Merchant Terms of Service Agreement

Parties

1. Payment Initiator “You or Your” – Merchant

And

2. Company “Us or We”

Name: Split Payments Pty Ltd
ABN: 61 604 057 598*
Address: 3/66 Centennial Circuit, Byron Bay 2478, NSW
Telephone: 1300 611 406
Email [email protected]

Terms

1 Platform and Platform Payment Services

1.1 You/Payment Initiator appoint Split Payments (or “Company”) as provider of the Company’s Platform and Platform Services on the terms of the Account Sign Up Page and these merchant terms of service (“Agreement”).

1.2 This Agreement commences on the date the Account Sign Up page is submitted by You and You are notified that the Account Sign Up has been verified and is acceptable to Split Payments and continues until the Agreement is terminated in accordance with Clause 13.

1.3 Split Payments may at its sole discretion, notify You that further information is required in order to provide the Company’s Platform and Platform Payment Services. If Split Payments provides such notice, this Agreement will commence from the date that the requirements as set out in the notice have been satisfied and Split Payments is satisfied (in its sole discretion) with all further information provided by You, if You choose not to return the requested information in the Notice within 14 days this Agreement will be terminated.

1.4 Notwithstanding any other provision in this Agreement, Split Payments may, in its absolute discretion provide You with limited Services (including, without limitation, suspending services).

1.5 This Agreement is a binding legal agreement by and between the Company and the Payment Initiator, (together with its affiliates, subsidiaries and divisions) and sets out the terms and conditions which will govern the use of the Platform and supply and delivery of the Platform Payment Services.

1.6 Split Payments agrees to provide access and use of the Platform and to supply the Platform Payment Services to the Payment Initiator and its Customers in accordance with this Agreement.

1.7 For the avoidance of doubt, the Payment Application does not include any matter, act or thing connected or involved in the actual supply of goods or services to or by Your Customers which may directly or indirectly involve the Platform, all of which is Your responsibility and You confirm your legal obligations and associated liability in this respect.

1.8 You acknowledge that only Customers, who have been approved to hold a registered Account with Us and have entered into a Consumer User Contract, may use the Platform and receive the Platform Payment Service.

2 Fees

2.1 All fees in clause 2.2 are exclusive of GST.

2.2 From the commencement of this Agreement until it is terminated in accordance with clause 13, it is acknowledged by You that, as consideration for use of the Platform and supply of the Platform Payment Services:

(a) You shall be liable to pay the Company a Fee which is calculated and incurred per Transaction on a weekly basis in accordance with the standard pricing below on the basis of volume regardless of the type of Transaction as follows:

Pricing p/Transaction
Direct Debit (BECS) 1% of Transaction Value with AU$0.20 floor
NPP AU$2.50
Direct Credit : AU$0.55
Refund AU$2.00
Dispute Fees AU$15

(b) You must pay the Fee to the Company for use of the Platform by You and Your Customers and the supply of the Platform Payment Services;

(c) for the avoidance of doubt, the payment of the Fee will be in the form of a cumulative Transaction Fee charged on each Transaction undertaken in accordance with the schedule in this clause 2.2.

(d) The above Fees are the standard Fees and will be applicable unless agreed otherwise in writing with Split Payments.

2.3 For the avoidance of doubt no fee is payable by the Payment Initiator for or in connection with the authorisation of any Consumer User Contract.

3 Billing

3.1 As soon as practicable after the end of each week, the Company will issue to the Payment Initiator a Tax Invoice for the use of the Platform and supply of the Payment Services provided during the previous week for all Transactions initiated by all Consumer Users in accordance with the Fees in clause 2.2.

3.2 The Payment Initiator is liable to pay the amount specified in each Tax Invoice by the due date of the invoice and acknowledges that the payment arrangement in clause 3.4 will apply and is authorised to occur under the terms of the arrangements the Company has with Consumer Users under the Consumer User Contract, as a condition of use of the Platform.

3.3 Payment of the amount specified in a Tax Invoice is not contingent upon the receipt of any fees charged by You and the Fee is payable as a debt due to the Company by You within 7 days from the date of the Tax Invoice.

3.4 The Company is authorised to deduct any Authorised Deductions and any other amounts owed to Us, including:

(a) any costs we have had to incur relating to Transactions where we have paid out a refund or the underlying payment Transaction has otherwise been reversed;
(b) additional fees payable for any other Transactions or for additional payment services as agreed between the Parties;
(c) any unauthorised or incorrectly executed payment Transactions notified to us by a Consumer User, plus any related interest and charges.

3.5 If we cannot deduct the Fees, Transaction Fees or any Authorised Deductions from payments due to You, we may issue an invoice to You for those amounts, and such amounts will be immediately due and payable.

4 Direct Debit Settlement Period

4.1 The settlement period is the standard default 72-hour settlement period.

4.2 The Payment Initiator acknowledges that in the event of a late dishonour after the Company has settled a Transaction, the Company will:

(a) recoup all settled funds
(b) notify the Payment Initiator of all dishonours and reversals.

4.3 The Payment Initiator acknowledges that it will be responsible and solely liable for rectifying any error or omission in relation to a Transaction on the Platform including an instruction to return funds, reversal, funds settled in error or without authorisation and You waive any right to make any Claim against the Company for any amounts or liability associated with the Transaction error or omission in this regard howsoever it is caused, occurs or arises (other than wilful negligence by the Company).

5 Payout Settlement Period

5.1 The Company will settle payouts to recipients within 24 hours if the Consumer User has signed up using our Instant Account Verification, and there is a successful connection to the nominated bank account. You acknowledge that it is the responsibility of the Consumer User to notify the Company of any changes to the online banking Credentials. The Company acknowledges that this notification may come via the Payment Initiator.

6 Account Verification

6.1 The Payment Initiator is responsible for Account Verification for each Merchant User that is a Customer.

6.2 It is acknowledged by the Payment Initiator that the Company has approved each Consumer User in accordance with its Instant Account Verification process as a condition precedent to the provision of the Platform Payments Services and the engagement or ‘on boarding’ of Consumer Users is subject to the following further conditions:

(a) the Consumer User validly executing the Company’s DDR and DDRSA;
(b) the Payment Initiator must record the acceptance of the DDR by each Consumer User and store it for 7 years.
(c) the Payment Initiator must display and record the acceptance of the Terms and Conditions;
(d) in the event of a claim (dispute) the Payment Initiator must be able to provide evidence of acceptance of the DDR, DDRSA and Terms and Conditions along with any supporting documentation within 48 business hours if they wish to dispute a claim.

6.2 The Company may at its discretion, request proof of compliance with clause 7.1 and 7.2 and the Payment Initiator agrees to comply with any request as soon as practicable.

7. Conditions Precedent

7.1 The provision of the Platform and Platform Payment Services by the Company to the Payment Initiator is subject to the following conditions precedent:

(a) the Payment Initiator is required to go live and utilise the Company’s Platform and Platform Payment Services within 14 days of this Agreement, unless otherwise agreed by the Parties.
(b) the Payment initiator acknowledges that the Company will allocate resources to assist with its integration and that timing is of the essence considering the Company’s other projects and pricing in clause 2 which has been agreed on this basis;

8 Obligations of Payment Initiator

8.1 The Payment Initiator must:

(a) do all things necessary to facilitate the Account Verification process for each of its Customers which is satisfactory to the Company;
(b) comply with any Specifications issued by The Company;
(c) take reasonable steps to ensure that all Customers and Consumer Users do not do anything which will result in a Claim being brought against the Company or will breach any criminal or civil law or use the Platform in a manner which facilitates, causes or results in anything illegal or any of the things that constitutes ‘Restricted Activities’.
(d) ensure that, except as expressly provided in this Agreement or with Our consent, no part of the Material is copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means;
(e) ensure that all reasonable efforts are made to prevent unauthorised third parties from accessing or utilising the Platform;
(f) to use commercially reasonable efforts to monitor and take action to decrease the likelihood of Restricted Activity or Unauthorised Activity and to comply with all applicable laws and regulations.

8.2 The Payment Initiator acknowledges and agrees that:

(a) it will provide accurate information and reasonable assistance to the Company in relation to the use and delivery of the Platform and Platform Payment Services;
(b) it is solely responsible for providing support and related services to its Customers for all issues relating to the supply of goods or services, including (but not limited to) all issues arising from the Platform;
(c) it waives any right to make any Claim against the Company for any amounts or liability associated with a Transaction error or omission howsoever it was caused, occurs or arises;
(d) with respect to Transactions, it will be acting as the Payment Initiator and You acknowledge and agree to the application of the Terms and Conditions to the supply of the Platform and delivery of the Platform Payment Services;
(e) it hereby authorises to share, retrieve, and verify information and data concerning the Payment Initiator through its third party suppliers, to the extent required to provide the Platform Payment Services;
(f) any information owned or controlled by it or collected by the Company in connection with the delivery of the Platform Payment Services shall be subject to the terms of this Agreement, including the provisions governing Data Security (clause 14);
(g) it will provide to the Company such information and data regarding Customers and Consumer Users, as is necessary for us to establish accounts, comply with applicable laws and payment industry rules or standards or as otherwise reasonably necessary for the Company to provide the Platform Payment Services; and
(h) it will promote the Platform Payment Services and Platform in accordance with the Company’s in- product guide, as notified to You in writing, and any guidelines, unless the Company has explicitly waived this obligation, in writing to You

9 Terms and Conditions

9.1 This Agreement is to be read in conjunction with and supplements the Terms and Conditions.

9.2 To the extent that this Agreement conflicts with the Terms and Conditions, this Agreement shall take precedence over the Terms and Conditions in accordance with clause 23.

9.3 It is acknowledged that the Company will enter into a Consumer User Contract and associated DDRSA and DDR, which shall govern the use of the Platform and shall not otherwise be affected or modified by any agreement entered into between the Payment Initiator and Consumer User unless such modification is expressly authorised by the Consumer User (e.g. changes to facility limits or repayment schedules which may alter the repayment amount under the DDRSA and DDR).

9.4 You acknowledge that Your Customers have entered into a Consumer User Contract under which the Company agrees to provide the Platform Payment Services to collect payments and that all rights of the Customer are able to be enforced by the Company against You as if You were the Consumer User on the basis of the authority given to the Company under the Terms and Conditions and without Your consent.

10 Variation to Terms and Conditions

10.1 You agree that:

(a) the Company may vary or add to the Terms and Conditions and may change, remove, or insert conditions governing the use of any feature or element of the Platform by giving seven (7) days’ prior notice to You, such notice may be given on any website we own or maintain and through which we provide services related to this Agreement;
(b) by continuing to use or provide the Platform, and unless You notify Us otherwise before the date of any proposed change, You will be deemed to have accepted any such changes.

11 Change of Control

11.1 Change of location or ownership or the name of the Consumer User does not absolve You of any responsibilities or obligations You may have under this Agreement or the Consumer User Contract.

12 Termination of Contract

12.1 Either party may terminate this Agreement:

(a) in the event of a material breach of the terms or an obligation under this Agreement by the other Party which cannot be rectified within 30 days of being notified (such notice and remediation period only being required if a remedy of the breach is feasible);
(b) upon 180 days’ notice for any reason.

12.2 The Company may terminate this Agreement with immediate effect:

(a) if the Payment Initiator is the subject of any Insolvency Event;
(b) if any activity or conduct occurs which constitutes a material risk to the Company or is contrary to or in conflict with an Authorised Activity;
(c) if You or any person has undertaken or facilitated a Restricted Activity or Unauthorised Activity or We have reasonable grounds to suspect Restricted Activities or Unauthorised Activity has or may have taken place;
(d) if, following a review by the Company we consider in our reasonable opinion, that the Platform is not compliant with any law or regulation and which may materially affect delivery of the Platform Payment Services or affect Our compliance with any law or regulation;
(e) if the Company determines, in Our absolute and sole discretion, that the use of the Platform or supply of the Platform Payment Services presents an unacceptable risk to us (including, but not limited to, fraud, chargeback or other risk, data protection risk, or we if are unable to successfully verify an Account);
(f) if a right of termination otherwise accrues to the Company.

12.3 Subject to clause 9.3, the Payment Initiator acknowledges that:

(a) any cancellation or request to cancel the Consumer User Contract and Platform Payment Services does not require Your consent nor can it be initiated by You and must be made directly by or between the Company and the Consumer User;
(b) the Company will effect cancellation of the Consumer User Contract and Platform Payment Services upon being instructed or directed by the Consumer User to do so, in accordance with the Consumer User Contract;
(c) the relevant period of notice of cancellation of the Consumer User Contract will be determined by the Consumer User, the Consumer User Contract or the DDRSA, whichever is applicable;
(d) it is the responsibility of the Consumer User to contact the Company if they have not received written confirmation of the cancellation of the Consumer User Contract within the period of notice specified in accordance with clause 13.4(c) ;
(e) You shall not treat Consumer User Contract as cancelled until such time as it has been notified of the cancellation by the Company;
(f) cancellation of the Consumer User Contract will immediately terminate any relevant DDR and DDRSA; and
(g) each of the Payment Initiator, the Company and the Consumer User may hold reciprocal rights of termination for a material breach of any term or condition of the Consumer User Contract.

13 Data Security

13.1 The Payment Initiator must:

(a) take all reasonable steps to keep the Credentials safe, confidential and to prevent fraudulent use of the Credentials;
(b) inform the Company without undue delay upon becoming aware of the loss, theft, misappropriation or unauthorised use or disclosure of the Credentials.

13.2 Each Party is responsible for ensuring data security for all data and Confidential Information of the other Party acquired or otherwise in its possession, custody or control during the provision of Platform Payment Services under this Agreement.

13.3 Each Party agrees to comply and ensure continuing compliance with all applicable laws and regulations, including but not limited to Data Protection Laws in respect of the information and data referred to in this clause 14.

14 Law Enforcement and Other Demands

14.1 The Company will not in any way be liable to the Payment Initiator or any other party, whether for indirect or direct losses or otherwise, as a result of our compliance with any Legal Process Request.

14.2 We may deliver funds, data or information relating to or deriving from use of the Platform or supply of the Platform Payment Services where required to do so by or in connection with a Legal Process Request.

15 Suspected Fraud and Illegal Activity

15.1 You must notify the Company, as soon as reasonably practicable, if You become aware of any fraudulent, Restricted Activity or other illegal activity on the part of a Consumer User or other party (including, without limitation, money laundering or terrorist financing) by emailing the Company at [email protected] or by phone using the contact details provided on the Site.

15.2 If the Company suspects that any use of the Platform Payment Services or Platform or Consumer User Account is fraudulent, is not authorised, is in violation of this Agreement, a law or regulation, or the Terms and Conditions or is likely to expose either, or any other party to harm, or that you are facilitating any similar activity or outcome, reserve the right to:

(a) immediately terminate the relevant party’s use of the Platform or the Platform Payment Services;
(b) not process any underlying Transaction, and if the Transaction has already been processed, to reverse it if possible to do so, and/or to advise a Consumer User or to claim such funds back resulting in a chargeback for which the relevant Consumer User would be liable.

15.3 In addition, the Payment Initiator grants to the Company permission to provide any law enforcement, government or similar agency or body with information about the Platform, any Consumer User, underlying Transactions and any other information or data we hold about these matters, if we suspect that anyone is issuing or enabling use of the Platform or Platform Payment Services in such a way as to facilitate the type of activity or outcomes described in clause 15.2.

16 Trade Marks and Intellectual Property

16.1 All digital and Intellectual Property:

(a) in or connected with the Platform and the Payment Platform Services;
(b) developed by the Company for the purposes of, in connection with or derived from this Agreement;
is and remains the exclusive property of the Company.

16.2 Any Platform Material and any associated Intellectual Property of the Company or connected with or derived from Platform Material, is and remains the property of the Company and nothing in this Agreement otherwise grants to any other individual or entity any Intellectual Property rights in the Platform Material.

16.3 All Intellectual Property in the Marks including that protected by, without limitation, copyright, design right, patents, trade secret and other laws, is and remains the property of the Company and the Payment Initiator agrees to use the Marks in accordance with any guidance and instructions issued by the Company.

16.4 The Payment Initiator shall:

(a) comply strictly with the directions of the Company regarding the form and manner of the application of its Marks;
(b) where applicable, not do or fail to do any act or thing whereby the validity, enforceability or ownership of the trade mark registrations for the Marks, or the reputation or goodwill associated with the Marks, is likely to be prejudiced;
(c) use commercially reasonable endeavours to promote the Platform or Platform Payment Services;
(d) ensure that Your advertising, marketing and promotion of the Platform Payment Services shall in no way reduce or diminish the reputation, image and prestige of the Company, its Marks, the Platform or the Payment Platform Services;
(e) send to the Company, for its prior written approval, the text and layout of all proposed marketing materials for use in connection with the Platform Payment Services and the Payment Initiator shall not issue any marketing materials incorporating or referencing the Platform Payment Services or Platform unless it has obtained the prior written approval from the Company;
(f) obtain the prior written consent by of the Company and check statutory preference services, where applicable, before sending unsolicited direct marketing communications relating to the Platform Payment Services as required by applicable privacy and Data Protection Laws.

16.5 The Payment Initiator shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with a breach of the provisions of this Agreement relating to Marks and Intellectual Property.

17 Force Majeure and Interruption

17.1 Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.

18 General Warranties

18.1 The Company warrants that the Platform Payment Services will be provided in a workmanlike and professional manner and will conform with all specifications agreed between the Parties and will be provided in compliance with all laws and regulations applicable to the Platform Payment Services.

18.2 Other than the representations and warranties set out in this Agreement, the Company makes no representations or warranties, express or implied, regarding whether the Platform or Platform Payment Services will meet the requirements of the Payment Initiator or that it will be uninterrupted, timely or error free.

18.3 The Payment Initiator agrees and warrants that:

(a) it will comply with its obligations under this Agreement, including, but not limited to, all those relating to obtaining access to Consumer User Data and the prohibition of any Unauthorised Activity;
(b) it does and will comply with all applicable laws and regulations and holds all necessary licences and authorisations;
(c) it does and will comply with Data Protection Laws;(d) all and any Instructions, information, documents, advice, records or data which the Payment Initiator provides to Us, directly or indirectly is true, accurate and complete;
(e) it will not and will ensure other parties using the Platform do not undertake any Restricted Activity; and
(f) its respective Intellectual Property, Marks, and Material is owned by or licensed by it and does not infringe any Intellectual Property Rights of a third party.

18.4 To the extent permitted by law, the Company will not be liable for injury, loss or damage claimed by the Payment Initiator against the Company or by a third party against the Company arising out of the Platform or Platform Payment Services or its use or arising out of any deprivation of service or down time and the Payment Initiator agrees to indemnify the Company against any such Claim in connection with or arising from those circumstances.
18.5 In no event will the Company be liable for any act or omission of any third party, including but not limited to a financial institution, any payment system, any third party service provider, any provider of telecommunications services, internet access or computer equipment or software, any payment or clearing house system or for any circumstances beyond our control including a Force Majeure Event.

19 Liability

19.1 To the extent permitted by law, the Company hereby excludes any liability to the Payment Initiator in contract, tort, statute or in any other way for any injury, damage or loss of any kind whatsoever (including, without limitation, any liability for direct, indirect, special or consequential loss or damage), sustained by the Payment Initiator and/or any other person, or for any costs, charges or expenses incurred by the Payment Initiator, arising from or in connection with this Agreement, Consumer User Contract and/or the Platform and Platform Payment Services, and/or any act or omission of the Company.

19.2 All conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Platform and/or the Platform Payment Services are excluded to the extent permitted by law.

19.3 The Company is not responsible and expressly disclaims all liability for:

(a) the acts or omissions of or relating to the Platform in providing the Platform Payment Services to You or Your Customers, or for any non-compliance by the Platform with the terms of this this Agreement or the Terms and Conditions;
(b) Your obligations to Your Customers in respect of which you are solely responsible and this may include other services or actions not related to the Platform or Platform Payment Services;
(c) any loss, damage or consequences of any Unauthorised Activity or Restricted Activity howsoever occurring;
(d) any loss, damage, claim, expense or cost or consequences arising from fraudulent activity or conduct; or
(e) any loss, damage, claim, expense or cost or consequences if you have, with intent or gross negligence, failed to comply with Your obligations under this Agreement.

19.4 You agree to indemnify and hold harmless the Company, its employees, agents and assigns, from and against any cause of action, damage, loss or liability arising directly or indirectly, out of or relating to or in connection with:

(a) any dispute between You and the Consumer User or a third party including disputes in relation to any activity on the Platform, including Authorised Activity;
(b) any failure by You to comply with any covenant, condition or agreement with Us, or applicable law or regulation;
(c) any intentional misrepresentation or material breach by You of the representations and warranties in this Agreement;
(d) any negligence or wilful/intentional misconduct by You or Your representatives;
(e) any claim by You or any other person or third party regarding any Transaction to the extent including but not limited to the Platform or Platform Payment Services; and
(f) any Claim by any Customer or relating to your failure to comply with your legal or contractual obligations to your Customers, howsoever it occurs or arises.

20 Notices

20.1 All notices or other communications required to be given to a Party under or in connection with this Agreement may either be sent by e-mail or by post to an address or number used for such communications by that Party.

20.2 The Company may also provide You with communications, disclosures or notices relating to the Platform and Platform Payment Services and relating to this Agreement using its website or posting such notices to Your email address.

20.3 Electronic notices have the same meaning and effect as a paper copy.

20.4 Any notice or other communication shall be deemed to have been duly received:

(a) in the case of e-mails, on the same day as the email is sent with no failure notice; and
(b) in the case of post, being registered express mail or equivalent, the next Business Day following the notice being sent.

21 Dispute Resolution

21.1 Application

(a) This clause 21 applies to any Dispute which arises between the Parties in connection with this Agreement.
(b) Subject to clauses 21.5 and 21.6, a Party must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with the provisions of this clause 21.
(c) Notwithstanding any other provision in this clause 21, the Parties may otherwise agree to vary the time period referred to in each sub-clause, if they each consider that, in the circumstances, such variation is reasonably necessary to resolve a Dispute and provided that both Parties agree to the variation in writing.

21.2 Discussions

(a) If a Party considers that a Dispute has arisen, it may issue a written Dispute Notice to the other Party, setting out reasonable particulars of the matter in dispute.
(b) The Parties must promptly hold good faith discussions between a nominated director or equivalent officer or executive of each Party after issue of a Dispute Notice to attempt to resolve the Dispute, and must (subject to any applicable privilege) furnish to the other Party all information with respect to the Dispute which is appropriate in connection with its resolution.
(c) If the Dispute has not been resolved within 5 Business Days or a longer period as agreed between the Parties after commencement of discussions which must be commenced within 5 Business Days from the date on which the Dispute Notice is given, the parties must refer the Dispute to mediation.

21.3 Mediation

(a) If the Parties are unable to agree on any suitably qualified and independent mediator within 5 Business Days after the failure of discussions under clause 21.2, the Parties must request the Australian Disputes Centre (“ADC”) to appoint a mediator.

(b) If the Parties are unable to agree within 5 Business Days of the appointment of the mediator to rules to govern the mediation, the ADC’s mediation rules and guidelines will apply. To the extent that there is any inconsistency between those rules and guidelines and this clause, the provisions of this clause 21.3(b) prevails.

21.4 Unresolved disputes

If the Dispute is not resolved within 20 Business Days after the appointment of the mediator, either Party may pursue its rights and remedies under this Agreement as it sees fit.

21.5 Continued performance

(a) Except where the Dispute renders it impossible to do so, the Parties will continue performing their respective obligations under this Agreement while a Dispute is being resolved, unless and until such obligations are terminated or expire in accordance with this Agreement.
(b) Each Party must use its reasonable endeavours to ensure that where a Dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to ensure that there is a minimum adverse effect on the ability of either party to perform its obligations under this Agreement.

21.6 Interlocutory relief

Notwithstanding anything in this clause 21, a Party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with this Agreement where that Party seeks urgent interlocutory relief.

22 Entire Agreement

22.1 This Agreement, Terms and Conditions, DDR and DDRSA constitute the entire agreement, understanding and arrangement (express and implied) between You, the Consumer User and the Company relating to the Platform and the Platform Payment Services and supersedes and cancels any previous agreement, understanding and arrangement relating to the same, whether written or oral.

22.2 Subject to clause 22.3, in the event of any inconsistency or a conflict between the term(s) of:

(a) Terms and Conditions;
(b) the Consumer User Contract; or
(c) this Agreement,

then the terms of this Agreement will prevail.

22.3 In the event of an inconsistency or conflict of the nature described in clause 22.2, where such inconsistent term(s) specifically relate to the rights and obligations of the Consumer User in relation to a particular Transaction, the particular Consumer User’s access to the Platform, the operation of their Account and their use of the Platform Payment Services, other than the right to unilaterally vary fees payable, then the terms(s) of the Consumer User Contract which specifically relate to the rights and obligations of the Consumer User will prevail only to the extent of such inconsistency.

22.4 If any provision of this Agreement is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from this Agreement.

22.5 Nothing in this clause 22 alters, voids or diminishes any rights which the Company may have under the Consumer User Contract.

23 General Terms and Conditions

23.1 No Partnership, Trust or Fiduciary Relationship

Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership, trust or fiduciary relationship or joint venture of any kind between any of the Parties nor, unless expressly provided in this Agreement, constitute any party as the agent of another Party for any purpose.
23.2 You are responsible for complying with any contractual or other relationship you have with your Customer and we are not party to that arrangement or liable in any way in respect of your compliance with any agreement between You and the Merchant or your Customer.

23.3 Representations

Each Party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement and except in the case of fraudulent misrepresentation, no Party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

23.4 Waiver

A waiver of any right under this Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

23.5 Rights Cumulative

Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights otherwise provided by law.

23.6 Assignment

You may not assign or attempt to assign this Agreement without our prior express consent which may be withheld or subject to conditions as determined by us in our absolute discretion.

23.7 Severance

If a court or any other competent authority determines that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

23.8 Survival

Sections 12 (Termination), 13 (Data Security), 16 (Trade Marks and Intellectual Property), 14 (Law Enforcement and Other Demands), 18 (General Warranties), 19 (Liability), and all provisions giving rise to continuing obligations will survive termination of this Agreement.

23.9 Governing Law

This Agreement and all disputes or claims arising out of or in connection with it (including any non-contractual disputes), and any obligation arising out of or in connection with it, shall be governed by and construed in accordance with the laws of New South Wales. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

23.10 Reference to a Party

Any reference to a party in this Agreement includes, and any obligation or benefit under this Agreement will bind or take effect for the benefit of, that party’s executors, trustees, administrators, successors in title and permitted assigns.

23.11 Duty and Legal Fees

Each Party will bear its own legal and other costs and expenses relating to this Agreement.

23.12 Amendments to be in Writing

No amendment to this Agreement has any legal force and effect unless it is in writing.

23.13 Joint and Several

An obligation of two or more persons under this Agreement binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of this Agreement will endure for the benefit of those persons jointly and severally.

 

DEFINITIONS

The following definitions shall apply to this Agreement:

Account means a Consumer User Account owned by a Consumer User which has been approved by the Company for the purposes of using the Platform.

Account Verification means the process of verifying that a new or existing bank account is owned and operated by a specified real individual or organisation. This includes completing all Know Your Customer (KYC), Anti-Money Laundering (AML) and Counter-Terrorism Financing (CTF) checks required by law.

Agreement means this Merchant Terms of Service Agreement.

AML/CTF Act means Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), as amended.

Authorised Deductions means any amounts owed to the Company under this Agreement and described in clause 3.5.

Average Transaction Value means the average value of each individual Transaction in Australian dollars which the Payment Initiator warrants will be processed through the Payment Platform.

Business Day means between 9:00am and 5:00pm on Monday to Friday excluding public holidays in Sydney, New South Wales.

Claim means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

Company means Split Payments Pty Ltd (also referred to as ‘Our’, ‘We’ or ‘Us’).

Confidential Information means in respect of a Party, information that:

(a) is by its nature confidential;
(b) is designated by the disclosing party as confidential; or
(c) the other party knows or ought to know is confidential; and includes, without limitation:
(i) any personal information of an individual;
(ii) information comprised in or relating to any Intellectual Property of the party;
(iii) information relating to the party’s business, financial position, operations or affairs;
(iv) information relating to the party’s personnel, policies and strategies; and
(v) the terms of this Agreement.

Consumer User means a Consumer that:

(a) has connected their Consumer Account to the Platform using the authentication method provided by the Company;
(b) has entered into a DDR, DDRSA and Consumer User Contract.

Consumer User Account means an Account of a Consumer User

Consumer User Contract means the terms agreed between the Company and the Consumer User which is constituted by the Terms and Conditions, DDR and DDRSA.

Credentials means any passwords, access tokens or other details used by a Consumer User to access the Platform and includes information relating to an Account and Personal Information under the Data Protection Laws.

Customer means a Consumer User who is a customer of the Payment Initiator who utilises the Platform.

Data means any Transaction, Account or other details, information or data belonging or related to a Consumer User including information about an Account.

Data Protection Laws means, collectively, any Australian privacy and data legislation and any applicable replacement laws or regulations as may be in force, from time to time the Privacy Act 1988 (Cth), Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and any applicable Commonwealth, State or Territory privacy-related legislation, or any rules, regulations or guidelines relating to the collection, storage and use of Personal Information or the handling and storage of personal and financial data of Lenders, Users and Customers and where relevant, Card Payment Information, including the PCI Standards.

DDR means a direct debit authority executed by a Consumer User for the purposes of the Platform to authorise Transaction activity.

DDRSA means a direct debit services agreement executed by a Consumer User for the purposes of the Platform to authorise Transaction activity.

Dispute means a dispute in connection with or in relation to this Agreement and notified under clause 26.

Dispute Notice means a notice of a Dispute issued pursuant to clause 25 and complying with the provisions of clause 26.

Expert means a qualified professional with relevant skills and experience necessary to make a determination in the circumstances as agreed between the Parties.

Fee means the fee payable by the Payment Initiator to the Company for use of the Platform and the supply of the Platform Payment Services in accordance with clause 1. For the avoidance of doubt, subject to the terms of this Agreement, all other fees paid by the Payment Initiator are excluded from this definition.

Force Majeure Event means an event beyond the reasonable control of the affected Party, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of that Party or any other Party), failure of a utility service or transport network, act of God, war, riot, civil commotion, strike, malicious damage, compliance with any law or governmental order, rule, regulation or direction, act of civil or military authority, accident, breakdown of plant or machinery, computer virus, infiltration or hacking by a third party or failure or interruption of electrical, telecommunications or other utility services, fire, flood, storm or other natural disaster or default of suppliers or subcontractors.

GST has the meaning given to it in the A New Tax System (Goods and Services) Act 1999 (Cth) (‘GST Law’), and unless the context requires otherwise, the expressions “GST”, “Input Tax Credit”, “Recipient”, “Supply”, “Tax Invoice” and “Taxable Supply” have the meanings given to those expressions in the GST Law.

Guidelines means Split Payments conditions with regard to the depiction of the Marks, which can be found at http://help.split.cash as may be updated from time to time.

Instant Account Verification means the process of verifying that a new or existing bank account is owned and operated by a specified real individual or organisation.

Insolvency Event means any of the following events:

(a) a Party, being an individual, commits an act of bankruptcy;
(b) a Party becomes insolvent;
(c) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to a Party or a party enters into a scheme of arrangement with its creditors or is wound up;
(d) a Party assigns any of its property for the benefit of creditors or any class of them;
(e) an encumbrance takes any step towards taking possession or takes possession of any assets of a Party or exercises any power of sale; or
(f) a Party has a judgment or order given against it in an amount exceeding $10,000 (or the equivalent in another currency) and that judgment or order is not satisfied or quashed or stayed within 20 Business Days after being given.

Integration Period means the period agreed by the parties during which integration will occur.

Intellectual Property means all industrial and intellectual property rights both in Australia and throughout the world and for the duration of the rights including:

(a) any patents, utility models, copyrights, registered or unregistered trademarks or service marks, trade names, brand names, indications of source or appellations of origin, eligible layout rights, registered designs and commercial names and designations; and
(b) any trade secret, know-how, Confidential Information and scientific, technical and product information.
Intellectual Property Rights means all intellectual property rights, whether or not such rights are registered or capable of being registered, including but not limited to, the following:
(a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks), and domain names;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere;

Legal Process Request means any demand, order, request or legal instrument from any government, law enforcement or similar agency.

Marks means the trade marks, ‘get up’, brands and marks of the Company (as the context requires) and as otherwise communicated by one Party to the other from time to time.

Material means advertising and/or promotional material relating to the Platform Payment Services including without limitation and without limiting the generality of the foregoing, any website, emails, banners, posters, videos, blog posts and press releases.
Party or Parties means each of the Company and the Payment Initiator, as applicable.

Platform Payment Services means the services provided by the Company to the Payment Initiator and its Customers incorporates the Platform and facilitates acceptance of payment requests and the initiation and processing of Transactions.

Platform means the application programming interface and any software, systems, and/or communication links furnished by the Company which is used by a Consumer User for facilitating payments Transactions.

Platform Material means the Platform and all material generated or derived from it including but not limited to material, product, information, documentation or other deliverables owned by, proprietary to or controlled by the Company.

PCI Standards mean an approved version of the Payment Card Industry Data Security Standards.

Personal Information means information, data or an opinion with the meaning of the term ‘personal information’ as defined in the Privacy Act 1988

Restricted Activity means illegal or unlawful activity on the part of or involving a Consumer User or the Payment Initiator including, without limitation, money laundering or terrorist financing or inappropriate services as defined in the Guidelines for Establishing Direct Debit Requests Electronically or by Telephone issued by the Australian Payments Network as amended from time to time or any activity the Company deems, at its sole discretion, to be a Restricted Activity.

Site means the website and/or applications operated by the Company.

Specifications means any guidelines and specification issued by the Company relating to the processing of a Transaction and the issue, receipt and execution of an Instruction.

Taxable Supply means any supply made under or in connection with this Agreement which constitutes a taxable supply as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).

Terms and Conditions means the terms and conditions applying to a Consumer User registered to use the Platform and set out at https://www.splitpayments.com.au/terms/

Transaction means the initiation or processing of a credit or debit payment between a payment initiator, Consumer User and/or a payment recipient.

Transaction Fee means any fees charged for the use the Platform and supply of Platform Payment Services relating to a Transaction and includes a fee charged in respect of each Transaction as set out in clause 2.2.

Unauthorised Activity means any of:

(a) an act or conduct which involves negligence, fraud, wilful misconduct, default, act or omission, breach of statutory duty and/or that of your employees, officers, directors, subcontractors or consultants; and
(b) any event, bug or other software or security issue arising out of your systems, code, development or security processes, which potentially or actually may result in any cause of action, costs, damage, loss or liability affecting or for which the Company may otherwise potentially or actually incur liability, or any Transactions or refunds (as applicable) being initiated or duplicated in the absence of the Consumer User’s express permission, authority or instruction;
(c) any Restricted Activity; and
(d) any activity which is not authorised by a Consumer User, not otherwise permitted or not in compliance with a Consumer User’s instruction or direction.