Standard Merchant Services Agreement

In this document:

“Acquirer” means an entity, including a third-party entity, that may be utilised to source, facilitate, or provide an element of any Transaction contemplated under this Agreement.

“Agreement” means this agreement and any schedules and any other documents expressly incorporated by reference herein.

“API” means Merchant Warrior’s application programming interface which allows access to the Services.

“AML/CTF Laws” means:

(a) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth);

(b) Anti-Money Laundering and Counter-Terrorism Financing Rules 2006 (Cth); and

(c) Any guidance published by the Australian Transaction Reports and Analysis Centre

“Application Form” means the Merchant Warrior application form hosted by by MVSI (Managed Verification Services International). that has been completed and emailed to the Client.

“BECS” means the Bulk Electronic Clearance Scheme that governs how a range of bulk electronic transaction types are made between participants.

“Business Day” means a day which is not a Saturday, Sunday or bank or public holiday in Sydney, Australia.

“BPAY” means BPAY Pty Limited ABN 69 079 137 518 and/or Cardlink Services Ltd ABN 60 003 311 644.

“BPAY Transaction” means a transaction using the services of BPAY.

“BPAY View” means the system provided through which Merchant Warrior facilitates bills to be delivered directly to payers’ online banking platforms that allows payers to securely view and pay those bills.

“Card Scheme” means the MasterCard International and Visa International Services Association card schemes or any other card scheme provider that Merchant Warrior and the Client are members of or participate in.

“Card Scheme Rules” means the card scheme rules set by the Card Schemes from time to time.

“Change of Control” means:

(a) the person(s) who previously had Control of a party ceases to have Control of that party; or

(b) one or more persons acquire Control of the party.

“Chargeback” means any transaction made, or any fee incurred, on behalf of the Client that is required to be refunded for any reason. Such reasons may include, but are not limited to, fraud, failure, return, refund, fee, penalty, card scheme or other charge.

“Client” or “your” means the merchant specified in the Application Form.

“Client Schedule” means the schedule prepared and provided to the Client which details the services, pricing and other commercial terms that will apply to the provision of Services under this Agreement.

“Collateral” means all of the Client’s present and after-acquired, and other future, property which includes anything in respect of which the Client has at any time a sufficient interest or power to grant a Security Interest.

“Confidential Information” means, in relation to each party (for the purposes of this definition, each a Discloser), all information disclosed by or on behalf of the Discloser, concerning or relating to:

(a) The Application Form;

(b) The Client Schedule and any other fee and remuneration details in connection with this Agreement;

(c) Know-how, trade secrets, ideas, marketing strategies, operational information, technical information and financial information;

(d) Proprietary tools, business processes, project management methodologies and tools, testing and verification methods, solution architecture models and solutions;

(e) Its business affairs (including products, services, clients and suppliers);

(f) Any information which is marked as confidential, deemed as confidential or which would reasonably be considered as confidential having regard to:

(i) the nature of the information disclosed;

(ii) the circumstances in which the information was disclosed; or

(iii) the purpose for which the information was disclosed;

(g) information that would be of commercial value to any competitor of the Discloser or any if its Related Bodies Corporate or that, if disclosed, could cause harm to the Discloser Party or any if its Related Bodies Corporate;

(h) any information developed or created by a person which is based on, derived from, which includes or refers to, any of the information above,

but excludes any information which:

(i) Is, or becomes, publicly known, other than as a direct or indirect result of the information disclosed by the other party in breach of this Agreement;

(j) Disclosed to the other party without restriction by a third-party (other than the Discloser) and without any breach of confidentiality by that third party;

(k) Is developed independently by other party without reliance on any of the confidential information; or

(l) Was lawfully in the possession of the other party before the information was disclosed by the Discloser.

“Connected Institution” means a body corporate which is connected to the NPP Basic Infrastructure solely for the purpose of sending and receiving Non-Value Messages, and which may also be an Overlay Service Provider.

“Control” has the meaning given to it in the Corporations Act and, in addition, a person will also be taken to Control a trust if:

(a) The composition of the board of directors of any corporate trustee of the trust is or can be determined by the person (either alone or with its affiliates);

(b) The board of directors of any corporate trustee is accustomed to act in accordance with the instructions, directions or wishes of the person (either alone or with its affiliates); or

(c) The person holds (either alone or with its affiliates, and whether directly or indirectly):

(i) The majority of the issued voting shares of any corporate trustee of the trust;

(ii) The majority of the issued voting shares of the ultimate holding company of any corporate trustee of the trust; or

(iii) The majority of the units, securities or other rights granted by the trust entitling holders to distributions from the trust.

“Customer” means a customer of the Client who paid for any product or service provided by the Client using the Services under this Agreement.

“Data Breach” means any unauthorised access to, use of, viewing, extraction, copying, transmission or modification of Personal Information held by either party.

“Direct Debit Authorisation” means the authorisation the Client grants Merchant Warrior to deduct payments from the Client’s Nominated Fees Account pursuant to the Direct Debit Request services agreement, a copy of which is available upon request from Merchant Warrior.

“Effective Date” means the date of this Agreement or any other date specified in the Client Schedule.

“Event of Default” means the occurrence of any of the following:

(a) the Client fails to comply with any provision of this Agreement, including to pay the Secured Money;

(b) there is, in Merchant Warrior’s reasonable opinion, a Change of Control of the Client without Merchant Warrior’s prior consent;

(c) the Client disposes of the whole or any part of its assets, operations or business (in a single transaction or a series of transactions) without Merchant Warrior’s prior consent; or

(d) an Insolvency Event occurs in relation to the Client.

“Force Majeure” means any of the following events or occurrences provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps:

(a) Adverse changes in government regulations;

(b) Acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires or any natural disaster;

(c) A state of emergency declaration made by a Government, an epidemic or a global or national pandemic;

(d) War (declared or undeclared), invasion, act of a foreign enemy, act of terrorism, hostilities between nations, civil insurrection, or militarily usurped power;

(e) Acts of public enemies, sabotage, riots, civil commotion or unrest, malicious damage, sabotage or revolution;

(f) Confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint, or damage to property by or under the order of any government or government authority;

(g) Strikes or industrial disputes;

(h) Materials or labour shortage; and

(i) Acts or omissions of any third-party network providers (such as internet, telephony or power provider).

“Government Agency” means a government or any governmental, semi-governmental, legislative, administrative, fiscal, quasi-judicial or judicial entity, authority, regulator, department or other body, whether foreign, federal, State, Territorial or local (including any self-regulatory organisation established under statute or any stock exchange)

“Insolvency Event” means:

(a) Being an insolvent under administration or receivership (each as defined in the Corporations Act 2001 (Cth));

(b) Having a controller (as defined in the Corporations Act 2001 (Cth)) appointed;

(c) Any step being taken by a mortgagee to take possession, or dispose, of the whole or any part of a party’s assets, operations or business;

(d) Any step being taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator, a statutory manager or other like person in respect of the whole or any part of the party’s assets or business;

(e) Any step being taken which could result in being subject to any arrangement, assignment or composition, protected from creditors under any statute or dissolved (other than to carry out a reconstruction while solvent);

(f) Being otherwise unable to pay debts as and when they fall due; or

(g) Having something with the same or a similar effect happen under the laws of any jurisdiction; or

(h) Ceasing to carry on business.

“Intellectual Property Rights” means all present and future intellectual and industrial property rights conferred by law and wherever existing, including:

(a) Patents, designs, copyright, rights in circuit layouts, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

(b) Any application or right to apply for registration of any of these rights;

(c) Any registration of any of those rights or any registration of any application referred to in paragraph (b) of this definition; and

(d) All renewals and extensions of these rights.

“Interchange Party” means third-parties, including financial institutions, banks or credit unions that are involved in the processing and settlement of Transactions.

“Master Biller” means Merchant Warrior in its capacity as a ‘master biller’ with its suppliers for BPAY products.

“Merchant Warrior” means SR Global Solutions Pty Ltd ACN 132 951 172 trading as Merchant Warrior.

“Merchant Warrior Material” means any material and Intellectual Property Rights:

(a) Owned by Merchant Warrior or which Merchant Warrior has or acquires a license to use; and

“MSVI Link” means the link emailed to the Client which progresses the Client through onboarding and provides the Client with digital copies of all the documents that comprise the Agreement and enables the Client to agree to the terms of the Agreement.

“Nominated Fees Account” means the Client account where Merchant Warrior’s invoice amounts will be debited from.

“NPP” means the New Payments Platform which allows near real time transactions via independently developed overlay services that record additional data beyond the 18 characters offered by older systems.

“NPPA” means NPP Australia Limited that operates the NPP.

“NPP Basic Infrastructure” means the New Payments Platform comprising the network, switching and addressing infrastructure and systems developed by or on behalf of NPPA which: a) supports the exchange of Non-Value Messages between NPP Participants and Connected Institutions; and b) facilitates the clearing and settlement of NPP Payments between NPP Participants.

“NPP Daily Processing Limit” means the allocated daily amount of funds that Merchant Warrior may use to process a client’s NPP Payments. The ‘Client NPP Daily Processing Limit’ is set in consultation with the Client, based on the Client’s security with Cuscal or, if no security deposit is provided, any other factors Cuscal considers relevant (acting reasonably).

“NPP Participant” means a Full Participant, a Clearing Participant or a Settlement Participant as defined in the New Payments Platform Regulation (1 July 2017).

“NPP Participation Criteria” means the criteria as determined by Merchant Warrior or its NPP Service Provider from time to time for Merchant Warrior to provide the NPP Services to merchants.

“NPP Payment” means a payment cleared and settled via the NPP.

“NPP Regulations” means the rules prescribed by Merchant Warrior or its NPP Service Provider that establish the core obligations and rights between NPPA, NPP Participants, Connected Institutions and Overlay Service Providers, including, without limitation, the annexures and schedules to those regulations, as amended from time to time.

“NPP Services” means the Services to be provided by Merchant Warrior directly or indirectly via its NPP Service Provider under this Agreement.

“Osko” is an Overlay Service provided by BPAY comprising:

(a) Osko Service 1: NPP Payment (also known as ICS1);

(b) Osko Service 2: NPP Payment with Document (also known as ICS2); and

(c) Osko Service 3: Request and Pay (also known as ICS3).

“Overlay Service” means a payment service, or payment related service, that operates utilising the NPP Basic Infrastructure to provide added functionality to users or clients.

“Overlay Service Provider or OSP” means a person who is authorised by NPPA to provide an Overlay Service and includes Merchant Warrior and its associated suppliers.

“Overlay Service Subscriber or OS Subscriber”, in relation to an Overlay Service, means a subscriber to the Overlay Service and includes Merchant Warrior and its associated suppliers.

“Payment Card Industry Data Security Standards” (PCI DSS) means the standards issued and updated from time to time by the PCI Security Standards Council for the management of card not present transaction processing.

“Payto” is an Overlay Service which operate utilising the NPP service.

“Personnel” of a party means that party’s officers, employees, agents, consultants and contractors.

“Personal Information” has the meaning given to that term in section 6 of the Privacy Act 1988 (Cth).

“PCI Security Standards Council” means the entity involved in managing the Payment Card Industry Data Security Standards.

“Politically Exposed Person (PEP) Screening” means any initial screening and continued monitoring as required by law to identify, mitigate and manage any individual who holds a prominent public position or role in a government body or international organisation, either in Australia or overseas.

“PPS Security Interest” means a security interest under the PPSA.

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“Privacy Laws” means the Privacy Act 1988 (Cth) and all other applicable privacy laws, which regulate the collection, storage, use and disclosure of information, including the Australian Privacy Principles.

“Regulatory Body” means any regulatory body, entity, or authority with responsibility for the supervision or regulation of the business affairs and activities of the parties, and includes the Australian Transaction Reports and Analysis Centre, the Australian Securities & Investments Commission, the Office of the Australian Information Commissioner and the Australian Taxation Office.

“Related Body Corporate” has the meaning given to that term in the Corporations Act 2001 (Cth).

“Relevant Law” means any:

(a) Statute, ordinance, exemption, code or other law including regulations pursuant to them that apply to the Services, including but not limited to:

(i) the Corporations Act 2001 (Cth);

(ii) the Australian Securities and Investments Commission Act 2001 (Cth);

(iii) the Privacy Laws;

(iv) the Modern Slavery Act 2018 (Qld);

(v) the AML / CTF Laws;

(vi) Charter of the United Nations Act 1945 (Cth);

(vii) Autonomous Sanctions Act 2011 (Cth); and

(viii) any anti-bribery and anti-corruption Laws applicable to the parties including the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth)).

(b) Code of practice, practice notes, regulatory guides, guidelines, standards and rules;

(c) Card Scheme Rules;

(d) Relevant rules, regulations and procedures which regulate participating in payment schemes or associations including those imposed by Card Schemes, BPAY, NPPA, and EFTPOS, as amended from time to time.

“Reversal” means any reversal processed by Merchant Warrior in respect of a settlement of funds received by a Client from Transaction processed under this that the Client because:

(a) The settlement funds were sent to the Client in error by:

(i) Merchant Warrior or an Interchange Party; or

(ii) The processors or supplies of Merchant Warriors; or

(b) The sender of the payment did not have authorisation to send the payment (for example, the Customer accessed an account unlawfully to make a payment); or

(c) The Client received the payment for activities in breach of any term of this Agreement.

“Sanctions Screening” means initial screening and continued monitoring to identify if a company or person is named or subject to any country or thematic sanctions under law or is otherwise a high-risk customer having regard to any guidance published by a Regulatory Body.

“Schedule” means any schedule to this Agreement.

“Secured Money” means all amounts that are payable, owing but not payable, or that otherwise remain unpaid by the Client to Merchant Warrior under this Agreement.

“Security Deposit” means an amount of money paid by the Client to be held by Merchant Warrior to accommodate any contingent or actual liability on behalf of the Client including but not limited to any Chargeback, fraud, failure, return, refund, fee, penalty, Card Scheme or other charge.

“Security Interest” includes a PPS Security Interest, mortgage, pledge, lien, charge or any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property.

“Service Levels” are any service levels that apply to the provision of the Services as specified in the Client Schedule

“Services” means the provision of NPP Services, Overlay Services, BPAY Transactions, gateway processing facilities and/or data processing services for Transactions as specified in the Client Schedule.

“Service Provider” means providers of technology solutions that can integrate with the Cuscal NPP Solution.

“Sub-biller” means the Client in its capacity as ‘sub-biller’ who participates in BPAY Payments in accordance with this Biller Agreement.

“Settlement Bank Account” means the Client account where funds relating to Transactions processed under this Agreement will be credited or debited

“Term” has the meaning given in clause 7.

“Transaction” means a card transaction, an Internet transaction or any other payment transaction which is processed by Merchant Warrior as part of Services under this Agreement.

Unless the contrary intention appears, a reference in this Agreement to:

(a) (variation or replacement) a document (including this Agreement) includes any variation or replacement of it;

(b) (clauses) a clause, is a reference to a clause in this Agreement;

(c) (references to statutes) a statute, ordinance, code, or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(d) (law) law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws, regulations and other instruments under them, and consolidations, amendments, re-enactments, or replacements of any of them);

(e) (singular includes plural) the singular includes the plural and vice versa;

(f) (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;

(g) (executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors, and substitutes (including, persons taking by novation) and assigns;

(h) (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;

(i) (dollars) an amount of money is a reference to Australian dollars;

(j) (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day (i.e. from the next day);

(k) (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(l) (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind;

(m) (PPSA) each of the terms “financing statement’, “financing change statement” and “verification statement’ have the meaning given to them in the PPSA; and

(n) (Event of Default) an Event of Default is continuing or subsisting unless it has been remedied to the satisfaction of, or waived by, Merchant Warrior.

Headings are inserted for convenience only and do not affect the interpretation of this document.

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

The parties acknowledge and agree that this Agreement replaces any prior Agreement between the parties in relation to the provision of the Services, with such Agreement (s) deemed to be terminated, by the agreement of the parties, on and from the Commencement Date of this Agreement.

Your Agreement comprises the following document:

(a) Your Application Form;

(b) This Agreement;

(c) Your Client Schedule; and

(d) Your Direct Debit Authorisation.

If there is any inconsistency between competing parts or clauses of this Agreement, the Client Schedule prevails to the extent of the inconsistency. The parties must co-operate to clarify and resolve any inconsistency and record their clarification in writing as an amendment to this Agreement as soon as reasonably practicable.

(a) Merchant Warrior operates a payment processing service that allows the Client to receive and manage funds by utilising the Bulk Electronic Clearance System (BECS) and New Payment Platform (NPP) whether or not processed via a Card Scheme, EFTPOS or BPAY.

(b) The Client has agreed to acquire, and Merchant Warrior has agreed to supply, the relevant Services in accordance with the terms set out in this Agreement.

The Client acknowledges and agrees that:

(a) This Agreement commences once the Client signs it’s Client Schedule.

(b) Merchant Warrior is not required to provide the Services to the Client until the Client has met each of the following conditions:

(i) The Client has obtained any licence, registration or authorisation required under Relevant Law to carry on its business and meet its obligations under this Agreement;

(ii) That the Client has satisfied the necessary due diligence checks as notified in writing to the Client by Merchant Warrior (or itself or on behalf of another party) including for credit risk, regulatory compliance (including AML/CTF Laws), and data security purposes.

(iii) The Client has provided to Merchant Warrior any document, information or system access reasonably required by Merchant Warrior in connection with the provision of the Services in such form and substance as reasonably directed by Merchant Warrior;

(iv) Merchant Warrior has assessed information and material relating to the Client’s compliance with the matters above and Merchant Warrior has determined (acting reasonably), in its sole discretion, that it is appropriate to provide the Services to the Client;

(v) Any Interchange Party or sponsor that sponsor Merchant Warrior in relation to a payment system has approved Merchant Warrior providing the Services to the Client (if applicable); and

(vi) Any other conditions that the parties may agree in writing, including as set out in the Client Schedule.

(c) Cuscal Limited (ABN 95 087 822 455) (Cuscal) is the Acquirer of transactions for all merchant transactions processed through Merchant Warrior and that Merchant Warrior may use other Acquirers from time to time as notified in writing to the Client.

(d) Parts of the service may be provided by external Acquirers, suppliers, carriers or authorities, that are outside the control of Merchant Warrior.

Subject to this Agreement, Merchant Warrior will provide the following Services during the Term (subject to the terms in your Client Schedule):

(a) Giving the Client the capacity for receiving and managing funds by instructing Merchant Warrior including through the API, or other such methods in your Client Schedule or otherwise agreed by Merchant warrior and the Client in writing;

(b) Issuing the Client with unique client identifiers in the form of bank state branch (BSB) and account numbers which can be used to receive direct debit and direct credit transactions from Customer bank accounts;

(c) Issuing the Client with PayIDs for the purpose of facilitating NPP Payments;

(d) Providing PayTo Services;

(e) Facilitating the making and receipt of NPP Payments and BPAY Payments; and

(f) Issuing reports and statement relating to payment received and made by or to the Client.

The Client acknowledges and agrees that Merchant Warrior will only provide the Services under this Agreement if the Client complies with all compliance requirements, relevant guidelines and standards that Merchant Warrior (acting reasonably) notifies the Client from time to time (including any PCI DSS requirements).

The Client acknowledges and agrees that:

(a) Merchant Warrior will provide the Services in accordance with the Services Levels.

(b) Merchant Warrior relies on information provided by Interchange Parties to settle Transactions and Merchant Warrior is not, and cannot be held, liable if the information provided by any Interchange Parties contains any errors or is otherwise inaccurate. The parties agree to cooperate and use reasonable endeavours to correct any errors or inaccuracies in the information provided by Interchange Parties to settle Transactions as and when they occur.

(c) Merchant Warrior is not responsible for delays in the Transaction settlement processes caused by Interchange Parties’ systems being inoperable or communication links being down, or the relevant network or telecommunications connections being down.

(d) Merchant Warrior will seek to resolve any issues relating to access to, and use of, the Service and the distributions of funds arising from or in connection with any issues with an Interchange Party’s systems;

(e) The Client is responsible for providing access to the Services to its customers via its website or any other methods as agreed from time to time and for providing and managing all issues related to any products and services provided by the Client.

(a) Despite anything to the contrary in this Agreement, Merchant Warrior may, acting reasonably and to the extent reasonably necessary to protect its legitimate business interests:

(i) Refuse to accept, process or settle any Transaction if:

(A) The Transaction is invalid (or Merchant Warrior has reasonable grounds to believe a Transaction is invalid) in accordance with clause 5.4;

(B) Merchant Warrior is ordered to do so by any Government Agency or Regulatory Body under any Relevant Law;

(C) Merchant Warrior is aware, or has reasonable grounds to suspect, that processing any Transaction under this Agreement may cause Merchant Warrior to breach:

(1) breach any Relevant Law;

(2) commit, aid, abet or procedure an unlawful act; or

(3) breach any agreement with an Acquirer or Interchange Party.

(b) Refuse to deal in any way with a person that is subject to any sanctions or is connected in any way to any person that is subjection to any sanctions under the Relevant Law.

Client will be responsible for:

(a) Authorising Merchant Warrior to process instructions relating to paying and disbursing funds as required for the proper operation of the Services;

(b) Not reversing Transactions if the Transactions have been appropriately authorised and processed by Merchant Warrior;

(c) Providing Merchant Warrior (or its nominated Interchange Party or service providers) with all information and assistance as reasonably requested by Merchant Warrior (subject to providing reasonable notice) to enable Merchant Warrior to:

(i) provide the Services (including in respect of the recovery or tracing of monies for Transactions);

(ii) comply with its obligations under Agreements with its agreements with Acquirers or Interchange Parties; and

(iii) comply with Relevant Law.

(d) Authorising Merchant Warrior to share, retrieve or verify information about the Client’s identity, source of funds, and business through appropriate third-party service providers solely for the purpose of, and only to the extent necessary to enable, Merchant Warrior to provide the Services and comply with Relevant Law;

(e) Requiring all payments made in connection with its business to be denominated in AUD;

(f) Maintaining records of all Transactions initiated by Customers or the Client that contain the necessary details for Merchant Warrior to process or verify the veracity of the Transactions processed by Merchant Warrior under this Agreement for a period of seven years from the date of the Transaction and to make these records available to Merchant Warrior upon any reasonable request.

(g) Designating two members of Client's technical staff who shall be Client's representatives for contact with Merchant Warrior in relation to rectification of errors or malfunctions.

(h) Following instructions from Merchant Warrior regarding use, maintenance, development, upgrades, repairs, workarounds in connection with the API or necessary to maintain its PCI-DSS certification.

(i) Providing reasonable access to the Client's personnel and equipment during normal business hours to discuss and assess any problems and/or requests for assistance.

(a) The Client must:

(i) Provide Merchant Warrior with any information reasonable requested in relation to the Client’s Customers in connection with the provision of Services to the Client, subject to Merchant Warrior providing reasonable notice.

(ii) Ensure its Customers comply with any applicable laws in relation to the delivery of the product or service and Transactions including but not limited to participation in fraud, scams, money laundering and counter terrorism activities;

(iii) Notify Merchant Warrior within one (1) Business Day if the Client becomes aware or has formed reasonable suspicion that its Customers has breached the obligation in 5.2(ii)

(iv) If Merchant Warrior forms the view (acting reasonably) that a Customer has, or may have breached, or is likely to breach 5.2(a)(ii) then the Client undertakes to follow Merchant Warrior reasonable instructions in relation to obtaining any necessary information from the Customer to assist Merchant Warrior to make further inquiries (as necessary) and comply with the Relevant Law;

(v) In carrying out a review of a Customer, if required for the purposes of complying with AML/CTF Laws, the Client must have in place procedures to satisfy itself as to the identity, integrity, solvency and reliability of the Customer. The Client must keep proper records of any such activity; and

(vi) Use all reasonable endeavours to ensure that Customers comply with all instructions reasonably given by Merchant Warrior to the Client in connection with any Transactions processed under this Agreement.

(b) The Client acknowledges that it is responsible for all communications with its Customers, including:

(i) liaising with Customers and handling any inquiries from Customers regarding Transactions, including inquiries regarding debits or credits to Customer accounts;

(ii) liaising with Customers and, to the extent possible, resolving any discrepancies between the Client records and the Transaction records delivered to Merchant Warrior in physical or electronic format; and

(iii) responding to all other Customer queries in relation to the product or services provided by the Client and any Transactions processed in connection with the product or services provided by the Client;

(iv) providing Customers with any required invoices, receipts, statements or accounts relating to a Transaction;

(c) Where the Client is a reporting entity as defined in the AML/CTF Laws, or where instructed by Merchant Warrior, the Client must have in place the following procedures and provide copies of these processes together with any records of any checks, screens or due diligence conducted on a Customer in accordance with these process to Merchant Warrior upon reasonable request:

(i) any applicable Customer identification and verification procedures on the Customer;

(ii) any applicable sanctions and PEP screening procedures;

(iii) application of enhanced due diligence procedures for high-risk merchants.

(iv) continuing Customer due diligence procedures conducted for Customers as follows:

(A) High Risk - every 12 months;

(B) Medium Risk - every 2 years; and

(C) Low Risk - as may be required in light of any change to Customer details or Transaction activity.

(d) To the extent an Acquirer or Interchange Party require the Client to enter into any agreement or arrangement in connection with the Services the Client undertakes to do so on reasonable request by Merchant Warrant.

The Client must not process, or continue to process a Transaction:

(a) If to do so would result in the Transaction being processed through the Service more than once;

(b) If the Client is aware that the Service is not online or is not functionally normally;

(c) If the Client becomes aware, or forms a reasonable suspicion, that any of its or its Customers’ accounts are being used fraudulently or in contravention of any Relevant Law;

(d) Where to do so would result in a breach of any Relevant Law or the terms of this Agreement.

For the purposes of the Agreement, a Transaction is invalid if:

(a) It relates to, or is in furtherance of, a contravention of any Relevant Law;

(b) The authorisation of a Transaction (whether by a Customer or the Client) is obtained by fraud or deception, is unauthorised or otherwise illegal;

(c) The Transaction has not occurred is not contemplated by this Agreement.

Subject to this Agreement, either party must notify the other as soon as reasonably practicable if it reasonably suspects or if it becomes aware of:

(a) A breach, or attempted breach of the Client’s systems, data security or Relevant Law, which could impact the provision of the Services in any way;

(b) Any technical or operational error in relation to a Transaction or Services; or

(c) Any issue with the processing of Transactions.

The Client must notify Merchant Warrior of the following matters as soon as reasonably practicable and in any event within 5 Business days:

(a) any change to the Client’s full legal name, Australian Company Number, Australian Business Number, address, contact details or bank account details provided for the purposes of the Services;

(b) if there is any change in the direct or indirect beneficial ownership or control of the Client’s business or Change of Control;

(c) if the Client disposes of the whole or any part of its assets, operations or business(in a single transaction or a series of transactions);

(d) of any of the matters specified within in the definition of “Insolvency Event” apply to the Client; or

(e) the occurrence of an Event of Default.

(a) The Client must maintain a Settlement Bank Account and a Nominated Fees Account and advise Merchant Warrior of the details of those accounts.

(b) Merchant Warrior will settle the Client’s processed funds to the Settlement Bank Account(s).

(c) The Client will notify Merchant Warrior as soon as practicable if either of the Settlement Bank Account and a Nominated Fees Account details change.

In accordance with the Direct Debit Authorisation, Merchant Warrior may process any fees, charges and other amounts set out in clause 18 from the Nominated Fees Account.

(a) The Client Schedule will detail the Security Deposit requirements that will apply to the Client.

(b) In order to secure the due and punctual performance by the Client of the Client’s obligation to pay to Merchant Warrior the value of any Transaction involving Merchant Warrior making a payment to the Client, to the extent that the Transaction is not cleared or is subsequently reversed, cancelled, or required to be paid to some other person (including but not limited to any Chargebacks) under this Agreement, the Client:

(i) must pay to Merchant Warrior the Security Deposit as contemplated in the Client Schedule; and

(ii) grants a Security Interest over the Security Deposit in favour of Merchant Warrior.

(c) The Security Deposit will be held in an interest bearing account in Marchant Warrior’s name. The interest will be accumulated and added to the amount held as the Security Deposit. The Client will have no right to the Security Deposit until it is returned to the Client in accordance with clause 9.4.

(d) In assessing what Security Deposit requirements will apply to the Client, the Client acknowledges and agrees that:

(i) Merchant Warrior may review the Client’s operations in connection with the Services, risk profile of the Client, Transaction history, business activities and payment history from time to time; and

(ii) Merchant Warrior may request the Client to provide all reasonably necessary information to assist with the review of the Client’s operations.

(e) At any time, Merchant Warrior may review the Security Deposit requirements that apply to the Client having regard to the Client’s operations in connection with the Services, risk profile of the Client, Transaction history, business activities and payment history from time to time and change the amount of any Security Deposit required under this clause 6.3.

(f) If following a review under clause 6.3(c), Merchant Warrior is of the view (acting reasonably) that the Security Deposit requirements need to change , Merchant Warrior will provide the Client with 30 day’s written notice of any required change to the amount of the Security Deposit.

(g) Merchant Warrior may, at any time that an Event of Default is continuing, apply the Security Deposit (or any part thereof) in satisfaction of any Chargebacks.

(h) Merchant Warrior is entitled to recover the Secured Moneys, or any other money due and owing under this Agreement and damages for breach of any obligations without being limited to the Security Deposit.

As specified in the Client Schedule, the Client grants a Security Interest in its Collateral to Merchant Warrior to secure the payment of the Secured Moneys.

The Client:

(a) agrees:

(i) not to grant a Security Interest over the Collateral in favour of any other person; and

(ii) not to dispose, or part with possession, of any Collateral,

in each case, without Merchant Warrior’s consent;

(b) will (if relevant) cause each secured party in respect of any Security Interests existing over the Collateral on the date of this Agreement to enter into a priority deed in a form satisfactory to Merchant Warrior;

(c) irrevocably appoints each of Merchant Warrior’s directors and authorised officers jointly and severally as its attorney to execute and register any agreement or document to give effect to and enforce any Security Interest under this clause; and

(d) acknowledges and agrees that if an Event of Default occurs, Merchant Warrior may enter into possession of its Collateral, appoint a receiver and/or a receiver and manager over all or any of its Collateral and exercise any other powers conferred by law on secured parties, chargees or mortgagees, in addition to any other rights set out in clause 8 of this Agreement.

Notwithstanding any other provision of this Agreement or termination of this Agreement, Merchant Warrior is only required to release the Security Interests referred to in this clause if the Client’s obligation to pay the Secured Moneys is satisfied and in Merchant Warrior’s reasonable opinion:

(a) there is no prospect that money or damages will become owing (whether actually or contingently) to Merchant Warrior; and

(b) no payment towards the satisfaction of the obligation to pay the Secured Moneys is likely to be void, voidable or refundable under any applicable law (including any law relating to insolvency).

The Security Interests granted by the Client under this Agreement are a continuing security, despite any settlement of account or intermediate payment or the occurrence of any other thing and remain in full force and effect until all Security Interests have been discharged in full under clause 7.3.

(a) If an Event of Default occurs and is continuing, each Security Interest created, arising under or provided for by this Agreement will become enforceable.

(b) At any time after any Security Interest created, arising under or provided for by this Agreement becomes enforceable, Merchant Warrior may, following 5 days written notice, including an opportunity to pay any outstanding Secured Moneys, being provided to the Client (in addition to exercising any powers conferred by law upon a secured party or mortgagee):

(i) seize, take possession or control, or give up or re-take possession or control, of any Collateral or any part of that Collateral as often as Merchant Warrior chooses equal to the value of the Secured Moneys;

(ii) carry on or concur in carrying on any business;

(iii) obtain or manage income or revenue from any Collateral;

(iv) collect any book debts or monetary claims forming part of any Collateral or sell, factor or discount any of them on any terms Merchant Warrior thinks fit at fair market value;

(v) operate any bank account forming part of any Collateral and do all things necessary or desirable to obtain immediate repayment of any money credited to any bank account, and any interest payable on that money, without being responsible for any loss;

(vi) lease or license any Collateral to any person on fair market terms or special conditions as Merchant Warrior determines, acting reasonably, fit (and in conjunction with the sale, lease or license of any property by any other person) and deal with any existing lease or license (including by allowing a surrender or variation or by granting a renewal);

(vii) grant to any person an option to purchase any Collateral;

(viii) exercise any of the Client’s rights, powers and remedies over or in connection with the Collateral;

(ix) sell or concur in selling any Collateral to any person on fair market terms or special conditions as Merchant Warrior determines, acting reasonably, fit and whether by auction, private treaty or tender or in one lot or in separate parcels or in conjunction with the sale of any property by any other person, and for cash or for a deferred payment of the purchase price, in whole or in party, with or without interest or security;

(x) do anything to maintain, protect or improve any Collateral;

(xi) surrender or transfer any Collateral to any person or exchange any Collateral with any person for any other property for the Collateral’s fair market value;

(xii) employ or discharge any person as an employee, contractor, agent, professional adviser or auctioneer in connection with any of the powers conferred on Merchant Warrior under this Agreement or delegate any such power to any person;

(xiii) exercise or obtain the benefit of, or refrain from exercising or obtaining the benefit of, any right, power, authority, discretion or remedy of that we have which forms part of the Collateral;

(xiv) give effectual receipts for all moneys and other assets;

(xv) commence, discontinue, prosecute, defend, settle or compromise, in the Client’s name or in the name or on behalf of Merchant Warrior, and proceedings including proceedings in relation to any insurance policy;

(xvi) make any debtor bankrupt, wind up any corporation or other entity and do all things in relation to any bankruptcy or liquidation which Merchant Warrior think necessary or desirable to recover the Secured Moneys, including attending and voting at creditors’ meeting and appointing proxies for those meetings;

(xvii) make or accept any reasonable compromise or arrangement in respect of the Client or any Collateral;

(xviii) promote the formation of companies or other entities intended to purchase any Collateral or assume any of the Client’s obligations or for any other purpose for fair market value;

(xix) exercise any voting rights or powers in respect of any Collateral;

(xx) obtain registration of any Collateral in the Client’s name or the Client’s nominee;

(xxi) do anything incidental to any of the powers conferred on us under this clause;

(xxii) delegate to any person any powers conferred on us under this clause.

(c) Receiver

(i) At any time after any Security Interest created, arising under or provided for by this Agreement becomes enforceable, Merchant Warrior may appoint a person or persons as receiver and/or manager (Receiver) of the Client and/or any asset comprising the Collateral. Merchant Warrior may remove any Receiver and may appoint a new Receiver.

(ii) Any Receiver so appointed shall have power, in addition to any power conferred upon a receiver by law, to do any of the things set out in this clause 8 and shall have such further powers as Merchant Warrior may confer on the Receiver by notice in writing to the Receiver.

(iii) Any Receiver so appointed shall be the Client’s agent unless Merchant Warrior notifies the Client that the Receiver is to act as its agent. The Client is solely responsible for anything done or not done by the Receiver while the Receiver is its agent, and for the Receiver's remuneration.

(iv) Net proceeds received from the enforcement of Merchant Warrior’s rights under this clause shall be applied towards Merchant Warrior’s damages and losses for any Event of Default as well as costs and expenses of enforcement, the outgoings and remuneration of any Receiver and payment of any amounts that are payable, owing but not payable, or that otherwise remain unpaid by the Client to Merchant Warrior on any account at any time, in the order of priority that Merchant Warrior sees fit.

(v) The Client will, within 5 Business Days of demand, pay all of Merchant Warrior’s costs and expenses (including legal fees) and indemnify Merchant Warrior for any loss incurred by Merchant Warrior in connection with the enforcement of, or the preservation or consideration of any right or power under, the Security Interests granted under this Agreement.

9. TERM, TERMINATION AND SUSPENSION RIGHTS

This Agreement commences on the Effective Date and continues until terminated in accordance with this Agreement. (“Term”).

(a) The Client may terminate the Agreement by giving thirty (30) days’ notice if the Client receives a notice that Merchant Warrior will:

(i) Increase the fees or charges or introduce a new fee or charge under clause 18(c) and the Client does not agree to this;

(ii) Impose a Security Deposit or increase the amount of an existing Security Deposit under clause 6.3 and the Client does not accept this;

(iii) amend this Agreement (whether under clause 10 or otherwise) and such amendment will have or is likely to have a material adverse impact to the Client or its business acting reasonably.

(b) The Client can terminate this Agreement immediately by written notice to Merchant Warrior if:

(i) An Insolvency Event occurs in respect of Merchant Warrior; or

(ii) Merchant Warrior has breached a material term of this Agreement that is not capable of being remedied or which is capable of being remedied and Merchant Warrior has failed to remedy the breach within 20 Business Days.

Merchant Warrior may (acting reasonably) terminate this Agreement or suspend, delay or block the Client’s access to the Services (in full or part) immediately by written notice if:

(a) The Client has breached a material term of this Agreement that is not capable of being remedied or which is capable of being remedied and Merchant Warrior has failed to remedy the breach within 20 Business Days;

(b) The Client (or any of its Customers) is, or Merchant Warrior suspects may or is likely to be involved in any unauthorised, illegal act, fraud or dishonesty;

(c) If there is a Change of Control of the Client, except where the Client has given Merchant Warrior reasonable prior written notice of a Change of Control;

(d) Requested, directed or required to do so by a Government Agency, Regulatory Body or any Interchange Party;

(e) Either party is incapable of performing its obligations under this Agreement for a period of at least 20 continuous Business Days’ due to a Force Majeure Event.

(f) The Client breaches, or Merchant Warrior suspects the Client may, breach, any Relevant Law;

(g) A change in any Relevant Law or any agreement with an Acquirer or Interchange Party that prevents or impairs Merchant Warrior’s ability to provide, or prevents it providing, the Service;

(h) Any act or omission of the Client, or any of the Client’s Customers, that Merchant Warrior reasonably believes will cause a material risk to Merchant Warrior’s business, reputation or brand, or the Services that it provides; or

(i) An Insolvency Event occurs in respect to the Client.

(a) Any accrued rights or remedies of a party immediately before termination are not affected by termination.

(b) Upon termination of the Agreement, the Client must:

(i) not accept, instruct, or process any Transactions;

(ii) promptly remove any reference to Merchant Warrior in its interactions with its Customers and other third-parties;

(iii) Subject to retaining records as required by law, permanently destroy, or return to Merchant Warrior, any Merchant Warrior Material within 10 Business Days of the date of termination.

(c) Upon termination of the Agreement, Merchant Warrior will:

(i) Retain the Security Deposit for a period of 6 months after the last Transaction for the purposes of recouping any Chargebacks;

(ii) Deduct all outstanding fees or other amounts owing by the Client to Merchant Warrior at termination from the Nominated Fees Account;

(iii) Deduct any Chargebacks processed after termination from the Security Deposit; and

(iv) Pay to the Client the Security Deposit on expiry of the 6 month period specified in clause 9.4(c)(i) net any amounts deducted under clause 7.4(c)(iii)

(d) Upon termination, each party (“Required Party”) must as requested by any other party (“Requesting Party”), securely destroy or deliver to the Requesting Party (and not retain copies of) all Confidential Information of the Requesting Party and any other property of the Requesting Party relating to the terminated Services which are in the possession or control of the Required Party, except where the retention of copies of Confidential information is reasonably required to comply with Applicable or for compliance, taxation or record-keeping purposes in which case the confidentiality obligations under this Agreement continue to apply;

(e) Subject to Relevant Law and any requirements imposed by Acquirers or Interchange Parties, for a period of four (4) weeks (or such other period that Merchant Warrior and the Client may agree in writing) from the date of the termination of this Agreement, Merchant Warrior will assist the Client in transferring Customer information (including Direct Debit Authorisation) and migration of PayIDs (if applicable) from the Service to a replacement service nominated by the Client and each party will bear its own costs in relation to such activities.

(f) Upon termination of this Agreement for any reason each party (“Required Party”) must as requested by any other party (“Requesting Party”), securely destroy or deliver to the Requesting Party (and not retain copies of) all Confidential Information of the Requesting Party and any other property of the Requesting Party relating to the terminated Services which are in the possession or control of the Required Party.

Clauses 6.3, 7, 8, 12, 11, 9.4, 14, 15, 16, 24 and 26 survive termination of this Agreement.

10. COMPLIANCE WITH LAWS, GUIDELINES AND STANDARDS

Each party must comply with all Relevant Law.

(a) The Client must provide all information that Merchant Warrior reasonably requests in order to:

(i) comply with the AML / CTF Laws;

(ii) comply with any Relevant Law or any agreements with Acquirers or Interchange Parties; in relation to any Transaction or the Services; or

(iii) avoid any unlawful act.

(b) The Client acknowledges and agrees that Merchant Warrior may disclose any information concerning the Client, Transactions, Services or the Client’s Customers to any Government Agency, Regulatory Body, law enforcement agency, Card Scheme or court where required to do so under any Relevant Law.

(c) Where the Client is a Reporting Entity (as defined in the AML/CTF Act), the Client agrees to:

(i) provide Merchant Warrior with a copy of or access to its AML/CTF program for review;

(ii) be responsible for the collection and verification of all Customer identification information in accordance with the requirements of the AML/CTF Act.

(a) If there is any change (or proposed change) to any Relevant Law, or a request or direction from a Government Agency, Regulatory Body or any Interchange Party, Merchant Warrior reserves the right to amend this Agreement (as required) to comply with these changes.

(b) If the circumstances in clause 10.3(a) apply, then Merchant Warrior will:

(i) Notify the Client of the required changes as soon as practicable and, where possible, provide the Client with 20 Business Day’s prior notice; and

(ii) Give the Client reasonable time (to the extent possible) to implement any changes required as a result of Merchant Warrior amending the Agreement.

The parties acknowledge and agree that they will comply with any lawful request by a Government Agency, law enforcement agency, Regulatory Body, Card Schemes or PCI Security Standards Council in relation to the Services, and will provide:

(a) Access to their respective premises and documentation in relation to Transactions, the Services or this Agreement in compliance with such lawful request; and

(b) Reasonable assistance to the other party if required for the other party to comply with any such lawful request

11. Compliance Audits

(a) Subject to clause 11.1(b), Merchant Warrior, or a third party authorised by Merchant Warrior, may conduct an audit or review of the Client’s compliance with its obligations under the Agreement by giving the Client at least 20 Business Days’ prior written notice, not more than once in any 12-month period.

(b) If Merchant Warrior becomes aware or reasonably believes that the Client has or may have breached or is likely to breach any provision of this Agreement, or the Client has experienced a compromise of data on its system or websites, then Merchant Warrior may request an audit or review in addition to the annual audit or review under clause 11.1(a) by providing at least 20 Business Days’ written notice.

(c) If Merchant Warrior gives the Client notice of an audit, the Client must provide all reasonable assistance to Merchant Warrior in connection with the audit.

(d) Merchant Warrior may retain copies of records or information gathered during an audit or review conducted under this clause 11.1, which relate exclusively to this Agreement or the Services.

(e) Upon request. Merchant Warrior may disclose the outcome of an audit or review with any Government Agencies, Regulatory Bodies, Acquirers and Interchange Parties.

(f) Merchant Warrior must take all reasonable steps to ensure that any audit or review under clause 9.1 does not unreasonably interfere with the business of the Client.

(g) The Client will bear all costs in relation to such audit or review and associated remediation under this clause 11.

In the event that Merchant Warrior identifies a material issue or breach during the course of an audit ore review under this clause 11.1, the Client must:

(a) Take all reasonably necessary steps to remedy the material issue or breach in a competent and timely manner and as directed by Merchant Warrior; and

(b) If any action is required on Merchant Warrior’s part to remedy the breach, co-operate with Merchant Warrior to allow Merchant Warrior to implement any required remedial action.

(a) The Client must permit any Government Agencies, Regulatory Bodies, Acquirers and Interchange Parties access to its records relating to this Agreement and the Services.

(b) The Client must provide all reasonable assistance to any Government Agencies, Regulatory Bodies, Acquirers and Interchange Parties in connection with any audit or review.

(a) ensuring that each PPS Security Interest created, arising under or provided for by this Agreement is enforceable, attached, perfected, protected and otherwise effective;

(b) enabling Merchant Warrior to apply for any registration, or give any notification, in connection with each such PPS Security Interest so that that any PPS Security Interest is, and remains, fully effective and has the priority required by Merchant Warrior; and

(c) enabling Merchant Warrior to exercise rights in connection with each such PPS Security Interest.

(a) to the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and

(b) in addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137.

Merchant Warrior represents and warrants to the Client that:

(a) It has the skills, resources and expertise to provide the Services in accordance with this Agreement and the Client Schedule;

(b) It will provide the Services in accordance with this Agreement and any Relevant Law;

(c) All Personnel are duly qualified and experienced to provide the Services;

(d) It will not infringe the Intellectual Property Rights (including Moral Rights) or any person in providing the Services or otherwise performing this Agreement;

(e) There is no conflict of interest which may affect the provision of the Services under this Agreement;

(f) It holds all appropriate licences, certifications, registrations and authorisations and that it will keep informed of all Relevant Law that applies to the Services and Transactions; and

(g) The Service is provided ‘as is’ and Merchant Warrior makes no representation or warranty, express or implied, that the Service will meet the Client’s requirements or that the Service will be uninterrupted, timely or error free.

(a) The Client represents and warrants to Merchant Warrior that:

(i) The information provided to Merchant Warrior from time to time (including, in relation to Transactions) is true and complete when provided and, to the extent such information ceases to be true and complete, the Client will update Merchant Warrior as soon as practicable;

(ii) The Client is not aware of and has no reason to suspect that any Transaction contravenes Relevant Law;

(iii) It will comply with the associated compliance requirements in clause 4.2;

(iv) It will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded or downloaded by the Client from or to Merchant Warrior server(s) does not contain any virus and will not corrupt the data or systems of any person in any way;

(v) It will comply with Card Scheme Rules and Payment Card Industry Data Security Standards in facilitating, managing, or administering Transactions;

(vi) It will keep secure at all times all passwords and cryptographic keys used to access, process and download data from Merchant Warrior server(s);

(vii) It will follow all cryptographic key management procedures specified by Merchant Warrior;

(viii) It is solely responsible for persons accessing the Client’s website and any account functionality and must not refer complaints or inquiries in relation thereto to Merchant Warrior;

(ix) It will implement the required system connections in accordance with Merchant Warrior’s reasonable instructions;

(x) It will use the system connections or Services in the manner contemplated by the parties and in accordance with any instructions provided by Merchant Warrior; and

(xi) All information and details supplied by it to Merchant Warrior are true and correct in all material respects.

(b) The Client agrees and acknowledges that Merchant Warrior has agreed to provide the Services under the terms of this Agreement in absolute reliance of the Client’s representations and warranties made under this Agreement

(c) The Client must notify Merchant Warrior as soon as possible if any of the representations and warranties contained in the Agreement become incorrect or misleading in any respect.

Each party warrants that:

(a) If it is a corporate entity, it is validly existing under the laws of its place of incorporation;

(b) It has full power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement;

(c) It has taken all necessary action to authorise its entry into and performance of this Agreement and to carry out the transactions contemplated by this Agreement;

(d) The execution, delivery and performance by it of this Agreement does not and will not violate:

(i) any Relevant Law, authorisation, ruling, consent, judgment, order, official directive or decree of any Government Authority;

(ii) its constitution or other constituent documents; or

(iii) any encumbrance, undertaking or document which is binding upon it or on any of its assets; and

(e) Its obligations under this Agreement are validly binding and enforceable against it in accordance with their terms.

Each party undertakes to keep the Confidential Information of all other parties strictly confidential and to not use or disclose that Confidential Information except as permitted by this Agreement or otherwise agreed in writing.

(a) A party (“Recipient”) may only use the Confidential Information of another party (“Discloser”) for the purposes of performing its obligations or exercising its rights under this Agreement and must not disclose the Confidential Information of the Discloser to any person, except:

(i) to its Representatives or insurers, on a need to know and confidential basis;

(ii) with the prior written consent of the Discloser (such consent not to be unreasonably withheld); and

(iii) any disclosure required by law, order of any court or tribunal of competent jurisdiction, or any Government Agency, securities exchange or other Regulatory Body or administrative body that has the legal right to require disclosure (including APRA), provided that the Recipient:

(A) notifies the Discloser of any actual or anticipated disclosure requirement, unless it is prohibited from notifying this under any law or order or direction from a court, tribunal, Government Agency or Regulatory Body;

(B) unless immediate disclosure is required, consults with the Discloser to the extent reasonably practicable in relation to the disclosure; and

(C) to the extent reasonably practicable, takes such steps as the Discloser may reasonably request to permit the Discloser to have a reasonable opportunity to restrict the disclosure by lawful means.

(b) Each party that discloses Confidential Information of another party must ensure that such information is kept confidential by the recipients.

A party must not make any public announcements relating to this Agreement or the Services without the prior written consent of the other parties, unless required by law or any securities exchange.

(a) On request by a party, each other party must deliver to all documents or other materials containing or referring to the Confidential Information which is in the possession or under the control of the party to the other parties (as applicable).

(b) This obligation does not apply to Confidential Information that a party reasonably requires in order to perform its obligations under this Agreement to comply with Applicable Laws or which it is otherwise entitled to retain for taxation, statutory record-keeping, information technology or legal and compliance purposes.

(a) Each party must, and must ensure that its Personnel:

(i) comply with the Privacy Laws;

(ii) comply with any reasonable directions of either party which are consistent with the Privacy laws;

(iii) co operate with any reasonable enquiry, investigation or audit carried out by a party to this Agreement or a Regulatory Body in respect to each party’s compliance with the Privacy Laws.

(b) Without limiting the generality of 15.1(a)(i) Merchant Warrior will take all reasonable steps to comply with the requirements for cross border disclosures under the Privacy Act in its provision of the Services.

(a) If a party becomes aware, or suspects, that a Data Breach has occurred, that party must:

(i) notify the other party of the Data Breach as soon as practicable and provide any known information about the Data Breach;

(ii) if requested by the other party, provide all assistance reasonably requested to investigate the Data Breach.

(b) Nothing in this clause requires either party to provide to the other party any assistance which would breach any applicable laws or prevents or restricts either party from complying with its obligations under applicable Privacy Laws with respect to the Data Breach.

(a) Subject to clause 17.2 and 17.3, Merchant Warrior indemnifies the Client against all losses and claims (“Loss”) incurred by the Client, arising out of or in connection with:

(i) any death or injury to persons, and any loss or damage to the real or personal property of the Client or a third party, caused by any negligent or wrongful act or omission of Merchant Warrior or its Personnel;

(ii) any breach of clause 14 or 15 of this Agreement by Merchant Warrior or its Personnel;

(iii) any breach of the warranties in clause 13.1and 13.3, by Merchant Warrior; and

(iv) any negligent, fraudulent, wilful, unlawful or wrongful act or omission by Merchant Warrior or its Personnel.

(b) The indemnities in this clause are continuing obligations.

Subject to clause 17.2 and 17.3, the Client indemnifies Merchant Warrior against all losses and claims (“Loss”) incurred by Merchant Warrior, arising out of or in connection with:

(a) Any death or injury to persons, and any loss or damage to the real or personal property of Merchant Warrior or a third party, caused by any negligent or wrongful act or omission of the Client or its Personnel;

(b) Any breach of clause (confidentiality and Privacy) of this Agreement by the Client or its Personnel;

(c) Any breach of the warranties in clause 13.2 and 13.3, by the Client;

(d) Any negligent, fraudulent, wilful, unlawful or wrongful act or omission by the Client or its Personnel;

(e) A refusal by Merchant Warrior to make payment where the refusal arises as a result of Merchant Warrior exercising any of its rights or its obligations pursuant to the Agreement or in compliance with Relevant Law;

(f) A claim or demand of any kind against Merchant Warrior or its affiliates by the Client or its Customers or any other person (including an Interchange Party) arising from or relating in any way to a Transaction;

(g) The occurrence of any Event of Default;

(h) Any incorrect processing of a payment to or from an account operated by another financial institution caused by the acts, omissions, negligence or fraud on the Client’s part or that of its Customers including for the full amount of any funds credited or debited erroneously due to a failure by the Client to provide Merchant Warrior with notice of changed Account details.

(a) Each party’s liability under this Agreement will be:

(i) reduced proportionately to represent the share of responsibility that the party has for the Loss according to the extent to which the party’s (or its Personnel) breach of any provision of the Agreement or negligent, fraudulent, wilful, unlawful or wrongful act or omission caused or contributed to the Loss in the course of carrying out this Agreement; and

(ii) capped to a total aggregate financial liability of the total value of the Fees paid in the past 12 months under this Agreement for all claims for indemnification whether made under this Agreement or otherwise at law.

(b) Merchant Warrior is not liable to the Client or the Client’s Customers or third parties for any Loss incurred as a result of:

(i) A missing or erroneous payment made beyond the reasonable control of Merchant Warrior (including due to a failure by the Client to notify Merchant Warrior of correct and up-to-date account details);

(ii) Any process, computer failure or Service disruption beyond the control of Merchant Warrior;

(iii) An Interchange Party processing Transactions;

(iv) Any Reversal;

(v) Use of the Service by Customers;

(vi) Any illegal or fraudulent use of the Services by the Client or Customers; and

(vii) Any scheduled or unscheduled maintenance of the Services.

(c) Merchant Warrior does not assume any liability for the products or services purchased by the Client or the Client’s Customers using the Services.

(d) Merchant Warrior expressly disclaims any and all liability for any Losses suffered or incurred by the Client or the Client’s Customers or any third-party transacting on the Client’s or the Client’s Customer’s instructions.

To the maximum extent permitted by law and subject to clause 18, neither party will have any liability to the other for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), legal costs and expenses (except reasonable legal costs awarded by a court).

18. FEES, CHARGES AND OTHER AMOUNTS

(a) The Client must pay to Merchant Warrior:

(i) All services charges, fees and other costs as set out in the Client Schedule;

(ii) All government charges and taxes that apply;

(iii) The value of all Transactions where Merchant Warrior is instructed to process a payment to any person (including a Customer) on behalf of a Client;

(iv) The value of any Transaction involving Merchant Warrior making a payment to the Client, to the extent that the Transaction is not cleared or is subsequently reversed, cancelled, or required to be paid to some other person (including but not limited to any Chargebacks);

(v) The value of any duplicate payment or over credits in respect of Transactions due to (or contributed to by) acts, errors or omissions of the Client, except to the extent caused or contributed to by any breach of any provision of the Agreement or negligent, fraudulent, wilful, unlawful or wrongful act or omission by Merchant Warrior;

(vi) The amount (if any) paid by Merchant Warrior in connection with an invalid Transaction (as defined in clause 5.4 of this Agreement), except to the extent that the invalid Transaction is caused or contributed to by any breach of any provision of the Agreement or negligent, fraudulent, wilful, unlawful or wrongful act or omission by Merchant Warrior.

(vii) Any fees, fines or penalties that Merchant Warrior is required to pay to Interchange Parties as a direct or indirect result of the Client’s failure to observe its obligations under the Agreement, except to the extent caused or contributed to by any breach of any provision of the Agreement or negligent, fraudulent, wilful, unlawful or wrongful act or omission by Merchant Warrior.

(viii) Any fees payable in connection with any Transaction processed or that needs to be reversed by virtue of paragraphs (v) or (vi) above;

(ix) Any amounts that Merchant Warrior is required to pay to any Interchange Party on a pass through or cost recovery basis; or

(x) Any other money the Client owes Merchant Warrior under the Agreement.

(b) All charges, fees and other costs payable by the Client under this Agreement will be debited from the Nominated Fees Bank Account as contained the Client Schedule.

(c) The fees and charges referred to in the Client Schedule may be varied, and any new fee or charge may be introduced, by Merchant Warrior, provided that Merchant Warrior gives the Client at least thirty (30) days’ notice of variation. Any variations to the fees and charges referred to in clause 18 are deemed to be accepted if the Client continues to utilise the Services or does not cancel or terminate the Agreement.

Unless expressly stated otherwise in this Agreement or the Client Schedule, all amounts payable or consideration to be provided under this Agreement are exclusive of GST.

(a) If GST is payable on any supply made under this Agreement, for which the consideration is not expressly stated to include GST, the recipient agrees to pay to the supplier an additional amount equal to the GST payable at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. However, the recipient need not pay the additional amount until the supplier gives the recipient a tax invoice or an adjustment note.

(b) Any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an input tax credit.

For the purposes of this clause 19:

(a) A term which has a defined meaning in the GST Act has the same meaning when used in this clause;

(b) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and

(c) Each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies will be treated as though it is a separate supply.

(a) choosing a Third Party Software Provider;

(b) registering its Third Party Software Product Account;

(c) keeping its Third Party Software Product Account active;

(d) ensuring its Third Party Software Product Account is up to date and accurate; and

(e) the payment of any Third Party Software Product fees to the provider of the Third Party Software Product in connection with use of that Third Party Software Product.

Any notice given under this Agreement (Notice) must be in writing and may be delivered by hand, by mail, or by email to the address of a party set out in the Application Form or alternate address as may be advised by the other party from time to time.

Notice will be taken to have been given by a party to the other:

(a) If by hand, on written acknowledgment of receipt by an authorised employee, agent or representative of the receiving party;

(b) If by mail, 3 Business Days after the date of mailing within Australia or 10 Business Days after the date of mailing overseas; and

(c) If by email, immediately upon delivery of email, unless a ‘bounce back’ notice is received by the sender

(a) No party may assign, transfer, novate, encumber, or otherwise deal with all or part of its rights or obligations under this Agreement without the prior written consent of all other parties.

(b) Any purported assignment, transfer, novation, or other dealing with the rights under this Agreement that does not comply with this clause (a) is void and has no effect and is a material breach of this Agreement.

(c) .

(a) A party must not make any public announcements relating to this Agreement or the Services without the prior written consent of the other parties, unless required by law or any securities exchange.

Each party acknowledges that nothing in this Agreement affects the ownership of a party’s Intellectual Property Rights

Merchant Warrior grants (and to the extent required will procure that relevant third parties grant) to the Client a limited, revocable, non-exclusive, non-transferable, non-assignable and royalty-free licence for the Term to:

(a) Access and use the Services provided under this Agreement from time to time;

(b) Display Merchant Warrior’s name, trademark and logo on the Client’s interface,

to the extent necessary to enable the Client to perform its obligations and exercise its rights under this Agreement.

The Client grants (and to the extent required will procure that any relevant third parties grant) to Merchant Warrior a revocable, non-exclusive, non-transferable, royalty-free and limited licence for the Term to copy, publish and display the Client’s trademark, name, logo, documentation, materials or any relevant Intellectual Property Rights to the extent necessary to enable Merchant Warrior to perform its obligations and exercise its rights under this Agreement.

Each party must:

(a) Not represent itself as the owner of or having any interest in any other party’s Intellectual Property Rights;

(b) Not use or allow the use of any of the other parties Intellectual Property Rights in a manner that is contrary to or conflicts with or in any way damages the title or interest of that other party in its Intellectual Property;

(c) Do all acts and things reasonably required by any other party (“Relevant Party”) to defend the Relevant Party’s Intellectual Property Rights including the provision of any evidence required by the Relevant Party for use in the preparation or conduct of any proceedings relating to unauthorised use or infringement of another party’s Intellectual Property Rights;

(d) Not challenge or call into question in any way the right, title, interest or goodwill of any other party in respect of its Intellectual Property Rights;

(e) Not register or attempt to register under the provisions of any statute or otherwise the Intellectual Property Rights of any other party;

(f) Not to combine or use the other party’s trademark in combination with any other name, mark or trade mark;

(g) Not modify, reverse engineer, make a copy of or exploit in any way any other party’s Intellectual Property Rights for any purpose; and

(h) Do all other acts and things that may be reasonably required by any other party (“Relevant Party”) to protect that Relevant Party’s Intellectual Property Rights.

(a) A party does not breach this Agreement and is not liable to the other party for a delay or failure to perform an obligation to the extent it results from a Force Majeure Event.

(b) The party affected by the Force Majeure Event must notify the other party of the Force Majeure Event as soon as reasonably practicable and must take all reasonable steps to limit the effects of the Force Majeure Event, including to continue providing any Services not impacted by the Force Majeure Event.

(c) Nothing in this clause affects a party’s obligation to pay any monies due to the other party under this Agreement.

A party may not commence court or arbitration proceedings in relation to a dispute arising in connection with this Agreement (other than for proceedings for interlocutory relief) until it has complied with this clause 26.

Either party may give written notice of a dispute to the other party (“Dispute Notice”). A party giving a Dispute Notice must provide details of the history and circumstances of the dispute and give reasons for why the party is disputing the issue

Following the issue of a Dispute Notice:

(a) The dispute will be referred to the parties’ respective representatives who will attempt to settle the dispute within 10 Business Day of the referral.

(b) If the dispute remains unresolved after a further 10 Business Days (or such other period as is agreed), the parties may agree to refer the dispute to mediation or other form of alternative dispute resolution

If the parties agree to refer a dispute to mediation, the mediation will be administered by the Australian Disputes Centre (“ADC”) and will be conducted in accordance with the ADC Guidelines for Commercial Mediation in force at the time the matter is referred to the ADC. Each party to mediation is permitted to have legal representation at the mediation. The costs and expenses of the mediation and any venue for the mediation must be shared equally between the parties in dispute or as other agreed in writing

Each party must continue to perform its obligations under this Agreement, notwithstanding the existence of a dispute.

This Agreement and its Schedules are governed by and will be construed in accordance with the laws applicable in the State of Queensland.

Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

Nothing contained in this Agreement or otherwise will be deemed to create any partnership, joint venture, employment, or relationship of principal and agent between the parties or any of their affiliates, subsidiaries, related business entities, agents, contractors or subcontractors or to provide either party with any right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.

If the whole or any part of a provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable in a jurisdiction, it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable for that jurisdiction and the remaining provisions of this Agreement and the remainder of such provision shall continue in full force and effect.

This Agreement may be executed in several counterparts, each of which will be deemed to be an original, and all of which, when taken together, will constitute one and the same instrument. This Agreement may consist of a number of copies, each signed by one or more parties to the Agreement. If so, the signed copies are treated as making up the one document.

(a) Merchant Warrior reserves the right to change, amend, modify, add or delete any of the terms of this Agreement at any time.

(b) Merchant Warrior will provide the Client 30 days’ prior notice if any change made under clause 31(a) is adverse to the Client or its Customer or increases any of the Client’s obligations under this Agreement.

(c) Merchant Warrior will notify the Client of any change made under clause 31(a) within 14 days of the change being made if the change is not adverse to the Client or its Customer or increase any of the Client’s obligations under this Agreement.

(d) Merchant Warrior may also give the Client a shorter notice period (or no notice) of an unfavourable change if it is reasonable for us to manage a material and immediate risk.

(e) Merchant Warrior will email a current copy of this Agreement to the Client.

(a) A provision of this Agreement or a right created under it, may not be varied or waived except in writing, signed by the party or parties to be bound.

(b) A failure or delay of any party to this Agreement to enforce a right or remedy under this Agreement does not waive the right or remedy.