Version 1.2 – Last Update 03/10/2018

Thanks for using our products and services (“Services”). The Services are provided by NumeroPro Pty Ltd ATF The Kidsoft Unit Trust ABN 17 349 353 404 of PO Box 1298, Broadbeach QLD 4218. By using our Services, you agree to these terms. Please read the terms carefully. Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. Acceptance legally binds you, your third part contractors and all of your employees to the conditions of the license.  Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.

1. Definitions and Interpretation

Unless the context otherwise requires:

NumeroPro means NumeroPro Pty Ltd ATF The Kidsoft Unit Trust ABN 17 349 353 404 of PO Box 1298, Broadbeach QLD 4218.

Account means NumeroPro’s account held by an ADI for the purpose of processing BPAY Payments.

ADI has the same meaning as in the Banking Act 1959.

Adjustment means a transaction processed through BPAY Payments to reverse a previous Payment. Banking Business Day means any day on which banks in Melbourne or Sydney can affect settlement through the Reserve Bank of Australia.

Bank means commercial partners being Commonwealth Bank, ANZ, Westpac, St George, Bank SA and National Australia Bank.

BPAY means BPAY Pty Limited ABN 69 079 137 518. BPAY Payments means the electronic payments service promoted by BPAY and any other enhancement of or addition introduced by BPAY from time to time.

BPAY Scheme means

1. (a) BPAY Payments;
2. (b) BPAY View; and
3. (c) any other enhancement of or addition to (a) or (b) above from time to time introduced by BPAY.

BPAY View means the service promoted by BPAY, which allows Payers to view Bills electronically.

Business Day means any day other than a Saturday, Sunday or public holiday in Brisbane, Queensland.

Customer means each user of the Software who makes BPAY Payments.

GST means the tax payable on taxable supplies as defined by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related legislation.

Institution means any ADI from time to time.

Intellectual Property Rights means all intellectual property rights in relation to the Software, including (without limitation) any:

1. (a) copyright;
2. (b) trade marks;
3. (c) Confidential Information; or
4. (d) license or other right or future right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them;

Marks means the trade and service mark owned by BPAY from time to time and set out in the Standards Manual.

Master Biller means NumeroPro.

Payer means a person who uses BPAY Payments to make a Payment.

Payer Customer means a payer who makes a Payment to the Customer.

Payer Direction means a direction from a Payer to their Payer Institution to affect a Payment through BPAY Payments, by or crediting an account or facility held by the Payer with that Payer Institution.

Payer Institution means a financial institution participating in the BPAY Scheme with whom a Payer has an account facility from which payments can be made and who receives a Payer Direction from that Payer.

Payment means a payment made, or to be made, by or on behalf of a Payer through BPAY Payments.

Payment Cut-Off Time means, with respect to a Payer and its Payer Institution, the time on a Banking Business Day set from time to time by that Payer Institution as the time by which that Payer Institution must receive a Payer Direction for it to be processed by it on that day.

Payment Methods means the methods of payment accepted by the Institution, which may be used by a Payer Customer to make a Payment through BPAY Payments.

Program means the Kidsoft Software, the child care management system.

Services means the systems, information technology, works, project, tasks, and assistance we provide to you as specified in the Terms and Conditions;

Settlement Date means the date being in the case of a Payer Direction given by a Payer to its Payer Institution:

1. (a) before its applicable Payment Cut-Off Time on a Banking Business Day, that day; or
2. (b) after its applicable Payment Cut-Off Time on a Banking Business Day, or on a non-Banking Business Day, the next Banking Business Day.

Software means the “Kidsoft” software licensed to the Business, which includes the “iDebitPro”, “iCheck-In”, “iEnrol”, and “iParentPortal” software.

Standards Manual means the BPAY Identity Standards Manual issued by BPAY prescribing the way in which the Marks may be represented and provided to the Customer with this Agreement (as may be amended from time to time). In this Agreement, headings are inserted for convenience only and do not affect interpretation, and unless the context otherwise requires references to a person include companies and government bodies; words importing the singular include the plural and vice versa; and words importing a gender include other genders.

Documentation

The Terms and Conditions extend to any documentation accompanying the Program (“Documentation”). Any Documentation may not be copied, modified or used in any way not contemplated or expressly authorised by this Terms and Conditions. Words importing the singular include the plural. References to persons include references to bodies corporate and unincorporated bodies.

2. Services

Accepting the Terms

1. a) You can accept the Terms by clicking to “accept” or “agree to the Terms,” where NumeroPro in the user interface makes this option available to you for any Service. In this case, you understand and agree that NumeroPro will treat your use of the Services as acceptance of the Terms from that point onwards. By clicking to “accept” or “agree to the terms” of the Terms and Conditions, Customer accepts the services (enumerated below) and agrees to abide by the terms and conditions set forth herein, which constitutes Customer’s acceptance and full agreement to the following Terms and Conditions.
2. b) This Agreement is entered into between NumeroPro, and the entity identified via online registration (“Customer”). NumeroPro and Customer are collectively referred to as the “Parties,” or when used individually, a “Party.”
3. c) This Agreement shall be effective as of the date on which the Customer is authenticated to receive Services (“Effective Date”), and it supersedes any and all prior Agreement(s) between the NumeroPro and the Customer relating to a product recall portal.
4. d) To use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.

You may not use the Services and may not accept the Terms if;

1. i. you are not of legal age to form a binding contract with NumeroPro, or
2. ii. you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

3. Provision of the Services by NumeroPro

1. a) NumeroPro has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you;
2. b) NumeroPro is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services, which NumeroPro provides, may change from time to time without prior notice to you.
3. c) As part of this continuing innovation, you acknowledge and agree that NumeroPro may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at NumeroPro sole discretion, without prior notice to you.
4. d) You acknowledge and agree that if NumeroPro disables access to your account, you will be prevented from accessing the Services, your account details or any files or other content, which is contained in your account.
5. e) NumeroPro is not liable for any telephone or other costs that you may incur to connect to or use the Applications.

4. Use Of The Services By You

1. a) In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to NumeroPro will always be accurate, correct and up to date.
2. b) You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from Australia or other relevant countries).
3. c) You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by NumeroPro, unless you have been specifically allowed to do so in a separate agreement with NumeroPro. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
4. d) You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks, which are connected to the Services).
5. e) Unless you have been expressly permitted to do so in a separate agreement with NumeroPro, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
6. f) You agree that you are solely responsible for (and that NumeroPro has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which NumeroPro may suffer) of any such breach.

5. Your Passwords and Account Security

1. a) You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
2. b) Accordingly, you agree that you will be solely accountable to NumeroPro for all activities that occur under your account.
3. c) If you become aware of any unauthorised use of your password or of your account, you agree to notify NumeroPro immediately via helpdesk@kidsoft.com.au

6. Privacy and your Personal Information

For information about NumeroPro’s data protection practices, please read NumeroPro’s Privacy Policy at https://app.kidsoft.com.au/terms/PrivacyPolicy.pdf this policy explains how NumeroPro treats your personal information, and protects your privacy, when you use the Services. You agree to the use of your data in accordance with NumeroPro’s Privacy Policies.

7. Software Updates

The Software, which you use, may automatically download and install updates from time to time from NumeroPro. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit NumeroPro to deliver these to you) as part of your use of the Services. NumeroPro shall use reasonable endeavours to ensure that the Services and the Client Content are available to Licensed Users via the Internet on a 24 hour, 7 day a week basis. NumeroPro shall respond to unplanned outages within 2 (two) hours during Business Hours and within 5 (five) hours from notification outside Business Hours.

8. Cancellation and Termination

1. a) Kidsoft:

When you sign up for the Kidsoft Service You can evaluate Kidsoft with no obligation to continue. If you choose to continue using Kidsoft you will be billed from the day you provide your billing details. If you decide not to continue, you may terminate these Terms by sending an email to helpdesk@kidsoft.com.au. If you cancel the Service before the end of your current month, your cancellation will take effect immediately and you will be billed for the entire month. Data will be archived in Kidsoft giving lifetime access to the approved user for $300 ex GST. Contact helpdesk@kidsoft.com.au for more information.

9. License from NumeroPro

1. a) NumeroPro gives you a personal, worldwide, royalty-free, and non-assignable and non-exclusive limited license, during the term of this Agreement, to use the software provided to you by NumeroPro, as part of the Services as provided to you by NumeroPro, referred to as the “Software”. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by NumeroPro, in the manner permitted by the Terms. NumeroPro will be entitled to assign its rights and obligations under this Agreement without Your consent subject to procuring a deed under which the assignee covenants to be bound by the terms of this Agreement.
2. b) You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by NumeroPro, in writing.
3. c) Unless NumeroPro has given you explicit written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.

10. Proprietary Rights

1. a) You acknowledge and agree that NumeroPro (or NumeroPro’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by NumeroPro and that you shall not disclose such information without NumeroPro’s prior written consent.
2. b) Unless you have agreed otherwise in writing with NumeroPro, nothing in the Terms gives you a right to use any of NumeroPro’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
3. c) You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices), which may be affixed to or contained within the Services.
4. d) Unless you have been expressly authorised to do so in writing by NumeroPro, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.

11. Mutual Responsibilities

1. a) Our Warranties

We warrant that we will carry out all Services in a workmanlike manner and in accordance with the descriptions in the Terms and Conditions.

1. b) Your Responsibilities

You agree that, unless the Terms and Conditions require otherwise:

1. 1. i. you will obtain, procure and give any access, facilities, information, cooperation, permits, authorities, notices and licences (whether or not required by law) which we determine are reasonably needed to carry out this Terms and Conditions;
   2. ii. in respect of any particular, you will not make any claim against us for breach of our warranties stated above later than two weeks after we have supplied the relevant Services to you; and
   3. iii. you will not assign or sublicense your rights or obligations under this Terms and Conditions without our consent. We will not unreasonably withhold such consent.
   4. iv. your equipment must be compatible with, and not interfere with, our service, and must comply with all applicable laws, rules, and regulations.

1. 1. c) Mutual Commitments

Each of us agrees:

1. 1. i. to endeavour to safeguard such of the other’s confidential information (of which it is in possession) no less carefully than it safeguards its own confidential information;
   2. ii. that rights under this Terms and Conditions are not exclusive;
   3. iii. that neither of us is liable for breach or other failure due to circumstances beyond its reasonable control; and
   4. iv. neither of us will institute any proceedings against the other more than one year after either the cause of action arose, or the performance of Services (whichever is the earlier).

1. 1. d) Acceptable Use of Services In accepting the Services from us, you warrant that you will:

1. 1. i. only use the Services that you are legally entitled to use and that your use of the Services will not be a breach of copyright.
   2. ii. you will not reproduce, distribute, transmit, publish, copy, transfer or commercial exploit any information accessed through or received from the Services that would be an infringement of any copyright, patent, trade mark, design or other intellectual property right.
   3. iii. not access, nor commit any other party to access, the Services for any purpose or activity of an illegal, fraudulent or defamatory nature.
   4. iv. You acknowledge that we do not and cannot in any way supervise, edit or control the content and form of any information or data accessed through your use of the Services and we shall not be held responsible in any way for any content or information accessed through the Services.
   5. v. We disclaim all or any liability for any material on the Internet you find offensive, upsetting, defamatory, and personally offensive and in any way unsuitable for people under the age of 18.

12. Advertisers and Third Parties

Third Party services and products either linked to this website; and/or advertised on this website are the responsibility of the third party and their inclusion on this website does not imply endorsement by NumeroPro Pty Ltd. NumeroPro Pty Ltd is not responsible for the content of Third Party websites or advertisements and does not make any representations regarding the content or accuracy of materials on such Third Party websites or advertisements. NumeroPro Pty Ltd will not be liable for any damages or loss arising in any way out of or in connection with any information or third party service provided.

13. Fees and Charges

1. 1. a) The Kidsoft and iDebitPro Services are made available on a pay-as-you-go basis. Subject to any contrary intention in the Terms and Conditions, you agree to pay our invoices by Direct Debit through our chosen Payment Gateway. Invoices will be made available to you (you will be notified by email). You are responsible for payment of all taxes, levies, and duties in addition to the Subscription Fee. There are no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. To treat everyone equally, no exceptions will be made. Expenses incurred by Customer associated with the installation, implementation, termination and receipt of the Services shall be the responsibility of the Customer. Prices of all Services, including but not limited to monthly fees to the Service, are subject to change upon 30 days notice from NumeroPro Pty Ltd, given by email or posted on the Website or the Kidsoft Information Channel.
   2. b) Customers who do not provide NumeroPro all relevant details to enable Direct Debit payment of their monthly accounts will incur a Manual Handling Fee of $25.00 ex GST per month, per invoice.
   3. c) A late fee of $25.00 ex GST per month per invoice will be charged if payment is made past the invoice date.

14. Taxes

You agree to pay any taxes and duties levied by any authority on, or in connection with, this Terms and Conditions (other than income taxes payable by us). This includes payment of the amount of GST according to the following principles: where we are liable (whether directly or via a GST group of which we are a member) to pay GST on any amount received from you relating to this Terms and Conditions, you shall, following receipt of a tax invoice from us, at the same time reimburse us the amount of GST. Terms used in the last sentence have the meanings defined in the GST Law as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 or any Act substituted for, validating or otherwise replacing that Act.

15. Limitations of Terms and Liability

Subject to overall provision in this agreement, you expressly understand and agree that NumeroPro, NumeroPro its subsidiaries and affiliates, and its licensors shall 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 shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss; As a result of:

1. 1. a) Any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a consequence of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the services;
   2. b) Any changes which NumeroPro may make to the services, or for any permanent or temporary cessation in the provision of the services (or any features within the services);
   3. c) The deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the services;
   4. d) Your failure to provide NumeroPro with accurate account information;
   5. e) Your failure to keep your password or account details secure and confidential;
   6. f) The limitations on NumeroPro’s liability to you in above paragraph shall apply whether or not NumeroPro has been advised of or should have been aware of the possibility of any such losses arising.

16. Statutory Liability

Nothing in this Terms and Conditions purports to exclude, restrict or modify any condition, warranty, right or remedy which we must, by any applicable law, observe in your favor, and which we cannot, by contract, exclude, restrict or modify. To the extent such applicable law permits us to limit our liability in respect of such condition, warranty, right or remedy, we do so, including, in the case of Services supplied pursuant to this Terms and Conditions, the payment of the cost of having the Services performed again.

17. Indemnity

You agree that you are solely liable for the use you make of the results of our Services. You agree to indemnify us from any loss, cost, expense, demand or liability we suffer because of any claim which would not have been made against us had we not entered into this Terms and Conditions (other than to the extent our breach of this Terms and Conditions or negligence contributed to the claim).

18. Force Majeure

Neither Party shall be liable to the other Party (other than Customer’s obligation to pay Fees for Services already provided under this Agreement to Customer) for any default, delay or hindrance in the performance of any of its obligations under this Agreement to the extent such default, delay or hindrance is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, riots, terrorism, revolutions in any country, strikes or labour difficulties or any other similar cause beyond its reasonable control (each a “Force Majeure Event”). In the event of a Force Majeure Event, the parties shall be excused from further performance of the obligation(s) for as long as such Force Majeure Event prevails and the parties continue to use commercially reasonable efforts to recommence performance to the extent possible. If either party is so prevented, hindered or delayed in its performance, the nonperforming party shall immediately notify the other party.

19. Changes/Variations

NumeroPro may vary the terms of these Terms and Conditions at any time by giving it to you in person, sending it to you by mail or to your email address, making the information available on our websites. Such variations will only affect agreements entered into by you and us after the date of our notice.

20. Governing law

The laws of the state of Queensland govern this Terms and Conditions and you and we submit to the nonexclusive jurisdiction of the courts of that state.

21. Disputes

Before resorting to litigation to resolve any dispute between us, we agree to allow a period of 14 days to elapse and, within that 14-day period, to hold good faith negotiations with a view to endeavouring to resolve that dispute.

22. Direct Debit Service

1. Agreement

1. 1. a) You acknowledge that NumeroPro does not act as a 3rd party Direct Debit Agent for the Business and that NumeroPro has no express or implied liability in regards to the direct debit transactions between the company and the Bank.
   2. b) You acknowledge that there may be a delay in processing if:-
   3. i. there is a public or bank holiday on the day, or any day after the debit date;
   4. ii. a payment request is received by either the Bank on a day that is not a banking business day in Queensland; and
   5. iii. a payment request is received after normal Bank cut off times, being 4:00 pm Queensland time, Monday to Friday. Any payments that fall due on any of the above will be processed on the next business day.

1. 1. c) You acknowledge that you will contact the Business if you wish to alter or defer any of the debit arrangements.
   2. d) You acknowledge that any disputed debit payments will be directed to the Bank Consultants, whichever is appropriate.
   3. e) You acknowledge that if a debit is returned by my/our financial institution as unpaid, a failed payment fee is payable. You will also be responsible for any fees and charges applied by my financial institution and collection fees, including and not limited to any solicitor fees and collection agent fees appointed by NumeroPro.
   4. f) You acknowledge that if specified by the Business, a setup, variation, SMS or processing fees may apply as instructed by the Business.

This agreement sets out the terms and conditions under which:

1. 1. a) the Master Biller agrees to act on behalf of the Customer to facilitate the receipt of BPAY Payments by the Customer; and
   2. b) the Customer agrees to accept BPAY Payments through the MB Biller Code.

2. Authorisation

2.1. The Customer agrees to receive payments through BPAY Payments made using the Payment Methods.

2.2. The Customer authorises the Institution, and directs the Master Biller to authorise the Institution:

1. 1. a) to accept Payments for the Customer made using the Payment Methods; and
   2. b) to credit and debit to the Account all amounts contemplated under this agreement.

2.3. Without limiting clause 2.2 in any way, the Customer authorises the Institution to make debits and credits to the Account as and when necessary to effect Payments and Adjustments made using the Payment Methods, and whether that Payment or the original transaction to which that adjustment relates occurred before, on or after the date of this agreement.

2.4. The Customer agrees to do all acts, including without limitation executing any documents and other instruments, and give any consents, necessary to give effect to the authorisations in clauses 2.2 and 2.3.

2.5. The Customer may not give the Institution any instruction or direction, whether concerning the operation of an Account or otherwise, which is inconsistent with any authorisation or other provision of this agreement, and the Institution is entitled to disregard any such inconsistent instruction or direction.

2.6. The Customer acknowledges for the benefit of the Master Biller and the Payer Customers of the Customer that a Payment or Adjustment made to the Institution in its capacity as representative of the Master Biller will be treated as having been received by the Customer on the Settlement Date for that payment, whether or not it is in fact received by the Customer on that day.

2.7. The Master Biller will pass on to the Customer any information about Payments or Adjustments relating to the Customer which is received by the Master Biller from the Institution within 24 hours of receipt of that information by the Master Biller.

2.8. This agreement does not confer any rights or obligations on any party with respect to BPAY View. If a sub-biller wants to participate in BPAY View, it may only do so with the prior written agreement of the Master Biller on such conditions as the Master Biller and the sub-biller may agree.

3. Obligations of the Master Biller

The Master Biller must:

1. 1. a) comply with its obligations under BPAY Payments as a Master Biller;
   2. b) perform its obligations under BPAY Payments in relation to the Customer and this agreement with reasonable skill and care; and
   3. c) use reasonable efforts to ensure that the Institution complies with its obligations in respect of Payments to the Customer.

4. Obligations of the Customer

4.1. The Customer must:

1. 1. a) correctly and promptly credit or debit as the case may be the amounts of each Payment received by the Customer to the Customer’s accounting record applicable to the Payer Customer, as identified in the information provided to the Customer by the Master Biller;
   2. b) promptly notify the Master Biller if it is unable to apply Payment to its Payer Customers for any reason;
   3. c) establish and maintain a fair policy for correction of errors and exchange and return of goods and services if a dispute arises in respect of a Payment;
   4. d) receive Payments for its own benefit and to its own accounts, not on behalf of third parties; and
   5. e) report to the Master Biller any fraud or suspected fraud involving the Customer or any of its Payer Customers.

4.2. The Customer consents, and agrees to ensure that its Payer Customers consent, to each information exchange necessary to allow:

1. 1. a) the Institution and other participants in the BPAY Scheme to accept and process Payments from the Payer Customers of the Customer;
   2. b) the information exchanges contemplated by this agreement to occur; and
   3. c) the Master Biller to comply with its obligations and exercise its rights under this agreement.

5. Customer Acknowledgement

5.1. The Customer acknowledges that a delay of any duration might occur and no rights arise as a result of a delay in the processing of Payment Instructions where:

1. 1. a) there is a public or bank holiday on the day or on the day after a Payer gives a Payer Direction;
   2. b) a Payer Direction is received either on a day which is not a Banking Business Day or after the Payment Cut-off Time on a Banking Business Day. These Payer Directions will ordinarily be processed by the Payer Institution on the next Banking Business Day;
   3. c) another financial institution participating in BPAY Payments does not comply with its obligations under the BPAY Scheme; or
   4. d) the Customer fails to comply or is suspected on reasonable grounds of failing to meet its obligations under this agreement, or is suspected on reasonable grounds of being involved in fraud, and payments to the Customer are suspended pending resolution of the issue.

5.2. The Customer acknowledges and accepts that its ability to receive Payments through BPAY Payments may be suspended or terminated, without prior notice to the Customer, if the participation of the Master Biller or the Institution in BPAY Payments is suspended or terminated.

5.3. If for any reason beyond the Institution’s or Master Biller’s control a Payer Customer effects a payment to the Customer through BPAY Payments by which that Payer Customer’s Payer Institution receives value, but an equivalent value is not received by the Institution, the Institution is not liable to the Customer for that value not being credited to its Account, or if already credited, being debited to the Account by way of an Adjustment.

6. Promotions and Advertising

6.1. The Master Biller is entitled to sub-license use of the Marks and grants the Customer a sublicense to use the Marks including the BPAY logo and name in the manner specified in this agreement and the Standards Manual for the purposes of advertising its participation in and promotion of BPAY Payments to Payers and for no other purpose. The sub-licence granted pursuant to this clause terminates immediately on termination or expiry of the Master Biller’s right to sub-licence use of the Marks or on termination or expiry of this agreement.

6.2. The Customer acknowledges that BPAY owns the Marks and agrees:

1. 1. a) not to contest or in any way impair any rights of BPAY to the Marks; and
   2. b) at any time at the request of the Master Biller or Institution to include a statement on any packaging, promotional or advertising materials used in connection with BPAY Payments, including any in electronic form, that the Marks are being used by the Customer under the control of and with the authorisation of BPAY and acknowledging ownership of BPAY of the Marks.

6.3. Any use of the Marks by the Customer which is not in compliance with the requirements of this agreement or the Standards Manual and which is not promptly discontinued following written notice from the Master Biller to discontinue such use will be regarded as adequate ground for termination of this agreement.

6.4. The Customer is not entitled to license or assign the right to use any of the Marks whether by sale, consolidation, merger, amalgamation, operation of law or otherwise.

6.5. The Customer must use the appropriate denotation or legend of trademark registration or ownership in connection with the Marks, as required or consented to by the Master Biller.

6.6. If the Customer desires to use a denotation or legend of trademark registration or ownership in connection with any mark (other than the Marks), but used in association with or on the same printed matter as the Marks, it may do so provided that:

1. 1. a) such use will not adversely affect the rights of BPAY in the Marks;
   2. b) the specification for such use is notified in writing to the Master Biller, and the Master Biller gives its written approval to that specification prior to such use.

6.7. The Customer must not use the Marks in such a way as to create an impression that the goods or services offered by the Customer are sponsored, produced, offered or sold by the owner of the Marks. The Customer must not adopt “BPAY” or any other mark as any part of the name of its business or apply it to any goods or services offered for sale.

6.8. The Customer must immediately on becoming aware of any infringement or potential infringement of the Marks notify the Master Biller.

6.9. If any claim is asserted or legal proceedings commenced against the Customer for alleged violation of any rights held by a third party by reason of the use of the Marks, then the Customer must when it becomes aware of that claim or legal proceedings:

1. 1. a) provide prompt written notice of such claim or proceedings to the Master Biller; and
   2. b) keep the Master Biller informed of all developments in respect of the claim or proceedings.

6.10. The Customer undertakes to:

1. 1. a) inform its Payer Customers, in a manner which is not misleading, how they may use BPAY Payments (including giving them the MB Biller Code);
   2. b) use only literature or promotional materials provided or approved by the Master Biller for the above purposes and in accordance with the Standards Manual; and
   3. c) print the BPAY logo and the MB Biller Code on its customer invoices, until such time as this agreement is terminated.

6.11. The Customer agrees to give the Master Biller access to the literature and materials referred to in clause 6.10 upon receiving reasonable notice from the Institution of its desire to have such access from time to time.

6.12. The Customer consents to the use of its name and main trading logo in lists and in promotional material by BPAY, the Master Biller, Payer Institutions and the Institution.

7. Customer Representations and Warranties

7.1. The Customer represents and warrants to the Master Biller and the Institution that:

1. 1. a) it has all necessary power and authority to enter into this Agreement and to perform its obligations under it;
   2. b) it will comply with all laws or industry codes applicable to the Customer in its exercise of its rights and performance of its obligations under this Agreement; and
   3. c) all information provided at any time by the Customer to the Master Biller as contemplated by this Agreement is true and accurate at the time it is provided. The Customer agrees to provide updated or corrected information to the Master Biller if any of the information submitted by the Customer to the Master Biller at any time as contemplated by this agreement is no longer true and accurate.

8. Termination

8.1. This agreement terminates automatically if the Master Biller Agreement between the Master Biller and the Institution is terminated and as at that date the Master Biller has not entered into a Master Biller Agreement with another financial institution.

23. Credit Card Payments

1. 1. a) I/We acknowledge and agree that NumeroPro will not be held liable for any disputed transactions resulting in the non-supply of goods and services and that all disputes will be directed to the Bank as NumeroPro does not act as a 3rd party payment provider. I/We acknowledge and agree that in the event that a claim is made, NumeroPro will not be liable for the refund of any funds and agree to reimburse NumeroPro for any successful claims made by the Card Holder through their financial institution against NumeroPro.
   2. b) NumeroPro will keep your information about your nominated account at the financial institution private and confidential unless this information is required to investigate a claim made in it relating to an alleged incorrect or wrongful debit, or otherwise required by law. You understand that the Bank holds all credit card information as a compliant PCI member. You acknowledge that the Business and the Business client’s financial information is not held by NumeroPro or any of its associated products. The Bank holds all financial information under PCI* level 1 condition
   3. c) *Visa and MasterCard have developed the Payment Card Industry Data Security Standard or ‘PCI DSS’ as a means of managing risk of external and internal data compromises. This is a set of industry-wide requirements and processes, supported by every major international payment card system through the PCI Security Standards Council or ‘PCI Council’. The PCI DSS has 12 basic requirements that focus on using secure systems. The standards include installing a firewall, changing default passwords, protecting stored data, using antivirus software and encrypting transmissions of cardholder data across public networks.

24. SMS Service

1. 1. a) NumeroPro provides an SMS service that sends messages to mobile phones using established carriers and aggregation companies. The provision of the SMS service is subject to the following Terms of Service.
   2. b) You acknowledge that NumeroPro delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the 12 technical constraints imposed by the above mentioned providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by his subscribed mobile network provider. You acknowledge that, depending on the recipient’s mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully. NumeroPro neither claims nor guarantees either availability or performance of this service. While NumeroPro makes every effort to deliver the message promptly, NumeroPro accepts no liability for transmission delays or message failures.
   3. c) NumeroPro debits transmitted SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if NumeroPro ‘s investigations have produced evidence of technical problem or error. Because NumeroPro cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, NumeroPro will not refund undeliverable SMS messages to you. You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you.
   4. d) The SMS services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian Federal, State or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights. NumeroPro will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, NumeroPro will not use your customer information for the purpose of sending unsolicited commercial messages.
   5. e) You will comply with Anti-Spam and Privacy legislation and guidelines, applicable to the jurisdictions in which messages are sent and received.
   6. f) You may not use NumeroPro to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.
   7. g) You may not use NumeroPro to send message campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that NumeroPro deem inappropriate.
   8. h) You represent, covenant, and warrant that you will use the SMS services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party. You hereby agree to indemnify and hold harmless NumeroPro against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although NumeroPro has no obligation to monitor the content provided by you or your use of the SMS services, NumeroPro may do so and may remove any such content or prohibit any use of the SMS services it believes may be (or is alleged to be) in violation of the foregoing.
   9. i) The SMS services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the SMS services are not available to individuals under the age of 18. If you do not qualify, please do not use the SMS services. NumeroPro allows you to send an unlimited number of SMS messages provided your account has enough credit.
   10. j) Concatenated SMS messages are charged in line with standard industry policy. The total character data transfer of each message can be no more than 621 characters.
   11. k) All message delivery prices are subject to change at any time. You are responsible for reviewing the price schedule from time to time and remaining aware of the prices charged by NumeroPro. NumeroPro will immediately advise you of price changes on the Kidsoft News Channel or in the Terms and conditions. Any objections must be raised within 7 days for special consideration. Payment in advance for Services can be made by a valid credit card accepted by NumeroPro, unless other payment arrangements have been made between you and an authorised NumeroPro representative.
   12. l) If NumeroPro is for any reason unable to effect automatic payment via your credit card, you will be notified via email. All payments made to NumeroPro are non-refundable, unless NumeroPro terminates an account for a reason other than violation of the Anti-Spam Policy.
   13. m) You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the SMS services in your name. NumeroPro reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

25. Warranty

The Customer acknowledges that the Program cannot be guaranteed to be error-free, and further acknowledges that the existence of any such errors will not constitute a breach of this Terms and Conditions The Customer agrees that except as expressly provided to the contrary in this Terms and Conditions, NumeroPro shall not be liable for any loss of profits, loss of goodwill or special, indirect or consequential damages for circumstances relevant to this Terms and Conditions, including for breach of this Terms and Conditions, for any supply of a defective Program or for negligence on matters connected with this Terms and Conditions. The Customer acknowledges that it has exercised its independent judgment in acquiring the Services and has not relied on any representation made by NumeroPro not been stated expressly in this Terms and Conditions, or upon any descriptions or illustrations or specifications contained in any document, including catalogues or publicity material produced by NumeroPro.

26. Copyright

The Customer acknowledges that the Program and Documentation is the subject of copyright. The Customer will not, during or any time after the expiry or termination of this Terms and Conditions do or permit any act to be done which infringes the copyright in the Program and/or Documentation and, without limiting the generality of its obligations, the Customer will not copy the Program except as otherwise expressly authorised or acknowledged by this Terms and Conditions. The Customer will fully indemnify NumeroPro against all liabilities, costs and expenses that NumeroPro may incur to a third party as a result of the Customer’s breach of the copyright provisions of this Terms and Conditions.

27. Waiver

Failure or omission by a party to enforce at any time any of the provisions of this Terms and Conditions will not be construed or deemed to be a waiver of that party’s rights under this Terms and Conditions.

28. Relationship of Parties

In furnishing Services to Customer hereunder, NumeroPro is acting as an independent contractor, and NumeroPro has the sole right and obligation to supervise, manage, contract, subcontract, direct, procure, perform or cause to be performed, all work to be carried out by NumeroPro under this Agreement. Neither party is an agent for the other and has no authority to represent or bind the other party as to any matters, except as expressly authorised in this Agreement.

29. Entire Agreement; Amendment; Severability

This Agreement, including any Attachments attached hereto (if any), sets forth the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, representations, warranties, promises, covenants, commitments or undertaking, whether written or oral, except as herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorised representative of the Party. If any term or provision of this Agreement is found to be invalid or unenforceable, it shall not affect the validity and enforceability of the other terms or provisions of this Agreement.

30. Survival

The provisions of Clauses 5, 6, 10, 11, 15, 20, 21, 22, 25, 26, 27 shall survive termination or expiration of this Agreement.

31. Waiver of Default; Cumulative Remedies

A delay or omission by either Party hereto to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants to be performed by the other or any breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All remedies provided for in this Agreement shall be cumulative and in addition to (and not in lieu of) any other remedies available to either Party at law, in equity or otherwise.