MERCHANT SERVICES AGREEMENT
In this Agreement:
- (a) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010;
- (b) “Cardholder” means any person to whom has been issued one or more valid credit cards, debit cards or similar instruments (including virtual and electronic instruments) bearing the service mark of any Scheme;
- (c) “Cardholder Data” means information, documents or account numbers relating to a Cardholder, a Cardholder’s nominated card number or a Transaction, including:
(1) the primary account number; and
(2) any of the following data types: cardholder name, expiration date and/ or card verification value (CVV);
- (d) “Consequential Loss” means:
(1) any loss, damage or cost incurred by the Customer that is indirect or consequential (being loss which cannot reasonably be considered to arise directly and naturally from that breach); and
(2) any loss of revenue, loss of income, loss of business, loss of profits, loss of production, loss of data, loss of or damage to goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from claims by third parties, loss of or damage to credit rating, loss of anticipated savings and/ or loss or denial of opportunity, in each case whether or not that loss was or could have been anticipated by the parties;
- (e) “Control” has the meaning given to it in Section 50AA of the Corporations Act 2001 (Cth);
- (f) “Customer” means the party making a Request for Services and entering into this Agreement;
- (g) “Equipment’’ means the Terminal, any related equipment and any software downloaded in order to process or make transactions provided to the Customer by or on behalf of Safe2Pay under this Agreement;
- (h) ‘Fees’’ means transaction fees and any other fees, costs or expenses payable by the Customer to pay Safe2Pay when invoiced in accordance with Safe2Pay’s prevailing payment terms;
(i) “Insolvency Event’’ if the Company institutes proceedings to be adjudicated as bankrupt or insolvent, consents to the institution of bankruptcy or insolvency proceedings against it, files a petition or answer or consent seeking reorganization or relief under any applicable law in respect of bankruptcy or insolvency, consents to the filing of any petition of that kind or to the appointment of a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of it or any substantial part of its property or makes an assignment for the benefit of creditors, or if information becomes publicly available indicating that unsecured claims against the Company are not expected to be paid;
- (j) “Merchant Dashboard’’ means the online portal that Safe2Pay provides to the Customer as part of the Services;
- (k) “Merchant Facility Provider” means an authorised deposit taking institution or other third party that provides merchants with a merchant facility on separate terms and conditions that enables Safe2Pay to provide its Services;
- (l) “Merchant Identifier” means a number generated at the time of approval of the Customer to be provided the Services.
- (m) “Merchant Services Agreement” means this Agreement inclusive of the terms contained within an approved Request for Services;
- (n) “Payment” means, in relation to a Request for Services, an agreed transaction rate and/or other rate or fee that the Customer is obliged to pay to Safe2Pay under this Agreement;
- (o) “Personnel” of a person means the officers, employees, contractors (including subcontractors) and agents of that person or any other person that forms part of that person’s supply chain;
- (p) “Pricing Terms” means the documents referred to in clauses 8(a) and 8(b);
- (r) “Request for Services” means a request submitted by the Customer to Safe2Pay to use or have access to the Services;
- (s) “Safe2Pay” refers to Safe2Pay Pty Ltd ACN 611437391 trading as “Safe2Pay”;
- (t) “Schemes” means the MasterCard, Visa, American Express, UnionPay, Diners Club, Discover, JCB and EPAL card schemes and any other similar scheme;
- (u) “Services” means the services to be supplied to the Customer by Safe2Pay pursuant to the Customer’s Request for Services, and may include the Terminal, payment gateway services and mobile wallet services;
- (v) “Terminal(s)” means the electronic terminal or terminals manufactured by a third party and supplied by Safe2Pay through which instructions may be given for the transfer of funds from time to time; and
- (w) “Terms” means these terms and conditions, together with any policies and documents incorporated by reference.
This Agreement is between Safe2Pay and the Customer.
2.2 Effective date
This Agreement comes into effect when Safe2Pay approves a Customer’s Request for Services and continues for the term stated therein. The Customer acknowledges that by its ongoing use of and access to the Services, it is deemed to accept these Terms and the terms of the Agreement, including such terms as may be amended under clause 2.3.
2.3 Amendment to Terms
- (a) Safe2Pay may amend these Terms or any other term of this Agreement at any time on 30 days’ notice by posting the amended terms on its website and by emailing the Customer at the Customer’s email address on file. The terms and conditions that will apply to any Services are the most recent terms posted on Safe2Pay’s website.
- (b) The Customer may, within 90 days of updated Terms being posted and emailed, give Safe2Pay notice that it wishes to terminate this Agreement on 30 days notice.
- (c) The Customer acknowledges and agrees that the Customer’s continued use of the Services after that date any amended Terms are posted on Safe2Pay’s website will be deemed acceptance of the amended terms and/or increased fees for Services or modification of the terms, throughout the remaining term of this Agreement or use of the Services whichever the longer.
3.1 Request for Services
- (a) All Requests for Services that the Customer places with Safe2Pay either through its website, by email or by phone or otherwise directly with Safe2Pay are subject to approval by Safe2Pay in its absolute discretion and a Request for Services will only form part of this Agreement once Safe2Pay provides confirmation to the Customer that the Request for Services has been approved by Safe2Pay in accordance with clause 1.1(a) and a Merchant Identifier is generated.
- (b) The Customer agrees that information provided to Safe2pay at the time of the Request for Services is true and correct to the best of its ability. Should however information such as information pertaining to volume and turnover not be accurate, the Customer agrees that Safe2Pay may in its discretion increase or decrease the transaction rate or other fees to bring them into line and be reflective of actual business turnover and volume. Such increase or decrease as the case may be shall take effect immediately if such increase or decrease continues for a period of 2 consecutive months. Safe2Pay shall notify the Customer should this situation arise.
- (c) Safe2Pay may require amendments to the Request for Services, in which case it will provide its comments on the Request for Services to the Customer, and the Customer may resubmit the Request for Services to Safe2Pay for approval.
- (d) Safe2Pay may choose not to approve a Request for Services or to provide Services to the Customer or may cancel an approved Request for Services where:
(1) Safe2Pay reasonably suspects, or is aware, that the Customer has breached or is likely to breach this Agreement, including without limitation, by failing to make any payment due in accordance with this Agreement on the due date; or(2) Safe2Pay otherwise considers the Request for Services to be suspicious in its absolute discretion.
3.2 Provision of Services
- (a) Subject to clause 3.1 and the other terms of this Agreement, and in consideration for the Customer’s payment of the Fees, Safe2Pay will perform the approved Services.
- (b) If the Services include the supply of a Terminal, the provisions in the Schedule apply. The provisions of the Schedule do not otherwise apply.
4.1 Customer’s account
- (a) Safe2Pay requires the creation of an account to uniquely identify the Customer and to enable the Customer to use and have access to the Services.
- (b) The Customer is responsible for:
(1) maintaining the security of the Customer’s account details, including without limitation any log in details, passwords or other account identifiers; and
(2) all activities that occur under or in relation to the Customer’s account.
- (c) Safe2Pay does not take responsibility for unauthorised access to or use of the Client’s account.
- (d) The Customer agrees that if a person uses or has access to the Services (whether with or without the Customer’s authorisation), Safe2Pay may in its discretion freeze the account until such time as the matter is investigated and resolved failing which that person will be deemed to be the Customer for the purposes of this Agreement and that will not affect the Customer’s obligations pursuant to this Agreement, regardless of whether:
(1) Safe2Pay is or at any time becomes aware that the use of the Customer’s account is not authorised by the Customer; or
(2) there is a dispute, breach, defect or other issue in relation to the Services.
(3) None of the above prevents Safe2Pay cancelling a Customer’s account in accordance with this Agreement.
4.2 Customer’s merchant account
- (a) The Customer acknowledges that before it can receive the Services, it must obtain and maintain (at its expense) a merchant account with a Merchant Facility Provider. The Customer warrants that at all times it shall abide with all terms and conditions imposed by the Merchant Facility Provider in relation to its merchant account. At the Customer’s request, Safe2Pay can assist the Customer in obtaining a merchant account.
- (b) The Customer agrees that a breach of the terms and conditions imposed by the Merchant Facility Provider may be treated by Safe2Pay in its discretion as a breach of this Agreement.
- (c) The Customer indemnifies Safe2Pay and its Personnel against all costs and expenses incurred by Safe2Pay and its Personnel as a result of a breach by the Customer of clause 4.2(a).
5. Financial Information Audit
- 5.1 – The Customer will promptly provide at its expense any financial or other information reasonably requested by Safe2Pay or its third party representative to perform onboarding, credit risk, security, qualification, regulatory and telecommunication network compliance tasks and other reviews related to the provision of the Services, transactions submitted, fulfilment of obligations to Safe2Pay or Cardholders, or the financial condition of the Customer. The Customer authorises Safe2Pay to obtain information from third parties when performing onboarding, credit risk, security, qualification, and other reviews.
- 5.2 – Safe2Pay may disclose the Customer’s personal and credit information (or the personal and credit information of any of the Customer’s directors, trustees or partners, as applicable) to a credit reporting body, at any time, to undertake a commercial credit check on the Customer or any of the Customer’s directors, trustees or partners (as applicable) for the following purposes:
(a) to consider an application made by the Customer for the provision of Services;
(b) to review the provision of any Services to the Customer; and
(c) to assess the Customer’s eligibility for the Services or other Safe2Pay products.
6. Customer’s obligations
6.1 – Responsibility for Personnel
The Customer acknowledges that it is fully responsible for the acts of its Personnel.
6.2 – General obligations
The Customer agrees that it must:
- (a) comply with applicable laws and rules in particular those set out by the Schemes when using and accessing the Services;
- (b) pay all amounts due and payable promptly and without set off;
- (c) not provide Safe2Pay with any information that is false, inaccurate or misleading;
- (d) ensure that any information about the Customer, including contact details, are true, current and complete (including by ensuring that the details in its account are kept current);
- (e) not permit others to use the Customer’s account, or allow anyone else to have or use the Customer’s account log in or password details;
- (f) immediately contact Safe2Pay if the Customer believes its account may be subject to an unauthorised transaction; and
- (g) not, without the prior written consent of Safe2Pay, open or use more than one Customer account.
6.3 – The Customer’s representations and warranties
The Customer represents and warrants that:
- (a) its use of the Services and/ or Safe2Pay’s website is at its sole risk;
- (b) it will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded or downloaded by the Customer from or to Safe2Pay server(s) does not contain any virus and will not corrupt the data or system of any person in any way;
- (c) it will keep secure at all times all log in details, passwords and cryptographic keys used to access, process and download data from Safe2Pay server(s) and/or access the Merchant Dashboard
- (d) it will follow all cryptographic key management procedures specified by Safe2Pay;
- (e) it is solely responsible for operating and maintaining the Customer’s website, online store and/ or computer or point of sale system used by the Customer;
- (f) it is solely responsible for obtaining and maintaining a merchant account with a Merchant Facility Provider;
- (g) it will not use the Services for any unlawful, fraudulent or improper activity;
- (h) it will cooperate fully with Safe2Pay to investigate any suspected unlawful, fraudulent or improper activity; and
- (i) it will not refer any third-party complaints or inquiries to Safe2Pay.
7. Safe2Pay’s obligations
7.1 Data Security
- (a) Safe2Pay has implemented data security measures to ensure the security and protection of Cardholder Data in accordance with the current applicable payment card industry data security standard (PCI DSS) requirements created by the Payment Card Industry Security Standards Council.
- (b) Safe2Pay agrees to maintain all reasonable administrative, technical and operational processes to ensure the safe handling and storage of Cardholder Data at a standard equivalent to bank level security under the PCI DSS being Tier 1.
In supplying the Services, Safe2Pay will comply with:
- (a) the Privacy Act 1988 (Cth) and associated Australian Privacy Principles; and
7.3 Ancillary assistance or information
- (a) In addition to the Services, Safe2Pay may, in its absolute discretion, provide ancillary assistance or information to the Customer from time to time.
- (b) Any ancillary assistance or information provided by Safe2Pay to the Customer is given by Safe2Pay in good faith but at the sole risk of, and subject to verification by, the Customer.
- (c) Safe2Pay will not be liable to the Customer for any loss, cost, expenses or damages arising from or otherwise relating to any ancillary assistance or information given by Safe2Pay to the Customer, no matter how arising.
- (d) The Customer is responsible to Safe2Pay, and indemnifies Safe2Pay for, any loss, costs (including reasonable legal fees) expenses or damage Safe2Pay suffers or incurs in connection with any claim or demand in relation to any ancillary assistance or information provided by Safe2Pay.
7.4 Customer acknowledgements
The Customer acknowledges and agrees that:
- (a) it shall comply with all directions and procedures that Safe2Pay provides with regard to the use of the Services;
- (b) that rates and fees could be subject to currency fluctuations and directions by third parties such as Card Schemes and financial institutions or acquirers from time to time;
- (c) despite the measures implemented by Safe2Pay, Safe2Pay cannot guarantee the safety and security of data shared by the Customer through the Services;
- (d) the provision of transaction processing services may depend on factors beyond Safe2Pay’s control, including but not limited to factors affecting:
(1) telecommunications systems run by public telecommunications operators or internet service providers which may be accessed by GSM data, ISDN, IP, analogue line or other transmission types; and
(2) banking systems (meaning the systems used by banking, financial institutions or other similar bodies),
and Safe2Pay is not and shall not be obliged to provide the transaction processing services where such factors as set out above prevent it from doing so.
8. Fees & Payments
- (a) Safe2Pay will give the Customer a Statement and/or an invoice for the Fees and other fees calculated in accordance with the fee schedule set out in Request for Services.
- (b) The Customer must pay the Fees on a per transaction basis and other fees in accordance with Safe2Pay’s prevailing payment terms set out in the invoice issued to the Customer per month. The Customer acknowledges that if payment terms are amended by Safe2Pay, its rights are as set out in clause 2.3.
- (c) Payments by the Customer are to be paid to Safe2Pay without deduction or set off. If the payment terms indicate, payment shall be made preferably by credit card or if not available by direct transfer. Safe2Pay will hold card or account details securely on file.
- (d) Interest shall accrue on any amount unpaid, from the date that payment was due until the date that it is paid, at the rate that is 4% above the Commonwealth Bank of Australia bank bill swap rate prevailing as at the date the payment was due. The Customer agrees to indemnify Safe2Pay in respect of any collection fees or other charges (including reasonable legal fees) Safe2Pay suffers or incurs in connection with recovering any unpaid amounts owed by the Customer.
- (a) Safe2Pay warrants that Services will be provided in a proper, workmanlike and professional manner at all times.
- (b) Subject to the provisions of the Competition and Consumer Act 2010 (Cth) and any other applicable State and/or Commonwealth legislation, Safe2Pay does not warrant or guarantee that:
(1) the Services will be uninterrupted or error free;
(2) the Services will meet the Customer’s requirements; or
(3) the Customer’s third-party customers are entitled to use the Cardholder Data they submit to the Customer.
9.2 Customer Warranties:
The Customer warrants by processing any transaction that:
- (a) all information given to Safe2Pay in respect of that transaction is true and correct;
- (b) the Transaction is not materially different from the Transactions the Customer first described to Safe2Pay with regard to the products or services sold, the procedures for payments acceptance, or the fulfilment of obligations to the Cardholder;
- (c) the Transaction is not a duplicate of any other Transaction;
- (d) the Transaction is authorised by the rightful Cardholder for the amount of the Transaction in satisfaction of the Cardholder’s obligation to the Customer;
- (e) the Transaction is not a refinancing of an existing obligation;
- (f) the Transaction represents a genuine sale of the Customer’s goods or services to the Cardholder;
- (g) the Transaction is valid, collectible and is not subject to any dispute, setoff, or counterclaim; and
- (h) in the case of a refund, the Transaction is submitted to reimburse the Cardholder for a sale Transaction that was previously submitted.
9.3 Records and Statements
The Customer must:
- (a) keep all receipts produced by the Terminal, the Customer’s books of account and records of all Transactions (both sales Transactions and refunds) for a minimum period of eighteen (18) months;
- (b) provide Safe2Pay with all receipts and other records in connection with transactions as requested by Safe2Pay; and
- (c) permit Safe2Pay or its representative to inspect receipts, the Customer’s books of account and records of all Transactions (both sales transactions and Refunds) on request. Safe2Pay will make available to the Customer each month a statement showing the all Transactions processed by Safe2Pay for the Customer during the month. It is the Customer’s obligation to check the statement to ensure the accuracy of the payments to its settlement account.
10. Promotional material
Safe2Pay may supply the Customer with decals and insignias and other promotional material at Safe2Pay’s discretion. The Customer agrees to:
- (a) prominently display, wherever reasonably directed by Safe2Pay, decals and other signs advertising Safe2Pay and its Services;
- (b) not use any advertising or promotional material relating to Safe2Pay Services except as authorised by Safe2Pay;
- (c) not attempt to influence or inhibit a Cardholder’s decision in relation to the use of any payment method or encourage a Cardholder to use a particular payment method;
- (d) not mischaracterise, misrepresent or disparage any payment method or exhibit a preference for one or more payment methods; and
- (e) authorise any third party with whom Safe2Pay provides integrated services to use the Customer’s logo, name, address, phone number and merchant category in any directory of merchants participating in the relevant integrated services. The Customer grants any third party with whom Safe2Pay provides integrated services a non-transferable and non-exclusive licence to use the Customer’s trade marks and other intellectual property for the purpose of identifying the Customer as a merchant that accepts the relevant integrated services from and for offers or promotions by that third party.
11. Suspension and Termination
11.1 Suspension of Services
- (a) Safe2Pay may suspend Services (or any part thereof) or otherwise disconnect or deny the Customer access to the Services immediately and without notice if:
(1) Safe2Pay reasonably suspects, or is aware, that the Customer has breached this Agreement, including without limitation, by failing to make any payment due in accordance with this Agreement on the due date;
(2) the Customer uses and/or used the Services and/ or the Safe2Pay server(s) for the purposes of spamming, fraud or any similar or related activity;
(3) the Customer engages in any act or omission, or allows any act or omission to be done, that Safe2Pay reasonably suspects, or is aware, will result in the Services being used for an unlawful, fraudulent or improper activity.
- (b) The Customer agrees that it shall remain liable for any and all charges and fees throughout any period of suspension.
- (a) Either the Customer or Safe2Pay may terminate this Agreement by giving 30 days’ advance written notice if the other materially breaches this Agreement and fails to remedy the breach within 30 days of receiving notice of it in accordance with the Disputes Clause herein. A party must exercise this right within 60 days of becoming aware of a material beach and the parties agree to waive the non-waiver provision contained herein.
- (b) Notwithstanding 11.2(a) above, Safe2Pay may terminate this Agreement immediately by notifying the Customer if any of the following events of default occur (or Safe2Pay may elect, at Safe2Pay’s sole discretion, to temporarily suspend Safe2Pay services until such events of default are remedied):
(1) there occurs irregular, invalid or illegal Card sales by the Customer, excessive Chargebacks or any other circumstances which, in Safe2Pay’s sole discretion, may increase Safe2Pay’s exposure to financial or security risk;
(2) Safe2Pay is notified that the Customer or its directors appear in MasterCard’s Member Alert to Control High Risk (MATCH) list, or the equivalent list of another Scheme Card Association;
(3) there occurs any material adverse change in the Customer’s business, financial condition, business procedures, prospects, goods or services;
(4) the Customer suffers an Insolvency Event;
(5) the Customer purports to assign this Agreement or there is a change in Control of the Customer or its corporate parent;
(6) the Customer fails to comply with any relevant laws by which the Customer is bound;
(7) the Merchant Facility Provider is required to cease providing the Customer the merchant processing facility by reason of any breach of a law, regulation or Association Rule;
(8) any of the Customer’s representations or warranties in this Agreement are breached or are incorrect when made or deemed to be made
(9) the Customer breaches any term of this Agreement (including without limitation, the Association Rules);
(10) the Customer experiences excessive chargebacks, irregular or fraudulent payment transactions or engages in business practices creating excessive risk for Cardholders or Safe2Pay.
- (c) The Customer acknowledge that under MasterCard and Visa and other Scheme Association Rules, MasterCard, and Visa and other Schemes respectively have the right to direct amendment or termination of this Agreement.
- (d) If this Agreement ends:
(1) all amounts payable under this Agreement become immediately due and payable in full on demand;
(2) the Customer must not process any Card transactions through Safe2Pay and Safe2Pay has no further obligations to accept transactions from the Customer after the termination date;
(3) any rights and obligations of either party that arose before the termination date will continue.
- (e) Safe2Pay may have an obligation to advise the Scheme associations about the Customer’s details and the reason Safe2Pay terminated this Agreement. The Scheme Associations may give this information to another financial institution if the Customer applies for new card processing facilities. This information may then affect the Customer’s ability to obtain another card processing facility.
11.3 Effect of termination
- (a) Any termination of this Agreement does not affect the rights and obligations of any party that have accrued before the termination.
- (b) The Customer will be deemed to have terminated this Agreement if no transaction has been submitted for a period of 90 days or more.
12.1 Limitation of liability
To the fullest extent permitted by law (and subject to clause 12.2(b)) Safe2Pay’s aggregate liability for all claims arising under or related in any way to this Agreement no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the amount of the Fees paid to Safe2Pay under this Agreement at the time the first claim arises.
12.2 Exclusion of Liability
To the maximum extent permitted by law:
- (a) Safe2Pay will not be liable to the Customer for any Consequential Loss arising under or related in any way to this Agreement no matter how arising and whether in contract, tort (including negligence) or otherwise; and
- (b) all express or implied guarantees, warranties, representations and other terms and conditions of any kind in relation to this Agreement not contained in this Agreement are expressly excluded. To the extent any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded, then Safe2Pay’s liability for its breach is limited to one or more of the following at Safe2Pay’s option:
(1) in the case of the Services, the resupply of the Services or the payment of the cost of having the Services supplied again; and
(2) in the case of a Terminal(s), the replacement of the Terminal(s) or the supply of equivalent Terminal(s) or the repair of such Terminal(s).
12.3 Use of third-party service providers/Outages
- (a) Safe2Pay may use a third-party service provider(s) to manage or carry out certain parts of the Services on Safe2Pay’s behalf including.
(1) validation and transaction authorisation services;
(2) wireless data networks providers such as Telstra.
- (b) The service provided by wireless data network providers such as Telstra;
(1) is subject to transmissions, limitations and dropped or interrupted transmissions;
(2) may be temporarily refused, limited, interrupted or curtailed due to government regulations or orders, atmospheric and/or topographical conditions and system modifications.
- (c) Safe2Pay does not cover and in no event or circumstance shall Safe2Pay be liable for and the Customer holds Safe2Pay, its affiliates, directors, officers, employees, agents and assigns harmless for any losses, including Consequential Loss, damage, or business interruptions, sustained as a result of interruptions caused by third party providers including, but not limited to, wireless data network providers and processing service providers.
The Customer indemnifies and holds harmless Safe2Pay and its Personnel from and against any and all claims, demands, causes of action, obligations, liabilities, expenses (including reasonable legal fees), damages, or suits whatsoever in connection with, arising out of, or relation to, in whole or in part:
- (a) any act or omission of the Customer including, but not limited to, the Customer’s operation and management of the Services or any Terminal;
- (b) the Customer’s breach of this Agreement;
- (c) the Customer’s breach of any law or of the rights of a third party relating to the Customer’s use of the Services or any Terminal; or
- (d) a direct or indirect consequence of unauthorised users accessing the Customer’s account.
13. Intellectual Property
- (a) “Intellectual Property” means business names, copyrights, patents, trade marks, service marks, trade name, designs, confidential information, databases, scripts, data and similar industrial, commercial and intellectual property (whether registered or unregistered, granted or ungranted), including all content forming part of the Safe2Pay website and any software or documentation supplied to the Customer under this Agreement, which are owned or licensed by Safe2Pay.
- (b) The Customer agrees that nothing in this Agreement transfers or assigns any rights in the Intellectual Property to the Customer.
- (c) Either party must not copy, imitate, modify, alter, amend or use without the other’s prior written consent any Intellectual Property of the other.
14.1 When this applies
- (a) If the Customer wishes to raise a dispute with Safe2Pay, the dispute must be dealt with in accordance with this clause 14.
- (b) Clause 14 does not apply in relation to any dispute Safe2Pay has with the Customer for non-payment of any amounts due to Safe2Pay, in relation to the loss of or damage to a Terminal or where it is reasonably necessary for Safe2Pay to exercise its rights urgently. Accordingly, in such situations Safe2Pay may in its absolute discretion commence legal proceedings, injunctive proceedings or urgent declaratory relief as it thinks fit without being required to follow this Clause 14.
14.2 Internal dispute process
- (a) If one party wishes to raise a dispute, that party shall do so by contacting the other by email or by mail as soon as possible so that the parties have an opportunity to resolve them quickly.
- (b) Disputes shall be:
(1) acknowledged within 5 business days; and
(2) resolved within 28 days by meeting together either in person or by video conferencing or the like.
- (c) Safe2Pay may reasonably request additional documentation and/ or information from the Customer to assist in resolving any dispute. The Customer must provide all reasonable assistance to Safe2Pay.
- (d) Where the parties cannot resolve a dispute within 28 days, the dispute may be referred to a mediator and must be dealt with in accordance with clause 14.3 below.
14.3 Referral to a mediator
- (a) Subject to complying with the remainder of this clause 4, either party may refer the dispute to mediation conducted in Sydney by a mediator agreed between the parties within 5 business days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Disputes Centre .
- (b) The costs of the mediator shall be borne equally between the parties.
- (c) The chosen mediator:
(1) shall determine the procedure for the mediation;
(2) may request additional documentation and/or information from the parties to assist in resolving the dispute. The parties must provide all reasonable assistance to the chosen mediator; and
(3) will not have the power or authority to make any other determination in relation to the dispute.
- (d) The parties shall attend mediation in Sydney within 10 business days of the mediator being appointed or such other time as agreed to by the parties of the selection of the mediator.
- (e) If the dispute is not resolved at mediation, the Customer may then avail itself of the external disputes resolution procedure outlined below.
14.4 External Dispute Resolution
If the Customer is a consumer or small business as defined by the Australian Financial Complaints Authority (‘’AFCA’), then the Customer after complying with the internal dispute resolution procedure above, may lodge a complaint with AFCA at [email protected]
15. Force Majeure
Except for the Customer’s obligation to make payments, neither party will be liable to the other party for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is due to a cause or matter beyond the reasonable control of that party, including wars, terrorism (including cyber terrorism), strikes, lockouts, outages, acts of God including natural events like fires, flood, earthquake or other adverse weather conditions.
- (a) Confidential information means all trade secrets, financial, marketing and technical information, know-how, ideas, concepts, technology, processes, knowledge, customers and pricing which is confidential or of a sensitive nature owned or used at any time by Safe2Pay in connection with the Services other than which is in the public domain (other than as a result of a breach of this Agreement).
- (b) Except as expressly permitted by this Agreement, the parties agree to keep confidential (and not disclose or use) and take all reasonable steps to ensure that its Personnel keeps at all times Confidential Information confidential.
- (c) Either party may make disclosures regarding Confidential Information to the extent required by law or by any regulatory body having jurisdiction over the Customer.
This Agreement and any dispute arising out of or in relation to this Agreement are governed by the laws in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of the provision in any other jurisdiction.
- (a) The Customer may not transfer or assign any rights and/or obligations under this Agreement without the prior written consent from Safe2Pay which can be withheld in Safe2Pay’s absolute discretion.
- (b) Safe2Pay may transfer or assign any rights and/or obligations under this Agreement to a third party at any time without the Customer’s consent.
Failure of Safe2Pay to insist upon strict performance of any term contained herein or any rights with respect thereto, or delay in exercising any rights under this Agreement, shall in no way be considered as a waiver of such term or terms or rights or in any way affect the validity of this Agreement.
18. Notices and Communications
18.1 Safe2Pay to the Customer
- (a) This Agreement and any other agreements, notices or other communications may be provided to you electronically to the email address specified in the Customer’s online Safe2Pay account.
- (b) The Customer agrees to receive all communications from Safe2Pay in electronic form.
- (c) The Customer must keep its contact details up to date at all times and communicate any change of address, email or phone details or otherwise to Safe2Pay.
18.2 The Customer to Safe2Pay
- (a) All notices including dispute notices must be in writing and sent to Safe2Pay by mail to Safe2Pay Pty Ltd, Level 8, 25 Bligh Street, Sydney NSW 2000 (or such other current address as appears from time to time on its website) and by email indicated below.
- (b) Any other communications may be provided to Safe2Pay:
(1) by email: [email protected]; and
(2) by phone (Australia): 1800 723 327.
19. Entire agreement
This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all prior discussions, representations, understandings or agreements. Other than as expressly stated in this Agreement or any approval of Request for Services issued by Safe2Pay, the Customer acknowledges that it has not relied upon any discussion, representation, understanding or agreement made by Safe2Pay (including, without limitation, any descriptions or specifications contained in any other document such as any advertising material or brochures).
SCHEDULE: SUPPLY OF TERMINALS
- The Customer shall at all times bear the risk of loss with regard to the Terminal from the point when the Terminal is delivered to the Customer up to the point when the Terminal is returned by the Customer to Safe2Pay or its nominee in accordance with this Agreement.
- The Customer must insure the Terminal naming Safe2Pay as “loss payee” against the loss, theft or destruction of or damage to the Terminal, including loss by fire and all risks of physical loss.
- The Customer appoints Safe2Pay as the Customer’s agent and attorney to make claim for, receive payment of, execute and endorse all documents, cheques or drafts for loss or damage under any such insurance policy.
- The Customer acknowledges and agrees that when a third party uses a card to conduct a cashless payment transaction using the Terminal, every card or account is automatically submitted to a third-party card processor for card or account validation and transaction authorisation.
- Safe2Pay warrants that to the best of its knowledge the Terminal provided to the Customer will work in accordance with manufacturer’s specifications when provided to the Customer by Safe2Pay or one of its third- party service providers.
- Safe2Pay will use its best endeavours to ensure that the Customer is able to install the Terminal in accordance with the manufacturer’s instructions.
- Safe2Pay does not warrant that the use of the Terminal will be uninterrupted or error-free.
- If the Terminal fails:
(a) the Customer shall contact Safe2Pay, report the incident, receive support and failing resolution return the Terminal to Safe2Pay or its nominated third- party supplier; and
(b) Safe2Pay will determine the cause of the failure.
- If Safe2Pay determines, acting reasonably, that the Terminal has been damaged by:
(a) the Customer’s fault, neglect, misuse, improper operation or omission (having regard to the specifications and operations manuals relating to the Terminal);
(b) changes, alterations, additions or modifications of any Terminal by a person other than Safe2Pay;
(c) incorrect power supply, failure of electrical power, air-conditioning, humidity control or any environmental factor; or
(d) operation of the Terminal other than in accordance with the specifications or the direction, instruction or recommendations of the manufacturer or Safe2Pay,
(e) or any other act or omission of the Customer, then the Customer indemnifies Safe2Pay for the cost of repairing or replacing that Terminal.
- If Safe2Pay determines, acting reasonably, that the Terminal’s fault is not due to an act or omission on the part of the Customer, then Safe2Pay agrees, in its absolute discretion, to:
(a) the replacement of the affected Terminal or the resupply of an equivalent Terminal;
(b) repair of the affected Terminal or payment of the cost of having the affected Terminal repaired; or
(c) refunding the payment made by the Customer (or part of that payment, where appropriate) for the affected Terminal, or offering credit where payment has not been made,
(d) or if the above is found to be unenforceable, Safe2Pay will pay to the Customer the total value of any affected Terminal(s) for the period that the claim is applied to.
- The Terminals will be programmed to accept all card transactions specified in the Request for Services or such other card transactions as the parties from time to time agree.
- In the absence of a manifest error, the transaction data produced by the Terminal is deemed to be correct. Safe2Pay is not liable for any error, delay, malfunction or failure caused or contributed to or initiated by the Customer’s Terminal or software. The Customer must promptly notify Safe2Pay of any malfunction or error of the system or the communications service.