Triniteq Terms of Use
Schedule 4

These Terms of Use are intended to explain Triniteq's obligations as a service provider and the Customer's obligations as a User.

Terms of Use Schedule 4

 

These Terms of Use are current and effective from May 13, 2024.

Welcome to Triniteq. These Terms of Use (“Terms”) are specifically for Triniteq customers (“Customer”). These Terms are intended to explain Triniteq International Pty. Ltd. (“Triniteq”)’s obligations as a service provider and the Customer’s obligations as a User. Please read them carefully. 

These Terms of Use are made up of 4 schedules: 


Schedule 1 – Triniteq Support & Sales Agreement Terms of Use – General

Schedule 2 – Triniteq Support and Sales Agreement Terms of Use Charges, Fees, Payments, Quotes, Purchase Orders & Proposals

Schedule 3 – Triniteq  or Triniteq's Partner Software Licensing Agreement

Schedule 4 - PowerEPOS Flexible Payment Solution Agreement & Terms of Use 


These Terms are binding on any use of the Triniteq or Triniteq’s Partner Services, and/or Products and apply to the Customer/User from the time that Triniteq provides the Customer/User with access to the Triniteq or Triniteq’s Partner Service(s) and/or Product(s).

 

 

Schedule 4 - PowerEPOS Flexible Payment Solution Agreement & Terms of Use 

 

A PowerEPOS Flexible Payment Solution Agreement comes into existence in relation to Products, Hardware, Services, Software and/or Goods on the terms of these terms-of-use and the Products, Hardware, Services, Software and/or Goods Schedule applicable to those Products, Hardware, Services, Software and/or Goods when Customer has signed a Triniteq Quote that includes a PowerEPOS Flexible Payment Solution and it has been accepted by Triniteq. Each PowerEPOS Flexible Payment Solution Agreement is a separate agreement between Customer and Triniteq. The PowerEPOS Flexible Payment Solution terms-of-use along with Triniteq’s terms-of-use, Schedule, 1, 2, and 3 should be read together.

 

Part A - Products, Hardware, Services, Software and/or Goods.

1.      The Products, Hardware, Services, Software and/or Goods - Ownership and interest

1.1  The Products, Hardware, Services, Software and/or Goods always remain Triniteq’s property during the Term of the PowerEPOS Flexible Payment Solution Agreement. Customer only has a right to use them during that Term. Customer may purchase the Hardware (only) in accordance with the PowerEPOS Flexible Payment Solution Agreement & these terms-of-use. On the date specified in the Term, Quote and/or Products, Hardware, Services, Software and/or Goods Schedule at the end of the Term, Title, ownership, and possession of the Hardware (only) is relinquished by Triniteq and title, ownership, and possession of the Hardware (only) is passed on to Customer, strictly excluding the Software and other Goods subject to clause 25.3 & 25.5.  

1.2  Customer must ensure that any replacement part or add-on (Including anything installed in, or affixed to, the Products, Hardware, Services, Software and/or Goods) becomes Triniteq’s property during the Term.

1.3  Customer must protect Triniteq’s interest in the Products, Hardware, Services, Software and/or Goods, including making it clear to others that Triniteq own them during the Term. 

1.4  Customer must not place, or allow to be placed, on the Products, Hardware, Services, Software and/or Goods any plates or marks that are inconsistent with Triniteq’s ownership. If Triniteq ask, Customer must allow Triniteq to put plates on them that state that Triniteq own them and that Triniteq prohibit any dealing in them (and provide Triniteq with access to the Products, Hardware, Services, Software and/or Goods to enable Triniteq to do so).

1.5  Despite Triniteq’s ownership in the Products, Hardware, Services, Software and/or Goods, Customer bears the entire risk of loss arising in connection with the possession, use, storage, maintenance, seizure, and repair of the Products, Hardware, Services, Software and/or Goods. (This includes loss arising because of theft, destruction or damage and loss arising out of claims of injury.)

1.6  Customer must not part with possession of the Products, Hardware, Services, Software and/or Goods without Triniteq’s written consent.

1.7  Customer must not create another Security Interest over the Products, Hardware, Services, Software and/or Goods or any Security Interest over the PowerEPOS Flexible Payment Solution Agreement or allow one to arise (Including a lien for repairs or storage) without Triniteq’s written consent.

1.8  Triniteq may enter into the PowerEPOS Flexible Payment Solution Agreement as principal or agent. Triniteq may also transfer the Products, Hardware, Services, Software and/or Goods or Triniteq’s interest in the PowerEPOS Flexible Payment Solution Agreement or give another Person an interest in or form of security over either of them, without getting Customer’s consent. Customer agrees that Triniteq may disclose any information or documents Triniteq reasonably consider necessary to help Triniteq exercise this right.

1.9  Customer may ask Triniteq to Hire additional Products, Hardware, Services, Software and/or Goods to Customer. If Triniteq agrees to do so, the Products, Hardware, Services, Software and/or Goods Schedule for the additional Products, Hardware, Services, Software and/or Goods and these terms-of-use will constitute a further Hiring, or rent of Products, Hardware, Services, Software and/or Goods between Customer and Triniteq (unless Triniteq say otherwise). If Triniteq grant Customer a further Hiring of goods under this clause:

a)      Triniteq will not give Customer a copy of these terms-of-use unless Customer asks for a copy; and

b)      the Products, Hardware, Services, Software and/or Goods Schedule may refer to information contained in a prior Hiring of Products, Hardware, Services, Software and/or Goods if this information has not changed.

2.      Delivery & Installation

2.1  Unless included in the Triniteq Quote, Customer is responsible for:

a)      obtaining the Products, Hardware, Services, Software and/or Goods; and

b)      having the Products, Hardware, Services, Software and/or Goods delivered and installed; and

c)      having the Products, Hardware, Services, Software and/or Goods put in good working order.

2.2  Triniteq will be taken to have delivered the Products, Hardware, Services, Software and/or Goods to Customer and Customer will be taken to have accepted them when delivered by Triniteq, Triniteq’s suppliers, or Customer obtain them under 2.1(a).

2.3  Customer must not attach the Products, Hardware, and/or Goods to any property without Triniteq’s consent during the Term. If the Products, Hardware and/or Goods are attached to land, they do not become fixtures and Triniteq can still remove them in accordance with the PowerEPOS Flexible Payment Solution Agreement.

3.      Re-location

3.1  Except when Products, Hardware, Software and/or Goods are used in a motor vehicle, such as a food truck or coffee van, Customer must not change the place where the Products, Hardware, Software and/or Goods are used or ordinarily kept without Triniteq’s prior written consent which will not be unreasonably withheld.

3.2  Except when Products, Hardware, Software and/or Goods are used in a motor vehicle, such as a food truck or coffee van, Customer must not change the place where the Products, Hardware, Software and/or Goods are housed or located without Triniteq’s prior written consent which will not be unreasonably withheld.

4.      Use

4.1  Customer must use the Products, Hardware, Services, Software and/or Goods predominantly in Customer’s business operations and for the purpose for which they are designed.

4.2  Customer must ensure that the Products, Hardware, Services, Software and/or Goods are used in accordance with Triniteq’s and Triniteq’s supplier’s and Products, Hardware and/or Goods manufacturer’s instructions and recommendations, in compliance with all laws that apply to the Products, Hardware, Services, Software and/or Goods or their use (Including by maintaining registration of Products, Hardware, Services, Software and/or Goods where appropriate and complying with occupational health and safety legislation Including when that legislation places an obligation on Triniteq), and only by suitably qualified operators.

5.      Maintenance

5.1  Customer must take proper care of the Products, Hardware and/or Goods and keep them in good working order and in good repair (fair wear and tear excepted).

5.2  Customer must ensure that the Products, Hardware and/or Goods are serviced and maintained in accordance with Triniteq’s and Triniteq’s supplier’s specifications and Triniteq’s or any insurer’s reasonable requirements. Customer must do all things necessary to maintain Triniteq’s, Triniteq’s supplier’s and manufacturer’s warranties.

5.3  Customer must not say or imply that Triniteq will pay for any work done to the Products, Hardware, Software and/or Goods.

5.4  Customer must keep all maintenance records and all other records relating to the inspection, commissioning or alteration of the Products, Hardware, Software and/or Goods and make these records available to Triniteq upon request. Customer acknowledges receiving all relevant maintenance records and other records for the Products, Hardware, Software and/or Goods from Triniteq. Customer must produce a copy of Customer’s maintenance records for the Products, Hardware and/or Goods whenever Triniteq request it.

5.5  Customer must maintain all logbooks or other records customarily maintained for such Products, Hardware and/or Goods.

6.      Access

6.1  After Triniteq give Customer reasonable notice (except where Triniteq reasonably consider Customer is in default or the Products, Software, Hardware and/or Goods are at risk) Customer must allow Triniteq or our representatives, at reasonable times, to enter the place where the Products, Software, Hardware and/or Goods are, to:

a)      inspect the Products, Software, Hardware and/or Goods; or

b)      check whether the terms-of-use of the PowerEPOS Flexible Payment Solution Agreement are being complied with; or

c)      exercise any of Triniteq’s rights under the PowerEPOS Flexible Payment Solution Agreement.

6.2  Triniteq must give Customer prior notice of entry unless Triniteq reasonably believe that this could materially impair Triniteq’s rights in relation to the Products, Hardware and/or Goods.

6.3  Customer must tell Triniteq in writing if any third party makes a claim in connection with the Products, Hardware, Services, Software and/or Goods which is inconsistent with Customer’s or Triniteq’s rights and interest in the Products, Hardware, Services, Software and/or Goods.

7.      Loss or damage

7.1  Customer must tell Triniteq if any of the goods are:

a)      stolen; or

b)      lost; or

c)      seized; or

d)      destroyed; or

e)      damaged or impaired to such an extent that Customer or the insurer decides that repair is impractical or uneconomic.

7.2  If any of these events happen, and Customer and Triniteq agree to the affected Products, Hardware, Services, Software and/or Goods being replaced (which agreement must be in writing) the replacement goods will then be the subject of this PowerEPOS Flexible Payment Solution Agreement.

7.3  Triniteq are entitled to receive all amounts which are Payable to Customer by any insurer or other Person because any of the things in clause 7.1 happens.

7.4  If within 30 days after the event in clause 7.1 happens, Customer and Triniteq have not agreed to a replacement, then on the next payment date after the 30-day period, Customer must pay Triniteq in addition to any Monthly Instalment/Payment or other amounts due on that date:

a)      the Termination Value of the affected Products, Hardware, Services, Software and/or Goods on that date; less

b)      any money Triniteq have received from an insurer or other Person because the event in clause 7.1 happened.

Without limiting any other clause of this PowerEPOS Flexible Payment Solution Agreement and terms-of-use Customer must also pay on its due date any Monthly Instalment or other amount that falls due during the 30-day period. If, before the next payment date after the event in clause 7.1 happens, Customer and Triniteq have agreed not to replace the affected goods, then on that payment date, Customer must pay in addition to any Monthly Instalment or other amount due on that date, the amount referred to in (a) less the amount referred to in (b).

7.5  This PowerEPOS Flexible Payment Solution Agreement terminates in relation to the affected Products, Hardware, Services, Software and/or Goods when Customer makes payment under clause 7.4. Triniteq will then notify Customer of the revised Monthly Instalments which are Payable on the Products, Hardware, Services, Software and/or Goods not affected calculated on the basis of the value Triniteq attributed to the affected Products, Hardware, Services, Software and/or Goods at the start of this PowerEPOS Flexible Payment Solution Agreement.

7.6  If Triniteq receive money from the insurer or any other Person after Customer have paid Triniteq the amount due under clause 7.4, Triniteq will refund to Customer, up to the amount Customer paid Triniteq, the amount Triniteq received less all money then Payable by Customer under the PowerEPOS Flexible Payment Solution Agreement.

 

Part B – Rent, Costs, and Other Amounts

8.      Monthly Instalments

8.1  Customer must pay the Monthly Instalments on the payment dates, via electric funds transfer (EFT), or direct debit, to Triniteq’s bank stated in the Products, Hardware, Services, Software and/or Goods Schedule or Quote. If Triniteq notify Customer of a different bank or financial institution, Customer must pay to that bank or financial institution. Once paid, these amounts are not refundable for any reason.

8.2  If Customer’s Monthly Instalments are due on the 29th, 30th or 31st of a month, and a particular month does not have that date, Customer must pay Customer Monthly Instalment on the last day of that month.

9.      Duties, taxes, fees, and charges

9.1  When Triniteq ask, Customer must pay Triniteq’s costs in connection with and all stamp and other duties, fees, taxes, and charges Payable in connection with:

a)      Triniteq’s purchase of the Products, Hardware, Services, Software and/or Goods; and

b)      any PowerEPOS Flexible Payment Solution Agreement or hire purchase agreement and any guarantee of it Including any changed or new fee or charge notified to Customer in writing no later than the day the fee or charge takes effect; and

c)      any payment, receipt or other transaction arising out of Triniteq’s purchase of the Products, Hardware, Services, Software and/or Goods or the PowerEPOS Flexible Payment Solution Agreement, Including any increase in the stamp and financial institutions duty stated in the Products, Hardware, Services, Software and/or Goods Schedule or Quote.

9.2  Any fee stated in the Products, Hardware, Services, Software and/or Goods Schedule or Quote is not refundable for any reason. 

9.3  In clauses 9.4 to 9.7, the expressions “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply” and “tax invoice” have the same meaning given by the GST law.

9.4  Unless expressly stated otherwise in the PowerEPOS Flexible Payment Solution Agreement or Quote, all amounts and payments are inclusive of GST.

9.5  If GST is Payable on any supply made under the PowerEPOS Flexible Payment Solution Agreement by Triniteq to the Customer, the Customer must, pay to Triniteq in addition to and at the same time as the consideration is Payable or to be provided for the supply, an additional amount calculated by multiplying the value of that consideration by the prevailing GST rate.

10.  No deductions from payments

Customer must not withhold any Payment under the PowerEPOS Flexible Payment Solution Agreement, or make a deduction from it for any reason Including, because:

a)      the Products, Hardware, and/or Goods are damaged, do not operate efficiently or at all, do not conform to specifications or are not in Customer’s possession; or

b)      Customer claims to have a set-off, counterclaim, or other right against Triniteq or any other Person.

11.  Overdue payments

11.1     Customer must pay interest calculated on daily balances on any amount which Customer does not pay on time for the period it is unpaid as per Triniteq’s terms-of-use.

11.2     Each month (or at any other time Triniteq choose) Triniteq may add to the amount Customer owe Triniteq any interest Payable under 11.1 which is overdue (this is known as “capitalising” or “compounding” the interest). Customer will then be liable for interest under 11.1 on the total amount.

11.3     Customer must pay all interest Payable under 11.1 or 11.2 when Triniteq specify.

11.4     Customer’s obligation to pay an amount on the date it becomes due is not affected by 11.1 to 11.3.

11.5     If any amount Customer must pay under the PowerEPOS Flexible Payment Solution Agreement becomes merged in a court order, Customer must pay interest on that amount as a separate obligation. The interest is Payable from the date Triniteq first ask Customer for the amount until that amount is paid. This obligation is not affected by the court order. The rate is the rate determined in Triniteq’s terms-of-use or the rate in the court order, whichever is higher.

11.6     Clauses 11.1 to 11.5 apply equally to the Guarantor. In relation to any amount owed to Triniteq by the Guarantor, each reference to “Customer” in these clauses is taken to be a reference to the Guarantor.

12.  Indemnities

12.1     Customer indemnifies Triniteq against any liability or loss arising from and any reasonable costs (Including on account of funds borrowed, contracted for or used to fund any amount Payable by Triniteq in connection with Triniteq’s purchase of the Products, Hardware, Services, Software and/or Goods or the PowerEPOS Flexible Payment Solution Agreement and legal fees and expenses other than those caused by Triniteq’s negligence, fraud or wilful misconduct) reasonably incurred in connection with:

a)      Triniteq exercising a right under the PowerEPOS Flexible Payment Solution Agreement; or

b)      Triniteq doing anything Customer, or the Guarantor should have done under the PowerEPOS Flexible Payment Solution Agreement; or

c)      Customer or the Guarantor not doing what Customer, or the Guarantor should have done under the PowerEPOS Flexible Payment Solution Agreement; or

d)      Triniteq having to seize or store the Products, Hardware, Services, Software and/or Goods; or

e)      Customer owning the Products, Hardware, Services, Software and/or Goods (Including registering or notifying any Person of Triniteq’s interest as owner); or

f)        a Person being injured or killed, or property being damaged directly or indirectly by the Products, Hardware, Services, Software and/or Goods or their use; or

g)       a claim for patent, trademark or copyright infringement, for strict liability, or for any other reason being made against Triniteq in connection with the Products, Hardware, Services, Software and/or Goods or their operation; or

h)      Break Costs are an amount representing Triniteq's reasonable estimate of Triniteq’s loss arising as a result of a termination referred to in this paragraph (h). This loss can occur when the Implicit Rate is a fixed rate and usually arises because of changes in market interest rates. Triniteq’s Break Costs are Triniteq’s calculation of the sum (if positive) of the difference between:

                                                                   i. the present value of each Monthly Instalment that Triniteq would have been entitled to receive under the PowerEPOS Flexible Payment Solution Agreement, over the remainder of the Term, at the Implicit Rate, if no early termination had occurred; and 

                                                                 ii. the present value of each Monthly Instalment, that Triniteq would have been entitled to receive under the PowerEPOS Flexible Payment Solution Agreement, over the remainder of the Term, as in paragraph (a), but substituting an interest rate or discount rate (as appropriate) determined by reference to the wholesale market rate(s) prevailing at the time of the early termination. 

The wholesale market rate(s) used to calculate the present value of a Monthly Instalment and the interest rate or discount rate (as appropriate) to be applied under (b) are determined by Triniteq in good faith adopting commercially reasonable procedures. This may include considering:

                                                                   i. any market information Triniteq consider relevant from either internal or external sources (for example, market rates (which need not be mid-market rates), margins and yield curves); 

                                                                 ii. if the information required to determine wholesale market rates is not available for the date of the break event, information for a date following the break event as would be commercially reasonable to consider; and 

                                                                iii. without double counting, when it is reasonable to do so, any interest rate or discount rate used in connection with terminating, liquidating or re-establishing any transaction Triniteq maintained in connection with the PowerEPOS Flexible Payment Solution Agreement. 

                                                                iv. any claim made against Triniteq by any party in relation to the PowerEPOS Flexible Payment Solution Agreement or the Products, Hardware, Services, Software and/or Goods. If Triniteq ask, Customer agrees to assume responsibility for the defence of any proceedings relating to any such matters; or

                                                                  v. any proceedings or prosecutions commenced against Triniteq or any fine or penalty imposed on Triniteq under occupational health and safety legislation in relation to the Products, Hardware, Services, Software and/or Goods or their use.

12.2     Each indemnity in the PowerEPOS Flexible Payment Solution Agreement is a continuing obligation, separate and independent from Customer’s other obligations (Including Customer’s obligation under 26.3(c)). It continues after the PowerEPOS Flexible Payment Solution Agreement ends or is terminated. It is not necessary for Triniteq to incur expense or make a payment before Triniteq enforce a right of indemnity.

13.  Customer agrees to Triniteq’s paying out of money paid or Payable by customer under the PowerEPOS Flexible Payment Solution Agreement commission, fees or other remuneration to any  broker, agent, dealer, or other Person who introduces Customer to Triniteq or Triniteq to Customer. Triniteq may give any broker, agent, dealer, or other Person monetary and non-monetary rewards based on the volume and value of introductions they give Triniteq and in calculating the volume and value of introductions Triniteq will take the PowerEPOS Flexible Payment Solution Agreement into account.

 

Part C - Insurance

14.  Insurance

14.1          Customer must insure at all times against:

a)      loss or damage to the Products, Hardware, Services, Software and/or Goods caused by fire, theft or accident for no less than the then termination value of the Products, Hardware, Services, Software and/or Goods (or such other amount as agreed by Triniteq); and

b)      public liability for bodily injury or damage to property arising in connection with the Products, Hardware, Services, Software and/or Goods for no less than $10 million or any other amount notified by Triniteq; and

c)      any other risk as Triniteq may reasonably direct to protect, directly or indirectly, Triniteq’s interest in the Products, Hardware, Services, Software and/or Goods.

14.2          The insurances must:

a)      be with an insurer registered with the Australian Prudential Regulatory Authority or an insurer reasonably approved by Triniteq and on terms that are satisfactory to Triniteq; and

b)      note Triniteq’s interest as owner of the Products, Hardware, Services, Software and/or Goods.

14.3          Customer must not:

a)      do anything, or fail to do anything, which would allow the insurer to refuse or reduce a claim; or

b)      vary, cancel, or materially alter the insurances without Triniteq’s consent; or

c)      enforce, conduct, settle or compromise any claim without Triniteq’s consent.

14.4     Customer must produce evidence of the insurance policies and payment of premiums whenever Triniteq ask for them.

 

Part D - Other Duties and obligations

15.  Whenever Triniteq ask, Customer must promptly give Triniteq any information Triniteq reasonably ask for about:

a)      Customer’s financial position; or

b)      the Products, Hardware, Services, Software and/or Goods or insurances relating to them.

16.  Anything which Customer must do under the PowerEPOS Flexible Payment Solution Agreement must be done at Customer’s cost.

17.  Customer must ensure that:

a)      neither Customer nor any Guarantor becomes Insolvent; and

b)      Customer, the Guarantor, or another Person who provides a security in connection with the PowerEPOS Flexible Payment Solution Agreement is not in default under that security; and

c)      the Guarantor is not in default under the guarantee; and

d)      Customer pays on time any amount due under the PowerEPOS Flexible Payment Solution Agreement or other agreement Customer have with Triniteq; and

e)      Customer, the Guarantor, or another Person gives Triniteq correct and not misleading information in connection with any PowerEPOS Flexible Payment Solution Agreement or hire purchase agreement, any guarantee of a PowerEPOS Flexible Payment Solution Agreement or hire purchase agreement or a security; given in connection with a PowerEPOS Flexible Payment Solution Agreement or hire purchase agreement; and

f)        Customer’s financial position does not deteriorate so that in Triniteq’s opinion Customer’s ability to meet Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement or other agreement with Triniteq is materially adversely affected.

18.  If Customer loses the Products, Hardware, Services, Software and/or Goods or they are stolen, seized, or destroyed, Customer must comply with Triniteq’s reasonable directions in relation to remedial action.

 

Part E - PPSA further steps

PPSA Further Steps

19.  Customer agrees to do anything (such as obtaining consents, signing and producing documents, and getting documents completed and signed) which Triniteq reasonably ask and consider necessary for the purposes of:

a)      providing more effective security over the Products, Hardware, Services, Software and/or Goods, or any other Personal property over which Triniteq have a Security Interest for payment of money owing to Triniteq in connection with the PowerEPOS Flexible Payment Solution Agreement;

b)      ensuring that a Security Interest created under the PowerEPOS Flexible Payment Solution Agreement is enforceable, perfected (Including, where possible, by control in addition to registration) and otherwise effective;

c)      enabling Triniteq to apply for any registration, or give any notification, in connection with a Security Interest created under the PowerEPOS Flexible Payment Solution Agreement so that the Security Interest has the priority Triniteq require;

d)      enabling Triniteq to exercise Triniteq’s rights in connection with the Products, Hardware, Services, Software and/or Goods;

e)      binding Customer and any other Person intended to be bound under the PowerEPOS Flexible Payment Solution Agreement;

f)        showing whether Customer are complying with the PowerEPOS Flexible Payment Solution Agreement.

PPSA Undertaking

20.  If:

a)      Customer holds any Security Interest for the purposes of the PPSA and if Customer’s failure to perfect such Security Interest would materially adversely affect Customer’s business or Triniteq’s Security Interest over the Products, Hardware, Services, Software and/or Goods; or

b)      a Security Interest in Customer’s favour arises over the Products, Hardware, Services, Software and/or Goods (whether or not as a result of a breach by Customer under the PowerEPOS Flexible Payment Solution Agreement),

Customer agrees to implement, maintain, and comply in all material respects with, procedures for the perfection of those Security Interests. These procedures must include procedures designed to ensure that Customer takes all reasonable steps under the PPSA to continuously perfect any such Security Interest Including all steps reasonably necessary:

c)      for Customer to obtain, the highest-ranking priority possible in respect of the Security Interest (such as perfecting a purchase money Security Interest or perfecting a Security Interest by control); and

d)      to reduce as far as possible the risk of a third party acquiring an interest free of Triniteq’s Security Interest (such as Including the serial number in a financing statement for Personal property that may or must be described by a serial number).

If Triniteq ask, Customer agrees to arrange at Customer's expense an audit of the PPSA procedures. Triniteq may ask Customer to do this if Triniteq reasonably suspect that Customer is not complying with this clause.

Security Interest in chattel paper

21.  If a Security Interest in connection with the Products, Hardware, Services, Software and/or Goods in the form of chattel paper (as defined in the PPSA) is held by Customer or arises in Customer’s favour (whether or not as a result of a breach by Customer under the PowerEPOS Flexible Payment Solution Agreement) Customer grant a Security Interest in the chattel paper to Triniteq for the purpose of securing payment of any money Customer owes Triniteq in connection with the PowerEPOS Flexible Payment Solution Agreement. The Security Interest created by this clause is a charge and Customer may not transfer, dispose of or otherwise deal with the chattel paper or allow another Security Interest to exist over it. Customer must deposit with Triniteq all original documents of title comprising the chattel paper and any other documents Triniteq request relating to the chattel paper.

Registration

22.  Triniteq may, at the Customer’s expense, apply for any registration, or give any notification, in connection with a Security Interest created under the PowerEPOS Flexible Payment Solution Agreement.

Notification of name change

23.  Customer must notify Triniteq in writing of any change in Customer’s name at least 14 days before Customer proposes to change Customer’s name.

Exclusion of certain PPSA provisions

24.  Customer agrees that:

a)      Triniteq need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA, or any other provision of the PPSA notified to Customer by Triniteq after the date of the PowerEPOS Flexible Payment Solution Agreement, to the extent the law permits them to be excluded;

b)      Triniteq may not exercise rights under section 143 of the PPSA to the extent the law permits them to be excluded; and

c)      Triniteq need not give any notice required under the PPSA (Including a notice of a verification statement) unless the requirement to give the notice cannot be excluded.

 

Part F – What happens at the end of the PowerEPOS Flexible Payment Solution Agreement?

25.  What happens at the end of the PowerEPOS Flexible Payment Solution Agreement/Term?

25.1     On the date specified in the Term, Quote and/or Products, Hardware, Services, Software and/or Goods Schedule at the end of the Term, Title, ownership, and possession of the Hardware (only) is relinquished by Triniteq and title, ownership, and possession of the Hardware (only) is passed on to Customer, strictly excluding the Software and other Goods subject to clause 25.3.

25.2     If Customer does not want to own the Hardware, Customer must, before the end of the Term:

a)      return the Products, Hardware, Software and/or Goods to Triniteq in good working order, and in good repair (fair wear and tear excepted) to a place Triniteq nominate; and

b)      give Triniteq any certificates of registration, insurance certificates, logbooks, instruction and service manuals and other documents relating to them, and a signed transfer of all certificates of registration in favour of Triniteq or a Person Triniteq nominate; and

c)      pay Triniteq the current Monthly Instalment for the Products, Hardware, Services, Software and/or Goods; and

d)      pay Triniteq any other amount Payable under the PowerEPOS Flexible Payment Solution Agreement in the Term.

25.3     If Customer wish to own the Hardware:

a)      pay Triniteq all Monthly Instalments and/or the final payment for the Products, Hardware, Services, Software and/or Goods in the Term; and

b)      pay Triniteq any other amount Payable under the PowerEPOS Flexible Payment Solution Agreement

25.4     Customer may terminate the PowerEPOS Flexible Payment Solution Agreement and purchase the Hardware from Triniteq at any time by:

a)      at least 10 business days before Customer want to purchase the Hardware, telling Triniteq in writing that Customer intends to purchase the Hardware; and

b)      paying to Triniteq:

                                                      i. all Monthly Instalments which are still to fall due and the final payment on the Term; and

                                                    ii. all other money owing to Triniteq by Customer under the PowerEPOS Flexible Payment Solution Agreement; and

                                                   iii. any amount Triniteq determine is Payable to Triniteq under 12.1(h) as a result of Customer terminating the PowerEPOS Flexible Payment Solution Agreement.

25.5     When Customer pay Triniteq the amounts noted in 25.1, 25.3 (a & b) 25.4(b) and/or and if Customer have done everything Customer should have done under the PowerEPOS Flexible Payment Solution Agreement, title to the Hardware will pass to Customer on an “as is – where is” basis and without any representation or warranty from Triniteq as to title, condition, or any other matter.

 

Part G – What Happens if Customer repudiate the PowerEPOS Flexible Payment Solution Agreement?

26.  What Happens if Customer repudiate the PowerEPOS Flexible Payment Solution Agreement?

26.1     The fundamental provisions of the PowerEPOS Flexible Payment Solution Agreement are that Customer must:

a)      pay all money due on time and as required by the PowerEPOS Flexible Payment Solution Agreement; and

b)      comply with 1.3, 1.6, 1.7, 2.3, 5, 14 and 17.

26.2     Customer will repudiate the PowerEPOS Flexible Payment Solution Agreement and Triniteq may terminate it by notice to Customer if:

a)      Customer does not comply with the fundamental provisions of the PowerEPOS Flexible Payment Solution Agreement except that for the purposes of this clause Customer will have complied with the requirement to pay all money due on time and as required by the PowerEPOS Flexible Payment Solution Agreement if it has been paid within 2 business days of the due date; or

b)      Customer’s conduct indicates, in Triniteq’s reasonable opinion, that Customer no longer intends to be bound by the PowerEPOS Flexible Payment Solution Agreement; or

c)      Triniteq reasonably believe Customer, the Guarantor or another Person has acted fraudulently in connection with the PowerEPOS Flexible Payment Solution Agreement, any guarantee of the PowerEPOS Flexible Payment Solution Agreement or a security given in connection with any PowerEPOS Flexible Payment Solution Agreement; or

d)      Customer has repudiated any other PowerEPOS Flexible Payment Solution or hire purchase with Triniteq.

26.3     If Triniteq give Customer this notice of termination, Customer must immediately:

a)      return the Products, Hardware, Software and/or Goods to Triniteq in good working order, and in good repair (fair wear and tear excepted) to a place Triniteq nominate; and

b)      give Triniteq any certificates of registration, insurance certificates, logbooks, instructions and service manuals and other documents relating to Products, Hardware, Software and/or Goods, and a signed transfer of all certificates of registration in favour of Triniteq or a Person Triniteq nominates; and

c)      pay Triniteq the Termination Value for all the Products, Hardware, Services, Software and/or Goods calculated as at the day Triniteq gives Customer notice, as liquidated damages for Triniteq’s loss of bargain. The Termination Value does not include additional amounts Customer may owe Triniteq under 12.1(c) because Customer did not comply with the PowerEPOS Flexible Payment Solution Agreement or 12.1(h) because Triniteq terminated the PowerEPOS Flexible Payment Solution Agreement. Customer remains liable for those amounts in addition to the Termination Value; and

d)      pay Triniteq all amounts owing under the PowerEPOS Flexible Payment Solution Agreement Including:

                                                                    i. all arrears of Monthly Instalments;

                                                                   ii. any Monthly Instalment; and

                                                                 iii. repossession costs, due on the day Triniteq give Customer this notice and other payments due up to and on that day.

26.4     Triniteq may Take Possession of the Products, Hardware, Services, Software and/or Goods without terminating the PowerEPOS Flexible Payment Solution Agreement on Customer’s repudiation of it. For one month following the day on which Triniteq takes possession of the Products, Hardware, Services, Software and/or Goods, Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement (Including the obligation to pay all money due on time and as required by the PowerEPOS Flexible Payment Solution Agreement) will continue as if the Products, Hardware, Services, Software and/or Goods remained in Customer’s possession and Triniteq will not be taken for the purposes of the PowerEPOS Flexible Payment Solution Agreement to have accepted Customer’s repudiation of the PowerEPOS Flexible Payment Solution Agreement (although Triniteq reserves the right to do so). At the end of the one-month period, Triniteq must either redeliver the Products, Hardware, Services, Software and/or Goods to Customer or terminate the PowerEPOS Flexible Payment Solution Agreement. Triniteq will only be obliged to redeliver the Products, Hardware, Services, Software and/or Goods to Customer if Customer has paid all repossession costs, storage charges and other costs incurred by Triniteq in exercising Triniteq’s rights under this clause and the Products, Hardware, Services, Software and/or Goods have not been sold by Triniteq. If Customer has not paid these costs at the end of the one-month period, Triniteq may terminate the PowerEPOS Flexible Payment Solution Agreement. Triniteq may terminate the PowerEPOS Flexible Payment Solution Agreement by notice to Customer at any time after taking possession of the Products, Hardware, Services, Software and/or Goods under this clause.

26.5     If Customer repudiates the PowerEPOS Flexible Payment Solution Agreement, Customer or the Guarantor must provide Triniteq on Triniteq’s request with security over all Customer’s or the Guarantor’s assets and undertaking in a form and substance satisfactory to Triniteq.

 

Part H – What Happens When the Products, Hardware, Services, Software and/or Goods are Returned?

27.  General

27.1     As soon as practicable after any Products, Hardware, Services, Software and/or Goods are Returned to Triniteq (other than for a temporary return pursuant to 26.4) Triniteq must either:

a)      offer them for sale in good faith at a public auction or by tender or private treaty and Triniteq need not include any warranty on the condition or suitability of the Products, Hardware, Services, Software and/or Goods are Returned or our title to them; or

b)      attempt to re-Hire them in good faith.

27.2     Triniteq must pay Customer the proceeds Triniteq receives from selling or re-Hiring any of the Products, Hardware, Services, and/or Goods, up to their:

a)      final payment (if the goods are returned under 25); or

b)      Termination Value (if the Products, Hardware, Services, and/or Goods are returned under 26.3 or if Triniteq terminate the PowerEPOS Flexible Payment Solution Agreement under 26.4), less:

                                                                    i.  all costs and expenses Triniteq reasonably incur in selling or re-Hiring; and

                                                                   ii.  amounts Customer owe under the PowerEPOS Flexible Payment Solution Agreement, or any agreement or account Customer has with Triniteq.

Where the Products, Hardware, Services, Software and/or Goods are subject to the Goods Act 1958 (Victoria) and are repossessed by Triniteq (other than as a result of a voluntary return of the goods by Customer), 27.2 does not apply. Also, 27.2 is subject to 27.5 to 27.12.

Special provisions – Victoria

27.3     Where the Products, Hardware, Services, Software and/or Goods are subject to the Goods Act 1958 (Victoria) and are repossessed by Triniteq (other than as a result of voluntary return of the goods by Customer) then Triniteq must pay Customer:

a)      if Triniteq sell or dispose of the Products, Hardware, and/or Goods, an amount equal to the proceeds of the Products, Hardware, and/or Goods; or

b)      if Triniteq do not sell or dispose of the Products, Hardware, and/or Goods or if Triniteq fail to sell or dispose of the Products, Hardware, and/or Goods as soon as reasonably practicable after taking possession (or such other time as Triniteq and Customer agree), an amount equal to the value of the Products, Hardware, and/or Goods at the time Triniteq took possession of the Products, Hardware, and/or Goods, less any amounts which Triniteq are entitled to deduct from those proceeds under 27.

27.4          If 27.3 applies, Triniteq are entitled to deduct from the proceeds of the sale, or the best price reasonably obtainable by Triniteq for the Products, Hardware, and/or Goods as reasonably determined by Triniteq at that time, the following amounts:

a)      all amounts owed by Customer under this agreement as at the date of repossession, Including the amounts described in 12.1(a) and 12.1(h); and

b)      all costs and expenses Triniteq reasonably incur in taking possession of the Products, Hardware, and/or Goods; and

c)      all costs and expenses Triniteq reasonably incur for storage, repair or maintenance of the Products, Hardware, and/or Goods; and

d)      all costs and expenses Triniteq reasonably incur for selling or disposing of the Products, Hardware, and/or Goods, whether or not Triniteq have subsequently sold or disposed of the Products, Hardware, and/or Goods.

Special provisions – Western Australia

27.5     If the Hire-Purchase Act 1959 (WA) applies, Triniteq will comply with it and despite anything in this document:

a)      Triniteq will give Customer notice (if required) in accordance with sections 13(1) and 25 of the Hire-Purchase Act 1959 (WA); and

b)      if Triniteq repossess the goods, Triniteq will apply a definition of “Termination Value” which is consistent with the requirements of section 15 of the Hire-Purchase Act 1959 (WA) and Triniteq will:

c)      pay Customer any amounts Customer is entitled to under section 15 of the Hire-Purchase Act 1959 (WA); and

d)      not recover any amounts Triniteq are not entitled to recover under section 15 of the Hire-Purchase Act 1959 (WA).

Note: “repossess” in this clause does not include Customer returning the Products, Hardware, Services, Software and/or Goods voluntarily to Triniteq.

 

Part I – What Customer Acknowledges in entering the PowerEPOS Flexible Payment Solution Agreement

28.  About the PowerEPOS Flexible Payment Solution Agreement, Customer acknowledges that:

a)      Customer has not relied on Triniteq’s skill or judgement in deciding to enter into the PowerEPOS Flexible Payment Solution Agreement; and

b)      unless Customer has told Triniteq otherwise, Customer did not enter into the PowerEPOS Flexible Payment Solution Agreement as trustee of any trust or settlement; and

c)      the interest component of any payments under the PowerEPOS Flexible Payment Solution Agreement are deductible by Customer for the purpose of the Income Tax Assessment Act 1936 (Cwlth); and

d)      Customer is not a strata corporation within the meaning of any consumer credit legislation; and

e)      Customer has no connection with the supplier of the Products, Hardware, Services, Software and/or Goods unless previously disclosed to Triniteq; and

f)        the PowerEPOS Flexible Payment Solution Agreement may not be terminated by Customer except with Triniteq’s consent; and

g)       Triniteq has not made any representation or statements as to the accounting, legal or taxation treatment of any PowerEPOS Flexible Payment Solution Agreement or hire purchase agreement and Customer has obtained Customer’s own accounting, legal and taxation advice; and

h)      Triniteq is not liable to Customer:

                                                                    i. for any loss Customer suffers as a result of the Commissioner of Taxation denying or rejecting that payments under the PowerEPOS Flexible Payment Solution Agreement are deductible as specified in (c) above; and

                                                                   ii. for any taxes, charges or imposts imposed on Customer as a result of Customer entering into the PowerEPOS Flexible Payment Solution Agreement; and

                                                                 iii. if an authorised signatory signs the PowerEPOS Flexible Payment Solution Agreement on Customer’s behalf, that signatory has been properly and duly authorised by Customer to sign the PowerEPOS Flexible Payment Solution Agreement on Customer’s behalf.

29.  About the Products, Hardware, Services, Software and/or Goods, Customer acknowledges that:

a)      subject to 30.1(a) the Customer alone is responsible for examining the Products, Hardware, Services, Software and/or Goods before accepting them and for satisfying themselves about them, Including:

                                                                    i.  their compliance with their description; and

                                                                   ii. their condition, suitability, and fitness for Customer’s purposes; and

                                                                 iii. if an authorised signatory signs or Person agrees to the PowerEPOS Flexible Payment Solution Agreement on Customer’s behalf, that signatory or Person has been properly and duly authorised by Customer to sign the PowerEPOS Flexible Payment Solution Agreement on Customer’s behalf.

a)      if an intermediary or consultant has been engaged in connection with the PowerEPOS Flexible Payment Solution Agreement, that intermediary or consultant is not Triniteq’s agent and is not authorised to make any representation on Triniteq’s behalf; and

b)      Customer is responsible for obtaining and maintaining at all times all licences or registrations required by law in connection with the Products, Hardware, Services, Software and/or Goods or their use; and

c)      Customer has satisfied themselves that the Products, Hardware, Services, Software and/or Goods and their supply and use do not constitute a breach of any patent, copyright or other intellectual property; and

d)      Triniteq are not the manufacturer of the Hardware goods and/or some components of the Software; and

e)      unless stated otherwise in the Products, Hardware, Services, Software and/or Goods Schedule or Quote, the Products, Hardware, and/or Goods are new; and

f)        Customer has sole control of and responsibility for the safe operation and use of the Products, Hardware, Services, Software and/or Goods during the Term of the PowerEPOS Flexible Payment Solution Agreement; and

30.   About legal warranties and limitations,

30.1     Customer acknowledges that:

a)      Triniteq has not made any representation, warranty or undertaking about the condition or the quality of the Products, Hardware, Services, Software and/or Goods, their suitability or fitness for purpose or their safety except those implied by legislation Including the Competition and Consumer Act 2010 (Cwth) (to the extent it applies and cannot be excluded); and

b)      to the full extent permitted by law, Triniteq are not liable for any injury to any Person or loss or damage to property arising from the possession, operation or use of the Products, Hardware, Services, Software and/or Goods (Including any injury, loss or damage arising from Triniteq’s negligence); and

c)      whether or not the relevant provisions of the Competition and Consumer Act 2010 (Cwth) or any law to a similar effect applies, Triniteq’s liability for anything in relation to the Products, Hardware, Services, Software and/or Goods, their use, or their installation, Including damage or economic loss to anyone, is limited as much as it can be.

However, if the supplier of the Products, Hardware, and/or Goods has given Triniteq warranties for the Products, Hardware, and/or Goods then, to the full extent permitted by law, Customer may make any claim on the supplier which Triniteq could have made.

30.2     Reliance – Customer’s acknowledgments contained in the PowerEPOS Flexible Payment Solution Agreement take effect as representations and warranties. Customer enters into the PowerEPOS Flexible Payment Solution Agreement on the basis of the representations and warranties and agree that the representations do not merge on the execution of the PowerEPOS Flexible Payment Solution Agreement.

 

Part J – Guarantee and Indemnity

31.  Extent of Guarantor’s obligations

31.1     By signing the Triniteq Quote containing the PowerEPOS Flexible Payment Solution, the Guarantor could become liable to pay Triniteq:

                                                                    i. under the guarantee in 32; and

                                                                   ii. under the indemnity in 33; and

                                                                 iii. costs and other expenses under 34; and

                                                                 iv. interest under 35.

31.2     The Guarantor is liable for all the Guarantor’s obligations under the PowerEPOS Flexible Payment Solution Agreement both separately and jointly with any one or more other Persons named in the PowerEPOS Flexible Payment Solution Agreement as “Guarantor”.

32.  What the Guarantor undertakes in giving the guarantee and indemnity in the PowerEPOS Flexible Payment Solution Agreement Guarantee

32.1     The Guarantor guarantees that the Customer will pay Triniteq all amounts Payable under the PowerEPOS Flexible Payment Solution Agreement when they are due. This guarantee continues until all these amounts have been paid in full or the Guarantor ends it under 37.

32.2     It Triniteq ask, the Guarantor must pay Triniteq any amount which the Customer does not pay Triniteq when it is due under the PowerEPOS Flexible Payment Solution Agreement. Triniteq need not ask the Customer first to pay Triniteq.

33.  Indemnity

33.1     The Guarantor indemnifies Triniteq against, and the Guarantor must therefore pay Triniteq for, loss or costs Triniteq suffer or incur if:

a)      Customer does not, is not obliged to, or is unable to, pay Triniteq in accordance with the PowerEPOS Flexible Payment Solution Agreement; or

b)      the Guarantor is not obliged to pay Triniteq an amount under 32; or

c)      Triniteq are obliged, or Triniteq agree, to pay an amount to a trustee in bankruptcy or liquidator in connection with a payment by the Guarantor or Customer. (For example, Triniteq may have to, or may agree to, pay interest on the amount.)

33.2     The indemnity in 33.1 is a continuing obligation, separate and independent from the Guarantor’s other obligations under the PowerEPOS Flexible Payment Solution Agreement. It continues after those other obligations end, unless the Guarantor ends it under 37.

34.  Additional amounts the Guarantor must pay Triniteq’s costs and other expenses - The Guarantor must pay Triniteq for:

a)      Triniteq’s costs in arranging, administering (Including enforcing or taking any other action in connection with Triniteq’s rights) and terminating the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement; and

b)      all stamp and other duties, fees, taxes and charges Payable in connection with the PowerEPOS Flexible Payment Solution Agreement and the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement and any transaction (such as a payment or receipt) under it, and any interest, penalties, fines and expenses in connection with them.

35.  Interest - The Guarantor or Customer must pay interest calculated on daily balances on any amount the Guarantor owes under 32 or 33 from the date Triniteq ask the Guarantor for the amount until the Guarantor pays it. This interest is to be calculated and is Payable in accordance with Triniteq’s terms-of-use.

36.  The Guarantor’s own costs and other expenses - The Guarantor must pay for anything which the Guarantor must do under the PowerEPOS Flexible Payment Solution Agreement.

37.  The Guarantor may end this guarantee and indemnity - The Guarantor may end its liability under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement at any time if the Guarantor pays Triniteq all amounts Payable under the PowerEPOS Flexible Payment Solution Agreement at that time Including any amount which Triniteq reasonably determine to be the future or contingent liability of the Customer.

The Guarantor’s liability in respect of other PowerEPOS Flexible Payment Solution Agreement or hire purchase agreements is not affected by this clause.

Changes to rights

38.  Reinstatement of rights - Under law, a trustee in bankruptcy or liquidator may ask Triniteq to refund a payment Triniteq have received in connection with the PowerEPOS Flexible Payment Solution Agreement, or the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement. To the extent Triniteq are obliged to, or Triniteq agree to, make a refund, Triniteq may treat the original payment as if it had not been made. Triniteq are then entitled to Triniteq's rights against the Guarantor under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement as if the payment had never been made.

39.  Triniteq’s rights are protected.

39.1     Rights given to Triniteq under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement and the Guarantor’s liabilities under it are not affected by any act or omission by Triniteq or by anything else that might otherwise affect them under law relating to guarantees and indemnities, Including:

a)      the fact that Triniteq vary or replace the PowerEPOS Flexible Payment Solution Agreement, such as by extending the term; or

b)      the fact that Triniteq release the Customer or give them a concession, such as more time to pay; or

c)      the fact that the Customer opens another account with Triniteq; or

d)      the fact that Triniteq releases, lose the benefit of or do not obtain any security; or

e)      the fact that Triniteq do not register any security which could be registered; or

f)        the fact that Triniteq release any other Person who guarantees the Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement; or

g)       the fact that the obligations of any Person who guarantees the Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement may not be enforceable; or

h)      the fact that any Person who was intended to guarantee the Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement does not do so or does not do so effectively; or

i)        the death, mental or physical disability or insolvency of any Person Including the Guarantor or the Customer.

39.2     The guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement does not merge with or adversely affect:

a)      any other guarantee or indemnity, or mortgage, charge or other security, or right or remedy to which Triniteq are entitled at any time; or

b)      a judgement or order which Triniteq obtain against the Guarantor in respect of an amount Payable under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement.

Triniteq can still exercise Triniteq's rights under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement as well as under the judgement, order, other guarantee or security.

40.  The Guarantor’s rights are suspended - As long as an amount Payable under the PowerEPOS Flexible Payment Solution Agreement remains unpaid, the Guarantor may not, without Triniteq’s consent:

a)      reduce the Guarantor’s liability under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement by claiming that the Guarantor or the Customer or any other Person has a right of set-off or counterclaim against Triniteq; or

b)      exercise any legal rights to claim to be entitled to the benefit of another guarantee or mortgage, charge or other security given in connection with an amount Payable under the PowerEPOS Flexible Payment Solution Agreement or an amount Payable under the guarantee and indemnity contained in the PowerEPOS Flexible Payment Solution Agreement (for example, the Guarantor may not try to enforce any mortgage Triniteq have taken to ensure repayment of amounts Payable under the PowerEPOS Flexible Payment Solution Agreement); or

c)      claim an amount from the Customer or another Guarantor of the Customer’s obligations under a right of indemnity; or

d)      claim an amount in the insolvency of the Customer or another Guarantor of the Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement (Including a Person who has signed the PowerEPOS Flexible Payment Solution Agreement with the Guarantor).

41.  What the Guarantor acknowledges and declares

41.1     The Guarantor acknowledges that the Guarantor is responsible for making itself aware of the financial position of the Customer and any other Person who guarantees the Customer’s obligations under the PowerEPOS Flexible Payment Solution Agreement.

41.2      The Guarantor declares that it does not enter into the PowerEPOS Flexible Payment Solution Agreement as a trustee, unless the Guarantor has told Triniteq otherwise in writing.

42.         When must the Guarantor pay?

42.1     The Guarantor must pay any amount Payable to Triniteq under the PowerEPOS Flexible Payment Solution Agreement on the date Triniteq specify.

43.         The Guarantor must take further steps.

43.1     The Guarantor must promptly do anything Triniteq ask (such as obtaining consents, signing, and producing documents and getting documents completed and signed) to bind itself under the PowerEPOS Flexible Payment Solution Agreement.

44.         How Triniteq may exercise Triniteq’s rights

44.1     Triniteq may claim against the Guarantor under the PowerEPOS Flexible Payment Solution Agreement before Triniteq enforce any of Triniteq’s rights:

a)      against the Customer or any other Person; or

b)      under another document such as a guarantee or mortgage, charge, or other security.

(For example, Triniteq may ask the Guarantor to pay Triniteq first without Triniteq having made the Customer bankrupt.)

45.  How Triniteq may use money paid by the Guarantor.

45.1     Triniteq may claim against the Guarantor under the PowerEPOS Flexible Payment Solution Agreement before Triniteq enforce any of Triniteq’s rights: Triniteq may use any money paid by the Guarantor under the PowerEPOS Flexible Payment Solution Agreement towards paying any part Triniteq choose of the amounts the Guarantor owes Triniteq under the PowerEPOS Flexible Payment Solution Agreement.

45.2     Triniteq may place in a suspense account any payments Triniteq receives from the Guarantor for as long as Triniteq think prudent.

 

Part K – Other Requirements

46.  Triniteq’s right to act.

46.1     Triniteq may do anything which should have been done by Customer or the Guarantor under the PowerEPOS Flexible Payment Solution Agreement but which Triniteq consider Customer, or the Guarantor have not done properly.

46.2     If Customer does not return the Products, Hardware, Services, Software and/or Goods when Customer is required to under the PowerEPOS Flexible Payment Solution Agreement, Triniteq may enter the place where the Products, Hardware, Services, Software and/or Goods are and Take Possession of the Products, Hardware, Services, Software and/or Goods without prior notice to Customer.

47.  How Triniteq may exercise Triniteq’s rights.

47.1     Triniteq may exercise a right, remedy or power or give or refuse Triniteq’s consent in any way Triniteq consider appropriate Including by imposing conditions.

47.2     If Triniteq do not exercise a right, remedy or power at any time, Triniteq can still exercise it later.

47.3     Triniteq are not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising, a right, remedy or power, except where it is caused by Triniteq’s fraud, gross negligence or wilful misconduct.

47.4     Triniteq’s rights, remedies and powers under the PowerEPOS Flexible Payment Solution Agreement are in addition to any other rights, remedies and powers provided by law independently of it.

47.5     Any termination under Part F does not affect any other right or remedy Triniteq have for amounts due to Triniteq which remain unpaid.

47.6     Triniteq’s rights and remedies may be exercised by any of Triniteq’s directors, any of Triniteq's employees whose job title includes the word “manager” or “officer” or any other Person Triniteq authorise.

48.  How Triniteq may use money Triniteq receives.

48.1     Triniteq acting reasonably, may use any money received under the PowerEPOS Flexible Payment Solution Agreement towards meeting any part Triniteq choose of the amounts Customer owe Triniteq.

49.  Confidentiality

49.1     Subject to clause 1.8, each party agrees not to disclose information provided by any other party that is not publicly available or the existence of, or contents of, the PowerEPOS Flexible Payment Solution Agreement except:

a)      to any Person in connection with an exercise of rights or a dealing with rights or obligations under the PowerEPOS Flexible Payment Solution Agreement;

b)      to each parties’ officers, employees, legal and other advisers and auditors;

c)      to any party to the PowerEPOS Flexible Payment Solution Agreement or any related entity of any party to the PowerEPOS Flexible Payment Solution Agreement, provided the recipient agrees to act consistently with this clause;

d)      with the formal written consent of the party whose information is being disclosed;

e)      any disclosure the disclosing party reasonably believes is required by any law or stock exchange (except this paragraph does not permit Triniteq to disclose any information of the kind referred to in section 275(1) of the PPSA unless section 275(7) of the PPSA applies).

50.  Triniteq’s certificates

50.1     Triniteq may give Customer or the Guarantor a certificate regarding any matter concerning the PowerEPOS Flexible Payment Solution Agreement Including:

a)      the Implicit Rate; or

b)      any amount Payable by Customer to Triniteq; or

c)      any amount Payable by the Guarantor to Triniteq.

50.2     The certificate is sufficient evidence of the accuracy of its content unless it is proved to be false.

51.  Setting off money owed to Customer - Triniteq may set off any money Triniteq owe Customer against any money Customer owe Triniteq under the PowerEPOS Flexible Payment Solution Agreement, any other agreement or otherwise. Triniteq may set off any money Triniteq owe the Guarantor against money the Guarantor owes to Triniteq under the PowerEPOS Flexible Payment Solution Agreement, any other agreement or otherwise. This clause does not limit other rights Triniteq has under the PowerEPOS Flexible Payment Solution Agreement.

52.  Notices and other communications

52.1     Notices, certificates, consents and other communications in connection with the PowerEPOS Flexible Payment Solution Agreement must be in writing.

52.2          They must be:

a)      left at the address last notified; or

b)      sent by prepaid post to the address last notified; or

c)      sent by email to the email address last notified; or

d)      sent by facsimile to the facsimile number last notified.

52.3     If they are sent by post, they are taken to be received on the third day after posting.

52.4     If they are sent by email or facsimile, they are taken to be received on production of a transmission report by the email platform or transmitting machine which indicates that the whole email or facsimile was sent and received.

52.5     They take effect from the time they are received unless another time is specified in them.

53.  Variation - A term of the PowerEPOS Flexible Payment Solution Agreement, or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.

54.  Business days - If a date for payment of money under the PowerEPOS Flexible Payment Solution Agreement is not a business day, the money must be paid on the preceding business day.

55.  Applicable law

55.1     The PowerEPOS Flexible Payment Solution Agreement is governed by the laws of Western Australia. Both Triniteq and the Customer (each party) irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia.

55.2     Customer and the Guarantor submit to the nonexclusive jurisdiction of the courts of that place and courts of appeal from them as per Triniteq’s terms-of-use.

55.3     Triniteq may serve any document in a court action (Including a writ of summons, other originating process or third or other party notice) on Customer or the Guarantor, as the case may be, by delivering it to Customer’s or the Guarantor’s, as the case may be, address in the Quote or Products, Hardware, Services, Software and/or Goods Schedule (or any changed address notified to Triniteq) or by leaving it there. This does not prevent any other method of service.

56.  The PowerEPOS Flexible Payment Solution Agreement and the law - Any present or future law that varies the Guarantor’s obligations under the PowerEPOS Flexible Payment Solution Agreement is excluded to the extent allowed by law if it affects Triniteq’s rights or remedies adversely.

57.  Triniteq’s right to investigate - If Triniteq believe, acting reasonably, in good faith that Customer are or may be in breach of the PowerEPOS Flexible Payment Solution Agreement, Triniteq may appoint a Person to investigate whether this belief is accurate. Customer must cooperate with and comply with all reasonable requests made by this Person. If in fact Customer is in breach of the PowerEPOS Flexible Payment Solution Agreement at any time during the investigation (being a material breach, as reasonably determined by Triniteq) Customer must pay all of Triniteq’s reasonable costs associated with the investigation.

58.  Trustee provisions - Customer acknowledges that if Customer enter into the PowerEPOS Flexible Payment Solution Agreement as trustee of any trust or settlement, the PowerEPOS Flexible Payment Solution Agreement is for the benefit of the trust, Customer has authority to enter into the PowerEPOS Flexible Payment Solution Agreement and Customer has the right to be fully indemnified out of trust assets for obligations incurred under the PowerEPOS Flexible Payment Solution Agreement.

59.  Authority to complete and amend - Customer and the Guarantor authorise Triniteq to:

a)      fill in any blanks in the PowerEPOS Flexible Payment Solution Agreement and any document authorised by Triniteq which is connected with the PowerEPOS Flexible Payment Solution Agreement (such as Corporations Act forms, financing statements, financing change statements or transfers for the Products, Hardware, Services, Software and/or Goods), as long as Triniteq act in good faith when doing so; and

b)      make any amendment to any document described in (a) above, in order to accurately reflect or give effect to the terms of the PowerEPOS Flexible Payment Solution Agreement which have been agreed between Customer and Triniteq.

60.  Appropriate use of Triniteq services.

60.1     Customer warrants that Customer's use of the Products, Hardware, Services, Software and/or Goods Triniteq provides will not breach any law of Australia or any other country.

60.2     Where Triniteq consider it necessary for Triniteq to meet Triniteq’s regulatory and compliance obligations:

a)      Customer must provide Triniteq with any information Triniteq reasonably request;

b)      Triniteq will disclose information Triniteq hold to regulatory and law enforcement agencies; and

c)      Triniteq may delay, block, or refuse to provide any of Triniteq’s services.

Triniteq will not be liable to Customer or any other Person for any loss or damage of any kind that may be suffered as a result of Triniteq exercising Triniteq’s rights under this clause.

61.  Acting fairly - Triniteq will act fairly and reasonably in accordance with Triniteq’s legitimate business interests in exercising Triniteq’s rights and discretions under this PowerEPOS Flexible Payment Solution Agreement.

62.  General

62.1     If any provision in these Terms of Use is invalid or unenforceable, the provision will be read down or severed as necessary without affecting the validity or enforceability of the remaining provisions of these Terms of Use.

62.2     The Customer may not assign the Customer’s rights or delegate performance of the Customer’s obligations under these Terms of Use without Triniteq’s prior consent which will not be unreasonably withheld. Triniteq may, without the Customer’s consent, assign its agreement with the Customer to any member of Triniteq or in connection with any merger or change of control of Triniteq or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms of Use.

62.3     This PowerEPOS Flexible Payment Solution Agreement, together with these Terms of Use, together with any Form(s) and Subscription Plan, SaaS, constitute the entire agreement, and supersede any and all prior agreements between the Customer and Triniteq in relation to the Customer’s use and access to the Triniteq or Triniteq Partner’s Services, Software, Products, Goods and/or Hardware.

62.4     Triniteq may periodically amend these Terms of Use by providing notice with the varied Terms of Use to take immediate effect upon such notice. The Customer’s continued use of the Triniteq or Triniteq’s Partners Services, Software, Products, Goods and/or Hardware after any variation of these Terms of Use will be deemed to constitute your (the Customer’s) acceptance of the varied Terms of Use. If the Customer does not accept the varied Terms of Use, the Customer must discontinue use of the Triniteq or Triniteq’s Partners Services, Software, Products, Goods and/or Hardware and/or terminate the Customer’s Account.

62.5     Triniteq’s failure to enforce any provision of these Terms of Use does not constitute a waiver of that provision and it will not affect Triniteq’s right to subsequently enforce that provision.

62.6     These Terms of Use and any contract, agreement, Form which they apply to are governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.

62.7     Clauses 43 to 45 of Triniteq’s Terms of Use, Schedule 1, shall survive any termination of the Customer’s agreement with Triniteq. Termination of such agreement shall not limit the Customer’s or Triniteq’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms of Use.

62.8     Triniteq may provide any notice required under these Terms of Use by publishing the notice on the Website or emailing any notice to the email address connected to the Customer’s Account. The Customer must give notice to Triniteq by emailing: accounts@triniteq.com.

62.9     Headings and capital letters are for convenience only. The division of these Terms of Use into parts, articles and sections, and the use of capital letters is for convenience of reference only and shall not affect the validity, interpretation, or construction of these Terms of Use.   

62.10 If words in these Terms of Use/ PowerEPOS Flexible Payment Solution Agreement are in the singular, they are presumed to include the plural (and vice versa) unless a contrary intention appears.

62.11 Anything includes the whole and each part of it.

 

Part L – Glossary/Meaning of Words

 

·         “Triniteq” means Triniteq International Pty Ltd, and its subsidiaries.

·         “Customer” means the client, customer, Person, people, business, entity, organisation, user, you, or party who is purchasing, subscribing to, renting, Hiring, consuming, requesting, receiving, or using Triniteq products and/or services (or any Person acting on behalf of, and with the authority of, the Customer), along with their subsidiaries, affiliates, clients, stakeholders and/or Partners and means the single individual or organisational/end-user who accepts or is deemed to accept this agreement.

·         “Business Day” means any day (other than a Saturday or a Sunday) Triniteq are open for business in the place we sign the PowerEPOS Flexible Payment Solution Agreement.

·         “Break Costs” Break Costs are an amount representing Triniteq’s reasonable estimate of Triniteq’s loss arising as a result of a termination of the PowerEPOS Flexible Payment Solution Agreement for any reason.

·         “Costs” includes charges and expenses; and costs, charges and expenses in connection with: (a) legal, accounting, valuation and other advisers and investigators; and (b) repossession.

·         “GST law” means has the same meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).  

·         “Guarantor” means the Person or Persons approved by Triniteq as the Guarantor for the Customer in respect of the PowerEPOS Flexible Payment Solution Agreement, and if there is more than one, means each of them separately and every two or more of them jointly.

·         “Hardware (only)” means the POS, and POS related hardware provided by Triniteq to Customer in relation to the PowerEPOS Flexible Payment Solution Agreement. Hardware (only) may include – POS Terminals, POS Tablets, Printers, Ethernet Switch, Patch Cables, KDS Screens, Customer Display Units, Pole and Monitor Mounts, Cash Drawers, and other POS associated Hardware.  

·         “Hire/Hiring” means the hire or hiring of Triniteq owned/provided Products, Hardware, Services, Software and/or Goods as a part of the PowerEPOS Flexible Payment Solution Agreement. All Hardware (only) is considered Hired until the Term has concluded and all/any outstanding payments due to Triniteq are paid in full.

·         “Implicit Rate” means the interest rate implicit in the PowerEPOS Flexible Payment Solution Agreement, as reasonably determined by Triniteq.

·         “Including” when introducing a list of items, does not limit the meaning of the words to those items or to items of a similar kind.  

·         “Insolvent” means Insolvent or Insolvent under administration (each as defined in the Corporations Act), in receivership, in receivership and management, in liquidation, in provisional liquidation, wound up, administration, subject to any arrangement, assignment or composition or protected from any creditors under any statute or dissolved (other than to carry out a reconstruction while solvent).  

·         “Monthly Instalment” is the amount of money payable by Customer per calendar month in relation to the Triniteq provided Products, Hardware, Services, Software and/or Goods in respect to the PowerEPOS Flexible Payment Solution Agreement.

·         “Partner” means POWEREPOS Services Limited UK, and other commercial entities that have a contractual alliance with Triniteq.

·         “Payable” in relation to an amount means an amount which is currently Payable or will or may be Payable in the future.

·         “Person” includes firm, partnership, committee, and incorporated and unincorporated bodies.  

·         “POS” means point of sale.

·         “PPSA” means the Personal Property Securities Act 2009 (Cwlth).  

·         “Products, Hardware, Services, Software and/or Goods” means products that can be identified by being supplied by Triniteq, Including Triniteq or Triniteq’s Partners Services, Software, Products, Goods, Hardware Point of Sale platform, tools and services offered on the Triniteq Website(s) Including the Software, the API and any Documentation as well as any modification, update or enhancement.

·         “Products, Hardware, Services, Software and/or Goods Schedule” means in respect of a PowerEPOS Flexible Payment Solution Agreement, the Triniteq provided Products, Hardware, Services, Software and/or Goods Quoted, and provided by Triniteq to the Customer which is part of that PowerEPOS Flexible Payment Solution Agreement. 

·         “PowerEPOS Flexible Payment Solution Agreement” means a hire of Triniteq provided Products, Hardware, Services, Software and/or Goods on the terms of these terms-of-use and the Products, Hardware, Services, Software and/or Goods Schedule or Quoted applicable to those Products, Hardware, Services, Software and/or Goods.

·         “Purchased” When the Term has concluded, and any/all outstanding payments due to Triniteq by the Customer are paid in full the Hardware (only) provided as a part of the PowerEPOS Flexible Payment Solution Agreement will be reclassified and the Hardware (only) will then be deemed to be Purchased/owned by the Customer and not owned by Triniteq any longer. The conclusion of the Term, and the payment of all amounts owed by Customer to Triniteq for anything/everything will also denote the conclusion of this PowerEPOS Flexible Payment Solution Agreement between Triniteq and Customer until such time when another Agreement between Triniteq and Customer is agreed to.

·         “Quote” or “Quoted” means sales quote which is a document that tells a Customer how much Triniteq’s Products, Hardware, Services, Software and/or Goods will cost Customer relating to the PowerEPOS Flexible Payment Solution Agreement or other Triniteq agreements.

·         “Returned” means when a product has been returned to Triniteq by Customer. The process of a return is when Customer has previously Hired and taken possession of Triniteq provided Products, Hardware, Software and/or Goods in relation to the PowerEPOS Flexible Payment Solution Agreement and the Hired Products, Hardware, Software and/or Goods have been taken back by or given back to Triniteq.

·         “Security Interest” includes any Security Interest under the PPSA, mortgage, pledge, lien, charge, hypothecation, trust arrangement, title retention arrangement or other Security Interest or encumbrance.  

·         “Software” means POS and associated software owned by Triniteq, or Triniteq’s Partner(s) which allows Customer access to Software on a subscription basis using external servers as a part of the PowerEPOS Flexible Payment Solution Agreement. Software cannot ever be owned by Customer and requires continual monthly payments after the Term and/or termination of the PowerEPOS Flexible Payment Solution Agreement as per Triniteq’s terms-of-use. If continual monthly payments are not paid by Customer during or after the Term, the Software will be deactivated by Triniteq, and inoperable by Customer.

·         “Take Possession” means obtaining possession of the Products, Hardware, Services, Software and/or Goods after demanding their redelivery.  

·         “Term” means the period of time allotted to the PowerEPOS Flexible Payment Solution Agreement to achieve final completion which is time agreed by both parties. The Term may be for either 24, or 36 months or another time frame agreed by both Triniteq and Customer.  

·         “Termination Value” for any of the Products, Hardware, Services, Software and/or Goods on a day, means the sum of: 

a.      the present value on that day of the final payment for those Products, Hardware, Services, Software and/or Goods and 

b.      the present values on that day of the Monthly Instalments which are still to fall due, and which are attributable to those Products, Hardware, Services, Software and/or Goods for the remainder of the Term. The present value of an amount on a day is calculated by discounting that amount at the Implicit Rate.

·           “Triniteq’s terms-of-use, Terms of Use, or terms-of-use” means schedule 1, 2, 3, & 4 of Triniteq’s terms-of-use, inclusive.

 

Go to:

Schedule 1 - Triniteq Support & Sales Agreement Terms of Use – General

Schedule 2 – Triniteq Support and Sales Agreement Terms of Use – Charges, Fees, Payments, Quotes, Purchase Orders & Proposals

Schedule 3 – Triniteq or Triniteq's Partner Software Licensing Agreement