Services Agreement

Services Agreement

Effective Date: 17 Nov 2023

For the purposes of this Agreement, the following terms have the meanings set out below:

ACH Debit means a method of funding the Whizrock Account and/or paying Fees directly from the Linked Account through the automated clearing house.

Affiliate means, with respect to any party, any corporation, company, partnership, or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party. For the purposes of this definition, control means ownership of half or more of the voting interests in an entity.

Applicable Law means all applicable laws, statutes, codes, ordinances, orders, rules, whether domestic or foreign, plus all judgments, orders, writs, injunctions, decisions, rulings, and awards of any government authority having jurisdiction.

Customer Data means information or documentation provided by or on behalf of Customer to Whizrock under this Agreement, including without limitation Payee Information.“Customer User” means an individual that Customer permits to use the Services or for whom user access has been purchased.

EEA means European Economic Area, which consists of the Member States of the EU and Iceland, Liechtenstein, and Norway.

EU means European Union.

Fees means all fees payable to Whizrock in consideration of the Services, including, without limitation, Subscription Fees, Transaction Fees, fees and amounts for attempted or completed Transactions, and other fees stated in the Order Form or otherwise.

Funds means Customer money held in the Whizrock Account.

Go-Live Date means a date after Customer passes Whizrock’s initial compliance review and the Services are first made available to Customer to send payments.

Linked Account means a bank account owned by Customer and used for funding the Whizrock Account.

Lost Funds means non-delivery of Transaction Funds due to Whizrock’s incorrect execution of Payment Instructions in breach of this Agreement.

Money Transmission Services means a Service where Whizrock acts on behalf of Customer by taking possession of Funds and transmitting those Funds to Payees as a money transmitter.

Order Form means the Whizrock order form including the Services that Customer ordered.

Payee means a person or business (1) with whom Customer has a pre-existing contractual relationship; (2) who has provided a product or service to Customer; and (3) who will be the recipient of a payment made by the Customer through Whizrock’s Payment Services.

Payee Information means the Payee’s identification information, payment information, tax information, and all other related information regarding a Payee collected through the Services as required for Customer’s usage of the Services, but does not include anonymized or aggregated information about Payees within or in relation to the Services.

Payee Portal means an internet portal provided by Whizrock to the Payees, from which the Payee may access and use the Services. 

Payment Instructions means instructions and all relevant information provided to Whizrock and required by Whizrock to execute payments to the Payees through the Payment Services.

Payment Processing Services means a Service where Whizrock is appointed by the Payee as its agent for the limited purpose of accepting payments on its behalf.

Payment Services means Services which enable Customer to make payments to Payees, including but not limited to Money Transmission Services, and Payment Processing Services.

Payer Dashboard means the portal through which Customer accesses the Services.

Registration Information means the Payee’s personal data collected by Whizrock in order for the Payee to register for and use the Payee Portal. Registration Information does not include any information related to the Transactions between the Customer and the Payee, or any other Customer Confidential Information.

Schedule means any amendments, exhibits, schedules, or addendums, or other agreements entered into by the parties.

Services means all services offered by Whizrock including, but not limited to, the Payment Services, Payer Dashboard, Payee Portal, and all other websites, features, functionalities, and capabilities.

Subscription Fee means the total per-unit or other Fee for access to a particular Service during the Term as stated in the Order Form, provided within the Services, or as otherwise agreed between the parties.

Substantial Change means any change which imposes material additional obligations on Customer or takes away any material rights of Customer.

Supplier means each Payee, and each additional person or business whose information is entered into the Services as a vendor of Customer.

Whizrock means Hieros Consulting Pty Ltd, Australia for all customers and all Services.

Whizrock Account means Customer’s account with Whizrock through which the Services are provided.

Whizrock Bank means a bank or financial institution where Whizrock maintains customer Funds.

Whizrock Content means any information, pictures, videos, text, graphics, software programs or code used or made accessible by Whizrock in connection with the Services or collected by or on behalf of Whizrock related to the usage of the Services.

Whizrock KYC Data Gathering Form means such forms, questionnaires, and correspondence as Whizrock may require Customer or its Affiliates to complete or provide prior to or during the Term hereof to gather information concerning the Customer.

Transaction means an actual or attempted payment or unit-based transaction.

Transaction Fee means the Fees payable per Transaction or certain related processes, as stated in the Order Form provided within the Services, or as otherwise agreed between the parties.

This Whizrock Services Agreement, including any Schedules, Order Forms, and any other applicable agreements located at www.whizrock.com forms the agreement (“Agreement”) between Whizrock and its customer (“Customer”) and governs Customer’s use of the Whizrock Services. Whizrock may amend this Agreement at any time by posting a revised version on the Whizrock website. The revised version will be effective at the time Whizrock posts it. In addition, if the revised version includes a Substantial Change, Whizrock will provide Customer with 30 calendar days’ prior notice of the Substantial Change. The parties hereby agree as follows: 

1 How this Agreement Applies

This Agreement governs Customer’s use of and access to all Services made available by Whizrock.

2 Services

2.1 Provision. Subject to the terms and conditions of this Agreement, Whizrock grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right, during the Term, to access and use the Services specified on the Order Form or otherwise specifically authorised for use from within the Service, solely for Customer’s own internal business purposes. Customer’s purchase of Services is not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written public comments made by Whizrock regarding future functionality or features of the Services.

2.2 Usage Limitations. Customer shall not itself or through any other person:

(1) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use in any way, any portion of the Services or Whizrock Content, other than as permitted by Whizrock in writing;

(2) transmit or otherwise make available in connection with these Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware or software, or any other actually or potentially harmful, disruptive, or invasive code or component;

(3) access the Service for the purpose of performance testing or benchmark studies;

(4) interfere with or disrupt the integrity or performance of any Service, or

(5) sell, license, or exploit for any commercial purposes any use of or access to the Services.

2.3 Non-Whizrock Products and Services. Third parties may make available products or services, including, for example, software applications that interoperate with a Service, or implementation or other consulting services. Customer’s acquisition of such products or services, and any exchange of data between Customer and any third-party provider, product, or service is solely between Customer and the applicable third party. Whizrock is not responsible for and does not provide any warranties regarding third party applications, products, or services, or their security, functionality, or availability, whether they are designated by Whizrock as “certified” or otherwise. Between Whizrock and Customer, Customer is responsible for any acts and omissions of such third parties, for the performance or nonperformance of the third-party product or service with respect to the Service, and for the effect it may have on Whizrock’s systems or the Services.

2.4 Integrations. The Services may contain features designed to interoperate with third party software applications. Whizrock cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, including, without limitation, where the provider of a third-party application ceases to make the application available for interoperation with the corresponding Service features in a manner acceptable to Whizrock.

3 Access

3.1 Accounts and Users. Whizrock shall provide Customer with login credentials to access the Services. Customer may grant Customer Users access to the Services only for Customer’s internal business purposes.  Unless otherwise permitted by Whizrock, Customer shall not exceed the number of Customer Users that it has purchased under the applicable Order Form. Each Customer User must have their own login, and Customer and Customer Users shall not share login credentials with more than one person, or with any third party. If Customer exceeds the number of Customer Users purchased under the applicable Order Form, Whizrock will charge and Customer shall pay the applicable Fees for all additional Customer Users (including any past uncharged Fees as a result of any additional Customer Users).

Whizrock may provide additional Order Forms for documentary purposes only, and Customer’s failure to execute additional Order Forms will not excuse Customer’s obligations to pay for the additional Customer Users. Customer shall notify Whizrock if

(1) any Customer User is no longer authorised to use the Services so that Whizrock can cancel their credentials, and

(2) any Customer User believes their credentials may have been compromised. Customer assumes full responsibility for the use of its login credentials, its Customer Users’ compliance with this Agreement, and for all data submitted to the Service. Customer shall comply, and shall ensure that Customer Users comply, with the Compliance and Acceptable Use Policy located at www.Whizrock.com in their use of the Services.

3.2 Go Live Date. Subject to the terms of this Agreement, Whizrock shall provide Customer with the applicable Payment Services beginning on the Go-Live Date. Whizrock may amend the Go-Live Date by providing Customer with prompt notice if

(1) its initial compliance onboarding of Customer is not complete;

(2) Whizrock determines that the technical integration with Customer systems is not complete; or

(3) Whizrock determines that not doing so would expose either party to security, financial or reputational risk.

4 Funding and Transacting

4.1 Whizrock Account. Customer shall supply the necessary Funds to its Whizrock Account to satisfy all obligations to Whizrock in connection with the Payment Instructions and use of the Services. If Customer or a Customer Affiliate has an insufficient balance in their Whizrock Account, Customer shall provide additional Funds to its Whizrock Account, and Whizrock may offset such amounts from any Whizrock account owned or controlled by Customer. 

4.2 Completing Transactions. Customer shall submit Payment Instructions to Whizrock either concurrently with, or prior to, sending Whizrock the corresponding Funds. Whizrock has no obligation to send payments to Payees until Whizrock is in receipt of the Funds for the payment and associated Transaction Fees. Whizrock’s obligations under this Agreement for each Transaction will be deemed satisfied when Funds transfer from the Whizrock Bank to the Payee’s bank, payment service provider, or financial institution.

4.3 Cancellation. Customer will not be able to cancel Payment Instructions once it has confirmed them. However, if Customer asks Whizrock to cancel Payment Instructions, Whizrock may take reasonable efforts to try to stop the Transaction or recover the Funds, but it is not responsible if it is unable to do so.

4.4 Refusal. Whizrock is under no obligation to initiate or complete Transactions where Whizrock determines that:

(1) it has incorrect or incomplete Payment Instructions or Payee Information;

(2) Transactions exceed transaction limits; or

(3) the Transaction appears suspicious or in violation of this Agreement or Applicable Law.

5 Payees

5.1 Payee Access. Whizrock will provide all Payees with a free account from which to access the Payee Portal. Customer may integrate the Payee Portal on the Customer website to allow Payees to submit Payee Information.

5.2 Payee Information. Between Whizrock and Customer, all Payee Information collected on behalf of the Customer is owned by Customer. Customer shall obtain, or cause Payees to provide, correct and complete information as Whizrock may require, and shall immediately notify Whizrock of any incorrect Payee Information, Payment Instruction or other information provided to Whizrock. Customer is responsible for all liability arising out of incorrect or incomplete Payee Information or other information provided to Whizrock.

5.3 Use of Payee Information. Except as otherwise provided in this Agreement, Whizrock shall use Customer’s Payee Information solely to provide and improve the Services, comply with Applicable Law, and to conduct Whizrock’s compliance programs. Whizrock may send emails or other communication to Payees on behalf of Customer to provide the Services, or as required by Applicable Law, or on its own behalf. Registration Information is owned by both Customer and Whizrock, and Whizrock shall use Registration Information in accordance with this Agreement and Whizrock’s Privacy Policy found at Whizrock.com/privacy.

6 Fees

6.1 Fees. Customer shall pay Fees to Whizrock for the Services as stated in an Order Form or as otherwise agreed between the parties. Fees paid are not refundable. Whizrock may amend Fees by providing Customer with 30 days’ prior notice. Upon each renewal, unless Whizrock provides notice of different pricing at least 30 days prior to the applicable Renewal Term. Renewal of promotional or one-time discounts will be at Whizrock’s applicable list price in effect at the time of the renewal.  In no event will the Subscription Fees for the Renewal Term be lower than the Subscription Fees for the previous Term.

6.2 Payment Method. Where a preferred payment method is stated in the Order Form, Whizrock shall first attempt to obtain payment of Fees by that method. However, Customer hereby authorises Whizrock to charge any applicable Fees to the Whizrock Account.

6.3 Late Payment of Fees. If Customer does not pay Whizrock all Fees and any other amounts due under this Agreement within 30 days of the date on which they are due, then Whizrock may charge Customer interest for such time that the amount and all accrued interest remain outstanding at the lesser of:

(1) one percent per month, or

(2) the maximum rate permitted by Applicable Law.

6.4 Taxes. Customer shall pay all applicable taxes, value added taxes, levies, imposts, duties, fees, deductions, withholdings, or other governmental charges which are levied or imposed by reason of this Agreement, other than taxes based on Whizrock’s income.

6.5 Payee and Customer Bank Fees. All fees and expenses charged by Payee’s bank and intermediary banks used by the Payee bank are the responsibility of Customer or the Payee (as applicable), and not Whizrock. Customer is responsible for fees charged by its bank or other third parties supplying services to Customer.

6.6 Currency Conversions. If Customer requests a currency conversion, a currency conversion fee (spread) will be included in the exchange rate. Exchange rates may fluctuate and are determined by the Whizrock Bank at the time it processes the conversion. If a currency conversion is included in the Payment Instructions, Whizrock estimates the exchange rate. If the estimate is lower than the actual exchange rate at the time of payment, Customer shall pay the deficit. If the estimate is higher, any overage will remain in the Whizrock Account.

6.7 Settlement of Transaction Fees. If, as part of the Services delivered to Customer, a Transaction is executed or a Fee paid from a currency account that is denominated in a currency different from the currency denominated in Customer’s Order Form (a “Foreign Currency Account”) then at the time of payment the Fee may be converted from the Order Form currency to the currency of the Foreign Currency Account using the prevailing exchange rates. Continuing fluctuations in exchange rates mean that the Fees paid from the applicable Foreign Currency Account may vary accordingly. The specific exchange rates used to redenominate Fees to the currency of the relevant Foreign Currency Account may be viewed within the Whizrock Services. If Whizrock is unable to debit Fees from the Foreign Currency Account, Fees may be subsequently deducted from any other Whizrock Account or invoiced separately.

7 Confidential Information.

7.1 Obligations. Each party acknowledges that it may directly or indirectly disclose Confidential Information (as defined below) to the other party during this Agreement. All such Confidential Information disclosed hereunder remains the sole property of the disclosing party (or other third party), and the receiving party does not receive any interest in, or rights with respect thereto, except as set forth herein. Each receiving party shall

(1) treat the disclosing party’s Confidential Information with the same degree of care and security as it treats its own confidential information, but in no event with less than a reasonable degree of care; (2) not disclose the disclosing party’s Confidential Information to any third party except to its and its Affiliates’ directors, employees, contractors, and legal or financial advisors, who have a need to know the information for the purposes of this Agreement and who have agreed to or are otherwise bound by confidentiality obligations at least as restrictive as those herein; and

(3) not use the disclosing party’s confidential information for any purpose outside the scope of this Agreement.

7.2 Disclosures. Notwithstanding the foregoing, a receiving party may share the disclosing party’s Confidential Information:

(1) with a third party with the prior written consent of the disclosing party; or

(2) to the extent disclosure is required by Applicable Law or to comply with a subpoena, or request by a government authority.

The receiving party shall give the disclosing party prompt written notice (to the extent required by law) of such legal requirement prior to the disclosure.

7.3 “Confidential Information” means all proprietary, secret, or other data relating to the disclosing party, its Affiliates, or either’s operations, employees, products or services, clients, customers, or potential customers, that by its nature or the circumstances of disclosure a reasonable person would deem to be confidential. Confidential Information includes, but is not limited to, supplier lists, customer lists, bank or other account numbers, pricing information, computer access codes, login credentials, instruction and/or procedural manuals, Whizrock Content, and the terms and conditions of this Agreement. Information is not considered Confidential Information to the extent, but only to the extent, that such information is:

(1) already known to the receiving party free of any restriction at the time it is obtained;

(2) subsequently learned from an independent third party free of any restriction and without breach of this Agreement;

(3) or becomes publicly available through no wrongful act of the receiving party; or

(4) independently developed by the receiving party without reference to any Confidential Information of the other. The terms of this Agreement are deemed Confidential Information of the parties.

7.4 Duration of Confidentiality. The duty to protect the other party’s Confidential Information survives termination and expires seven years from the date of termination of this Agreement, except that all obligations regarding Confidential Information constituting a trade secret will remain in effect until the information ceases to be considered a trade secret under Applicable Law.

7.5 Authorised Uses. Notwithstanding any provision herein to the contrary,

(1) Customer authorises Whizrock to collect, store, and use Customer Data, including Customer’s Confidential Information and data relating to the use of the Services

(A) to perform or improve the Services,

(B) to conduct Whizrock’s compliance programs,

(C) for any purpose required by Applicable Law, and

(D) to disclose to Whizrock Affiliates, Whizrock Bank(s), and other Whizrock suppliers for the
same purposes, and

(2) except as prohibited by Applicable Law, Whizrock may generate, use, and disclose aggregated or anonymized Customer Data and data relating to Customer’s or any Payee’s use of the Services for Whizrock’s own business purposes, including research, development, and improvement of future products and services, including data products or aggregate insights for customers or third parties.

7.6 Records. Whizrock shall collect, store, and use Records for the purpose of providing the Payment Services and in accordance with Applicable Law, and make Records available to Customer through the Payer Dashboard. “Record” means a record of a Transaction, whether successful or rejected, including but not limited to the amount of Funds, Customer information, Payee Information, Payment Instructions, and other Transaction information.

8 Term and Termination.

8.1 Term. As specified in the Order Form, this Agreement is effective on the Effective Date, will remain in effect for the initial term specified in the Order Form (the “Initial Term”), and renews automatically for additional and successive renewal terms (each a “Renewal Term”). If the length of the Renewal Term is not specified in the Order Form, then each Renewal Term will be 12 months. The Initial Term, and each Renewal Term, if any, are referred to herein as the “Term”.

8.2 Termination. Either party may terminate this Agreement at the end of a Term by providing the other party with written notice of its intent to terminate 30 days prior to the end of such Term.

8.3 Termination for Cause. Either party may suspend performance or terminate this Agreement if the other party is in material breach of this Agreement, and the breach is not cured within 30 days of being provided with written notice of the breach. Either party may immediately terminate this Agreement if the other party is dissolved or liquidated, becomes insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors. Whizrock may immediately suspend performance or terminate this Agreement if Customer fails Whizrock’s ongoing compliance reviews, or Whizrock determines in its sole discretion that Customer’s use of the Services creates excessive regulatory, security, financial, or reputational risk.

8.4 No Limitation on Remedies. A party’s exercise of its termination rights for material breach does not restrict or diminish such party’s rights to other remedies available in connection with the material breach.

8.5 Effect of Termination. In the event of a termination of this Agreement, all rights to use the Service granted hereunder automatically terminate, and Customer shall pay all Fees owed to Whizrock for the balance of the current Term no later than 30 calendar days after the date of the termination, or the date the Fees are due, whichever is sooner. During the Term, Customer may download a copy of their transactional data directly from the Services and may request Whizrock’s reasonable assistance with this process at Customer’s expense.

9 Warranties

9.1 General Warranties. Each party represents and warrants as of the Effective Date that:

(1) it has the full corporate right, power and authority to enter into this Agreement;

(2) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and

(3) the individual executing this Agreement on behalf of a party has authority to bind such party to this Agreement and the performance hereof.

Whizrock represents and warrants to the best of Whizrock’s knowledge that, as of the Effective Date, the Services are not the subject of any claims of intellectual property infringement from a third party.

9.2 Customer Warranties. Customer represents and warrants that: (1) it will use the Services only for its internal business purposes only and not for personal, family, or household purposes; (2) it has full and exclusive right, title, and interest in Funds; (3) it will resolve any dispute or complaint directly with the each Supplier that may arise; (4) its use of the Services is and will remain in compliance with this Agreement and Applicable Laws.

9.3 Accurate Information. Customer represents and warrants that all forms, due diligence questionnaires, and correspondence provided by Customer in association with this Agreement or the use of the Services, including but not limited to the Whizrock KYC Data Gathering Forms, plus updates to any of the foregoing, are complete and accurate. Customer shall provide Whizrock with prompt written notice of any changes to the information provided to Whizrock, including the Whizrock KYC Data Gathering Form.

9.4 Disclaimer. Whizrock Makes No Representations Or Warranties, Expressed Or Implied, With Respect To The Services Under This Agreement Including Without Limitation Any Warranties Of Title, Merchantability, Fitness For A Particular Purpose Or That Otherwise Arise From A Course Of Performance Or Usage Of Trade. Without Limitation, Whizrock Makes No Representation That Use Of The Services Will Result In Any Improvement In The Business Of Customer Or Its Relationships With Suppliers. Whizrock’s Tax And Regulatory Features Are Provided Solely For Customer’s Convenience And Are Not Intended To Provide Tax Or Legal Advice. For Such Advice, Customer Must Consult An Accountant Or Attorney, As Applicable. When Providing The Tax Compliance Services, Whizrock Is Not Acting As A Withholding Agent On Customer’s Behalf. No Representation Made On The Whizrock Website, A Whizrock User Guide, Wiki, Or Other Advertising Or Support Materials Or Correspondence Will Be Construed As A Representation Under This Agreement.

10 Intellectual Property.

10.1 Ownership. Whizrock retains all rights, title, and interest in the Services and Whizrock Content, including any intellectual property rights contained therein and any derivatives thereof. Each party retains all right, title, and interest in its products and services including any intellectual property rights contained therein and any derivatives thereof (for each, their “Property”). All use of Property inures to the benefit of the owning party. Neither party shall seek to register, record, obtain, or attempt to pursue any intellectual property or other proprietary rights or protections in or to the other party’s Property. All rights to Property not expressly granted in this Agreement are reserved. Neither party shall assert any intellectual property rights with respect to the other party’s content, materials or technology or any element, adaptation, variation, or name thereof. Neither party shall remove, obscure, or alter any notices of intellectual property rights or disclaimers appearing in or on any materials provided by the other party.

10.2 “Feedback” means any suggestion or idea for improving or otherwise modifying Whizrock’s products or services. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Whizrock’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback. Whizrock has no obligation to compensate or credit Customer or the individual providing such Feedback.

11 Indemnity

11.1 Customer shall indemnify, defend, and hold Whizrock, its parent, Affiliates, officers, directors, and employees harmless from and against any third-party lawsuit, claim, liability, loss, penalty, or other expense (including attorneys’ fees and cost of defense) arising from Customer’s (1) breach of this Agreement, (2) violation of Applicable Law, (3) usage of the Services from Customer’s login credentials, and (4) Supplier dispute of any kind.

12 Limitation of Liability

12.1 Under No Circumstances Shall Either Party Be Liable For Special, Incidental, Indirect, Consequential, Exemplary Or Punitive Damages, Including But Not Limited To, Loss Of Sales, Goodwill, Profits Or Revenues. Except As Provided In This Section, Whizrock’s Aggregate Liability Under This Agreement Shall Not Exceed Customer’s Direct Damages In An Amount No Greater Than The Fees Paid By Customer To Whizrock Hereunder During The Twelve Months Prior To The Event Giving Rise To Liability.

12.2 Whizrock Shall Not Be Liable For Any Damages Caused Directly Or Indirectly By: (1) An Act Or Omission Of Customer, Its Affiliates, A Supplier, Or A Third Party; (2) Customer’s Use Of An Sso Authentication Provider Or Customer’s Failure To Implement Two-Factor Authentication; Or (3) Delays, Disruptions, Or Bugs In The Services Or Software.

12.3 If Customer Accesses The Payments Services, The Following Applies: Notwithstanding The Foregoing, In The Event Of Lost Funds, Whizrock Is Responsible For The Full Amount Of Any Lost Funds As Indicated On The Corresponding Whizrock Receipt. Whizrock Shall Not Be Liable For Any: (1) Incorrect Or Incomplete Payment Instructions, Payee Information, Or Other Information Provided To Whizrock; Or (2) Suspension Of The Services By Whizrock Or One Of Its Banking Or Other Financial Services Providers On The Basis Of Its Legal, Compliance Or Risk Policies.

12.4 All Limitations Of Liability In This Agreement Apply: (1) Even If Any Remedy In This Agreement Fails Of Its Essential Purpose; And (2) Regardless Of The Theory Or Basis Of Liability, And Whether In Contract, Tort (Including Without Limitation For Negligence), Strict Liability, Misrepresentation, Restitution, Or Otherwise.

13 General

13.1 Language; Complaints. The language of this Agreement is English. Information Whizrock provides to Customer will be in English. If Customer has a complaint, it must first contact Whizrock by email to: [email protected] or by post to: Whizrock, Unit 302, 4 Footbridge Boulevard, Wentworth Point, NSW 2127, Australia.

13.2 Assignment. Customer may assign this Agreement to a successor entity in the event of a merger, acquisition, or corporate reorganisation, provided that (1) Customer provides Whizrock with written notice of the assignment, (2) the assignee company is approved by Whizrock’s compliance department (as required by law) prior to use of the Services, and (3) the assignee company is not a competitor of Whizrock. Such assignment will only be effective upon the execution of an assignment agreement by Whizrock, Customer, and the successor entity, containing terms reasonably acceptable to Whizrock, and subject to any conditions contained therein. Except as expressly permitted in this section, Customer shall not assign this Agreement without Whizrock’s prior written consent, and any purported assignment without such consent will be null and void.

13.3 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior discussions, agreements, promises and correspondence, whether oral or written, regarding the subject matter hereof, including without limitation any memorandum of understanding between the parties.

13.4 Amendments. Except as provided for in the introductory paragraph of this Agreement, this Agreement may not be amended except by a document in writing signed by both Whizrock and Customer, or by Customer or a Customer User accepting subsequent terms and conditions within the Service.

13.5 No Waiver. No failure, delay, or forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party’s rights and powers under this Agreement or operate as a waiver of any breach or nonperformance by either party.

13.6 Severability. If any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement will not be affected, and the unenforceable provision will be enforced to the maximum extent permissible under Applicable Law. Nothing in this Agreement will be construed or be deemed to create any rights or remedies in or for the benefit of any third party.

13.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. A scanned or faxed version of this Agreement will be deemed as an acceptable original thereof.

13.8 Force Majeure. Except for the obligation to pay Fees, neither party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such party or its contractors, agents, or service providers, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.

13.9 Governing Law, Binding Arbitration.
(a) This Agreement is governed by the laws of NSW Australia according to Whizrock contracting entity, without giving effect to its conflicts of laws rules.

(b) Any dispute, claim or controversy arising out of or relating to this Agreement or to the use of the Services will be settled by binding arbitration in accordance with the rule specified above, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction. The arbitration will be conducted only in English, and with one arbitrator, mutually chosen by the parties. If the parties cannot agree on the arbitrator, one will be appointed under the applicable rules. THE PARTIES EACH WAIVE THE RIGHT TO A TRIAL BY JURY.

(c) If for any reason a dispute relating to this Agreement is deemed outside the scope of this agreement to arbitrate, or if this agreement to arbitrate is deemed unenforceable, to that extent, such legal suit, action or proceeding shall be instituted exclusively in a court of competent jurisdiction located in the venue specified in the table above according to the Whizrock contracting entity.

(d) The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the limitations of liability in this Agreement as to the types and the amounts of damages for which a party may be held liable. An oral hearing need not be held, except at the request of one or both parties. To the extent permitted by law, the parties shall keep the existence of the arbitration proceeding, hearing, award, and judgement in strict confidence.

13.10 Notices. All notices and other communications required or permitted hereunder to be given to a party to this Agreement must be in writing. Any notice sent by mail in accordance with this section will be effective the later of the day it is received, or five days after the day it is sent. Any notice by email in accordance with this section will be effective on the date received if received by 5:00pm AEST on a business day, or the next business day if received otherwise. Any notice to Whizrock must also be sent to [email protected] to be effective. Notices to Customer may be sent to the physical address provided by Customer in their Order Form, or to the email of one or more of Customer’s administrative users.

13.11 Personal Information.(a) Whizrock’s processing of personally identifiable information or personal data, as that term is defined under the EU General Data Protection Regulation 2016/679 (“GDPR”), or otherwise under Applicable Law, received by Whizrock in connection with the Services is governed by the terms and conditions of the Whizrock Data Processing Addendum (“DPA”) located at www.whizrock.com. Each party shall comply with the DPA. For the purposes of GDPR, Whizrock is a processor in connection with providing the Services under the Agreement to the Customer. Separately, where Whizrock processes personal data for an independent purpose to fulfil its own legal obligations, Customer and Whizrock are each separate controllers. Furthermore, the parties acknowledge that Whizrock may use anonymized or aggregated personal data for product research, development, and for the improvement of the Whizrock Services, or for other purposes determined solely by Whizrock. (b) Whizrock’s use and storage of personal data is further detailed in Whizrock’s Privacy Policy found at Whizrock.com/privacy.13.2 Survival. Sections 1, 6, and 7 through 14 (inclusive) of this Agreement survive termination of this Agreement, as well as any other sections that by their nature, or in accordance with Applicable Law, would reasonably be expected to survive.14. Definitions.

Standard Services Schedule

This schedule describes the additional terms and conditions applicable to Customers who contract with Whizrock. If in conflict with any other part of the Agreement, this Schedule will control.

1. Making Payments.

1.1 Linked Accounts. To fund the Whizrock Account, Customer must associate one or more Linked Accounts with it’s Whizrock Account. Customer shall provide to Whizrock all account numbers, owner identifications, and other information regarding each Linked Account reasonably requested. Customer represents and warrants that (1) it has the authority to provide all requested information regarding the Linked Account, and that any representative providing the information has the authority to provide it and authorise ACH Debits from the Linked Account, (2) it provides complete and accurate information regarding the Linked Account, and (3) it has the authority to authorise ACH Debits from the Linked Account for the purposes of this Agreement. Customer shall notify Whizrock promptly of any changes to information regarding the Linked Account.

1.2 Funding.

(a) Customer hereby authorises Whizrock to process an ACH Debit from the Linked Account to

(1) test and verify ACH Debit setup, using one or more attempts to debit nominal amounts,

(2) fund the Whizrock Account in accordance with Payment Instructions and Whizrock’s calculation of the amount needed to fund payments including amounts estimated for currency conversions and Fees, and

(3) pay any Fees owed to Whizrock pursuant to this Agreement. Customer may cancel this authorisation by calling Whizrock support or providing a notice of written cancellation which must be received by Whizrock at least five working days prior to any scheduled ACH Debit.

(b) If an ACH Debit is returned to Customer for any reason, Customer remains liable for all amounts that Whizrock sent pursuant to the Payment Instructions and any associated penalties and fees. Customer authorises Whizrock to resubmit a returned ACH Debit to the Linked Account.

(c) Customer shall comply with the NACHA Operating Rules. Whizrock may discontinue Customer’s usage of the ACH Debit method of funding the Whizrock Account at any time.

1.3 Whizrock Account. Affiliate Commissions received into the Whizrock Bank are held by Whizrock in a custodial capacity in an account for the benefit of Whizrock’s customers. If Whizrock or the Whizrock Bank receives an order of any court or governmental or regulatory authority relating to Customer, or if Whizrock or the Whizrock Bank deems it advisable in order to comply with or considering that it could be in breach of any Applicable Laws relating to any Customer, Whizrock or the Whizrock Bank may freeze Funds or block transfer of Funds. Customer hereby appoints Whizrock as its agent with respect to Funds in the Whizrock Account.

1.4 Rejected or Returned Transactions. If a payment is rejected or returned by the Payee or the Payee’s bank or financial institution, or a correspondent bank or financial institution, then the Funds will be returned to the Customer’s Whizrock Account. Funds from rejected Transactions will be exchanged back to the currency it originated from by the Whizrock Bank at the then-applicable exchange rate. Customer is responsible for all costs associated with rejected or returned Transactions, including but not limited to penalties and conversion fees. Customer authorises Whizrock to open and process any mail which is addressed to Customer at Whizrock’s address.

1.5 Single Sign-On. Customer may enable single sign-on (“SSO”) for Customer Users, wherein Customer shall use SSO authentication providers via a third-party application to manage login credentials to access the Services. If Customer enables SSO then

(1) Customer is responsible for its SSO use and configuration and shall ensure that it and its SSO authentication
provider uses two-factor authentication;

(2) Whizrock is not required to provide two-factor authentication; and (3) Whizrock may, in its sole discretion and at
any time without notice to Customer, discontinue the SSO configuration.