Club Management Agreement

Sportsground (Sportspay/Schoolpay) Individual Club Debitsuccess Management Agreement

Introduction

Debitsuccess provides billing services for a range of businesses and sports clubs throughout New Zealand.

The Client operates a business or sports club and has requested Debitsuccess to provide billing services to its Customers which Debitsuccess has agreed to provide on the terms set out in this Agreement.

Interpretation

“Agreement” means this agreement which includes the front page of this Agreement together with the terms and conditions contained in this Agreement”.

“Billing Services” means the collection of Customer payments by direct debit/credit card, the remittance of collected funds to the Client on a weekly basis and the reporting of all remitted transactions.

“Client” means the entity named on the front page of this Agreement and upon whose behalf this Agreement has been concluded and shall include the client’s executors, administrator, successors and or permitted assigns.

“Confidential Information” means all information that is treated or designated by Debitsuccess as confidential, which is not generally known to personnel outside Debitsuccess, or which should be reasonably regarded in all the circumstances as confidential, including, without limitation, technical details regarding Debitsuccess’ business, Debitsuccess management fees/commission rates and their method of calculation, Customers’ bank/credit card details, trade secrets, technical and business know-how, information relating to Debitsuccess staff, business dealings, contracts, Customers and marketing sales and business plans, details of Debitsuccess software and data processing, financial data and other sensitive corporate information, whether or not in material form.

“Customer” means a person or entity who has entered into a Payment Contract.

“Debitsuccess” means Debitsuccess Limited (a company duly incorporated in New Zealand).

“GST” means goods and services tax under the Goods and Services Tax Act 1985 or any substituted legislation.

“Management Commission” means the commission Debitsuccess is entitled to deduct from funds collected under the Payment Contracts at the rate specified in the Sportspay/Schoolpay application.

“Payment Contract” means the contract between a Customer, the Client and Debitsuccess which authorises Debitsuccess to collect payments from the Customer on behalf of the Client.

“Retention Amount” means the sum equivalent to collections by Debitsuccess of Payment Contracts for the Client over 2 calendar weeks. For the purposes of completing this calculation, Debitsuccess shall use, at Debitsuccess’ absolute discretion, either the amount collected in the 2 weeks immediately prior to the date of notice of termination or expiry of the Agreement or the average amount collected in a 2 week period during the Term.

“Term” means the Initial Term and any period of renewal as provided for in clause 7.

Client’s Responsibilities

Where a Customer wishes to make payments, the Client will provide the Customer with the electronic Payment Contract for completion and will ensure that instructions are provided to complete the Payment Contract correctly.

The Client acknowledges and agrees that it is its responsibility to obtain from the Customer a bank account or credit card account number for Debitsuccess to begin collecting Customer’s regular payments.

The Client will provide full training to its staff and ensure staff members at all times:

understand each party’s rights and obligations under the Payment Contract;
explain the rights and obligations to the Customer;
do all things and take all steps necessary to protect the rights and interests of Debitsuccess arising under any Payment Contract; and
make no representations on behalf of Debitsuccess that are inconsistent with the Payment Contract.

The Client acknowledges that the payments collected from Customers are inclusive of GST. The Client shall be solely responsible to account for and pay the GST.

The Client shall immediately advise Debitsuccess of all payments made by the Customer directly to the Client under a Payment Contract which Debitsuccess is managing. The Client confirms that Debitsuccess is entitled to receive a Management Commission on all payments made by a Customer in respect of a Payment Contract (even where paid directly to the Client).

The Client shall, within two days of receipt of a request from Debitsuccess:

provide to Debitsuccess all documentation required by Debitsuccess to enable it to deal with any charge back request or transaction recall request from a bank or card scheme; and
provide reasonable assistance to Debitsuccess to enable it to resolve any disputes with either the Client or a Customer.

The Client warrants to Debitsuccess that all information entered into the online Agreement application is true and correct.

The Client agrees to comply with all relevant laws and regulations, including but not limited to, the provisions of those regulations, requirements and/or codes of practice that apply specifically to the industry that the Client participates in.

Debitsuccess’ Responsibilities

Debitsuccess shall collect payments owing by Customers under the Payment Contracts on behalf of the Client throughout the Term.

Debitsuccess shall hold all funds it collects from Customers for the benefit of the Client but shall be entitled to deduct from those funds:

Management Commission
any other fees or payments payable under the terms of this Agreement, including the additional fees provided for in clause 10;

After deduction of funds Debitsuccess is entitled to deduct, Debitsuccess shall pay the balance of the funds held on behalf of the Client to the Clients bank account set out in the online application by direct credit bank transfer on a weekly basis.

Debitsuccess will provide the Client in electronic form a summary of the payments made under clause

Notwithstanding any other term of this Agreement, Debitsuccess shall not be liable to the Client for any breach by the Customer of its obligations under a Payment Contract.

Debitsuccess will not accept credit card payments over NZD$2,000 (unless Debitsuccess has given its prior written approval).

Debitsuccess is entitled to withhold the Client’s funds if:

the Client materially breaches this Agreement and fails to remedy such breach within five days;
Debitsuccess reasonably believes that the Client’s legal entitlement to the funds is in dispute including, without limitation, where:
- where a liquidator is involved in the affairs and/or management of the Client, and Debitsuccess does not have clear authority to release the funds,
Debitsuccess is contacted by the Police, a regulatory body or a government departments in relation to the Client’s activities; and
there is reason to believe that the Client is acting illegally or inappropriately.

Under no circumstances may Debitsuccess withhold the Client’s funds under clause 4.7 for longer than is reasonably necessary.

Term

This is an ongoing agreement which commences on the acceptance of the online application. Upon termination of this Agreement for any reason whatsoever, Debitsuccess shall have the right to withhold up to the last two (2) payments to the Client for a period of not less than ninety (90) days commencing on the last date of the relevant notice period, in order to provide a fund for reversals, refunds, credit card chargebacks and any other necessary adjustments.

Debt Collection

Debitsuccess shall take all reasonable steps to collect any overdue amount from a Customer. It shall be under no obligation to commence recovery action or to refer any overdue amount to an external Debt Collection Agency unless that service has been authorised by the Client on the Debitsuccess Management Agreement Form.

Where the Client has authorised Debitsuccess to employ an external Debt Collection Agency to collect overdue payments from a Customer, the following provisions shall apply:

If after taking all reasonable steps to collect outstanding monies from a Customer Debitsuccess is not successful, Debitsuccess shall advise the Client that it intends to instruct an external Debt Collection Agency to pursue the matter.
The Client shall within 5 days of receipt of that notice advise Debitsuccess whether or not it intends to cancel the contract with that Customer.
In referring debts of Customers to a Debt Collection Agency Debitsuccess shall ensure that the costs of any action are met from the recovery from a Customer rather than being a direct charge on the Client (as authorised by the Payment Contract).
Where the Client wishes to withdraw instructions from any external Debt Collection Agency or to stop any further action against a Customer for any reason whatsoever it shall:
- only give instructions through Debitsuccess; and
- reimburse Debitsuccess for any costs incurred by Debitsuccess with that Debt Collection Agency. For this purpose it irrevocably authorises Debitsuccess to deduct any costs including costs incurred by the external Debt Collection Agency from any moneys collected by Debitsuccess or the Debt Collection Agency on behalf of the Client.

Where Debitsuccess is not authorised to employ an external Debt Collection Agency, Debitsuccess shall request instructions from the Client if it has been unable to collect any overdue amount and it believes that the Customer is unlikely to pay without further enforcement measures.

Discretions

Where indicated on the Debitsuccess Management Agreement Form the Client grants to Debitsuccess the sole right to exercise the discretions which would otherwise be exercisable by the Client under a Payment Contract.

Closure of Clients Business / Reduction of Services Sale of Business or Assets

If the Business of the Client is closed or in the opinion of Debitsuccess the services of the Client are substantially reduced for a continuous period of twenty or more working days, then Debitsuccess, at its sole discretion, may cease to debit any Customer and/or cancel any Payment Contract. In such circumstances Debitsuccess shall not be obliged to compensate the Client for the loss of any Customer and shall not be liable to the Client for any consequential losses, or costs and/or expenses suffered by the Client as a result of or arising from any such actions undertaken by Debitsuccess.

Warranties & Indemnities

The Client warrants to Debitsuccess that:

neither the execution of this Agreement nor the performance by the Client of its obligations under this Agreement will cause it to be in breach of any agreement to which it is a party or is subject;
the Client is of full legal capacity;
the Client is not under any voluntary or involuntary legal disability so as to prevent Debitsuccess from performing its duties and discharging its responsibilities under this Agreement;
the Client is solvent, creditworthy, not bankrupt or insolvent and is of good financial standing;

The Client indemnifies Debitsuccess against any losses, costs, actions, claims, demands, damages, expenses, judgments, court orders or other liabilities (including legal costs on a solicitor/client basis) arising directly or indirectly out of or in connection with:

any breach by the Client of any of the representations, warranties or undertakings contained in clause 6.
any claim or action against DEBITSUCCESS by any third party or parties resulting from or relating to any breach of this Agreement by the Client.
any claim or action against DEBITSUCCESS by any third party or parties as a result of, or arising from, whether directly or indirectly:
- the products or services offered or provided to Customers by the Client;
- a breach by the Client of any of its obligations under this Agreement; and/or
- any wilful, unlawful or negligent act or omission of the Client.

The warranties, undertakings and indemnities contained in this clause are in addition to any other warranties, undertakings or indemnities contained elsewhere in this Agreement

Clause 9.2 shall survive the termination or expiration of this Agreement.

Additional Fees

Debitsuccess shall be entitled to charge additional fees at its normal rates, where Debitsuccess undertakes additional work (i.e., work outside the strict terms of this Agreement) at the request of the Client. All additional fees shall be paid by the Client on presentation by Debitsuccess of an invoice and may be deducted by Debitsuccess from any moneys held on behalf of the Client.

Confidentiality

Both parties acknowledge that by virtue of this Agreement and their contractual relationship they will be privy to Confidential Information and each party undertakes to the other that it:

will keep Confidential Information in the strictest secrecy and absolutely confidential;
acknowledges and agrees that Confidential Information the property of the other party, must be kept secret and confidential to protect the valuable goodwill and business interests of the other party;
will at all times protect Confidential Information from disclosure to any third party or parties;
will not use Confidential Information for its own benefit or interest without the express consent of the other party;
will not use Confidential Information in a manner that may cause injury, loss or harm to the other party.

The parties further agree and undertake to bind in like terms to those set forth under clause 11.1 above each and every partner, director, employee, contractor, or agent of the Client that may, in the course of their relationship with the Client, become privy to Confidential Information.

Where any party breaches the provisions of this clause that party indemnifies and shall keep indemnified the other party from and against all costs, damages, losses, claims and expenses including legal costs on a solicitor and own client basis which that party may suffer, directly or indirectly, or incur by reason of the disclosure by the party in breach or any partner, director, employee, contractor or agent of that party, of any confidential information.

This clause shall survive the termination or expiration of this Agreement.

Default

Subject to clause 16.2, where the Client has breached any obligation under this Agreement, Debitsuccess shall be entitled to terminate this Agreement provided that it has first given written notice to the Client specifying the breach and requiring the breach to be remedied (to the extent that such breach is capable of remedy) and the Client has failed to remedy that breach within 7 days of receiving such notice.

Where any breach is incapable of remedy or where:

the Client, being an individual, is declared bankrupt or is convicted of a crime punishable by imprisonment or becomes of unsound mind; or
the Client, being a company, is unable to pay its debts as they fall due, makes any arrangements or composition with its creditors, goes into liquidation or has a receiver appointed over all or any of its assets (otherwise than for the purpose of reconstruction or amalgamation), or has a statutory manager appointed under the Corporations (Investigation and Management) Act 1989 in respect of the whole or any material part of the assets of the Client; or
the Client, being a partnership, is terminated or dissolved, or any member of the partnership commits an act of bankruptcy (if a person) or is placed in liquidation (if a company), or
distress or execution is levied on any of the Client’s real or personal property or any judgment is entered against the Client which it fails to satisfy within 14 days; or
the Client breaches any of the confidentiality undertakings in clause 12; or
the Client purports to assign this Agreement without Debitsuccess’ prior written consent, then Debitsuccess may terminate immediately by giving written notice to the Client.

Notices

Any notice served by Debitsuccess under this Agreement may be served by facsimile or email to the address specified on the front page of this Agreement (or any replacement addresses provided by the Client) and any notice shall be deemed to have been served by the Client on the day of sending by Debitsuccess.

Relationship

The relationship between the Client and Debitsuccess is that of client and supplier and nothing in this Agreement or any other document shall make Debitsuccess an agent of the Client.

Entire Agreement

This Agreement together with the Payment Contract constitutes the entire contract, understanding and arrangement (express and implied) between the Client and Debitsuccess. It supersedes and cancels any previous agreement, understanding or arrangement whether written or verbal.

For any enquiries about Debitsuccess and your account with us please contact your Account Manager:

Email: nzaccountmanager@debitsuccess.co.nz

Phone: 0800 4810 400

Debitsuccess Limited

PO Box 34 770, Birkenhead, North Shore City 0746