A. Smartpay rents, sells and distributes EFTPOS Equipment and certain payment facility services in Australia and New Zealand.
B. The Merchant wishes to rent and/or purchase EFTPOS Equipment and acquire related services that are supplied by Smartpay.
C. The parties have entered into this Agreement to record the terms and conditions upon which Smartpay agrees to provide to the Merchant, and the Merchant agrees to acquire, the Equipment and/or the Services from Smartpay, on the terms and subject to the conditions set out in this Agreement.
Agreement in Brief
The parties agree that:
- Smartpay will provide to the Merchant the Equipment and Services for use within the Merchant’s business in accordance with this Agreement.
- The Merchant will use the Equipment and Services within its business on the conditions set out in this Agreement.
- The Merchant will pay Smartpay all Fees when due and otherwise on the terms set out in this Agreement.
- This Agreement is comprised of this document, the Application Form,
Schedule 1 (Key Details),
Schedule 2 (Dictionary),
Schedule 3 (General Terms) and
Schedule 4 (Smartpay Merchant Facility Terms).
Schedule 1 - Key Details
Name: Smartpay Australia Limited
ABN: 79 120 473 823
Address: Level 9, 151 Castlereagh Street, Sydney NSW 2000
Contact person: Acquiring Manager
The party that has submitted the Application Form to Smartpay requesting access to the Smartpay Merchant Facility.
Commencement Date – Clause 2.2
The first to occur of:
a. the date on which we open the Smartpay Customer Account;
b. the date on which we process the first Transaction for you; and
c. the date that is 7 (seven) days after your Equipment is first shipped to the Delivery Address.
Term and renewal – Clause 2.1
Initial Term: If this Agreement has a fixed term, the Initial Term is as set out in the Application Form.
Renewal Term: If this Agreement has a fixed term, this Agreement will automatically renew for successive periods of 12 (twelve) months unless terminated 30 (thirty) days prior to the end of the then-current term
Termination notice – Clause 17
30 (thirty) days (subject to clause 17 (Termination))
Fee – Clause 7.2(a) (a)
Set up Fee: Applies to all new customers and is in an amount as set out in the Application Form. This Fee is payable if you terminate the Agreement within the first 12 (twelve) months.
Clause 7.2 (b),(c)& (e)
Ongoing Fees: As set out in, or attached to, the Application Form. Ongoing Fees may be comprised of a Monthly Rental Fee and/or Merchant Service Fee and/or Accessory Fee and any other applicable Fees from time to time.
Cancellation Fee: If this Agreement has a fixed term, then the cancellation Fee is as set out in the Application Form (if any). This Fee is payable if the Agreement is terminated during the Initial Term in the circumstances set out in clause 17.6 (Cancellation Fee). If this Agreement does not have a fixed term, there is no cancellation Fee.
Clause 7.2 (f)
Replacement Cost: As set out in the Application Form. This Fee is payable for lost, stolen or damaged, Equipment.
Item 7: Products & Services
The products and services we will provide to you, as set out in the Application Form.
Schedule 2 - Dictionary
1.1 Definitions. In this Agreement:
Accessory Fee means the fees, if any, payable by you to us, for or in relation to consumables and/or accessories for use with or in relation to any Equipment and any related costs (including postage fees), as set out in Item 6 (Fee) of Schedule 1, and as may be varied from time to time in accordance with this Agreement.
Alipay WeChat Pay Merchant Agreement means the terms and conditions governing the use of the Alipay WeChat Pay Service, as set out on the Website or otherwise provided to you, as amended from time to time.
Alipay WeChat Pay Service means transaction payments via Alipay and/or WeChat Pay.
Application Form means the application form submitted by you to us pursuant to clause 4.1 (Application Form and you must provide information) of Schedule 3 for access to the Smartpay Merchant Facility.
Associate in relation to a party means the employees, officers, directors, contractors and agents of that party.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authorised Signatory has the meaning given in clause 5.1 (Authorised Signatories’ authority) of Schedule 3.
Business means the ordinary business conducted by you as described in the Application Form or notified to us from time to time in accordance with this Agreement.
Business Day means a day other than a Saturday, Sunday or day which is a bank holiday or public holiday in the State of New South Wales.
Card(s) means a:
(a) credit, debit, charge, purchase or other valid payment card issued by a member or affiliate of a Scheme on which the Scheme’s
(b) a valid payment card capable of acceptance under the eftpos Mark issued by an Australian bank or financial institution;
(c) any valid payment card issued under any loyalty program;
(d) any other valid payment card issued by another entity which the Terminal is enabled to accept; or
(e) any electronic derivation of any of the above.
Cardholder means the person to whom a Card has been issued or a person who is authorised to use a Card.
Chargeback refers to a transaction that is debited to the Settlement Account as a result of any of the circumstances set out in clause 13.1 (Chargebacks) of Schedule 4.
Commencement Date means the date as determined in accordance with Item 3 (Commencement Date) of Schedule 1.
Communications Service means all facilities, devices and network connections that allow for the capture and switching of Transactions via the EFTPOS System by use of either an analogue or digital mobile telecommunication service, broadband internet, WiFi service or similar telecommunication services.
Consumer has the meaning given in clause 15.1 (You are not a Consumer) of Schedule 3.
Credit Card means a device that can be used for purchasing goods or services on credit in Australia (irrespective of whether the device is issued in or outside Australia) and includes devices issued by Visa, Mastercard, American Express, Diners Club and China Union Pay.
Customer Support means our customer support team who can be contacted via the methods set out on our Website.
Delivery Address means the address specified in the Application Form as the address to which Equipment to be supplied by us pursuant to this Agreement is to be delivered.
Direct Debit Request means the direct debit request set out in the Application Form and any other relevant form (if applicable) and signed by you, as amended from time to time.
EFTPOS System means the process whereby, pursuant to instructions transmitted through a Terminal, an electronic funds transfer takes place between a Cardholder’s bank account and your Linked Bank Account:
(a) in relation to goods or services supplied or cash made available by you to the Cardholder; or
(b) in relation to a refund in respect of goods and services supplied by you to the Cardholder.
EPAL means eftpos Payments Australia Limited ABN 37 136 180 366.
Equipment means the Terminal, any related equipment, accessories and any Software.
Fee means any fee payable by you to us, as set out in Item 6 (Fee) of Schedule 1 and as may be varied from time to time in accordance with this Agreement.
Fee Account”has the meaning given in clause 8.1 (You must maintain a linked Bank Account) of Schedule 3.
Financial Institution has the meaning given in clause 9.3 (When we will charge your account) of Schedule 3.
GST means any tax on the supply of any goods, services, real or personal property or any similar tax imposed under the GST Law.
GST Law has the same meaning given to the term “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term has the meaning given in clause 2.1 (Term and renewal) of Schedule 3.
Intellectual Property Rights means patents, rights in inventions, works of authorship, data, designs, databases, know-how, trade secrets, confidential information, trademarks, trade, business and domain names, logos, get-up and goodwill, along with copyrights, moral Rights and any other intellectual property and proprietary rights, in each case whether registered or unregistered in any jurisdiction.
Invalid Transaction has the meaning given in clause 11.7 (Invalid Transactions) of Schedule 4.
Linked Bank Account has the meaning given in clause 8.1 (You must maintain a Linked Bank Account) of Schedule 3 and includes any Fee Account and Settlement Account.
Mark(s) means trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations owned, licensed or used.
Merchant Service Fee or Merchant Fee means the fee payable by you to us for receipt of the applicable Smartpay Service, as set out in Item 6 (Fee) of Schedule 1, and as may be varied from time to time in accordance with this Agreement.
Monthly Rental Fee means the fee payable by you to us for the rental of the Equipment from us, as set out in Item 6 (Fee) of Schedule 1, and as may be varied from time to time in accordance with this Agreement.
MOTO stands for “mail or telephone order” and means an order for goods or services received by mail, telephone, facsimile or internet.
MOTO Terms and Conditions means the terms and conditions governing the use of the MOTO service as set out at
https://www.merchantwarrior.com/terms, as amended from time to time.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the register established under the PPSA.
Receipt means a receipt including the following information about a Transaction:
(c) type of Transaction;
(d) facility or facilities being debited or credited;
(e) information to enable us to identify you and the Transaction (but no information that identifies the Cardholder’s name or address);
(g) location of Terminal or other identifying information of the Terminal; and
(h) reference number.
Referral Partner means any third party (such as a financial institution or point of sale software providers but excluding our other merchant customers), who, from time to time, refers merchants to us pursuant to a written agreement.
Refund means the refunding of a previously processed Transaction back onto the previously processed Card.
Renewal Term has the meaning given in clause 2.1 (Term and renewal) of Schedule 3.
Replacement Cost means the fee payable by you to us charged to replace any lost, stolen or damaged Equipment, as set out in Item 6 (Fee) of Schedule 1, and as may be varied from time to time in accordance with this Agreement.
Scheme means the Mastercard, Visa, American Express, UnionPay, Diners Club, Discover, JCB and EPAL card schemes and any other similar schemes provided that we are a member of or facilitate transactions in relation to that scheme.
Security Interest has the meaning given to it in the PPSA.
Settlement Account has the meaning given in clause 8.1 (You must maintain a linked Bank Account) of Schedule 3.
Services or Smartpay Services means the products and services that Smartpay will provide to you pursuant to this Agreement, as referred to in Item 7 (Products & Services) of Schedule 1.
Set Up Fee means the fee payable by you to us to open and set up your Smartpay Customer Account, as set out in Item 6 (Fee) of Schedule 1, and as may be varied from time to time in accordance with this Agreement.
Smartpay Customer Account has the meaning given in clause 4.1 (Must have a Smartpay Customer Account) of Schedule 3.
Smartpay Hub means the online portal where Merchants can manage terminals and view and download transactional data, located at the URL https://smartpay-hub.com/.
Smartpay Hub End User Licence Agreement means the terms and conditions governing the use of the Smartpay Hub, as amended from time to time.
Smartpay Merchant Facility means the facility under which we provide you with merchant acquiring and transaction processing services in accordance with this Agreement.
Software means all software developed by or for Smartpay for use in or with the Terminals, consisting of a set of instructions or statements in machine-readable medium and any enhancement, modification, update or new release of that software or part thereof.
Surcharge has the meaning given in clause 14.1 (Smartcharge and Surcharges) of Schedule 4.
Swap Out has the meaning given in clause 5.3 (Swap Outs) of Schedule 4.
Term means the Initial Term and any Renewal Term.
Terminal(s) means the electronic terminal or terminals supplied by us through which instructions may be given for the transfer of funds using the EFTPOS system.
Transaction means an electronic funds transfer initiated in connection with a Cardholder using a Card or information from a Card.
Transaction Value Report means a periodic report containing the total number of Transactions and total value of Transactions made through your Terminal(s).
Updates means all corrections for defects, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Software from time to time.
User Guide means the procedures and user guide(s) that set out (amongst other things) instructions on how to set up the Equipment and instructions on how to operate the Terminals, as provided and updated by us from time to time.
Valid Transaction is any transaction that is not an Invalid Transaction and is approved by us.
Website means the internet site at the URL www.smartpay.com.au or any other site operated by the us or our related bodies corporate from time to time.
In this Agreement, unless the context requires otherwise: (a) a reference to a clause, schedule or exhibit is to a clause, schedule or exhibit of or to this Agreement, which form part of this Agreement; (b) a reference to any gender includes all genders; (c) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period; (d) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply; (e) a reference to this Agreement or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them; (f) where an expression is defined anywhere in this Agreement, it has the same meaning throughout; (g) headings and sub-headings are for convenience of reference only and do not affect interpretation; (h) the phrase include, includes or including, or similar phrase does not limit what else might be included; (i) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision; (j) a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgements, Australian generally accepted accounting principles and industry-wide non-statutory rules or obligations in force from time to time; (k) a reference to dollars or $ is to an amount in Australian currency; (l) the singular includes the plural and vice versa; (m) a reference to any party to this Agreement or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns; (n) a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body, and vice versa.
Schedule 3 - General Terms
Structure of this Agreement.
This Agreement consists of the following parts:
(a) Schedule 2 (Dictionary);
(b) Application Form (including Personal Information Collection Statement);
(c) Schedule 1 (Key Details);
(d) Service Schedules;
(e) Schedule 3 (General Terms);
(f) Schedule 4 (Smartpay Merchant Facility Terms);
2.1 Term and renewal
This Agreement will start on the date that we confirm (usually by email) to you that your Application Form has been received and is accepted by us, and will continue for the period set out in the Application Form (if any) unless earlier terminated in accordance with this Agreement (“Initial Term”). Where the Initial Term is a fixed period, then this Agreement will automatically renew for successive periods equal to the period set out in Item 4 (Term and Renewal) of Schedule 1 (each a “Renewal Term”) unless either, a party terminates this Agreement by notice in writing to the other party no less than 30 (thirty) days prior to the expiry of the Initial Term or the then-current Renewal Term (as applicable), or a party otherwise terminates this Agreement in accordance with its terms.
2.2 Commencement of services
Notwithstanding clause 2.1 (Term) above, we will start providing the services to you on the Commencement Date as determined in accordance with Item 3 (Commencement Date) of Schedule 1.
3.1 Smartpay to provide Services to you
In consideration of the payment of the Fees, Smartpay agrees to provide to you, the Services on the terms and subject to the conditions set out in this Agreement.
3.2 Right to reject certain Transactions
(a) You acknowledge and agree that Smartpay is subject to laws (such as relevant anti-money laundering laws), which may prohibit
Smartpay from entering into or concluding Transactions involving certain persons. You agree that Smartpay may decline to
enter into or conclude Transactions involving such persons in compliance with such laws, and will incur no liability from any action
Smartpay takes to comply with such laws. Further, you agree that Smartpay may delay, block or refuse to make or process a
payment or Transaction if Smartpay believes on reasonable grounds that making that payment or Transaction may breach any law
in any other country, and Smartpay will have no liability in taking such action. Smartpay will, as soon as reasonably practicable and
at all times subject to the requirements of the relevant laws, notify you of this action.
(b) You declare and undertake that the payment of monies by Smartpay in accordance with any instructions given by you will not
breach any laws.
Smartpay will use best endeavours to provide the Services selected by you on the Application Form.
Where you have applied, and have been approved, to use the MOTO services, you acknowledge that you have read the MOTO Terms and Conditions and agree to be bound by them.
3.5 Alipay WeChat Pay
Where you have applied, and have been approved, to use the Alipay WeChat Pay Services, you acknowledge that you have read the Alipay WeChat Pay Merchant Agreement and agree to be bound by it.
3. Your Smartpay Customer Account
Smartpay will use best endeavours to provide the Services selected by you on the Application Form.
Where you have applied, and have been approved, to use the MOTO services, you acknowledge that you have read the MOTO Terms and Conditions and agree to be bound by them.
3.5 Alipay WeChat Pay
Where you have applied, and have been approved, to use the Alipay WeChat Pay Services, you acknowledge that you have read the Alipay WeChat Pay Merchant Agreement and agree to be bound by it.
5. Smartpay Customer Account - Authorised Signatories
5.1 Authorised Signatories’ authority.
You must nominate at least one individual (“Authorised Signatory”) to be your key contact person and who is authorised to access, use and control your Smartpay Customer Account. You acknowledge and agree that: (a) the Authorised Signatories nominated by you from time to time are authorised by you to access and control your Smartpay Customer Account; (b) we are hereby permitted to discuss the details of your Smartpay Customer Account and disclose information about your account with your Authorised Signatories.
5.2 Initial and subsequent Authorised Signatories.
The initial Authorised Signatories are the individuals nominated as such on and who sign the Application Form. Subject to clause 5.4 (Accessing your account) below, you may add or remove an Authorised Signatory by notifying us in writing in such form as required by us from time to time. You must have at least one Authorised Signatory at all times.
5.3 You are responsible for Authorised Signatories.
You must ensure that all Authorised Signatories comply with this Agreement and you acknowledge and agree that you are responsible for all acts of Authorised Signatories and any other users of the Equipment and all acts and omissions and breaches by an such persons will be deemed to be your act, omission or breach (as the case requires).
5.4 Accessing your Smartpay Customer Account.
If you have indicated on the Application Form that the “Administration Authority” is:
(a) “any to sign”, then each Authorised Signatory is separately entitled to exercise your rights under this Agreement, in accordance with
(b) “any two to sign”, then any combination of 2 (two) Authorised Signatories are jointly entitled to exercise your rights under this
Agreement, in accordance with this Agreement.
Notwithstanding the foregoing, if you have nominated more than one Authorised Signatory at any time, then 2 (two) Authorised Signatories are required to authorise the following:
(a) any addition or removal of an Authorised Signatory;
(b) the closure of the Smartpay Merchant Facility;
(c) any change to your Smartpay Customer Account.
5.5 We can remove Authorised Signatory.
We will remove an individual as an Authorised Signatory if we have been notified or we reasonably believe that they are deceased or mentally incapacitated, or that the individual is no longer authorised to act as an Authorised Signatory. We will not be liable to any person as a result of such removal.
6. Smartpay Hub
6.1 Smartpay Hub.
Where you have applied, and have been approved, to use the Smartpay Hub, you acknowledge that you have read the Smartpay Hub End User Licence Agreement and agree to be bound by it.
7.1 Fees will be debited
All Fees that are payable by or owed to you will be recorded in your Smartpay Customer Account and debited or credited (as required) to your applicable Linked Bank Account(s). See Schedule 4 (Smartpay Merchant Facility Terms) for more information about your funding requirements for your Linked Bank Accounts.
The following Fees will apply subject to the conditions (if any) set out in Item 6 (Fee) of Schedule 1:
(a) Set up Fee. A Fee (as referred to in Item 6 (Fee) of Schedule 1) to open and set up your Smartpay Customer Account.
(b) Merchant Service Fee. Merchant Service Fees, in consideration of your use of the Smartpay Merchant Facility and any other Services
nominated by you in the Application Form. You acknowledge and agree that you have received a copy of our Fees with or within the
(c) Monthly Rental Fee. Monthly Rental Fees, in consideration of your rental of Equipment from us (if applicable).
(d) Cancellation Fee. Cancellation Fee (as referred to in Item 6 (Fee) of Schedule 1) to cancel your Smartpay Customer Account.
(e)Accessory Fee. Accessory Fee, in consideration of any consumables and/or accessories acquired by you for use with or in relation to
any Equipment and any related costs (including postage fees).
(f)Loss & Replacement Fee. A fee charged to replace any lost, stolen or damaged Equipment – as contemplated in clause 17.7(d)
(Obligations on termination) of Schedule 3 and clauses 3.3 (Risk in equipment) and 5.3(b) (Swap Outs) of Schedule 4.
7.3 Changes to Fees
We may change our Fees (including introducing new Fees) from time to time by giving you at least 30 (thirty) days’ written notice and such change will become effective on the date set out in the notice. There is no maximum limit for the amount of Fees we may impose however, we will only change our Fees to the extent permitted by, and subject to, any requirements of the law. If we change our Fees and you do not agree to the changes, then you may terminate this Agreement pursuant to clause 17.3 (Termination for cause by you) of Schedule 3. If you continue to use the Smartpay Merchant Facility or any other Services to which the Fee applies after the effective date of the change, then you will be deemed to have accepted the new Fee.
7.4 Fee waiver and discretion to determine category
We may in our absolute discretion waive any or all Fees from time to time. In addition, we may in our absolute discretion (exercised reasonably) determine what category a Transaction falls within and we may amend the categories from time to time, which may affect the Fee applicable to a Transaction.
All amounts specified in this Agreement are, unless specified otherwise, exclusive of GST. To the extent that any supply under or in connection with this Agreement is or becomes subject to GST, an amount equal to the GST paid or payable in respect of the supply shall be added to the amounts paid or payable for that supply provided that the party making the supply issues a valid tax invoice to the recipient of the supply. Words used in this clause have the meaning given in the GST Law, unless the context otherwise requires.
7.6 Government taxes and charges
For clarity, any government taxes or charges imposed on your Linked Bank Account or a Cardholder’s account (including amounts imposed on credits or debits to the account) are payable by you or the Cardholder respectively.
8. Linked Bank Account(s)
8.1 You must maintain a linked Bank Account
For the Term plus at least 180 (one hundred and eighty) days after the expiry or termination of this Agreement, you must maintain at least 1 (one) verified and operational Australian bank account to which we can debit and credit funds due or owed by or to you pursuant to this Agreement (“Linked Bank Account”). This is an essential term of this Agreement and failure by you to maintain a Linked Bank Account in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by Smartpay) of Schedule 3. The name of the account holder of the Linked Bank Account must be identical to your name as Merchant. You may wish to have a separate Linked Bank Account for the debit/credit of Fees (the “Fee Account”) and a separate Linked Bank Account for the debit/credit of settlement sums (“Settlement Account”).
8.2 Initial Linked Bank Account and changing accounts
Your initial Linked Bank Account is the account nominated on the Application Form. You can change your Linked Bank Account by providing us with no less than 14 (fourteen) days’ notice in writing in such form as required by us from time to time.
8.3 Withhold payments for disputes
We may withhold or suspend payment of any amounts that would otherwise be payable to you until we have concluded reasonable investigations into any claimed Chargebacks or into the validity of any Transactions.
8.4 Must ensure sufficient funds in Linked Bank Account
You must ensure that, at all times, you have sufficient funds in the Linked Bank Account (or the Fee Account, if you choose to maintain a separate account for this purpose) to pay any Fees due on your Smartpay Customer Account. Notwithstanding the foregoing, you authorise us to debit your Linked Bank Account even where such a debit would cause the Linked Bank Account to have a debt balance and to exceed any overdraft limit that may be in place.
8.5 Effect of insufficient funds in Linked Bank Account
Without prejudice to any other rights or remedies that we may have, if you do not have sufficient funds in your Linked Bank Account or Fee Account, as applicable, to pay the Fees at any time, we may immediately suspend the Smartpay Merchant Facility and interest at a rate equal to the Reserve Bank of Australia’s cash rate target plus 5% will accrue on a daily basis until the funds are able to be debited from your Linked Bank Account or Fee Account, if applicable, in full. In addition you will indemnify us for any sums reasonably incurred by us (including legal costs) in respect of the collection of outstanding sums.
9. Direct Debit Request Service Agreement
9.1 Direct Debit Request Service Agreement
This clause 9 (Direct Debit Request Service Agreement) constitutes your Direct Debit Service Agreement with Smartpay, with User ID and ABN as provided in the Application Form, from time to time. By signing and submitting to us the Direct Debit Request, you authorise and direct us to debit funds from your Linked Bank Accounts. You must at all times maintain a valid Direct Debit Request for your Linked Bank Accounts. This is an essential term of this Agreement and failure by you to maintain a valid and current Direct Debit Request in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by Smartpay) of Schedule 3.
9.2 Direct debit authority
You authorise and direct us to debit funds from your Linked Bank Accounts as follows:
(a) all Fees payable by you under this Agreement (including those set out in clause 7.2 Fees) of Schedule 3;
(b) in the circumstances referred to in clauses 3.3 (Risk in Equipment), 5.3 (New Equipment) and 11.5 (Counterparty does not pay us)
of Schedule 4 (Smartpay Merchant Facility Terms);
(c) any Scheme fines or penalties payable as a result of your breach of this Agreement or which we incur because of or contributed to by your acts or omissions;
(d) Refunds presented by you;
(e) any overpayments made by us;
(g) amounts paid by us for Transactions where we are investigating the validity of the Transaction or a claimed Chargeback of the Transaction;
(h) duties and taxes payable by you;
(i) any deficiency in a payment disclosed in an audit or check by us; and
(j) any other amounts payable or owing by you to us under this Agreement.
9.3 When we will debit your account
Unless we agree otherwise (for example, in the case of a legitimately disputed invoice), we will debit your Linked Bank Account on the date that a payment is due or, if the due date is not a Business Day, we will debit your account on the next Business Day. The date that the charge will appear in your account will depend on the financial institution with which your account is held (“the Financial Institution”); you should contact the Financial Institution to confirm the exact date when the debit will appear in your account.
9.4 Changes to Direct Debit by us
You acknowledge and agree that we may vary the amount and frequency of debits made pursuant to the Direct Debit Request. We will provide you with written notice of any such variations by placing a notice on your monthly statement as soon as practicable and no less than 14 (fourteen) days before the changes have been implemented.
9.5 Your responsibilities
It is your responsibility to ensure that:
(a) the Linked Bank Account details that you provide to us are accurate and correct and you should check the details against a recent
statement from the Financial Institution;
(b) If you have queries in connection with the Direct Debit Request, you should contact the Financial Institution before completing it;
(c) The Linked Bank Accounts that you have nominated can accept direct debit payments (as direct debit may not be available on all
accounts offered by financial institutions);
(d) The Linked Bank Accounts have sufficient cleared funds available to enable the direct debits authorised by the Direct Debit Request
to be made from time to time; and
(e) The authority given to us pursuant to the Direct Debit Request is consistent with the account authority or signing instructions held
by the Financial Institution in relation to the applicable account.
9.6 Failure of direct debit
If a direct debit fails or is rejected due to a problem for which you are responsible (for example, insufficient funds or incorrect account information):
(a) We will attempt to repeat the direct debit transaction up to 3 (three) times in the following 2 (two) weeks and for each dishonour,
we may charge you a dishonour fee and we may pass on any charges we incur as a result of a failed or rejected direct debit;
(b) You may be charged a fee and/or interest by the Financial Institution and you are responsible for paying that fee and/or interest;
(c) If payment continues to be unsuccessful, you must make the payment by another method.
9.7 Privacy and disclosure
(a) the disclosure is to a financial institution and is necessary to enable us to perform or otherwise exercise our rights and obligations
pursuant to this Agreement;
(b) we are required or permitted by law to do so.
9.8 Errors and disputes
If you believe that there has been an error in the debiting of your Account, you should contact us as soon as possible calling us on 1800 433 876 or emailing us at firstname.lastname@example.org and we will investigate your request. If we conclude that your Account has been:
(a) incorrectly debited, we will arrange for the relevant Financial Institution to adjust the relevant Account and we will notify you of the
amount of the adjustment;
(b) correctly debited, we will notify you accordingly together with our reasons and any evidence supporting our conclusion.
9.9 Cancellation or suspension of direct debit or Direct Debit Request by you
You may request us to stop a direct debit charge by giving us 14 (fourteen) days’ notice by calling us on 1800 433 876 or emailing us at email@example.com. You may defer, change, cancel or suspend a direct debit authority at any time by calling us on 1800 433 876 or emailing us at firstname.lastname@example.org. If you cancel or suspend a direct debit authority you must at the same time nominate a new Linked Bank Account and execute a Direct Debit Request with respect to the new Linked Bank Account. You may also stop a direct debit charge or cancel a Direct Debit Request by contacting your Financial Institution.
9.10 Authorisation after termination.
Subject to clause 9.9 (Cancellation of Direct Debit Request) above, you agree that despite any expiry or termination of this Agreement, the authority you give to us pursuant to clause 9.2 (Direct Debit Authority) above continues to the extent of (and the authority continues to apply in respect of) any monies that you still owe to us at or after the expiry or termination of this Agreement (including, for example, the Replacement Cost of any Terminals not returned to us in accordance with clause 17.7 (Obligations on Termination) of Schedule 3).
10. Changes to Your Details
10.1 You must notify us of changes
You must immediately notify us in writing of changes to any of the following:
(a) any of your contact details (including email, phone number, address) set out in Schedule 1;
(b) your business or company name;
(c) your Authorised Signatories;
(d) your Linked Bank Account(s);
(e) the nature of your Business;
(f) any other circumstances that may affect your ability to meet your liabilities as and when they fall due, together with any evidence that we request to support the change that you have requested. We may, in our sole and absolute discretion, reassess your Smartpay Customer Account and your access to and use of the Smartpay Merchant Facility and the Services as a result of any such changes and we may make such changes to your Smartpay Customer Account and/or your access to and use of the Smartpay Merchant Facility and Services as we consider necessary.
10.2 Notice of change of control
You must give us at least 5 (five) Business Days’ notice prior to the effective date of any change in the control or your business.
10.3 Notice of change of residency
You must notify us of any change (from that notified to us at the time of completing the Application Form) to the residency of the any controlling person on your Smartpay Customer Account within 30 (thirty) days of the effective date of the change.
10.4 Notification of changes to you
We may notify you of any changes processed by us pursuant to this clause 10 and we reserve the right to suspend or discontinue providing you with such notifications at any time at our discretion.
10.5 When changes come into effect
If you request us to make changes to your Smartpay Customer Account pursuant to this clause 10, then other than a change in ownership and changes related to your Linked Bank Account, such changes will become effective 72 hours after we are notified of the change. A change that relates to your Linked Bank Account will become effective on the later of (a) 72 hours after we are notified of the change, and (b) the date on which you execute and submit to us a new Direct Debit Request (if applicable).
11. Information Collection and Disclosure
11.2 We may collect information about you
11.3 You authorise us to collect information
(a) to assess and process your application for Services that we supply under this Agreement;
(b) to administer and manage the Services that we supply under this Agreement; and
(c) to facilitate our internal business operations, including fulfilling any legal requirements and systems maintenance and testing.
11.4 We may disclose information about you
12. Personal Property Securities Register
The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Grantor”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.
The Merchant hereby acknowledges and agrees:
(a) that this Agreement is a Security Agreement for the purposes of the PPSA;
(b) that to secure the payment of the Fees and the return of the Equipment under this Agreement the Merchant charges in favour of
Smartpay (as Secured Party) all its right title and interest in, to, under or derived from (“Security Interest”) all of the collateral
(“Collateral”), being all of the Merchant’s present and after acquired property, including the Equipment until such time as the
Merchant has discharged its obligations in respect of the Fees and Equipment, under this Agreement, in full;
(c) that the Security Interest will be a non-circulating Security Interest (previously a fixed charge) on all Collateral and will be a
continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all other registered or
unregistered Security Interests;
(d) that the Merchant has not agreed that the Security Interest will attach at a later time;
(e) the Merchant will be required to pay all costs incurred in the registration and maintenance of the security interest;
(f) Smartpay will continue to hold a Security Interest in the Collateral in accordance with and subject to the PPSA, notwithstanding
that the Collateral may be processed, commingled or become an accession with other goods;
(g) in the event that the Merchant uses the Collateral in some manufacturing or construction process of its own or some third party,
then the Merchant shall hold such part of the Proceeds of such manufacturing or construction process as relates to the Collateral
in trust for Smartpay. Such part shall be deemed to be equal in dollars to the amount owing by the Merchant to Smartpay at the
time of the receipt of such Proceeds;
(h) any Smartpay Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent
permitted by law over all other registered or unregistered Security Interests;
(i) in addition to any other rights under these terms and conditions or otherwise arising, if the Merchant is in default of any of the
payments owing under this Agreement, Smartpay may exercise any and all remedies afforded to it as a Secured Party, including
where applicable, without limitation, entry into any building or premises owned, occupied or used by the Borrower, to search for and
seize, repossess, dispose of or retain the Collateral in order to satisfy any outstanding liability owed by the Merchant, even if
Smartpay does not have priority over other persons having security interest in the goods. Smartpay will not be responsible for any
costs or losses arising from this, and
(j) Smartpay has the power to appropriate payments to such goods and accounts as it thinks fit notwithstanding any appropriation
by the Merchant to the contrary.
The Merchant must:
(a) sign all documents and provide such information which Smartpay may reasonably requires to register, amend or update a Finance
Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
(b) indemnify and upon demand reimburse Smartpay for all expenses incurred in registering a Financing Statement or Financing
Change Statement on the PPSR or releasing any Security Interests;
(c) not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Smartpay;
(d) not permit anything or any act which may adversely affect Smartpay’s Security Interest, and
(e) not do any of the following without the prior express written consent of Smartpay (which will not be unreasonably withheld):
(i) change its name, address, principal place of business, contact numbers, business practice or such other change in the
Merchant’s details registered on the PPSR;
(ii) deal in any way with this Security Agreement, or allow any interest in it to arise or be varied;
(iii) sell, assign, part with possession of, or otherwise dispose of the Collateral or move any of the Collateral outside Australia;
(iv) give control of the Collateral to another person;
(v) allow a set off or combination of accounts;
(vi) change the nature of the Collateral;
(vii) abandon, settle, compromise, or discontinue or become nonsuited in respect of any proceedings against any person in
respect of any of Smartpay’s rights in connection with the Collateral;
(viii) exercise or waive any of Smartpay‘s rights or release any person from its obligations in connection with the Collateral;
(ix) allow any personal property to become an accession to, or commingled with, any property that is not Collateral;
(x) sell or part with its business or substantially alter the nature of its business from that which is carried on as at the date
the Collateral was supplied.
(f) The parties agree that section 96, 125 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under
(g) The Merchant hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(h) The Merchant waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
(i) Unless otherwise agreed in writing by Smartpay, the Merchant waives its right to receive a verification statement in accordance
with section 157 of the PPSA.
(j) If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising out of these terms, the parties
agree that each of the provisions of the PPSA which section 115 of the PPSA permits parties to contract out of, do not apply to the
enforcement of that security interest unless Smartpay at its absolute discretion otherwise notifies the Merchant in writing.
(k) The Merchant shall unconditionally ratify any actions taken by Smartpay pursuant to this clause 12.
Pursuant to section 275(6) of the PPSA, the Merchant must not disclose information pertaining to Smartpay’s Security Interest without Smartpay’s prior written approval.
This clause 12 will apply to the maximum extent as allowed and permitted by applicable law.
13. Representations & Warranties
13.1 No warranty
The Services are provided on an “as is” basis. Some or all of the Services may be provided by third party providers. To the maximum extent permitted by law, Smartpay makes no warranty that the Services (or any part of them) will be error-free or will run without interruption, or any other warranty regarding the performance of the Services.
13.2 Mutual representations and warranties
Each party represents and warrants to the other that: (a) it has the right and capacity to enter into this Agreement; (b) the person who enters into this Agreement on the party’s behalf is properly authorised to do so, and (c) this Agreement will be legally binding on it.
14. Dispute Resolution
14.1 Step 1: notice of concern or dispute
If you have any concern or a dispute (including in relation to billing) in connection with the Smartpay Merchant Facility or otherwise in connection with this Agreement, please contact us at our address or contact details as set out on our Website and provide us with the details of your concern or dispute. We will attempt to resolve your concern or dispute as soon as possible in accordance with this clause 14 (Dispute Resolution). Note that this procedure does not apply in relation to reporting unauthorised transactions on your Account.
14.2 Step 2: mediation
We will use our best endeavours to resolve your concern or dispute. We will notify you in writing of the outcome of our investigations, including how we propose to resolve your concern or dispute. However, if you are not satisfied with how we handled your concern or dispute, you may, by notice in writing to you, elect to have your dispute mediated. The mediator will be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the Chair of the Resolution Institute. The parties will abide by the mediation rules of the Resolution Institute in seeking to resolve the dispute by mediation.
14.3 Step 3: arbitration
If the dispute is not resolved within 4 weeks (or such other period as the parties agree) of the appointment of the mediator or if either party does not wish to have the dispute mediated, then either party may refer the dispute to the Chair of the Resolution Institute for the appointment of a graded arbitrator who will arbitrate the matter in accordance with the Commercial Arbitration Act (1990) (Cth). Unless the parties agree otherwise, the place of arbitration will be Sydney, New South Wales. The outcome of the arbitration will bind the parties.
15. Liability and Indemnity
15.1 You are not a Consumer
You acknowledge and agree (it is an essential condition of this Agreement the breach of which will give us the right to terminate this Agreement pursuant to clause 17.2 (Termination for cause by Smartpay) of Schedule 3) that you are not acquiring the Equipment or the Smartpay Services as a “consumer” as that term is defined in the Australian Consumer Law or any other applicable law (“Consumer”), and that you are not and will not become a Consumer during the Term.
15.2 Your liability and indemnity
Except to the extent caused or contributed to by us, you agree to indemnify and keep indemnified, Smartpay from and against any liability, actions, claims, demands, damages, costs and expenses incurred or suffered by Smartpay arising from: (a) a breach of this Agreement by you (including your Authorised Signatories, directors, officers and employees); (b) any fraud or negligence by you (including your Authorised Signatories, directors, officers, employees and any other person who access the Terminals or uses the Services), and (c) any claims made by a third party (including any customer) in connection with goods or services or use of the EFTPOS System.
15.3 Disclaimer and exclusions
To the maximum extent permitted by law:
(a) Smartpay gives no condition, warranty or representation as to ownership, description, condition, merchantability, suitability or
fitness (for a particular or any purpose) of the Equipment, the Software or of the Smartpay Services and no such term, condition or
warranty will be implied;
(b) All terms (whether express, implied, oral or otherwise) not expressly stated in this Agreement are excluded; and
(c) Smartpay will not be liable to you for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation or goodwill
or any indirect or consequential loss arising in connection with this Agreement.
15.4 Limitation of liability
To the maximum extent permitted by law, any liability of Smartpay to the you with respect to the Equipment, the Software, the Smartpay Services and otherwise in connection with this Agreement shall arise in accordance with this Agreement only and shall be limited to the lower of: (a) $1,000 (one thousand dollars); (b) the replacement of the Equipment, resupply of the Software or service, payment of the cost of the supply of replacement Equipment or acquiring equivalent equipment, or cost of having services supplied again, at the sole and absolute discretion of Smartpay and otherwise in accordance with this Agreement. Without limiting the foregoing, where Equipment has been purchased, Smartpay offers a limited warranty, as set out in the additional warranty terms supplied with the Equipment and you acknowledge that you have received and have read those warranty terms.
15.5 Limitations are subject to law
Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any law, including the Competition and Consumer Act 2010 (Cth). Limitations and exclusions are made only to the extent that Smartpay may legally do so.
We may suspend the Smartpay Services or any part of them without notice if we consider (in our reasonable opinion) that we or another party could suffer a loss or be subject to fraud if we continue to supply the Smartpay Services. We will inform you as soon as practicable after suspension is effected. During any suspension, you must not submit Transactions for processing and we will not process any Transactions that you submit. We will not be liable for any loss or damage suffered by you or any other party as a result of a suspension effected under this clause.
17.1 Termination of a Service or Agreement
Either party may terminate a Service or this Agreement at any time by giving the other the amount of notice set out in Item 5 (Termination Notice) of Schedule 1. If a Service is terminated, this Agreement ceases to apply in relation to the terminated Service.
17.2 Termination for cause by Smartpay
We may terminate this Agreement by notice in writing if:
(a) You breach clause 8.1 (You must maintain a Linked Bank Account) of Schedule 3, 9.1 (Direct Debit Request Service Agreement) of
Schedule 3 or clause 8.2(b)(ii) (What you must do) of Schedule 4, and you fail to remedy the breach within 7 (seven) days of
written notice from us;
(b) You breach clause 15.1 (You are not a Consumer) of Schedule 3; or
(c) We are directed to terminate this Agreement by the principal acquirer from whom we may acquire some of the Services, a Scheme
operator or Scheme member. This may occur, for example, where excessive multiple Chargebacks are processed to your account;
you change your business and the industry category into which your business falls changes; multiple fraudulent transactions are
processed to your account or any other matter that may put us, the principal acquirer, a Scheme operator or a Scheme member
17.3 Termination for cause by you
You may terminate this Agreement by 30 (thirty) days’ written notice to us if we change the Fees pursuant to clause 7.3 (Changes to Fees) of Schedule 3.
17.4 Termination for cause by either party
In addition to and without prejudice to or limiting any other rights and remedies available to a party at law or in equity, either party may, by written notice to the other party, terminate this Agreement with immediate effect if:
(a) Fraud. If the party reasonably believes that any person is committing fraud in connection with this Agreement or any of the Services;
(b) Breach of Agreement. If the other party is in breach of a clause of this Agreement and such breach is incapable of remedy, or has
not been remedied within 7 (seven) days of receipt by that other party of written notice specifying the breach and requiring that it
be remedied; or
(c) Insolvency and other similar events. With immediate effect if the other party is declared insolvent; makes, or attempts to make,
any arrangement for the benefit of creditors; is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of a solvent amalgamation or reconstruction); a receiver or manager of the other party is appointed,
or an order is made or resolution passed for the liquidation of the other party (other than for the purposes of a solvent amalgamation or reconstruction), or in the event any similar action or proceeding is instituted relating to any of the foregoing and the same is not dismissed within fourteen (14) calendar days.
17.5 Termination for inactivity
If you do not make a Transaction for a period of 30 (thirty) days either:
(a) from the Commencement Date, or
(b) from the date of the last Transaction,
this Agreement will automatically terminate with immediate effect.
17.6 Cancellation Fee
If this Agreement has a fixed term and during the Initial Term:
a) we terminate this Agreement pursuant to clause 17.2 (Termination for cause by Smartpay) or 17.4 (Termination for cause by either party) as a result of us committing or suffering any of the events identified in that clause; or
(b) you terminate this Agreement pursuant to clause 17.1 (Termination of a Service or Agreement) or 17.4 (Termination for cause by either party) as a result of you committing or suffering any of the events identified in that clause, or
(c) this Agreement terminates pursuant to clause 17.5(a) (Termination for inactivity).
then you must pay us the cancellation Fee, as set out in Item 6 (Fee) of Schedule 1.
17.7 Obligations on termination
Upon termination of this Agreement:
(a) your right to use the Equipment immediately ceases and the licences granted under this Agreement terminate;
(b) you must return to us all Equipment and all guides, stationary and promotional material supplied to you by us;
(c) all monies owed to us must be paid in accordance with the terms of this Agreement; and
(d) without limiting paragraph (c), if the Equipment is not returned to us within 30 (thirty) days of the effective date of termination, we will debit the Replacement Cost of the Equipment from your Linked Bank Account.
17.8 No effect on other duties
Except as otherwise provided herein, termination of this Agreement for any reason shall not relieve or discharge either party from any duty, obligation or liability hereunder which was accrued as of the date of termination.
18. Force Majeure
Neither party will be liable to the other for any failure or delay to perform its obligations under this Agreement where such failure or delay is caused by events beyond its reasonable control, including epidemics, quarantine, biological contamination, entry and exit restrictions, industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, failure of third party services providers (including the acquirer on record with respect to the Services) (“Force Majeure”). However, the foregoing does not apply if the Force Majeure event is caused by a breach of this Agreement by the non-performing party.
19.1 Notice to be in writing
Every notice, statement or other communication required or permitted to be served (“Notice”) by any party (“Sender”) on another party (“Recipient”) pursuant to this Agreement must be in writing.
19.2 When notices are effective. Subject to clause 19.1 above, a Notice will be deemed to have been effectively served:
(a) if sent by prepaid post to the Recipient at the address of the Recipient as set out at the beginning of this Agreement or on the Application Form, on the third Business Day following the date of postage by the Sender;
(b) if hand delivered, on the date of delivery to the Recipient’s address as set out at the beginning of this Agreement or on the Application Form unless such delivery occurs after 5.00pm or at any time on a day which is not a Business Day, in which case the Notice will be deemed to have been effectively served on the next Business Day; and
(c) if transmitted by email to a party’s email address as set out at the beginning of this Agreement or on the Application Form and a correct and complete transmission report is received by the Sender, on the day of transmission if a Business Day, or otherwise on the next Business Day (but only if no intimation has been received by the Sender that the notice has not been received, whether that intimation comes from the party to whom the notice is addressed or from the operation of an email system or otherwise).
19.3 Changes to details
A party may change its details for notices by written notice to the other party.
20.1 Entire agreement
This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under any applicable law, that term or provision will be severed from this Agreement, and the remaining terms and conditions will be unaffected.
Clauses 11 (Information collection and Disclosure) of Schedule 3, 13 (Representations and Warranties) of Schedule 3, 15 (Liability and Indemnity) of Schedule 3 and 6 (Software and Intellectual Property) of Schedule 4, together with any other clauses which contemplate that a party has any rights or obligations after the end of this Agreement, survive the expiry or termination of this Agreement.
We may from time to time set-off any amount due for payment by you to us against any amount due for payment by us to you.
You may not assign any of your rights under this Agreement (except to a related body corporate as part of a corporate restructure provided that prior written notice is given to Smartpay of such assignment) without our prior written consent. We may assign all or any of our rights under this Agreement.
20.6 Counterparts and electronic execution
This Agreement may be executed in multiple counterparts, each of which shall have the effect of an original and all of those counterparts taken together constitute one and the same instrument. To facilitate execution, the Parties agree that this Agreement may be executed through the use of email transmission in portable document format (PDF) or other electronic mechanism, and a counterpart of this Agreement that contains the electronic signature of a Party, which counterpart has been transmitted by email or other electronic transmission to the other Party, shall constitute an executed counterpart of this Agreement.
20.7 Changes to this Agreement
Smartpay may immediately vary this Agreement if required by, or in order to comply with, any law, or in connection with, or as a result of, any changes to any laws, provided that Smartpay provides you with written notice of such variations as soon as is reasonably practicable after making the variation. Notwithstanding the foregoing, we may (subject to law) change the terms of this Agreement at our absolute discretion by giving you written notice in accordance with this Agreement. We will provide you with at least 30 (thirty) days’ notice if we introduce or increase a Fee (other than a government charge or fee payable to a Scheme) and your continued use of the Smartpay Merchant Facility will be deemed to be your acceptance of such changes. For any other changes (including changes in interest rates and standard fees and charges) we will notify you as soon as reasonably practicable. Where required by law, we will notify you about any new or changes to a government charge in accordance with the applicable law.
20.8 Governing law and jurisdiction
This Agreement is governed by, shall be and construed in accordance with the laws of New South Wales. Subject to, and without limiting, clause 14 (Dispute Resolution) of Schedule 3, the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts hearing appeals therefrom.
Schedule 4 - Smartpay Merchant Facility Terms
1. Important Information
In addition to the terms of this Agreement, you must comply with:
(a) the User Guide;
(b) Any requirements that a Scheme imposes on us that relate to the Smartpay Merchant Facility and that we notify you of;
(c) any reasonable directions given by us; and
(d) all applicable laws.
2. The Equipment
2.1 Rental or purchase of Equipment
The Application Form sets out whether you are renting the Equipment or purchasing the Equipment.
2.2 Use of Equipment
You must ensure that the Equipment is:
(a) used in accordance with the User Guide at all times and solely for the purpose for which it was designed and provided by us in
connection with the Smartpay Services;
(b) not moved from the Delivery Address without our prior written consent (save that this sub-clause does not apply to mobile
(c) not moved or otherwise transferred out of your control.
2.3 Your general responsibilities.
It is your responsibility to:
(a) determine the specific location for installation of the Equipment (within the Delivery Address) and to prepare the location in
accordance with the specification set out in the User Guide;
(b) ensure that you have appropriate communications access, internet access and supported and regularly upgraded operating
(c) ensure you have sufficient electrical surge protection;
(d) exercise reasonable care in the use, operation, protection, and security of the Equipment at all times;
(e) ensure that the Equipment is stored safely and protected from theft, loss or damage and to insure the Equipment against any loss
or damage to the Equipment arising from theft, vandalism, fire, flood, earthquake, misuse, neglect, or as otherwise required by us;
(f) regularly check for evidence of tampering including skimming devices and confirm the identification number on the Equipment is
correct. You must contact us immediately if you discover any evidence of or suspect that Equipment has been tampered with.
3. Title and Risk in Equipment
3.1 Smartpay owns rented Equipment
If you rent the Equipment, the Equipment remains the property of Smartpay and/or its related bodies corporate at all times and nothing in this Agreement passes legal or beneficial title in the Equipment to you or any other party. You must not sublet, transfer, dispose of, grant a security interest over, permit a security interest to be registered over or otherwise deal with any rights or interest in the Equipment.
3.2 You own purchased Equipment
If you purchase the Equipment, legal and beneficial title in the Equipment passes from Smartpay to you upon full payment of the purchase price for the Equipment.
3.3 Risk in Equipment
Whether you rent or purchase the Equipment, risk in the Equipment passes to you upon delivery of the Equipment to the Delivery Address. Accordingly, upon delivery, you are liable for any loss or damage to the Equipment and all costs incurred in respect of the Equipment including the cost of repairing or replacing the Equipment at the Replacement Cost, subject to the terms of this Agreement. If Equipment is damaged after it has been delivered to you at the Delivery Address, you hereby authorise us to debit the repair cost or the Replacement Cost from your Smartpay Customer Account. We may choose whether to repair or replace Equipment at our discretion.
4. Delivery and Installation
4.1 Delivery of Equipment to you
We will deliver to the Delivery Address the number of items of Equipment ordered by you as set out in the Application Form. We may in our absolute discretion charge you delivery and freight charges and we will pay any insurance in respect of the delivery of Equipment to the Delivery Address.
4.2 Accepting deliveries
Within 48 (forty-eight) hours after receipt of a delivery you must notify us in writing of any shortages, defects or damage in respect of the delivered Equipment. You must return such Equipment to us at our expenses. To the maximum extent permitted by law, failure by you to give such notice to us will be deemed an acceptance in full of all Equipment delivered.
You must ensure that the Equipment is installed in accordance with our guides and procedures for installation. We will provide you with reasonable assistance over the telephone or electronic or other means by explaining how to install software required to connect the Equipment to point-of-sale software that we support. We are not otherwise responsible for the installation of the Equipment and you must do so at your own cost.
You must insure the Equipment with a reputable insurer with Smartpay noted as an interested party and you must, upon request, provide Smartpay with the certificate of currency for such insurance.
5. Service, Repair and Upgrades
5.1 No third party repairers
You must not allow any third party to service or repair the Equipment, unless we advise you in writing otherwise.
5.2 No use of Equipment with other acquirers
If you rent the Equipment, you must not use the Equipment with any other acquirer. If you purchase the Equipment and you use the Equipment with another acquirer, then you do so at your own risk and to the maximum extent permitted by law, the warranty with respect to the Equipment terminates and we will have no liability to you whatsoever.
5.3 Swap Outs
From time to time we may supply you with new, upgraded or repaired Equipment (“Swap Out”) to replace your existing Equipment. If this occurs, you must return the existing Equipment within 14 (fourteen) days after receiving the Swap Out. If we do not receive the existing Equipment back within this time:
(a) a Monthly Rental Fee will apply in respect of the Swap Out from the date that is 14 (fourteen) days after delivery of the Swap Out to the date that the existing Equipment is received by us (the Monthly Rental Fee for the existing Equipment will continue to be charged);
(b) and you notify us in writing that the existing Equipment has been lost, stolen or cannot otherwise be returned to us, or is damaged, a Replacement Cost will be charged in respect of that Equipment. The Replacement Cost will constitute a debt due by you to us and you hereby authorise us to debit such amount from the Fee Account without notice to you.
6. Software and Intellectual Property
6.1 Ownership and licence of Software and Intellectual Property Rights.
All right, title and interest in the Software (including Intellectual Property Rights in the Software) remains with Smartpay at all times. We hereby grant you a non-exclusive, non-transferable licence to use the Software solely in connection with the Smartpay Services in connection with your Business.
6.2 What you must not do. You must not:
(a) attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense
any part of the Software. This includes “phishing”, “mining” or attempting to trigger remote code for the purpose of accessing data
or material you would not otherwise have access to;
(b) circumvent, disable or otherwise interfere with security-related features of the Software or the Smartpay Services.
We may provide Updates of the Software from time to time, but we are under no obligation to do so.
7. Product and Service Warranty
7.1 Equipment warranty
We warrant that:
(a) at the date of delivery, the Equipment is of merchantable quality and is fit for the purpose for which it is supplied; and
(b) the Smartpay Services provided to you will be performed with reasonable care and skill.
To the maximum extent permitted by law, we provide no other warranties in relation to the Equipment, the Software or the Smartpay Service and we are not liable for any:
(c) damage to the Equipment due to a dysfunction of any network on which the Equipment is used that is out of our reasonable control (including any failure on the part of the principal acquirer from whom we may obtain some or all of the Services from time
to time) or the Communications Service; or
(d) delay in the installation or provision of Equipment, delay in the commencement of the Smartpay Services, or any loss you incur if
the Equipment is not working or you are unable to process Transactions.
8.1 Use of the Smartpay Merchant Facility
You must only process Transactions and use the Smartpay Merchant Facility in furtherance of the Business activities specified in your Application Form. You must obtain our prior written consent before processing Transactions for or using your Smartpay Merchant Facility for any other business or for any non-business activities.
8.2 What you must do
(a) not make any warranty or representation to a Cardholder regarding us or on our behalf;
(b) if you are passing on a surcharge to end customers:
(i) clearly and prominently display that a surcharge applies at the point of sale in a manner that enables the Cardholder to
choose whether or not to proceed with the Transaction;
(ii) only charge a surcharge that reasonably reflects your cost of accepting Transactions (as that concept is defined under
law) and not cross-subsidise across Schemes. This is an essential term of this Agreement;
(c) subject to the balance available in your Smartpay Customer Account on a particular day, when processing a Refund also refund any surcharge charged to the Cardholder in the original Transaction. In the case of a partial Refund, refund a pro-rated part of the surcharge;
(d) establish and maintain a fair policy for giving refunds or exchanging goods or services which complies with all applicable laws and
to give refunds by means of a Refund and not cash;
(e) not process any Transaction using your own Card or any Card of your Associates;
(f) not hold a Cardholder’s PIN or passcode;
(g) comply with any monetary limits or limits on the number of daily Transactions imposed on a Cardholder by a Card issuer.
8.3 Participation in Schemes
The Terminals will be programmed to accept all Card Transactions which they are able to accept. If you do not wish to participate in any particular Scheme you must contact us and complete and return any forms we request to enable us to disable the functionality for those Schemes.
8.4 Separate agreement with Schemes
You may be required to have a separate agreement with some Scheme operators. In such cases, our only obligation in relation to a Transaction is to transmit the particulars of the Transaction to the Scheme operator. We have no liability to any person in relation to the operation or effectiveness of those Schemes.
8.5 Your merchant number
Upon request, you must inform us of your merchant number for all Schemes in which you participate.
8.6 You accept Cards at your risk. We make no representations and give no assurances whatsoever in relation to the credit worthiness of any person presenting a Card, whether a Card has sufficient funds. To the maximum extent permitted by law, you waive any right which you may have against us by reason of any inferred representation or assurance from us processing a Transaction. You accept a Card and you process the Card at your sole risk.
8.7 Transaction data is conclusive
The Transaction data produced by the Terminal is correct and conclusive except in the case of manifest error. We are not liable for any error, delay, malfunction or failure caused or contributed to or initiated by your integrated point-of-sale software.
8.8 You must notify us of malfunctions
You must promptly notify us of any malfunction or error in connection with the Terminals, the EFTPOS System or the Communications Service.
8.9 Your representations and warranties
You represent and warrant to us that in respect of each Transaction that you process or that is processed on your behalf:
(a) all information given to us in respect of that Transaction is true and correct;
(b) the Transaction is valid; and
(c) the sale in respect of the Transaction is not subject to any dispute, set-off or counterclaim.
8.10 Transaction Value Reports
If a Referral Partner has referred you to us, you acknowledge and agree that we may disclose Transaction Value Reports to that Referral Partner for the purposes of confirming the value of the referral. You acknowledge and agree that, while we will have an agreement that obliges the Referral Partner to only use the Transaction Value Reports for this purpose, we are not responsible in any way for how the Referral Partner uses the Transaction Value Reports.
9.1 Your obligations
(a) not disclose (except to us or as required by law) or obtain a Cardholder’s name or Card details to or from any person, except where that information has been lawfully collected by you in the course of processing a Transaction;
(b) comply with the User Guide and other security requirements published on the Smartpay website or elsewhere from time to time;
(c) comply with the prevailing Payment Card Industry Data Security Standards (for more information see www.pcisecuritystandards.
org) or any Scheme security requirements from time to time;
(d) permit us or our nominee reasonable access to inspect your computer systems to conduct an investigation on whether there has
been a security breach and/or data compromise;
(e) use reasonable care to detect forged or unauthorised signatures or the unauthorised use of a Card;
(f) not process a Transaction by keying the transaction details manually into a Terminal unless instructed to do so by the Terminal; and
(g) use reasonable care to prevent the use of a Card as an instrument in money laundering or other criminal activities.
10. Records and Statements
10.1 What you must do
(a) keep all Receipts produced by the Terminal, your books of account and records of all Transactions (both sales Transactions and Refunds) as required by law;
(b) provide us with all Receipts and other records in connection with Transactions as requested by us; and
(c) permit us or our nominee to inspect Receipts, your books of account and records of all Transactions (both sales Transactions and
Refunds) on request.
We will make available to you each month a statement showing the amount of all Transactions processed by us for you and your cost of acceptance (being the fees that we charge to you) during the previous month. It is your obligation to check the statement to ensure the accuracy of the Surcharge and the payments made to the Settlement Account and from the Fee Account. You may dispute a Transaction by following the procedure set out in clause 14 (Dispute Resolution) of Schedule 3.
11.1 Settlement to Linked Bank Account
Subject to this Agreement, we will credit settlement sums to your applicable Linked Bank Account.
11.2 Timing of settlement
Subject to the remainder of this clause 11, we will:
(a) accept all Valid Transactions made by you; and
(b) credit your applicable Linked Bank Account with the proceeds of all Valid Transactions, within the following timeframes:
(i) no later than 2 (two) Business Days; 3 (three) in the case of international Card Transactions) (or, in each case, such other timeframe as may be required from time to time) following the date the Transaction is processed by a Terminal as long as settlement of all your Terminals has taken place either by a manual settlement initiated by you, or an automated settlement initiated by our systems, prior to 5am (AEST); or
(ii) as soon as practicable in any other case.
11.3 Availability of funds in your Linked Bank Account
Notwithstanding when we credit your Linked Bank Account, the Financial Institution with whom your Linked Bank Account is held will determine when it makes the payment available as disposable funds in your Linked Bank Account. This may vary from institution to institution.
11.4 Delay by counterparties
If there is any delay by our counterparties in respect of the processing of a Transaction, we may delay settlement to you until that counterparty fulfils its obligations. We reserve the right to delay the payment instruction in respect of any Transaction until we receive payment in respect of that Transaction.
11.5 Counterparty does not pay us
If our counterparty in respect of a Transaction fails to make a payment to us and we have already credited the Linked Bank Account, you must immediately repay to us the amount so credited. Without limiting any other recourse we may have, you authorise us to debit the relevant amount from your Linked Bank Account.
11.6 Processed Transactions may be disputed and charged back
You acknowledge and agree that the authorisation, processing and settlement of a Transaction by us is not a representation by us that the Transaction is a Valid Transaction. The Transaction may be subject to dispute or a Chargeback.
11.7 Invalid Transactions
Without limitation, a Transaction will not be valid and will therefore not be processed (“Invalid Transaction”) if:
(a) it or the circumstances giving rise to it are illegal under Australian or international laws or Scheme rules or requirements;
(b) the authority provided in respect of the Transaction is forged; the rightful Cardholder did not authorise the Transaction or the use of
the Card, or the Transaction is not signed where a signature is required;
(c) the Card is not current at the time of the Transaction (including, for example, where the Card has been lost, stolen or is otherwise
(d) the Transaction is not in connection with the provision of goods or services between you and the Cardholder;
(e) the Transaction is not in connection with the provision of goods or services to a genuine customer as part of your Business;
(f) it represents a transfer solely of funds rather than the supply of goods or services (e.g. a remittance of funds with no exchange of goods or services);
(g) it is a Refund and no corresponding sales Transaction exists for the Card on which the Refund is made or purported to be made;
(h) it is made in payment of wages or salary;
(i) a sales transaction is split into 2 (two) or more Transactions;
(j) you do not comply with your obligations under this Agreement, the User Guide or any other direction by us in relation to the Transaction; or
(k) we otherwise reasonably believe that the Transaction should not be processed.
12.1 Ensure sufficient account funds
You must ensure you have sufficient funds in your Smartpay Customer Account to meet your Refund obligations for all Refunds that you process.
12.2 Limit on Refunds
We may, in our sole and absolute discretion, limit the number of Refunds processed to the periodic aggregate funds that are processed by you through your Smartpay Customer Account.
12.3 Refund password
Each Terminal, comes with a refund password as a security measure. You must contact Smartpay to access your refund password. You are responsible for maintaining the confidentiality of the password and you must not share the password with any other party. You are responsible for all activities that occur under the password. You must immediately notify us at email@example.com of any unauthorised use of your password.
We may refuse to accept, or having accepted, may charge back (a “Chargeback”), any Transaction if:
(a) we, in our sole and absolute discretion, consider that the Transaction is an Invalid Transaction;
(b) we reasonably believe that you have not performed all obligations to a Cardholder (including providing any goods or services) in
respect of the applicable Transaction;
(c) the Transaction is illegal;
(d) the Cardholder disputes all or any part of its liability for any reason; or
(e) the Card was not valid at the time of the Transaction.
14. Merchant Surcharges
14.1 Smartcharge and Surcharge
If you have purchased the Smartcharge product, then in respect of all Transactions processed by you, an amount will be charged in addition to the price of the goods and services. This amount is referred to as a “Surcharge”. We process and collect the Surcharge and we credit it against the fees that we charge to you.
15. Promotional Material
15.1 We will supply promotional material
We will supply you with decals and insignias for the Cards that are accepted by the Smartpay Merchant Facility. We may supply you with other promotional material at our discretion.
15.2 What you must do
You agree to:
(a) prominently display, wherever reasonably directed by us, decals and other signs advertising the EFTPOS System and Cards;
(b) not use any advertising or promotional material relating to Cards or the EFTPOS System except as authorised by us;
(c) in all your marketing and communications (including on your websites, marketing materials, advertising and other customer communications) give all payment methods equal or substantially similar logo placement and treatment in terms of payment flow, terms, conditions, restrictions or fees;
(d) not influence or inhibit, or attempt to do so, a Cardholder’s decision in relation to the use of any payment method or encourage a Cardholder to use a particular payment method; and
(e) not mischaracterise, misrepresent or disparage any payment method or exhibit a preference for one or more payment methods.
15.3 Authority to use your name and Marks
You hereby authorise any third party with whom we provide integrated services to use your logo, name, address, phone number and merchant category in any directory of merchants participating in the relevant integrated services and you hereby grant such parties a non-transferable and non-exclusive licence to use your Marks for the purpose of identifying you as a merchant that accepts the relevant form of integrated payment and for offers or promotions by that third party.
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