1. Definitions and Interpretation
1.1. Definitions
In these terms and conditions, unless the context or subject matter indicates or requires otherwise:
Application means the application by the Principal through the Online Portal for Australia Post to provide the Services to the Principal.
Australia Post means the Australian Postal Corporation (ABN 28 864 970 579).
Australia Post Authorised Holiday means the day declared by Australia Post to be a holiday for some or all of its employees, contractors or agents.
Barcode Specifications means Section 2 of the Operational Document (PDF 280kB).
Bill means an account, invoice, statement, card or demand for payment (however described and in whichever form) issued by the Principal which may be paid through the Services.
Business Day means any day, excluding Saturdays, Sundays and nationally declared public holidays in Australia.
Cheque Procedures means Section 3 of the Operational Document (PDF 280kB).
Complaint and Enquiry Procedures means Section 6 of the Operational Document (PDF 280kB).
Confidential Information means all information disclosed to the receiving Party under or in connection with the Services that is:
a) the Fees;
b) details of any remittance or other matter which could allow identification of the Customer or provide unauthorised access to a record relating to a Customer’s payments under these terms and conditions;
c) information which, either orally or in writing, is indicated as being the proprietary or confidential information of the disclosing Party;
d) information which by its nature is confidential;
e) information which the receiving Party knows, or ought to know, is confidential; or
f) trade secrets or information which is capable of protection at law or equity as confidential information,
but does not include information which:
g) is in the public domain other than as a result of a breach of clause 12;
h) is independently developed or already known by a Party; or
i) is provided by another person who is lawfully entitled to provide such information.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means a customer of the Principal, including a person who pays a Bill through the Services.
Direct Loss means any loss, claim, damage, cost or expense suffered or incurred solely and directly by a Party as a consequence of any breach of these terms and conditions or other negligent, reckless or wilful act or omission, and excludes any Indirect Loss (any rule of law notwithstanding and irrespective of whether any class or category of loss could have been reasonably anticipated or not).
Dishonour and Reversal Procedures means Section 4 of the Operational Document (PDF 280kB).
e-Contracting System means Australia Post’s online contract management system and any associated software applications.
Event of Default means a Party;
a) commits a material breach of these terms and conditions that is capable of remedy and such breach is not remedied within 10 Business Days after notice of the breach is provided by the other Party;
b) commits a material breach of:
i) these terms and conditions that is not capable of remedy; or
ii) any representation or warranty under these terms and conditions; or
c) is subject to an Insolvency Event.
Fees means amounts payable by the Principal to Australia Post under these terms and conditions or the Operational Document (PDF 280kB), including g the Transaction Fees.
Force Majeure Event means any cause or event which is not within the reasonable control of a Party and which could not reasonably have been prevented by that Party which includes acts of God, war, terrorism, extreme weather conditions, floods, earthquakes, fire and industrial disputes.
Government Agency means a:
a) government or government department or other body;
b) a governmental, semi-governmental or judicial entity or authority; or
c) a self-regulatory organisation established under statute or a stock exchange.
Indirect Loss means any:
a) special, indirect or consequential loss, expense or damage;
b) loss of profits, income, anticipated earnings or revenue to a Party;
c) loss or impairment to a Party’s reputation or goodwill; and
d) loss arising from acting in accordance with written instructions, notices or directions from the other Party.
Insolvency Event means a Party:
a) is (or states that it is) insolvent under administration or insolvent (each as defined in the Corporations Act);
b) has a controller (as defined in the Corporations Act) appointed or is in liquidation, in provisional liquidation, under administration or wound up or has a receiver or receiver and manager appointed to any part of its property;
c) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent);
d) has an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that Party, which is preparatory to or could result in any of (a), (b) or (c) above;
e) is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;
f) is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which the other Party reasonably deduces it is so subject);
g) is otherwise unable to pay its debts when they fall due; or
h) has something having a substantially similar effect to (a) to (g) above happen in connection with that Party under the law of any jurisdiction.
Intellectual Property means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions, domain names and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Law means all present and future laws, regulations, codes, ordinances, local laws, by-laws, orders, judgments, licences, rules, permits, agreements and requirements of all Government Agencies applicable in any jurisdiction in which activities contemplated by these terms and conditions take place.
Loss means any and all claims, losses, liabilities, damages, costs, expenses and judgements (including legal fees and expenses reasonably incurred) sustained by a Party.
Net Settled means Australia Post deducts and retains Transaction Fees from each Transaction.
Online Portal means the website hosted by Australia Post where the Principal applies to access the Services.
Operational Document means the document entitled “Operational Document” (PDF 280kB) in the Online Portal as updated by Australia Post from time to time.
Party means the Principal or Australia Post, as applicable.
Payment Method means payment methods offered by Australia Post to Customers from time to time, including cash, cheques, EFTPOS and certain charge cards, credit cards and debit cards.
Personal Information has the meaning given in the Privacy Act.
Post Office means a facility in Australia where:
a) postal services are provided to the community directly by Australia Post through employees of Australia Post; or
b) postal services are provided to the community by Australia Post through a licensee or franchisee, who is not an employee of Australia Post, pursuant to a Licensed Post Office Agreement or Franchise Agreement.
Post Billpay means the presentment and payment processing service offered by Australia Post to facilitate payment of Bills.
Principal means the entity that agrees to these terms through the Online Portal and applied for the Australia Post to provide the Services.
Privacy Act means the Privacy Act 1988 (Cth).
Services mean the Post Billpay services, whether in Post Offices, through the Australia Post website or through telephone, described in the Online Portal.
Settlement Procedures means Section 5 of the Operational Document (PDF 280kB).
Trade Marks means the corporate logos, business names and trademarks of each of Australia Post and the Principal whether registered or unregistered.
Transaction means a transaction where a Customer pays a Bill through the Services.
Transaction Fees means the fees for Transactions.
Year means each 12 month period of the Term, starting on the date Australia Post approves the Principal’s Application.
1.2. Interpretation
The following rules apply to these terms and conditions unless the context requires otherwise:
a) the singular includes the plural and vice versa;
b) headings are for ease of reference only and do not affect interpretation of these terms and conditions;
c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have the corresponding meaning;
d) a reference to a day means the time of day in Melbourne, Victoria;
e) if a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
f) a reference to a Party includes its employees, officers, agents, representatives and sub-contractors and any servant or agent of its sub-contractors;
g) the Operational Document (PDF 280kB) form part of these terms and conditions;
h) a word which denotes a person includes an individual, partnership, firm, body corporate, an unincorporated association and an authority and also includes the trustee, executor, administrator and successor in title and permitted assignee of that person;
i) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
j) use of the words “includes” or “including” means “without limitation” and the use of these or similar words will not limit the meaning of the general words; and
k) a reference to Australian dollars, dollars, A$ or $ is to the lawful currency of Australia.
2. Approval of the Services
a) The operation of these terms and conditions is conditional on Australia Post approving the Application and neither Party is or will be bound by these terms and conditions unless and until Australia Post confirms its approval of the Application to the Principal.
b) In relation to information provided by the Principal to Australia Post in connection with the Application, Australia Post:
i) may rely on such information as being complete, accurate and not misleading or deceptive; and
ii) is not obliged to verify the completeness or accuracy of the information.
c) The decision whether to approve the Application is at the sole discretion of Australia Post and the reason for any decision which is made may not be given to the Principal.
d) Any information obtained by Australia Post during its assessment of the Application is and remains confidential to Australia Post and will not be shared with the Principal.
e) The Principal represents and warrants that:
i) any information provided to Australia Post in connection with the Application is complete, accurate and not misleading or deceptive;
ii) if Personal Information has been disclosed to Australia Post in connection with the Application, it has obtained each relevant individual’s prior consent to the disclosure and otherwise complied with its obligations under Privacy Law; and
iii) it is able to satisfy its obligations under these terms and conditions.
3. Application of these Terms and Conditions and Relationship of the Parties
3.1. Agency
Australia Post will act as an agent for the Principal for the purpose of the collection and receipt of monies payable to the Principal by Customers.
3.2. Relationship
a) The agreement in respect of these terms and conditions is not intended to, nor will it, create:
i) a joint venture, partnership or employment relationship between the Parties; or
ii) any contractual or binding relationship between Australia Post and a Customer or any other person making a payment to the Principal through the agency of Australia Post other than on the terms on which a Customer uses the Services,
and a Party may not make any representation which implies that such a relationship exists.
b) Subject to Clause 3.1 and without limiting Clause 3.2(a), a Party may not, and has no authority to, bind the other Party by contract or otherwise.
c) The Parties acknowledge that the Parties are not associates within the meaning of Section 318 of the Income Tax Assessment Act 1936 (Cth).
d) The agreement in respect of these terms and conditions is not an exclusive arrangement and Australia Post is entitled to provide the same or similar services to any other party without reference to the Principal.
e) Australia Post will hold the benefit of the agreement in respect of these terms and conditions on trust for its licensees and franchisees performing the Services.
4. Provision of the Services
4.1. Australia Post Obligations
Australia Post must:
a) provide the Services to the standard expected of a prudent professional provider of similar services;
b) provide the reports, settle with the Principal for payments collected and accept, process and account for Transactions in accordance with the Settlement Procedures; and
c) deal with Customer complaints and enquiries in accordance with the Complaint and Enquiry Procedures.
4.2. Exceptions
Australia Post has no obligation to perform the Services:
a) at a Post Office during any period in which counter services or agency work have been suspended at that Post Office for any reason including on the Australia Post Authorised Holiday; and
b) through the Australia Post website or telephone during any period in which the Service are suspended because of technological or industrial reasons.
4.3. Principal’s Obligations
The Principal must:
a) comply with the Operational Document (PDF 280kB);
b) comply with all Laws;
c) barcode, brand and format its Bills in accordance, and otherwise comply, with the Barcode Specifications;
d) use the Post Billpay Bill logo designs on Bills in accordance with the Barcode Specifications;
e) not use or disclose:
i) any barcode used in relation to the Services; or
ii) any part of the Barcode Specifications,
other than for the purpose of the Principal receiving the Services from Australia Post and must promptly notify Australia Post of any use or disclosure the Principal becomes aware of that breaches this obligation;
f) immediately notify Australia Post of any material change:
i) to its financial position which may affect its ability to perform its obligations under these terms and conditions; and
ii) in the nature of its business or the goods and services it provides to Customers;
g) not change its business name without giving Australia Post prior written notice;
h) process any chargebacks, refunds or reversals in respect of any Transaction in accordance with, and pay any amounts to Australia Post as required under, the Dishonour and Reversal Procedures; and
i) not process any chargebacks, refunds or reversals in relation to a Transaction where the Customer is the Principal.
4.4. Customer Fee
The Principal must not impose a fee or charge on a Customer for making payments through the Services in an amount greater than the applicable Transaction Fee.
5. Fees and Charges
5.1. Fees
The Principal must pay Australia Post the Fees for the Services as initially set out in the Online Portal and the Operational Document (PDF 280kB).
5.2. Fee Review
a) Australia Post must provide the Principal a written notice specifying the amount of any increase in Fees and the date on which it will take effect (Adjustment Notice).
b) Australia Post must provide an Adjustment Notice to the Principal at least 30 days before the date on which the increase in Fees is intended to take effect.
c) If the Principal does not agree to the increase in Fees in an Adjustment Notice, the Principal may terminate the agreement in respect of these terms and conditions by providing notice to Australia Post no less than 7 days prior to the date on which the increase in Fees is intended to take effect.
d) If Australia Post does not receive a notice from the Principal under clause 5.2(c), the Principal will be deemed to have accepted the increase in Fees in the Adjustment Notice.
e) Notwithstanding clauses 5.2(a) to 5.2(d), the Fees may be altered from time to time by Australia Post providing written notice to the Principal to take account of:
i) increases in government charges or taxes;
ii) the introduction of new or increased fees by third party suppliers to Australia Post, including by Australia Post’s acquiring bank for Payment Methods, including EFTPOS interchange fees; or
iii) any applicable laws, orders, rules or regulations of any Government Agency.
6. Settlement
6.1. Responsibility to Settle
a) Transaction Fees will be Net Settled and, for the relevant period, Australia Post will settle to the Principal an amount equal to the amount paid by Customers for Transactions minus the Transaction Fees for those Transactions.
b) Australia Post must settle amounts for Transactions to the Principal in accordance with the Settlement Procedures.
c) Responsibility for the money collected in respect of the Services will remain with Australia Post up until and including the time of successful completion of the electronic funds transfer from Australia Post to the Principal.
d) If a Customer cheque or other payment is dishonoured or is otherwise not credited to Australia Post’s bank account, the relevant provisions in the Cheque Procedures will apply.
e) Other than the Transaction Fees (which are Net Settled), the Principal must pay the Fees to Australia Post no later than 14 days by electronic funds transfer or 21 days by direct debit from the date of issue of the tax invoice or adjustment note or upon the terms and conditions applicable to Australia Post’s charge account customers (as amended from time to time) (Charge Account).
f) If the Principal breaches the terms and conditions of the Charge Account or is subject to an Insolvency Event, Australia Post may, at its sole discretion, in addition to Net Settlement of Transaction Fees, adjust the daily settlement by the value of any Fees.
6.2. Interest
Australia Post will be entitled to retain any interest or other financial benefit accruing to it as a result of the deposit of monies into an Australia Post bank account pursuant to these terms and conditions.
7. GST
a) Unless the contrary intention appears, words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning.
b) All stated prices and amounts payable under these terms and conditions as consideration have been calculated without including an amount for GST (unless GST-inclusive amounts have been specified). In addition to any GST-exclusive amounts payable the recipient must pay an amount equivalent to the GST payable by the supplier in respect of the taxable supply (the GST Amount). The GST Amount is to be calculated by multiplying the GST-exclusive amount by the GST rate applicable to the supply at the time that supply is made. The GST Amount must be paid to the supplier at the same time and in the same manner as the relevant consideration is otherwise required to be paid or provided.
c) If the GST rate changes after the date Australia Post accepts the Application and results in an increased GST liability for Australia Post, Australia Post can recover an equivalent amount from the Principal.
d) The supplier of a taxable supply under these terms and conditions will issue a compliant tax invoice to the recipient.
e) If a supply made under these terms and conditions is treated as not subject to GST but is, or becomes, a taxable supply, the supplier may charge and recover from the recipient, in addition to any other consideration, an amount equivalent to the GST payable on that taxable supply.
f) If, in relation to a taxable supply made under these terms and conditions, an adjustment event occurs that gives rise to an adjustment, then the price of that taxable supply (including any GST Amount) will be adjusted accordingly and where necessary, a payment will be made to reflect that adjustment. As a precondition to Australia Post paying any amount to a supplier in respect of an adjustment, the supplier must issue an adjustment note.
g) If any party is required to pay, reimburse or contribute to an amount paid or payable by another party in respect of an acquisition from a third party, the amount for payment, reimbursement or contribution will be the acquisition price paid by the acquiring party, less any input tax credit it is entitled to claim, plus any GST payable by the other party.
h) Any non-monetary consideration given under these terms and conditions is GST-inclusive (unless otherwise specified). The supplier must issue the recipient with a tax invoice within 28 days of the recipient giving any non-monetary consideration. If non-monetary consideration is given for a taxable supply under these terms and conditions and the GST-inclusive market value of that consideration is not clearly identifiable, the Parties must discuss and mutually agree on the GST-inclusive market value of that non-monetary consideration using GSTR 2001/6 as a guide.
8. Intellectual Property
8.1. Pre-existing Intellectual Property
The agreement in respect of these terms and conditions will not alter ownership of any pre-existing Intellectual Property and Australia Post will be the sole owner of all Intellectual Property in all matters, things or processes (including hardware and software) utilised by Australia Post in connection with the provision of the Services.
8.2. Modifications
a) Unless otherwise agreed by the Parties in writing, Intellectual Property developed or produced in connection with or as a result of the provision of the Services, will be the sole and unencumbered property of Australia Post.
b) The Principal must execute any assignment of other document and take all necessary actions as may be reasonably required to evidence or give effect to clause 8.2(a).
8.3. Warranties
a) The Principal warrants that it owns or is licensed to use (including to sub-licence) any Intellectual Property it provides to Australia Post under these terms and conditions and grants to Australia Post a perpetual, irrevocable, worldwide, non-exclusive, royalty-free licence to use such Intellectual Property for the purposes of these terms and conditions.
b) Each Party warrants to the other Party that it has all necessary rights and licenses to all Intellectual Property subsisting in any logo, mark, design, device, matter, thing or process (including hardware and software) supplied to the other Party under these terms and conditions.
9. Advertising and Promotion
9.1. Prior Consent
The Parties agree that, unless prior written consent is obtained from the other Party in respect of advertising and promotion of the Services, no such advertising or promotion will occur.
9.2. Approval
a) Subject to this clause 9, each Party must not include in its publicity or other material any description of or any reference whatsoever to the other Party by name or otherwise or to reproduce the other Party’s Trade Marks or service logo in any material without the other Party’s prior written consent.
b) Each Party must consider such publicity or other material expeditiously and must not unreasonably withhold its consent.
9.3. Internal Use of Information and Logos
Subject to clauses 12 and 15, clauses 9.1 and 9.2 will not prevent a Party from using any description of, or any reference to, the other Party or reproducing the other Party’s logo as reasonably required for a Party’s internal training and information purposes.
9.4. Lists of Participating Institutions
Notwithstanding any other clause of these terms and conditions, Australia Post may include the business or trading name of the Principal in any list or record established by Australia Post which identifies current customers of Australia Post’s services, irrespective of whether any such list or record is for internal Australia Post use or for external publication in any medium.
9.5. Use of Trade Marks, Internet Website Links
a) Subject to approval under clause 9.2, each Party grants to the other a non-exclusive, royalty free, revocable licence until the agreement in respect of these terms and conditions is terminated to allow the display of its nominated Trade Marks indicating a link to its website on the other Party's website and to allow a link:
i) from the Principal’s website to the Post Billpay page of the Australia Post website; and
ii) from the Australia Post website to the initial top-level display of the Principal's website,
only for the purpose of linking the Principal's and the Australia Post website and the promotion of Post Billpay.
b) Any use of a Party’s Trade Marks must be solely to promote the association of the other Party with Post Billpay and any use by a Party of the Trade Marks of the other Party must not:
i) mislead or deceive or cause confusion in trade or jeopardise the exclusiveness or distinctiveness of the Trade Marks or any business of the other Party whether or not in Australia;
ii) have an adverse effect on the goodwill in, or the value of, the Trade Marks;
iii) prejudice or be likely to prejudice the other Party’s rights in and to the Trade Marks including ownership of the Trade Marks;
iv) expose the other Party to any liabilities or potential liabilities under any provisions of any legislation or under the general law; or
v) damage the reputation of the other Party in any way.
c) The form and content of any display and use of a Party’s Trade Marks must be approved in writing by an authorised representative of that Party.
d) For approvals pursuant to clause 9.5.c), each Party must:
i) submit for approval a hardcopy of the layout of and content of the intended use of the other Party’s Trade Marks prior to display in any public forum, with such approval not be unreasonably withheld or delayed;
ii) comply with all reasonable requests and directions given by the other Party concerning the layout, location and appearance of that Party’s Trade Marks; and
iii) notify the other Party immediately of any significant changes in the control, content or structure of the website or other collateral relevant to the appearance of that Party’s Trade Marks.
e) The Principal acknowledges that the licence to use Australia Post’s Trade Marks does not constitute a representation of sponsorship or approval of the performance characteristics, accessories, uses or benefits of the Principal’s goods or services and the Principal must not use such Trade Marks in any way whatsoever that would suggest that it does.
9.6. Take down
Each party must promptly take down any advertising or promotional material referring to the other Party or including the other Party’s logos on the termination of the agreement in respect of these terms and conditions.
10. Exclusion of Warranties
a) Subject to clause 10(b), Australia Post excludes to the maximum extent permitted by Law, all guarantees, conditions and warranties, express or implied by Law, in respect of the Services.
b) If any guarantee, condition or warranty applies or is implied into the agreement in respect of these terms and conditions pursuant to any Law (including the Competition and Consumer Act 2010 (Cth) and the Australia Securities and Investments Commission Act 2001 (Cth)) and cannot be excluded under clause 10(a), then where permitted by Law, Australia Post’s liability for breach of the guarantee, condition or warranty will be limited (at Australia Post’s option) to either:
i) resupplying the Service; or
ii) paying the cost of resupplying the Service,
in respect of which the breach occurred and otherwise will be limited to the maximum extent permitted by Law.
11. Liability and Indemnity
11.1. Exclusion of Liability
Except as provided in clauses 10 and 11.2, Australia Post will not be liable to the Principal for any Loss whatsoever suffered or that may be suffered (including any Direct Loss or Indirect Loss) as a result of any act or omission by Australia Post, whether negligent or otherwise, in the performance of any duty, obligation or function under these terms and conditions or in any way arising out of its being party to the agreement in respect of these terms and conditions.
11.2. Reimbursement of Direct Loss
a) Subject to clause 11.2(b), Australia Post must reimburse the sum of any Direct Loss which the Principal suffers, but only when and to the extent that such Direct Loss has been finally established and ascertained by the Principal.
b) Australia Post's aggregate liability for Direct Loss in any Year will not exceed the amount of Fees received by Australia Post in the previous Year (or calculated pro-rata if the Agreement in respect of these terms and conditions is in its first Year) whether such liability arises in contract, tort (including negligence), misrepresentation, breach of statutory duty or otherwise.
11.3. No action for Breach of Trust
Australia Post’s obligation is to settle and remit to the Principal a sum of money equivalent to the sum or amount received as agent (after deducting any Fees), and not the precise funds received and no action for breach of trust will lie against Australia Post arising from the deposit or transfer of funds received pursuant to these terms and conditions by Australia Post into an account with any bank or other financial institution in which funds relating to transactions made other than pursuant to these terms and conditions are deposited, held or withdrawn by Australia Post.
11.4. Indemnity
a) Subject to clause 11.4(b), the Principal indemnifies Australia Post against any Loss (including by any other person) whether Direct Loss or Indirect Loss arising out of:
i) Australia Post being a party to the agreement in respect of these terms and conditions; or
ii) the fraud, negligence or breach of these terms and conditions by the Principal or a breach of any representation or warranty made by it under these terms and conditions.
b) The Principal is not obliged to indemnify Australia Post under clause 11.4(a) in respect of any Loss to the extent caused by the fraud, negligence or breach of these terms and conditions by Australia Post.
12. Confidentiality
a) Subject to clause 12(b), each Party must treat as confidential and must not disclose to any other person any Confidential Information of the other Party that comes into its possession pursuant to or as a result of the agreement in respect of these terms and conditions.
b) The obligation in clause 12(a) will not apply:
i) to any consultants, service providers or professional advisers to whom it is necessary to disclose the information for the purpose of performing that Party’s obligations or exercising its rights under these terms and conditions provided that the disclosing Party takes all reasonable steps to ensure that the person receiving the Confidential Information complies with obligations of confidence equivalent to this clause 12;
ii) where required by Law; or
iii) where the disclosing Party has provided its written consent.
13. Force Majeure
a) Neither Party will be liable to the other, nor be in default under these terms and conditions, for failure to observe or perform any obligation under these terms and conditions (other than an obligation to pay money) due to a Force Majeure Event.
b) The Party relying on clause 13(a) must:
i) promptly provide the other Party written notice, including reasons, for its inability to perform its obligations under these terms and conditions as a result of the Force Majeure Event; and
ii) use reasonable endeavours to remove such Force Majeure Event.
14. Termination and suspension
14.1. Termination for convenience
Either Party may terminate the agreement in respect of these terms and conditions for any reason whatsoever by giving the other Party 30 days’ notice.
14.2. Termination for default
a) Either Party may terminate the agreement in respect of these terms and conditions immediately if the other Party commits an Event of Default.
b) The terminating Party must serve a written notice on the other Party specifying the date of termination.
c) Termination under clause 14.2(a) will be without prejudice to any right, remedy or relief vested in or to which either Party may be entitled by reason of the Event of Default.
14.3. Continuing Obligations
a) Termination under this clause 14 will not relieve either Party of its duty to carry out their obligations in respect of Bills issued by the Principal prior to termination unless otherwise agreed in writing by the Parties.
b) In the event of termination of the agreement in respect of these terms and conditions, the Principal will not be entitled to any refund of Fees paid to Australia Post in respect of the Services.
14.4. Survival
Clauses 6, 7, 8, 9.6, 10, 11, 12, 15, 16 and 17.6 will survive the expiry or termination of the agreement in respect of these terms and conditions.
14.5. Suspension
Australia Post may immediately suspend the Services (or any part of them) if:
a) the Principal is in breach of its obligations under or arising out of these terms and conditions;
b) Australia Post suspects:
i) any fraud or misconduct by the Principal or a Customer; or
ii) the Principal or a Customer has or is subject to fraudulent activity or misconduct, with or without their knowledge;
c) there is a material change in the nature of the Principal’s business or the goods and services it provides to Customers; or
d) Australia Post’s determines, in its absolute discretion, that processing of Transactions exposes Australia Post to an unacceptable level of risk, whether financial or otherwise.
15. Privacy
Each Party must:
a) comply with the Privacy Act, including in respect of the collection, security, use and disclosure of Personal Information provided under or in connection with these terms and conditions;
b) co-operate with reasonable demands or inquiries made by the Privacy Commissioner;
c) comply insofar as is practicable, and in a manner consistent with, any policy guidelines issued by the Privacy Commissioner from time to time;
d) take all reasonable measures to ensure that:
i) Personal Information provided under or in connection with these terms and conditions is protected against loss and against unauthorised access, use, modification, disclosure or other misuse; and
ii) only authorised personnel have access to Personal Information provided under or in connection with these terms and conditions;
e) not transfer Personal Information provided under or in connection with these terms and conditions outside Australia or allow any person outside Australia to have access to it unless such Personal Information transferred overseas is handled in accordance with the Privacy Act;
f) immediately notify the other Party when it becomes aware of any breach of this clause 15 and provide reasonable assistance to the other Party to make an assessment whether it is required to make a notification under section 26WK of the Privacy Act; and
g) take all reasonable steps to ensure that Personal Information provided under or in connection with these terms and conditions is accurately recorded.
16. Dispute Resolution
16.1. Scope
a) Subject to clause 16.1(b), any dispute arising out of, or relating to, these terms and conditions (Dispute) must be dealt with in accordance with this clause 16.
b) Nothing in these terms and conditions prevents a party seeking an injunction or other interlocutory relief at any time.
16.2. Process for Resolution
In respect of a Dispute:
a) a Party must give a written notice to the other Party specifying the nature of the Dispute as soon as practicable; and
b) the Parties must use all reasonable endeavours to resolve any Dispute as quickly as possible, by referring the Dispute:
i) initially, to the Parties’ respective representatives, who will endeavour to resolve the Dispute within 10 Business Days of the giving of the notice; and
ii) then, escalate the Dispute to the appropriate level of management of the Parties, who will endeavour to resolve the Dispute within a further 10 Business Days or such other period as is agreed by the Parties.
16.3. Litigation
Following the process in clause 16.2, either party may initiate any form of litigation.
16.4. Continued Performance
Subject to clause 14.5, until a Dispute is resolved, the Parties must continue to perform their obligations under these terms and conditions until this Agreement has been terminated.
17. General
17.1. Notices
a) Notices served under or in connection with these terms and conditions must:
i) be in writing;
ii) either be delivered:
(A) by hand or by Registered Post; or
(B) by email; and
iii) unless otherwise notified to the other Party, if delivered to the Principal to the address provided in the Online Portal and if to Australia Post, as follows:
Australia Post
Attention: Post Billpay Customer Care
Address: 111 Bourke Street Melbourne VIC 3000
Email: postbillpaycustomercare@auspost.com.au
b) A notice will be deemed to be received:
i) in the case of hand delivery or Registered Post, upon written acknowledgment of receipt by an authorised employee, agent or representative of the receiving Party; and
ii) in the case of email, upon completion of a successful transmission as evidenced by the sender’s transmission report.
c) If a notice is received after 5 p.m. it will be deemed to be received on the following day or Business Day (as applicable).
17.2. Entire Agreement
Other than terms expressly incorporated into these terms and conditions, these terms and conditions contains the entire agreement of the Parties in respect of the Services and any agreements, understandings, negotiations or representations or warranties made by either Party prior to the entering into the agreement in respect of these terms and conditions will have no force or effect unless otherwise stated in this Agreement.
17.3. Variation
a) Subject to clauses 17.3(b) to 17.3(e), Australia Post may vary these terms and conditions or the Operational Document (PDF 280kB).
b) Australia Post must give the Principal a written notice specifying the variations to these terms and conditions or the Operational Document (PDF 280kB) and the date that they will take effect (Variation Notice).
c) Australia Post must provide the Variation Notice to the Principal at least 30 days before the date on which the variations are intended to take effect.
d) If the Principal does not agree to the variations in the Variation Notice, the Principal may terminate the agreement between the Parties in respect of these terms and conditions by giving no less than 7 days’ notice (before the date on which the variations are intended to take effect) to Australia Post.
e) If Australia Post does not receive a notice from the Principal under clause 17.3(d) or the Principal continue to use the Services, the principal will be deemed to have accepted the variations in the Variation Notice.
17.4. Assignment and Transfer
The agreement in respect of these terms and conditions may not be assigned, novated or otherwise transferred by the Principal without the written consent of Australia Post, and any change of ownership or change in the structure or control (as defined in the Corporations Act) of the Principal will be deemed to be an assignment.
17.5. Waiver
Waiver of any provision of, or right under, these terms and conditions must be in writing signed by the Party entitled to the benefit of that provision or right, and is effective only to the extent set out in the written waiver.
17.6. Governing Law and Jurisdiction
The agreement in respect of these terms and conditions is governed by, and will be construed in accordance with, the law in force in Victoria from time to time and the courts and registries of courts in Victoria will have jurisdiction in the event of any dispute.
17.7. Severance
Any part of these terms and conditions that is illegal or unenforceable may be severed from these terms and conditions and the remaining parts of these terms and conditions continue in force.
17.8. Remedies Cumulative
The rights, powers and remedies provided to either Party in these terms and conditions are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or by any agreement.
17.9. Inconsistency
If there is an inconsistency between these terms and conditions, the Operational Document (PDF 280kB) and any other terms incorporated into these terms and conditions, they will be interpreted in the following order of precedence:
a) these terms and conditions;
b) the Operational Document (PDF 280kB); and
c) any other terms incorporated into these terms and conditions.
17.10. Electronic Transactions
a) Australia Post may communicate with the Principal electronically in relation to these terms and conditions, and may administer these terms and conditions with the Principal using an electronic contract system.
b) Where electronic communication or an electronic contracting system is used in relation to these terms and conditions:
i) a document in electronic form in the e-Contracting System has the same effect as a written document, and is considered to be “in writing”;
ii) information provided electronically via the email or e-Contracting System has the same effect as if that information was in written form, and is considered to be “in writing”;
iii) the Parties consent to these terms and conditions being in electronic form;
iv) the Principal may enter into these terms and conditions in an electronic execution method nominated by Australia Post; and
v) the Principal must not dispute the authenticity, receipt or binding nature of a document or information provided electronically on the grounds that the document or information was provided or entered into electronically.
