CathyPay - Terms of Use

These terms of use, as supplemented by the Subscription Plan, apply to your use of CathyPay software, applications and services. By using a CathyPay product or purchasing a Subscription Plan, you agree to be bound by these terms.

Please read the entire terms and the Subscription Plan very carefully. Some of the key items are summarised below, but this should not be used as a substitute for reading the document in its entirety:

1. Words that are capitalised have defined meanings, as set out in clause 21.
2. Your Subscription Plan renews automatically at the end of each Subscription Period. For more information on this, see clause 2.2
3. From time to time, we may make changes to these terms. For more information on this, see clause 1.2.
4. Your Subscription Plan can be terminated in accordance with clause 10.
5. Terms relating to your data and how we may use it are set out in clauses 13 and 14.
6. Clauses 17 and 18 contain important limitations on our liability, disclaimers, exclusions, releases and indemnities. In practical terms, these clauses set out what we do not accept liability for, and what you will need to compensate us for. You should pay special attention to those.

1. Acceptance of Terms

1.1 By using the Software, choosing your Subscription Plan or signing a Subscription Plan, you agree to these Terms of Use as may be supplemented by the Subscription Plan (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Software constitutes your acceptance and acknowledgment of this Agreement, our Privacy Policy, and any other policy displayed on our Software, all of which constitute a part of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Software.

1.2 We may initiate amendments or modifications to this Agreement from time to time by providing you with 30 days' notice. You will have an opportunity to agree or reject the amendments. If you do not agree to the amendments, then you must notify us within that time frame, otherwise, you will be deemed to accept the amended version of the Agreement.

1.3 This Agreement will prevail over any other terms or agreement between you and us.

1.4 In this Agreement, capitalised words and phrases have the meaning given to them when first used and followed by bolded brackets, or as set out in clause 21 (Definitions) at the end of the Agreement.

2. Subscription Plan and Auto-Renewal

2.1 A Subscription Plan starts on the day you buy the Subscription Plan, and will continue for the Subscription Period stated in the Subscription Plan.

2.2 At the end of each Subscription Period, a Subscription Plan will automatically renew for one or more Subscription Periods unless you notify in accordance with clause 10.1. Please ensure you contact us if you want to cancel your Subscription Plan.

3. Licence

3.1 In exchange for you complying with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Software. We are acting as your service provider. To the extent that a feature or part of the Software requires a Subscription Plan, your licence is subject to having a valid Subscription Plan, and the Subscription Plan and will be valid only for the Subscription Period.

3.2 You must not:

• use the Software for any purpose other than the Permitted Use;
• use the Software in any way which is in breach of any applicable laws or which infringes any person's rights, including Intellectual Property Rights;
• do anything which may compromise or interfere with the supply of the Software or our systems, including without limitation introducing malicious programs such as viruses, worms, trojan horses, and email bombs;
• circumvent any applicable Fees or access or use the Software in a manner intended to avoid incurring Fees;
• export, extract, or otherwise scrape any of the content or data on the Software for use outside the Software;
• cache the Software (except as expressly permitted under the Subscription Plan, if applicable);
• create content based on the Software except as specifically contemplated by the Software; or
• re-create the look-and-feel, features or functionality of the Software, including create a product or service with a substantially similar look-and-feel, functionality or features to the Software or any other product or service owned by us.

4. Your Warranties

4.1 You warrant, represent and agree that:

• there are no legal restrictions preventing you from agreeing to this Agreement;
• you are not Insolvent;
• you will always act in a courteous and polite manner whenever dealing with us, and never in an antisocial, discriminatory, abusive, hostile or obscene way;
• you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to perform the Software and as otherwise requested by us;
• you are responsible (at your cost) for obtaining and maintaining any consents, licences, authorities, and permissions required for you to make use of the Software;
• all information and documentation (including User Data) that you provide to us or upload into the Software in connection with this Agreement is true, correct, and complete;
• you are solely responsible for establishing and maintaining any Operating Environment necessary to use and obtain the benefit of the Software.

5. Our Warranties

5.1 We warrant and agree that:

• the Software will perform materially in accordance with the Specifications;
• the Software will not infringe on the Intellectual Property Rights of any person; and
• we will maintain sufficient and appropriately qualified and experienced personnel to operate and provide the Software in accordance with the Agreement.

6. Accounts and Users

A Subscription Plan may have a designated Subscription Holder who can authorise or add Authorised Users under the Subscription Plan. In such a case, the following terms apply:

• we grant the Subscription Holder the right to add or remove Authorised Users to use the Software in accordance with the Subscription Plan;
• the Subscription Holder is liable for all Authorised Users' use of the Software and compliance with this Agreement;
• this Agreement still applies and binds all Authorised Users, except that terms relating to Fees and Termination will apply only to the Subscription Holder;
• the Subscription Holder determines who is an Authorised User, controls each Authorised User's level of access to the Software at all times;
• any Authorised User's licence to access the Software will terminate upon the termination of the Subscription Holder's Subscription Plan.

6.2 You are solely responsible for your account credentials and for all use and activity carried out under your account. You must not share your account credentials with any third party.

6.3 You must not impersonate some other individual, business, or company.

6.4 You agree not to create an account or use the Software if you have been previously removed or suspended by us from the use of the Software.

7. Support Services

7.1 Subject to the below conditions being met, we will provide you the Support Services during the Subscription Period:

• you are not in breach of any term of the Agreement and you are using the Software as intended under this Agreement;
• your Operating Environment meets the minimum requirements set out in the Specifications; and
• you have provided all information requested by us in relation to Support Services.

7.2 Our liability for any failure to provide the Support Services is limited to resupplying the Software support to the extent required to remedy the failure.

7.3 For clarity, any Intellectual Property Rights arising in connection with the Support Services vest exclusively in us immediately upon creation.

7.4 Additionally, we will provide you with a maximum of 14 (fourteen) days of intensive, dedicated onboarding assistance and support commencing on the first day of the Subscription Period.

8. Fees

8.1 You must pay the Fees to us in advance without counterclaim or deduction in accordance with the Subscription Plan.

8.2 Unless expressly stated otherwise, all amounts stated in or in relation to this Agreement are expressed exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.

8.3 We may offer one or more payment processors as a way to facilitate payment of the Fees.

8.4 We are entitled to modify our Fees at any time by prior written notice to you, but the increase will only start on the next Subscription Period.

8.5 To the extent permitted by law, any Fees paid to us are non-refundable.

8.6 If you dispute a portion of any invoice, you must still pay all undisputed portions of the invoice.

8.7 In addition to any other right we have, if you fail to fully pay any amount owed to us for a period of 7 days or more, we may suspend access, charge interest at 1% per month, and charge recovery costs.

9. Updates

9.1 We may implement (at our absolute discretion) Updates to the Software from time to time. We will endeavour to provide you with reasonable prior written notice of any scheduled Update that is likely to affect the availability of the Software or is likely to have a material negative impact on you.

10. Termination

10.1 Either party may terminate the Subscription Plan at any time on at least 30 days' prior notice, with such termination only taking effect at the end of the current Subscription Period.

10.2 We may terminate this Agreement with immediate effect by giving written notice to you at any time if you are Insolvent, or you breach any material provision of this Agreement which cannot be remedied.

10.3 We may suspend your access to the Software if any amount due to us is not paid on time.

11. Effects of Termination

11.1 On termination of a Subscription Plan for any reason:

• you must immediately stop using the Software, and we may take any action necessary to disable or terminate your access to the Software;
• we will retain transaction data necessary for record keeping of billing purposes in a read only state for up to seven years;
• you must, within 5 Business Days of termination, pay to us all Fees incurred and/or owing under this Agreement.

11.2 All of the provisions of this Agreement will cease to have effect, save that the following provisions will survive: Clauses 11, 12, 13, 14, 15, 16, 17 and 18.

12. Intellectual Property

12.1 We own all Intellectual Property Rights in the Software, the Support Services, any other services or products provided by us, any associated documentation, and all Updates, improvements, modifications, customisations and derivative works.

12.2 If you provide us with comments or suggestions relating to the Software, then all Intellectual Property Rights in that feedback is assigned to us, and we may use the feedback for any purpose.

12.3 You must not, without our prior written consent:

• copy or use, in whole or in part, any of our Intellectual Property Rights;
• reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;
• reverse assemble, reverse engineer, reverse compile or enhance the Software;
• breach any Intellectual Property Rights connected with us or the Software;
• create derivative works or reproductions of any of our Intellectual Property Rights or the Software;
• resell, assign, transfer, distribute or make available the Software to third parties.

13. User Data

13.1 Except as otherwise stated in this Agreement, as between you and us, you own all Intellectual Property Rights in all User Data.

13.2 We may monitor, analyse and compile statistical and performance information based on your use of the Software in an aggregated and anonymised format (Analytics).

13.3 You grant us an irrevocable, perpetual licence to use, process, copy, transmit, store and backup User Data during the Subscription Period to supply the Software, diagnose problems, Update the Software, train our staff, and develop other services.

14. Data Storage and Security

14.1 We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the User Data.

14.2 Generally, we aim to delete any Personal Information of yours as soon as practicable after the termination of your Subscription Plan.

15. Privacy

15.1 You are responsible for the collection, use, storage, and otherwise dealing with Personal Information related to your business.

15.2 You must comply and must ensure that all of your personnel comply, with the requirements of the Privacy Laws.

15.3 You must:

• notify natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Laws;
• notify us immediately upon becoming aware of any breach of the Privacy Laws that may be related to the use of Personal Information under this Agreement.

16. Confidentiality and Publicity

16.1 Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except where permitted by this Agreement, with consent, or where compelled by law.

16.2 The Recipient must only use the Confidential Information of the Discloser for the disclosed purpose and in connection with this Agreement.

16.3 You acknowledge we may refer to you as a customer in our marketing materials. You may ask that we stop doing this by emailing us.

17. Limitation of Liability

17.1 To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, whether express or implied, statutory or otherwise, other than those set out in this Agreement.

17.2 You acknowledge that complex software is never wholly free from defects, errors and bugs.

17.3 The Software is provided to you on an "as is" and on an "as available" basis without any Warranties.

17.4 You acknowledge that the Software is dependent on other Third Party Services.

17.5 To the maximum extent permitted by law, our liability for breach of any Warranty is limited to repair, replacement, or resupply of the goods or services.

17.6 Neither party will have any liability for any Consequential Loss.

17.7 Each party's maximum aggregate liability is limited to the Fees paid during the 12 month period before the event giving rise to liability.

18. Release and Indemnity

18.1 Each party agrees to indemnify the other party from all Claims and Loss arising from failure to comply with applicable laws or gross negligence or willful misconduct.

18.2 We agree to indemnify you from any Loss resulting from Claims that your use of the Software infringes third-party Intellectual Property Rights.

18.3 You agree to indemnify us from any Loss or Claims in connection with your use of the Software, any damage to person or property, or your breach of User Data, Data Storage, Intellectual Property, Confidentiality, Privacy and Licence Restrictions clauses.

19. Unexpected Event

19.1 If the performance by any party of its obligations is prevented or delayed due to any Unexpected Event, the Affected Party will not be in breach for that reason only.

19.2 The Affected Party must promptly give written notice of the Unexpected Event and use reasonable endeavours to limit the effects.

20. General

20.1 All notices must be in writing and must be made by email.

20.2 This Agreement will override any other terms or agreement between you and us.

20.3 Where there is a contradiction between different parts of this Agreement, the Subscription Plan prevails over these Terms of Use.

20.4 You must not assign your rights under this Agreement except as expressly permitted.

20.5 No breach can be waived except with express written consent.

20.6 Any unenforceable provision is to be severed to the extent necessary to make this Agreement enforceable.

20.7 This Agreement is made for the benefit of the parties and is not intended to benefit any third party.

20.8 This Agreement constitutes the entire agreement between the parties.

20.9 This Agreement is governed by the law of New South Wales. The courts of New South Wales have exclusive jurisdiction.

21. Definitions

In this Agreement, the following capitalised terms have the following meanings:

• Agreement means these Terms of Use and also includes the relevant Subscription Plan (if any) and all policies displayed on our Website.
• Authorised Users means the employees and staff members of the Subscription Holder whom the Subscription Holder authorises to use the Software.
• Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.
• Confidential Information means all information of a confidential or proprietary nature disclosed or communicated by a party to the other.
• Consequential Loss includes any indirect loss, incidental loss, consequential loss, loss of profits, loss of revenue, loss of production, loss of opportunity, loss of goodwill, loss of reputation.
• Fees means the fees set out in your Subscription Plan.
• Insolvent means when a party ceases, suspends, or threatens to cease or suspend the conduct of all or a substantial part of its business, becomes unable to pay its debts when they fall due, or enters into liquidation.
• Intellectual Property Rights means all intellectual property rights wherever in the world, including copyright, trademarks, patents, and trade secrets.
• Operating Environment means your operating environment, facilities, systems, networks, devices, equipment, hardware, software, telecommunications, and connections.
• Permitted Use means for your ordinary business use or as otherwise set out in your Subscription Plan.
• Personal Information has the same meaning as in the Privacy Laws.
• Privacy Laws means the Privacy Act 1988 (Cth) and any other Australian state laws that govern the storage of medical data.
• Privacy Policy means our Privacy Policy available at cathypay.com.au/privacy
• Software means the Software set out in the Subscription Plan.
• Specifications means the specifications of the Software as set out in the Subscription Plan.
• State means New South Wales.
• Subscription Holder means a person or entity signing up for a Subscription Plan.
• Subscription Period means the period of time chosen by you on registration.
• Subscription Plan means the subscription, package or plan for the Software you select.
• Support Services means the Support Services listed in your Subscription Plan, or access to a general helpdesk during Business Days via hello@cathypay.com.au.
• Tax includes a tax, levy, duty, or charge imposed by a public authority.
• Terms of Use means these terms of use, available at cathypay.com.au/terms
• Third Party Software means software, hardware, plugin, API, gateway, payment processor, or other service provided by a third party.
• Unexpected Event means events beyond the reasonable control of a party including fire, flood, war, epidemic, pandemics, riot, or government requirements.
• Update means any updates, modifications, changes or enhancements to the Software.
• User Data means any content or materials that you upload or input into the Software.
• Warranty or Warranties means any warranties, conditions, terms, representations, statements, and promises.
• Website means cathypay.com.au
• You means any person who uses the Software, including the Subscription Holder and all Authorised Users.