Merchant Terms and Conditions

The Cash Back App Pty Ltd (TCBA) And The Merchant

This agreement is dated:  As of the date of the on-line application.

The Cash Back App:  The Cash Back App Pty Ltd ("TCBA")

The Cash Back App registered office is:  Level 5, 320 Adelaide Street Brisbane Qld 4000

The Merchant is:  The entity as specified on the on-line application.

The Merchant's registered office is:  The address as specified on the on-line application.

The terms and conditions

1. Definitions

   These definitions apply unless the context requires a different interpretation:

   "Confidential Information"  means all information of about a party but does not include information that is disclosed on the Website and Mobile Application to a prospective Buyer or other person in the usual course of business. It includes among other things: information about staff, their personal contact information, and businesses, methods of doing business, future plans, policies, suppliers and customers.  It includes information about suppliers' agents and distributors.  It includes information about the Intellectual Property.

   "Content"  means the information, photographs, graphics, and all other material on the Website and Mobile Application.

   "Installation" means all of the computer hardware and software and any other machinery and equipment operated in conjunction with it and used by TCBA to provide the Services.

   "Intellectual Property"  means intellectual property of every sort, whether or not registered or register able in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trade, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions.

   "Post" means display, exhibit, publish, distribute, transmit and/or disclose information, details and/or other material on the Website and Mobile Application, and the phrases "Posted" and "Posting" shall be interpreted accordingly;

   "Services" means all or any service provided by TCBA through the Website and Mobile Application.

   "User" means any person other than the Merchant who uses the Services or visits the Website and Mobile Application for any purpose.

   "Website and Mobile Application" means the Website and Mobile Application of TCBA, and includes all web pages and mobile applications controlled by TCBA.  It includes all information available on the Website and Mobile Application.

2. The agreement
   1. The purpose of this agreement is to regulate the relationship between the parties in connection with the use by the Merchant of the Website and Mobile Application of TCBA.
   2. The Website and Mobile Application has been designed with a view to providing product and service information to prospective sellers and buyers of such information.
   3. TCBA now agrees that for the payment set out in the online application form, it will provide access to the Website and Mobile Application to the Merchant.
3. Relationship of parties
   Nothing in this agreement shall create a partnership, joint venture or agency between any of the parties.
4. Cost and payment
   1. Unless specified to the contrary in any Assignment, the Merchant agrees that for the payment set out in the online application form it will pay TCBA for the following services at the rate of:
      1. The Registration Fee: A one-time establishment fee to list its business.
      2. The Participation Fee: An ongoing percentage of the value of retail sales transacted with a User via the Website and Mobile Application.
      3. The Loyalty Credit: An ongoing percentage of the value of retail sales transacted with a User via the Website and Mobile Application. The Loyalty Credit is held by the Merchant as a credit for the User against future purchases from the Merchant and is not paid to TCBA.
      4. The Annual Hosting Fee: An annual hosting fee paid on the 12 month anniversary date of registration.
   2. The Merchant will provide its bank account details to TCBA and on a daily basis TCBA will debit the Merchants bank account for the value of the Participation Fee based on the value of the User transactions as entered into the Website and Mobile Application.
   3. TCBA shall be entitled after [28 days] notice to the Merchant and not more than once in every [12 months] to increase the rates for the Annual Hosting Fee. Such increase shall be no greater than 5% in any year
   4. TCBA reserves the right to immediately suspend all services provided to the Merchant if there is insufficient funds in its nominated bank account to meet the Participation Fee.
   5. TCBA reserves the right to charge the Merchant interest in respect of the late payment of any money due under this agreement (both before and after judgment) at the rate of [5] per cent above the base rate from time to time of the Reserve Bank of Australia from the due date until receipt of payment. Such interest shall be cumulated each quarter year.
5. Late payment surcharge
   1. If payment is not received in TCBA's bank by the due date TCBA may suspend the Services.
   2. In any case when payment is not made by due date additional sums will become due by the Merchant to TCBA as follows:
      1. if payment has not been made by the 6th day of the month, the additional payment is A$20
      2. if payment has not been made by the 12th day of the month, the additional payment is A$50
   3. If payment has not been made by the last day of the month, TCBA may terminate this agreement without notice.
   4. If TCBA terminates this agreement because the Merchant has not made a payment when due or because he has failed to give notice of cancellation then there will be due to TCBA:
      1. all of the Price for Services to the end of the month of cancellation, whenever that is;
      2. the Price for one additional month to compensate TCBA for the failure to give notice;
      3. interest as described above;
      4. and the Merchant agrees that these terms are reasonable.
6. Interest
   1. If any payment is more than fourteen days overdue, TCBA is entitled to interest on the late payment, from the date it was originally due to the date of actual payment at the rate of 8% per year. In making the calculation:
      1. nothing is to be deducted or set off;
      2. any Goods and Service tax payable is to be added;
7. Information the Merchant gives to TCBA
   The Merchant confirms that he has provided, and will continue to provide, accurate, up to date, and complete information about itself.
8. System Security
   1. The Merchant agrees that it will not, and will not allow any other person to, violate or attempt to violate any aspect of the security of the Installation;
   2. The Merchant agrees that it will, in no way, modify, reverse engineer, disassemble, decompile, copy, or cause damage or unintended effect to any portion of the Website and Mobile Application, or any software used on the Website and Mobile Application, and that it will not permit any other person to do so.
   3. Examples of violations are:
      1. accessing data unlawfully or without consent;
      2. attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
      3. attempting to interfere with service to any user or network, including, without limitation, by means of overloading, "flooding", "mail bombing" or "crashing";
      4. forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
      5. taking any action in order to obtain services to which  the Merchant is not entitled.
9. Merchant contact details
   The Merchant undertakes to provide to TCBA its current land address email address fax and telephone numbers as often as they are changed.
10. Data protection
    The Merchant agrees that TCBA may process all personal data of the staff of the Merchant which relates to this agreement either directly or through a third party bound by a duty of confidentiality.
11. TCBA's disclaimers and exclusions
    1. TCBA does not represent that the Services are suitable for the Merchant's use.
    2. The Merchant acknowledges that in entering into this agreement it has not relied on any representation or other information not contained in this agreement.
    3. TCBA accepts no responsibility for:
       1. any information provided by a buyer or seller or other user of the Website, even if it is not clear that such information has been provided by such third party;
       2. any malfunction in any software.
    4. TCBA or their content suppliers may make improvements or changes to the Website and Mobile Application, the content, or to any of the services described on the Website and Mobile Application, at any time and without notice to the Merchant.
    5. The Merchant is advised that content may include technical inaccuracies or typographical errors.
    6. TCBA give no warranty and make no representation, express or implied, as to:
       1. the truth of any information given on the Website and Mobile Application by any third party;
       2. any implied warranty or condition as to fitness of the Services for a particular purpose;
       3. compliance with any law;
       4. non-infringement of any right.
    7. Much of the material provided on the Website and Mobile Application is posted (and thereby published) by third parties. TCBA is under no obligation to monitor, vet, check or approve any such material. TCBA disclaims all responsibility for information published on the Website and Mobile Application by any person.
    8. The Website and Mobile Application contains links to other Internet Website and Mobile Applications. TCBA has neither power nor control over any such Website and Mobile Application. The Merchant acknowledges and agrees that TCBA shall not be liable in any way for the content of any such linked Website and Mobile Application, nor for any loss or damage arising from the Merchant use of any such Website and Mobile Application.
    9. In no event shall TCBA or our content suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with the use of the Website and Mobile Application or the content available from this Website and Mobile Application.
12. Limitation of liability
    1. The following provisions set out TCBA's entire liability to the Merchant in respect of:
       1. any breach of its contractual obligations arising under this agreement; and
       2. any representation statement or tortious act or omission including negligence arising under or in connection with this agreement
          And the Merchant's attention is drawn to these provisions:
    2. Any act or omission on the part of TCBA, falling within this paragraph shall be known as an ‘Event of Default
    3. TCBA's entire liability in respect of any Event of Default shall be limited to the sum of A$1,000.
    4. TCBA shall not be liable to the Merchant in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Merchant as a result of an action brought by a third party) even if such loss was reasonably foreseeable or TCBA had been advised of the possibility of the Merchant incurring the same.
    5. If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.
    6. The Merchant agrees to give TCBA not less than 28 days in which to remedy any Event of Default hereunder.
    7. TCBA shall have no liability to the Merchant in respect of any Event of Default unless the Merchant shall have served notice of it on TCBA within 1 year of the date he became aware of the circumstances giving rise to the Event of Default or the date when he ought reasonably to have become so aware.
    8. Nothing in this paragraph shall confer any right or remedy upon the Merchant to which he would not otherwise be legally entitled.
    9. TCBA shall not be liable to the Merchant for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.
13. Indemnity - Merchant to TCBA
    The Merchant agrees to indemnify TCBA against any claim or demand, including reasonable lawyers' fees, made by any third party due to or arising directly or indirectly from:
    1. The Merchant's use of the services
    2. The Merchant's failure to comply with the law of any country;
    3. A breach by the Merchant of the intellectual property rights of any person;
    4. Provided that TCBA:
       1. gives notice to the Merchant of any infringement immediately he becomes aware of it;
       2. gives the Merchant the sole conduct of the defence to any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim except upon the express instructions of the Merchant; and
       3. act in accordance with the reasonable instructions of the Merchant and give to the Merchant whatever assistance he reasonably requires in respect of the conduct of his defence.
    5. The Merchant shall reimburse TCBA his reasonable costs incurred in complying with the above provisions and for the purpose of this paragraph the Merchant agree that the cost of our management and technical time is properly recoverable and can reasonably be valued at A$60 per hour without further proof.
14. Privacy policy exception
    The Merchant agrees that TCBA may disclose the Merchant's information including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority who makes a written request without further consent or notification to the Merchant.
15. Content and Intellectual Property Rights
    1. Title, ownership rights, and intellectual property rights in the Content whether provided by TCBA or by any other content provider shall remain the sole property of TCBA and / or the other content provider.  TCBA will strongly protect its rights in all countries.
    2. The Merchant may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as is expressly permitted in this agreement.
    3. The Merchant may Post into the Services any appropriate Content owned by the Merchant.  The Merchant accepts all risk and responsibility for determining whether any Content is in the public domain. The Merchant grants to TCBA the right to edit, copy, publish, distribute, translate and otherwise use in any medium and for any purpose any Content that the Merchant places on the Service. The Merchant represents and warrants that it is authorized to grant all such rights.
    4. The Merchant may download or copy the Content only for the Merchant's own personal use, provided that the Merchant maintains all copyright and other notices contained in such Content. The Merchant may not store electronically any significant portion of any Content.
16. Interruption to the Service
    1. If it is necessary for TCBA to interrupt the Services then TCBA may do so without telling the Merchant first.
    2. The Merchant acknowledges that the Services may also be interrupted for reasons beyond the control of TCBA.
    3. The Merchant agrees that TCBA is not liable to it for any loss whether foreseeable or not, arising as a result of interruption to the Services.
17. Confidentiality
    1. The parties are aware that in the course of the Contract they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.
    2. The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Contract that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
    3. Both TCBA and the Merchant hereby undertake to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employee's agents and sub-contractors with these provisions.
    4. Each of TCBA and the Merchant hereby undertakes one to the other that for the period of 12 months following completion of the Contract they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment.
    5. The provisions of the last previous sub paragraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.
18. Duration and termination
    This agreement shall continue until terminated:
    1. By effluxion of time 12 months from today; or
    2. By 28 days notice in writing by either party to the other; or
    3. Immediately by the TCBA if the Merchant fails to pay any sum due within 7 days of the due date ; or
    4. Immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it ; or
    5. Immediately by either party if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
    6. Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.
    7. The Merchant may terminate this agreement immediately upon giving notice in writing in the following circumstances:
       1. TCBA is in breach of any of the terms of this agreement or of any Assignment; or
       2. TCBA is or becomes incompetent or negligent in respect of any of his obligations under this agreement or in respect of any Assignment; or
       3. TCBA refuses to carry out the work reasonably and properly required of him under this agreement.
    8. The Merchant may terminate this Agreement at any time, for any reason, with immediate effect. The Merchant may terminate the agreement either by sending notice to TCBA by post or email, or by completing the form on the Website and Mobile Application and submitting it. TCBA reserve the right to check the validity of any request to terminate membership
    9. If the Merchant terminate, TCBA shall be under no liability to the Merchant whatsoever, and the Merchant hereby release TCBA from any such liability.
    10. Upon termination by either party the Merchant's right to use the Services immediately ceases;
    11. The Merchant, at termination, will lose the customer base that has been collected in shopping community to the business. Future shopping rewards and shopping community income from the customer network underneath the business will also be terminated and the merchant shall no longer earn income from the business customer community
    12. The Merchant, shall return all merchandising, hardware (such as iPad or tablet) and other items provodided by TCBA to TCBA. Any damages to items will be the reponsibility of the merchant to pay for
    13. In the event of such termination by to TCBA, TCBA will within seven days refund to  the Merchant the balance of  the Merchant's Annual Hosting Fee outstanding for the service, pro rata with time not elapsed;
19. Successors to the agreement
    1. Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
    2. The Merchant shall not permit any part of the benefit of this agreement to be used by any other person except a person to whom the Website and Mobile Applications have been sold or transferred.
20. Contracts (Rights of Third Parties)
    It is not intended that this agreement shall give any right or obligation to any third party.
21. Notices and service
    1. Any notice or other information required or authorised by this agreement to be given by either party to the other may be given by hand or sent by pre-paid post, or electronic means to the other party at the address last provided for that type of communication.
    2. Any notice or other information given by post shall be deemed to have been given on the second day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid and posted, or that it has not been so returned to the sender, shall be sufficient evidence that it has been duly given.
    3. Any notice or other information sent by electronic means shall be deemed to have been duly sent on the date of transmission.
    4. Service of any legal proceedings concerning or arising out of this agreement shall be affected by causing the same to be delivered to the party to be served at his main place of business or his registered office, or to such other address as may from time to time be notified in writing by the party concerned.
22. Reasonableness
    The Merchant has carefully considered all the above conditions and the Merchant agrees that they are all reasonable and required in a contract such as this contract properly to protect the Company.
23. Entire understanding
    This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.  Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty or other term not forming part of this agreement
24. Severability
    If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
25. Force majeure
    1. Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including strikes of its own employees.
    2. Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.
    3. If a default due to force majeure shall continue for more than [nn] weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
26. Waiver
    No waiver by to TCBA, in exercising any right shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted as a waiver
27. Dispute Resolution
    In the event of a dispute arising out of or in connection with these terms or any contract between the Merchant and to TCB, then the Merchant agree to attempt to settle the dispute by engaging in good faith with TCBA in a process of mediation before commencing arbitration or litigation
28. Governing Law
    This Agreement shall be governed by and construed in accordance with the law of Australia in the State of Queensland.  This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.