1              About

1.1          ezyCollect Pty Ltd (ACN 156 330 371) (the Company) provides its customers with software as a service and third-party services (the Services). Details of the Services are found on the Company’s website, and the Company’s related sub-domains or platforms (the Platform).

2              Acceptance of these Terms

2.1          You accept these terms and conditions (the Terms), on behalf of yourself and any related business, by using or registering for the Services, making payment to the Company, browsing the Platform, integrating your system with the Platform, or by creating an account. If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “your” shall refer to such entity and its affiliates. By using the Platform or Services, browsing the Platform, making payment through the Platform, or creating an Account, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease use of the Platform and the Services immediately.

2.2          You may not use the Services and may not accept the Terms if:

(a)          the individual accepting this agreement does not have authority;

(b)          you are not of legal age to form a binding contract with the Company; or

(c)           you are a person barred from receiving the Services under the laws of Australia or New Zealand, other countries including the country in which you are resident or from which you use the Services.

2.3          By engaging the Company, you acknowledge and understand that the Company does not provide you with any tax, legal, accounting or other specialist, professional or technical advice. For further information, please read the Terms carefully.

2.4          The Company reserves the right to review and change any of the Terms by updating this page at its sole discretion. When the Company updates the Terms, it will use reasonable endeavours to provide you with notice of the same. Any changes to the Terms take immediate effect from the date of their publication. If you choose not to accept any changes to the Terms, your sole recourse will be to stop using the Services. Before you continue, we recommend you keep a copy of the Terms for your records.

3              Account Set Up

3.1          To access the Services, you are required to register for an account with the Company (the Account). You may register for an Account via the Platform or by contacting the Company directly.

3.2          As part of the registration process or as part of your continued use of the Services, you will be required to provide business or personal information about yourself (such as identification, contact details, payment details, bank details, and other personal information such as qualifications, skills, and previous employment details).

3.3          You agree that any information you give to the Company will always be accurate, correct and up to date.

3.4          You understand that by supplying the Company with your address, email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from the Company to keep you informed about the Company’s activities. If you do not wish to receive updates from the Company, you may contact the Company at privacyofficer@ezycollect.com.au.

3.5          You and the Company agree that the Company may and will hold any information provided in relation to the Services in accordance with the Privacy Policy.

4              Identify Verification

4.1          You acknowledge and agree that due to the nature of the Services, the Company may be required to verify your identity to ensure that you are not using the Services in an illegal or fraudulent manner.

4.2          You warrant that where the Company advises you in writing that they require further verification of your identity then you will make all reasonable endeavours to comply with this request within seven (7) days of receipt of same.

4.3          You warrant that any information that you provide pursuant to this clause will be true and correct to the best of your knowledge and belief and failure to comply with this clause will warrant an immediate termination of the provision of the Services to you.

5              Services

5.1          For you to be eligible to receive some of the Services, you must pay the fees that may be provided you from time to time or found on the Platform and may vary from time to time (the Fee). Payment of the Fee may be made through the Platform’s third-party payment provider as specified on the Platform (the Payment Gateway). In using the Services or making payment of the Fee, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable terms and conditions, privacy policy and other relevant legal documentation required by the Payment Gateway, prior to you using the Payment Gateway services, and that by choosing that Payment Gateway it may be necessary for the Company to provide your business or personal information to the Payment Gateway.

5.2          By the Company offering its Service to you, you agree and acknowledge that:

(a)          the Company does not, at any time, provide any guarantees whatsoever, whether express or implied, with respect to the success of the Service or the information provided through the Platform and Services;

(b)          Unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are exclusive of GST;

(c)           the Company may receive a commission from or pay a commission to third parties in relation to provision of the Services to you;

(d)          it is your responsibility to satisfy yourself as to:

(i)            any accounting classification and taxation consequences; and

(ii)           the compliance with all applicable legal and regulatory provisions in relation to information provided through the Platform or Services;

(e)          you shall remain solely responsible for assessing the implications and risks of using the Services; and

(f)           these Terms do not create a relationship of employment, trust, joint venture, agency, partnership or other relationship of a fiduciary nature between the parties.

5.3          You acknowledge that the Company has entered into these Terms in reliance on the acknowledgements, representations and warranties given by you in these Terms.

5.4          The Company and its third party providers reserve the right to (and you acknowledge and agree that they may) perform routine maintenance on its systems as it deems necessary, and during such maintenance period Services may be unavailable for order by or delivery to you.

6              Non-Payment

6.1          In the event you elect to pay the Fee by way of direct debit and/or credit card and there is a chargeback by your credit provider, or invoice and the invoice is more than 30 days past the due date, then the Company may suspend or terminate the Services immediately. You will be charged the then current Company administration fee, available on the Platform, plus GST (Administration Fee), and you agree to pay 2% plus the Cash Rate Target set by the Reserve Bank of Australia (the Interest) on amounts which remain unpaid after thirty (30) days from the date of the tax invoice. Upon payment of the Administration Fee and Interest in accordance with the Terms, the Company may reinstate the Services to you.

6.2          The Company reserves the right to terminate or suspend your access to the Services in the event that you fail to pay any payment pursuant to the Services or any invoice sent by the Company from time to time.

7              Refund Policy

7.1          If, for whatever reason, you are unsatisfied with the Services please contact the Company outlining why you believe you are entitled to a refund of any fee so that we are able to determine whether a refund should occur.

7.2          Any refunds granted pursuant to this clause will be at the Company’s absolute discretion unless otherwise agreed in writing.

7.3          If payment of any Fee is made annually and paid in advance (Annual Subscription), and you terminate your  Annual Subscription pursuant to clause 17 of these Terms, then you will be entitled to a refund of the Fee paid for the Annual Subscription pro rata from the end of the notice period for any remaining full months of the term of the Annual Subscription.

8              Copyright and Intellectual Property

8.1          The Platform, the Services and all of the related products and services of the Company (the Material) are subject to copyright. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Materials (including but not limited to text, graphics, logos, button icons, video images, audio clips, Platform, code, scripts, lists, design elements and interactive features) (the Content) are owned or controlled for these purposes and are reserved by the Company or its contributors.

8.2          The Company retains all rights, title and interest (including copyrights, patents and trademarks) in the Material, the Content, and all related content therein. Nothing you do will transfer any interest in the Material to you, other than the grant of the licence to you in clause 8.4 below.

8.3          Whilst using the Services, the Company grants you a worldwide, non-exclusive, royalty-free, revocable licence during while you have an active Account and you have paid any required Fee, and solely for your internal business purposes, not including those of any related body corporate.

8.4          The Company does not grant you any other rights whatsoever in relation to the Material and/or the Content. All other rights are expressly reserved by the Company.

8.5          You may not, without the prior written consent of the Company and the permission of any other relevant rights owner: broadcast, republish, upload to a third party, transmit, post, distribute, show or display or publish in public, adapt or change in any way the Material or Content for any purpose, other than for the purposes expressly allowed by these Terms. This prohibition does not extend to the Material and Content which are freely available for re-use or are in the public domain.

9              Material and Content

9.1          You may read and copy the Material and Content for your internal business needs, but you may not publish, resell or sub-licence it. the Company makes no guarantees, representations or warranties about the accuracy or legal correctness of any of the Material or Content.

10           Third Party Content and Services

10.1        You warrant that your debtors will be informed and will agree to any debts being referred to a debt collector prior to engaging the Services.

10.2        You warrant that you will obtain consent from customer and/or debtors to provide to the Company and third parties the data and information that you provide to the Company for the provision of the Services.

10.3        Third Party Content

(a)          The Company works with a number of partners and affiliates whose websites or mobile phone applications may be linked with or provided by the Company and are controlled by parties other than the Company (each a Third Party Content).

(b)          The Company does not endorse and is not responsible or liable for the availability, contents, products, services or use of any third party product or service, Third Party Content, any website accessed from a Third Party Content or any changes or updates to such sites. The Company makes no guarantees about the content or quality of the products or services provided by such sites.

(c)           By using any information, product, service, or functionality originating from the Services, you are allowing the Company to share with any third party, which the Company has a contractual relationship, any information necessary to facilitate its provisions of products, services, or functionality to you.

(d)          Only the services described in 10.4 and 10.5 are provided by illion Australia Pty Ltd (ACN 006 399 677) or illion New Zealand Limited (Co. No. 361901) (illion) through ezyCollect, and all other services have not been prepared by illion, and illion neither endorses, nor expresses any views as to the accuracy or completeness of, the content of such services, reports, products, or other materials  unless otherwise indicated.

10.4        Trade Scores

(a)          If your use of  Services include “Trade Scores” then you agree to the Trade Participant Terms.

(b)          For clause 10.4, each capitalised word not defined in these Terms, will have the meaning given in the Trade Scores Terms.

(c)           To facilitate the provision of the “Disclosure Materials”, you grant permission to the Company to provide the Disclosure Materials and any other information that illion or the Company deems is required.

(d)          In the event the Company determines that the Disclosure Materials contain disputed details, you undertake to use your best endeavours to resolve the issue with you debtor and verify the information to the Company.

(e)          You may opt out of the “Trade Information Sharing” by providing written notice to the Company at the time of accepting these Terms or by sending an email to privacyofficer@ezycollect.com.au, however, if you opt out, you will not receive the Trade Scores.

10.5        Credit Service Products

(a)          If the Company’s Services include “Commercial Credit Reporting” and/ “Monitoring” (collectively the Credit Services Products) then you agree to the Credit Services Products Terms.

(b)          For clause 10.5, each capitalised word not defined in these Terms, will have the meaning given in the Credit Services Products Terms.

(c)           illion may in its absolute discretion, elect not to accept an order for the Credit Services Products made through the Platform.

(d)          If for any reason the Company is charged for the provision or the Credit Services Products to you, then you will be liable to pay the Company any applicable Fee.

(e)          The Company does not guarantee access to any Credit Services Products after initially providing them to you.

11           Your Duties

11.1        You warrant that you will not:

(a)          resupply, resell, repackage or otherwise reuse, copy, download, upload, modify, translate, adapt, make any improvement or enhancement to or in any other way reproduce, a Service or any part of the Service;

(b)          permit any person to access or use a Service or otherwise provide a Service to any person, whether directly or indirectly other than your employee, officer, or agent and only for internal business purposes, not including any related body corporate (Authorised User);

(c)           reverse engineer, derive the source code of, tamper with any Service;

(d)          introduce, directly or indirectly, any virus, worm, trojan or other harmful or malicious code into any Service or otherwise corrupt, degrade or disrupt any Service;

(e)          circumvent any technological measures that are designed to prevent unauthorised use or access to any part of a Service;

(f)           engage in any form of systematic extraction of all or part of any Service, including the use of “screen-scraping”, “bots” and “spiders”;

(g)          merge any part of a Service with any other database or system, unless otherwise agreed to by the parties in writing;

(h)          use the Service to generate any statistical or other information, or to prepare any comparison to other information databases, that may be provided to any third party, unless otherwise agreed to by the parties in writing;

(i)            use the Service if you are a direct or indirect competitor, or a sales agent, consultant or distributor for a direct competitor of the Company;

(j)           produce any Service in legal proceedings without our prior written consent, except as required by law; or

(k)          use a Service for any unlawful purpose or in a manner that contravenes any applicable laws.

11.2        You warrant that you will:

(a)          only use the Services for your internal business purposes (which, for the avoidance of doubt, does not include use of the internal business purposes of any of your related body corporate);

(b)          implement and maintain industry best practice security measures and safeguards in relation to the Services;

(c)           restrict access to the Services to Authorised Users;

(d)          keep all security and access credentials and identifiers confidential and secure and ensure they are not transferred between Authorised Users or disclosed to any other person;

(e)          protect the Services from unauthorised use, alteration, adoption, modification, reproduction, access, publication and distribution;

(f)           only use the Services on hardware, network and software that meets the minimum specifications notified by us to you, if any;

(g)          comply with our reasonable directions from time to time in relation to the Services;

(h)          when we deliver or transfer an electronic report or data extract to you, including by email, direct link, data stream, download or other media (Transferred Data), you may save the Transferred Data onto your system and use it only in accordance with this these Terms;

(i)            you will procure that your Authorised Users comply with the terms of these Terms;

(j)           If, as a result of the use or provision of the Services, a regulator makes lawful enquiries, carries out an investigation, or takes any action (Inquiry) which obliges you to provide assistance or information, then you will provide assistance and information to the regulator to the extent they are legally obliged to do so;

(k)          you will promptly notify us of any breach of these Terms.

12           The Company’s use of your material

12.1        You agree to grant to the Company, the its employees, contractors, third party service providers, officers, and agents a worldwide, non-exclusive, royalty-free, irrevocable licence the right to use, modify and copy any information or data provided to the Company for the purposes of the provision of the Services or any related products or services. The Company does not guarantee that it the data and information that you provide will be secure, recoverable, or never lost or damaged.

12.2        By engaging the Company to perform the Service, you acknowledge and agree that the Company is granted an irrevocable, perpetual, worldwide, royalty free right to use your trade mark, logo, photographs, testimonials, feedback or name for the purpose of promoting the Company or the Services, now and in the future. This includes any promotion, testimonials, marketing or advertising by way of online, in print, in social media, in competitions, advertisements, books and magazines, design publications and any other self-promotional or demonstrative purpose.

13           General Disclaimer

13.1        Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

(a)          If you are not a Consumer (under the Australian Consumer Law), you agree that the Company has no direct or indirect liability (including in negligence) to you in any way related to your use of the Platform or the Services.

(b)          If you are a Consumer (under the Australian Consumer Law), the Company limits all its direct and indirect liability (including in negligence) to you to the Consumer Guarantees under the Australian Consumer Law.

(c)           Where there is a breach of the Consumer Guarantees, then to the maximum extent permitted by law, the Company’s liability to you is limited to resupply of the Services or payment of the cost of re-supplying the Services.

13.2        Subject to this clause and to the extent permitted by law:

(a)          the Company excludes all representations, warranties or guarantees, whether express or implied, by statute, trade or otherwise;

(b)          the Company will not be liable for any claims, causes of action, damage or expenses arising out of or in connection with the Platform or the Services (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, in equity, pursuant to statute, or otherwise; and

(c)           All Services are supplied to you on an “as is” and “as available” basis and does not guarantee any uptime or availability of the Services.

14           Support

14.1        In the event that you have any problems with accessing or using the Service, you may contact the Company via customersuccess@ezycollect.com.au. However, the Company has no obligation or responsibility to provide any assistance or remedial action in relation to any such enquiry.

15           Limitation of liability

15.1        The Company’s total liability arising out of or in connection with the Services or the Terms, however arising, including at law, in equity, under statute, or otherwise, will not exceed the resupply of the Service to you.

15.2        You expressly understand and agree that the Company will not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This includes, but is not limited to, any loss of profit, any loss of goodwill or business reputation and any other intangible loss.

15.3        You expressly understand and agree that the Company will not be liable to you for your use of the information in the Services.

16           Indemnity

16.1        You agree to indemnify and hold harmless the Company from and against:

(a)          all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with

(i)            inaccurate or misleading information provided by you or your agent; or

(ii)           any breach of the Terms;

(b)          any direct or indirect consequences of you accessing, using or transacting on the Platform or the Services or attempts to do so; and

(c)           non-Authorised Users gaining access to your account; and

(d)          use of products not permitted by these terms or any additional terms found herein.

16.2        This indemnity will survive termination of the Terms.

17           Termination of Services

17.1        The Terms will continue to apply until the deletion of your Account, or until terminated by the Company as set out below.

17.2        If you elect to terminate, you must provide at least thirty (30) days’ written notice to the Company.

17.3        The Company may at any time, terminate the Terms with you if:

(a)          you have breached any provision of the Terms or intend to breach any provision;

(b)          the Company is required to do so by law;

(c)           the partner, if any, with whom the Company offered the Services to you has terminated its relationship with the Company or ceased to offer the Services to you;

(d)          the Company is transitioning to no longer providing the Services in the country in which you are resident or from which you use the service;

(e)          the provision of the Services to you by the Company is, in the opinion of the Company, no longer commercially viable;

(f)           if you have used the Services:

(i)            in breach of any law;

(ii)           in a way that is misleading or deceptive;

(iii)          in a way which is unreasonable as determined by the Company at its absolute discretion; or

(iv)         in a manner which can or does bring the Company into disrepute or could damage the Company’s reputation as determined by the Company at its absolute discretion; or

(g)          for no reason.

17.4        Subject to local applicable laws, the Company reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Platform or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct damages the Company’s name or reputation or violates the rights of those of another party.

17.5        Upon the termination of your account, all of the legal rights, obligations and liabilities that you and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

18           Dispute Resolution

Dispute Resolution for dispute occurring within Australia

18.1        Compulsory Mediation

If a dispute arises out of or relates to the Terms, the Services, any products, or the Platform, inside of Australia, then no party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

18.2        Notice

A party claiming a dispute (Dispute) must, within thirty (30) days of becoming aware of the Dispute, provide written notice to the Company (the Dispute Notice) detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute and serve it on the other party by sending an email to the other party’s email, and in the case of the Company to privacyofficer@ezycollect.com.au.

18.3        Response

Within fourteen (14) days of receipt of the Dispute Notice, the other party must respond in writing and serve it on the other party detailing their response to the Dispute and serve it on the other party by sending an email to the other party’s email, and in the case of the Company to privacyofficer@ezycollect.com.au.

18.4        Resolution

On receipt of the Response by that other party, the parties to the Dispute (the Dispute Parties) must within seven (7) days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

If for any reason whatsoever, twenty-one (21) days after the date of the Dispute Notice, the Dispute has not been resolved, the Dispute Parties acknowledge and agree that the Company may refer the Dispute to a mediator or request that an appropriate mediator be appointed by the Australian Commercial Disputes Centre or his or her nominee and the mediation will be held in accordance with the Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation.

The mediation will be held in Sydney, Australia.

18.5        Confidential

All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

18.6        Termination of Mediation

If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

Dispute Resolution for dispute occurring outside Australia

18.7        Compulsory Mediation and Arbitration

If a dispute arises out of or relates to the Terms, the Services, any products, or the Platform, outside of Australia, unless the Dispute Parties have complied with the following clauses, the parties may not commence any arbitration, tribunal, or Court proceedings in relation to the dispute (except where urgent interlocutory relief is sought).

18.8        Notice

A party to the Terms claiming a Dispute has arisen under the Terms, must give notice, in compliance with clauses 18.2 and 18.3, to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

18.9        Mediation

On receipt of that notice by that other party, the Dispute Parties to the Terms must within seven (7) days of the notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

If for any reason whatsoever, twenty-one (21) days after the date of the notice, the Dispute has not been resolved, the Dispute Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Australian Commercial Disputes Centre or his or her nominee and the mediation will be held in accordance with the Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation.

The Dispute Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Dispute Parties must each pay their own costs associated with the mediation.

The mediation will be held in Sydney, Australia.

18.10     Arbitration

In the event that the Dispute arising out of or relates to the Terms, the Services, any products, or the Platform, outside of Australia is not resolved at the conclusion of the mediation, the Dispute Parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with the Terms, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

However, the Company may apply for immediate injunctive relief in any court of competent jurisdiction.

18.11     Confidential

All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

19           Governing Law and Jurisdiction

The Services offered by the Company are intended for residents of Australia. These Terms are governed by and are to be constructed in accordance with the laws of the State of New South Wales, Australia. Except as agreed in clause 18.7, you submit to the exclusive jurisdiction of the courts situated in Sydney, Australia in respect of all matters arising out of or relating to these Terms, the Platform, the Services and their performance.

20           Notice

20.1        The Company may provide any notice to you under the Terms by sending a message to your email address. The notice provided by the Company to you by email shall be deemed to have been properly given on the date the Company sends the email, regardless of whether you have received the email.

20.2        Unless specified otherwise, any notices provided by you to the Company must be in writing and be delivered either in person, or via registered post to Level 1/80 Bay Street, Ultimo, NSW 2007, Australia. Notices provided by registered post shall be deemed to have properly given three days after they are posted (if posted).

21           Severance

If any part of the Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.

22           Waiver

22.1        A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it.

22.2        A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

22.3        The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.

23           Assignment

23.1        The Company may assign or transfer its rights or obligations under the Terms without your consent.

23.2        You may not assign or transfer your rights or obligations under the Terms without prior written consent of the Company. A purported assignment without written consent will be deemed to be void and convey no rights.

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