Salon Pay Pty Ltd WEBSITE USE TERMS AND CONDITIONS
It is agreed as follows:
1.1 The Salon has requested Salon Pay to provide the Services.
1.2 Salon Pay has agreed to provide the services to the Salon on the terms and conditions of this Agreement.
1.3 By ticking the box on the sign up page and submitting its application, the Salon acknowledges that it has read and agrees to be bound by these terms and conditions (Agreement). The Salon warrants that the person clicking “I Agree” on behalf of the Salon is an authorised representative of the Salon and is authorised to bind the Salon to this Agreement.
2.1 Defined terms
In this Agreement:
Billing Account: means the bank account or credit card notified by the Salon to Salon Pay for the purpose of payment of Fees and Expenses.
Business Day: means the bank account or credit card notified by the Salon to Salon Pay for the purpose of payment of Fees and Expenses.
Claim: means a claim, demand, suit, action or proceeding of any kind or nature, whether based in contract, tort or otherwise.
Confidential Information: means, in relation to a party (for the purposes of this definition, the Disclosing Party):
(a) all information relating to or used by the Disclosing Party, including know-how, trade secrets, ideas, marketing strategies and operational information;
(b) all information concerning the current or proposed business affairs or property of the Disclosing Party;
(c) any other information which is disclosed, communicated or imparted by or on behalf of the Disclosing Party in circumstances importing an obligation of confidence and which a reasonable person would have realised was of a confidential nature,
but excludes information which is in the public domain at the time of disclosure or which subsequently enters the public domain by reason other than through an unauthorised act of the receiving party.
Corporations Act: means the Corporations Act 2001 (Cth).
Expenses: means the expenses agreed between the parties pursuant to clause 7.1(b).
Excluded Services: means the excluded services described in the First Email.
Fees: means the Upfront Payment and the Ongoing Payments.
First Email: means the email sent by Salon Pay to the Salon following the submission of an enquiry by the Salon to Salon Pay and which contains the link to sign up to receive the Services.
Force Majeure: means acts of God (including but without limitation to lightning, earthquakes and storms), strikes, lockouts or other industrial disturbances, acts of enemies of Australia, sabotage, wars, terrorism, blockades, insurrections, riots, landslides, floods, fires, washouts, arrests and restraints, civil disturbances, explosions, breakages of or accidents to machinery or delivery facilities, the orders of any court or governmental authority or any other cause whether of the kind referred to in this clause or otherwise not within the reasonable control of the party claiming force majeure (but specifically excluding lack of funds) and that is unable to be overcome by the exercise of due diligence by the party claiming force majeure.
GST: means the goods and services tax payable under the GST Law.
GST Law: means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related legislation passed by the Federal Government.
Insolvency Event: means where a party to this Agreement:
(a) is (or states that it is) insolvent (as defined in the Corporations Act);
(b) has a controller (as defined in the Corporations Act) appointed to any part of its property;
(c) is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
(d) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved (other than to carry out a reconstruction or amalgamation while solvent on terms approved by party;
(e) has made an application or order (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with a party, which is preparatory to or could result in any of the circumstances detailed in any of paragraphs (a), (b), (c) or (d) of this definition;
(f) is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;
(g) is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which a party reasonably deduces it is so subject);
(h) is otherwise unable to pay its debts when they fall due;
(i) has something of substantially similar effect to any of the circumstances detailed in any of paragraphs (a) to (h) of this definition happen to that party;
(j) is (or states that it is) bankrupt; or
(k) has a trustee or controlling trustee (within the meaning of the Bankruptcy Act 1966 (Cth)) appointed over that party’s affairs.
Intellectual Property: means statutory and other proprietary rights in respect of trade marks, designs, patents, circuit layouts, copyright, confidential information, know how and all other rights with respect to intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
Interest: means interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) plus 2 percentage points.
Loss: means all losses, liabilities, damages and claims (including taxes, economic loss, damage to reputation, loss of business or custom) arising in any way including in contract or tort (including negligence or otherwise) and all related costs and expenses (including reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, interest and penalties) (and Losses has a corresponding meaning).
Payment Terms: means the Stripe Processing terms accessible here.
Portal: means the Salon Pay website and payments portal.
Prior IP: means the Intellectual Property owned by a party and which is in existence at the date of this Agreement.
Ongoing Payment: means the amount specified in the First Email as the ongoing payments to be made by the Salon to Salon Pay.
Salon: means the salon owner who accepts this Agreement in accordance with clause 1.3.
Salon Pay: Salon Pay Pty Ltd ACN 621 703 231 of C/- Small Business Know How Pty Ltd 16 Endeavour Street, Capalaba QLD 4157.
Services: means the services described in the First Email. .
Term: has the meaning set out in clause 3
Terms and Conditions: means the draft terms and conditions described in the Services for use between the Salon and its clients for the provision of a membership program.
Third Party Terms: means the terms and conditions to be entered into between the Salon and Afterpay Pty Ltd and/or Stripe which are set out in full for AfterPay and for Stripe
Upfront Payment: means the amount specified in the First Email.
Upfront Payment Date: means the date that this Agreement is accepted by the Salon in accordance with clause 1.3.
In this Agreement, unless the subject or the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing one gender include other genders;
(c) a reference to any party or other person includes that person’s successors and permitted assigns;
(d) a reference to a statute, ordinance or other legislation includes any amendment, replacement or re-enactment for the time being in force and includes all regulations, by- laws and statutory instruments made thereunder;
(e) a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
(f) a reference to a clause is a reference to a clause of this Agreement;
(g) a reference to writing includes all means of reproducing words in a tangible and permanently visible form;
(h) a reference to time is a reference to time in the State of Victoria;
(i) a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole partnership, government or governmental subdivision or agency, association, co-operative and any other legal or commercial entity or undertaking;
(j) where a party comprises two or more persons any Agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party is deemed to include a reference to any one or more of those persons; and
(k) the headings in this Agreement do not affect its interpretation
(l) the commercial details included in the First Email form part of this Agreement.
This Agreement will commence on the date that this Agreement is accepted by the Salon in accordance with clause 1.3, and will continue until terminated in accordance with clause 13.
The Salon engages Salon Pay, and Salon Pay agrees, to provide the Services to the Salon on a non-exclusive basis in accordance with this Agreement.
4.2 Excluded Services
The Services do not include the Excluded Services. The Salon acknowledges and agrees that it is Salon’s sole responsibility to arrange and pay for the Excluded Services.
4.3 Scope of Services
(a) The Salon may request in writing to add additional services to the scope of the Services at any time during the Term.
(b) If the Salon and Salon Pay agree on the terms applicable to any additional services (including price) those additional services will be deemed Services for the purpose of this Agreement and the terms and conditions of this Agreement will apply to those additional services.
(a) Salon Pay will supply to the Salon certain materials and documentation or information to assist the Salon to enjoy the benefit of the Services. Materials supplied by Salon Pay are required to be returned to the Salon Pay at the expiration or termination of the Term.
(b) Materials and documentation or information supplied in accordance with clause 4.4(a) cannot be copied, reproduced or distributed in any form without Salon Pay’s prior written consent. All material provided and presented through the Services is for the sole use of the Salon in connection with such Services.
5.1 Salon Pay’s obligations
In the performance of the Services, Salon Pay will:
(a) ensure that the Services are provided with due care, skill and diligence in a professional manner; and
(b) give the Salon written notice of any matter or circumstance that Salon Pay anticipates will materially adversely affect Salon Pay’s ability to perform the Services as soon as practicable after Salon Pay becomes aware of such matter or circumstance.
5.2 Responsibilities of the Salon
The Salon must:
(a) provide timely directions, instructions, decisions and information sufficient to define the Services required by the Salon and to facilitate the provision of the Services by Salon Pay;
(b) execute (as applicable and as directed by Salon Pay) the Third Party Terms; and
(c) provide Salon Pay with sufficient access to the Salon’s business and personnel as is necessary for Salon Pay to perform the Services.
6 WARRANTIES AND ACKNOWLEDGEMENTS
6.1 No warranty as to appropriateness
(a) Salon Pay does not warrant that any part of the Services are appropriate for the Salon’s specific circumstances.
(b) In relation to the Terms and Conditions:
(i) the Salon will obtain its own legal advice in adapting the Terms and Conditions to their own business needs; and
(ii) the Salon acknowledges and understands that the “fair play policy” in the Terms and Conditions is not legally binding.
6.2 Mutual representations and warranties
Each party represents and warrants for the benefit of the other party that, as at the date of this Agreement and at all times during the Term:
(a) (incorporation) it is validly incorporated, organised and subsisting in accordance with the laws of its place of incorporation;
(b) (power and capacity) it has full power and capacity to enter into and perform its obligations under this Agreement;
(c) (corporate authorisation) all necessary authorisations for the execution, delivery and performance by it of this Agreement in accordance with its terms have been obtained;
(d) (no legal impediment) its execution, delivery and performance of this Agreement complies with its constitution and does not constitute a breach of any law or obligation, or cause a default under any Agreement by which it is bound; and
(e) (solvency) it is not subject to an Insolvency Event and no meeting has been convened, resolution proposed or order made for the winding up, or the appointment of an administrator, of it, and no mortgagee or charge has taken, attempted to take or indicated an intention to exercise its rights under any security in respect of any material part of its property.
7 FEES, EXPENSES AND INVOICES
7.1 Fees & Expenses
(a) In consideration of Salon Pay providing the Services, the Salon must pay:
(i) the Upfront Payment on the date that this Agreement is accepted by the Salon in accordance with clause 1.3; and
(ii) the Ongoing Payments as notified by Salon Pay to the Salon in the First Email,
in accordance with clause 7.2.
(b) The Salon agrees to reimburse Salon Pay for all other out of pocket expenses incurred by Salon Pay in the provision of the Services provided that:
(i) Salon Pay seeks approval to incur the Expense prior to incurring the relevant expense; and
(ii) Salon Pay provides the Salon with tax invoices for the relevant Expenses.
7.2 Payment of Fees
(a) All Fees due to Salon Pay under this Agreement will be collected by Salon Pay in accordance with the terms of the Payment Terms.
(b) By entering into this Agreement, the Salon agrees that the Salon is also required to enter into the Payment Terms authorising Salon Pay to debit the Fees from your Billing Account.
(c) The Salon must:
(i) ensure that the Salon’s Billing Account can accept direct debits;
(ii) ensure there are sufficient funds in the Salon’s Billing Account to enable a payment to be processed; and
(iii) within 48 hours of the expiry of your Billing Account or if the Salon is closing or changing Billing Accounts, notify Salon Pay of that change and provide Salon Pay with an alternative Billing Account.
(d) If a payment is declined, dishonoured, or otherwise cannot be processed (for example, due to insufficient funds being available) (Dishonoured Transaction), the Salon agrees that:
(i) Salon Pay may (pursuant to the Payment Terms) charge a dishonoured transaction fee;
(ii) the Salon is responsible for any fees or charges incurred by the Salon from the Salon’s financial institution in relation to the Dishonoured Transaction; and
(iii) Salon Pay may suspend the provision of Services to the Salon under this Agreement until such time that the Dishonoured Transaction can be processed.
(e) If applicable, the Salon is also required to enter into the Third Party Terms. The Third Party Terms constitute an agreement between the Salon and the third party independent of this agreement with Salon Pay, and all questions, complaints or disputes in connection with the Third Party Terms must be handled directly with the third party.
7.3 Payment of Expenses
(a) Salon Pay will provide the Salon with an invoice for any Expenses (Expenses Payable) on each monthly anniversary of the Upfront Payment Date or on such other dates as agreed between the parties.
(b) The Salon must pay Salon Pay all Expenses Payable within fifteen (15) days (or such other period agreed by the parties in writing) of each invoice from Salon Pay in accordance with clause 7.3(a).
(c) For the avoidance of doubt, failure by Salon Pay to provide an invoice on a certain date does not prevent Salon Pay from providing an invoice to the Salon at a later date or otherwise prejudice Salon Pay’s claim for payment under this Agreement.
(d) Time is strictly of the essence with respect to the Salon’s obligations to pay amounts to Salon Pay under this Agreement.
7.4 Disputed Expenses
(a) The Salon must notify Salon Pay in writing of any and all objections to an invoice for Expenses Payable within seven (7) days of the date of the invoice, otherwise the invoice shall be deemed proper and acceptable to the Salon.
(b) If the Salon disputes any portion of the amount claimed in an invoice for Expenses Payable the Salon shall pay the portion of the invoice that is not in dispute. If the parties are unable to reach Agreement within seven (7) days of the Salon’s notice, the provisions of clause 17 will apply.
7.5 Interest on overdue amounts
Other than the amounts that are subject of a genuine dispute in accordance with clause 7.4, the Salon must pay Salon Pay Interest on any amounts payable that are not paid to Salon Pay by the date on which they fall due for payment under clause 7.1 in relation to Fees or 7.3 in relation to Expenses (Outstanding Amount) from the day after the date that the relevant amount fell due for payment until the date on which the Outstanding Amount is paid.
8 GST 8.1 Interpretation
In this clause 8, unless the context indicates otherwise, a word or expression defined in the A New Tax System (Good and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
8.2 GST exclusive amounts
The parties acknowledge and agree that all amounts payable under this Agreement are expressed exclusive of GST.
8.3 GST gross up
If a party (Supplier) makes a supply under or in connection with this Agreement on which GST is payable, the consideration payable or to be provided for that supply but for the application of this clause 8.3 (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable on the taxable supply (GST Amount). Subject to clause 8.5, the GST Amount must be paid to the Supplier by the Recipient at the same time and in the same manner (as the case may be) as the GST exclusive consideration is payable or to be provided.
If a payment under this Agreement is a reimbursement or indemnification or otherwise calculated by reference to a loss, cost or expense of any party, then the payment must be reduced by the amount of any input tax credit to which that party is entitled in respect of the loss, cost or expense.
8.5 Tax invoice
The Recipient need not pay the GST Amount in respect of a taxable supply under or in connection with this Agreement until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
8.6 GST excluded from revenue based calculations
If the consideration for a supply under this Agreement is calculated by reference to the consideration for another supply, in performing that calculation, the consideration payable or to be provided for the supply under the Agreement excludes any GST payable included in the consideration for that other supply.
9.1 Licence to use the Portal
The Salon is granted a non-exclusive, non-transferable right to use the Portal during the Term for the purposes of scheduling payments with its clients.
9.2 Salon’s Obligations
(a) The Salon must, and must ensure that anyone accessing the Portal on its behalf:
(i) only use the Portal in connection with its own salon(s), and not for the benefit (financial or otherwise) of any other salon or any third party;
(ii) choose a strong and secure password to access the Portal, maintain secrecy and confidentiality of all username and password information required by the Salon to access the Portal and immediately notify Salon Pay if the Salon’s password has been lost, stolen or compromised in any way; and
(iii) not share its log in details or password with any other person.
(b) The Salon is responsible for anything that happens in connection with its Portal account until a reasonable time after the Salon reports misuse.
(c) In connection with its use or access to the Portal, the Salon must not, and must ensure that anyone accessing the Portal on its behalf does not:
(i) create an account or use its account for or on behalf of any other salon or any other person;
(ii) allow any other person to impersonate the Salon or make use of the Salon’s username or password;
(iii) infringe the Intellectual Property of Salon Pay or any other person;
(iv) transmit any software virus, worms or harmful software code;
(v) reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Portal or any related technology or software or use data mining, robots, software, scripts or other methods of automated data gathering on the Portal;
(vi) collect, use, copy, modify, transfer, licence, sell or re-sell access to the Portal or the information, content, data, reports, representations, opinions, advice or services made available through or in connection with the Portal (Information); or
(vii) interfere with the reasonable operation of the Portal, or impede the use of the Portal by others.
9.3 Access and Availability
(a) Salon Pay may, on 30 days’ notice to the Salon, change, suspend or terminate the availability of or the Salon’s access to the Portal or modify or discontinue the Portal.
(b) While Salon Pay will try to ensure that the Portal is accessible to users, Salon Pay does not warrant:
(i) that the services available through the Portal will be uninterrupted or error free;
(ii) that the Salon will have continuous access to the Portal; and
(iii) that data, information or files (including the Information) downloaded or otherwise transmitted to the Salon from or in connection with the Portal will be free of faults, errors, viruses, worms, Trojan horses or other code that contains contaminating or destructive properties.
(c) Salon Pay will not be liable in the event that the Portal is unavailable to the Salon due to:
(i) any events caused by Salon Pay, whether negligent or not; or
(ii) any events beyond the control of Salon Pay, including but not limited to, server downtime attributable to malfunction, upgrades or preventative or remedial maintenance activities, or any other reason whatsoever,
but Salon Pay will use reasonable endeavours to restore availability.
9.4 Intellectual Property
(a) Unless otherwise indicated, Salon Pay owns or licences from third parties all rights, title and interest (including Intellectual Property) in the Portal and in all of the material (including all text, graphics, logos, software and Information) made available in connection with the Portal.
(b) Salon Pay grants the Salon a revocable, non-transferrable, non-exclusive licence to use Salon Pay’s Intellectual Property solely for the purpose of the Salon’s use of the Portal, which licence will automatically terminate if the Salon’s access to the Portal is terminated or ends in accordance with this Agreement, or if this Agreement is terminated or ends.
(c) Except as permitted by the Copyright Act 1968 (Cth), no part of the Portal or the material generated by the Portal and Salon Pay (including the Information and any code or software) may be used, modified, adapted, copied, published, communicated, transmitted, distributed or reproduced in any way without the specific written permission of Salon Pay. The following copyright notice applies to the whole of the Portal and all reports and data generated on or from the Portal:
© Salon Pay Pty Ltd (ACN 621 703 231) 2017
The Salon acknowledges and agrees that:
(a) Salon Pay makes no warranties as to the accuracy, suitability or completeness of any Information;
(b) Salon Pay takes no responsibility for programming bugs or computer viruses, faults or errors in the Portal or the Information;
(c) the Salon will make its own enquiries as to the suitability of the Information;
(d) it is solely the Salon’s responsibility to evaluate the accuracy, completeness and usefulness of all Information provided by Salon Pay in connection with the Portal; and
(e) in no event will Salon Pay be liable to the Salon or anyone else for any decision made or action taken by the Salon or anyone else in reliance upon any Information contained on, provided using or omitted from the Portal.
9.6 Termination of Use
The Salon’s access to and licence of the Portal and the Salon’s licence to use the Information under this Agreement immediately terminates on the termination or expiry of this Agreement.
9.7 Third Party Websites
Links and pointers to third party websites on the Portal (linked websites) are provided for convenience only and do not imply that Salon Pay endorses the linked website. Salon Pay has no control over and does not warrant the accuracy, legality or appropriateness of any linked website or any content published on that linked website.
10 INDEPENDENT CONSULTANT
10.1 Relationship of parties
Nothing in this Agreement constitutes either party a partner, agent or representative of the other party or creates any trust, association or partnership at law or for any purpose whatsoever nor do the parties intend that their activities under this Agreement constitute a business, financial operation or venture.
10.2 No authority
Nothing in this Agreement gives any party authority to bind any other party to any person or otherwise act in any way as representative of any other party unless expressly agreed to in writing by the parties.
The Salon indemnifies and will keep indemnified Salon Pay and its employees, contractors and agents against all Claims and Losses which may be instituted against Salon Pay arising out of:
(a) a breach of this Agreement by the Salon;
(b) the wrongful, negligent or unauthorised use or misuse of the Portal or Information provided in connection with the Portal by the Salon or third party, including any third party using the Salon’s account details; and
(c) any wilful, unlawful or negligent act or omission of the Salon in connection with the Services,
except to the extent that such Claims or Losses arose or were caused directly by Salon Pay’s own negligent or fraudulent acts or omissions.
12 LIMITATION OF LIABILITY
12.1 Limitation of liability
(a) Salon Pay’s total maximum aggregate liability to the Salon or any third party for any Loss or Claims arising under this Agreement, including, without limitation:
(i) the Salon’s access and/or use of the Portal;
(ii) any use of the Portal or the Information for whatever reason; or
(iii) the Salon’s inability to access or use the Portal,
will under no circumstances exceed an amount equal to the Fees actually paid by the Salon to Salon Pay during the Term of this Agreement.
(b) Salon Pay expressly excludes all liability for special, indirect or consequential loss or damage, including without limitation, loss of profits, loss of revenue, loss of income, loss of use, loss of business opportunity, loss of production, loss of anticipated savings, pure
economic loss, loss of or damage to reputation or goodwill, or loss or damage associated with the interruption of the Salon’s business, howsoever caused.
12.2 Claims against Salon Pay
The Salon cannot make any Claim against Salon Pay under this Agreement:
(a) unless the Salon notifies Salon Pay of the Claim in writing within two (2) months of the earlier of the Claim arising or the end of the Term; and
(b) to the extent that the act or omission of the Salon, or the officers, employees, agents or other contractors of the Salon contributed to the Loss the subject of the Claim.
12.3 Statutory limitation of liability
To the extent that any warranties or guarantees implied by law are not capable of being excluded or modified, the total liability of Salon Pay, its employees, servants and agents for breach of such warranties or guarantees is limited to one or the other of the following at the option of Salon Pay:
(a) if the breach relates to goods:
(i) the replacement of the goods supplied or the supply of equivalent goods; or
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
13.1 Termination for convenience
Either party may terminate this Agreement for convenience on thirty (30) days’ written notice to the other party.
13.2 Termination by the Salon
If the Salon terminates this Agreement at any time or for any reason or Salon Pay terminates under clause 13.4, the Salon unconditionally and irrevocably acknowledges and agrees that:
(a) the Salon forfeits, and Salon Pay is entitled to retain in full, the Upfront Payment and any other Fees and Expenses paid by the Salon to Salon Pay prior to the effective date of termination; and
(b) the Salon agrees to reimburse to Salon Pay any Expenses incurred by Salon Pay prior to the effective date of termination and approved by the Salon in accordance with clause 7.1(b).
The Salon acknowledges and agrees that:
(a) the amounts to be retained by Salon Pay or paid by the Salon pursuant to clause 13.2 are a genuine pre-estimate of the loss and damage suffered by Salon Pay in the circumstances of termination in accordance with that clause and do not constitute a penalty; and
(b) amounts payable by the Salon pursuant to clause 13.2(b) will be a debt due and payable to Salon Pay.
13.4 Termination for cause
Either party may immediately terminate this Agreement if:
(a) the other party is in breach of any of the terms of this Agreement and does not remedy that failure within ten (10) Business Days of receiving written notice from the other party requiring the breach to be remedied; or
(b) the other party is the subject of an Insolvency Event.
13.5 Effect of termination
Any termination of this Agreement under this clause 13 will not operate to prejudice a party’s rights up to and including the date of termination, including the right of Salon Pay to recover any amount owing to Salon Pay for Services that have been performed, or Expenses incurred by Salon Pay, prior to termination.
13.6 Suspension of Services
Salon Pay is entitled to suspend the provision of all or any part of the Services where:
(a) the Salon fails to pay any amount payable by the Salon to Salon Pay under this Agreement when it falls due; and
(b) the Salon does not remedy that failure within fourteen (14) days after written notice from Salon Pay requiring the breach to be remedied,
and the Salon acknowledges and agrees that such suspension of Services:
(c) will not constitute a breach by Salon Pay of its obligations under this Agreement; and
(d) is in addition to and not in substitution of Salon Pay’s rights under this Agreement or at law.
14.1 Confidential Information
The parties acknowledge that a party (the Disclosing Party) may provide the other party (the Receiving Party) with Confidential Information for the purposes of the Agreement.
14.2 Confidentiality obligations
(a) Subject to clause 14.3, the Receiving Party must:
(i) keep secret the Confidential Information;
(ii) not use the Confidential Information other than for the purposes of fulfilling its obligations or enforcing its rights under this Agreement;
(iii) use its best efforts to prevent third persons from gaining access to the Confidential Information other than as permitted under this Agreement.
(b) The Receiving Party must not, without the Disclosing Party’s prior written consent:
(i) disclose to any other person any Confidential Information except as permitted under this Agreement; or
(ii) permit unauthorised persons to have access to places where the Confidential Information is stored.
14.3 Permitted disclosures
The Receiving Party may disclose the Confidential Information:
(a) to its representatives in the course of their employment on a need to know basis and solely for the purpose of fulfilling the party’s obligations or rights under this Agreement;
(b) to its legal or other professional advisers solely for the purpose of advising it in relation to its rights or obligations under this Agreement;
(c) otherwise as required by law.
14.4 Return of Confidential Information
The Receiving Party must immediately return to the Disclosing Party the Confidential Information supplied to it and all copies made of the Confidential Information (in whatever form):
(a) when notified to do so; and
(b) on the termination or expiration of the Agreement.
If the Salon discloses to Salon Pay any personal information (as that term is defined in the Privacy Act 1988 (Cth) about or in relation to any individual, the Salon warrants in favour of Salon Pay that it has the express written consent of that individual to provide the personal information to Salon Pay for the purposes of this Agreement.
16 INTELLECTUAL PROPERTY
16.1 Prior IP
Each party acknowledges and agrees that the Prior IP of each party is not affected by this Agreement and is the property of the party owning the relevant Prior IP.
16.2 Other Intellectual Property
(a) All Intellectual Property arising or made or created by Salon Pay and the Salon in the course of, as a consequence of, or in relation to or in anticipation of the performance of the Services or in connection with this Agreement (including any material provided by Salon Pay in accordance with clause 4.4) is owned by, vests in and is assigned absolutely to Salon Pay.
(b) The Salon agrees to do all things including signing all documents required to give effect to the assignment contemplated in clause 16.2(a).
17 DISPUTE RESOLUTION
If a dispute arises in relation to this Agreement, including any dispute as to the breach of, termination of or the rights or obligations of a party under this Agreement or as to any claim in tort, in equity or under any law, the parties must comply with this clause 17.
17.2 Dispute NoticeA party claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the dispute (Dispute Notice).
17.3 Negotiation of dispute
If a party gives the other party a Dispute Notice, the parties must use their best endeavours to reach Agreement as to the matters in dispute within ten (10) Business Days of the service of such Dispute Notice.
17.4 Outstanding dispute
If the matter or matters in dispute are not resolved within ten (10) Business Days of receipt of a Dispute Notice, such matter or matters must be dealt with in accordance with clause 17.5.
(a) The parties must endeavour in good faith to resolve the dispute expeditiously using mediation techniques agreed by them.
(b) If the parties do not agree within five (5) Business Days of receipt of the Dispute Notice (or a further period as agreed in writing by them) as to:
(i) the mediation technique and procedure to be adopted;
(ii) the timetable for all steps in the mediation procedures; and
(iii) the selection and compensation of the independent person required for the mediation,
the parties must mediate the dispute according to the mediation rules of the Institute of Arbitrators and Mediators Australia and the President of that Institute or the President’s nominee will select the mediator and determine the mediator’s remuneration, to be paid by the disputing parties in equal proportions.
(c) The place of mediation of the dispute will be, in the absence of agreement to the contrary, Melbourne, Victoria, Australia.
17.6 Termination of mediation
The mediation process will terminate within ten (10) Business Days (or other agreed period) of the commencement of the mediation or the appointment of the mediator (whichever date is earlier). Once the mediation is terminated, either party will be entitled to commence court proceedings in relation to the matter or matters in dispute.
17.7 Disputed payments
For the avoidance of doubt, where the dispute relates to any amounts payable under this Agreement, the Salon must continue to pay the amounts payable in accordance with this Agreement and any reduction in or refund of Fees or Expenses paid by the Salon as a result of mediation under this clause 17 must be paid by Salon Pay within seven (7) days of the dispute being resolved.
17.8 Urgent relief
Nothing in this clause 17 prevents a party seeking urgent injunctive or similar interim relief from a court.
18 FORCE MAJEURE
(a) If either party is for the time being rendered unable wholly or in part by Force Majeure to carry out its obligations under this Agreement (other than an obligation to pay money), that party will give to the other party prompt written notice of the Force Majeure with reasonably full particulars concerning it whereupon this Agreement will nevertheless continue and remain in full force and effect but the obligations of the party giving the notice, so far as they are affected by the Force Majeure, will be suspended provided that the party giving such notice takes all reasonable steps to remove the Force Majeure as quickly as possible.
(b) The requirement that any Force Majeure be removed with all reasonable steps does not require the settlement of strikes, lockouts or other labour difficulties by the party involved on terms contrary to its wishes, and the manner in which all such strikes, lockouts or other labour difficulties are handled is entirely within the bona fide discretion of the party concerned.
(c) If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate this Agreement on providing notice in writing to the other party.
19.1 Notices to be in writing
Any notice, demand or other communication (Notice) to be given or required to be made pursuant to this Agreement is to be in writing and is to be given by post, hand or email to a party at the party’s address, facsimile number or email address as is notified in writing by one party to the other party.
19.2 Deemed receipt
A Notice is deemed to be given or served:
(a) where sent by pre-paid post, on the fourth Business Day following the day on which it was posted;
(b) where delivered by hand, during normal business hours on a Business Day on that day, or in any other case of hand delivery on the Business Day following the day of delivery.
(c) where sent by email:
(i) when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee); and
(ii) provided such delivery confirmation report is received during normal business hours on a Business Day, that day, otherwise the following Business Day.
Any variation to this Agreement must be in writing by a duly authorised representative of the Salon and Salon Pay. Any variation to this Agreement that does not comply with this requirement will be of no effect.
Clauses 1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 16, 17 and 18 and any other clauses in this Agreement capable of survival will survive termination or expiration of this Agreement
If a provision of this Agreement is invalid, illegal or unenforceable it will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this Agreement, without affecting the validity and enforceability of the remaining provisions.
20.4 No assignment and subcontracting
(a) Salon Pay may sub-contract or otherwise arrange for any other person to perform all or any part of the Services or to discharge all or any of Salon Pay’s obligations under this Agreement without the prior written consent of the Salon.
(b) The Salon may not assign, transfer or in any other manner hand over the benefit of or obligations under this Agreement to any other person without the prior written consent of Salon Pay, such consent not to be unreasonably withheld.
20.5 Entire Agreement
This Agreement is the entire Agreement between the parties concerning the subject matter of the Agreement. It replaces any prior contract, arrangement or understanding concerning the subject matter of it.
Failure or delay by a party to exercise a power or right does not operate as a waiver of that power or right. A waiver is not effective unless it is in writing and signed by the party granting the waiver.
20.7 Governing law and jurisdiction
This Agreement is governed by the laws of the State of Victoria, and each party irrevocably submits to the exclusive jurisdiction of the State and Federal courts of or in that State and courts of appeal therefrom.