1.       Definitions

The following meanings apply: 

Agreement means this Agreement and any schedules hereto. 

Approved Invoice means a Customer Invoice issued by the Merchant to a Customer for Services, so long as the amount of the Customer Invoice, together with all Outstanding Amounts, does not exceed the available limit. 

Assignment Date means the date on which the Payment Plan Agreement is executed by the Customer.

Business Day means any day other than a Saturday, Sunday or public holiday in Sydney, New South Wales. 

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or an ascertained, actual or contingent, whether at law, in equity, and statute or otherwise. 

Customer means a business customer of the Merchant, that is registered and located in Australia, that is not an affiliate, associate or related party of the Merchant and that had been approved by Flip, under our sole discretion, to enter into Payment Plan Agreements under the Program.

Customer Agreement means the agreement or transaction between the Customer and the Merchant pursuant to which the Merchant provided Services to the Customer that are the subject of a Customer Invoice.

Customer Information means information, including personal information, provided by a business customer of the Merchant that is a prospective Customer or provided by a Customer and pertaining to Flip assessing their suitability for participation in the program.

Customer Invoice means a tax invoice issued by the Merchant to a Customer in the normal course of operating the Merchant’s business. A Customer Invoice must include: (i)the description of Services sold by the Merchant to the Customer; (ii) the date when Services were sold to the Customer; (iii) the duration of Services provided to the Customer over time; and (iv) the price charged to the Customer by the Merchant.

Default means failure of the Merchant to comply with any term of this Agreement. 

Funded Payment Amount(s) means, in respect of the Program, the amount of an assigned Approved Invoice less the Fee.

Merchant Services Fee means the amount charged to the Merchant by Flip for activating a Payment Plan for an Approved Invoice.

Nominated Account means the bank account Flip specifies, into which payments are to be made by Customers and refunds are made by the Merchant.

Outstanding Amount means, in relation to a Payment Plan, the total amount of payments not yet paid under the Payment Plan. 

Payment Plan means the advance made by Flip to a Customer to settle an Approved Invoice that had been assigned to Flip and the agreed repayment of that advance by the Customer under a Payment Plan Agreement. 

Payment Plan Agreement means an agreement between Flip and a Customer for a Payment Plan.

Service Fee means the amount charged by Flip for activating a Payment Plan for an Approved Invoice.

Services means goods and services sold by the Merchant to the Customer in the normal course of operating their respective business.

Settlement Account means the bank account designated from time to time by the Merchant for receipt of any funds from Flip.

2.     Program

2.1.    Flip offers Payment Plans to Customers under the standard terms of Payment Plan Agreements, to enable your Customers to settle Approved Invoices that you assign to Flip. The Program allows Payment Plans over series of monthly equal instalments payable in advance. The first payment will be deducted by Flip from the Customer’s debit/credit card. Subsequent payments may be by direct debit.

2.2.   You agree to collect Customer Information, to enable Flip to assess a prospective Customer for approval as a Customer. You also agree to provide the relevant Customer Agreement to Flip.

2.3.   Flip has sole discretion to approve any of Customers and will notify you in writing of its decision in each case. 

2.4.   Assignment Agreement to Flip constitutes an offer by you to Flip to assign your rights under an Approved Invoice to Flip.  Flip may accept that offer by issuing a Payment Plan Agreement to the relevant Customer.  

2.5.   With effect from the Assignment Date, you:

• irrevocably assign all of your right, title and interest in the Approved Invoice the subject of that Payment Plan Agreement to Flip; 
  
• authorise Flip to do all things on your behalf necessary to effect and perfect that assignment; and 
  
• warrant that the assignment is effective and allows Flip an unfettered right to collect payment of the Approved Invoice from the Customer. 

2.6.   With respect to each Customer Invoice submitted to Flip, you warrant: 

• that the Customer is in good standing with you;
• that the amount of the Customer Invoice represents a reasonable charge for the Services purchased by the Customer;
• payment of the debt to which the Customer Invoice relates is a legally binding obligation of the Customer;
• that there are no rights of setoff or contribution, whether existing or asserted, which the Customer may exercise or which the Customer asserts; 
  
• that the Customer Invoice is not the subject of any dispute or challenge and that the Customer has not indicated an intention not to pay the Customer Invoice for any reason; and
  
• that the Customer is not your affiliate, associate or related party.
  

2.7.   For Approved Invoices, Flip will advance the Funded Payment Amount to the Settlement Account of the Merchant within two (2) Business Days of the Assignment Date. 

2.8.   Flip will inform you of any dispute with a Customer, that requires your support for resolution. 

2.9.   Flip is not responsible or liable for Services. The Merchant must perform Services to the standard reasonably expected by the Customer and in accordance with the Customer Agreement.

2.10. Flip will administer the Program with due care, skill and diligence in accordance with all applicable laws and the terms of this Agreement. 

3.     Merchant’s Account

3.1.    We will create your Flip Account (“Account”) when you onboard with us. 

3.2.   You acknowledge responsibility for maintaining the security of your Account details, including access. We are not responsible for unauthorised access or use of your Account unless, after investigating any breach, it is determined that we had failed to take reasonable steps to prevent the unauthorised access or use.

3.3.   You acknowledge and agree that a person effecting a transaction through your Account is deemed to act on your behalf for the purposes of that transaction and its consequences (whether with or without your authorisation) and that you will honour your obligations pursuant to that transaction.

3.4.   You agree that you will:

• not provide us with any information that is false, inaccurate or misleading;
• ensure that any information about you and your officers, employees and shareholders is true, current and complete, including contact details;
• not use the Program provided under this Agreement for any unlawful, fraudulent or improper activity, including for any experimental, testing or research purposes or otherwise in a manner not permitted by this Agreement.

4.    Approved Invoices

4.1.    Flip may cancel the approval of an invoice and terminate the related Customer’s Payment Plan Agreement if any of the warranties in clause 2.6 are breached, or found to be inaccurate in any material particular.

4.2.   You agree to refund the lesser of the Funded Payment Amount and the Outstanding Amount to the Nominated Account within 2 business days of being informed by Flip of the cancellation of the approval of an invoice pursuant to clause 4.1.

4.3.   If you or a Customer cancel a supply, service, or other transaction for which an Approved Invoice had been issued and a Payment Plan Agreement had commenced, you agree to refund to Flip the lesser of the Outstanding Amount and the Funded Payment Amount, by payment into the Nominated Account within 2 business days of the cancellation.

4.4.  Upon receipt by Flip in the Nominated Account of the amounts required by clauses 4.2 and 4.3, Flip will terminate the Payment Plan Agreements related to the cancelled invoice.

4.5.  You are solely responsible for refunds to a Customer for any payments made by the Customer under the related Payment Plan Agreement.

4.6.  If you agree with the Customer to reduce the price of an Approved Invoice after a Payment Plan Agreement had commenced, you must inform Flip immediately and refund the full amount of the reduction to the price into the Nominated Account within 2 business day. Flip will reduce the amounts of future payments under the Payment Plan Agreement, consequent to the refunded amount.

5.     Refunds and Cancellations

5.1.    If you determine that a Customer is owed a partial refund for Services paid for pursuant to a Payment Plan Agreement, you shall remit the partial refund to us by payment into the Nominated Account and we will reduce the Outstanding Balance of the Customer’s Payment Plan accordingly;

5.2.   If you determine that a Customer is owed a full refund for Services paid for pursuant to a Payment Plan Agreement, leading to the Payment Plan being cancelled, the Merchant will pay us the lesser of the Outstanding Amount and the Funded Payment Amount, by payment into the Nominated Account within 2 business days.

5.3.   We will terminate the Payment Plan Agreement upon receipt of the amount required by clause 6.3.

5.4.  We may charge the Merchant the Cancellation Fee specified in the Consumer Program Agreement, if a Payment Plan Agreement is cancelled pursuant to this clause 7.

5.5.  You are solely responsible for refunding to a Customer any payments made by the Customer under the Payment Plan Agreement that had been cancelled pursuant to this clause 6.

6.     Chargebacks 

6.1.    If we receive notice of a Chargeback, we will notify You accordingly and reserve the right to terminate the Authorisation and all activities regarding the relevant Transaction. Notwithstanding anything herein to the contrary, you shall be liable to Us for any Chargeback initiated by or on behalf of a Customer and You shall indemnify and hold Us harmless for any damage, loss, cost or liability relating to, or resulting from, any such Chargeback. 

6.2.   You will reimburse Flip any and all amounts due and which remain outstanding as a result of (or in connection with) a Chargeback. 

6.3.   Before charging back, we will first request a written response from Merchant regarding the Customer’ assertions. We will chargeback the Merchant for the transaction if any of the following occur:

• no written response is received within five (5) calendar days from the initial date of request;
• a written response is received but we determine the Customer’s assertion is valid or could reasonably be expected to be valid;
• the charge of the Merchant is disputed, and the Merchant cannot supply a copy of the underlying sales receipt within five (5) calendar days of FlipPay’s request;
• we determine that any charge does not represent a bona fide sale or service (including without limitation, charges arising from fraudulent activities of the Merchant’s employees) by the Merchant;
  
• charge(s) by the Merchant are incurred on a Customer’s account opened upon submission of a defective application;
  
• the Customer asserts that the Services purchased by the Customer from the Merchant have not been fully delivered, performed, provided or shipped;
  
• the Customer alleges that the Merchant provided false or misleading information; or

• any disputed or fraudulent charge or credit relating to a transaction.

7.     Confidential Information

7.1.    The Parties must keep the terms of this Agreement and all Confidential Information strictly confidential, other than as required by law or as explicitly permitted by the other Party.

8.     Privacy

8.1.     Flip may collect and use information about you, Customers and guarantors (“Information”) in accordance with our Privacy Policy. 

8.2.   You agree that we may collect the Information (and share it with any person who is our agent, officer, employee or contractor): to identify you, Customers and guarantors; to fulfil undertakings made under this Agreement. Unless you instruct Flip not to, we may use the Information to inform Customers about products or services that may interest them.
 
9.      Credit Reporting

9.1.    Flip may give Information about you or Customers to a Credit Reporting Body (“CRB”), for the following purposes to obtain a consumer and/or commercial credit report about you, the Customers and/or a guarantor.

10.   Term and Termination

10.1.  This Agreement commences on the date set out in The Program Agreement Schedule and continues until terminated by either Party. 

10.2. All rights and obligations under this Agreement that are required or contemplated to survive termination of this Agreement, will continue after termination until they had been fulfilled or had explicitly expired.

10.3. Either Party may terminate this Agreement by written notice of termination to the other Party.

10.4. Neither Party will have any claim against the other Party for compensation for loss of any rights, loss of goodwill or any similar loss or claim as a result of this Agreement being terminated.

11.    Communication

11.1.    You agree that your accepting and submitting the Onboarding Agreement constitutes your electronic signing and you consent to electronic provision of all disclosures and notices from Flip (“Notices”), including those required by Law. You also agree that your electronic acceptance and submission will have the same legal effect as a physical signature.

11.2.   We will communicate with you in writing by any of the following methods (which we choose at our discretion):

11.2.1.  in person;

11.2.2. an email to the email address nominated by you; or

11.2.3. by email, text message or post to a person authorised in writing by you to act on your behalf at the address specified by you.

12.   Anti-Money Laundering

12.1.   You undertake that any payment of moneys to or by you under arrangements pertaining to this Agreement and any instructions given by you pertaining to this Agreement will not breach AML/CTF law.

13.   Warranties

13.1.   Flip represents and warrants that information provided by us to you will be, to the best of our knowledge, complete, accurate, current and not misleading.

13.2. You represent and warrant that information provided by you to Flip will be, to the best of your knowledge, complete, accurate, current and not misleading.

13.3. To the extent permitted by law and except as expressly provided in this Agreement, Flip is not liable to you for any direct, special, indirect, consequential or incidental costs, losses, expenses damages, lost profits or any other damages of any kind incurred or suffered by you or any other person in any way which is connected with any use of any of our Services or otherwise relating to any transaction between you and us or any other person and us (including as a result of our negligence or negligence by any person who is our officer, employee, agent or contractor).
 
14.   Rights and Remedies

14.1.  The rights and remedies contained in this Agreement are cumulative and are not exclusive of any rights and remedies provided at law.

14.2. To the extent permitted by law, either Party is entitled to enforce or take action in respect of any breach of the other Party’s obligations under this Agreement, notwithstanding the termination of this Agreement.

14.3. Flip is not liable for any loss caused by exercising, attempting to exercise or failing to exercise a right, remedy or power under this Agreement (even if the loss is caused by our negligence).

15.   Assignment

15.1.  We may assign or novate all or any of our rights and obligations under this Agreement to any person without your consent.

15.2. You may not transfer or assign any of its liabilities or rights under this Agreement to any other person without our prior written consent (such consent not to be unreasonably withheld, provided we are satisfied as to the suitability of the assignee and you pay our reasonable costs in relation to the assignment).

16.   Waiver and Consents 

16.1.  No delay by either Party in enforcing any of that Party’s rights will prejudice or restrict the rights of that Party, nor will any waiver of those rights operate as a waiver of any later breach. No waiver or consent given by a Party is effective unless it is in writing and signed by that Party. 

17.   Other 

17.1.   Flip may amend this Agreement at any time or as required by law. We will advise you in writing of any revisions. By continuing to use the Program after any amendments to this Agreement, you agree to abide by and to be bound by the amended Agreement. 

17.2.  If any provision of this Agreement is or becomes invalid, unenforceable or breaches any mandatory law or applicable code then that provision is treated as severed from this Agreement and the Agreement will continue to be valid and operative without that severed provision.

17.3.  This Agreement is governed by laws in force in New South Wales. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.

17.4. This Agreement does not create any relationship of employment, agency, partnership or joint venture between you and Flip.

17.5. We may appoint subcontractors to perform any of our obligations under this Agreement.

 

 

Updated January 2023.