Payflo
Terms and Conditions
Welcome to Payflo! We provide point of sale (POS) software and hardware (Services),
as set out in more detail on our website (Site).
In these Terms, when we say you or your,
we mean you as an individual if you are accepting these Terms for yourself. If
you are accepting these Terms on behalf of an entity (such as your employer)
and you are authorised to do so, then you or your means that
entity. When we say we, us, or our, we mean Payflo Pty Ltd (ACN 677 217 177).
These terms and
conditions (Terms) form our contract with you, and set out our
obligations as a service provider and your obligations as a customer. You
cannot use the Services unless you agree to these Terms.
Some capitalised words
in these Terms have defined meanings, and each time that word is used in these
Terms it has the same meaning. You can find a list of the defined words and
their meaning at the end of these Terms.
OUR DISCLOSURES
Please read these Terms carefully before you
accept. We draw your attention to:
●
our privacy policy (on the Site) which sets out
how we will handle your personal information;
●
clause 1.9 (Variations) which sets out how we may
amend these Terms;
●
clause 3 (Fees) which sets out important
information about payments and recurring services, including whether you can
cancel the Services and whether any of the Services auto-renew; and
●
clause 10 (Liability) which sets out exclusions and
limitations to our liability under these Terms.
We may receive a benefit (which may include a
referral fee or a commission) should you visit certain third party websites
through a link in the Services, or for featuring certain goods or services on the
Services.
These Terms do not intend to limit your rights and remedies at law,
including any of your Consumer Law Rights.
1.
Engagement and Term
1.1
These Terms apply
from the time you agree to these Terms, until the date these Terms are
terminated in accordance with their Terms (Term).
1.2
Subject to your
compliance with these Terms, we will provide you with access to the Services.
1.3
Where we require
access to your premises or computer systems in order to provide the Services,
you agree to provide us with such access free from risk to the safety of our
employees and contractors.
1.4
Where the Services
include the provision of an application programming interface (API), you agree
to only use the API in accordance with the documentation that we provide to you
through our Site or otherwise.
1.5
We may offer
installation services for certain Hardware. The fees for these services will be
set out on our Site. If you elect to use our installation services, these will
be subject to these Terms and any additional terms specified on our Site.
1.6
We will not be
responsible for any other services unless expressly set out in these Terms or
on our Site.
1.8
Where
you engage third parties to operate alongside the Services (for example, any third-party
software systems you wish to integrate with the Services), those third parties
are independent of us and you are responsible for (meaning we will not be liable
for) the goods or services they provide, unless we expressly agree otherwise.
2.
Account
2.1
You must sign up for an
Account in order to access and use the Services.
2.2
While you have an
Account with us, you agree to:
(a)
keep your information
up-to-date (and ensure it remains true, accurate and complete);
(b)
keep usernames and
passwords secure and confidential, and protect them from misuse or being
stolen; and
(c)
notify us if you
become aware of, or have reason to suspect, any unauthorised access to your
Account or any logins linked to your Account.
2.3
If you close your
Account, you will lose access to the Services.
3.
Fees
3.1
You may choose to
purchase Services from us, as set out on our Site (Paid
Services). Paid Services may
include one-time purchases or recurring Services, and may include both SaaS
fees and payment processing fees. Paid Services are offered through our Service
Modules, as detailed in clause 3.2. You must pay all amounts due under these Terms in
accordance with these Terms or as set out on our Site (as applicable). If you
choose to use a Reseller's payment system, those fees will be covered in a
separate agreement with the Reseller.
3.2
Service Modules: Our Services are offered in a modular
format, allowing you to select and activate different modules based on your
needs. The features included in each tier and the corresponding pricing are set
out on our Site. The following applies to our Service Modules:
(a)
You may select one or
more modules as part of your subscription to the Services. The available
modules and their respective fees are set out on our Site.
(b)
You may activate or
deactivate modules through your Account. The activation or deactivation of a
module will take effect from the start of your next billing cycle.
(c)
The fees for each
module are as set out on our Site. Your total monthly fee will be the sum of
the fees for all active modules plus any applicable base fee for your selected
plan.
(d)
We reserve the right
to add, remove, or modify modules. We will provide you with at least 30 days'
notice of any such changes. If we remove a module that you are currently
subscribed to, we will allow you to terminate your subscription to that module
without penalty.
(e)
We offer different
service tiers with varying features and pricing. You may select your desired
service tier when you sign up for the Services or upgrade/downgrade your tier
through your Account.
3.3
We may offer free trials for certain Paid Services. At the
end of the free trial, you will either begin to be charged for the Paid Service
or lose access to it (unless you sign up to it as a Paid Service), as specified
in the trial offer you sign up to.
3.4
Details of our Paid
Services, including features, limitations, fees and billing cycles (for
recurring services) are set out on our Site. For recurring services, you will
be billed on a regular basis, as set out on our Site, at the beginning of each
billing cycle. All other Paid Services must be paid for at the time you order
the Service.
3.5
If you require an
enterprise-level solution, please contact us directly before accepting these
Terms. The commercial terms, including fees and services, for enterprise
customers will be negotiated separately and documented in a custom enterprise
SaaS agreement.
3.6
We may offer free
Hardware to you when you commit to a minimum 24-month Term. If you choose this
option, you agree to maintain your subscription to the Services for at least 24
months. Early termination may result in charges for the Hardware as specified
on our Site.
3.7
Cancellation: All recurring Services continue for the agreed
Service term (that you selected when purchasing the Service) (Service Term). At
the end of each Service Term, provided you have paid all fees owing, your
recurring Services will be automatically renewed for the same term. If you wish
to cancel your recurring Services, you may do so through your Account. Your cancellation will take effect at the end of your
current Service Term, and the recurring Services will not be renewed (meaning
you will need to continue paying all fees due up until your current Service
Term ends). If you are on an annual Service Term, we will provide you with a
renewal reminder at least 30 days prior to the Services renewing.
3.8
Our payments methods
will be set out at the time you purchase the Services. If you choose to pay
your fees using one of our third-party payment processors, you may need to
accept their terms and conditions (if this is the case, these will be set out at
the time you make payment).
3.9
You must not pay, or
attempt to pay, any fees due under these Terms or as a result of your use of the
Services by fraudulent or unlawful means. If you make payment by debit or
credit card, you must be the authorised card holder. If payment is made by
direct debit, by providing your bank account details and accepting these Terms,
you authorise our nominated third-party payment processor to debit your bank
account, and you confirm that you are either the holder or an authorised
signatory of that bank account.
3.10 If any fees due under these Terms or as a
result of your use of the Services are not paid on time, we may:
(a)
suspend your access
to the Services; and
(b)
charge interest on
any overdue payments at a rate equal to the Reserve Bank of Australia’s cash
rate, from time-to-time, plus 2% per annum, calculated daily and compounding
monthly.
3.11 You are responsible for paying any levies
or taxes associated with your use of the Services, for example sales taxes,
value-added taxes or withholding taxes (unless we are required by law to
collect these on your behalf).
4.
Licence
4.1
During the Term, we
grant you a right to use our basic Services in accordance with these Terms.
This right cannot be passed on or
transferred to any other person.
4.2
When you purchase our
Paid Services, your access rights will vary based on the type of service. For
one-time purchases, we grant you the right to access the purchased Service
until the earlier of the specified duration of access, the termination of these
Terms or your cancellation of the specific Service. For recurring services, we
grant you a right to access the relevant Services only for the duration that
you continue to pay for the Service, subject to these Terms. These rights
cannot be passed on or transferred to any other person.
4.3
You must not:
(a)
access
or use the Services in any way that is improper or breaches any laws, infringes
any person's rights (for example, intellectual property rights and privacy
rights), or gives rise to any civil or criminal liability;
(b)
interfere
with or interrupt the supply of the Services, or any other person’s access to
or use of the Services;
(c)
introduce
any viruses or other malicious software code into the Services;
(d)
use
any unauthorised or modified version of the Services, including but not limited
to for the purpose of building similar or competitive software or for the
purpose of obtaining unauthorised access to the Services;
(e)
attempt
to access any data or log into any server or account that you are not expressly
authorised to access;
(f)
use
the Services in any way that involves service bureau use, outsourcing, renting,
reselling, sublicensing, concurrent use of a single user login, or
time-sharing;
(g)
circumvent
user authentication or security of any of our networks, accounts or hosts or
those of any third party; or
(h)
access
or use the Services to transmit, publish or communicate material that is,
defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
4.4
If the Services
include API access, you may use any provided APIs in accordance with our API
documentation and usage policies. You may make necessary modifications to
facilitate such integration, provided that such modifications do not alter or
compromise the core functionality or security of the Services.
5.
Hardware
5.1
Title and risk in the
Hardware will pass as follows:
(a)
title in the Hardware
will pass from us to you on the later of delivery or collection of the Hardware
to you and payment of any applicable Hardware Fee in full; and
(b)
risk in the Hardware
will pass from us to you on delivery, collection, or installation of the
Hardware, whichever occurs first.
5.2
If the Parties agree
that:
(a)
we are responsible
for delivering the Hardware to you, we will use reasonable endeavours to
deliver the Hardware to the agreed delivery location by the agreed delivery
time; or
(b)
you are responsible
for collecting the Hardware from us, we will use reasonable endeavours to make
the Hardware available at the agreed collection location by the agreed
collection time, and you agree to:
(1)
use reasonable
endeavours to collect the Hardware from the collection location by the
collection time; and
(2)
comply with any
policies and procedures which we make known to you that apply at the collection
location.
5.3
We will not be liable
for any failure to perform the installation Services where the Hardware in
respect of which we provide the installation Services requires technical
support beyond the scope of our obligations due to its age, configuration or
implementation, other than where such Hardware has been provided by us. In this
situation, we will work with you to proactively identify appropriate
replacement solutions.
5.4
You grant us a
security interest in the Hardware until you have paid all fees owed to us in
full. You agree to do anything (such as obtaining consents, signing and
producing documents, getting documents completed and signed and supplying
information) which we ask and consider necessary for the purposes of ensuring
that the security interest is enforceable, perfected and otherwise effective.
Warranty
Against Defects
5.5
Our goods and
services come with guarantees that cannot be excluded under the Australian
Consumer Law. For major failures with the service, you are entitled:
(a)
to cancel your
service contract with us; and
(b)
to a refund for the
unused portion, or to compensation for its reduced value.
5.6
You are also entitled
to choose a refund or replacement for major failures with goods. If a failure
with the goods or services does not amount to a major failure, you are entitled
to have the failure rectified in a reasonable time. If this is not done you are
entitled to a refund for the goods and to cancel the contract for the service
and obtain a refund of any unused portion. You are also entitled to be
compensated for any other reasonably foreseeable loss or damage from a failure
in the goods or service.
5.7
In addition to any
other rights you may have under the Australian Consumer Law, we warrant to you
that the Hardware we source for you will be free from defects for 1 year (Warranty).
5.8
Our Warranty applies
to any fault, error or defect in the Hardware arising from improper workmanship
or materials (Defect). A Defect does not include any damage which is
caused (or partly caused) or contributed to, by any:
(a)
act or omission,
accident or negligence by you or any third party not engaged by us;
(b)
failure on your part
to follow any instructions or guidelines (including any manual) provided by us
or the manufacturer in relation to the Hardware, or properly maintain your
Hardware in accordance with any instructions or guidelines;
(c)
use of your Hardware
otherwise than for any application or use specified by us or the manufacturer:
(d)
continued use of the Hardware
(where such use is not reasonable) after any Defect in the Hardware becomes apparent
or would have become apparent to a reasonably prudent person;
(e)
incorporation or
installation of fixtures, appliances or other items into your Hardware;
(f)
failure by you to
notify us of any Defect within a reasonable period of time after you become
aware of or ought to have reasonably become aware of the relevant Defect;
(g)
reasonable wear and
tear of your Hardware;
(h)
act of God or other
Force Majeure Event; or
(i)
installation, repair,
replacement, maintenance, altering, overhauling or otherwise compromise of the Hardware
by you or any person other than us or the manufacturer.
5.9
To make a claim under
the Warranty, if you believe you have Hardware the subject of a Defect within 1
year of the completion of the Services, you must cease using the Hardware and
contact us in writing along with a photo and description of the Defect. If we
ask you to, you must return to us the defective Hardware, together with all
packaging, parts, accessories, and documentation to us (our contact information
is set out on our Site).
5.10
When we receive the Hardware
you return, we will assess the alleged Defect and make a determination as to
whether the claim is valid under the Warranty. If your claim is valid, we will,
at our own cost:
(a)
repair or replace the
Hardware (the decision of whether to repair or replace is at our sole
discretion);or
(b)
if we are unable to
repair or replace the Hardware, we will offer you a choice of a credit, refund
or compensation as applicable to the Defect.
5.11
Where you return Hardware
as part of a claim under this Warranty, you will need to cover any associated
costs of you returning the Hardware to us and where we find the Hardware is
covered by this Warranty, we will refund the associated costs of you returning
the Hardware to us.
5.12
This clause 5 will survive the termination or expiry of this Agreement.
6.
Availability, Disruption and Downtime
6.1
While we strive to always
make the Services available to you, we do not make any promises that these will
be available 100% of the time. The Services may be disrupted during certain
periods, including, for
example, as a result of scheduled
or emergency maintenance.
6.2
The Services may
interact with, or be reliant on, products or services provided by third
parties, such as cloud hosting service providers. To the maximum extent
permitted by law, we are not liable for disruptions or downtime caused or
contributed to by these third parties.
6.3
We will try to
provide you with reasonable notice, where possible, of any disruptions to your access
to the Services.
7.
Intellectual Property and Data
7.1
We own all
intellectual property rights in the Services. This includes how the Services look
and function, as well as our copyrighted works, trademarks, inventions, designs
and other intellectual property. You agree not to copy or otherwise misuse our
intellectual property without our written permission (for example, to reverse
engineer or discover the source code of our intellectual property), and you
must not alter or remove any confidentiality, copyright or other ownership
notice placed on the Services.
7.2
We may use any
feedback or suggestions that you give us in any manner which we see fit (for
example, to develop new features), and no benefit will be owed to you as a
result of any use by us of your feedback or suggestions.
Your Data
7.3
We do not own any of
Your Data, but when you enter or upload any of Your Data into the Services, you
grant us the right to access, analyse, backup, copy, store, transmit, and
otherwise use Your Data for the duration of your use of the Services (and for a
reasonable period of time afterwards). We may use Your Data (or disclose it to
third party service providers) to:
(a)
supply
the Services to you (for example, to enable you to access and use the
Services), and otherwise perform our obligations under these Terms;
(b)
diagnose
problems with the Services;
(c)
improve,
develop and protect the Services;
(d)
send
you information we think may be of interest to you based on your marketing
preferences;
(e)
perform
analytics for the purpose of remedying bugs or issues with the Services; or
(f)
perform
our obligations under these Terms (as reasonably required).
7.4
You acknowledge and
agree that because of the nature of the internet, the processing and
transmission of Your Data by us may occur over various networks.
7.5
You are responsible
for (meaning we are not liable for):
(a)
the integrity of Your
Data on your systems, networks or any device controlled by you; and
(b)
backing up Your Data.
7.6
When you use the
Services, we may create anonymised statistical data from Your Data and usage of
the Services (for example, through aggregation). Once anonymised, we own that
data and may use it for our own purposes, such as to provide and improve the
Services, to develop new services or product offerings, to identify business
trends, and for other uses we communicate to you. This may include making such
anonymised data publicly available, provided it is not compiled using a sample
size small enough to make underlying portions of Your Data identifiable.
7.7
If you do not provide
Your Data to us, it may impact your ability to receive the Services.
7.8
This clause 7 will survive the termination or expiry of these Terms.
8.
Confidential Information and Personal Information
8.1
While using the
Services, you may share confidential information with us, and you may become
aware of confidential information about us. You agree not to use our
confidential information, and to take reasonable steps to protect our
confidential information from being disclosed without our permission, and we
agree to do the same for your confidential information. This also means making
sure that any employees, contractors, professional advisors or agents of ours
or yours only have access to confidential information on a ‘need-to-know basis’
(in other words, the disclosure is absolutely necessary), and that they also
agree to not misuse or disclose such confidential information.
8.2
However, either you
or we may share confidential information with legal or regulatory authorities
if required by law to do so.
8.4
You must only
disclose Personal Information to us if you have the right to do so (such as
having the individual’s express consent).
8.5
We may need to
disclose Personal Information to third parties, such as our related companies
or our service providers (for example, IT and administrative service providers
and our professional advisors).
8.7
This clause 8 will survive the termination or expiry of these Terms.
9.
Consumer Law Rights
9.2
Subject to your
Consumer Law Rights, we do not provide a refund for a change of mind or change
in circumstance.
9.3
If you accept these
Terms in Australia, nothing in these Terms should be interpreted to exclude,
restrict or modify the application of, or any rights or remedies you may have
under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010
(Cth)).
9.4
This clause 9 will survive the termination or expiry of these Terms.
10.
Liability
10.1 To the
maximum extent permitted by law, we will not be liable for, and you release us
from liability for, any Liability caused or contributed to by, arising from or in
connection with:
(a)
your
computing environment (for example, your hardware, software, information
technology and telecommunications services and systems); or
(b)
any
use of the Services by a person or entity other than you.
10.2
Regardless of whatever else is stated in these
Terms, to the maximum extent permitted by law:
(a)
neither
we or you are liable for any Consequential Loss;
(b)
a
party’s liability for any Liability under these Terms will be reduced
proportionately to the extent the relevant Liability was caused or contributed
to by the actions (or inactions) of the other party, including any failure by the
other party to mitigate its loss;
(c)
(where
the Services are not ordinarily acquired for personal, domestic or household
use or consumption) in respect of any failure by us to comply with relevant
Consumer Law Rights, our Liability is limited (at our discretion) to supplying
the Services again or paying the cost of having the Services supplied again; and
(d)
our
aggregate liability to you for any Liability arising from or in connection with
these Terms will be limited to the amount of any fees paid by you to us during
the 12 months immediately preceding the event giving rise to the Liability, or
if you have not paid for the Service, to AU$1,000.
10.3 This clause 10 will survive the termination or expiry of these
Terms.
11.
Suspension and Termination
Suspension
11.1 We may suspend your access to the
Services where we reasonably believe there has been any unauthorised access to
or use of the Services (such as the unauthorised sharing of login details for the
Services). If we suspend your access to the Services, we will let you know
within a reasonable time of doing so, and we will work with you to resolve the
matter, or if it cannot be resolved, then we may terminate these Terms and your
access to the Services will end.
Termination
11.2 We may terminate these Terms (meaning you
will lose access to the Services, and any recurring Services will be cancelled)
if:
(a)
you fail to pay your fees
when they are due;
(b)
you breach these
Terms and do not remedy that breach within 14 days of us notifying you of that
breach;
(c)
you breach these
Terms and that breach cannot be remedied;
(d)
we decide to
discontinue the Services, in which case we will provide you with at least 90
days’ written notice and if
you have paid upfront for ongoing access to any of the Services (excluding
one-time purchases) we will issue you a pro-rata refund for such Services; or
(e)
you experience an
insolvency event (including but not limited to bankruptcy, receivership,
voluntary administration, liquidation, or entering into creditors’ schemes of
arrangement).
(a)
we breach these Terms
and do not remedy that breach within 14 days of you notifying us of that
breach; or
(b)
we breach these Terms
and that breach cannot be remedied, and if you have paid fees for recurring
Services upfront, you will be issued a pro-rata refund of any unused part of
those fees based on the portion of the then-current Services period remaining.
11.4 You may also terminate these Terms at any time by notifying us through your Account or to our
email for notices (as set out in clause 12.8), and if you have purchased any recurring services,
termination will take effect at the end of your current Services period.
11.5 Upon termination of these Terms, we will retain Your Data (including copies) as required by law or
regulatory requirements.
11.6 Termination of these Terms will not
affect any other rights or liabilities that we or you may have.
11.7 This clause 11 will survive the termination or expiry of these
Terms.
12.
General
12.1
Assignment: You may not transfer or assign these Terms
(including any benefits or obligations you have under these Terms) to any third
party without our prior written consent. We may assign
or transfer these Terms to a third party, or transfer any debt owed by you to
us to a debt collector or other third party.
12.2 Disputes: Neither
we or you may commence court proceedings relating to any dispute, controversy
or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or
termination) (Dispute) unless we and you first meet (in good faith) to
resolve the Dispute. Nothing in this clause will operate to prevent us or you from
seeking urgent injunctive or equitable relief from a court of appropriate
jurisdiction.
If the
Dispute is not resolved at that initial meeting:
(a)
where you are
resident or incorporated in Australia, refer the matter to mediation,
administered by the Australian Disputes Centre in accordance with Australian
Disputes Centre Guidelines for Commercial Mediation; or
(b)
where you are not
resident or incorporated in Australia, refer the matter to arbitration
administered by the Australian Centre for International Commercial Arbitration,
with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance
with the ACICA Arbitration Rules.
12.3 Events Outside Our Control: We will not be liable for any delay or failure to perform our
obligations (including the Services), if such delay or failure is caused or
contributed to by an event or circumstance beyond our reasonable control.
12.4 Governing law: These
Terms are governed by the laws of New South
Wales, and any matter relating to these Terms is to be determined exclusively
by the courts in New South Wales and any courts entitled to hear appeals from
those courts.
12.5 Illegal Requests:
We reserve the right to refuse any request for or in relation to the Services
that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.
12.6 Marketing: You
agree that we may send you electronic communications about our products and
services. You may opt-out at any time by using the unsubscribe function in our
electronic communications.
12.7 Nature of Legal Relationship: These Terms do not create,
and should not be interpreted so as to create, a partnership, joint venture,
employment or agency relationship between us and you.
12.8
Notices: Any notice you send to us must be sent to the email
set out at the beginning of these Terms. Any notice we send to you will be sent
to the email address registered against your Account.
12.9 Professional Services Disclaimer: The
Services do not constitute, and are not a substitute for, financial, legal or
risk management advice.
12.10 Publicity: You agree that we may, with your written
consent, advertise or publicise the fact you are a customer of ours, for
example on the Site or in our promotional material, and you grant us a right to display and use your logo and branding
solely for that purpose.
13.
Definitions
13.1 In these Terms:
Account means
an account accessible to the
individual or entity who signed up to the Services.
Consequential Loss includes any consequential loss, special or indirect loss, real or
anticipated loss of profit, loss of benefit, loss of revenue, loss of business,
loss of goodwill, loss of opportunity, loss of savings, loss of reputation,
loss of use and/or loss or corruption of data, whether under statute, contract,
equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts
for access to or use of the Services (including the Services) will not
constitute “Consequential Loss”.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable
control including but not limited to, acts of God including fire, hurricane,
typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural
disaster, civil riot, civil rebellion, revolution, terrorism, insurrection,
militarily usurped power, act of sabotage, act of a public enemy, war (whether
declared or not) or other like hostilities, ionising radiation, contamination
by radioactivity, nuclear, chemical or biological contamination, any widespread
illness, quarantine or government sanctioned ordinance or shutdown, pandemic
(including COVID-19 and any variations or mutations to this disease or illness)
or epidemic.
Hardware means
any physical equipment provided by us as part of the Services.
Liability means
any expense, cost, liability, loss, damage, claim, notice, entitlement,
investigation, demand, proceeding
or judgment (whether under statute, contract, equity, tort (including
negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.
Personal Information means any information or opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or
opinion is true or not, and whether the information or opinion is recorded in a
tangible form or not.
Reseller means
a third party authorised by us to resell or distribute our Services.
Services
means the services we provide to you, as detailed at the beginning of these
Terms.
Service Modules refers to services offered in a modular format, allowing you to
select and activate different Service Modules based on your needs.
Your Data
means the information, materials, logos, documents, qualifications and other
intellectual property or data supplied by you when receiving the Services or
stored by or generated by your use of the Services, including any Personal
Information collected, used, disclosed, stored or otherwise handled in
connection with the Services. Your Data does not include any data or
information that is generated as a result of your usage of the Services that is
a back-end or internal output or an output otherwise generally not available to
users of the Services.