1. Definitions and Interpretation

1.1. Definitions

In these terms and conditions, unless the context or subject matter indicates or requires otherwise:

Application means the application by the Principal through the Online Portal for Australia Post to provide the Services to the Principal.

Australia Post means the Australian Postal Corporation (ABN 28 864 970 579).

Australia Post Authorised Holiday means the day declared by Australia Post to be a holiday for some or all of its employees, contractors or agents.

Barcode Specifications means Section 2 of the Operational Document (PDF 280kB).

Bill means an account, invoice, statement, card or demand for payment (however described and in whichever form) issued by the Principal which may be paid through the Services.

Business Day means any day, excluding Saturdays, Sundays and nationally declared public holidays in Australia.

Cheque Procedures means Section 3 of the Operational Document (PDF 280kB).

Complaint and Enquiry Procedures means Section 6 of the Operational Document (PDF 280kB).

Confidential Information means all information disclosed to the receiving Party under or in connection with the Services that is:

a) the Fees;

b) details of any remittance or other matter which could allow identification of the Customer or provide unauthorised access to a record relating to a Customer’s payments under these terms and conditions;

c) information which, either orally or in writing, is indicated as being the proprietary or confidential information of the disclosing Party;

d) information which by its nature is confidential;

e) information which the receiving Party knows, or ought to know, is confidential; or

f) trade secrets or information which is capable of protection at law or equity as confidential information,

but does not include information which:

g) is in the public domain other than as a result of a breach of clause 12;

h) is independently developed or already known by a Party; or

i) is provided by another person who is lawfully entitled to provide such information.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means a customer of the Principal, including a person who pays a Bill through the Services.

Direct Loss means any loss, claim, damage, cost or expense suffered or incurred solely and directly by a Party as a consequence of any breach of these terms and conditions or other negligent, reckless or wilful act or omission, and excludes any Indirect Loss (any rule of law notwithstanding and irrespective of whether any class or category of loss could have been reasonably anticipated or not).

Dishonour and Reversal Procedures means Section 4 of the Operational Document (PDF 280kB).

e-Contracting System means Australia Post’s online contract management system and any associated software applications.

Event of Default means a Party;

a) commits a material breach of these terms and conditions that is capable of remedy and such breach is not remedied within 10 Business Days after notice of the breach is provided by the other Party;

b) commits a material breach of:

i) these terms and conditions that is not capable of remedy; or

ii) any representation or warranty under these terms and conditions; or

c) is subject to an Insolvency Event.

Fees means amounts payable by the Principal to Australia Post under these terms and conditions or the Operational Document (PDF 280kB), including g the Transaction Fees.

Force Majeure Event means any cause or event which is not within the reasonable control of a Party and which could not reasonably have been prevented by that Party which includes acts of God, war, terrorism, extreme weather conditions, floods, earthquakes, fire and industrial disputes.

Government Agency means a:

a) government or government department or other body;

b) a governmental, semi-governmental or judicial entity or authority; or

c) a self-regulatory organisation established under statute or a stock exchange.

Indirect Loss means any:

a) special, indirect or consequential loss, expense or damage;

b) loss of profits, income, anticipated earnings or revenue to a Party;

c) loss or impairment to a Party’s reputation or goodwill; and

d) loss arising from acting in accordance with written instructions, notices or directions from the other Party.

Insolvency Event means a Party:

a) is (or states that it is) insolvent under administration or insolvent (each as defined in the Corporations Act);

b) has a controller (as defined in the Corporations Act) appointed or is in liquidation, in provisional liquidation, under administration or wound up or has a receiver or receiver and manager appointed to any part of its property;

c) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent);

d) has an application or order has been made (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 that Party, which is preparatory to or could result in any of (a), (b) or (c) above;

e) is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;

f) is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which the other Party reasonably deduces it is so subject);

g) is otherwise unable to pay its debts when they fall due; or

h) has something having a substantially similar effect to (a) to (g) above happen in connection with that Party under the law of any jurisdiction.

Intellectual Property means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions, domain names and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Law means all present and future laws, regulations, codes, ordinances, local laws, by-laws, orders, judgments, licences, rules, permits, agreements and requirements of all Government Agencies applicable in any jurisdiction in which activities contemplated by these terms and conditions take place.

Loss means any and all claims, losses, liabilities, damages, costs, expenses and judgements (including legal fees and expenses reasonably incurred) sustained by a Party.

Net Settled means Australia Post deducts and retains Transaction Fees from each Transaction.

Online Portal means the website hosted by Australia Post where the Principal applies to access the Services.

Operational Document means the document entitled “Operational Document” (PDF 280kB) in the Online Portal as updated by Australia Post from time to time.

Party means the Principal or Australia Post, as applicable.

Payment Method means payment methods offered by Australia Post to Customers from time to time, including cash, cheques, EFTPOS and certain charge cards, credit cards and debit cards.

Personal Information has the meaning given in the Privacy Act.

Post Office means a facility in Australia where:

a) postal services are provided to the community directly by Australia Post through employees of Australia Post; or

b) postal services are provided to the community by Australia Post through a licensee or franchisee, who is not an employee of Australia Post, pursuant to a Licensed Post Office Agreement or Franchise Agreement.

Post Billpay means the presentment and payment processing service offered by Australia Post to facilitate payment of Bills.

Principal means the entity that agrees to these terms through the Online Portal and applied for the Australia Post to provide the Services.

Privacy Act means the Privacy Act 1988 (Cth).

Services mean the Post Billpay services, whether in Post Offices, through the Australia Post website or through telephone, described in the Online Portal.

Settlement Procedures means Section 5 of the Operational Document (PDF 280kB).

Trade Marks means the corporate logos, business names and trademarks of each of Australia Post and the Principal whether registered or unregistered.

Transaction means a transaction where a Customer pays a Bill through the Services.

Transaction Fees means the fees for Transactions.

Year means each 12 month period of the Term, starting on the date Australia Post approves the Principal’s Application.

1.2. Interpretation

The following rules apply to these terms and conditions unless the context requires otherwise:

a) the singular includes the plural and vice versa;

b) headings are for ease of reference only and do not affect interpretation of these terms and conditions;

c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have the corresponding meaning;

d) a reference to a day means the time of day in Melbourne, Victoria;

e) if a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

f) a reference to a Party includes its employees, officers, agents, representatives and sub-contractors and any servant or agent of its sub-contractors;

g) the Operational Document (PDF 280kB) form part of these terms and conditions;

h) a word which denotes a person includes an individual, partnership, firm, body corporate, an unincorporated association and an authority and also includes the trustee, executor, administrator and successor in title and permitted assignee of that person;

i) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

j) use of the words “includes” or “including” means “without limitation” and the use of these or similar words will not limit the meaning of the general words; and

k) a reference to Australian dollars, dollars, A$ or $ is to the lawful currency of Australia.

2. Approval of the Services

a) The operation of these terms and conditions is conditional on Australia Post approving the Application and neither Party is or will be bound by these terms and conditions unless and until Australia Post confirms its approval of the Application to the Principal.

b) In relation to information provided by the Principal to Australia Post in connection with the Application, Australia Post:

i) may rely on such information as being complete, accurate and not misleading or deceptive; and

ii) is not obliged to verify the completeness or accuracy of the information.

c) The decision whether to approve the Application is at the sole discretion of Australia Post and the reason for any decision which is made may not be given to the Principal.

d) Any information obtained by Australia Post during its assessment of the Application is and remains confidential to Australia Post and will not be shared with the Principal.

e) The Principal represents and warrants that:

i) any information provided to Australia Post in connection with the Application is complete, accurate and not misleading or deceptive;

ii) if Personal Information has been disclosed to Australia Post in connection with the Application, it has obtained each relevant individual’s prior consent to the disclosure and otherwise complied with its obligations under Privacy Law; and

iii) it is able to satisfy its obligations under these terms and conditions.

3. Application of these Terms and Conditions and Relationship of the Parties

3.1. Agency

Australia Post will act as an agent for the Principal for the purpose of the collection and receipt of monies payable to the Principal by Customers.

3.2. Relationship

a) The agreement in respect of these terms and conditions is not intended to, nor will it, create:

i) a joint venture, partnership or employment relationship between the Parties; or

ii) any contractual or binding relationship between Australia Post and a Customer or any other person making a payment to the Principal through the agency of Australia Post other than on the terms on which a Customer uses the Services,

and a Party may not make any representation which implies that such a relationship exists.

b) Subject to Clause 3.1 and without limiting Clause 3.2(a), a Party may not, and has no authority to, bind the other Party by contract or otherwise.

c) The Parties acknowledge that the Parties are not associates within the meaning of Section 318 of the Income Tax Assessment Act 1936 (Cth).

d) The agreement in respect of these terms and conditions is not an exclusive arrangement and Australia Post is entitled to provide the same or similar services to any other party without reference to the Principal.

e) Australia Post will hold the benefit of the agreement in respect of these terms and conditions on trust for its licensees and franchisees performing the Services.

4. Provision of the Services

4.1. Australia Post Obligations

Australia Post must:

a) provide the Services to the standard expected of a prudent professional provider of similar services;

b) provide the reports, settle with the Principal for payments collected and accept, process and account for Transactions in accordance with the Settlement Procedures; and

c) deal with Customer complaints and enquiries in accordance with the Complaint and Enquiry Procedures.

4.2. Exceptions

Australia Post has no obligation to perform the Services:

a) at a Post Office during any period in which counter services or agency work have been suspended at that Post Office for any reason including on the Australia Post Authorised Holiday; and

b) through the Australia Post website or telephone during any period in which the Service are suspended because of technological or industrial reasons.

4.3. Principal’s Obligations

The Principal must:

a) comply with the Operational Document (PDF 280kB);

b) comply with all Laws;

c) barcode, brand and format its Bills in accordance, and otherwise comply, with the Barcode Specifications;

d) use the Post Billpay Bill logo designs on Bills in accordance with the Barcode Specifications;

e) not use or disclose:

i) any barcode used in relation to the Services; or

ii) any part of the Barcode Specifications,

other than for the purpose of the Principal receiving the Services from Australia Post and must promptly notify Australia Post of any use or disclosure the Principal becomes aware of that breaches this obligation;

f) immediately notify Australia Post of any material change:

i) to its financial position which may affect its ability to perform its obligations under these terms and conditions; and

ii) in the nature of its business or the goods and services it provides to Customers;

g) not change its business name without giving Australia Post prior written notice;

h) process any chargebacks, refunds or reversals in respect of any Transaction in accordance with, and pay any amounts to Australia Post as required under, the Dishonour and Reversal Procedures; and

i) not process any chargebacks, refunds or reversals in relation to a Transaction where the Customer is the Principal.

4.4. Customer Fee

The Principal must not impose a fee or charge on a Customer for making payments through the Services in an amount greater than the applicable Transaction Fee.

5. Fees and Charges

5.1. Fees

The Principal must pay Australia Post the Fees for the Services as initially set out in the Online Portal and the Operational Document