Terms & Conditions

Merchant Agreement

1. Services

• (a)

  Subject to the Merchant completing and passing all onboarding checks and being accepted by the Company (in its absolute discretion) for the provision of Services, the Company will provide the Services to the Merchant on the terms of this Agreement in the Territory.

• (b)

  The Merchant must provide the Company with all requested information and assistance to comply with the AML/CTF Act.

• (c)

  If required by a Scheme or the Company, the Merchant must enter into an acceptance agreement (or equivalent agreement) to receive the Services in respect of that Scheme.

• (d)

  The Merchant must not allow any third party to use the Services without the Company's prior written consent.

• (e)

  By submitting an Application Form, the Merchant acknowledges that such information (including Personal Information) will be disclosed to the Company for the purposes of assessing any application and otherwise providing Services under this Agreement.

• (f)

  All information (including Personal Information) provided to the Company will be held in accordance with the Privacy Policy.

2. Permitted Products and Services

• (a)

  The Merchant must not engage in any activity or provide any goods or services that is illegal, that the Company prohibits or restricts, or that exceeds the Company's risk appetite (as notified from time to time).

• (b)

  The Merchant is responsible to ensure the that its goods or services are compliant and provided in accordance with applicable laws in the Territory and each jurisdiction in which its customers are based.

• (c)

  If the Company in its reasonable discretion determines that there is a significant risk that the Merchant Products and Services are not, or are no longer, compliant with applicable laws and/or are in violation of any Scheme Rules, the Company has the right to terminate its Services.

3. Supported Payment Methods

• (a)

  The Payment Methods offered under the Services may change from time to time. The Company will give at least 30 days' notice to Merchants of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. The Company will use its reasonable endeavours to offer an alternative for any discontinued Payment Method to the Merchant.

• (b)

  The Merchant understands that the Company (as a result of decisions made by the Acquirer or relevant Scheme) might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, the Company may be forced to block the Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use. Where possible the Company will use its reasonable efforts to give Merchant prior notice of any such change or cancellation with respect to a Payment Method.

• (c)

  Where the Services include PayTo as a Payment Method, the Company will be responsible for creating and submitting PayTo Agreements to the customer's financial institution via the NPP's Madate Management Service. The Merchant must provide the Company with all information reasonably required to create a PayTo Agreement and must direct its customers to authorise the PayTo Agreement through their financial institution's digital banking platform. The Merchant acknowledges that the Company has no control over whether a customer's financial institution supports PayTo or whether a customer authorises, amends, pauses or cancels a PayTo Agreement.

• (d)

  Where the Services include PayID as a Payment Method, the Merchant acknowledges that PayID transactions are settled in real-time via the NPP and that, once a PayID payment has been completed, it cannot be reversed by the Company. Any refund in respect of a PayID Transaction must be processed as a separate payment to the customer in accordance with this Agreement.

4. Invalid or Unacceptable Transactions, Chargebacks and NPP Disputes

• (a)

  A Transaction for a sale or refund is invalid or unacceptable if:

  • (i)

    the Transaction is a Prohibited Transaction;

  • (ii)

    the Transaction is illegal or otherwise prohibited by applicable laws;

  • (iii)

    the Transaction is fraudulent (whether the Merchant had knowledge of this fact or not);

  • (iv)

    the Transaction is not authorised by the Merchant's customer;

  • (v)

    the price charged for the goods or services is more than the listed or agreed price for those goods or services;

  • (vi)

    the Merchant did not actually supply the goods or services to a genuine customer as required by the terms of the Transaction, or has indicated its intention not to do so;

  • (vii)

    the Transaction did not relate to the actual sale of goods or services to a genuine customer;

  • (viii)

    this Agreement was terminated before the date of the Transaction;

  • (ix)

    the Merchant cannot give a receipt in connection with the relevant Transaction;

  • (x)

    the Merchant has not otherwise complied with this Agreement in connection with the Transaction and the Company is of the reasonable opinion that such non-compliance may result in the Company suffering loss;

  • (xi)

    the Merchant's customer disputes liability for the Transaction for any reason or makes a claim for set-off or a counterclaim, and in each case, is entitled to the remedy sought under applicable Scheme Rules and applicable laws; or

  • (xii)

    the Transaction, in the Company's reasonable discretion, is invalid.

• (b)

  The Merchant acknowledges and agrees that the Company may:

  • (i)

    refuse to accept a Transaction if it is invalid or unacceptable;

  • (ii)

    process a return request to the Acquirer if a request is submitted by a Customer;

  • (iii)

    to the extent it is able to do so, reverse a Transaction processed by the Merchant, even if approved by the Acquirer;

  • (iv)

    reverse a sales Transaction where it reasonably considers that a Chargeback is likely to be submitted for that Transaction under clause 4(a) or for any other reason in its reasonable discretion; and

  • (v)

    set-off any amounts owing to the Merchant by the Company in respect of a Chargeback or NPP Dispute against funds standing to the credit of the Merchant.

• (c)

  The Merchant acknowledges and agrees that it is responsible and financially liable in respect of the amounts of any Chargebacks or NPP Disputes (including any fees associated with Chargebacks or NPP Disputes).

• (d)

  The Company may suspend the Services and delay, block or refuse to process any payment or other Transaction if the Company determines that it is reasonably necessary to mitigate or manage its money laundering or terrorism financing risks or risks of breaching the AML/CTF Act or the Company knows or reasonably suspects that the payment or Transaction or the application of the Transaction's proceeds will breach, or cause the Company to breach, any applicable laws (including the AML/CTF Act).

5. Settlement Account

• (a)

  The Company will process all valid authorised Transactions via the Acquirer for supported Schemes, or via the NPP for PayID and PayTo Transactions, on the terms of this Agreement.

• (b)

  Subject to this Agreement, the Company will arrange for all valid Transactions to be processed and credited to the Settlement Account with the corresponding settlement amount received by the Company on a 'net settlement basis' for the settlement period. For clarity, settlement will be calculated as the gross Transaction amount minus:

  • (i)

    any applicable Processing Fee;

  • (ii)

    any Chargebacks or NPP Disputes payable by the Merchant;

  • (iii)

    any Refunds payable by the Merchant;

  • (iv)

    any amounts that the Company may, or is required to, withhold under this Agreement; and

  • (v)

    any other fines, fees, charges or amounts that are payable by the Merchant under this Agreement or in connection with a Scheme or applicable law.

• (c)

  Subject to this Agreement, the Company is only obliged to provide settlement of Transactions for which it has received settlement by the Acquirer, Scheme or NPP (as applicable). The Merchant understands and agrees that the Company will not compensate the Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer, Scheme or NPP Participant due to which Merchant receives late settlement or no settlement at all for processed Transactions.

• (d)

  To the extent the settlement amount for an applicable settlement period is a negative number, the Company may:

  • (i)

    set-off or deduct that amount against future settlement amounts payable to the Merchant; or

  • (ii)

    immediately demand payment of any shortfall.

• (e)

  The Company must promptly give the Merchant access to information showing the full amount of all Transactions processed by the Company, as requested by the Company.

• (f)

  In addition to the Company's rights under this clause, where:

  • (i)

    the Company is aware or has reason to believe that a Transaction is an Invalid Transaction;

  • (ii)

    the total number of Transactions or the total dollar amount of Transactions processed using the Services in any one day is in the Company's opinion abnormally excessive; or

  • (iii)

    the dollar amount of an individual Transaction is in the Company's opinion abnormally high;

  • then the Acquirer reserves the right for a period of up to 60 days to:

  • (iv)

    withhold payment to the Settlement Account in respect of a particular Transaction or the whole day's Transactions (as the case may be); or

  • (v)

    prevent the withdrawal of such sums to the Settlement Account which is equal to the amount the Company estimates may become owing to the Company in respect of the Transaction in question.

• (g)

  If clause 5(d) applies, during the 60 day period, the Company must promptly notify the Merchant and investigate the relevant Transaction (acting reasonably and in liaison with the Merchant in order to provide an opportunity to establish that the Transaction is legitimate) to determine whether the Company:

  • (i)

    will either:

    • (A)

      refuse to process the Transaction and return the Transaction to the sender or payer; or

    • (B)

      if the Transaction has been processed, charge the Transaction back to the sender or payer; and

  • (ii)

    will set-off amounts owing to the Merchant by the Company in respect of the Transaction against funds standing to the credit of the Merchant or any other account held by the Merchant.

6. Term & Termination

• (a)

  Unless otherwise agreed, this Agreement will continue until it is terminated under this clause 6.

• (b)

  Either party may immediately terminate this Agreement on written notice if the other party materially breaches the Merchant Agreement that is not remediable, or where such breach is remediable it has not been remedied within seven days.

• (c)

  Either party may terminate this Agreement without cause by providing the other party at least 30 days' prior notice.

• (d)

  The Company may terminate this Agreement on three days' written notice to the Merchant if:

  • (i)

    (Disputed Transactions, Chargebacks and Refunds) in the Company's reasonable opinion, the Merchant has an unacceptably high number of Disputed Transactions, Chargebacks, NPP Disputes or Refund requests which are persistent and unresolved;

  • (ii)

    (fraud) the Merchant processes a Transaction which they know or ought reasonably to have known to be fraudulent, or the Merchant otherwise acts fraudulently;

  • (iii)

    (representations and warranties) any representations or warranties provided by the Merchant under this Agreement are untrue, or cease to be true;

  • (iv)

    (Insolvent) the Merchant is Insolvent;

  • (v)

    (damage to brand or reputation) the Company reasonably determines that continuation of the Services may damage the Company's brand or reputation;

  • (vi)

    (Scheme requirement) if required to do so by any Scheme;

  • (vii)

    (inaccurate information or failing to provide information) the Merchant provides inaccurate information to the Company or fails to provide information reasonably required by the Company to provide the Services;

  • (viii)

    (breaches of applicable law or Scheme rules) the Merchant breaches any applicable laws, Scheme rules or NPP Procedures and Regulations that directly relate to this Agreement, or acts in a way that causes the Company to breach any applicable laws, Scheme rules or NPP Procedures and Regulations;

  • (ix)

    (no Transaction volume) the Merchant does not submit Transactions in any consecutive two month period;

  • (x)

    (termination of third-party arrangements) the Company can no longer provide the Services due to termination of arrangements with third parties (such as the Acquirer) required to provide those Services or the withdrawal of any necessary consents or authorisations.

• (e)

  Upon termination of this Merchant Agreement:

  • (i)

    the Company is not liable for any loss, damages, claims or liability incurred by the Merchant as a result of a termination; and

  • (ii)

    all amounts accrued or outstanding under this Agreement will become immediately due and payable on termination.

• (f)

  In addition to other suspension and termination rights in this Agreement, the Company may (using reasonable endeavours to provide prior notice) vary, suspend or terminate all or part of the Services for the purposes of:

  • (i)

    routine or emergency maintenance; or

  • (ii)

    security or technical reasons,

  • (iii)

    to avoid a material disadvantage or damage to either the Company or Merchant.

7. Merchant Obligations

• (a)

  The Merchant must:

  • (i)

    not effect a change in control (as defined by section 50AA of the Corporations Act) without the prior written consent of the Company;

  • (ii)

    not change the principal business activities and the fundamental line of business or commercial activities as notified to the Company without the Company's prior written consent;

  • (iii)

    not change the types of goods or services that the Company supplies to their customers without the Company's prior written consent;

  • (iv)

    not knowingly process any Prohibited Transactions;

  • (v)

    only display prices and submit Transactions in AUD unless otherwise approved by the Company;

  • (vi)

    not process Transactions on behalf of third-parties;

  • (vii)

    comply with all applicable laws, Scheme Rules and NPP Procedures and Regulations in relation to Transactions;

  • (viii)

    use its best endeavours to resolve any dispute with its customers relating to a Transaction or associated the goods and services;

  • (ix)

    comply with any lawful written direction given by the Company in relation to the acceptance of a Transaction;

  • (x)

    not impose any additional charges, fees or surcharges on Transactions unless expressly permitted by the Company;

  • (xi)

    establish and disclose to its customers clear refund policies that comply with applicable laws;

  • (xii)

    only process refunds electronically to the original Payment Method used in the Transaction, or where the original Transaction was processed via the NPP, by initiating an NPP payment to the customer's account in accordance with the Company's instructions;

  • (xiii)

    ensure that its customer is notified when goods or services cannot be delivered or provided on the agreed upon date;

  • (xiv)

    provide the Company with all reports and other information reasonably required by the Company to perform the Services;

  • (xv)

    provide the Company with all information, reports and assistance the Company reasonably requires to perform the Company's obligations and to deal with any queries from the Acquirer in relation to a Transaction;

  • (xvi)

    allow the Company and those of any Scheme operator, upon reasonable advance notice by the Company, reasonable access to its premises during normal business hours to check compliance with this Agreement and/or relevant Scheme Rules;

  • (xvii)

    comply with the Company's reasonable and lawful instructions and all applicable laws in using the Services and performing its obligations under this Agreement;

  • (xviii)

    prominently display any marks or notices on its website which are reasonably requested by the Company.

• (b)

  In using the Services, the Merchant must:

  • (i)

    respond promptly to all enquiries or complaints by customers in respect of Transactions and the Services;

  • (ii)

    action any reasonably requests the Company issues in respect of Chargebacks within the required timeframes;

  • (iii)

    not infringe the Company's Intellectual Property Rights.

  • (iv)

    not copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Service;

  • (v)

    not act in a manner that in any way breaches applicable laws or violates all or any legal rights of any person in any jurisdiction (including any person's privacy, such as by way of identity theft or "phishing");

  • (vi)

    not license, sublicense, resell, assign, transfer, distribute, or provide others with access to, the Service without the Company's written consent;

  • (vii)

    not "frame", "mirror" or serve any Service on any web server or other computer server over the Internet or any other network;

  • (viii)

    not store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);

  • (ix)

    not sell or otherwise market fraudulent offers of goods or services;

  • (x)

    not create derivative works from or any other material including, incorporating, using or adding to any of the Company's Intellectual Property Rights;

  • (xi)

    not carry out or permit security breaches or disruptions of network communication (security breaches include, accessing data of which the Merchant is not an intended recipient, logging into a server or account that the Merchant is not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes);

  • (xii)

    not act in any way that causes damage or injury to any person or property;

  • (xiii)

    not execute any form of network monitoring which will intercept data not intended for the Merchant; or

  • (xiv)

    not circumvent user authentication or security of any of the Company's hosts, networks or accounts or those of third-party providers.

• (c)

  The Merchant acknowledges and agrees that:

  • (i)

    the Company has no obligation to verify any Transaction;

  • (ii)

    an authorised Transaction may still be subject to Chargeback, NPP Dispute or Refund, and the Merchant is liable for any Chargebacks, NPP Disputes or Refunds;

  • (iii)

    the Merchant is liable for any fines, fees, charges or amounts imposed as a result of its actions under any applicable law or Scheme;

  • (iv)

    the Company in its absolute discretion may pay the amount of a Disputed Transaction to the relevant person or party; and

  • (v)

    the Merchant is liable for the amount of any Disputed Transaction and the Company may set-off amounts owing by the Merchant under this Agreement against amounts owing by the Company under this Agreement.

8. Service Standards

• (a)

  Subject to any non-excludable guarantees implied in an Agreement under the ACL or any other applicable law, we do not warrant or guarantee that the Service will be:

  • (i)

    uninterrupted or error-free, free from fault or external intrusion;

  • (ii)

    be fit for any purpose or have any specific quality, performance of compatibility; or

  • (iii)

    suitable for or will meet your requirements.

• (b)

  Before entering into an Agreement for our provision of Services, you must ensure that the details in the Application Form are correct and free of any errors or mistakes and that the Services are suitable for your intended use, needs and purposes.

• (c)

  We may in our sole discretion, vary any Service at any time or from time to time, provided that such variation does not have a material adverse effect on their performance.

• (d)

  To the extent permitted by law and notwithstanding any other provision of this Agreement, you acknowledge and agree that the Services are at all times only provided on a best endeavours basis.

9. Costs & Fees

• (a)

  The Merchant must pay the Company the fees, charges and other payments referred to in clause 9(b).

• (b)

  The Merchant authorises the Company to withdraw, deduct or set-off, without notice, the following amounts from any account the Merchant holds with the Company or from such amounts which are due to the Merchant from the Company:

  • (i)

    all fees, charges and costs in connection with the Services as set out in the Application Form;

  • (ii)

    any outstanding amount arising from a Refund which the Company has paid to the Merchant, but which was not a valid or acceptable Transaction;

  • (iii)

    all over-credits paid by the Company on sales due to errors or omissions;

  • (iv)

    all Chargebacks, NPP Disputes and credits paid by the Acquirer or NPP Participant on sales which the Company has determined to be Chargeback or NPP Dispute under clause 4(b);

  • (v)

    all taxes, and other government charges levied on the Services;

  • (vi)

    all fines, penalties or similar costs (however described) imposed on the Company, Acquirer or NPP Participant by a Scheme or the NPP arising from the Merchant's conduct (including where the Merchant's conduct results in an unacceptable rate of Chargebacks or NPP Disputes in the Company's reasonable opinion);

  • (vii)

    all other amounts the Merchant owes the Company under this Agreement.

• (c)

  The Merchant must promptly pay, on demand from the Company, any balance that remains unpaid because there are insufficient funds in the Merchant's Account to pay the amounts due under clause 9(b). If the Merchant does not promptly pay the Company any outstanding amounts pursuant to this clause, the Merchant acknowledges that the Company may set-off such amounts against any amounts owing by the Company to the Merchant under this Agreement.

• (d)

  If the Company requires it, the Merchant must provide the Company with a Direct Debit Request to direct debit the Settlement Account with the amounts due and payable by the Merchant to the Company under this clause 9.

• (e)

  The Company may

  • (i)

    upon providing at least 30 days' notice to the Merchant, increase the fees, charges or cost in connection with Services as set out in the Application Form; or

  • (ii)

    immediately increase the fees, charges or costs by providing the Merchant with notice if the increase represents a direct pass through of a fee, charge or cost from the Acquirer, Scheme or other third party service provider (such as the New Payments Platform).

• (f)

  Except as otherwise set out in the Application Form, all fees, costs and charges are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any Supply (as that term is defined in the GST Law) made for the purposes of an Agreement. You must pay all such taxes, at the same time as the fees, costs and charges payable under this clause.

9A. Value Added Products

• (a)

  The Company may make available to the Merchant, from time to time, non-payment products and services in addition to the core payment Services (Value-Add Products). Value-Add Products currently include Clever AI and Loyalty, and may include any other products as the Company makes them available from time to time. Value-Add Products are separate from and supplemental to the core payment Services, and nothing in this clause 9A affects the Merchant's rights or obligations in respect of those Services.

• (b)

  Access to Value-Add Products is determined by the Merchant's selected plan tier as set out in the Application Form (Starter, Pro, Volume, any custom plan agreed between the Merchant and the Company in writing, or such other tiers as Hello Clever may introduce from time to time). The products and features included in each tier are as set out in the Application Form or the pricing page on the Company's website referenced in it (Pricing Page), as may be updated from time to time. Where the parties have agreed a custom plan in writing, the products and fees applicable to that plan are as set out in the Application Form and prevail over the standard plan inclusions to the extent of any inconsistency.

• (c)

  Fees for Value-Add Products are as set out in the Application Form or the Pricing Page and are payable in accordance with the payment terms in clause 9. For clarity, the fee review and adjustment mechanism in clause 9(e) applies to adjustments of fees for Value-Add Products that are already chargeable and the mechanism in clause 9A(d) applies to the introduction of fees for Value-Add Products previously provided free of charge or on a beta or trial basis.

• (d)

  The Company may, at its discretion, make the following changes subject to providing prior notice to the Merchant via a notification within the platform, by email to the Merchant's nominated contact, or both:

  • (i)

    add a new Value-Add Product to any tier, provided that the addition does not require the Merchant to pay any additional fee or accept any new material obligations (no minimum notice required);

  • (ii)

    remove one or more Value-Add Product from any tier or discontinue it entirely (no less than 14 days' prior notice);

  • (iii)

    modify the features or functionality of any Value-Add Product (no less than 14 days' prior notice);

  • (iv)

    move a Value-Add Product between tiers (no less than 14 days' prior notice); or

  • (v)

    introduce fees for any Value-Add Product that was previously provided free of charge or on a beta or trial basis by updating the Pricing Page (no less than 30 days' prior notice).

• If the Merchant does not accept a change under clause 9A(d), the Merchant may terminate access to the affected Value-Add Product by written notice to the Company before the effective date of the change, without affecting the Merchant's rights or obligations in respect of the remaining Services and any other Value-Add Products. If the Merchant continues to use the affected Value-Add Product after the effective date of the change without exercising that termination right, such use constitutes the Merchant's acceptance of that change and the change will take effect in respect of the Merchant from that date.

• (e)

  The Merchant may change its selected tier at any time via the merchant dashboard. A tier upgrade takes effect immediately upon confirmation in the dashboard, and the Merchant will be charged the applicable fees for the new tier from that date on a pro-rata basis for the remainder of the then-current billing period. A tier downgrade takes effect at the end of the then-current billing period, and the Merchant will retain access to its existing tier until that date. Notwithstanding the foregoing, the Company may, at its discretion, restrict or prohibit tier changes where the Merchant has outstanding amounts owing to the Company or is in breach of this Agreement.

• (f)

  To the greatest extent permitted by laws:

  • (i)

    the Company shall not, in any way, be held liable to the Merchant for any loss or damage arising from or in connection with the adjustment, change, removal or discontinuation of a Value-Add Product, provided the Company has given the notice required under clause 9A(d); and

  • (ii)

    the Merchant's sole remedy in that circumstance is to exercise its right to terminate access to the affected product in accordance with clause 9A(d).

• (g)

  The Company may from time to time, introduce any Value-Add Products and make them available on a beta or trial basis at no charge. Such products will be identified as beta or trial on the Pricing Page or in the platform. Subject to any non-excludable guarantees under the ACL or other applicable laws, Value-Add Products offered under beta or trial basis (Beta Products) are provided without warranty of any kind. The Company may modify, withdraw or commence charging for any Beta Product (including by updating the Pricing Page), or terminate the Merchant's access to it, at any time in accordance with clause 9A(d). The Merchant's use of a Beta Product does not create any entitlement to continued access or to the Beta Product being made generally available.

10. Taxes and Set-Off

• (a)

  The Merchant agrees to defend, hold harmless and indemnify the Company from and against any taxes, including penalties, interests, surcharges due on any product or service of the Merchant (including but not limited to any Transactions) and costs or damages related to such taxes. If withholding of any type of taxes or levies is, or was, legally due on any product or service or the Merchant, then the Company will be entitled to withhold such taxes at the expense of the Merchant. The Merchant must:

  • (i)

    apply all reasonable efforts to ensure that the Company cannot be held liable for any taxes and costs or damages related to such taxes;

  • (ii)

    promptly inform the Company of any such liability;

  • (iii)

    provide the Company with all relevant information and documentation in that respect.

• (b)

  The Merchant shall be jointly and severally liable towards the Company for any such taxes and costs or damages related to such taxes.

• (c)

  Without prejudice to any right to set-off which the Company may be entitled to as a matter of law, the Company may set-off any amounts due to the Merchant against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to the Company under, in connection to, or pursuant to this Agreement.

11. Liability and Indemnity

• (a)

  The Services do not constitute the provision by the Company of advice, including financial, legal or other advice. The Merchant must obtain all appropriate professional, financial, legal and other advice as applicable before obtaining or relying on the Services.

• (b)

  The Company is not liable for any failure to perform or deliver the Services where such failure is caused or contributed by a breach of the Agreement by the Merchant.

• (c)

  No party is liable to the other for any loss of profits, loss of business opportunity, loss of savings, loss of data or any other consequential loss, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage was foreseeable or not.

• (d)

  To the extent that the Company's liability is not already excluded, the total aggregate liability of the Company under or in connection with this Agreement and Services is capped at $5,000 unless the liability relates to the Company's fraud or wilful misconduct.

• (e)

  Any claims shall be reduced to the extent that the Merchant caused, or was responsible for, such loss or damage.

• (f)

  Where liability for breach of any guarantees under the ACL or equivalent state or territory applicable law can be limited, the Company's liability arising from any breach of those guarantees (if any) is limited, at the Company's option:

  • (i)

    with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or

  • (ii)

    with respect to Services, to the supply of Services again or the cost of re-supplying the Services again.

• (g)

  Other than any non-excludable guarantees implied into an Agreement under the ACL or other applicable laws (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.

• (h)

  Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual or potential breach of the Agreement.

12. Data Security and Privacy

• (a)

  The Merchant must maintain the security of the Merchant Data in its possession through appropriate security management processes and governance systems that comply with any standard or requirements prescribed by the Company from time to time.

• (b)

  The Merchant acknowledges that although the Company implements appropriate security procedures it does not warrant that unauthorised access to information and data could not occur.

• (c)

  The Merchant must:

  • (i)

    comply with Privacy Requirements in relation to Personal Information;

  • (ii)

    provide reasonable assistance to the Company for any Personal Information inquiry or complaint; and

  • (iii)

    ensure that only authorised personnel have access to Personal Information.

• (d)

  Where an Eligible Data Breach has occurred (or is reasonably suspected to have occurred) in respect of Personal Information connected to a Transaction, the Merchant must:

  • (i)

    promptly disclose to the Company all information relevant to that actual or suspected Eligible Data Breach; and

  • (ii)

    comply with its obligations under the Privacy Requirements in respect of the Eligible Data Breach.

• (e)

  If the Merchant suspects or becomes aware of any other unauthorised use or disclosure of Merchant Data or other breach of the Privacy Requirements, the Merchant must promptly notify the Company after forming the suspicion or becoming aware of the incident.

13. Confidentiality

• (a)

  Subject to clause 13(b) below, the Merchant and Company must keep all Confidential Information of the other party and the terms of this Agreement confidential.

• (b)

  Despite clause 13(a), a party may make any disclosures in relation to Confidential Information of the other party or this Agreement:

  • (i)

    as, in its reasonable discretion, it thinks necessary to:

    • (A)

      its professional advisers, bankers, financial advisers, auditors and financiers to whom it is reasonably necessary to disclose the information;

    • (B)

      comply with any applicable law or requirement of any regulatory body (including any relevant stock exchange); or

    • (C)

      any of its officers, employees, agents and contractors to whom it is reasonably necessary to disclose the information;

  • (ii)

    if the information is generally and publicly available other than as a result of that party's breach of clause 13(a); or

  • (iii)

    such information to any of its employees or representatives or its Related Bodies Corporate to be used or disclosed:

    • (A)

      for credit assessment and administration purposes; or

    • (B)

      to enable it to carry out its obligations under this Agreement.

• (c)

  Despite clause 13(a), the Merchant consents to the Company disclosing information relating to the Merchant or any Transaction to any person in order to enable the Company, Acquirer or Scheme operator to comply with any applicable law, this Agreement, any Scheme rules or other obligation which relates to the Services.

14. Publicity and Advertising

• (a)

  Except to the extent disclosure is required by applicable law or the rules of any stock exchange on which a party's (or any Related Body Corporate's) shares are listed, the Merchant must not issue any announcement or press release (including any offer documents or promotional material), or publish the nature or existence of this Agreement without the Company's prior written consent.

• (b)

  The Merchant must not without the Company's prior written consent:

  • (i)

    use in advertising, publicity or otherwise (including any offer documents, promotional material, in-house publications and circulars) the Company's name (or that of any Related Body Corporate) or of any officer or employee of the Company or any trade name, trade mark, trade device, service mark, symbol mark, symbol or any abbreviation, contraction or simulation thereof or any other Intellectual Property Rights owned by the Company (or any Related Body Corporate); or

  • (ii)

    represent directly or indirectly, that any product or any service provided by the Merchant has been approved or endorsed by the Company or by any officer or employee of the Company (or any Related Body Corporate).

• (c)

  The Merchant must not:

  • (i)

    wilfully act in a manner which would (or has the potential to) cause damage to the good name and reputation of the Company; or

  • (ii)

    do any wilful act that could reasonably be seen to bring the Company into disrepute.

15. Intellectual Property Rights

• (a)

  The Company owns all Intellectual Property Rights in:

  • (i)

    the Services;

  • (ii)

    any modifications, improvements, inventions, discoveries, upgrades or updates to the Services (whether made or suggested by or on the Company's behalf or by the Merchant on the Merchant's behalf); and

  • (iii)

    Value-Add Products;

  • (iv)

    all reports and other output made available in or via the Service; and

  • (v)

    any software tools, libraries, reports, configurations, source code, object code and reports that we develop at any time.

• (b)

  The Merchant must not represent that it owns any of the Company's Intellectual Property Rights.

• (c)

  The Merchant must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute the Company's Intellectual Property Rights, nor authorise the commission of any act that would or might be inconsistent with the Company's Intellectual Property Rights.

• (d)

  You hereby assign to us all and any Intellectual Property Rights in all and any modifications, improvements, inventions, discoveries, upgrades, updates and comments that you or your employees make with respect to the Services and any requests for new features, that you and/or your employees may make or suggest regarding them (each, an Improvement). Each such Improvement becomes our sole and exclusive property upon assignment to us. The assignment is effective when you and/or your employees make or suggest the Improvement including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your employees, and on request by us, supply to us, an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any Improvement by us or any third parties that we authorise.

16. Representation and Warranties

• (a)

  The Merchant represents and warrants on each day during the term of the Agreement that:

  • (i)

    (application not misleading): the information provided by the Merchant in the Application Form is true and correct;

  • (ii)

    (existence): it is duly organised, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or taken to be incorporated, and is in compliance with its constituent documents;

  • (iii)

    (solvency) it is not Insolvent;

  • (iv)

    (enforceability) by agreeing to the terms of this Agreement, this Agreement is legal and valid, and is binding on the Merchant;

  • (v)

    (compliance with laws) it will comply with all of its obligations under this Agreement and perform all its obligations under this Agreement in compliance with all applicable laws, Scheme rules and regulations and NPP Procedures and Regulations;

  • (vi)

    (Transactions) in respect of each Transaction:

    • (A)

      the Merchant has complied with transaction processing rules in this Agreement, any applicable law and applicable Scheme rules;

    • (B)

      all Transactions details are correct; and

    • (C)

      the Merchant is not aware of any fact that would cause the Transaction to be an Invalid Transaction.

• (b)

  The Merchant must immediately notify the Company if any of the representations or warranties cease to be true, complete and accurate.

17. Force Majeure Event

• (a)

  The Company is not liable for any failure by us to perform our obligations under the Agreement if such failure was caused by a Force Majeure Event.

• (b)

  If a Force Majeure Event continues for 30 consecutive days, the Company may terminate the Agreement by written notice to the Merchant.

18. Notices

• (a)

  All notices required or permitted to be made under this Agreement must be in writing in English and shall be deemed delivered if:

  • (i)

    delivered in person;

  • (ii)

    sent by post to the recipient's postal addresses identified in the relevant Application Form; or

  • (iii)

    sent by email to the recipient's email addresses identified in the relevant Application Form.

• (b)

  Notice given under clause 18(a)(i) shall be deemed to have been validly and effectively given upon delivery.

• (c)

  Notice given under clause 18(a)(ii) shall be deemed to have been validly and effectively given 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.

• (d)

  Notice given under clause 18(a)(iii) shall be deemed to have been validly and effectively given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.

• (e)

  Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 18.

19. General

• (a)

  The Company may vary this Agreement:

  • (i)

    where such variation is required or reasonably necessary to comply with applicable laws or any Scheme rules, by providing the Merchant with at least 5 days' written notice; or

  • (ii)

    otherwise, by providing the Merchant with at least 30 days' written notice.

• (b)

  Nothing contained or implied in this Agreement constitutes a party the partner, joint venturer, agent, fiduciary or legal representative of another party for any purpose or creates any partnership, joint venture, agency, trust or other type of fiduciary relationship, and no party has any authority to bind another party in any way.

• (c)

  Subject to express provisions contained in this Agreement, a party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions). If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.

• (d)

  Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will as to that jurisdiction only be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement are and continue to be valid and enforceable in accordance with their terms.

• (e)

  This Agreement may be novated or assigned by the Company to any other person without the requirement to obtain the Merchant's consent.

• (f)

  The parties will not commence arbitration or court proceedings in connection with this Agreement unless they have first made reasonable attempts to resolve the dispute. Nothing prevents either party seeking urgent injunctive or similar interim relief from a court. Any dispute will be submitted to mediation in accordance with ACDC Guidelines for Commercial Mediation and be conducted in Sydney, Australia. Each party will bear its own costs for mediation. If the dispute is not resolved within 20 Business Days after the appointment of the mediator, either party may commence court proceedings in relation to the dispute.

• (g)

  This Agreement is governed by the law in force in New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.

• (h)

  The Merchant must not appoint any subcontractor to carry out its obligations under this Agreement. The Company may use subcontractors to perform its obligations under this Agreement.

20. Interpretation

In this Agreement unless the contrary intention appears:

• (a)

  a reference to any party includes a reference to their successors and permitted assigns;

• (b)

  a reference to this Agreement or any other document includes that document as amended, novated, supplemented, ratified or replaced from time to time;

• (c)

  a reference to a law, ordinance, code or other law includes regulations and other instruments as amended, consolidated, supplemented or replaced;

• (d)

  words importing the singular include the plural and vice versa;

• (e)

  words importing any gender include all other genders;

• (f)

  headings are used for convenience only and do not affect the interpretation of this Agreement;

• (g)

  if something is to be done on a day which is not a Banking Day then that thing must be done on the next or following Banking Day;

• (h)

  anything (including any amount) is a reference to the whole and each part of it, and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively and to each of them individually;

• (i)

  "including", "for example" or "such as" and similar expressions are not words of limitation;

• (j)

  an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;

• (k)

  money amounts or the symbol "$" is a reference to Australian currency unless otherwise specified; and

• (l)

  a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed ('defunct body'), means the agency or body which performs most closely the functions of the defunct body.

21. Definitions

These meanings apply unless the contrary intention appears:

• (a)

  ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).

• (b)

  Acquirer means a financial institution that is authorised by a Scheme Owner to enable the use of a Payment Methods by accepting Transactions from Merchants on behalf of the Company.

• (c)

  American Express means American Express Company and any Related Bodies Corporate.

• (d)

  Anti-Money Laundering and Sanctions Law means rules, regulations or industry codes relating to anti-money laundering and counter-terrorism financing or economic or trade sanctions, including but not limited to: the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and associated regulations, and any sanctions laws or trade embargos administered or enforced by the United Nations Security Council or the Department of Foreign Affairs and Trade (Australia).

• (e)

  Application Form means the application form used to establish an account to receive the Services from the Company.

• (f)

  Business Day means any day except a Saturday, Sunday or public holiday in Sydney, Australia.

• (g)

  Card means each card supported by the Company under the Merchant Agreement.

• (h)

  Cardholder means a person that has been issued with a Card.

• (i)

  Card Schemes mean the card schemes operated by eftpos, Visa, MasterCard, American Express, Diners Club, UnionPay and JCB.

• (j)

  Card Scheme Rules means the rules and regulations which regulate participants in the Card Schemes (including where the requirements are "optional" but triggered by participation and the Merchant is participating).

• (k)

  Claim means any action, cause of action, dispute, controversy, complaint, suit, litigation, proceeding, claim, demand or assessment, fine or similar charge whether arising in contract, tort or otherwise.

• (l)

  Consequential Loss means any loss or damage which, whether or not in contemplation of the parties at the time they entered into the Merchant Agreement, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omission. Consequential loss also means any of loss of opportunity, loss of goodwill, loss of contract, loss of income or revenue, loss or corruption of data or business interruption, loss of profit, losses associated with damage to reputation and loss of sales or goods.

• (m)

  Corporations Act means the Corporations Act 2001 (Cth).

• (n)

  Disputed Transaction means a Transaction:

  • (i)

    that is an Invalid Transaction;

  • (ii)

    that in the Company's opinion is validly disputed by the holder of a Payment Method;

  • (iii)

    in relation to which other evidence is produced that establishes that the holder of the Payment Method has not received in part or in full cash from a cash out request by the holder of the Payment Method.

• (o)

  eftpos means eftpos Payments Australia Limited.

• (p)

  Eligible Data Breach has the meaning given in the Privacy Act 1988 (Cth).

• (q)

  Force Majeure Event means any event beyond the control of a party including act of God, fire, explosion, accident, pandemic, war, acts of terrorism or nuclear disaster, but excluding changes in Law.

• (r)

  GST and GST Law have the respective meanings given to them by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

• (s)

  Diners Club means Diners Club International Limited and any Related Bodies Corporate.

• (t)

  Industry Code means the ePayments Code, the Issuers and Acquirers Community rules, regulations and procedures, the EPAL rules and regulations, the NPP Procedures and Regulations, any standards set by the PCISSC including the PCI Security Standards and the rules, regulations, procedures and any other conditions or requirements which apply to participation in any payment, clearing and settlement system relevant to the services provided under the Merchant Agreement including participation in a Card Scheme or the NPP.

• (u)

  Intellectual Property Rights means, in relation to a party, the rights of that party in and to: any copyrights, patents, designs, trademarks, trade names, business names, get up circuit layout rights; any applications for, or rights to obtain or acquire, any intellectual property rights; any information which may be protected by Law or by an order of any court or tribunal; and any techniques and know-how associated with computer systems and databases relating to the segmentation, storage, retrieval and manipulation of information and data, whether registrable, registered or unregistered and whether protected by Law in the Territory or elsewhere.

• (v)

  Invalid Transaction means:

  • (i)

    a Transaction that is illegal, fraudulent or undertaken in relation to an activity that the Company prohibits or restricts, or that exceeds the Company's risk appetite (as notified from time to time);

  • (ii)

    a Transaction in respect of which:

    • (A)

      i. the Transaction is not authorised by the Payment Method holder;

    • (B)

      ii. the Merchant did not actually supply the goods, services or cash to a genuine customer as required by the terms of the Transaction, or have indicated an intention not to do so;

    • (C)

      iii. the Transaction did not relate to the actual sale of goods or services to a genuine customer;

    • (D)

      iv. the Merchant did not comply with any requirements set by Processor and notified to the Merchant for the processing of the Transaction; or

  • (iii)

    a Transaction in respect of which the Company reasonably suspects that the holder of the Payment Method, the Merchant or its employees, agents or contractors have acted fraudulently.

• (w)

  JCB means JCB Co. Ltd. and any Related Bodies Corporate.

• (x)

  Law includes: common law and principles of equity; any applicable laws made by parliament (and "laws made by parliament" include statutes (including, in the case of Australia, State, Territory and Commonwealth statutes), regulations, orders, rules, subordinated legislation and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them including any standards made by the Reserve Bank); Anti-Money Laundering and Sanctions and Privacy Requirements; and the Card Scheme Rules; and the NPP Procedures and Regulations.

• (y)

  Loss means any liability of any kind, loss, claim, damage, interest, fine, penalty, fee, charge, cost or expense (including reasonable and properly incurred legal and other professional fees, costs and/or expenses).

• (z)

  Mastercard means Mastercard International, Inc and any Related Bodies Corporate.

• (aa)

  Merchant means the party entering into the Merchant Agreement with the Company as set out in the Application Form.

• (bb)

  Merchant Agreement means the terms (and any documents) agreed to or referred to in the application process (including these Payment Processor Terms and Conditions) that comprise the agreement entered into between the Company and the Merchant for the provision of the Services to the Merchant, including all Appendices, schedules and other documents incorporated by reference.

• (cc)

  Merchant Data means the following information:

  • (i)

    details of a Payment Method holder used in a Transaction (being name, address, email address, phone numbers and date of birth);

  • (ii)

    account specific information relating to the Payment Method used in a Transaction (being account number, Payment Method number, expiry date, transaction history, payment and credit history and credit limits);

  • (iii)

    details of the Transaction (including the goods or services purchased).

• (dd)

  NPP means the New Payments Platform, being the real-time payments infrastructure operated by the Australian Payments Plus (AP+) and regulated by the Reserve Bank of Australia.

• (ee)

  NPP Dispute means any dispute, complaint or claim by a customer in relation to a Transaction processed via the NPP (including via PayID or PayTo), whether initiated by the customer, the customer's financial institution or otherwise.

• (ff)

  NPP Participant means a financial institution or payment service provider that participates in the NPP for clearing and settling NPP payments.

• (gg)

  NPP Procedures and Regulations means the procedures, regulations, rules and other requirements published by NPP Australia Limited (or its successor) from time to time governing the operation of the NPP and NPP overlay services including PayTo.

• (hh)

  PayID means the addressing service provided as part of the NPP that enables payments to be made using an identifier such as a mobile phone number, email address or ABN linked to a bank account.

• (ii)

  PayTo means the payment initiation overlay service on the NPP that enables businesses to initiate real-time payments from a customer's bank account following digital authorisation by the customer through a PayTo Agreement.

• (jj)

  PayTo Agreement means a digital mandate or authorisation created under the PayTo service, specifying the terms (including amount, frequency and duration) under which payments may be debited from a customer's bank account. For the avoidance of doubt, a PayTo Agreement is between the customer and the customer's financial institution, and does not form part of this Agreement.

• (kk)

  Payment Method means a method of enabling payments by shoppers to Merchants, including but not limited to Cards, PayID, PayTo, online and offline bank transfers (including real-time payments via the NPP) and direct debits, offered by the Scheme Owners or NPP Participants.

• (ll)

  Processing Fee means any fee or charge imposed on the Merchant by the Company under this Agreement.

• (mm)

  Payment Terms means payment terms set out in the applicable Application Form.

• (nn)

  PCI Security Standards means the security standards set and governed by the PCISSC.

• (oo)

  PCISSC means the global forum that is responsible for the development, management, education and awareness of the PCI Security Standards. https://www.pcisecuritystandards.org/

• (pp)

  Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

• (qq)

  Privacy Policy means the Privacy Policy of the Company, as updated from time to time and available at https://helloclever.co/policy

• (rr)

  Privacy Requirements means any Law applicable to the collection, storage and disclosure of personal information, including the Privacy Act 1988 (Cth), and, if applicable, any foreign law that applies to the collection, storage and disclosure of personal information.

• (ss)

  Refund means a (partial) reversal of a particular Transaction on the initiative or request of the Merchant, whereby the funds are reimbursed to the shopper.

• (tt)

  Related Body Corporate has the meaning given to it in the Corporations Act.

• (uu)

  Reserve Bank means the Reserve Bank of Australia.

• (vv)

  Rules means the bylaws, rules, regulations, documentation, manuals and any other instructions issued by the Card Scheme (other than the Card Scheme Rules), government agency or Australian Payments Network Limited.

• (ww)

  Scheme Owner means the party offering and/or regulating the relevant Payment Method.

• (xx)

  Security Standards means the PCI Security Standards and standards set by Card Schemes and any other such standards for point of sale systems as specified by the Company.

• (yy)

  Settlement means the payment of amounts owed by the Company to the Merchant, owed with respect to settlements received by the Company from Acquirers or Scheme Owners or NPP Participants (as applicable) for Transactions validly processed for the Merchant, minus the amounts for Refund, Chargebacks, NPP Disputes, fees and the amounts needed to keep the Merchant Deposit on the then current Deposit Level. "Settle" and "Settled" shall have the corresponding meanings.

• (zz)

  Settlement Account means an account owned and operated by the Merchant with a bank in the Territory.

• (aaa)

  Services means the services provided by the Company to the Merchant under the Merchant Agreement.

• (bbb)

  Taxes include(s) any withholding tax, stamp, financial institutions, registration and other duties, bank accounts debits tax, goods and services tax, value added tax, retail turnover tax or similar tax on the provision of supplies and other taxes, levies, imposts, deductions and charges whatsoever (including, in respect of any duty imposed on receipts or liabilities of financial institutions, any amounts paid in respect of them to another financial institution) together with interest on them and penalties with respect to them (if any) and charges, fees or other amounts made on or in respect of them, but does not include any income tax.

• (ccc)

  Territory means Australia.

• (ddd)

  Territory Currency means Australian dollars.

• (eee)

  Transaction means the use of a Payment Method to purchase products or services.

• (fff)

  UnionPay means UnionPay International Co. Ltd and any Related Bodies Corporate.

• (ggg)

  Value-Add Products means non-payment products, services or features made available by the Company to the Merchant from time to time, including Clever AI, Loyalty and any other products the Company designates as such, whether made available through the platform, by separate access, or otherwise.

• (hhh)

  Visa means Visa International Service Association and any Related Bodies Corporate.