Terms and Conditions

Terms and Conditions

LAST UPDATE: January 2021
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HIGHLIGHTS:

  • You may provide recruitment or other professional services to businesses. Those businesses may enter into a Payment Agreement with us. Each business which does so is called a Client.
  • You will issue an invoice to the Client for the recruitment or other professional services you provide to the Client.
  • You can sign a separate document called a Supplier Agreement. These Terms and Conditions are incorporated into the Supplier Agreement. Each time you and BizPay sign a Supplier Agreement a separate contract called a Transaction is made between you and BizPay. A Transaction allows you to sell the invoice specified in the Supplier Agreement to BizPay.
  • Each time a Transaction is made you absolutely and unconditionally assign the invoice specified in the Supplier Agreement to us. We pay the Invoice Purchase Price to you. The Invoice Purchase Price is the Invoice Amount specified in the Supplier Agreement less the Discount specified in the Supplier Agreement. If the Discount is zero the Invoice Purchase Price is the Invoice Amount less $1.00.
  • As the owner of the invoice BizPay allows the Client to pay the invoice by installments. The Client and BizPay agree to this in the Payment Agreement. The Client must pay those installments direct to BizPay.
  • BizPay considers that allowing the Client to pay by installments could make the purchase of services from you more attractive.
  • BizPay only contracts with companies. It does not contract with individuals. The individual who signs a Supplier Agreement on your behalf must be over 18 years and by signing confirms that he or she has the necessary capacity and authority to sign a contract on your behalf.
  • You remain responsible for the services you supply to the Client. In particular, replacement guarantees and refunds are your responsibility. BizPay is not responsible for the services you supply or should supply.
  • BizPay is taking on the risk of non-repayment from the customer.

Welcome to BizPay. The following terms apply.

1. PARTIES AND POLICIES

1.1 Parties to the agreement

Each Transaction is a separate contract between you the company named in a separate Supplier Agreement (‘you’ or ‘your’) and BizPay Pty Ltd (ACN 633 797 627) (‘BizPay’, ‘we’, ‘us’ or ‘our’). It sets out the terms and conditions that apply to your use of our Facility in connection with the invoice specified in that Supplier Agreement. You agree to these Terms and Conditions by signing the Supplier Agreement or using the Facility. If you do not want to be bound by these Terms and Conditions, you must not sign a Supplier Agreement or use our Facility.

1.2 Policies incorporated into these Terms and Conditions

Before you use our Facility, you should read these Terms and Conditions, as well as BizPay’s Privacy Policy and any other policies found on the Website. They are incorporated into these Terms and Conditions.

We recommend that you store or print a copy of these Terms and Conditions (including all policies found on the Website) and each Supplier Agreement for your records. To the extent of any inconsistency between these Terms and Conditions and those policies, these Terms and Conditions will prevail. To the extent of any inconsistency between the Terms and Conditions or those policies and the Supplier Agreement, the Supplier Agreement will prevail.

1.3 Changes to these Terms and Conditions

(a) We may amend these Terms and Conditions at any time for any reason including, for example, if we change the functionality of our systems or processes, introduce new products, or as required by law. We will post the amended document on our Website. Each time you make a Transaction you will be asked to agree to the then current Terms and Conditions. Please read the Terms and Conditions on our Website carefully before you place a Transaction. If you do not agree with the changes, you may decide not to enter into any further Supplier Agreements and will then not sell any further invoices to us.

(b) We will not change the Terms and Conditions for an existing Transaction. The Terms and Conditions that will apply to an existing Transaction (and any steps taken in relation to the Transaction) are the Terms and Conditions that applied at the time you made the Transaction.

2. OUR RELATIONSHIP

2.1 About us and the significance of Transactions

(a) Our facility allows you to sell to BizPay the invoice you issued to a Client for Services you provided to the Client. A business can be a Client if they have entered into a Payment Agreement with us.

(b) Each time a Supplier Agreement is entered into between you and us a separate contract is made for the sale of the invoice specified in the Supplier Agreement. The invoice (including the account evidenced by it) is transferred to us. The Client will be required to discharge the invoice by paying us. An “account” is also called a book debt.

(c) We will pay the Invoice Purchase Price to you. We will pay it within two business days of the Assignment Date. Payment will be made in Australian dollars. Payment will be made by transfer to a bank account which you have nominated to our satisfaction.

(d) You must give us any information concerning the invoice, the Transferred Account or the Client which we reasonably request.

(e) The Transferred Account is transferred pursuant to an Agreement on the Assignment Date. It is transferred to us completely, absolutely and unconditionally, although for the purposes of the PPSA the transfer gives us a security interest in the Transferred Account. No further formality is required for the transfer to occur. If a Transferred Account is not, for any reason, transferred to us, you must do anything we may require to transfer it. Until it is transferred, you will hold the Transferred Account on trust for us.

(f) We are not responsible or liable for the Services the Client purchases from you. You must perform those Services to the satisfaction of the Client, to a proper professional standard and in accordance with your agreement with the Client. You must also perform any other obligations, including obligations which arise under the contract dealing with the Services.

(g) If we process transactions for you through our Website we do so as your agent. For example, we might use our Website to provide a tax invoice to the Client for the services provided by you. Delivery, fulfilment and Client support for the Services will be provided by you. You agree to be bound by the terms and conditions of the contract between you and the Client.

(h) We do not:

  1. enter into a partnership, joint venture, agency or employment relationship with you;
  2. guarantee the identity of the Client or any other third party;
  3. determine if you are liable for any taxes; or
  4. collect or pay any taxes on your behalf that may arise from your use of our Facility, you placing a Transaction or you providing Services.

2.2 Your obligations concerning Transferred Accounts

(a) You must complete any further documents and do any other thing we may require in relation to the Transferred Account. In particular you must do anything we reasonably require to perfect the transfer of a Transferred Account and give any notice to the Client we require. You must do anything we reasonably require to help us collect and enforce a Transferred Account. We may collect and enforce it in any way we like. We can, for example, give the Client time to pay or compromise the Transferred Account.

(b) You must immediately notify us in writing if any person (including the Australian Taxation Office or a secured party holding a Security Interest) issues a notice in relation to a Transferred Account; or a Client disputes a Transferred Account or makes a claim in relation to a Transferred Account.

(c) You must use your best endeavours to ensure that the Client gives all Collections for a Transferred Account direct to us. If you receive any Collections for a Transferred Account you must immediately give them to us in the form you received them. However, if we have told you that you can deposit them into the Nominated Account, you must immediately after receipt tell us and deposit them into that account. You hold the Collections on trust for us and must keep them separate from all other property until they are given to us or deposited into the Nominated Account.

(d) The Collections for a Transferred Account belong to us and you have no interest in them. We can direct the disposition of the Collections from the Nominated Account without any consent from you. You have no interest in the Nominated Account. A deposit into the Nominated Account does not result in us or any other person coming under a present liability to pay any amount to any person.

(e) You must not:

  1. transfer or otherwise deal with a Transferred Account in any way or give or permit to exist any security interest over it;
  2. enforce or adjust in any way a Transferred Account. A credit note can only be issued in accordance with clause 7.1. If a credit note is issued you must immediately tell us;
  3. collect a Transferred Account, interfere in any way with the collection by us or attempt to divert payment of a Transferred Account away from us;
  4. request that the Client pay a Transferred Account to anyone other than us or a person nominated by us; or
  5. do anything or permit anything to happen which might:
    • result in a Transferred Account, or any of our rights under an Agreement, being or becoming invalid, unenforceable, or liable to forfeiture or cancellation;
    • adversely affect any of our rights under an Agreement; or
    • affect the liability of the Client to pay the Transferred Account or our right to collect it from the Client.

(f) In connection with each Transferred Account, you represent and warrant to us that:

  1. the details provided to us are complete and accurate. In particular, the invoice amount specified in the Supplier Agreement is the amount which the Client owes;
  2. the Client has received all Services and is fully satisfied with them;
  3. all requirements upon which payment of the Transferred Account is or may be dependent have been fulfilled;
  4. so far as you are aware the Client will pay the invoice amount specified in the Supplier Agreement;
  5. you have good title to, and are the sole legal and beneficial owner of, the Transferred Account (in which case you transfer the Transferred Account to us as beneficial owner) or you hold the Transferred Account as trustee of a trust (in which case you transfer the Transferred Account as trustee);
  6. you have an unqualified right to transfer the Transferred Account to us;
  7. no security interest affects the Transferred Account other than any advised to us in writing before the agreement date specified in the Supplier Agreement and there is no interest of any type in the Transferred Account which could have priority over our interest;
  8. the Transferred Account is not subject to, nor will you allow it to be subject to, any right of set-off, counterclaim, combination of accounts or any other defence or claim;
  9. the Transferred Account is not regulated by the National Credit Code;
  10. you have complied with all laws relating to the Transferred Account, the invoice for the Transferred Account is genuine and complies with all requirements for it to be a tax invoice and the date of the invoice is after the time the supply of the Services was completed;
  11. the Transferred Account is payable in Australia, the currency of payment is Australian dollars and the Services were performed in Australia;
  12. you have disclosed to us all of the terms of your agreement with the Client which could affect or relate to the Transferred Account;
  13. the Transferred Account arose in the ordinary course of your ordinary business from the bona fide and arm’s-length performance of Services by you;
  14. the Transferred Account is not subject to any conditions which might affect its collection and does not arise from any form of progress claim; and
  15. the Client is not a related body corporate, related entity or relative (each as defined in the Corporations Act 2001) of you or any of your directors or shareholders.

2.3 Your other obligations

(a) You represent and warrant to us that:

  1. you have the power to enter into and perform each of your obligations under your agreement with the Client which gave rise to the Transferred Account and each Agreement and by doing so you will not breach an obligation to another person or any law;
  2. you are an Australian entity (as defined in the PPSA) and have an established place of business in Australia;
  3. you enter into each Agreement wholly for business or investment purposes. Those investment purposes do not include the purchase, renovation or improvement of residential property or investment in marketable securities; and
  4. all information given to us, including information about you and the Transferred Accounts, is complete and accurate.

(b) You represent and warrant to us that you are not the trustee of any trust, except a trust which has been disclosed to us. Irrespective of this, you are bound by each Agreement both in your own right and as trustee of each trust of which you are the trustee. You are also bound as the trustee of a trust you may become the trustee of.

(c) At all times you indemnify us against all liabilities, expenses or losses of any kind that we suffer or incur if any representation or warranty given by you is not true or is misleading or if you do not comply with any of your obligations. The indemnity is irrevocable and survives the ending of any Agreement. Amounts payable under this indemnity must be paid immediately on demand by us.

(d) For valuable consideration and by way of security you irrevocably appoint us and each of our officers (jointly and severally) as your attorney to do in your name all acts and things which you should have done. In addition, the attorneys may at any time sign any documents and do anything they consider desirable to give effect to any Agreement and the transactions contemplated by any Agreement; remedy any breach of any Agreement; exercise the rights, powers and remedies we have under any Agreement or any laws; take and defend legal proceedings (in your name or otherwise) in connection with a Transferred Account; resolve disputes with Clients; redirect mail; obtain a refund of GST; and give directions to an ADI. The attorney may delegate any of the attorney’s powers (including this power to delegate) and may revoke a delegation.

(e) You must, at your own cost, execute, do and perform all assurances, instruments, acts and things which we might at any time reasonably require to give full effect to each Agreement and the transactions completed by any of them; to enable us to exercise our rights, remedies and powers under any Agreement or a security interest which arises under any Agreement; to perfect the transfer of a Transferred Account; to perfect a security interest in a Transferred Account; and to enable us to collect and enforce any Transferred Account.

2.4 PPSA

(a) For the purposes of sections 115(1) and 115(7) of the PPSA we need not comply with sections 95, 117(3), 118, 121(4), 125, 130, 132(3)(d), 132(4) or 134(1) and sections 142 and 143 are excluded. You waive your right to receive notice under section 135 of the PPSA. Sections 123(1) and 123(3) of the PPSA do not limit our right to seize a Transferred Account and section 123(2) will not apply.

(b) For the purposes of section 115(7) of the PPSA we need not comply with sections 132 and 137(3). You waive your right to receive a verification statement or notice in relation to registration events under section 157(3)(b). To the extent that the law permits, you waive your right to receive any other notice that is required by the PPSA. Nothing in an Agreement prohibits us from giving notice under the PPSA or any other law.

(c) Nothing in an Agreement should be construed as an agreement by us to subordinate the security interest which we have for the purposes of the PPSA or as a consent to any other security interest.

2.5 Transfers or assignments

(a) You cannot transfer or assign any rights you may have under any Agreement without our prior written consent, which will not be unreasonably withheld.

(b) We may transfer or assign any Agreement, and any right under any Agreement, to a third party without notice to you and without your consent unless the assignment will detrimentally affect your rights under the Agreement (in which case we will seek your consent prior to assignment, which consent must not be unreasonably withheld).

3. YOUR BIZPAY ACCOUNT

3.1 Creating your BizPay Account

(a) We will create your BizPay Account when you register with us.

(b) Once your BizPay Account is created, you will be able to gain access to it by using our Website. The first time you access it you will be prompted to choose and enter a secure password. You may subsequently access your BizPay Account, using your secure password, through our Website.

(c) You are responsible for maintaining the security of your BizPay Account details. We will not take responsibility for unauthorised access to or use of your BizPay Account unless, after investigating any breach, it is determined that we have failed to take reasonable steps to prevent the unauthorised access or use.

(d) You acknowledge and agree that if a person uses your BizPay Account (whether with or without your authorisation), that person will be deemed to act on your behalf for the purposes of each Agreement and that will not (subject to clause 3.1(c)) affect your obligations under any Agreement, regardless of whether:

  1. we are or at any time become aware of the use of your BizPay Account not being authorised by you;
  2. there is a dispute, breach, defect or other issue in relation to the Transaction, the Facility or Services subject to the Transaction or any associated contract or any agreement between that person and you; or
  3. any rights or claims that we or you may have against that person, except to the extent any use of your BizPay Account by that person is due to our negligence, fraud, wilful misconduct or breach of an agreement or the negligence, fraud or wilful misconduct of our agents, contractors, officers or employees

(e) If $1.00 is deducted from the Invoice Amount to give the Invoice Purchase Price (see the definition in clause 10) we will pay a processing incentive to you. That fee is $1.00. It is payable because you maintain your BizPay Account. We will pay it at the same time we pay the Invoice Purchase Price to you. We pay the Invoice Purchase Price in consideration of you selling the Transferred Account to us and giving the security interest in the Transferred Account mentioned in clause 2.1(e). The processing incentive is a separate payment and is not consideration for the sale of the Transferred Account or the giving of that security interest.

3.2 Your obligations to us as a holder of a BizPay Account

By holding a BizPay Account with us, you agree that you will:

(a) not provide us with any information that is false, inaccurate or misleading (including, without limitation, in relation to your or any of your officer’s, employee’s or shareholder’s identity or personal details or by using an alias or false identity, even with the consent of the person whose identity is being used or seek to establish a fake, untraceable or unverifiable BizPay Account);

(b) ensure any information about you or any of your officer’s, employee’s or shareholder’s, including your contact details, is true, current and complete. If the inf

(c) provide to us in a timely manner all documentation relating to the identity of your officer’s, shareholder’s and other persons that may control you, if requested by us;

(d) not use your BizPay Account or our Facility for any unlawful, fraudulent or improper activity, including for any experimental, testing or research purposes or otherwise in a manner for which they have not been designed;

(e) cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity on your BizPay Account;

(f) be aware of and pay any taxes that may apply to your use of our Facility;

(g) not permit others, unless authorised by you, to use your BizPay Account, or allow anyone else to have or use your account password details;

(h) not use any technology (device, software or hardware) to damage, intercept or interfere with our Facility or Website;

(i) immediately contact us if you believe that your BizPay Account may be subject to an unauthorised transaction, account takeover or other type of fraudulent activity or security breach;

(j) not create any liability for us or cause us to lose (in whole or in part) the custom of the Clients;

(k) not open or use more than one BizPay Account.

3.3 Using your BizPay Account to enter into Supplier Agreements

Instead of you signing a Supplier Agreement as contemplated by clause 1.1 we may decide that the Supplier Agreement can be made using the Website. In that case we will provide the details contemplated by the Supplier Agreement on the Website. You can use the Website to agree to those details. If you do a contract is created by you and us on the terms of the pro forma agreement in the Schedule completed with those details. Each contract made in that way will be considered to be made “in writing” by a “document” which is “signed” by you.

3.4 Closing your BizPay Account

(a) You may make a request to close your BizPay Account by contacting us directly. You may only request that your BizPay Account be closed if:

  1. there are no outstanding Transferred Accounts;
  2. all amounts owing to us by you have been paid in full to us; and
  3. no disputes are in progress.

(b) You may not close your BizPay Account to evade investigations of any nature and your account will remain open pending the finalization of all investigations, if applicable.

(c) We may close your BizPay Account for any reason, within our reasonable discretion. Each Agreement will continue to apply to any transactions accepted prior to the closure until there are no Transferred Accounts and all amounts owing have been received in full.

(d) We may immediately limit your access to our Website or suspend or close your BizPay Account where we have reasonable cause to do so including, without limitation, where:

  1. we reasonably consider it necessary to do so in order to:
    • protect the integrity of the Website or our other systems;
    • prevent fraud;
    • limit the risk of money laundering or terrorism financing; or
    • otherwise protect us against legal, regulatory or non-payment risk;
  2. you do not pass our verifications or checks, including our check described in clause 5.2(d);
  3. we reasonably suspect, or are aware, that you have breached any Agreement in a material respect (including by failing to make any payment due under any Agreement by the payment due date or by providing us with false, inaccurate or misleading information or using your BizPay Account or Facility in breach of any Agreement); or
  4. we otherwise reasonably consider the activity associated with the BizPay Account to be suspicious.

(e) We will use our best efforts to provide written notice to you before closing your BizPay Account, in the circumstances described in clause 3.4(d), except where doing so may compromise any investigation related to your breach of an Agreement or unlawful or improper conduct. Where we close your BizPay Account in accordance with clause 3.4(d), you must immediately repay to us the Invoice Payment Amount for any outstanding Transferred Accounts. After you pay that amount each Agreement will be terminated and we will retransfer the Transferred Accounts back to you.

4. TRANSACTIONS

4.1 Transaction confirmation

(a) All Transactions which you place with BizPay are subject to approval by BizPay, at BizPay’s reasonable discretion. BizPay may choose not to approve a Transaction or enter into an Agreement with you, or may cancel an approved Transaction, if:

  1. we reasonably consider this necessary in order to:
    • protect the integrity of the Website or our other systems;
    • prevent fraud;
    • limit the risk of money laundering or terrorism financing; or
    • otherwise protect us against legal, regulatory or non-payment risk;
  2. you do not pass our verifications or checks, including those described in clause 5;
  3. we reasonably suspect, or are aware, that you have breached any Agreement in a material respect;
  4. a transaction was made with a Client in a jurisdiction that is not permitted by BizPay; or
  5. we otherwise reasonably consider the Transaction to be suspicious.

(b) Once we approve your Transaction, you will receive an email from us with confirmation of your transaction.

(c) If an approved Transaction is cancelled you must immediately repay to us the Invoice Payment Amount for any outstanding Transferred Account. After you pay that amount each Agreement will be terminated and we will retransfer the Transferred Account back to you.

4.2 Cross border transactions

(a) When the invoice amount specified in the Supplier Agreement is denominated in a foreign currency we will convert that amount into your local currency using a retail exchange rate selected by us at our discretion to determine the original order value in Australian dollars and the amounts payable by us in accordance with the Supplier Agreement. The exchange rate used will change regularly to reflect the currency fluctuations in the foreign exchange market. We will determine when the invoice amount is converted.

(b) No set up fees or foreign exchange commission will be applied to the exchange rate applied to perform the conversion.

4.3 Charges

There are no fees / hidden costs to use our service. When we purchase a Transferred Account you will receive the Invoice Purchase Price. The Client will pay a fee to us for being allowed to pay by installments.

5. ASSESSMENT AND CHECKS

5.1 Assessment

We reserve the right to assess, and determine whether to accept or cancel, each Transaction in accordance with clause 4.1. We are not bound to proceed with a Transaction until we have signed the Supplier Agreement for the Transaction (or have recorded on the Website that the Transaction has been approved) and have sent the email mentioned in clause 4.1(b).

5.2 Identity checks

(a) We reserve the right to verify your identity, that your officers and shareholders and that of persons who sign (or may sign) a Supplier Agreement, including if required under the Anti-Money Laundering and Counter-Terrorism Financing Act (the “AML Act”). Verifying your identity does not mean we will approve your transaction (see clause 4.1(a) for other variables that are considered).

(b) You represent and warrant to us that the performance of transactions contemplated by your agreement with the Client which gave rise to the Transferred Account will not contravene any law, convention or agreement related to money laundering, terrorism financing or economic or trade sanctions and you have no reason to suspect that the sale of the Transferred Accounts and the performance of other transactions contemplated by an Agreement will contravene any of those laws, conventions, agreements or sanctions. You must give us all information and assistance we require so that we can comply with those laws, conventions and agreements.

(c) You agree to provide any information or documentation reasonably requested by us to verify your identity in connection with your BizPay Account or the Transactions.

(d) You authorise us to make, directly or through third parties, any enquiries we consider necessary to verify your identity and assess your capability to perform your obligations in relation to all Transactions. This may include ordering a credit report, performing other payment capability checks and verifying information you provide against third party databases.

(e) All information that we collect about you, including information collected in connection with the verification of your identity, will be collected, used and stored in accordance with the BizPay Privacy Policy which can be viewed on, or downloaded from, the Website. The collection, use and disclosure of personal information by us is subject to the Privacy Act and the privacy policy.

(f) You authorise us (or any third parties providing a service to us or on our behalf) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you or your BizPay Account. In addition, you acknowledge that BizPay reserves the right (subject to the Privacy Act) to report any negative activity on your BizPay Account to credit reporting agencies.

5.3 Your general warranties

(a) You represent and warrant to us that you have and will continue to have the power to enter into each Agreement and perform your obligations under each Agreement and those obligations are and will be valid, binding and enforceable.

(b) If you are or become the trustee of a trust each Agreement will be binding on you both in your own right and as trustee of the trust.

(c) If you comprise more than one person each of you is bound by each Agreement jointly and severally.

(d) You must do anything we reasonably require to ensure that each Agreement is binding and enforceable and to give effect to the transactions contemplated by an Agreement.

6. OUR INTELLECTUAL PROPERTY AND PERSONAL INFORMATION

6.1 Website is our property

(a) Our Website and all content on our Website are our exclusive property. The information on our Website is for information purposes only and is subject to change without notice.

(b) You must not copy, imitate, modify, alter, amend or use without our prior written consent any URLs representing our Website, or any of our content, logos, graphics, icons or other content published on our Website or in our printed and online media.

6.2 Your handling of personal information

(a) You must at all times comply with all applicable laws in respect of the storage, transfer, and protection of personal information.

(b) We undertake that we will not, at any time, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use any personal information for any purpose other than as permitted by an Agreement or as otherwise approved in writing by you from time to time.

(c) Your personal information will at all times be owned by you.

7. COMPLAINTS AND DISPUTES

7.1 Disputes between you and a Client

(a) If you have a dispute with a Client, you must immediately tell us. You must do everything that is reasonably necessary to resolve that dispute although you cannot do anything that affects a Transferred Account as the Transferred Account belongs to us. If a credit note needs to be issued which could affect a Transferred Account you must obtain our approval before you issue it. If you obtain our approval you must repay the Invoice Purchase Price to us and we will then retransfer the Transferred Account to you so that you can issue the credit note.

(b) We will endeavour to facilitate communication between you and the Client to enable a resolution of all disputes. The outcome of your disputes with Clients will not affect our rights and remedies under any Agreement or your obligation to meet any payments due to us.

7.2 Disputes between you and us

(a) We aim to:

  1. acknowledge receipt of all complaints within 5 business days; and
  2. resolve all complaints within 21 days.

(b) If you wish to raise a dispute or submit a complaint to us, you should do so by contacting us using the details listed below. Disputes should be raised with us as soon as possible.

Phone: 1300 4 BizPay 1300 4 249 729 | Email: info@bizpay.com

(c) We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes.

(d) If we cannot resolve a dispute within 21 days, we will notify you of the reason for the delay as well as give you an indication of when we expect to resolve the complaint or dispute.

(e) If you are not satisfied with the outcome of your complaint after it has been through our internal disputes process above, you can contact the Australian Financial Complaints Authority (AFCA) using the contact details listed below.

Email: info@afca.org.au Website: www.afca.org.au Phone: 1800 931 678 (free call)

In writing to: Australian Financial Complaints Authority GPO Box 3, Melbourne Victoria 3001

8. NOTICES AND COMMUNICATION

8.1 How we will communicate with you

(a) Notices or other communications regarding an Agreement, any other agreements with us, your BizPay Account and/or your use of our Facility may be provided to you electronically.

(b) You agree to receive all communications from us in electronic form. Communications will be posted on our Website (where permitted under an Agreement) and/or sent to your email address.

(c) Alternatively, we may choose to give notice to you by:

  1. serving it personally at, or sending it by post to, your nominated contact address listed on your BizPay Account; or
  2. sending it to you via other electronic methods of communication (including text messages) using contact details listed on your BizPay Account.

(d) Where a notice is served personally, service of the notice is taken to be effected when delivered. Where a notice is sent by post, service of the notice is taken to be effected on the fourth day after the date of posting. Where a notice is sent by email, or through other electronic means, service of the notice is taken to be effected on the day after the day on which it is sent, unless we receive notification that delivery has failed.

(e) You consent to us using the contact details you have provided to us to:

  1. contact you on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless you have notified us that you do not wish to receive such communication); and/or
  2. contact you in relation to an Agreement, your BizPay Account, our Facility and/or any Services you have provided (or should have provided) to a Client.

(f) You acknowledge that we (or any third party providing services on behalf of us) may monitor or record telephone conversations or electronic communication for quality control and training purposes or for our own protection. We do not provide any guarantee that any such monitoring or recording will be retained or retrievable.

8.2 How you can communicate with us

If you wish to contact us for any reason, you can do so on the details below.

Email: info@bizpay.com | Phone: 1300 4 BizPay 1300 4 249 729

Mail: Level 1, 60 Martin Place, Sydney, NSW, 2000 Australia

9. GENERAL

9.1 System outages

(a) Access to the services we provide or our Website may occasionally be unavailable or limited due to hardware or software failure or defects, overloading of system capacity, damage from natural events or disasters or disruptive human activity, interruption of power systems, labour shortages or stoppages, legal or regulatory restrictions as well as other causes outside of our control.

(b) To the extent permitted by law we will not be liable for any loss or damage which you may incur as a result of our services or our Website being unavailable.

9.2 Governing law and jurisdiction

Each Agreement is governed by the law in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia.

9.3 Limitation of liability

(a) We will not be liable for any loss (including Consequential Loss), damage, cost or expense suffered or incurred by you as a direct or indirect result of anything we do or fail to do, apart from a failure to do something which we are expressly required to do by an Agreement. This does not include a loss which is caused by our negligence, fraud or wilful misconduct, or that or our agents, contractors, officers or employees.

(b) All warranties, representations and guarantees in relation to the services we provide (including guarantees in connection with the continuous, uninterrupted or secure access to our Facility and representations or warranties regarding the period of time needed to complete processing of transactions) are excluded to the maximum extent permitted by law. Our liability for a breach of an implied warranty, representation or guarantee that by law cannot be excluded is limited (at our option) to the supplying of the service again or the payment of the cost of having the service supplied again when the law permits that limitation.

(c) To the full extent permitted by law:

  1. our liability for all claims arising under or related in any way to an Agreement no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the total value of any affected Transactions(s);
  2. except for claims arising in respect of clause 9.5, your liability for all claims arising under or related in any way to an Agreement no matter how arising (including the indemnity in clause 9.4), and whether in contract, tort (including negligence), or otherwise, will not exceed the total value of any affected Transaction(s); and
  3. no party (including in relation to BizPay, each BizPay Affiliate, or any third party providing services on behalf of BizPay), will be liable for any Consequential Loss arising under or related in any way to an Agreement no matter how arising and whether in contract, tort (including negligence) or otherwise.

(d) BizPay and each BizPay Affiliate, or any third party providing services on behalf of BizPay, and the directors, employees, officers, agents and representatives of them, will not, to the extent permitted by law, be liable for any loss or damage (including any direct, indirect or Consequential Loss or damage) you or any third party may incur from your provision of any Services for a Client, except to the extent that we cause such loss or damage (in which case, our liability to you is limited as set out in clause 9.3(c) above). You acknowledge that any consumer-related claims a Client may have in respect of the Services purchased from you will be a matter between you and the Client.

(e) To the extent permitted by law, a party’s liability to the other party under or in connection with an Agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.

(f) The parties will take all reasonable steps to mitigate any loss incurred by them under an Agreement.

9.4 Indemnification

(a) You are responsible to BizPay and any BizPay Affiliate to the extent they are involved in the provision of the Facility for any claim, demand, loss, costs (including reasonable legal fees), expenses or damage they suffer or incur:

  1. in connection with the Services or the Transferred Account;
  2. in connection with or arising out of your breach of any Agreement or any claim or demand made by any third party due to or arising out of your breach of an Agreement, or your breach of any law or of the rights of a third party relating to your use of our Facility or Website; and
  3. as a direct or indirect consequence of unauthorised users accessing your account as a result of your negligence. To the extent that clause 9.4(a) gives a non-party rights, BizPay contracts as trustee of the rights given under that clause.

(b) You must indemnity and keep indemnified BizPay and those BizPay Affiliates against any claim, demand, loss, costs (including reasonable legal fees), expenses or damage they suffer or incur for any reason outlined in paragraphs (i), (ii) or (iii).

(c) Your liability under clauses 9.4(a) and 9.4(b) will be reduced proportionately to the extent that BizPay, its contractors or agents or the BizPay Affiliate:

  1. caused or contributed to the relevant claim, demand, loss, cost, expense or damage; or
  2. failed to take reasonable steps to mitigate the relevant claim, demand, cost, expense or damage.

(d) This clause 9.4 survives termination of any Agreement.

9.5 Breach relating to misuse of the Facility

(a) You acknowledge that it is imperative that we be able to rely on:

  1. the information you provide to us;
  2. the identity that you use; and
  3. your agreement that your use of your BizPay Account and our Facility will be for the intended purpose as set out in these Terms and Conditions.

(b) You acknowledge that a breach by you of any obligation in an Agreement in relation to the matters in clause 9.5(a) (including, without limitation, a breach of clauses 3.2(a) and 3.2(d)) would cause significant detriment to BizPay and the BizPay Affiliates. You agree that monetary damages will not be sufficient to remedy that detriment, or may otherwise be incapable of being ascertained, and irrevocably consent to BizPay or any BizPay Affiliate seeking and obtaining injunctive relief to obtain relevant documents from you and to prevent such breach, or orders of specific performance to compel compliance, in addition to any other remedies available at law or in equity.

(c) If we reasonably consider that you have breached an obligation under an Agreement in relation to your identity, the information you provide to us and/or your use of your BizPay Account and our Facility, you agree, on request from us, to provide us with copies of all documents, notes or communications in relation to such alleged breach.

(d) This clause 9.5 survives termination of any Agreement.

10. DEFINITIONS

ADI is short for authorised deposit-taking institution.

Agreement means this document and each separate Supplier Agreement which refers to or incorporates this document, together with any policies and documents incorporated by reference.

Assignment Date, in connection with an invoice specified in a Supplier Agreement, is the date of sale specified in the Supplier Agreement or, if it is late, the date we are satisfied that the Client has agreed with us (on terms acceptable to us) that it will pay the account evidenced by the invoice to us.

Client means a business to which you provide services (such as labour hire services). The Client will owe an account to you which is assigned to us under an Agreement. The person is only a Client if it has entered into an agreement with us in the form and substance we require.

Collections, in connection with a Transferred Account, means all proceeds of the Transferred Account and all currency, negotiable instruments, other instruments and other remittances in any form which is a payment (in whole or in part) of the Transferred Account.

Consequential Loss means:

(a) any loss, damage or costs incurred that is indirect or consequential; and

  1. any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity other than in respect of any such losses incurred by BizPay directly in respect of an Agreement.

Facility means the facility provided by us under an Agreement. Where the context requires it includes a facility which may be provided under an Agreement.

BizPay, we, us or our means BizPay Pty Ltd ACN 633 797 627, and can include an BizPay Affiliate where applicable.

BizPay Account means an account that BizPay creates to uniquely identify you and to enable you to use our Facility.

BizPay Affiliate means a related body corporate or related entity of BizPay, including one in another jurisdiction.

Invoice Purchase Price, in connection with a Transferred Account, means the Invoice Amount specified in the Supplier Agreement less the discount specified in the Supplier Agreement. If the discount is zero or a discount is not specified the Invoice Purchase Price is the Invoice Amount less $1.00.

Nominated Account means the bank account we specify.

PPSA means the Personal Property Securities Act 2009.

Services means the services the Client purchases from you. If the Client purchases goods from you it includes those goods.

Supplier Agreement means the agreement entered into between you and us in the form of the document in

Schedule or an agreement entered into between you and us in accordance with clause 3.3.

Transaction means the contract arising under an Agreement. A reference to you placing a Transaction (or similar phrases) means you enter into that contract. Where the context requires it means a Transaction which will arise if an Agreement is entered into.

Transferred Account, for the purposes of a Transaction, means the account evidenced by the invoice referred to in the Supplier Agreement for that Transaction.

Website means www.bizpay.com and any other website operated by BizPay, including the BizPay App.

You (or your) means the person identified when a BizPay Account is created. If:

(a) such person does not exist,

(b) the name or details are used by someone who does not have the authority of that person; or

(c) the name or details are otherwise provided dishonestly or fraudulently, then you (or your) includes the person who signs the Supplier Agreement or agrees to it in another way, such as by clicking on the Website to accept these terms.

Schedule - Form of the Supplier Agreement