Payee Service and License agreement

Background

(a) PARAKEET (‘us’, ‘we’ ‘our’ or ‘Parakeet’) facilitates the processing of payments between Payers and Payees posted to us via the Esker Platform. We provide options for Payers to make payments using multiple payment options, and Payees (you) to have access to use an existing Credit Card acceptance as well as the ability to accept early payments from Payers or Members (Services).

(b) The Services allow You to accept and receive electronic payments, through:

(i) PARAKEET BYO Merchant – the payee has agreed and is responsible for obtaining (if not already obtained a Merchant Account as per clause 4 from a banking institution that is compatible with PARAKEET).

(ii) PARAKEET “Early Pay” - acceptance of Early Pay offers from Payer(s) in exchange for the payment of a discounted invoice value to You prior to the Payment Due Date; and

(iii) PARAKEET Direct - acceptance of fund transfers conducted via electronic funds transfer by PARAKEET on behalf of the Payer to Your Australian bank account recorded in Your Payee profile or advised to us by the Payer.

(c) We own the trademarks, patents, trade secrets, copyrights, processes, know how, registered designs and all other intellectual property in the Services. By registering to use our Services, you are granted a license to use the Services through the Platform.

(d) This Agreement sets out the terms of the license to use the Services provided by Us to You. If you do not agree to these terms, you must not use our Services.

1. Interpretation

In this Agreement, unless the context otherwise requires:

1.1 headings are for convenience only and do not affect the interpretation of this Agreement;

1.2 words importing the singular include the plural and vice versa;

1.3 a reference to a person or entity includes any natural person, sole proprietorship, corporation, joint stock company, business trust, joint venture, partnership, unincorporated organization, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organization, or any government (whether federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof);

1.4 a reference to anything includes a part of that thing;

1.5 a reference to a part, clause, annexure, attachment or schedule is a reference to a part clause, annexure, attachment or schedule to this Agreement;

1.6 a reference to this Agreement or any other document includes an amendment or supplement to, or replacement or novation of, this Agreement or that document and also includes, but is not limited to, a certiﬁcate, notice, instrument or an agreement in writing;

1.7 a reference to a party to this Agreement or any other document includes that party's successors and permitted assigns;

1.8 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any other document or any part of it;

1.9 the words ‘including’, ‘such as’ or similar terms when introducing an example do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

1.10 if the day on which any act or matter is required to be done is a day other than a Business Day, such act or matter must be done on the immediately succeeding Business Day; and

1.11 a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.

2. Acceptance and Term

2.1 By registering for our Services, and clicking the ‘I accept’ button, you are agreeing to receive the Services on the terms and conditions of this Agreement (Acceptance).

2.2 In consideration of providing the Services to You, You agree to pay us any fees in accordance with clause 6.

2.3 Your acceptance of the Agreement and the Services confirms that with respect to Transactions and the Services:

(a) You authorize PARAKEET to hold, facilitate, receive and disburse funds to Your account;

(b) under a PARAKEET Early Pay offer Posted by a Payer and accepted by You, You authorize PARAKEET to pay to You the accepted discounted invoice value based on the accepted Discount Rate as outlined in the Posted offer between You and that Payer; and

(c) you appoint PARAKEET as Your agent to submit Transactions to, and receive settlement from, the relevant FI Partner on Your behalf.

2.4 Your Acceptance permits Us to generate an electronic funds transfer to process each payment Transaction and transmit the appropriate information to the Networks, Processors, FI Partners and members of Networks as appropriate.

2.5 This Agreement commences on the Commencement Date and continues until the termination of this Agreement (Term).

3. Funds

3.1 Once You validate Your account with Us, PARAKEET will automatically initiate and facilitate payments to Your account.

3.2 Funds for a Transaction will not be deposited until the Transaction is taken to be complete. Transactions are taken to be complete when We or the FI Partner have received or sent the funds and when We or the designated financial institutions have accepted the Transaction or funds.

3.3 The settlement times for Transactions are:

(a) If under Cards, within 2 business days

(b) If under direct entry, within 4 business days

3.4 The settlement times are governed by both Yours and the Payers financial institutions.

3.5 For avoidance of doubt, Transactions effected under Early Pay offers are also subjected to the settlement times listed.

3.6 We may set off any amount that You owe Us against any amount that We owe You in and towards satisfaction of or payment of any of Your obligations to pay an amount which is then due under this Agreement.

3.7 We will use reasonable endeavors to rectify processing errors that We discover. If the error resulted in Your receipt of less than the amount to which You were entitled under this Agreement, PARAKEET will credit Your account for the difference. If the error results in Your receipt of more than the amount to which You were entitled under this Agreement, PARAKEET will debit the extra funds from Your account.

4. Merchant Account

4.1. To access and use the PARAKEET BYO Merchant, You must, and are responsible for obtaining (if not obtained already), a merchant account from a banking institution that is compatible with the Platform and the Services.

4.2. You agree to comply with the terms and conditions of Your merchant account at all times; and You are responsible for ensuring that the Platform and the Services to be provided by PARAKEET are in accordance with the terms and conditions of the merchant account (and You indemnify, and keep us indemnified, in that regard).

5. Compliance with Laws

5.1 Each party must:

(a) comply with all applicable Laws (including all approvals granted by a regulatory authority (‘Approval’), including but not limited to laws relating to privacy, the collection and use of personal and sensitive information and AML/CTF;

(b) not do anything, or allow anything to occur, that may constitute a breach of any applicable Law or Approval or make invalid, or liable to cancellation, any existing Approval;

(c) obtain and maintain any licenses, authorizations, consents, approvals and permits required by applicable Laws to perform its obligations under this Agreement; and

(d) not do anything, or allow anything to occur, that may cause another party to no longer comply with applicable Laws or Approvals.

5.2 We may, at our sole discretion, decide not to authorize or settle any Transaction if We believe that the Transaction is in violation of this Agreement, or where we believe the Transaction may expose You, other Members, the Networks, Processors, members of Networks or PARAKEET, to any harm. Harm may include but is not limited to fraud, breach or potential breach of this Agreement or any applicable Law. If We reasonably suspect that Our Services may have been used for an unauthorized, illegal or criminal purpose, You give Us express authorization to share information about You and any of Your Transactions with law enforcement authorities and regulators to the extent required or permitted by any applicable Law.

5.3 You must provide PARAKEET with all information and documents as reasonably requested by PARAKEET to comply with all applicable Law. If you fail to provide such information, we may terminate this Agreement immediately.

6. Service Fees

6 Unless agreed otherwise between You and us, You are enrolled under the ‘Guest’ membership package as evidenced on helloparakeet.com/pricing.

6.1 Fees are invoiced and debited on a monthly basis from your nominated account should you upgrade to another membership package.

6.2 Service Fees are in Australian dollars (and exclusive of GST).

6.3 Service Fees are charged and collected at the time We process a Transaction and are deducted before we remit the transferred or collected funds to You, unless expressed otherwise in the registration form.

6.4 We may also collect Service Fees by invoicing You in accordance with any agreed invoicing schedule. In these circumstances, You authorise Us to direct debit Your account for the Service Fees invoiced.

6.5 Non-payment of any amounts that you owe us will be a breach of this Agreement. You will be liable for our reasonable costs associated with collection in addition to the amount owed, including without limitation legal fees and expenses, collection agency fees and any applicable interest. We may also suspend Your account until any amounts owing are fully paid.

6.6 Termination or suspension of the Services does not relieve You of any existing obligations to pay any Service Fees or costs accrued prior to the termination or suspension and any other amounts owed by You under this Agreement.

7. Representations and warranties

7.1 You represent and warrant to Us that:

(a) the execution and delivery of the Agreement has been properly authorized by You and does not or will not contravene, conflict with or result in a breach of or default under Your constituent documents or any writ, order, judgement or applicable Law;

(b) You have full corporate power and lawful authority to execute, deliver and perform Your obligations under the Agreement;

(c) You are solvent and there are no facts, matters or circumstances which could reasonably be expected to cause You to suffer an Insolvency Event;

(d) Your details (including the details of Your legal name and Your account) Posted by You and all information and materials provided by You are true, correct, up to date and not misleading;

(e) except in the ordinary course of business, no Transaction Posted by You constitutes a purchase or sale to or from any principal, partner, proprietor or owner of Your entity; and

7.2 PARAKEET provides the Services on an ‘as is’ and ‘as available’ basis without any express, implied or statutory warranties of fitness for a particular purpose or merchantability. We do not warrant that the Services will be uninterrupted or error free.

7.3 Notwithstanding the foregoing, nothing in this Agreement limits or purports to limit PARAKEETs obligations under the Competition and Consumer Act 2010 (Cth) and any other relevant and applicable State and/or Commonwealth legislation (Statutory Provisions) which cannot, by law, be limited.

8. Your Obligations

8.1 You agree that:

(a) You will provide Us with all reasonable assistance, information, documentation, facilities, consents, licenses, authorities and permissions as reasonably necessary for Us to provide the Services to You and comply with this Agreement and any applicable Law.

(b) You will conduct such tests and computer virus scanning as may be necessary from time to time and must ensure that data uploaded or downloaded You from or to PARAKEET server(s) does not contain any virus and will not corrupt the data or systems of any person in any way;

(c) You will keep safe, secure and confidential at all times, all credentials, passwords and cryptographic keys used to access Your account or process and download data from PARAKEET server(s). You will, at all times, remain responsible for any activity using Your credentials and/or conducted under Your account;

(d) You will follow all cryptographic key management procedures specified by PARAKEET from time to time; and

(e) In accessing and using the Platform, You must comply with all reasonable directions, instructions and procedures prescribed by PARAKEET, from time to time in relation to accessing and using the Platform and Your account;

(f) You must ensure that only persons authorised by You access Your account or registration with PARAKEET as set out in clause 8.2 below;

(g) You will fulfill all of Your obligations to each Payer(s) for which You Post a Transaction and resolve any dispute or complaint which arises as a result of that Transaction, directly with the Payer(s);

8.2 Your Authorized Users may access and use the Platform on behalf of You in accordance with the terms of this Agreement. You acknowledge and accept that:

(a) You will at all times be responsible for the actions of any of Your Authorized Users;

(b) any acts or omissions of Your Authorized Users will be taken as the acts or omissions on Your behalf; and

(c) You must not allow any person other than Your Authorized Users to access or use the Platform on Your behalf.

9. Privacy

9.1 We collect, use and store any information collected by us, including personal information, in accordance with our Privacy Policy. A copy of PARAKEET’s Privacy Policy is available at www.Parakeetpay.io/privacy-terms. Upon acceptance of this Agreement, You confirm that you have read, understood and accepted PARAKEET’s Privacy Policy.

9.2 Where any Personal Information is provided to Us (as defined in the Privacy Act), we agree to only use such information in accordance with our Privacy Policy and as permitted by the Privacy Act.

9.3 PARAKEET and You must comply with the Privacy Act in relation to any personal information, whether or not you are an organization bound by the Privacy Act.

9.4 You warrant that You have full authority and consent to disclose any information that is personal information (as defined in the Privacy Act) under this Agreement and that Your disclosure of such information does not breach Your obligations under the Privacy Act.

9.5 Each party, agrees to notify the other immediately if it becomes aware of any breach of the requirements of the Privacy Act and provide all reasonable assistance necessary to the investigation, and where relevant, the reporting of such data breach.

10. Data Security and Managemen

10.1 All Payee Data and Payer Data shall be the property of their respective owners.

10.2 PARAKEET will not use Payee Data or Payer Data except for the purposes of:

(a) processing payments via the Platform or otherwise providing the Services;

(b) providing and improving the Platform and Services (provided the Data has been anonymised and aggregated with other Data);

(c) internal usage, including but not limited to, data analytics and metrics so long as such Data has been anonymised and aggregated with other Data;

(d) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with the law;

(e) in relation to Payee Data, any other purpose for which the Payee has provided consent;

(f) in relation to Payer Data, any other purpose for which consent has been provided by the relevant Payer

10.3 On termination or expiry of this Agreement, PARAKEET may, at its sole discretion, remove and/or destroy any Payee Data in the Platform at the request of the Payee. However, PARAKEET is entitled to retain such data as is required for PARAKEET’s compliance or business reporting purposes, or as required by law

10.4 PARAKEET agrees that:

(a) it will comply with the requirements of the Payment Card Industry Data Security Standards (PCI DSS) and, during the Term of this Agreement, PARAKEET will maintain PCI DSS Compliance;

(b) it will take all reasonable administrative, technical and physical processes to prevent:

(i) loss of, damage to and unauthorised access to or use or disclosure of Payee Data or Payer Data;

(ii) intrusions, viruses, trojan horses, worms and other Malicious Code which may negatively affect the operation of the Platform or the Services, or compromise the security of Payee Data or Payer Data.

10.5 You acknowledge and accept that PARAKEET is not able to guarantee that the security measures put in place by PARAKEET to protect the Platform, Services, Payee Data and Payer Data can never be compromised or circumvented by unauthorized or unlawful activities of third parties.

11. Intellectual Property

11.1 PARAKEET represents and warrants that it either owns or is licensed to use all Intellectual Property subsisting in the Platform and/or the Services to be provided pursuant to the terms of this Agreement and all associated materials.

11.2 Except as provided in this clause, all Intellectual Property and Intellectual Property Rights subsisting in:

(a) the Platform; and

(b) the Services; and

(c) materials supplied or created in the course of PARAKEET providing access to the Platform and/or the Services; (PARAKEET IP)

remains the property of PARAKEET, the IP Owner or the relevant licensor, including any improvements, enhancements, additions, variations or other Intellectual Property created, developed, discovered or otherwise brought into existence in the course of PARAKEET performing its obligations under this Agreement.

11.3 During the Term of this Agreement, we grant you a non-exclusive, worldwide, revocable, non-sublicensable and non-transferable license to use the PARAKEET IP to the extent necessary to obtain the benefit of the Services in accordance with the terms of this Agreement,

11.4 In addition to clause 11.3, PARAKEET grants You a limited license to display, print, download and use Website Material on Your computer, that is made available to You on PARAKEET’s website, for non-commercial, personal, or educational purposes only, provided that:

(a) You do not modify, alter or deface any such content;

(b) You include and display on each copy of such content, the associated copyright notice; and

(c) You do not use the Website Material for any other purpose whatsoever.

11.5 Notwithstanding the above, nothing contained in the license of Website Material shall be construed as conferring any right under any copyright of PARAKEET or any other person who owns the copyright in content provided on PARAKEET’s website.

11.6 Without limiting any other provisions of this Agreement, You must not do anything that infringes or may infringe upon the Intellectual Property Rights of PARAKEET subsisting in the PARAKEET IP or Website Material or otherwise use PARAKEET IP or Website Materials in a manner that is not expressly permitted in this Agreement, including copying, reproducing or modifying any such PARAKEET IP or Website Material, attempting to reverse-engineering the PARAKEET IP in any way; publish any materials containing the PARAKEET IP or Website Material in any way whatsoever; or engaging, instructing or allowing any other person to do any of those things.

11.7 You must notify PARAKEET as soon as possible if You become aware of any infringement of any Intellectual Property Rights of PARAKEET or any third party.

11.8 If requested by PARAKEET, You agree to do all things reasonably necessary, including executing such forms, documents or instruments, to transfer or assign Intellectual Property created, developed, discovered or otherwise brought into existence in the course of PARAKEET performing its obligations under this Agreement to PARAKEET.

12. Indemnity

12.1 You will indemnify, defend and hold Us and Our Processors, FI Partners, employees, officers, agents, affiliates, contractors and representatives (‘Indemnified Persons’) harmless from and against any and all Loss sustained or incurred by an Indemnified Person arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to:

(a) any actual or alleged breach of Your representations, warranties or obligations set out in this Agreement including, without limitation, any violation of Our policies or the Network Rules;

(b) Your unauthorized, wrongful or improper use of the Services;

(c) any information or Transaction Posted by You using the Services;

(d) Your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights;

(e) Your violation of any applicable Law; and

(f) any third party’s access or use of the Services using Your account, password or other unique security code.

12.2 This indemnity from You reduces proportionately to the extent PARAKEET, it’s employees, agents or contractors contributed to the relevant claim, suit, action, demand, loss, cost, damage to property, expense, judgment or award.

13. Limitations of liability and damages

13.1 PARAKEET, their employees, officers, agents, affiliates, contractors and representatives accept no liability for any Loss (whether direct, indirect, punitive, incidental, special, consequential or exemplary Loss or damage) including any Loss for loss of profits, goodwill, use, data or other intangible Losses that arise from:

(a) Your use of, or inability to use or unavailability of the Services;

(b) hacking, tampering or other unauthorized access or use of the Services or Your account or the information contained therein;

(c) errors, mistakes or inaccuracies of the Service or any data or content contained in or used on the Platform or Services;

(d) unauthorized access to or use of Our secure servers and/or any and all personal information stored therein;

(e) interruption or cessation of transmission to or from the Service;

(f) bugs, viruses, trojan horses or the like that may be transmitted to or through the Services by any third party; or

(g) content provided by the Payer(s) or the defamatory, offensive or illegal conduct of any third party.

13.2 In no event shall PARAKEET, its service providers, agents, suppliers, FI Partners or licensors (or their employees, officers, agents, affiliates, contractors and representatives) be liable to You for any Losses incurred by You in an amount exceeding the amount of fees earned by PARAKEET in connection with Your use of the Services during the three (3) month period immediately preceding the event giving rise to the claim for liability.

13.3 This limitation of liability clause applies whether the alleged liability is based on contract, tort (including, negligence), strict liability or any other basis, even if PARAKEET has been advised of the possibility of such damage. The limitation of liability shall apply to the fullest extent permitted by applicable law.

13.4 Nothing in Agreement is intended to exclude, restrict or modify any remedies, warranties or guarantees implied or imposed by any legislation where those remedies, warranties or guarantees cannot be lawfully excluded.

14. Termination

14.1 Either party may terminate this Agreement by providing 30 days’ notice in writing to the other party.

14.2 We may immediately, at any time and at our sole discretion, suspend Your account or Your licence to use the Services, or terminate this Agreement, where You:

(a) Breach any terms of this Agreement or PARAKEET’s policies (as provided to You from time to time);

(b) pose an unacceptable credit or fraud risk to Us;

(c) provide any false, incomplete, inaccurate, conflicting or misleading information or otherwise engage in fraudulent or illegal conduct; or

(d) suffer from an Insolvency Event.

14.3 Where we suspend your account in accordance with clause 14.2, We will notify You of the steps You can take in order for Us to consider lifting the suspension.

14.4 Upon termination or expiration of this Agreement, You agree:

(a) to continue to be bound by those provisions of this Agreement that are intended to survive termination of this Agreement (including without limitation clauses 5, 7, 8, 9, 10, 11, 12, and 13);

(b) to immediately cease using the Services and the licenses granted to you under this Agreement; and

(c) that We may either, at our sole discretion;

o retain any of Your information and account data stored on Our servers to the extent necessary to meet our legal and regulatory obligations; or

o delete all of Your information and account data stored on Our servers.

14.5 We will not be liable to You or any third party, for any Loss suffered in connection with any termination or suspension of the Services or deletion of Your data. Termination or suspension of the Services does not relieve You of any existing obligations to pay any Service Fees or other costs accrued by you prior to the termination or suspension.

15. Use of the Services outside of Australia

15.1 Unless otherwise explicitly stated, all materials found on the Services are solely directed to companies or other entities established, formed, incorporated and/or registered in Australia.

15.2 You are responsible for ensuring that Your access to or use of the Services from jurisdictions other than Australia comply with any applicable laws, including but not limited to export and import regulations.

15.3 You may not use the Services if You are a resident of a country embargoed or sanctioned by the United States or Australia or are a foreign person or entity blocked or denied by the United States or Australian governments.

16. Dispute resolution

16.1. If a dispute arises between You and PARAKEET in relation to this Agreement and the Services provided under the Agreement, You agree to use reasonable endeavors to resolve the dispute with Us prior to commencing any legal proceedings or arbitration.

16.2. Where a dispute has arisen, please contact PARAKEET Support on support@Parakeetpay.io with details of Your dispute and We will try to resolve it within 30 Business Days. This clause does not prevent either party from seeking urgent injunctive or urgent declaratory relief

16.3. If a dispute cannot be resolved in accordance with clause 17, You and PARAKEET agree to refer the matter to arbitration administered by the Australian Disputes Centre (‘ADC’).

The arbitration shall be conducted in Victoria in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to ADC (the Rules’).

17. Other Provisions

17.1. Governing Law. This Agreement is governed by the laws of Victoria. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria. No Party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction

17.2. Assignment This Agreement and any rights and licences granted in it may not be transferred or assigned by You, but may be assigned or novated by PARAKEET without restriction to a third party nominated by PARAKEET.

17.3. Entire Agreement. Except as expressly provided in this Agreement or by a statutory provision which may not be excluded, these terms are a complete statement of the agreement between You and PARAKEET and they describe the entire liability of PARAKEET and its service providers, FI Partners, suppliers and licensors (and their employees, officers, agents, affiliates, contractors and representatives) and Your exclusive remedy with respect to Your access and use of the Services.

17.4. Conflict. In the event of a conflict between this Agreement and any other PARAKEET agreement or policy, this Agreement shall prevail on the subject matter of the conflict

17.5. Enforceability. If any provision of this Agreement is invalid or unenforceable under law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under law and the remaining provisions will continue in full force and effect.

17.6. Waiver. PARAKEET’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.

17.7. Force Majeure. We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.

17.8. Relationship. Nothing in this Agreement is intended to constitute a fiduciary relationship, employment relationship or an agency, partnership or trust between the parties.

17.9. Notices. Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

Definitions

‘Agreement’ means this Payee Service and License Agreement.

‘Authorized Users’ means persons authorized by the Payee to access or use the Platform on behalf of the Payee from time to time.

‘AML/CTF Act’ means the Anti-money Laundering and Counter-terrorism Financing Act 2006 (Cth).

‘Business Day’ means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Melbourne, Australia.

‘Cards’ means an Australian-issued credit cards participating in the Visa, MasterCard or American Express schemes.

‘Commencement Date’ means the acceptance date of this document.

‘Corporations Act’ means the Corporations Act 2001 (Cth).

‘Discount’ means the Discount Rate multiplied by the invoice amount

‘Discount Fee’ means a percentage (%) of the Discount .

‘Discount Rate’ means the percentage rate agreed between You and the Payer(s) under PARAKEET Matchmaker.

‘Early Pay’ means payment facilitated via early settlement discount negotiated in the Platform via the Parakeet Matchmaker product.

‘Esker Platform’ means the invoice automation platform used by you and your Payer to Post Transactions to us owned and managed by Esker Australia Pty Ltd.

‘FI Partner’ means an Authorised Deposit-taking Institutions authorised under the Banking Act 1959 (Cth), participants in Networks or Processor that enters into an agreement with Us to participate, acquire or otherwise deal in any Payment Obligation via the Platform.

‘Intellectual Property’ means all existing or future species of industrial and intellectual property, whether registered or unregistered, registrable or not as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention; or recognised by any statute or any principle of law or equity, including copyrights, patents, designs, trade marks, circuit layout rights, confidential information, trade secrets and the right to register all such intellectual or industrial property rights.

‘Intellectual Property Rights’ means all rights arising from any statute, or principle of law or equity in relation to Intellectual Property.

‘Insolvency Event’ means being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.

‘IP Owner’ means PARAKEET Holdings Pty Ltd, ABN 34628958994.

‘Law’ means all statutes, laws, rules and regulations applicable to a party to this Agreement. Law includes (without limitation), the Corporations Act 2001 (Cth), the Privacy Act and the AML/CTF Act.

‘Loss’ means any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including, without limitation, legal fees on a full indemnity basis).

‘Malicious Code’ includes programs or codes that contain, create, comprise or distribute viruses, Trojan horses, worms, or any other computer programming or coding that may damage, modify, delete, detrimentally interfere with, access without authority or expropriate any system, data or personal information.

‘Member’ means a Payer, a FI Partner or a Payee, including you.

‘Networks’ includes networks and network schemes for payments initiated with Cards.

‘Network Rules’ are all applicable by-laws, rules and regulations that You (as a Payee or Merchant) must comply with for any credit card, debit card or direct debit initiated Transactions.

‘Payee’ and/or ‘Merchant’ means an entity that supplies goods or services to Payer(s) and has entered into an agreement with Us to use the Services. You acknowledge that in order to obtain access to certain Services, You must be approved by PARAKEET and/or its FI Partner as applicable.

‘Payee’s Business’ means the business of the Payee for which PARAKEET is providing access to the Platform and the Services.

‘Payee Data’ means data collected by or through the Platform (including personal information) that is owned by or is in relation to the Payee whether such data is collected by the Platform from Transactions processed through it, input by the Payee or the relevant Payer, other person, etc.

‘Payer(s)’ means an entity that procures goods and services from You and has entered into an agreement with Us to use the Services.

Payer Data means data collected by or through the Platform (including personal information) that is owned by one or more customers of the Payee whether such data is collected by the Platform from Transactions processed through it, input by the Payee or the relevant Payer, or other person, etc.

‘Payment Due Date’ means, in respect of a Payment Obligation, the Business Day on which that Payment Obligation is due for payment in full by the relevant Payer as Posted by you or the Payer to the Platform and determined by the Software.

‘Payment Obligation’ means the obligation of a Payer to pay for goods or services provided by You, which obligation is confirmed by that Payer as Ready to Pay and a Payee Posting a record of the obligation into the Platform.

‘Platform’ means the online platform that PARAKEET offers to Members, which provides Members with the Services.

‘Post’, ‘Posted’ or ‘Posting’ means, for a given input into the Platform, the point in time at which the applicable Member provides the input to the Platform and the initial processing of such input by the Platform is complete.

‘Privacy Act’ means the Privacy Act 1988 (Cth).

‘Processors’ means the collective reference to credit card payment processors and gateways.

‘Ready to Pay’ is the evidence of acceptance of an invoice ready for payment by a Payer advised in the Platform.

‘Services’ means the payments products and services provided by PARAKEET within the Platform from time to time in the manner contemplated in this Agreement.

‘Software’ means machine code written by Us and owned by IP Owner.

‘Term’ of this Agreement has the meaning given in clause 2.

‘Transaction’ means a process under PARAKEET Cards, PARAKEET Matchmaker and PARAKEET Direct, which includes

(a) payments for goods and / or services;

(b) refunds for goods and / or services;

(c) credits or reversals for goods and / or services;

(d) any other electronic Transaction by a Cardholder or Payer which shall be effected by the debiting or crediting of the Cardholder's account with the Card Issuer or Payer’s account with an FI Partner.

‘You’ or ‘Your’ means the Payee who is a party to this Agreement and registered legal entity as recorded in the Platform.

Website Material means any intellectual property in or associated with PARAKEET, the underlying HTML, audio clips, text, Java scripts and other content made available on PARAKEET’s website

‘PARAKEET’, ‘We’, ‘Our’ or ‘Us’ means PARAKEET trading Pty Ltd ABN 35629014786 trading as “Parakeet Pay”.

‘PARAKEET BYO Merchant’ means the provision of a switch capability to enable Payees to load their own Cards and/or direct debit facility held with a compatible financial institution in to the Software.

‘PARAKEET Fees’ means the fee determined in clause 6 of this Agreement.

Version - 2021_03_29_Esker_Payee