TERMS OF Service

Last updated June 27th 2018

Please ensure you read the terms carefully so you understand your rights and obligations for the Payhero service. If you have any questions or concerns please contact us.

1.1	The following words have the meaning set out below.
Agent means any authorised persons acting on behalf of You.
Custodian means Perpetual Corporate Trust Limited (ACN 000 341 533);
Intellectual Property means all current and future copyright and related rights, patent application rights, patent rights, design rights, trade mark rights (whether registered or unregistered), confidential information and know‐how arising out of or in any way connected with any documents or material developed or written by Us in respect of Payhero.
Our, Us and We refers to Payhero Holdings Pty Ltd ABN : 70 626 304 603 (Payhero Holdings), Suite 803, Level 8, 213 Miller Street, North Sydney, NSW 2065. 
Payhero means the payment solution service available at www.payhero.co
Payment Service means the Pin Payments system or other such system operated by SPS that provides a mechanism for accepting payments from Your customers on Your behalf;
SPS means Southern Payment Systems Pty Ltd (ACN 154 451 582), an Australian company with its registered office at Level 4, 147 Collins Street, Melbourne VIC 3000, the provider of the Payment Services to You;
You means a subscriber to Payhero.

2.1 Subscription to Payhero and the services available through Payhero are subject to the following terms of use. These terms of use create a legal and binding contract between the Subscriber and Us.

3.1 Privacy and security is important to Us. Refer to our Privacy Policy for information about how We handle personal information We hold about individuals, including You (if a natural person) and Agents.

4.1 Payhero is a business and commercial subscription service for establishing online shopfronts for business. The Subscriber warrants that it is:
(a) A legal partnership;
(b) A body corporate; or
(c) A natural person aged 18 or older.
4.2 In consideration of Your payment of the fees set out in clause 8, We will provide to you the online website and payment solution as described at www.payhero.co from time to time, including but not limited to a subdomain on which to build Your online shopfront, tools to build that shopfront, and the Payment Service.

5.1 You are responsible for any content you add to Payhero. 
5.2 We are not responsible, and do not accept any liability, for any content added to Payhero by You or an Agent.

6.1 When building an online store using Payhero, you must ensure that the online store clearly displays the following information:
(a) Your business name and Australian Business Number (as applicable);
(b) Your principal place of business;
(c) Your business and customer service contact details, including telephone numbers and an e‐mail address;
(d) A complete description of the goods and services available for purchase on Your online store with the price clearly stated in Australian dollars;
(e) A clear statement that Your business is an Australian business and that all transactions will be billed in Australian dollars;
(f) Details of Your return and refund policy, including how a transaction can be cancelled;
(g) Details of Your delivery policy, including the times for delivery of goods and services, and the process to be followed if delivery is delayed, including when you will notify the customer, and their options for a refund;
(h) Details of any Australian export restrictions (if applicable);
(i) Details of Your privacy policy and how You intend to deal with, or share, personal information obtained from and about Your customers;
(j) A description of the measures You have to maintain the security of customers’ account data; and
(k) Any other information which, by notice, We require You to display from time to time.

7.1 The Payment Service we make available to you through Payhero is operated and provided by SPS.
7.2 Funds paid to you via the Payment Service are held by the Custodian under the Custody Agreement between SPS and the Custodian (as contained in Schedule 1 to the SPS Terms of Service here) until payment into your nominated bank account. 
7.3 The Payment Service is not available to, and You warrant that you are not operating, any business offering the following:
(a) adult or sexually oriented products or services;
(b) gambling or gaming services of any kind;
(c) tobacco, tobacco related products, electronic cigarettes and vapour ingestion devices;
(d) airlines;
(e) illicit drugs;
(f) pharmaceuticals sourced from outside Australia;
(g) services or products which may be considered illegal in nature;
(h) services or products that infringe on the legal rights of another party.
7.4 You acknowledge that We may only provide the Payment Services to You under these Terms of Service where You:
(a) Have a permanent establishment in Australia through which you carry on the business for which the Payment Service is used;
(b) Are registered to do business in Australia and have an active Australian business registration and an Australian Business Number (ABN);
(c) Have a local address in Australia for correspondence and acceptance of judicial process, other than a post‐office box or mail‐forwarding address;
(d) Pay taxes in Australia (where required) in relation to the sales activity; and
(e) Satisfy any other domesticity requirements imposed by payment card schemes from time to time.
7.5 In addition to any other right to terminate or suspend the Payment Service, We may immediately cease to accept transactions through the Payment Service under these Terms of Service where You fail to satisfy the above requirements.
7.6 You must inform Us of the bank account into which payments made using the Payment Service will be deposited by the Custodian.

8.1 You agree to pay to Us the following fees in respect of your use of Payhero:
(a) A fee per transaction as agreed between You and Us.
8.2 The fees in Claus 8.1(a) does not apply in during any Trial Period, You are still required to pay a fee per transaction as indicated.

9.1 While reasonable steps have been undertaken to ensure that the information, materials and services contained on Payhero are free from error, to the extent permitted by law, which law cannot be excluded, we do not warrant the accuracy, adequacy or completeness of content. Information on Payhero may change without notice to You, unless we are required by law to provide You with notice of any changes. All terms implied by law, except those that cannot be excluded by law, shall be excluded. 
9.2 You represent and warrant, at the date of this agreement and at all times during the currency of this agreement, that:
(a) You have the capacity, power and authority to enter into this agreement and fully perform all of the duties and obligations referred to in this agreement; and
(b) if You are an incorporated body, You validly exist under the laws of Your place of incorporation and have the power and authority to carry on Your business as that business is now being conducted and using any name under which that business is being conducted;
(c) if You, a Related Body Corporate or any officer, employee or agent of You or a Related Body Corporate has at any time been listed on a database of terminated merchants maintained by any payment card scheme or have otherwise had bank services terminated by a bank, You have disclosed that fact to us;
(d) You have full legal capacity and power to undertake to comply with the Terms of Service;
(e) There are no actions, claims, proceedings or investigations pending or threatened against You or by, against or before any person that may have a material effect on the subject matter of the Terms of Service;
(f) You are not:
i. the subject of an Insolvency Event; or
ii. agreeing to be bound by the Terms of Service as trustee of any trust or settlement unless otherwise approved by Us;
i. the subject of an Insolvency Event; or
ii. agreeing to be bound by the Terms of Service as trustee of any trust or settlement unless otherwise approved by Us;
(g) all information supplied by You to Us, in the Application Form or otherwise, is complete, correct and is not misleading;
9.3 Despite any other provision of these Terms of Service, this clause 9 survives the expiry or termination of the Terms of Service.

10.1 You agree that in using Payhero You will not, either directly, or indirectly through another party, without Our prior written consent:
(a) Use any robot, spider, screen scraper, data aggregation tool or other device or process to process, monitor, copy or extract any web pages on Payhero, or any of the information, content or data contained within or accessible through Payhero;
(b) Use any process to aggregate or combine information, content or data contained within or accessible through Payhero with information, content or data accessible via or sourced from any third party;
(c) Use any information on or accessed through Payhero for any commercial purpose or otherwise (either directly or indirectly) for profit or gain, except as specifically authorised under this Agreement. 
(d) Reverse engineer, reverse assemble, decompile, or otherwise attempt to discover source code or other arithmetical formula or processes in respect of the software underlying the infrastructure and processes associated with Payhero, or copy, reproduce, alter, modify, create, derivative works, or publicly display, any part of any content from Payhero.

11.1 To the maximum extent permitted by law, we disclaim liability for any damages, including, without limitation, direct or indirect, special, incidental, compensatory, exemplary or consequential damages (including but not limited to loss of profit, loss of revenue, lost business opportunity, loss of production, lost or misdirected orders, lost goodwill, or lost or stolen programs or other data) however caused and under any theory of liability (including in tort, under statute, and in contract) arising out of or in connection with:

(a) the use of Payhero, or the inability to use Payhero, by any party;
(b) any failure or performance, error, omission, interruption, defect, delay in operation or transmission;
(c) line or system failure or the introduction of a computer virus, or other technical sabotage; 
(d) any content on Payhero, including content published by Us, You or other users; or 
(e) Your disclosure of Your password, PIN, security questions or any other security features we may implement to any other person, or Your failure to take reasonable precautions in the protection of Your password, PIN, security questions or other security features. 

12.1 Under no circumstances will any Payhero Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Payhero Entities have been advised of the possibility of such damages. The Payhero Entities are not liable, and deny responsibility for any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the Services, your Payhero Account, or Data, or your failure to use or implement anti-fraud measures, the Security Controls, or any other data security measure. The Payhero Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorised access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
12.2 You agree to limit any additional liability not disclaimed or denied by the Payhero Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Payhero during the three-month period immediately preceding the event that gave rise to your claim for damages.
12.3 These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis..

13.1 You warrant that you own the copyright or trade mark in any trade names, brand names, trade symbols, logos, slogans, trade marks, service marks, brand names, company names, logos, or slogans that you upload to Payhero. 
13.2 You acknowledge that We are the owner of the Intellectual Property and all current and future goodwill associated with it and will not challenge or dispute Our ownership.

14.1 Payhero may contain a number of links to other Internet sites which are operated by third parties. The provision of the link does not mean that we endorse or accept any responsibility for the content, use, or products and services made available through the associated web sites. By utilising these links, You acknowledge and agree that we are not responsible for the actions, content, accuracy, privacy policies, opinions expressed, services provided, goods sold, or other links provided by these sites. You further acknowledge and agree that we are not responsible either directly or indirectly for any damage or loss caused by use of or reliance on linked sites. Should You have any questions regarding these sites, You should address them directly with the relevant site administrator.

15.1 The parties must attempt in good faith to resolve any dispute between them in connection with this agreement by negotiation. 
15.2 If any dispute cannot be resolved by negotiation between the parties within 10 days or such further period as the parties agree is appropriate, then within the following 10 days the parties must seek to agree on the procedural rules and a timetable for resolving the dispute through mediation by a mediator agreed upon by the parties, or if the parties cannot agree, a mediator appointed by the Australian Commercial Disputes Centre or any body which replaces it. Each party will bear their own costs of mediation and pay one half of the mediator’s costs. 
15.3 A party may not commence court proceedings or arbitration (other than an urgent interlocutory application) relating to any dispute arising from this agreement unless that party has complied with clauses,

16.1 This agreement will continue until terminated in accordance with the following clauses.
16.2 This agreement may be terminated:
(a) By either party, giving the other party 30-days’ notice in writing; 
(b) By Us, immediately if You:
i. Being a corporation, go into liquidation or have a receiver or administrator appointed (whether voluntarily or not) or, being an individual, becomes bankrupt; 
ii. Make an assignment or composition with its creditors; or
(c) By Us, immediately if You materially breach these Terms of Service and you do not remedy the breach(es) in within 7 days of receipt of notification or if the breaches are not capable of being remedied.
16.3 You must notify Us immediately if any of the circumstances described in clause 16.2 occurs.

17.1 You are responsible for the payment of any taxes, including GST, relating to the sale of Your goods and services and the operation of Your business. We are not responsible for the determination or payment of any taxes on your behalf. 
17.2 You must notify Us if You are currently registered for GST. You must also notify us within ten business days of Your GST registration status changing.

18.1 You must notify Us of any change to Your contact details within ten business days.
18.2 Any notice required to be given under this agreement must be sent to the last known address, electronic mail address or phone or facsimile number of the other party, except where the contract expressly identifies the required delivery method.

19.1 Unless the context otherwise requires:
(a) A word which denotes the singular denotes the plural and vice versa;
(b) Any gender denotes the other genders; and
(c) A person includes an individual, a body corporate and a government body.
19.2 Unless the context otherwise requires, a reference to:
(a) Any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; 
(b) Any other agreement or instrument, where amended or replaced, means that agreement or instrument as amended or replaced; 
(c) A business day means a day other than Saturday on which banks are open for general banking business in the state of New South Wales.

20.1 This agreement contains the whole agreement between the parties. 
20.2 Any waiver by Us of any one breach or default by You will not constitute a waiver of any other breach or default. A waiver by Us is only effective if it is in writing. 
20.3 We may vary this agreement at any time, such variation to take effect 30 days after the provision of written notice to You. 
20.4 An agreement, warranty, representation or obligation which binds or benefits two or more persons under this agreement binds or benefits those persons severally but not jointly. 
20.5 A person includes the trustee, executor, administrator, successor in title and assign of that person. This clause must not be construed as permitting a party to assign any right under this agreement. 
20.6 You may not assign, charge or otherwise deal with its rights and obligations under this agreement in any way without Our prior written consent. We may assign, charge or otherwise deal with Our rights and obligations under this agreement without Your consent. 
20.7 We may give or withhold an approval or consent to be given under this agreement in Our absolute discretion. We are not obliged to give You reasons for giving or withholding consent. 
20.8 If any provision of this agreement is found to be void, voidable, illegal or otherwise unenforceable, the parties will amend that provision in a manner which reasonably achieves the intention of the parties or, at Our discretion, that provision may be severed from this agreement and the remaining provisions of the agreement will remain in full force and effect. 
20.9 This agreement is governed by the law of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement.

For further information or to discuss our Terms of Service please contact the 8Common team.