Background
A. Smartpay Australia (a Shift4 company) rents, sells and distributes EFTPOS Equipment and certain payment facility services in Australia and New Zealand.
B. The Merchant wishes to rent and/or purchase EFTPOS Equipment and acquire related services that are supplied by us.
C. The parties have entered into this Agreement to record the terms and conditions upon which we agree to provide to the Merchant, and the Merchant agrees to acquire, the Equipment and/or the Services from us, on the terms and subject to the conditions set out in this Agreement.
The parties agree that:
| Item 1 | Smarptay Australia (we, us,our) | Name: Smartpay Australia (a Shift4 company) ABN: 79 120 473 823 Address: Level 9, 151 Castlereagh Street, Sydney NSW 2000 Email: merchantservices@smartpay. com.au Contact person: Acquiring Manager |
| Item 2 | Merchant (you) | The party that has submitted the Application Form to requesting access to the Merchant Facility. |
| Item 3 | Commencement Date | The first to occur of: the date on which we open the Customer Account; the date on which we process the first Transaction for you; and the date that is 7 (seven) days after your Equipment is first shipped to the Delivery Address. |
| Item 4 | Term and renewal Clause 2 Schedule 3 | Initial Term: If this Agreement has a fixed term, the Initial Term is as set out in the Application Form. Renewal Term: If your Agreement has a Fixed Term, then this Agreement will automatically renew for successive periods equal to the period set out in your Initial Term. |
| Item 5 | Termination notice Clause 17, Schedule 3 | 90 (ninety) days |
| Item 6 | Clause 6.2 (a) Schedule 3 Clause 6.2 (b) Schedule 3 Clause 6 Schedule 3. | Merchant Service Fee (MSF) are the fees payable by you to us for applicable Merchant Service Facility based on the information provided in your Application. Minimum Monthly Fee (MMF) is the fee stated as such in the Application Form, being the minimum amount of Merchant Services Fees (MSF) payable per month regardless of transactions processed. Other Fees included in this Agreement |
| Item 7 | Services Clause 3 Schedule 3 | The products and services we will provide to you, as set out in the Application Form. |
1.1 Definitions. In this agreement
Accessory Fee means the fees, if any, payable by you to us, for or in relation to consumables and/or accessories for use with or in relation to any Equipment and any related costs (including postage fees), as set out in Item 6 (Fee) of Schedule 1 (on your Application Form), and as may be varied from time to time in accordance with this Agreement.
Alipay WeChat Pay Service means transaction payments via Alipay and/or WeChat Pay.
Application Form means the application form submitted by you to us pursuant to clause 4.1 (Application Form and you must provide information) of Schedule 3 for access to the Merchant Facility.
App means a business software application operated by an App Provider that You connect to the HUB and permit the Business Hub to extract and/or receive copies of certain data from such App Provider via the Business Hub.
App Provider means a third party that operates an App that is available for use on the Business Hub.
Associate in relation to a party means the employees, officers, directors, contractors and agents of that party.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authorised Signatory has the meaning given in clause 5.1 (Authorised Signatories’ authority) of Schedule 3.
Average Transaction Size is calculated by dividing the total turnover by the number of transactions, that was noted on your Application Form.
Business means the ordinary business conducted by you as described in the Application Form or notified from time to time in accordance with this Agreement.
Business Day means a day other than a Saturday, Sunday or day which is a bank holiday or public holiday in the State of New South Wales.
Buy Out is defined as any POS hardware assets at a residual value, purchased outright by the Merchant at the end of the life of the hardware.
Card(s) means a:
Cardholder means the person to whom a Card has been issued or a person who is authorised to use a Card.
Chargeback refers to a transaction that is debited to the Settlement Account as a result of any of the circumstances set out in clause 15 (Chargebacks) of Schedule 4.
Commencement Date means the date as determined in accordance with Item 3 (Commencement Date) of Schedule 1 (on your Application Form)
Communications Service means all facilities, devices and network connections that allow for the capture and switching of Transactions via the EFTPOS System by use of either an analogue or digital mobile telecommunication service, broadband internet, WiFi service or similar telecommunication services.
Consumer has the meaning given in clause 15.1 (You are not a Consumer) of Schedule 3.
Credit Card means a device that can be used for purchasing goods or services on credit in Australia (irrespective of whether the device is issued in or outside Australia) and includes devices issued by Visa, Mastercard, American Express, Diners Club and China Union Pay.
Customer Support means our customer support team who can be contacted via our website https://www.shift4-au.com.au/support/
Delivery Address means the address specified in the Application Form as the address to which Equipment to be supplied by us pursuant to this Agreement is to be delivered.
Direct Debit Request means the direct debit request set out in the Application Form and any other relevant form (if applicable) and signed by you, as amended from time to time.
EFTPOS System means the process whereby, pursuant to instructions transmitted through a Terminal, an electronic funds transfer takes place between a Cardholder’s bank account and your Linked Bank Account:
EPAL means eftpos Payments Australia Limited ABN 37 136 180 366.
Equipment means the Terminal, any related equipment, accessories and any Software.
Fee means any fee payable by you to us, as set out in clause 6 of Schedule 3 and as may be varied from time to time in accordance with this Agreement.
Fee Account has the meaning given in clause 9.1 (You must maintain a linked Bank Account) of Schedule 3.
Financial Institution has the meaning given in clause 10.3 (When we will charge your account) of Schedule 3.
GST means any tax on the supply of any goods, services, real or personal property or any similar tax imposed under the GST Law.
GST Law has the same meaning given to the term “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hardware (Point of Sale) hardware refers to the physical devices used to process transactions at the point of sale. These devices include items like barcode scanners, receipt printers, credit card readers, cash drawers, and touchscreen devices.
Hardware as a Service means we retain ownership of the hardware provided to be used with any Point of Sale.
Initial Term has the meaning given in Item 4, Schedule 1 (on your Application Form).
Intellectual Property Rights means patents, rights in inventions, works of authorship, data, designs, databases, know-how, trade secrets, confidential information, trademarks, trade, business and domain names, logos, get-up and goodwill, along with copyrights, moral Rights and any other intellectual property and proprietary rights, in each case whether registered or unregistered in any jurisdiction.
Invalid Transaction has the meaning given in clause 13.7 (Invalid Transactions) of Schedule 4.
Kit Recovery Fee (or Replacement Cost) means the fee payable by you to us charged to replace any lost, stolen or damaged or non-returned Equipment, as set out in clause 6.2(c) in Schedule 3, and as may be varied from time to time in accordance with this Agreement.
Linked Bank Account has the meaning given in clause 9.1 (You must maintain a Linked Bank Account) of Schedule 3 and includes any Fee Account and Settlement Account.
Mark(s) means trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations owned, licensed or used.
Merchant Service Fee or Merchant Fee means the fee payable by you to us for receipt of the applicable Service, as set out in Item 6 (Fee) of Schedule 1 (on your Application Form) and as may be varied from time to time in accordance with this Agreement.
Monthly Rental Fee means the fee payable by you to us for the rental of the Equipment from us, as set out in Item 6 (Fee) of Schedule 1 (on your Application Form) and as may be varied from time to time in accordance with this Agreement.
MOTO stands for “mail or telephone order” and means an order for goods or services received by mail, telephone, facsimile or internet.
Online Service Partner or “OSP” means an App Provider or third-party who provides You Online Services that are available to connect to the Business Hub.
Online Services means online services offered by a third party (for example, banks, open banking providers or credit rating agencies) from whom you permit the Business Hub to extract and/or receive copies of certain data via the Business Hub.
PCI-DSS means the Payment Card Industry Data Security Standard and any other security standard published by the PCI Security Standards Council
Receipt means a receipt including the following information about a Transaction:
Referral Partner means any third party (such as a financial institution or point of sale software providers but excluding our other merchant customers), who, from time to time, refers merchants to us pursuant to a written agreement.
Registered Legal Name is the official name of an entity (organisation) as recorded on official documents and legal papers such as ASIC. This name is used for legal and administrative purposes, like contracts, registrations, and government interactions.
Refund means the refunding of a previously processed Transaction back onto the previously processed Card.
Renewal Term has the meaning given in clause 2.2 of Schedule 3.
Scheme means the Mastercard, Visa, American Express, UnionPay, Diners Club, Discover, JCB and EPAL card schemes and any other similar schemes provided that we are a member of or facilitate transactions in relation to that scheme.
Settlement Account has the meaning given in clause 9.1 (You must maintain a linked Bank Account) of Schedule 3.
Service or Services means the products and services that we will provide to you pursuant to this Agreement, as referred to in Item 7 (Products & Services) of Schedule 1 (on your Application Form).
Customer Account has the meaning given in clause 4.1 (Must have a Customer Account) of Schedule 3.
Business Hub means the online portal where merchants can manage terminals and view and download transactional data, connect business applications and see a 360 degree view of the merchant’s business performance.
Merchant Facility means the facility under which we provide you with merchant acquiring and transaction processing services in accordance with this Agreement.
Software means all software developed by or for us for use in or with the Terminals, consisting of a set of instructions or statements in machine-readable medium and any enhancement, modification, update or new release of that software or part thereof.
Surcharge is a fee that a business can add to the price of goods or services when a customer pays with a card.
Swap Out has the meaning given in clause 5.3 (Swap Outs) of Schedule 4.
Term means the Initial Term and any Renewal Term.
Terminal(s) means the electronic terminal or terminals supplied by us through which instructions may be given for the transfer of funds using the EFTPOS system.
Threshold Fee is the amount payable if your card transactions fall below the Turnover Threshold total transactional volume (TTV) per month as stated on your Application Form.
Transaction means an electronic funds transfer initiated in connection with a Cardholder using a Card or information from a Card.
Transaction Value Report means a periodic report containing the total number of Transactions and total value of Transactions made through your Terminal(s).
Total Transaction Volume (Monthly) means the amount you process in transactional volume which was noted on your Application Form
Turnover Threshold is the minimum Terminal Transaction Volume (TTV) required per month to avoid paying the Other Fees as outlined in the Application Form.
Updates means all corrections for defects, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Software from time to time.
User Guide means the procedures and user guide(s) that set out (amongst other things) instructions on how to set up the Equipment and instructions on how to operate the Terminals, as provided and updated by us from time to time.
Valid Transaction is any transaction that is not an Invalid Transaction and is approved by us.
Website means the internet site at the URL www.shift4-au.com.au or any other site operated by the US or our related bodies corporate from time to time.
Interpretation. In this Agreement, unless the context requires otherwise:
1.1 Structure of this Agreement. This Agreement consists of the following parts:
(a) Schedule 1 (Key Details) which are collected on your Application Form (including Personal Information Collection Statement);
(b) Schedule 2 (Dictionary);
(c) Schedule 3 (General Terms);
(d) Schedule 4 (Merchant Facility Terms);
1.2 Precedence of documents. If there is an consistency between the documents set out in clause 1.1 (Structure of this Agreement) above, the document listed first in that clause will prevail to the extent of the inconsistency such that the inconsistent provision in the document lower in the order of priority will be read down or, if necessary, severed to the extent necessary to resolve the inconsistency. Where 2 (two) documents have the same priority in that clause, then priority will be given to the document that is later in time.
2.1 Initial Term. This Agreement will start on the date that we confirm (usually by email) to you and your Application Form has been received and is accepted by us, and will continue for the period set out in the Application Form (if any) unless earlier terminated in accordance with this Agreement (“Initial Term”). A party terminates this Agreement by notice in writing to the other party no less than 90 (ninety) days prior to the expiry of the Initial Term or a party otherwise terminates this Agreement in accordance with its terms and pays any outstanding Fees pursuant to clause 6 of Schedule 3.
2.2 Renewal Term. Where the Initial Term is a fixed period, then this Agreement will automatically renew for successive periods equal to the period set out in Item 4 (Term and Renewal) of Schedule 1 (each a “Renewal Term”) unless either party terminates this Agreement by notice in writing to the other party with 90 (ninety) days notice and pays any outstanding Fees pursuant to clause 6 of Schedule 3 or any “buy out” pursuant to of clause 17.7 Schedule 3.
2.3 Commencement of services. Notwithstanding clause 2.1 (Term) above, we will start providing the services to you on the Commencement Date as determined in accordance with Item 3 (Commencement Date) of Schedule 1.
3.1 We provide Services to you. In consideration of the payment of the Fees, we agree to provide to you, the Services on the terms and subject to the conditions set out in this Agreement.
3.2 Right to reject certain Transactions.
(a) You acknowledge and agree that we are subject to laws (such as relevant anti-money laundering laws), which may prohibit us from entering into or concluding Transactions involving certain persons. You agree that we may decline to enter into or conclude Transactions involving such persons in compliance with such laws, and will incur no liability from any action we take to comply with such laws. Further, you agree that we may delay, block or refuse to make or process a payment or Transaction if we believes on reasonable grounds that making that payment or Transaction may breach any law in any other country, and we will have no liability in taking such action. We will, as soon as reasonably practicable and at all times subject to the requirements of the relevant laws, notify you of this action.
(b) You declare and undertake that the payment of monies by us in accordance with any instructions given by you will not breach any laws.
3.3 Services. We will use best endeavours to provide the Services selected by you on the Application Form.
3.4 Point Of Sale. Where you have applied, and have been approved for our POS solution, including hardware, subscription and any offers, you acknowledge that you have read to Point of Sale Terms & Conditions and are bound by it.
3.5 Alipay WeChat Pay. Where you have applied, and have been approved, to use the Alipay WeChat Pay Services, you acknowledge that you have read the Alipay WeChat Pay Merchant Terms & Conditions and agree to be bound by it
4.1 Must have a Customer Account. In order to use our Services you must have an account with us (your “Customer Account”). You must provide us with any information we reasonably require to open the account and to set up the Merchant Facility for you, including the information requested on the Application Form.
4.2 We may refuse to open an account. When you submit an Application Form to us, you make an offer to us for us to set up a Customer Account for you to enable you to access and operate the Merchant Facility. Subject to law, we may in our sole and absolute discretion agree or refuse to open a Customer Account and we may agree or refuse to provide the Merchant Facility to you, and in each case, we are not required to provide reasons for doing so.
4.3 Assumption that information is current and correct. We are entitled to assume that all of the details that you have provided to us pursuant to the Application Form and otherwise pursuant to this Agreement are current and correct. If there are any changes to your details, you must notify us of those changes in accordance with clause 11 (Changes to your details) of Schedule 3. We will not be liable for any loss or damage suffered by you or any other party as a result of any such information being out-of-date or incorrect.
5.1 Authorised Signatories’ authority. You must nominate at least one individual (“Authorised Signatory”) to be your key contact person and who is authorised to access, use and control your Customer Account. You acknowledge and agree that:
(a) the Authorised Signatories nominated by you from time to time are authorised by you to access and control your Customer Account
(b) We are hereby permitted to discuss the details of your Customer Account and disclose information about your account with your Authorised Signatories.
5.2 Initial and subsequent Authorised Signatories. The initial Authorised Signatories are the individuals nominated as such on and who sign the Application Form. Subject to clause 5.4 (Accessing your account) below, you may add or remove an Authorised Signatory by notifying us in writing in such form as required by us from time to time. You must have at least one Authorised Signatory at all times.
5.3 You are responsible for Authorised Signatories. You must ensure that all Authorised Signatories comply with this Agreement and you acknowledge and agree that you are responsible for all acts of Authorised Signatories and any other users of the Equipment and all acts and omissions and breaches by an such persons will be deemed to be your act, omission or breach (as the case requires).
5.4 Accessing your Customer Account. If you have indicated on the Application Form that the “Administration Authority” is:
(a) “any to sign”, then each Authorised Signatory is separately entitled to exercise your rights under this Agreement, in accordance with this Agreement.
(b) “any two to sign”, then any combination of 2 (two) Authorised Signatories are jointly entitled to exercise your rights under this Agreement, in accordance with this Agreement.
Notwithstanding the foregoing, if you have nominated more than one Authorised Signatory at any time, then 2 (two) Authorised Signatories are required to authorise the following:
(a) any addition or removal of an Authorised Signatory;
(b) the closure of the Merchant Facility;
(c) any change to your Customer Account.
5.5 We can remove Authorised Signatory. We will remove an individual as an Authorised Signatory if we have been notified or we reasonably believe that they are deceased or mentally incapacitated, or that the individual is no longer authorised to act as an Authorised Signatory. We will not be liable to any person as a result of such removal.
6.1 Fees will be debited. All Fees that are payable by or owed to you will be recorded in your Customer Account and debited or credited (as required) to your applicable Linked Bank Account(s). See Schedule 4 (Merchant Facility Terms) for more information about your funding requirements for your Linked Bank Accounts.
6.2 Merchant Fees. The following Fees will apply subject to the conditions (if any) set out in Item 6 (Fee) of Schedule 1:
(a) Merchant Service Fee is in consideration of your use of the Merchant Service Facility. You acknowledge and agree that you have received a copy of our Fees with or within the Application Form. The Merchant Service Fee is calculated as a percentage/fixed or other value determined by us based on the information you have provided us.
(b)Minimum Monthly Fee You must pay us the Minimum Monthly Fee (MMF) in any month in which the aggregate amount of the Merchant Service Fees payable by you to us in that month are less than the Minimum Monthly Fee.
For the avoidance of doubt, if the aggregate Merchant Service Fees payable by you to us in any month is less than the Minimum Monthly Fee, then the Minimum Monthly Fee will be payable by you and will be stated in the Application Form. The lowest amount of Merchant Services Fees (MSF) payable each month, based on Transaction Volume (less any MSF collected), will be the difference you will need to pay.
(c) Kit Recovery Fee is charged to replace any lost, stolen, non-returned or damaged Equipment – as contemplated in clause 17.5 (Obligations on Termination) of Schedule 3 and clauses 3.4 (Risk in Equipment) and 5.3 (Swap Outs) of Schedule 4.
The Kit Recovery Fees are as follows:
(i) Legacy Hardware $500 + GST (per Terminal)
(ii) Android Hardware $1,000 + GST (per Terminal)
(iii) Hardware (such as screens, cashdraws etc) at Retail Cost
(d) Rental & Service Fee. Is in consideration of your rental of Equipment or the Services we provide to you (if applicable), this could be collected daily or monthly, depending on Application Form.
(e) Cancellation Fee (as referred to in Item 6 (Fee) of Schedule 1) is payable when there is an Initial Term (or Renewal Term). The Cancellation Fee on your Application Form is multiplied by the number of months outstanding in your contract term (either Initial or Renewal). This cost will change depending on the services (subscription, hardware, equipment or similar) that are provided to you.
(f) Accessory Fees are in consideration of any consumables and/or accessories acquired by you for use with or in relation to any Equipment and any related costs, such as paper rolls, cables etc and including postage fees.
(g) Direct Debit Dishonour Fee Is a fee of $22.75 + GST may be charged when a direct debit payment is attempted but fails due to insufficient funds in the account.
(h) Chargeback Fee of $22.75 + GST may be charged when we receive a chargeback pursuant of clause 15 of Schedule 4. You can reduce your ability to receive Chargebacks by following the guide located: https://www.shift4-au.com.au/help-centre/account/smartpay-merchant-chargeback-and-fraud-prevention-guide/
6.3 Changes to Fees. We may change our Fees (including introducing new Fees) from time to time by giving you at least 30 (thirty) days’ written notice, and such change will become effective on the date set out in the notice. There is no maximum limit for the amount of Fees we may impose; however, we will only change our Fees to the extent permitted by, and subject to, any requirements of the law. If we change our Fees and you do not agree to the changes, then you may terminate this Agreement pursuant to clause 17.3 (Termination for cause by you) of Schedule 3. If you continue to use the Smartpay Merchant Facility or any other Services to which the Fee applies after the effective date of the change, then you will be deemed to have accepted the new Fee.
7.1 We may change the Fees payable by you if any of the following occur:
(a) the number of Card Present Transactions processed by you is less than 10% over the total number of estimated Total Transaction Value stated in your Application Form that you process in any three consecutive months;
(b) the percentage of International Cards you process by dollar value of Transactions exceeds 5% of the total dollar value of Transactions that you process in any three months;
(c) your overall Card Not Present (MOTO) Transactions exceed more than 30% of total Transactions in any month, or
(d) he Total Transaction Volume or Average Transaction Size in your Application Form is not being processed that was relied on for pricing of your MSF, or:
(e) following a general review (at our sole discretion) or necessary of your overall Smartpay Merchant Facility or Initial Application.
If we determine to change the Fees payable in accordance with this clause 6.3, we will provide you with not less than thirty (30) days prior written notice of the new Fees commencing. If we change our Fees and you do not agree to the changes, then you may terminate this Agreement pursuant to clause 16.3 (Termination for cause by you) of Schedule 3, however a Cancellation Fee may apply as per clause 6.2(e). If you continue to use the Smartpay Merchant Facility or any other Services to which the Fee applies after the effective date of the change, then you will be deemed to have accepted the new Fee.
7.2 Fee waiver and discretion to determine category. We may in our absolute discretion waive any or all Fees from time to time. In addition, we may in our absolute discretion (exercised reasonably) determine what category a Transaction falls within and we may amend the categories from time to time, which may affect the Fee applicable to a Transaction.
7.3 GST. All amounts specified in this Agreement are, unless specified otherwise, exclusive of GST. To the extent that any supply under or in connection with this Agreement is or becomes subject to GST, an amount equal to the GST paid or payable in respect of the supply shall be added to the amounts paid or payable for that supply provided that the party making the supply issues a valid tax invoice to the recipient of the supply. Words used in this clause have the meaning given in the GST Law, unless the context otherwise requires.
7.4 Government taxes and charges. For clarity, any government taxes or charges imposed on your Linked Bank Account or a Cardholder’s account (including amounts imposed on credits or debits to the account) are payable by you or the Cardholder respectively.
8.1 if you are passing on your MSF via a Surcharge to your end customers:
(a) In respect of all Transactions processed by you, an amount will be charged in addition to the price of the goods and services. This amount is referred to as a “Surcharge”. We process and collect the Surcharge.
(b) You must, at the point of sale, display a prominent sign that advises customers that all card Transactions will incur a Surcharge and that specifies the amount of the Surcharge, for example: “1.65% surcharge will be added to all transactions paid by card”.
(c) Your end customer must receive a receipt issued from the Terminal that separately identifies the Surcharge and the total value of the Transaction. Our terminal software provides this function.
(d) The software allows you to suppress the Surcharge for an individual transaction where you have a requirement to do so. In any event that you use this function, the surcharge that would have applied to the respective transaction will be charged to you and deducted from the next settlement to your nominated bank account. All such amounts at the Merchant’s account will be offset against the next settlement to the Merchant and disclosed on the month-end payment statement “surcharge opt-out” or similar.
(e) subject to the balance available in your Customer Account on a particular day, when processing a Refund also refund any surcharge charged to the Cardholder in the original Transaction. In the case of a partial Refund, refund a pro-rated part of the surcharge;
(f) establish and maintain a fair policy for giving refunds or exchanging goods or services which complies with all applicable laws and to give refunds by means of a Refund and not cash;
(g) not process any Transaction using your own Card or any Card of your Associates;
(h) not hold a Cardholder’s PIN or passcode;
(i) not make any warranty or representation to a Cardholder regarding us or on our behalf;
(j) comply with any monetary limits or limits on the number of daily Transactions imposed on a Cardholder by a Card issuer.
8.2 Your obligations when displaying prices. You must not mislead your customers about the prices you charge.
(a) You must display the total price of a product or service as a single figure. This price must be the minimum total cost. This is the lowest amount a customer could pay, including any unavoidable or pre-selected extra fees, where you know the amount of these fees before the transaction.
(b) If there is no way for a customer to pay for your products or services without paying a payment surcharge, you must include the minimum surcharge payable in the displayed price for your products or services. Example: You only accept card payments and charge a 1% card surcharge. 5.00 $ coffee coffee coffee coffee 5.00 $ 5.05 $ card surcharge applies with card surcharge Cash not accepted $ 5/ 5.
(c) You must also be clear and upfront to make your customers aware of any card payment surcharges before they decide to book, order or buy your products or services. This could be through a prominent notice at the point of sale, on your menu or in your ordering app. Example: You charge a 0.5% surcharge on debit card payments and a 1% surcharge on credit card payments.
8.3 For more information on card surcharges, please go the ACCC website https://www.accc.gov.au/business/pricing/card-surcharges
8.4 Working out your Cost Of Acceptance. We will provide you with a statement with your payment processing information, which includes your main costs of acceptance, typically shown as a percentage figure amount – this is your accountability.
(a) There are other costs that you may be able to include when calculating your ‘cost of acceptance’. However, you will need to work these out yourself. You must also be able to verify these costs through contracts, statements or invoices from your providers.
(b) You may also use for assistance, or seek advice from an accountant or business advisor to assist you in calculating your ‘cost of acceptance’. Note: You cannot include other costs of running your business when calculating card payment surcharges, such as labour and electricity costs. Please contact us if you need to discuss.
8.5 Limitations are subject to law. Nothing in this Agreement excludes, restricts, or modifies any guarantee, right, or remedy conferred on you by:
(a) The Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law;
(b) The ASIC Act 2001 (Cth);
(c) Any other applicable consumer protection legislation to the extent that such legislation prohibits or restricts exclusion, restriction, or modification.
(d) Where our Services are supplied to you as a consumer within the meaning of the Australian Consumer Law, our liability for breach of a guarantee that cannot be excluded is limited, at our option, to:
(i) Re-supplying the Services; or
(ii) Paying the cost of having the Services re-supplied.
8.6 Card Scheme Disclosure Requirements. You acknowledge and agree that:
(a) We may be required under Card Scheme Rules or Alternative Payment Scheme Rules to disclose information about you, your business, and your Transactions to:
(i) Card scheme operators
(ii) Alternative Payment scheme operators;
(iii) Card issuers investigating disputed Transactions;
(iv) Regulatory authorities; and
(v) Law enforcement agencies;
8.7 Such disclosure is necessary for:
(a) Processing Transactions and resolving chargebacks;
(b) Fraud prevention and detection;
(c) Compliance with Card Scheme Rules;
(d) Risk management and monitoring;
8.8 Scheme audit rights: You acknowledge that card schemes and Alternative Payment schemes may require us to facilitate audits or inspections of your business premises, records, and transaction processing procedures, and you agree to cooperate with such audits as reasonably requested.
9.1 You must maintain a linked Bank Account. For the Term plus at least 180 (one hundred and eighty) days after the expiry or termination of this Agreement, you must maintain at least 1 (one) verified and operational Australian bank account to which we can debit and credit funds due or owed by or to you pursuant to this Agreement (“Linked Bank Account”). This is an essential term of this Agreement and failure by you to maintain a Linked Bank Account in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by us) of Schedule 3. The name of the account holder of the Linked Bank Account must be identical to your name as Merchant. You may wish to have a separate Linked Bank Account for the debit/credit of Fees (the “Fee Account”) and a separate Linked Bank Account for the debit/credit of settlement sums (“Settlement Account”).
9.2 Initial Linked Bank Account and changing accounts. Your initial Linked Bank Account is the account nominated on the Application Form. You can change your Linked Bank Account by providing us with no less than 14 (fourteen) days’ notice in writing in such form as required by us from time to time.
9.3 Withhold payments for disputes. We may withhold or suspend payment of any amounts that would otherwise be payable to you until we have concluded reasonable investigations into any claimed Chargebacks or into the validity of any Transactions.
9.4 Must ensure sufficient funds in a Linked Bank Account. You must ensure that, at all times, you have sufficient funds in the Linked Bank Account (or the Fee Account, if you choose to maintain a separate account for this purpose) to pay any Fees due on your Customer Account. Notwithstanding the foregoing, you authorise us to debit your Linked Bank Account even where such a debit would cause the Linked Bank Account to have a debt balance and to exceed any overdraft limit that may be in place.
9.5 Effect of insufficient funds in Linked Bank Account. Without prejudice to any other rights or remedies that we may have, if you do not have sufficient funds in your Linked Bank Account or Fee Account, as applicable, to pay the Fees at any time, we may immediately suspend the Merchant Facility and interest at a rate equal to the Reserve Bank of Australia’s cash rate target plus 5% will accrue on a daily basis until the funds are able to be debited from your Linked Bank Account or Fee Account, if applicable, in full. In addition you will indemnify us for any sums reasonably incurred by us (including legal costs) in respect of the collection of outstanding sums.
10.1 Direct Debit Request Service Agreement. This clause 10 (Direct Debit Request Service Agreement) constitutes your Direct Debit Service Agreement with us, with User ID and ABN as provided in the Application Form, from time to time. By signing and submitting to us the Direct Debit Request, you authorise and direct us to debit funds from your Linked Bank Accounts. You must at all times maintain a valid Direct Debit Request for your Linked Bank Accounts. This is an essential term of this Agreement, and failure by you to maintain a valid and current Direct Debit Request in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by us) of Schedule 3.
10.2 Direct debit authority. You authorise and direct us to debit funds from your Linked Bank Accounts as follows:
(a) all Fees payable by you under this Agreement including those set out in clause 6 Fees of Schedule 3.
(b) As referred to in clauses 3.4 (Risk in Equipment), 5.3 (Swap Outs) and 13.5 (Counterparty does not pay us) of Schedule 4 (Merchant Facility Terms);
(i) any Scheme fines or penalties payable as a result of your breach of this Agreement or which we incur because of or contributed to by your acts or omissions;
(ii) Refunds presented by you;
(iii) any overpayments made by us;
(iv) Chargebacks;
(v) amounts paid by us for Transactions where we are investigating the validity of the Transaction or a claimed Chargeback of the Transaction;
(vi) duties and taxes payable by you;
(vii) any deficiency in a payment disclosed in an audit or check by us; and
(viii) any other amounts payable or owing by you to us under this Agreement.
10.3 When we will debit your account. Unless we agree otherwise (for example, in the case of a legitimately disputed invoice), we will debit your Linked Bank Account on the date that a payment is due or, if the due date is not a Business Day, we will debit your account on the next Business Day. The date that the charge will appear in your account will depend on the financial institution with which your account is held (“the Financial Institution”); you should contact the Financial Institution to confirm the exact date when the debit will appear in your account.
10.4 Changes to Direct Debit by us. You acknowledge and agree that we may vary the amount and frequency of debits made pursuant to the Direct Debit Request. We will provide you with written notice of any such variations by placing a notice on your monthly statement as soon as practicable and no less than 14 (fourteen) days before the changes have been implemented.
10.5 Your responsibilities. It is your responsibility to ensure that:
(a) the Linked Bank Account details that you provide to us are accurate and correct and you should check the details against a recent statement from the Financial Institution;
(b) If you have queries in connection with the Direct Debit Request, you should contact the Financial Institution before completing it;
(c) The Linked Bank Accounts that you have nominated can accept direct debit payments (as direct debit may not be available on all accounts offered by financial institutions);
(d) The Linked Bank Accounts have sufficient cleared funds available to enable the direct debits authorised by the Direct Debit Request to be made from time to time; and
(e) The authority given to us pursuant to the Direct Debit Request is consistent with the account authority or signing instructions held by the Financial Institution in relation to the applicable account.
10.6 Failure of direct debit. If a direct debit fails or is rejected due to a problem for which you are responsible (for example, insufficient funds or incorrect account information):
(a) We will attempt to repeat the direct debit transaction up to 3 (three) times in the following 2 (two) weeks and for each dishonour, we may charge you a dishonour fee and we may pass on any charges we incur as a result of a failed or rejected direct debit;
(b) You may be charged a fee and/or interest by the Financial Institution and you are responsible for paying that fee and/or interest;
(c) If payment continues to be unsuccessful, you must make the payment by another method.
10.7 Privacy and disclosure. Our privacy policy and personal information handling practices (as set out in more detail in clause 12 of Schedule 3, (Information Collection and Disclosure) applies to all information that we collect about you pursuant to this Direct Debit Request Service Agreement and we will not disclose any details of your Direct Debit Request unless:
(a) the disclosure is to a financial institution and is necessary to enable us to perform or otherwise exercise our rights and obligations pursuant to this Agreement;
(b) we are required or permitted by law to do so.
10.8 Errors and disputes. If you believe that there has been an error in the debiting of your Account, you should contact us as soon as possible by calling us on 1800 433 876 or emailing us at merchantservices@smartpay.com.au and we will investigate your request. If we conclude that your Account has been:
(a) incorrectly debited, we will arrange for the relevant Financial Institution to adjust the relevant Account and we will notify you of the amount of the adjustment;
(b) correctly debited, we will notify you accordingly together with our reasons and any evidence supporting our conclusion.
10.9 Cancellation or suspension of direct debit or Direct Debit Request by you. You may request us to stop a direct debit charge by giving us 14 (fourteen) days’ notice by calling us on 1800 433 876 or emailing us at merchantservices@smartpay.com.au. You may defer, change, cancel or suspend a direct debit authority at any time by calling us on 1800 433 876 or emailing us at merchantservices@smartpay. com.au. If you cancel or suspend a direct debit authority you must at the same time nominate a new Linked Bank Account and execute a Direct Debit Request with respect to the new Linked Bank Account. You may also stop a direct debit charge or cancel a Direct Debit Request by contacting your Financial Institution.
10.10 Authorisation after termination. Subject to clause 10.9 (Cancellation of Direct Debit Request) above, you agree that despite any expiry or termination of this Agreement, the authority you give to us pursuant to clause 10.2 (Direct Debit Authority) above continues to the extent of (and the authority continues to apply in respect of) any monies that you still owe to us at or after the expiry or termination of this Agreement (including, for example, the Replacement Cost of any Terminals not returned to us in accordance with clause 17.5 (Obligations on Termination) of Schedule 3.
11.1 You must notify us of changes. You must immediately notify us (in writing) of changes to any of the following:
(a) any of your contact details (including email, phone number, address) set out in Schedule 1;
(b) your business or company name;
(c) your Authorised Signatories;
(d) your Linked Bank Account(s);
(e) the nature of your Business;
(f) any other circumstances that may affect your ability to meet your liabilities as and when they fall due, together with any evidence that we request to support the change that you have requested.
11.2 We may, in our sole and absolute discretion, reassess your Customer Account and your access to and use of the Merchant Facility and the Services as a result of any such changes and we may make such changes to your Customer Account and/or your access to and use of the Merchant Facility and Services as we consider necessary.
11.3 Notice of change of control. You must give us at least 5 (five) Business Days’ notice prior to the effective date of any change in the control of your business.
11.4 Notice of change of residency. You must notify us of any change (from that notified to us at the time of completing the Application Form) to the residency of any controlling person on your Customer Account within 30 (thirty) days of the effective date of the change.
11.5 Notification of changes to you. We may notify you of any changes processed by us pursuant to this clause 10 and we reserve the right to suspend or discontinue providing you with such notifications at any time at our discretion.
11.6 When changes come into effect. If you request us to make changes to your Customer Account pursuant to this clause 11, then other than a change in ownership and changes related to your Linked Bank Account, such changes will become effective 72 hours after we are notified of the change. A change that relates to your Linked Bank Account will become effective on the later of:
(a) 72 hours after we are notified of the change, and
(b) the date on which you execute and submit to us a new Direct Debit Request (if applicable).
12.1 Privacy Policy. We will collect, use, maintain and disclose personal information about you, your Authorised Signatories in accordance with our privacy policy from time to time. Our privacy policy is incorporated by reference into this Agreement and you confirm that you have received and have read our privacy policy found here https://www.shift4-au.com.au/privacy-policy/
12.2 We may collect information about you. Without limiting clause 12.1 (Privacy Policy) above, you acknowledge and agree that we may obtain from any Card issuer, operator of a Scheme, Scheme member or credit checking agency, information about you for any purpose relating to the operation of the Scheme or otherwise in relation to your access and use of the Merchant Service Facility or the Services.
12.3 You authorise us to collect information. Without limiting clause 12.1 (Privacy Policy) above, you hereby authorise us to obtain from any Scheme and credit checking agency, information relating to facilities you obtained or are obtaining from other suppliers and any other information (including financial information) applicable to you and your access and use of the Merchant Facility and Services. We use this information including personal information and information about you collected from third parties, for the following purposes:
(a) to assess and process your application for Services that we supply under this Agreement;
(b) to administer and manage the Services that we supply under this Agreement; and
(c) to facilitate our internal business operations, including fulfilling any legal requirements and systems maintenance and testing.
12.4 We may disclose information about you. Without limiting clause 12.1 (Privacy Policy) above, you acknowledge and agree that we may disclose information about you that we collect from the Application Form or in the course of the conduct of the Merchant Service Facility to any person who is a Card issuer, Scheme operator, Scheme member or credit checking agency, or any public servants responsible for maintaining order, enforcing laws, investigating crimes, and protecting the public or for any purpose relating to the operation of those Schemes.
13.1 No warranty. The Services are provided on an “as is” basis. Some or all of the Services may be provided by third party providers. To the maximum extent permitted by law, we makes no warranty that the Services (or any part of them) will be error-free or will run without interruption, or any other warranty regarding the performance of the Services.
13.2 Mutual representations and warranties. Each party represents and warrants to the other that:
(a) it has the right and capacity to enter into this Agreement
(b) the person who enters into this Agreement on the party’s behalf is properly authorised to do so, and:
(c) this Agreement will be legally binding on it.
14.1 Step 1: Notice of concern or dispute. If you have any concern or a dispute (including in relation to billing) in connection with the Merchant Facility or otherwise in connection with this Agreement, please contact us at our address or contact details as set out on our Website and provide us with the details of your concern or dispute. We will attempt to resolve your concern or dispute as soon as possible in accordance with this clause 13 (Dispute Resolution). Note that this procedure does not apply in relation to reporting unauthorised transactions on your Account.
14.2 Step 2: Mediation. We will use our best endeavours to resolve your concern or dispute. We will notify you in writing of the outcome of our investigations, including how we propose to resolve your concern or dispute. However, if you are not satisfied with how we handled your concern or dispute, you may, by notice in writing to you, elect to have your dispute mediated. The mediator will be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the Chair of the Resolution Institute. The parties will abide by the mediation rules of the Resolution Institute in seeking to resolve the dispute by mediation.
14.3 Step 3: Arbitration. If the dispute is not resolved within 4 (four) weeks (or such other period as the parties agree) of the appointment of the mediator or if either party does not wish to have the dispute mediated, then either party may refer the dispute to the Chair of the Resolution Institute for the appointment of a graded arbitrator who will arbitrate the matter in accordance with the Commercial Arbitration Act (1990) (Cth). Unless the parties agree otherwise, the place of arbitration will be Sydney, New South Wales. The outcome of the arbitration will bind the parties.
15.1 You are not a Consumer. You acknowledge and agree (it is an essential condition of this Agreement the breach of which will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by us) of Schedule 3, that you are not acquiring the Equipment or the Services as a “consumer” as that term is defined in the Australian Consumer Law or any other applicable law (“Consumer”), and that you are not and will not become a Consumer during the Term.
15.2 Your liability and indemnity. Except to the extent caused or contributed to by us, you agree to indemnify and keep indemnified, us from and against any liability, actions, claims, demands, damages, costs and expenses incurred or suffered by us arising from:
(a) a breach of this Agreement by you (including your Authorised Signatories, directors, officers and employees)
(b) any fraud or negligence by you (including your Authorised Signatories, directors, officers, employees and any other person who access the Terminals or uses the Services), and
(c) any claims made by a third party (including any customer) in connection with goods or services or use of the EFTPOS System.
15.3 Disclaimer and exclusions. To the maximum extent permitted by law:
(a) We give no condition, warranty or representation as to ownership, description, condition, merchantability, suitability or fitness (for a particular or any purpose) of the Equipment, the Software or of the Services and no such term, condition or warranty will be implied;
(b) All terms (whether express, implied, oral or otherwise) not expressly stated in this Agreement are excluded; and
(c) We will not be liable to you for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation or goodwill or any indirect or consequential loss arising in connection with this Agreement.
15.4 Limitation of liability. To the maximum extent permitted by law, any liability of us to the you with respect to the Equipment, the Software, the Services and otherwise in connection with this Agreement shall arise in accordance with this Agreement only and shall be limited to the lower of:
(a) $1,000 (one thousand dollars)
(b) the replacement of the Equipment, resupply of the Software or service, payment of the cost of the supply of replacement Equipment or acquiring equivalent equipment, or cost of having services supplied again, at the sole and absolute discretion of us and otherwise in accordance with this Agreement. Without limiting the foregoing, where Equipment has been purchased, we offer a limited warranty, as set out in the additional warranty terms supplied with the Equipment and you acknowledge that you have received and have read those warranty terms.
15.5 Limitations are subject to law. Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any law, including the Competition and Consumer Act 2010 (Cth). Limitations and exclusions are made only to the extent that we may legally do so
16.1 We may suspend the Services or any part of them without notice if we consider (in our reasonable opinion) that we or another party could suffer a loss or be subject to fraud if we continue to supply the Services. We will inform you as soon as practicable after suspension is effected. During any suspension, you must not submit Transactions for processing and we will not process any Transactions that you submit. We will not be liable for any loss or damage suffered by you or any other party as a result of a suspension effected under this clause.
17.1 Termination of a Service or Agreement. Either party may terminate a Service or this Agreement at any time by giving the other the amount of notice set out in clause 2 of Schedule 3 (Term). If a Service is terminated, this Agreement ceases to apply in relation to the terminated Service.
17.2 Termination for cause by us. We may terminate this Agreement by notice in writing if:
(a) You breach clause 9.1 (You must maintain a Linked Bank Account) of Schedule 3, 10.1 (Direct Debit Request Service Agreement) of Schedule 3 or clause 8 (Transactions) of Schedule 4, and you fail to remedy the breach within 7 (seven) days of written notice from us;
(b) We are directed to terminate this Agreement by the principal acquirer from whom we may acquire some of the Services, a Scheme operator or Scheme member. This may occur, for example, where excessive multiple Chargebacks are processed to your account; you change your business and the industry category into which your business falls changes; multiple fraudulent transactions are processed to your account or any other matter that may put us, the principal acquirer, a Scheme operator or a Scheme member into disrepute, or
(c) You breach clause 15.1 (You are not a Consumer) of Schedule 3;
17.3 Termination for cause by you. You may terminate this Agreement by 30 (thirty) days’ written notice to us if we change the Fees pursuant to clause 6.2(a) (Merchant Service Fee) of Schedule 3, unless you are in an Initial or Renewal Term pursuant to clause 2 of Schedule 3.
17.4 Termination for cause by either party. In addition to and without prejudice to or limiting any other rights and remedies available to a party at law or in equity, either party may, by written notice to the other party, terminate this Agreement with immediate effect if:
(a) If the party reasonably believes that any person is committing fraud in connection with this Agreement or any of the Services;
(b) If the other party is in breach of a clause of this Agreement and such breach is incapable of remedy, or has not been remedied within 7 (seven) days of receipt by that other party of written notice specifying the breach and requiring that it be remedied; or
(c) With immediate effect if the other party is declared insolvent; makes, or attempts to make, any arrangement for the benefit of creditors; is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of a solvent amalgamation or reconstruction); a receiver or manager of the other party is appointed, or an order is made or resolution passed for the liquidation of the other party (other than for the purposes of a solvent amalgamation or reconstruction), or in the event any similar action or proceeding is instituted relating to any of the foregoing and the same is not dismissed within fourteen (14) calendar days.
17.5 Obligations on Termination. Upon termination of this Agreement:
(a) Your right to use the Merchant Service Facility immediately ceases and the licences granted under this Agreement terminate;
(b) you must return to us all Equipment, hardware, guides, stationary and promotional material supplied to you by us;
(c) all monies owed to us must be paid in accordance with the terms of this Agreement; and
(d) without limiting paragraph (c), if the Equipment is not returned to us undamaged within 30 (thirty) days of the effective date of termination, we will debit the Kit Recovery Fee in clause 6.2(c) of Schedule 3 from your Linked Bank Account. We may collect that amount as either a one-off amount or in multiple payments until that amount is recovered.
17.6 Cancellation Fee. If this Agreement has a Term and during the Initial or Renewal Term as in clause 2 of Schedule 3:
(a) we terminate this Agreement pursuant to clause 17.2 (Termination for cause by us) or 17.4 (Termination for cause by either party) as a result of us committing or suffering any of the events identified in that clause; or
(b) you terminate this Agreement pursuant to clause 17.1 (Termination of a Service or Agreement) or 17.4 (Termination for cause by either party) as a result of you committing or suffering any of the events identified in that clause, or
(c) this Agreement terminates pursuant to clause 17.2 (Termination by us), then you must pay us any Fees, as set out in clause 6 (Fee) of Schedule 3.
17.7 Buy out of POS Hardware. Buy out of POS Hardware. At the end of the life of any leased equipment the merchant may have the option for a “buyout”, which includes the option to purchase the equipment from us. This is at the sole discretion of us and is in addition to any Cancellation Fees as defined by clause 6.2(e), Schedule 3.
17.8 No effect on other duties. Except as otherwise provided herein, termination of this Agreement for any reason shall not relieve or discharge either party from any duty, obligation or liability hereunder which was accrued as of the date of termination.
18.1 Neither party will be liable to the other for any failure or delay to perform its obligations under this Agreement where such failure or delay is caused by events beyond its reasonable control, including epidemics, quarantine, biological contamination, entry and exit restrictions, industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, failure of third party services providers (including the acquirer on record with respect to the Services) (“Force Majeure”). However, the foregoing does not apply if the Force Majeure event is caused by a breach of this Agreement by the non-performing party.
19.1 Notice to be in writing. Every notice, statement or other communication required or permitted to be served (“Notice”) by any party (“Sender”) on another party (“Recipient”) pursuant to this Agreement must be in writing.
19.2 When notices are effective. Subject to clause 19.1 above, a Notice will be deemed to have been effectively served:
(a) if sent by prepaid post to the Recipient at the address of the Recipient as set out at the beginning of this Agreement or on the Application Form, on the third Business Day following the date of postage by the Sender;
(b) if hand delivered, on the date of delivery to the Recipient’s address as set out at the beginning of this Agreement or on the Application Form unless such delivery occurs after 5.00pm or at any time on a day which is not a Business Day, in which case the Notice will be deemed to have been effectively served on the next Business Day; and
(c) if transmitted by email to a party’s email address as set out at the beginning of this Agreement or on the Application Form and a correct and complete transmission report is received by the Sender, on the day of transmission if a Business Day, or otherwise on the next Business Day (but only if no intimation has been received by the Sender that the notice has not been received, whether that intimation comes from the party to whom the notice is addressed or from the operation of an email system or otherwise).
19.3 Changes to details. A party may change its details for notices by written notice to the other party with any reasonable notice period.
20.1 Entire agreement. This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
20.2 Severability. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under any applicable law, that term or provision will be severed from this Agreement, and the remaining terms and conditions will be unaffected.
20.3 Surviva Clauses 12 (Information Collection and Disclosure) of Schedule 3, 13 (Representations and Warranties) of Schedule 3, 15 (Liability and Indemnity) of Schedule 3 and 6 (Software and Intellectual Property) of Schedule 4, together with any other clauses which contemplate that a party has any rights or obligations after the end of this Agreement, survive the expiry or termination of this Agreement.
20.4 Set-off. We may from time to time set-off any amount due for payment by you to us against any amount due for payment by us to you.
20.5 Assignment. You may not assign any of your rights under this Agreement (except to a related body corporate as part of a corporate restructure provided that prior written notice is given to us of such assignment) without our prior written consent. We may assign all or any of our rights under this Agreement.
20.6 Counterparts and electronic execution. This Agreement may be executed in multiple counterparts, each of which shall have the effect of an original and all of those counterparts taken together constitute one and the same instrument. To facilitate execution, the Parties agree that this Agreement may be executed through the use of email transmission in portable document format (PDF) or other electronic mechanism, and a counterpart of this Agreement that contains the electronic signature of a Party, which counterpart has been transmitted by email or other electronic transmission to the other Party, shall constitute an executed counterpart of this Agreement.
20.7 Changes to this Agreement. We may immediately vary this Agreement if required by, or in order to comply with, any law, or in connection with, or as a result of, any changes to any laws, provided that we provide you with written notice of such variations as soon as is reasonably practicable after making the variation. Notwithstanding the foregoing, we may (subject to law) change the terms of this Agreement at our absolute discretion by giving you written notice in accordance with this Agreement. We will provide you with at least 30 (thirty) days’ notice if we introduce or increase a Fee (other than a government charge or fee payable to a Scheme) and your continued use of the Merchant Facility will be deemed to be your acceptance of such changes. For any other changes (including changes in interest rates and standard fees and charges) we will notify you as soon as reasonably practicable. Where required by law, we will notify you about any new or changes to a government charge in accordance with the applicable law.
20.8 Governing law and jurisdiction. This Agreement is governed by, shall be and construed in accordance with the laws of New South Wales. Subject to, and without limiting, clause 14 (Dispute Resolution) of Schedule 3, the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts hearing appeals therefrom.
1.1 In addition to the terms of this Agreement, you must comply with:
(a) the User Guide;
(b) Any requirements that a Scheme imposes on us that relate to the Merchant Facility and that we notify you of
(c) any reasonable directions given by us; and
(d) all applicable laws.
2.1 Rental or purchase of Equipment. The Application Form sets out whether you are renting the Equipment or purchasing the Equipment.
2.2 Use of Equipment. You must ensure that the Equipment is:
(a) used in accordance with the User Guide at all times and solely for the purpose for which it was designed and provided by us in connection with our Services;
(b) not moved from the Delivery Address without our prior written consent (save that this sub-clause does not apply to mobile Equipment), and:
(c) not moved or otherwise transferred out of your control.
2.3 Your general responsibilities. It is your responsibility to:
(a) determine the specific location for installation of the Equipment (within the Delivery Address) and to prepare the location in accordance with the specification set out in the User Guide
ensure that you have appropriate communications access, internet access and supported and regularly upgraded operating systems
(b) ensure you have sufficient electrical surge protection
(c) exercise reasonable care in the use, operation, protection, and security of the Equipment at all times
(d) ensure that the Equipment is stored safely and protected from theft, loss or damage and to insure the Equipment against any loss or damage to the Equipment arising from theft, vandalism, fire, flood, earthquake, misuse, neglect, or as otherwise required by us; and
(e) regularly check for evidence of tampering including skimming devices and confirm the identification number on the Equipment is correct. You must contact us immediately if you discover any evidence of or suspect that Equipment has been tampered with.
3.1 We own rented Equipment. If you rent the Equipment, the Equipment remains the property of us and/or its related bodies corporate at all times and nothing in this Agreement passes legal or beneficial title in the Equipment to you or any other party. You must not sublet, transfer, dispose of, grant a security interest over, permit a security interest to be registered over or otherwise deal with any rights or interest in the Equipment.
3.2 Buy Out. At the end of your Agreement with us, there may be the option to “buy out” of the POS Hardware as per clause 17.7, Schedule 3.
3.3 You own purchased Equipment. If you purchase the Equipment, legal and beneficial title in the Equipment passes from us to you upon full payment of the purchase price for the Equipment.
3.4 Risk in Equipment. Whether you rent or purchase the Equipment, risk in the Equipment passes to you upon delivery of the Equipment to the Delivery Address. Accordingly, upon delivery, you are liable for any loss or damage to the Equipment and all costs incurred in respect of the Equipment, including the cost of repairing or replacing the Equipment at the Replacement Cost, subject to the terms of this Agreement.
If Equipment is damaged after it has been delivered to you at the Delivery Address, you hereby authorise us to debit the repair cost or the Replacement Cost from your Customer Account. We may choose whether to repair or replace Equipment at our discretion as per clause 2.3.
3.5 Access to Premises. You must allow us to enter any premises where we believe that the Equipment is located for the purposes of exercising any of our rights (including retaking possession) of the Equipment in accordance with this Agreement.
4.1 Delivery of Equipment to you. We will deliver to the Delivery Address the number of items of Equipment ordered by you as set out in the Application Form. We may in our absolute discretion charge you delivery and freight charges and we will pay any insurance in respect of the delivery of Equipment to the Delivery Address.
4.2 Accepting deliveries. Within 48 (forty-eight) hours after receipt of a delivery you must notify us in writing of any shortages, defects or damage in respect of the delivered Equipment. You must return such equipment to us at our expenses. To the maximum extent permitted by law, failure by you to give such notice to us will be deemed an acceptance in full of all Equipment delivered.
4.3 Installation. You must ensure that the Equipment is installed in accordance with our guides and procedures for installation. We will provide you with reasonable assistance over the telephone or electronic or other means by explaining how to install software required to connect the Equipment to point-of-sale software that we support. We are not otherwise responsible for the installation of the Equipment and you must do so at your own cost.
4.4 Insurance. You must insure the Equipment with a reputable insurer with us noted as an interested party, and you must, upon request, provide a certificate of currency for such
5.1 No third party repairers. You must not allow any third party to service or repair the Equipment, unless we advise you in writing otherwise.
5.2 No use of Equipment with other acquirers. If you rent the Equipment, you must not use the Equipment with any other acquirer. If you purchase the Equipment and you use the Equipment with another acquirer, then you do so at your own risk and to the maximum extent permitted by law, the warranty with respect to the Equipment terminates and we will have no liability to you whatsoever.
5.3 Swap Outs. From time to time we may supply you with new, upgraded or repaired Equipment (“Swap Out”) to replace your existing Equipment. If this occurs, you must return the existing Equipment within 30 (thirty) days after receiving the Swap Out.
(a) If we do not receive the existing Equipment back within this time, a Kit Recovery Fee will be charged in respect of that Equipment as stated in clause 6.3 of Schedule 3. The Kit Recovery Fee will constitute a debt due by you to us and you hereby authorise us to debit such amount from the Fee Account without notice to you and you notify us in writing that the existing Equipment has been lost, stolen or cannot otherwise be returned to us, or is damaged. The Kit Recovery Fee will constitute a debt due by you to us, and you hereby authorise us to debit such amount from the Fee Account without notice to you.
6.1 Ownership and licence of Software and Intellectual Property Rights. All rights, title and interest in the Software (including Intellectual Property Rights in the Software) remains with us at all times. We hereby grant you a non-exclusive, non-transferable licence to use the Software solely in connection with the Services in connection with your Business.
6.2 What you must not do. You must not:
(a) attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any part of the Software. This includes “phishing”, “mining” or attempting to trigger remote code for the purpose of accessing data or material you would not otherwise have access to
(b) circumvent, disable or otherwise interfere with security-related features of the Software or the Services.
6.3 Updates. We may provide Updates of the Software from time to time, but we are under no obligation to do so.
7.1 Equipment warranty. Along with provisions in clause 2.3, we warrant that:
(a) at the date of delivery, the Equipment is of merchantable quality and is fit for the purpose for which it is supplied
(b) the Services provided to you will be performed with reasonable care and skill
(c) To the maximum extent permitted by law, we provide no other warranties in relation to the Equipment, the Software or the Service and we are not liable for any damage to the Equipment due to a dysfunction of any network on which the Equipment is used that is out of our reasonable control (including any failure on the part of the principal acquirer from whom we may obtain some or all of the Services from time to time) or the Communications Service; or
(d) delay in the installation or provision of Equipment, delay in the commencement of the Services, or any loss you incur if the Equipment is not working or you are unable to process Transactions.
8.1 Use of the Merchant Facility. You must only process Transactions and use the Merchant Facility in furtherance of the Business activities specified in your Application Form. You must obtain our prior written consent before processing Transactions for or using your Merchant Facility for any other business or for any non-business activities.
8.2 Adequate Transactions. Ensure you are processing the transaction volume to the level stated in your Application Form (Item 1, Schedule 1).
8.3 Pre Payment Exposure. Your % of pre-payment taken is not greater than what was stated in your Application Form (Item 1, Schedule 1).
8.4 Participation in Schemes. The Terminals will be programmed to accept all Card Transactions which they are able to accept. If you do not wish to participate in any particular Scheme you must contact us and complete and return any forms we request to enable us to disable the functionality for those Schemes.
8.5 Separate agreement with Schemes. You may be required to have a separate agreement with some Scheme operators. In such cases, our only obligation in relation to a Transaction is to transmit the particulars of the Transaction to the Scheme operator. We have no liability to any person in relation to the operation or effectiveness of those Schemes.
8.6 Your merchant number. Upon request, you must inform us of your merchant number for all Schemes in which you participate.
8.7 You accept cards at your risk. We make no representations and give no assurances whatsoever in relation to the credit worthiness of any person presenting a Card, whether a Card has sufficient funds. To the maximum extent permitted by law, you waive any right which you may have against us by reason of any inferred representation or assurance from us processing a Transaction. You accept a Card and you process the Card at your sole risk.
8.8 Transaction data is conclusive. The Transaction data produced by the Terminal is correct and conclusive except in the case of manifest error. We are not liable for any error, delay, malfunction or failure caused or contributed to or initiated by your integrated point-of-sale software.
8.9 You must notify us of malfunctions. You must promptly notify us of any malfunction or error in connection with the Terminals, the EFTPOS System or the Communications Service.
8.10 Your representations and warranties. You represent and warrant to us that in respect of each Transaction that you process or that is processed on your behalf:
(a) all information given to us in respect of that Transaction is true and correct;
(b) the Transaction is valid; and
(c) the sale in respect of the Transaction is not subject to any dispute, set-off or counterclaim.
8.11 Transaction Value Reports. If a Referral Partner has referred you to us, you acknowledge and agree that we may disclose Transaction Value Reports to that Referral Partner for the purposes of confirming the value of the referral. You acknowledge and agree that, while we will have an agreement that obliges the Referral Partner to only use the Transaction Value Reports for this purpose, we are not responsible in any way for how the Referral Partner uses the Transaction Value Reports.
9.1 Your obligations. You must:
(a) not disclose (except to us or as required by law) or obtain a Cardholder’s name or Card details to or from any person, except where that information has been lawfully collected by you in the course of processing a Transaction;
(b) comply with the User Guide and other security requirements published on the Shift4 Australia website or elsewhere from time to time;
(c) comply with the prevailing Payment Card Industry Data Security Standards (for more information see www.pcisecuritystandards. org) or any Scheme security requirements from time to time;
(d) permit us or our nominee reasonable access to inspect your computer systems to conduct an investigation on whether there has been a security breach and/or data compromise;
(e) use reasonable care to detect forged or unauthorised signatures or the unauthorised use of a Card;
(f) not process a Transaction by keying the transaction details manually into a Terminal unless instructed to do so by the Terminal; and
(g) use reasonable care to prevent the use of a Card as an instrument in money laundering or other criminal activities.
10.1 Your obligations. You are obliged to do the following:
(a) Implement and comply with the PCI Security Standards. You must provide evidence of compliance with the PCI Security Standard if requested by us.
(b) Not collect or store any Cardholder information or any sensitive account information without our consent.
(c) Keep all systems and media containing transaction information (physical or otherwise, including but not limited to Card imprints and Sales Vouchers) in a secure manner in line with industry best practice, PCI Security Standards, Card Scheme data security program or requirements in order to prevent access by or disclosure to anyone other than as permitted. You must destroy all such media that you no longer deem necessary or appropriate to store in a manner that will render the data unreadable.
(d) Do not sell, purchase, provide or exchange any cardholder information obtained because of a transaction to any third party.
(e) Permit us, the Card Schemes or the relevant Switching Provider or any of their respective employees, contractors or agents access to your premises at any time during normal trading hours to conduct an on-site inspection or investigation to check compliance with this Agreement or for compliance with the relevant Card Scheme rules.
(f) Complete the security standards information requisition annually based on your annual transaction volume. Please refer to the Shift4 Australia website for the criteria and documentation you must comply with.
11.1 Your obligations: You are obliged to do the following:
(a) If you become aware of any confirmed or potential unauthorised access to Cardholder information processed or held by you or any third party on your behalf, to advise us immediately.
(b) Provide a written report or additional information when we request it, in relation to your compliance with the PCI Security Standards
(c) Understand we may suspend any Terminal or Acquiring Facility on becoming aware of any unauthorised access until our requirements for reactivation are, in our opinion, met.
(d) Aware you are liable for all expenses, costs or losses suffered or incurred by us as a consequence of unauthorised access or any non-compliance with the PCI Security Standards, including the cost of any forensic investigation and any fine, fee or other cost imposed on us by any Card Scheme.
(e) Required to fully validate your compliance with the PCI Security Standards to our satisfaction.
12.1 What you must do. You must:
(a) keep all Receipts produced by the Terminal, your books of account and records of all Transactions (both sales Transactions and Refunds) as required by law;
(b) provide us with all Receipts and other records in connection with Transactions as requested by us; and
(c) permit us or our nominee to inspect Receipts, your books of account and records of all Transactions (both sales Transactions and Refunds) on request.
12.2 Statements. We will make available to you each month a statement showing the amount of all Transactions processed by us for you and your cost of acceptance (being the fees that we charge to you) during the previous month. It is your obligation to check the statement to ensure the accuracy of the Surcharge and the payments made to the Settlement Account and from the Fee Account. You may dispute a Transaction by following the procedure set out in clause 14 (Dispute Resolution) of Schedule 3.
13.1 Settlement to Linked Bank Account. Subject to this Agreement, we will credit settlement sums to your applicable Linked Bank Account.
13.2 Timing of settlement. Subject to the remainder of this clause 11, we will:
(a) accept all Valid Transactions made by you; and
(b) credit your applicable Linked Bank Account with the proceeds of all Valid Transactions, within the following timeframes:
(i) no later than 2 (two) Business Days; 3 (three) in the case of international Card Transactions) (or, in each case, such other timeframe as may be required from time to time) following the date the Transaction is processed by a Terminal as long as settlement of all your Terminals has taken place either by a manual settlement initiated by you, or an automated settlement initiated by our systems, prior to 5am (AEST); or
(ii) as soon as practicable in any other case.
13.3 Availability of funds in your Linked Bank Account. Notwithstanding when we credit your Linked Bank Account, the Financial Institution with whom your Linked Bank Account is held will determine when it makes the payment available as disposable funds in your Linked Bank Account. This may vary from institution to institution.
13.4 Delay by counterparties. If there is any delay by our counterparties in respect of the processing of a Transaction, we may delay settlement to you until that counterparty fulfils its obligations. We reserve the right to delay the payment instruction in respect of any Transaction until we receive payment in respect of that Transaction.
13.5 Counterparty does not pay us. If our counterparty in respect of a Transaction fails to make a payment to us and we have already credited the Linked Bank Account, you must immediately repay to us the amount so credited. Without limiting any other recourse we may have, you authorise us to debit the relevant amount from your Linked Bank Account.
13.6 Processed Transactions may be disputed and charged back. You acknowledge and agree that the authorisation, processing and settlement of a Transaction by us is not a representation by us that the Transaction is a Valid Transaction. The Transaction may be subject to dispute or a Chargeback.
13.7 Invalid Transactions. Without limitation, a Transaction will not be valid and will therefore not be processed (“Invalid Transaction”) if:
(a) it or the circumstances giving rise to it are illegal under Australian or international laws or Scheme rules or requirements;
(b) the authority provided in respect of the Transaction is forged; the rightful Cardholder did not authorise the Transaction or the use of the Card, or the Transaction is not signed where a signature is required;
(c) the Card is not current at the time of the Transaction (including, for example, where the Card has been lost, stolen or is otherwise rejected);
(d) the Transaction is not in connection with the provision of goods or services between you and the Cardholder;
(e) the Transaction is not in connection with the provision of goods or services to a genuine customer as part of your Business;
(f) it represents a transfer solely of funds rather than the supply of goods or services (e.g. a remittance of funds with no exchange of goods or services);
(g) it is a Refund and no corresponding sales Transaction exists for the Card on which the Refund is made or purported to be made;
(h) it is made in payment of wages or salary;
(i) a sales transaction is split into 2 (two) or more Transactions;
(j) you do not comply with your obligations under this Agreement, the User Guide or any other direction by us in relation to the Transaction; or
(k) we otherwise reasonably believe that the Transaction should not be processed.
14.1 Ensure sufficient account funds. You must ensure you have sufficient funds in your Customer Account to meet your Refund obligations for all Refunds that you process.
14.2 Limit on Refunds. We may, in our sole and absolute discretion, limit the number of Refunds processed to the periodic aggregate funds that are processed by you through your Customer Account.
14.3 Refund password. Each Terminal comes with a refund password as a security measure. You are responsible for maintaining the confidentiality of the password and you must not share the password with any other party. You are responsible for all activities that occur under the password. You must immediately notify us at merchantservices@smartpay.com.au of any unauthorised use of your password.
15.1 Chargebacks. We may refuse to accept, or having accepted, may charge back (a “Chargeback”), any Transaction if:
(a) we, in our sole and absolute discretion, consider that the Transaction is an Invalid Transaction;
(b) we reasonably believe that you have not performed all obligations to a Cardholder (including providing any goods or services) in respect of the applicable Transaction;
(c) the Transaction is illegal;
(d) the Cardholder disputes all or any part of its liability for any reason; or
(e) the Card was not valid at the time of the Transaction
(f) Charge a fee for the Chargeback pursuant to clause 6.2(h) in Schedule 3.
16.1 We will supply promotional material. We will supply you with decals and insignias for the Cards that are accepted by the Merchant Facility and for any notification around Surcharges. We may supply you with other promotional material at our discretion.
16.2 What you must do. You agree to:
(a) prominently display, wherever reasonably directed by us, decals and other signs advertising the EFTPOS System and Cards;
(b) not use any advertising or promotional material relating to Cards or the EFTPOS System except as authorised by us;
(c) in all your marketing and communications (including on your websites, marketing materials, advertising and other customer communications) give all payment methods equal or substantially similar logo placement and treatment in terms of payment flow, terms, conditions, restrictions or fees;
(d) not influence or inhibit, or attempt to do so, a Cardholder’s decision in relation to the use of any payment method or encourage a Cardholder to use a particular payment method; and
(e) not mischaracterise, misrepresent or disparage any payment method or exhibit a preference for one or more payment methods.
16.3 Authority to use your name and Marks. You hereby authorise any third party with whom we provide integrated services to use your logo, name, address, phone number and merchant category in any directory of merchants participating in the relevant integrated services and you hereby grant such parties a non-transferable and non-exclusive licence to use your Marks for the purpose of identifying you as a merchant that accepts the relevant form of integrated payment and for offers or promotions by that third party.
17.1 Additional Services. You must comply with any additional requirements we have in relation to all Card Not Present Transaction types that you process, including:
(a) PAN Entry;
(b) mail order;
(c) telephone order; and
(d) in other electronic mediums where cards are not present, transactions can occur.
17.2 You acknowledge and agree that:
(a) by electing to process Card Not Present Transactions, you accept the increased risk that a Cardholder’s identity or authority may be questioned later when processing transactions, where there is no physical Card present;
(b) you accept all risks associated with processing a Card Not Present Transaction, including all costs, losses, or liabilities incurred by you or any other person as a consequence of the processing of that Transaction;
(c) you accept all liability for the value of any Card Not Present Transaction where the Cardholder denies any knowledge or involvement with such transactions;
(d) where a Card Not Present Transaction has not been validly authorised by the Cardholder (including where the Cardholder denies any knowledge or involvement with such Transaction) or is in some other way invalid, the value of the Transaction will be charged back to your account in accordance with clause 15 (Chargebacks) of Schedule 4;
(e) you will seek authorisation of all Card Not Present Transactions before processing each such Transaction;
(f) you will perform all obligations to Cardholders concerning a Card Not Present Transaction immediately after any such Transaction has been successfully completed, including the dispatch or fulfilment of goods or services agreed to be supplied;.
(g) you will not use any other means to process a Card Not Present Transaction if, in response to an Authorisation request made by you in relation to that Transaction, that Transaction is declined;
(h) you are authorised to process Card Not Present Transactions, and you undertake to display the brand marks for all relevant Card Schemes on all advertising and other promotional material associated with its Card Not Present business. The brand marks are to be located in close proximity to wherever payment options are presented;
(i) you will not use the Card Not Present Transaction facility to process Transactions in circumstances where the Cardholder and the Card are present but the Device cannot read the magnetic stripe or microchip on or in the Card; and
(j) you will comply with all PCI Security Standard as described in clause 10 (PCI Security, Your obligations) of Schedule 4 above, and
(k) you are subject to the provisions as set out in clause 7 (Repricing) Schedule 3.
16. THE HUB (MERCHANT PORTAL)
16.1 The Business Hub and Service is powered by 9Spokes International Limited (“9Spokes”). By using the Service, You acknowledge and agree that 9Spokes may collect and process any personal information connected by You to the Service or otherwise generated by your use of the Service in accordance with 9Spokes’ Privacy Notice which is available here: https://9spokes.com/privacy-notice
16.2 Licence to Use Service: Our licence to you. In consideration of your agreement to comply with this Agreement, We hereby grant you a non-exclusive, non-transferable licence to use the Service, unless we suspend or terminate your account or the Service in accordance with this Agreement.
16.3 Nature of the Service. You acknowledge and agree that:
(a) we may, at any time acting reasonably and with prior written notice to you, where possible alter, amend, interrupt, reschedule or modify all or any part of the Service; and
(b) the Service may not operate on a continuous basis, and may be unavailable from time to time (including for scheduled and emergency maintenance purposes).
16.4 Registration. In order to access and use Business Hub you must have an account with us. When registering for an account, you must use your correct and current name and information. You must not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or employ misleading email addresses or falsify information in any part of any communication transmitted through Business Hub.
16.5 Your password and login. You are responsible for maintaining the confidentiality of your password and login to Business Hub and you must not share your password or login with any other party. You are responsible for all activities that occur under your password and login. You must not use or attempt to use another party’s password or login to access any part of Business Hub. You must immediately notify us at merchantservices@smartpay.com.au of any unauthorised use of your password or login or any other breach or suspected breach of security in respect of Business Hub.
16.6 You must implement Updates. We may provide Updates of the Business Hub from time to time, but we are under no obligation to provide updates. If we do release Updates of the Business Hub, We will, where practicable, notify you and you must implement the updates as soon as practicable.
16.7 Old versions not supported. For the remainder of the term, we may, in our absolute discretion, continue to support the superseded version of the Business Hub, but we are not obliged to do so.
16.8 Your Responsibilities
(a) In order to Use the Service you must have an account with us. When registering for an account, you must use your correct and current name and information. You must not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or employ misleading email addresses or falsify information in any part of any communication transmitted through the Service. We will handle all personal information we collect in accordance with our Privacy Policy as set out in clause 12 of Schedule 3. We collect and process in accordance with Our Privacy Policy and 9Spokes will collect and process in accordance with its Privacy Notice.
(b) You also hereby acknowledge receipt of a copy of the current 9Spokes Privacy Notice and acknowledge and agree that 9Spokes will use and disclose Personal Information (as that term is defined in the Privacy Act 1988 (Cth)) in accordance with the Privacy Policy
(c) You are responsible for maintaining the confidentiality of your password and login and you must not share your password or login with any other party. You are responsible for all activities that occur under your password and login. You must not use or attempt to use another party’s password or login to access any part of the Service. You must immediately notify us at merchantservices@smartpay.com.au of any unauthorised use of your password or login or any other breach or suspected breach of security in respect of the Service.
16.9 Master Users and Users. You must nominate in the Application form one Master User you wish to appoint to your account and any changes to the Master User must be notified to us in writing. You acknowledge and agree that:
(a) The Master User will be responsible for determining who is a User and what level of access that User has;
(b) The Master User controls each User’s level of access and can revoke or change a User’s access, or level of access, at any time, for any reason; and
(c) Notwithstanding anything else in this Agreement, you are responsible for the Master User and users’ use of the Services as if such use is used by you.
16.10 Responsible for all Users. You shall procure that all Users comply with the obligations imposed on you under this clause 16.8. Any breach of this clause by any User will be deemed to be like a breach of this clause by you.
16.11 No warranty of information provided by Us. All information and content provided or otherwise accessed through the Service is made available purely for general informational purposes only and on an “as is” basis. We take no responsibility and we have no liability in relation to the accuracy or completeness of such information. The Service does not include or provide any financial, legal or tax advice and the information provided on or accessed within the Service should not be relied on for any purpose including making decisions. The transaction data produced by the terminal is correct and conclusive except in the case of manifest error. We are not liable for any error, delay, malfunction or failure caused or contributed to or initiated by your integrated point-of-sale software.
16.12 What You Must Do. You must:
(a) Act in an honest, faithful, diligent, competent and professional manner in the performance of your obligations under this Agreement;
(b) Supply (at your cost) all connections, tools, equipment and materials necessary to access and use the Service;
(c) Not Improperly use the Service; must take all steps necessary to prevent others from Improperly using the Service, and must use best endeavours to assist us to identify and prevent the improper use of the service; and
(d) Comply with all applicable laws including applicable data protection, privacy and export laws.
16.13 What You must not do. In using the Service. You must not:
(a) reproduce, make available online or transmit (electronically or otherwise), publish, adapt, create derivative works from, distribute or redistribute, transfer, broadcast, display, sell, license, perform, link, display or exploit in any other way and in any medium any part of the Service except through the functionality offered by the Service;
(b) alter or modify any part of the Service;
(c) breach any laws and regulations, or use the Service for any purpose that is unlawful or in breach of this Agreement;
(d) collect or store personally identifying information about other users other than through functionality provided through the Service nor use the communication systems provided by the Service (e.g. comments) for commercial or unlawful purposes;
(e) upload, post, email, otherwise transmit, or post links to any advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
(f) attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any software deployed in connection with the Service. This includes “phishing”, “mining”, accessing “hidden” URLs, attempting to trigger remote code for the purpose of accessing data or material You would not otherwise have access to;
(g) knowingly transmit any virus, corrupt files or any other software or function that may damage the operation of the Service or other disabling feature to the Service, or is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of any part of the Service;
(h) use or launch any automated system, including “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to Our servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
(i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content;
(j) access content through any technology or means or other functionality of the Service from time to time;
(k) interfere with or inhibit other users from enjoying or using the Service;
(l) Unless expressly agreed with us, use the Service for any commercial purposes including selling access to the Service, selling any content, selling advertising, sponsorships, or promotions placed on or within the Service or content.
(m) You must take your own precautions to ensure that your process for accessing the Service does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system.
(n) The Service may include links to other applications and websites that are not owned and controlled by Us. We do not endorse, and are not responsible or liable for any loss or damage incurred by You as a result of your access to those applications and websites.
(o) There may be important terms and conditions that are displayed when you click on information icons or links within the Business Hub. You must access and read those terms and conditions, and by using the Service, those terms and conditions apply to your use of the Business Hub, in addition to these Terms.
16.4 You acknowledge and agree that neither We nor 9Spokes:
(a) is an OSP;
(b) has any control over any terms and conditions that apply to Your use of an OSP’s App or service
(c) has any liability or responsibility to You in connection with Your use or inability to use OSP’s App or service
(d) We may add or remove OSP Apps or services that are available to connect to the Business Hub (and terminate Your connection to the Business Hub of those Apps or services) at any time without notice.
(e) Certain OSP Apps and services communicate with other OSP Apps and/or services in the Business Hub. If connection to an OSP App or service is disconnected, certain features or functionality of the Service may be interrupted, degraded, impaired or permanently disabled. We have no obligation to notify You of the consequence of terminating a connection to an OSP App or service and We nor 9Spokes will have any liability for any loss or damage as a consequence of such termination for any reason.
16.15 Take Your own precautions. You must take your own precautions to ensure that your access to Business Hub does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer systems.
16.16 You are responsible for costs. You are responsible for all costs, fees and expenses incurred directly or indirectly from using the Service. This may include internet connection and usage fees and mobile telephone connection and usage fees.
16.17 Business Data & Usage Data. The Business Hub allows you to connect data about your business to the Business Hub from OSPs (“Business Data”). The Service also collects, processes and stores data relating to your use of the Business Hub (“Usage Data”).
16.18 You authorise Us and 9Spokes to collect, use, reproduce, modify, combine and adapt Business Data and Usage Data, and disclose it to Our and 9Spokes’ Related Body Corporates, for the purposes of:
(a) generating the Content within the Business Hub;
(b) supplying the Business Hub to You and allowing You to use and view the features of, and Content accessible in, the Business Hub;
(c) research, development and the provision of features and services within the Business Hub including:
(d) displaying, visualising and combining Business Data in charts, tables and other visualisations;
(e) developing predictive services, including cashflow forecasting, anomaly detection and performance insights;
(f) personalising the way in which content is presented to You and to provide You with the most user-friendly navigation experience
(g) improving the Business Hub including the development of new features through aggregated and De-identified Data
(h) generating insights for Us and Our Related Body Corporates for internal use including to develop and enhance Our products and services
(i) generating insights for You and recommendations as to other potentially suitable services and products offered by us and Our Related Body Corporates
(j) You authorise Us and 9Spokes to modify any Content, Business Data and/or Usage Data by removing from such data all material that could identify You or any other person or organisation (“De-identified Data”). You agree that all Intellectual Property Rights in De-identified Data vest, on creation of the de-identified Data, in Us and/or 9Spokes. Without limiting the foregoing, We and/or 9Spokes may use, sell, manipulate, process, reproduce, combine, aggregate, distribute and permanently retain De-identified Data for benchmarking, commercial and any other purpose permitted by applicable law without further notice to You.
16.9 Intellectual Property Intellectual property owned by Us .You acknowledge that:
(a) the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including copyright, and
(b) we and/or third parties own all right, title and interest in and to the Service and software provided through or in conjunction with the Service, including without limitation all Intellectual Property Rights contained in the Service and such software.
16.20 Your responsibilities regarding intellectual property. You agree that you will not, and will not allow any third party to:
(a) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Service
(b) use the Service to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or
(c) remove, obscure, or alter our or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. Any reproduction or redistribution of any part of the Service is prohibited and may result in civil and criminal penalties. In addition, you must not copy the content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.
16.21 Possible Infringement. You must:
(a) notify us immediately upon becoming aware of any direct or indirect infringement of any of our intellectual property rights or claims by a third party that use of any of the intellectual property contained within the Service infringes the rights of a third party, and
(b) do all things reasonably necessary, at our cost, to assist us to prevent any prohibited or otherwise unauthorised access to or use of our intellectual property rights.
16.22 Our reserved rights to determine access. We reserve the right, in our sole discretion, to decide whether user activity or behaviour within the Service violates this Agreement (including copyright).
16.23 Suspension or termination of Your access or account. We may at any time, without prior notice suspend or terminate your (or a User’s) access and/or use of all or any part of the Service, and we may suspend or terminate your user account, if, in our sole discretion, we believe that:
(a) You have breached this Agreement in any way;
(b) Your access or use of any part of the Service may be directly or indirectly harmful to others or may otherwise violate any laws or regulations;
(c) We cease to operate the Service or for any other reason.
(d) In addition, if we deem it appropriate, we may also report your activity or behaviour to the relevant authorities as outlined in clause 12.4 of Schedule 3.
16.24 What happens if we suspend or terminate your access. If we suspend or terminate your access or use of the Service, or your user account, you are prohibited from continuing to access and use any part of the Service regardless of whether you are able to continue to do so. In addition, you are not permitted to create, and you must not create, any other accounts for access to the Service.
16.25 Inactive accounts. We may also suspend and/or terminate any Business Hub Account for all or any part of Business Hub on account of such Business Hub Account being inactive for 12 months or more.
16.26 Removal of Content. If your Business Hub Account is terminated or this Agreement is terminated, all content associated with your Business Hub account will be deleted, subject to any retention required by law, and you will have no further rights to access any such content.
16.27 Termination. Termination with notice. As per provisions in Clause 17 (Termination)
Schedule
16.28 Termination without notice.
(a) If its Associates or a User commits a serious or persistent breach of any term of this Agreement and, in the case of you for making Improper Use of the Service
(b) If you fail to rectify the breach (where rectification is possible) to our reasonable satisfaction within 10 (ten) Business Days of the date of a notice setting out details of the breach;
(c) Or its Associates commits any act or series of acts materially detrimental to the interests of the other Party including conduct which may injure the reputation of the terminating Party’s business;
(d) Ceases to carry on its business in the usual manner or ceases to hold a travel agent’s or other required statutory licences; or
(e) Suffers an Insolvency Event.
16.29 Upon termination of this Agreement:
(a) You must immediately stop using the Service and Confidential Information;
(b) You must return or destroy in accordance with our instructions all of our confidential information and provide us with written certification confirming such return or destruction.
(c) If Your account is terminated, all Content associated with Your Business Hub account will be deleted, subject to any retention required by law.
17. CONSUMER DATA RIGHT (CDR)
17.1 Open Banking is defined by the Consumer Data Right (CDR). These rules aim to provide greater choice and control over how your data is used and disclosed. In order to access customer banking or energy data, a person must be identifiable, or ‘reasonably identifiable’ and the data requested from the accounts nominated relates to them and is appropriate for that person’s use. This includes banking data from a joint account.
17.2 Collection of your personal or business data. We adopt a data minimisation approach and only collect information which is necessary to provide our service. In this context, data will access for the duration of the consent is:
(a) customer and account information,
(b) bank balances,
(c) and transactions made to and from the bank account nominated.
17.3 This will occur several times a day in order to supply the most up to date notifications required for the Smartapy HUB to be useful as a finance management tool (for which it is intended).
17.4 A consent receipt is provided at the time of providing consent. Both the consent provided, in terms of its scope and duration, and a summary of data retrieved from the nominated bank account are provided in a dashboard available from the mobile app. Merchants will be able to change the consent provided or communicate any changes via this dashboard.
17.5 Classes of CDR data. The following classes of data are held by us:
(a) Account Information: Name of account, type of account
(b) Transaction Details: Incoming & outgoing transactions, amounts, dates, descriptions of transactions, who you have sent money to and received money from (e.g. their name, BSB, account number)
17.6 Purposes of CDR data. Account information and transaction details are collected by us so we can provide you with our HUB.
17.7 Disclosure
(a) To provide a positive consumer experience and ensure consumer control over their data, we do not provide information to third parties to engage in direct marketing. We may send information to customers from time to time relating to products and services for marketing purposes.
(b) We do not disclose or use your personal data (including banking data) for commercial purposes.
(c) We do not disclose your personal banking data to any non-accredited or accredited persons, be they in Australia or overseas.
17.8 Outsourced service providers. We utilise Wych, a CDR accredited data recipient. Wych develops and maintains the software required for collecting CDR data in alignment with the CDR Rules. Wych meets the most stringent of data security standards. You can find more information here https://www.wych.io/
17.9 Accessing and correcting your personal information. A user can request correction of their data by email or through the website (wych.it) at contact@wych.it. Once they have received your email, they will respond as soon as is practical.
17.10 How to make a complaint. If you believe that there has been a breach of the CDR rules by us you should contact us as soon as possible calling us on 1800 433 876 or emailing us at merchantservices@smartpay.com.au
17.11 Please include the following information when submitting your complaint.
(a) Your name;
(b) Your contact details;
(c) Your preferred contact method of complainant (phone / email / letter); and,
(d) The details of your complaint.
17.12 A CDR complaint can be made at any time. Once your complaint is received, we will acknowledge receipt of the complaint within one (1) business days of being received.
17.13 We will investigate your complaint and attempt to provide you with a written response to resolve the complaint, within thirty (30) calendar days of receipt of your complaint.
17.14 If your complaint remains unresolved after thirty (30) calendar days, you will be advised in writing that additional time is required to complete the investigation and to provide a response.
17.15 When the complaint is resolved, you will receive a ‘final response’ letter within 45 days, informing you of:
(a) the final outcome of your complaint or dispute;
(b) your right to take their complaint or dispute to External Dispute Resolution; and
(c) If you are not satisfied with the response, you may lodge a complaint with the Australian Financial Complaints Authority, via Online: afca.org.au. Email: info@afca.org.au. Phone: 1800 931 678. Mail: Australia Financial Complaints Authority, GPO Box 3, Melbourne, VIC 3001
17.16 If your complaint remains outstanding within thirty (30) days, We will:
(a) inform you of the reasons for the delay;
(b) specify a date when a decision can be reasonably expected;
(c) informs your of your right to take your complaint or dispute to an External Dispute Resolution; and
(d) If you are not satisfied with our response, you may lodge a complaint with the Australian Financial Complaints Authority, via Online: afca.org.au. Email: info@afca.org.au. Phone: 1800 931 678. Mail: Australia Financial Complaints Authority, GPO Box 3, Melbourne.
17.17 Events for notifying CDR consumers. We do not make a consumer’s data banking data accessible or visible to outside our organisation, we employ stringent up to date information security practices.
17.18 In the event of a data breach. If someone gaining unauthorised access which results in loss of CDR data, we will notify a CDR consumer as soon as practical in order for the consumer to take appropriate action if required.
17.19 Consequence of withdrawing consent. When you stop sharing data with us, then we will stop collecting data from this account. We will also delete any data we previously received from this account. Without this data, we will be limited in our ability to provide our services to you. The detailed impact to your service are as follows:
(a) Transaction Details: provide details of impact for each data type extracted
(b) Direct debits and scheduled payments.
17.20 Deleting CDR data. You can stop sharing data with us at any time by going to your data sharing dashboard and removing access to your open banking details.
17.21 We will delete all banking data collected under a user’s consent, along with any derived data, within 24 hours of the following events:
(a) Your consent for access to banking data expires
(b) You stop sharing data with us before consent expires, or, you request data sharing to stop via the bank holding the account
(c) You delete your account
(d) Your bank or other data holder notifies us that you cease to be an eligible consumer with them
17.22 When any of these events occur, subject to not requiring that the data is held by Australian law, we will delete the users data using a scheduled daily process. The process deletes all bank data for the accounts for which consent was held. This includes data derived from the banking data obtained.
