In these Terms and Conditions, unless the context otherwise requires:
Agreement Dispute" has the meaning given in clause 26.1;
Application Form" means a form prescribed by Us to be used by You, which will request the information that is required for the capacity in which You seek Registration;
(b) any authorisation or consent regarded as given by a Government Agency where, in relation to something that can be prohibited or restricted by law if the Government Agency takes action within a specified period, that period expires without that action being taken.
Banks" means the financial institution(s) and/or Card Schemes with which SPS has entered into arrangements to provide the Bank Services;
Bank Services" means the merchant acquiring services provided by the Banks to Us for the acceptance and processing of Card Transactions;
Banking Day" means a day on which banks are open for general banking business in Melbourne, Australia except for Saturdays, Sundays and national public holidays;
"Bulk Electronic Clearing System"means a system that coordinates and administers recurring or one off electronic debit and credit payment instructions and facilitates the exchange and settlement of electronic transactions between participants;
Card" means a card that has been designated by the issuer as a card issued by a Card Scheme as advised by the Banks;
Card Schemes" means, unless otherwise agreed by the parties, issuers of Visa, MasterCard, American Express, JCB (Japan Credit Bureau), Diners Club and/or UnionPay;
Card Scheme Rules" means the rules and regulations which regulate participants in the Card Schemes;
Controller" means, in relation to a Person:
Crime Authority" includes Police Agencies, Cybercrime Authorities and organisations policing financial crime;
Custody Agreement" means the agreement between Us and the Custodian dated 28 November 2012 as contained in Schedule 1 to the Terms and Conditions;
Custody Account" means one (1) or more bank accounts nominated by the Custodian and communicated to You by Us into which all Payments must be made;
Customer" means a customer of Yours who wishes to purchase goods or services from, or otherwise make a Payment to, You;
Data Breach" means any occurrence which results in the unauthorised access by a Third Party to confidential data relating to Card Transactions stored by You or any entity engaged by You to provide storage or transmission services in respect of that data;
Deposit Account" is a bank account nominated by You or a related 3rd party of Yours into which payment funds are to be deposited;
Data Security Standards" means the Payment Card Industry Data Security Standards (“PCIDSS”) mandated by the Card Schemes for the protection of Cardholder details and Transaction information, and any additional or replacement standards of which You are advised from time to time;
Disclosing Party" has the meaning given in clause 28.1.1;
Disclosing Party's Information" has the meaning given in clause 28.1.1;
Dispute" has the meaning given in clause 6.6;
Dispute Notice" has the meaning given in clause 26.1
Encumbrance" means an interest or power reserved in or over an interest in an asset, including any retention of title;
and includes any agreement or arrangement (whether legally binding or not) to grant or create any of the above;
Engagement" means the engagement of Us by You to provide You with access to the Payment Service in accordance with these Terms and Conditions;
Force Majeure Circumstance" means, in respect of a Person, any circumstance or event which, despite using all reasonable endeavours, that Person is unable to control, including any act of God, flood, fire, damage caused by lightning, storm or tempest, rains falling during normal dry seasons, industry-wide strikes, or industry-wide lockouts or other industry-wide industrial disturbances, acts of war or terrorism, civil disturbance or any government enactments;
Implied Term" has the meaning given in clause 25.1.1;
Insolvency Event" means in relation to You or Us, any one (1) or more of the following events or circumstances:
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by Us;
Loss" includes any loss, claim, action, liability, damage, cost (including any cost between solicitor and own client), charge, expense, outgoing, payment of any kind or character which a party pays, suffers or incurs or which a party is liable to suffer or incur;
Marks" has the meaning given in clause 11.1;
Payment Service" means the SPS “Pin Payments” system or other such SPS system that provides a mechanism for accepting Payments from Customers on Your behalf;
Perpetual Group" means Perpetual Limited (ACN 000 431 827) and its related bodies corporate, including the Custodian;
Person" includes an individual, firm, body corporate, unincorporated body or association, partnership, joint venture and any government agency or authority;
Personal Identification Number" means the personal identification number allocated by the Banks, a Card issuer or personally selected by the account holder;
Personal Information" refers to information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is received by You from any source as a consequence of the performance of the rights and obligations under this Agreement;
Privacy Law" means all legislation and principles and industry codes or policies, relating to the collection, use, disclosure, storage and granting of access rights to Personal Information;
Registered" means granted a registration to use the Payment Service in accordance with clause 19.2, which registration has not subsequently been cancelled and "
Registration" has a corresponding meaning;
Relevant Law" means any:
Secure Connection" means a connection between two computers via the Internet, using a standard of encryption considered acceptable for use with cardholder data as determined by the PCI Security Standards Council. At the time of writing, the minimum requirements for a secure connection are:
SPS" means Southern Payment Systems Pty Ltd (ACN 154 451 582), an Australian company with its registered office at Level 4, 147 Collins Street, Melbourne VIC 3000, the provider of the Payment Services to You;
SPS Fee" means the amount charged by Us to You in respect of Transactions and/or Your Registration, and as published from time to time on the Payment Service, as notified in writing by Us to You from time to time;
Term" has the meaning given in clause 13;
Terms and Conditions" means these terms and conditions as may later be amended or supplemented by Us and published from time to time on the Payment Service, as notified in writing by Us to You from time to time;
Transaction" means a transaction between a Customer and You, utilising the Payment Service;
In these Terms and Conditions:
1.2.5 references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
2.1.3 the Banks may obtain from any Card Scheme or a Person who is involved in any Card Scheme, any credit reporting agency or any other Person, information about Your merchant history or Personal Information about You, a Related Body Corporate, Your officers, employees or agents for any purpose relating to the operation of those Card Schemes and the Banks can use any such information to assess an application from Us under clause 2.1.1;
(a) to any Card Scheme or to any Person who is involved in any Card Scheme, information about You for any purpose related to the operation of those Card Schemes, Card fraud detection agencies (including information about termination of merchant Payment Services and reason(s) for termination of the Bank Services); and
2.1.5 the decision whether to approve an application from Us under clause 2.1.1 is at the Banks' sole discretion and the reason for any decision which is made will not be given to You;
2.1.6 approval by the Banks are specific to Us providing Payment Services to You and does not in any way constitute a representation by the Banks that You will be able to use the services of another payment service provider or of the Banks directly should You cease using Our Payment Services for any reason; and
2.1.7 any information obtained by Us or the Banks during assessment of an application under clause 2.1.1 is and remains confidential to Us or the Banks and will not be shared with You. The Banks are bound by Card Scheme Rules and all correspondence and discussions between Card Schemes and the Banks are confidential as between the Banks and the Card Schemes.
2.2.2 if You have disclosed Personal Information to Us in connection with the application under clause 2.1.1, You have obtained the relevant individual's prior consent to the disclosure and otherwise complied with Your obligations under Privacy Law; and
2.3 We are authorised to obtain from Third Parties financial and credit information relating to You in connection with Our decision to approve Your application and in respect of Our continuing evaluation of Your financial and credit worthiness; and
4.1.4 not change Your business name or ownership of Your business without giving Us prior notice and not substantially change the type of goods and services You sell without Our prior written consent;
4.1.8 not engage in activities that harm the Banks’ business or brand or indicate or imply that You prefer, directly or indirectly, any other payment products over the Cards approved for acceptance by You;
4.1.12 allow the employees, contractors or agents of the Banks or those of any Card Scheme reasonable access to Your premises during normal business hours to check Your compliance with this Agreement, the Data Security Standards or for the purposes of the relevant Card Scheme Rules;
4.1.13 provide Us, the Banks and the Custodian with all information and assistance reasonably required to perform their respective obligations and to deal with any queries in relation to the Payment Service;
This clause applies to You if You collect Payment data directly from a Cardholder or store any Cardholder data. In addition to the other provisions of this agreement, You acknowledge and agree:
4.2.1 You must protect stored Cardholder data, regardless of the method used to store such data. Data storage also includes physical storage and security of Cardholder data. Some examples of data storage that must be secured include Access databases, Excel worksheets and hard copies of files. Storage should be kept to the minimum required for business, legal, and/or regulatory purposes;
4.2.5 if We tell You that You must comply with the Data Security Standards, You must, at Your cost, successfully complete the protocols for PCIDSS within the timeframe stipulated by Us or the Card Schemes. You acknowledge and agree that if You fail to do so:
4.2.6 the Banks are obliged to report all Data Breach events to Card Schemes, law enforcement agencies and/or Australian regulators. You grant irrevocable and enduring consent for the Banks to release details of any such Data Breach to the aforementioned bodies;
Subject to the other provisions of this Agreement, You must:
4.3.3 disclose to the Cardholder before a Transaction is completed any fee that You will charge for completing the Transaction and do it in such a way that allows a Cardholder to cancel the Transaction if they choose to do so, without the Cardholder incurring any cost;
4.3.9 if You do sell, purchase, provide or exchange any such information referred to in clause 4.3.8, do so in compliance with all Relevant Law including Privacy Law;
4.3.11 take reasonable steps to ensure that the information and documents mentioned in clause 4.3.8 are protected from misuse and loss and from unauthorised access, modification or disclosure;
4.3.16 prominently and unequivocally inform the Cardholder of Your identity at all points of Cardholder interaction (including on any relevant website, promotional material and invoice) so the Cardholder can readily distinguish You from Us, any supplier of goods or services to You, or any other Third Party;
4.3.17 provide notice to any Cardholder with whom You enter into a Transaction that You are responsible for that Transaction, including for any goods or services provided, any Payment-related service enquiries, dispute resolution, and performance of the terms and conditions of the Transaction;
For the avoidance of doubt, We are not responsible for, nor required to provide support or any assistance to a Customer.
When a chargeback is reported to SPS, funds and any related fees may immediately be withheld or withdrawn from your Pin Payments account balance or your bank account in accordance with the Direct Debit Service Agreement. You accept financial liability for Chargebacks and associated fees and collection expenses incurred by Pin Payments. You request and authorise Pin Payments, through the Bulk Electronic Clearing System, to debit your Deposit Account with any amount owing in respect to Chargebacks associated with your Pin Payments account.
When a Refund is processed by you, funds will be withdrawn from your Pin Payments account balance which may result in a negative Pin Payments account balance. You accept financial liability for Refunds and You request and authorise Pin Payments, through the Bulk Electronic Clearing System, to debit your Deposit Account with any amount owing in respect to Refunds associated with your Pin Payments account.
When SPS engage the services of a debt collection agency to recover debts owed by You to SPS, You agree to pay debt collection costs in addition to any outstanding debt balance owed to SPS.
5.1 Unless You are otherwise notified in writing, You must, before You accept any electronic commerce Transaction, establish and maintain at Your own expense a website that complies with the requirements set out in clause 5.2 and is approved by Us.
5.2.4 a complete description of the goods and services available for purchase on Your website with the price clearly stated in Australian dollars or, if We have agreed to acquire Transactions in another currency, the price clearly stated in such other currency as agreed;
5.2.5 a clear statement that Your business is an Australian business and that all Transactions will be billed in Australian dollars or, if We have agreed to acquire Transactions in another currency, in such other currency as agreed;
5.2.7 details of Your delivery times for goods and services. Delivery times are to be appropriate for the type of business carried on by You. If the delivery is to be delayed, the Cardholder must be notified of the delay and an option provided to them to obtain a refund;
Non-internet based electronic commerce merchant services
5.6 Without limitation to any other clause of these Terms and Conditions, You must comply with any additional terms and conditions We prescribe from time to time for any non-Internet based electronic commerce merchant services We supply to You.
You and We each acknowledge that, by separate agreement made between Us and the Banks, the Banks have agreed to provide the Bank Services to Us in connection with the provision by Us of the Payment Services and You acknowledge and agree that:
6.6 We are responsible for dealing with complaints or disputes relating to Payment requests and Transactions (whether stored value Payments or Card Payments) and You will refer any such complaints or disputes ("Dispute") immediately to Us for resolution in accordance with Our dispute resolution procedures;
7.1 This clause 7.1 applies if You accept Payment instructions directly from the Cardholder. You must:
7.1.5 only submit a Transaction as a refund to a Cardholder if it is a genuine refund of a previous Transaction. The refund must be processed to the same Card that was used in the original Transaction and be for the original sale amount;
7.2.1 take reasonable steps to verify the identity of the Person You are dealing with, in order to confirm that they are the genuine Cardholder, including by observing and implementing the recommendations in any fraud prevention material provided to You; and
8.1 We will provide a summary Transaction Receipt to the Cardholder for each payment transaction made. You may also provide the Cardholder with a Transaction Receipt for each Transaction, but You must not charge a fee for doing so.
9.1.14 You have not complied with Your obligations in clause 4.3;
9.1.15 the details are keyed into equipment and You did not legibly record on a Transaction Receipt the information required by clause 8;
9.1.19 You cannot give a Transaction Receipt as required by clause 8.
You acknowledge and agree that:
You acknowledge and agree that:
12.1.3 if You are an incorporated body, You validly exist under the laws of Your place of incorporation and have the power and authority to carry on Your business as that business is now being conducted and using any name under which that business is being conducted;
12.1.4 if You, a Related Body Corporate or any officer, employee or agent of You or a Related Body Corporate has at any time been listed on a database of terminated merchants maintained by any Card Scheme or have otherwise had the Bank Services terminated by another acquiring bank, You have disclosed that fact to us;
12.1.6 all corporate action has been taken that is necessary or desirable to authorise Your compliance with the Terms and Conditions and Your carrying out of the transactions that the Terms and Conditions contemplate;
12.1.10 there are no actions, claims, proceedings or investigations pending or threatened against You or by, against or before any Person that may have a material effect on the subject matter of the Terms and Conditions;
12.2 You acknowledge that We have Registered You and agreed to provide the Payment Service and to facilitate the Transactions in reliance on the representations and warranties that are made in this clause 12.
12.3 Despite any other provision of these Terms and Conditions, this clause 12 survives the expiry or termination of the Terms and Conditions.
The Engagement commences on the Execution Date and continues until terminated in accordance with clause 14 (" Termination and Suspension").
14.3 Each party will retain any rights it may have against the other party in respect of any accrued liability or any breach or non-observance of these Terms and Conditions arising or occurring prior to the expiration or termination of the Engagement.
14.4 This Agreement will terminate automatically and immediately if Our registration as a payment service provider with all Card Schemes is cancelled or if Our agreement with all of the Banks for the provision of merchant services is terminated for any reason.
14.5 You acknowledge that We will disclose termination of this agreement for any reason to the Banks and You authorise the Banks to disclose to any Card Scheme advice of termination of this Agreement and the reasons for the termination. You acknowledge that the information concerning termination of this Agreement then becomes available to any member of the Card Schemes. This information, available to any member of the Card Schemes, may be used in assessing subsequent applications for merchant facilities.
14.6 This clause 14 survives termination of this Agreement.
You cannot infer from the fact that a Cardholder has been issued with a nominated Card, or that a Transaction has been processed or an authorisation has been given, that We have guaranteed:
18.2.1 monitor and/or analyse Your use of the Payment Service with the purpose of identifying transaction behaviours that may be fraudulent or inconsistent with Your transaction history or the information You have provided to Us in your application;
(a) submit a completed Application Form to Us (including but not limited to providing Us with all information required by Us in order for Us to undertake a background and financial check on You) in order for Us to make a determination whether to approve Your application;
20.1.1 You agree to pay any SPS Fee (identified by Us as being payable by You) in respect of all Transactions processed through the Payment Service by You and/or in respect of Your Registration with the Payment Service.
20.1.2 The amount of any SPS Fee or the method of calculating any SPS Fee may be amended by Us from time to time and published on the Payment Service, as notified in writing by Us to You with at least 28 days notice.
21.1.3 comply with all legislative requirements that cover the conduct of Our business in the performance of Our obligations, including any relevant regulations, codes of practice, Australian standards, industry standards and safety publications;
In providing the Payment Service, We will devote sufficient attention, time and ability to the provision of the Payment Service as reasonably necessary.
21.3.1 Subject to clause 23, We must:
21.5.1 We are responsible for protecting the security of Card Holder Data (defined as a primary account number, expiry and CVV) in our possession and will maintain all reasonable administrative, technical and physical processes to protect all information regarding you and your customers that is stored in our systems from unauthorised access. However, we cannot guarantee that unauthorised third parties will never be able to circumvent those measures or use such personal information in this case. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
As part of the Payment Service, the Custodian will hold Payments in accordance with the terms of the Custody Agreement.
You acknowledge and agree that the:
22.2.4 Custodian has no liability or responsibility to You or any Customer for any act done or omission made (including for negligence or breach of trust) in accordance with the terms of the Custody Agreement; and
You further acknowledge and agree that:
22.3.2 the Custodian may be entitled to receive from the Banks with which a bank account is held, a commission calculated by reference to the balance in the relevant bank account from time to time, which commission is separate from and in addition to the interest which otherwise could accrue on the bank account and will not appear on any bank statement;
You irrevocably appoint Us to be Your true and lawful attorney to sign, seal, deliver, execute and do on Your behalf and in Your name or otherwise as attorney thinks fit, all deeds, instruments, letters and so forth, which may be necessary or desirable to give effect to Your obligations under these Terms and Conditions with respect to the Custodian.
23.1 Subject to clause 23.2, if provision of the Payment Service is delayed due to a Force Majeure Circumstance We will not be in default, nor be liable for any Loss incurred or suffered by You, for that reason only.
25.1.1 Any limitation on a party's liability under these Terms and Conditions only operates to the extent permitted by law, and nothing in these Terms and Conditions purports to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, any condition or warranty implied by legislation (including the Competition and Consumer Act 2010 (Cth.) and any State or Territory legislation concerning consumer protection, fair trading or the sale of goods or services) ("Implied Term") where to do so would have the effect of rendering the relevant provision in these Terms and Conditions void or otherwise unenforceable.
25.1.2 Subject to clause 25.1.1:
(b) Our liability for a breach of any Implied Term of the kind referred to in clause 25.1.1 will be limited to the full extent expressly allowed for in the relevant legislation.
A party's liability for any claim in connection with the Engagement will not extend to any indirect or consequential Loss.
Each party must take all reasonable steps to mitigate the effect on that party of any Loss for which another party may be liable.
We are not liable for any Loss arising from any error in connection with the Payment Service where such error results from the provision to Us of any false, misleading or incomplete information or documentation or the acts or omissions of You or any Third Party.
Notwithstanding any other provision of these Terms and Conditions, to the extent permitted by law, neither We nor the Custodian are liable to You or any other Person for any:
25.5.2 any failure, malfunction, fault in delivery, delay, omission, suspension, inaccuracy, interruption, termination or any other cause, in connection with the furnishing, performance, operation, maintenance, use of or inability to use all or any part of the Payment Service;
25.5.4 indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
26.1 If a dispute arises between the parties in relation to the Engagement ("Agreement Dispute"), any party may by written notice to the other party specify the details of the Agreement Dispute ("Dispute Notice").
26.3 If the Agreement Dispute remains unresolved 14 Banking Days after receipt of the Dispute Notice, the parties agree to submit the Agreement Dispute to mediation administered by a single mediator, which will be agreed between the Parties.
26.4 In the event the parties cannot agree on a single mediator within 28 Banking Days after receipt of the Dispute Notice, then the parties must request the nomination by the Australian Commercial Disputes Centre of a mediator.
27.1 Each party indemnifies the other party against all claims, damages, suits, made against the other party and all Loss arising directly (except to the extent that the liability has occurred or arisen due to the negligence or unlawful act of the other party, its servant, agents or other contractors) from:
27.2 You indemnify Us against any and all liability to You or any Third Party where such liability results from the provision of false, misleading or incomplete information or documentation to Us by You or Your agents or representatives.
27.3 You indemnify the Banks and/or their related Bodies Corporate against all costs, claims, proceedings and demands made against the Banks and/or their related Bodies Corporate and all Loss arising directly (except to the extent that the liability has occurred or arisen due to the negligence or unlawful act of the Banks, their servants, agents or other contractors) from any breach of these Terms and Conditions by You.
28.1.1 the property of the other party ("Disclosing Party") includes and will include, all confidential information and all records, documents, correspondence, lists and other material relating to the business operations, processes, finances, affairs or dealings of the Disclosing Party, its related bodies corporate and its affiliates ("Disclosing Party's Information"); and
28.2 The parties will not, during the Term or at any time thereafter (except in the proper course of providing or utilising the Payment Service or as required by legislation, law or the Disclosing Party), use or disclose to any Person any trade or business secret or any confidential information, including without limitation the Disclosing Party's Information, of which they become possessed or aware in the course of or by reason of providing or receiving access to the Payment Service.
28.3 The restrictions set out in clause 28.2 shall continue to apply after the Term without limitation in point of time, but shall cease to apply to information that comes into the public domain other than through an act or omission.
28.4 Upon the termination of the Engagement for any reason, each party will deliver up to the Disclosing Party or its nominees, complete with written verification (if requested), all correspondence, documents, computer records, business cards, papers and property belonging to the Disclosing Party or relating in any way to the affairs or business of the Disclosing Party which may be in the possession or under the control of each party, including any Disclosing Party's Information.
29.1 Notices must be in writing, and delivered to a party by hand, ordinary pre-paid post, facsimile or e-mail to that party's address or to the alternate address notified to the party giving the notice.
The parties agree and acknowledge that We are an independent contractor and that there is no employment relationship between You and Us or any Person employed or engaged by Us to assist in the provision of the Payment Service. Neither party shall hold themselves out as partner, employer, employee, agent or principal of the other party except to the extent specifically authorised by the other party in writing nor at any time bind or purport to bind the other party to any agreement or transaction nor pledge the credit of the other party in any manner whatsoever nor permit the creation of any lien over any property of the other party.
These Terms and Conditions shall endure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
These Terms and Conditions may be amended by Us from time to time and published on the Payment Service, as notified in writing by Us to You with at least 28 days notice.
These Terms and Conditions embody the entire understanding and the whole agreement between the parties relative to the subject matter hereof and all previous negotiations, representations, warranties, arrangements and statements (if any) whether expressed or implied with reference to the subject matter hereof or to the intentions of any of the parties hereto are merged herein and otherwise are hereby excluded and cancelled.
Each Person executing these Terms and Conditions:
30.5.1 as attorney, by so doing, warrants to the other parties that, as at the date of execution, the signatory has not received notice or information of the revocation of the power of attorney appointing that Person; and
These Terms and Conditions shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
30.6.1 that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
30.6.2 if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining Terms and Conditions shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.
The rights, remedies and powers of the parties under these Terms and Conditions are cumulative and do not exclude any other rights, remedies or powers available at law or in equity.
The Engagement is governed by the laws of Victoria and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State.
Subject to express provisions in these Terms and Conditions to the contrary, each party by completing and submitting the Application Form is deemed to unconditionally sign, seal and deliver these Terms and Conditions as a deed, with the intention of being immediately legally bound by them.