Monoova may, acting reasonably and without prior notice to the Client, undertake random compliance testing to confirm compliance (or otherwise) with the Client’s obligations under the Agreement.

(e) If requested by Monoova (acting reasonably), the Client must submit an attestation document (and take reasonable steps to acquire this document from its Sub-Merchants) confirming compliance with its obligations under this Agreement and confirming ongoing compliance with any relevant obligations applicable to the Client’s or Sub-Marchants’ Customers, within a reasonable period of such request.

(f) Each party must bear its own costs of any audits or compliance reviews. However, if the audit or compliance review concludes that the Client has breached the Agreement (and that breach is not immaterial in Monoova’s reasonable opinion), Monoova may, by notice require the Client to reimburse Monoova for Monoova’s reasonable costs incurred in conducting the audit or compliance review as a debt immediately due and payable.

(g) The Client will take all reasonable steps to ensure that its Sub-Merchants comply with the terms of this clause 16.

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17. TERM, TERMINATION AND SUSPENSION RIGHTS

17.1 Term

This Agreement will continue during the Term unless it is terminated in accordance with this clause 17.

17.2 Client can terminate

Subject to any rights that the Client may have to terminate under this Agreement or as specified in an Appendix:

(a) The Client can terminate the Agreement by giving reasonable notice to Monoova (which shall not be less than seven (7) days’ written notice) if the Client receives a notice that Monoova will:

(i) increase the fees or charges or introduce a new fee or charge under clause 7 and the Client does not accept the variation;

(ii) impose a Reserve or increase an amount under an existing Reserve under clause 5.5 and the Client does not accept the variation;

(iii) be required to implement changes required under clause 9(a) and where the changes are likely to have, in the Client’s reasonable opinion, an adverse impact on the Client’s business or its operation; or

(iv) acting reasonably, make any other changes in accordance with this Agreement or another Service Contract which will have, or is likely to have, an adverse impact to the Client or its business.

(b) The Client can terminate this Agreement on written notice to Monoova (which shall not be less than seven (7) days’ written notice), if:

(i) an Insolvency Event occurs in respect of Monoova;

(ii) Monoova has breached a material term of this Agreement or other Service Contract that is not capable of being remedied, or which it has failed to remedy the breach within a reasonable period of time agreed with the Client (acting reasonably); or

(iii) A Force Majeure Event prevents Monoova from performing substantially all of the Services for a period of sixty (60) calendar days.

17.3 Monoova’s rights to terminate, suspend, delay or block

Subject to clauses 17.3(j) and 17.3(k), Monoova may (acting reasonably) terminate the Agreement or suspend, delay or block the Client’s access to the Service (or part thereof), on written notice, upon the happening of any one or more of the following events:

(a) the Client or its Sub-Merchant has breached a material term of this Agreement or other Service Contract, including failure to provide notification of the matters set out in clause 4.7;

(b) the Client (or its Customer) is, or Monoova acting reasonably suspects the Client (or its Customer) is or might be, or is likely to be involved in any unauthorised or illegal act, fraud or dishonesty;

(c) the Client breaches, or Monoova, reasonably suspects the Client may breach, any Relevant Law;

(d) the Client is subject to any banning order or disqualification pursuant to any Relevant Law;

(e) a change in any Relevant Law, industry code or the rules, regulations or procedures of the Interchange Parties (including BPAY and NPPA) or its service providers by which Monoova is bound, impairs its ability or prevents it to provide the Service;

(f) any act or omission of the Client, Sub-Merchant or any of the Client’s or Sub-Merchant’s Customers that Monoova reasonably believes will cause a material and/or immediate risk to Monoova’s business, reputation or brand, or the Services that it provides;

(g) Monoova reasonably suspects or believes that continuing to provide the Service to the Client, Sub-Merchant or any of its Client’s or Sub-Merchant’s Customers may cause Monoova to breach a Relevant Law or an agreement with an Interchange Party;

(h) an Interchange Party requires Monoova to cease providing the Services to the Client, a Sub Merchant or the Client’s or Sub-Merchant’s Customer; or

(i) or an Insolvency Event occurs in respect of the Client,

provided that in respect of an event described above:

(j) Monoova must believe that doing so is reasonable for it to manage a material or immediate risk (including credit, legal, compliance, security or reputational risk) to its business or the Services it provides, or that it considers the event to have a material impact on the client’s ability to meet its financial obligations to Monoova (or Monoova’s ability to assess this); and

(k) if applicable, where the relevant breach or default by the Client is capable of being remedied in Monoova’s reasonable opinion, Monoova will give a reasonable notice period to the Client to remedy the breach, before exercising any of its rights under this clause 17.3. The notice period shall not be less than twenty (20) days, unless it is reasonable for Monoova to give a shorter notice period, or no notice, in order to manage a material or immediate risk to its business or the Services it provides.

17.4 Either party can terminate for convenience

Subject to the Agreement, either party may terminate the Agreement by giving sixty (60) days’ written notice to the other.

17.5 Impact of termination

(a) Any accrued rights or remedies of Monoova or the Client are not affected by termination.

(b) Upon termination of the Agreement, the Client:

(i) must not accept, instruct or process a Transaction;

(ii) must promptly remove any reference to Monoova in its interactions with its Customers and other third parties; and

(iii) must return any Monoova Material to Monoova within ten (10) Business Days of the date of termination.

(c) Upon termination or expiry of the Agreement, Monoova will:

(i) deduct all outstanding fees or other amounts owing by the Client to Monoova from the funds held by Monoova on the Client Account; and

(ii) pay to the Client the balance of the funds held by Monoova on its behalf.

(d) Subject to Relevant Laws, for a period of four (4) weeks (or such other period that Monoova and the Client may agree in writing) from the date of the termination or expiry of this Agreement, Monoova will assist the Client in transferring Customer information (including Direct Debit Authorisation) and migration of PayIDs (if applicable) from the Service to a replacement service nominated by the Client, and each party will bear its own costs in relation to such activities.

17.6 The Client may request for suspension or block

(a) The Client may by giving reasonable notice to Monoova request for Monoova to suspend or block the Client’s access to the Service, provided that the Client set out the details of such request, including reasons, the suspension or block period requested and potential impact that the suspension or block may have on the Client and / or its Customers.

(b) Monoova will consider requests (acting reasonably) referred to in clause 17.6(a) and may in its discretion proceed to suspend or block the Client’s access to Service, or to unsuspend or unblock the Client’s access to Service after the relevant period.

(c) The Client acknowledges that where the Service is suspended or blocked under this Agreement, Monoova is not obliged to process or settle any Transactions.

(d) The Client agrees to work in good faith with Monoova and use best endeavours to resolve any issues which prompted the suspension of the Service under this Agreement.

(e) If the issue prompting the Client’s request for suspension of the Service under this clause 17.6 is not resolved within a reasonable period agreed by Monoova (acting reasonably), then Monoova or the Client may (both acting reasonably) terminate this Agreement following the end of the relevant period by reasonable notice to the other party, unless Monoova believes a shorter notice period (or no notice period) is warranted such that doing so is reasonable for it to manage a material and immediate risk to its business, or the Services it provides.

(f) The Client agrees and acknowledges that if the suspension arises as a consequence of any act or omission of the Client (or its Customers) and not due to any fault of Monoova, then unless otherwise agreed by the parties, Monoova is entitled to be paid for any reasonable costs that it incurs during the period of suspension or in attempting to resolve (in good faith) the issue which resulted in the suspension.

17.7 Surviving clauses

Clauses 1, 4, 5.3, 6.2, 7 to 16, 17.5, 17.7, 19 to 22, 24 and 26 survive termination of this Agreement together with and any other clause of the Agreement which by its nature survive termination.

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18. CHANGES TO THIS AGREEMENT

18.1 Types of changes

Subject to the Relevant Law and this clause 18, Monoova may make changes to any provision of this Agreement from time to time without the Client’s consent. Monoova will act reasonably when exercising its rights to make changes and only do so for legitimate business purposes. The types of changes that Monoova can make include:

(a) varying the amount of any existing fee, charge or amount as set out in clause 7(b);

(b) introducing a new fee or charge as set out in clause 7(c);

(c) where necessary to comply with changes in Relevant Law or the directions or requests of Government Agencies as set out in clause 9;

(d) imposing or removing a Reserve, or varying the amount of any Reserve under clause 5.5;

(e) other changes to the Agreement including:

(i) where necessary to reflect changes made or to be made by the Interchange Parties or third party service providers of Monoova;

(ii) where necessary to deal with fraud or security issues;

(iii) where necessary to reflect changes to Monoova business or technological systems, or in relation to compliance guidelines or standards;

(iv) other changes to this Agreement which may be unfavourable to the Client but which may be necessary for Monoova’s legitimate business interests; or

(v) changes that are administrative or minor, that correct mistakes or omissions, or that Monoova Payments reasonably believe that the Client will benefit from.

18.2 Notice period for changes

(a) Subject to the Relevant Law and clause 18.2(b), Monoova will notify Clients of changes outlined in clause 18.1 as follows:

(b) Despite clause 18.2(a) and any other clause to the contrary in this Agreement but subject to the Relevant Law, Monoova may give the Client a shorter notice period of any unfavourable change to the Client if it believes doing so is reasonable for it to manage a material and immediate risk to the Monoova business or the Services it provides, provided that such shorter notice period does not apply to the types of changes referred to in clause 7.

(c) The Client may terminate the Agreement on sixty (60) days prior written notice if it does not accept or agree to material variations introduced by Monoova under this clause 18. The rates and charges that applied immediately preceding any proposed changes to the rates and charges will continue to apply to that Client until the Agreement is terminated.

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19. NOTICES AND ELECTRONIC COMMUNICATIONS

(a) Notices may be served by delivery in person, by post, or by email to the address or number of the recipient specified in the relevant Service Contract, or as most recently notified by the recipient to the sender.

(b) The Client agrees that in addition to the methods of notice in clause 19(a), Monoova may notify and communicate electronically to it by sending a message to the Client’s mobile or via Monoova’s website, console or Monoova Portal (and in such cases, Monoova will notify the Client by way of email or text message that the information is available for perusal, retrieval and / or download) and a notice is duly given if it is being made available in such ways.

(c) A notice is taken to be received as follows:

(i) 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;

(ii) a notice sent by post is taken to have been given on the fourth Business Day after posting (from and to a place within Australia) or otherwise within ten Business Days of posting (from and to a place outside of Australia) unless it was actually received before that date;

(iii) 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. However, this clause does not apply where the person sending the transmission has evidence that the transmission was unsuccessful; and

(iv) a notice that was made by Monoova on its website, console or Monoova Portal before 5.00pm (recipient’s time) on a Business Day is taken to have been given on that day. Otherwise a notice made in the method described above is taken to have been given on the following Business Day.

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20. COSTS

Except as otherwise provided in this Agreement or the Fee Schedule, each party must pay its own costs and expenses in connection with the preparation, execution, and performance of this Agreement and other preceding and ancillary documents.

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21. FORCE MAJEURE

(a) If a party is wholly or partially prevented or hindered from complying with its obligations under this Agreement by a Force Majeure Event affecting that party, then that party’s obligations to perform such obligation under this Agreement will be suspended to the extent that it is prevented or hindered from doing so by the Force Majeure Event.

(b) As soon as possible after the Force Majeure Event arises, the party affected by it must notify the other party of the Force Majeure Event and the extent to which the notifying party is unable to perform its obligations under this Agreement, as far as it is able to ascertain at the time.

(c) If a Force Majeure Event arises, each party must take all reasonable steps to mitigate any loss and to minimise disruption to the Services.

(d) Nothing in this clause affects a party’s obligations to pay any monies due to the other party.

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22. DISPUTE RESOLUTION

(a) In the event of any dispute between the parties concerning any provision of the Agreement, the dispute resolution process set out in this clause must be used before any other remedy can be sought, unless:

(i) a party wishes to seek urgent interlocutory relief; or

(ii) in the case of clauses 22(b)(i)  to 22(b)(iv), a party does not comply with the procedures despite the reasonable good faith attempts by the other party.

(b) The dispute resolution process consists of the following:

(i) if a dispute arises out of or in connection with this Agreement, then either party must send to the other party a notice of the dispute in writing identifying and providing details of the dispute.

(ii) despite the existence of a dispute, each party must continue to perform its obligations under this Agreement. The existence of a dispute will not prejudice either party’s rights to terminate this Agreement for any reason;

(iii) within 14 days of service of a notice of dispute under this clause, a senior representative of the Client and a senior representative of Monoova must meet and, in good faith, attempt to resolve the dispute;

(iv) if, after following the procedures set out in clause 22(b)(iii), the parties fail to resolve a dispute within 30 days (unless the parties agree otherwise through actions including the continuation of commercial negotiations in person or in writing), the dispute may be escalated to the senior executive representative (including Chief Executive Officer level) and such representative(s) shall meet to negotiate in good faith to seek resolution of the dispute.  If the representatives resolve the dispute, their agreement will be recorded in writing and will be binding on both parties; and

(v) if the dispute is not resolved within 30 days of the date that the delegates meet under this clause 22(iv), unless the parties agree otherwise in writing, the parties agree to act promptly and endeavour to settle the dispute by mediation by a mediator selected by the Australasian Dispute Resolution Centre (ADRC). The mediation will be conducted in accordance with the current ADRC mediation guidelines.

(c) The operation of this clause will not affect a party’s right to terminate the Agreement.

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23. MARKETING AND PROMOTION

The Client agrees and acknowledges that:

(a) Monoova may include the Client’s name, trading name, logo, trade marks and general business information in Monoova’s promotional and marketing materials for the Services including on its website and other public facing platforms used or administered by Monoova (including LinkedIn);

(b) the Client may at any time and upon reasonable notice in writing to Monoova request that Monoova cease to use its name, logo, trade marks and general business information for these purposes;

(c) if the Client provides Monoova with any comments, questions, ideas, suggestions or other feedback relating to Monoova’s or Monoova Related Entities’ Services (Feedback), the Client agrees that Monoova may (acting reasonably) freely use, copy, disclose, license, distribute and exploit such Feedback in any manner (including in a case study) without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise, subject to any compliance with the Relevant Laws including the Privacy Laws and Monoova’s Privacy Policy (which is updated from time to time and latest copy is available at https://www.monoova.com/privacy).  Feedback will not be considered as constituting the Client’s Confidential Information or Client data.  The Client consents to Monoova publicising any Feedback to third parties including on Monoova’s website or any other public facing platforms used or administered by Monoova (including LinkedIn), provided that it shall not contain any information relating to any complaints made by the Client in connection with the Services or Monoova.

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24. ASSIGNMENT OR NOVATION

The Client may not assign or novate under the Agreement without the prior written consent of Monoova, which consent will not be unreasonably withheld. Monoova may assign or novate this Agreement by giving reasonable notice to the Client where such assignment relates to a transfer to a Related Entity or in connection with a sale or reconstruction.

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25. SUBCONTRACTING

Subject to the Client’s rights under the Agreement, Monoova may where reasonably necessary subcontract any of its obligations under this Agreement. Monoova remains liable for the performance of the subcontracted obligations, and is responsible for acts, omissions or defaults of its Subcontractors.

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26. GENERAL

26.1 Governing law

This Agreement is governed by the laws of New South Wales, Australia and both parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

26.2 Severance

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of the provision in any other jurisdiction.

26.3 Waiver

(a) Waiver of a breach or of any right of election arising from a breach of this Agreement must be in writing and signed by the party granting the waiver.

(b) A breach or any right of election arising from a breach of this Agreement is not waived by any failure to or delay in the exercise, or partial exercise, of that right of election or any other right.

26.4 Further action

Each party must take all steps, execute all documents and do everything reasonably required by any other party to give effect to the transactions contemplated by this Agreement.

26.5 Successors and assigns

This Agreement is binding on, and has effect for the benefit of, the parties and their respective successors and permitted assigns.

26.6 Electronic contracting

The Client agrees that Monoova may communicate with the Client electronically in relation to the Agreement using an electronic contract system. Where electronic communication or an electronic contracting system is used in relation to this Agreement:

(a) a document or information provided electronically has the same status and effect as a document or information provided in traditional paper form and is considered to be ‘in writing’;

(b) the Client consents to the Agreement being in electronic form;

(c) where applicable, the Client may enter into the Agreement electronically using an electronic execution method nominated by Monoova from time to time; and

(d) the Client must not dispute the authenticity, receipt or binding nature of a document or information provided electronically on the grounds that the document or information was provided or entered into electronically.

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