In this document:
means an entity, including a third party entity, that may be utilised to source, facilitate, or provide an element of the transaction.
means the terms and conditions of this Agreement and any Schedules attached to this Agreement, and any other documents expressly incorporated by reference herein.
means an Australian Financial Services Licence.
means as a representative of another body being a bank, aggregator or provider who may or may not have an Australian Financial Services Licence.
means a day which is not a Saturday, Sunday or bank or public holiday in Brisbane.
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.
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.
means the nominated bank account of the Client.
means the data processing system comprising the hardware, software and telecommunication network utilised by the Client including any third party systems connected to Client’s hardware, software and telecommunication network.
means the customer of the Client.
of a party means all information (regardless of the form of disclosure or the medium used to store or represent it) which is treated by one party as confidential or is confidential by its nature and includes information about a party’s finances, strategies, management or business operations, pricing, clients, potential clients, suppliers, security, technical data, drawings, designs, software, tapes, inventions, developments, processes, technology information, targeting methods and the terms of this Agreement, but excludes information:
that a party creates (whether alone or jointly with any person) independently of the other party’s Confidential Information; or
that is public knowledge (and has become so otherwise than as a result of a breach of confidentiality of the other party’s Confidential Information or of any other obligation of confidence).
that is known to a party before it received it and is not subject to an existing obligation of confidence between the parties; or
that is provided to a party by a third party who is not under an obligation of confidence in respect of the information.
“Related Body Corporate”
has the meaning given to it in s.50 of the Corporations Act 2001
means the date of this Agreement.
means an Electronic Funds Transfer between a Customer and a Client or Merchant Warrior.
means an event beyond the reasonable control of a party which results in such party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include (but shall not be limited to):
acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
power or telecommunications failure or any variation in the steady supply of same, which are not caused by the acts or omissions of a party; but shall not include a lack of funds and the payment of monies from one party to the other will be deemed to be within reasonable control of the party required to pay.
means the provision of a digital path between a Client and a Customer’s respective financial authority used to transmit financial and transactional data.
means an event by which a party is:
placed in or under receivership, receivership and management, liquidation or official management or administration;
wound up or a resolution is made for the winding-up;
made subject to any arrangement, assignment or composition (otherwise than as a result of voluntary corporate reconstruction); or
subject to any other event that has similar effect to any of the events described in (a) to (e) in this definition.
“Letter of Offer” (LOO)
means the letter which in association with these terms details the pricing, services deliverable, and other obligations.
“Payment Card Industry Data Security Standards”
means the standards issued and updated from time to time by Visa and MasterCard for the management of card not present transaction processing.
of a party means that party’s officers, employees, agents, consultants and contractors.
means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion, collected by either party in the course of the operation, management and administration of this Agreement.
means the prices outlined in the Letter of Offer (LOO).
“Politically Exposed Person (PEP) Screening”
means screening to see if a politically exposed person is connected to a company. PEP screening may include immediate family members, close business associates, or senior executives of State Owned Enterprises (SOE).
means screening to see if a company has been sanctioned or issued a penalty for failure to comply with an Order of the Court, law or other relevant regulation.
means a schedule to this Agreement.
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.
are the service levels for the Services specified in Schedule 1 (Service Levels)
means the provision of gateway processing facilities and/or data processing services for Transactions coupled with the Service Levels specified in Schedule 1 (Service Levels)
as updated from time to time.
is the period of time from the initiation of the transaction with the Customer until the credit of funds from or on behalf of the Customer into the Client’s account. A Settlement Period may also relate to a Chargeback, in which case it is the time from the initiating Chargeback until deduction of the Chargeback amount from a Client Account. Settlement Periods are specified in the LOO.
has the meaning given in clause 6.
means the technical operating system of Merchant Warrior through which it provides Services.
means an error in the coding or configuration of the System of Merchant Warrior which arises as a result of update, release, modification, or maintenance to the System.
has the meaning given in clause 2.2.
means a card transaction, an Internet transaction or any other payment transaction which is the subject of the Services provided to the Client by Merchant Warrior.
means an entity, including a third party entity, involved in the processing of a transaction.
Unless expressed to the contrary, in this document:
words in the singular include the plural and vice versa;
any gender includes the other genders;
if a word or phrase is defined its other grammatical forms have corresponding meanings;
“includes” means includes without limitation;
no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; and
a reference to:
- a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
- a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
- any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced from time to time; and
- an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation.
- a right includes a benefit, remedy, discretion or power;
- time is to local time in Brisbane;
- “$” or “dollars” is a reference to Australian currency;
- this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties;
- writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes fax transmissions;
- this document includes all schedules; and
- a clause, schedule or annexure is a reference to a clause, schedule or annexure, as the case may be, of this document; and
- where time is to be calculated by reference to a day or event, that day or the day of that event is excluded.
Headings do not affect the interpretation of this document.
2 SERVICES AND TERM
2.1 Provision of Services
(a) The Client acknowledges that Cuscal Limited (ABN 95 087 822 455) (Cuscal) is the acquirer of transactions for all merchant transactions processed through Merchant Warrior.
(b) Merchant Warrior agrees to provide the Services to the Client in accordance with this Agreement. The Client expressly acknowledges parts of the service may be provided by external acquirers, suppliers, carriers or authorities, and are outside the control of Merchant Warrior.
(c) The Client acknowledges that Merchant Warrior will hold funds in their account for a period of time until deposited into the Client Account. Such total time as is from the initiation of the transaction until deposit (or in the case of a Chargeback, or a deduction) to the Client Account is the Settlement Period. As part of the Settlement Period, Merchant Warrior may hold funds from valid transactions for the purposes of security, pending Chargebacks or other reasons for a period as stated in Schedule 3.
(d) The Client acknowledges that Merchant Warrior may deduct monies from the amounts held during the Settlement Period for any liability arising under this Agreement. The Client also acknowledges that in the event of an act of fraud, Merchant Warrior may extend the Settlement Period indefinitely until such time as the cause or source can be identified and any related risk negated to Merchant Warrior’s sole satisfaction.
2.2 Term of Agreement
This Agreement commences on the Effective Date and continues in force and effect unless terminated earlier pursuant to this Agreement (“Term”).
2.3 Client Obligations
In relation to EFT, the Client acknowledges that it is responsible for its own Customer relationships, including compliance with all obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (referred to in Section 4 of this Agreement), this includes (but is not limited to) the on-boarding due diligence process, Know Your Customer (KYC) identification which consists of:
- Collection of merchant business registration documents, specifically including ASIC certification;
- Collection of ID documentation of beneficial owners, directors, and verification by way of:
- Presentation of original certified identity documents;
- Conduct of Sanctions and PEP screening,
- Application of enhanced due diligence for high risk merchants.
- Continuing customer due diligence utilising a risk-based assessment process where the Client determines the customer risk as follows:
- High Risk - every 12 months;
- Medium Risk - every 2 years; and
- Low Risk - as may be required, especially in the event of (e.g.) change in company ownership.
The Client acknowledges that it is responsible for all communications with its Customers, including:
- liaising with Customers and handling any inquiries from Customers regarding Transactions, including inquiries regarding debits or credits to Customer Accounts;
- liaising with Customers and, to the extent possible, resolving any discrepancies between the Transaction records delivered to Merchant Warrior in physical or electronic format; and
- responding to all other Customer queries;
- providing Customers with any required statements or accounts relating to the Transaction;
- undertaking any required initial and ongoing credit review of or risk analysis in relation to customers, in compliance with this Agreement;
- managing the Client Customer’s account including merchant service fees and any other fees agreed between the Client and their Customers; and
- assisting in the facilitation of Merchant Settlement into a Merchant Settlement Account in accordance with this Agreement.
The Client will use all reasonable endeavours to ensure that Customers comply with all instructions reasonably given by Merchant Warrior for the purposes of delivery of the Service pursuant to this Agreement.
The Client will establish and maintain a business account (Merchant Settlement Account) with an Australian financial institution to allow Merchant Settlement to be affected. Merchant Warrior will not be liable for any delay in Merchant Settlement into a Merchant Settlement Account of monies payable to the Client arising out of any operational issue with the Merchant Settlement Account provided that such delay is not caused by any breach of the Agreement, fraud, negligence or wilful misconduct by Merchant Warrior or Cuscal.
Each Party will cooperate with and provide any reasonable assistance required by the other Party from time to time to assist the other Party to comply with its obligations under this clause.
In carrying out a credit review or risk analysis of a Customer, the Client must have in place procedures that involve the application of reasonable care and diligence so as to satisfy itself as to the identity, integrity, solvency and reliability of the Customer. The Client must keep proper records of any such activity.
Where a Client considers a breach of identity, integrity, solvency or reliability of the Customer has occurred, it is to immediately notify Merchant Warrior.
3. PROCEDURES AND POLICIES
(a) Merchant Warrior in providing the Services, may institute, change, amend, direct, remove, delete or edit procedures to better support the provision of the Services at its discretion acting reasonably.
(b) Merchant Warrior may apply, introduce, amend, create or remove any policy in relation to use of the Services at its discretion, but only where such a policy is aimed at improving security, efficiency, or performance in delivery of the Services.
(c) The Client must maintain safety and security procedures and safeguards to guard against destruction, loss, alteration or corruption of any information (including Confidential Information and Personal Information) provided to the Client or which is generated by the Client relating to or concerning the Services, whether during the storage or transmission of such information by whatever means.
(d) Without limiting clause 3(b), the Client must, and must ensure that its Personnel and subcontractors and their Personnel, comply with the Payment Card Industry Data Security Standards and the Security Requirements at all times, and all other reasonable security requirements notified to the Client by Merchant Warrior from time to time in writing.
4. COMPLIANCE WITH LAWS AND INSTRUCTIONS
4.1 Compliance with laws
The Client must comply with all federal, state and local laws, ordinances and codes including privacy laws, the procurement of licenses, permits, certificates and any other requirements applicable to it in respect of the Services. Such laws expressly include:
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
If, at any time during the Term, the Client is informed or information comes to its attention that it is or may be in violation of any law, ordinance, regulation, or code (or if it is so decreed or adjudged by any court, tribunal or other authority having competent jurisdiction) relating in any way to the Services, the Client will immediately notify Merchant Warrior of such violation and take all appropriate steps to remedy such violation and comply with such law, regulation, ordinance or code in all respects.
The Client will establish and maintain all proper records (particularly, but without limitation, accounting records) required by any law, code of practice or corporate policy applicable to it from time to time in respect of the Services.
4.2 Compliance with Payment Card Industry Data Security Standards
To the extent that the client accesses, stores, retains or distributes cardholder data generated from the Services, the Client must ensure that their services and Client system at all times comply with the Payment Card Industry Data Security Standards.
5.1 Termination of Agreement
A party may terminate this Agreement, effective upon written notice to the other party if:
(a) the other party fails to perform or observe any material obligation in this Agreement and such failure remains uncured after thirty (30) days’ written notice from the other party;
(b) subject to (c) to (e); in the case of Merchant Warrior, Merchant Warrior provides ninety (90) days’ notice in writing to the Client or Merchant Warrior’s intention to terminate this Agreement specifying the reason for the termination;
(c) the other party is the subject of an Insolvency Event;
(d) in the case of Merchant Warrior, the Client fails to meet the Payment Card Industry Data Security Standards or Security Requirements;
(e) in the case of Merchant Warrior, the Client fails to comply with the Card Scheme Rules;
(f) in the case of the Client, the Client provides ninety (90) days’ notice in writing to Merchant Warrior of the Client’s intention to terminate this Agreement; or
(g) the Client having any wind-up application, appointment of a receiver or liquidator against them, any assignment of substantive asset or property, or any unpaid licence fee made against them.
(h) in the case of Merchant Warrior, the Client has a change in structure or ownership such that the holder of the controlling interest changes.
5.2 Effect of Termination
(a) The parties acknowledge and agree that termination of this Agreement pursuant to clause 5.1 will be without prejudice to any accumulated rights and liabilities of the parties under this Agreement which arose prior to such termination and will not be exclusive of any other rights and remedies that a party may have at law or in equity for damages or otherwise.
(b) Upon the expiration or termination of this Agreement for in accordance with clause 5.1, Merchant Warrior may remove any references to the Client from Merchant Warrior’s list of Clients and Client will desist from representing that it has gateway and/or data processing Services from Merchant Warrior.
(c) For the avoidance of doubt, upon the expiration or termination of this Agreement for any reason the publicity, trade mark use and other rights granted by each party under clause 17 are immediately terminated.
(d) Upon the expiration or termination of this Agreement for any reason, each party will, at the other’s election, return or destroy all Confidential Information and Personal Information of the other party and all copies thereof, including any electronically stored copies.
(e) An authorised officer of each party will, upon the other party’s request, certify in writing to such return and destruction and that no copies of such information have been retained.
Subject to the provisions of the Competition and Consumer Act 2010 (Cth)
and any other relevant and applicable State and/or Commonwealth legislation (Statutory Provisions), Merchant Warrior warrants that reasonable efforts will be made to ensure that the Services will be:
- provided with due care and skill; and
- be of merchantable quality.
Merchant Warrior does not warrant that:
- the Services will be uninterrupted or error free;
- the Services will meet the Client’s requirements, other than as set out in this agreement.
The Client warrants to Merchant Warrior that:
- it will comply with the Security Requirements;
- 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;
- it will comply with Card Scheme Rules in facilitating, managing, or administering transactions or clients;
- to the extent required by clause 4.2 within this agreement, it will comply with the Payment Card Industry Data Security Standards;
- it will implement all required Services with all due care and skill, in accordance with high professional standards and by qualified personnel who are suitably trained, experienced and skilled;
- it will keep secure at all times all passwords and cryptographic keys used to access, process and download data from Merchant Warrior server(s);
- it will follow all cryptographic key management procedures specified by Merchant Warrior;
- is it solely responsible for persons accessing the Client’s website and account and must not refer complaints or inquiries in relation thereto to Merchant Warrior; and
- all information and details supplied by it to Merchant Warrior are true and correct
7. CONFIDENTIALITY INFORMATION, NON-DISCLOSURE AND PRIVACY
7.1 Confidential Information
While performing or receiving Services under this Agreement, a party or one of its Related Bodies Corporate (“Receiving Party”), may have access to the Confidential Information of the other party, or one of its Related Bodies Corporate (“Disclosing Party”). The Receiving Party acknowledges the proprietary and sensitive nature of the Disclosing Party’s Confidential Information and the importance of maintaining the secrecy and confidentiality of such Confidential Information.
The Receiving Party and its employees, agents and subcontractors will not, without the prior written consent of the Disclosing Party, disclose any Confidential Information to any third party, either orally or in writing, unless such disclosure is:
- required for the performance of its obligations under this Agreement, provided such disclosure is made on a confidential basis; or
- required by law or legal or regulatory process, but in each case subject to the Receiving Party giving the Disclosing Party reasonable notice of any proposed disclosure to enable that party to seek a protective order or other remedy to prevent the disclosure.
Unless otherwise required by law, the Receiving Party will not release or disclose any information concerning the terms and conditions of this Agreement to any third party unless prior written consent is obtained from the Disclosing Party.
7.3 Obligations of Receiving Party
The Receiving Party will:
(a) not, without the Disclosing Party’s prior written consent, disclose the Confidential Information of the other party in any manner except as expressly authorised by this Agreement;
(b) treat the Confidential Information of the other party with at least the same degree of care that it treats its own Confidential Information, but in no event with less than a reasonable degree of care;
(c) use its best efforts to prevent disclosure of Confidential Information to unauthorised parties;
(d) immediately return or destroy, as directed by the Disclosing Party, the Confidential Information of the Disclosing Party at the sole election of the Disclosing Party; and
(e) notify the Disclosing Party immediately of any loss or unauthorised disclosure or use of Confidential Information of the other party that comes to its attention.
7.4 Disclosure of Personal Information
(a) Neither party may use or disclose Personal Information of the other party unless that use or disclosure is necessary in order to fulfil its obligations under this Agreement, otherwise agreed in writing between the parties, or required by law.
(b) Without limiting the generality of the foregoing, a party must not export, transmit or otherwise transfer outside Australia or allow a person outside Australia to have access to any Personal Information of the other party or of any of its Related Bodies Corporate or of any of their customers, without the other party’s prior written approval.
7.5 Accuracy and completeness of Personal Information
Each party will be responsible for the accuracy and completeness of any Personal Information that it discloses to the other party.
Neither party will amend, correct or otherwise alter Personal Information disclosed to it by the other party, except:
- in accordance with written instructions provided by that party; or
- where re-formatting of Personal Information is required for use within the receiving party’s systems, provided that any re-formatting does not alter the content of the relevant Personal Information.
In the event that instructions are given as contemplated in this clause 7.5, and provided that those instructions are reasonable, the party receiving the instructions will be responsible for ensuring that they are complied with as soon as practicable after receipt.
7.6 Cessation of use of Personal Information
Subject to the requirements of any law, each party will cease using or disclosing Personal Information disclosed to it by the other party if:
(a) the other party so requests; or
(b) this Agreement has expired or terminated.
7.7 Return of Personal Information
Subject to the requirements of any law, each party, if requested to do so by the other party or upon termination or expiry of this Agreement, will return all copies of the relevant Personal Information received from the other party or follow the other party’s reasonable instructions to destroy, erase or de-identify all tangible and intangible records of that Personal Information.
8. LIABILITY AND INDEMNITIES
The Client agrees to indemnify, defend and hold harmless Merchant Warrior from and against any and all chargebacks, liabilities, penalties, damages, costs, judgments, settlements, reasonable legal fees and disbursements, or expenses paid or incurred in connection with the Services as a result of:
- breach of this Agreement by the Client;
- any negligent, fraudulent or unlawful act or omission, by the Client, its partners, subsidiaries or Customers using or employing the Services.
- any material or information issued from the Client using the Services, and the Client acknowledges that Merchant Warrior does not vet, review or approve any such material or information and that the Services are used at the Client’s risk; and
- any other transaction made by or on behalf of the Client.
The Client hereby indemnifies Merchant Warrior and shall keep Merchant Warrior indemnified from and against all claims, tort, liability and expense on account of any injury or damage suffered by Merchant Warrior arising from the conduct of the Client as a result of the provision of the Services under this Agreement.
Subject to Merchant Warrior complying with its warranty in clause 6 (a) and without prejudice to the obligations of Merchant Warrior with respect to the Service Levels, the Client will limit any claim for damages, costs and expenses suffered by the Client which arises from any Technical Error in the System whether arising in tort, contract, statute or otherwise to the amount of the fees paid to Merchant Warrior under this agreement.
This clause 8 constitutes a continuing indemnity and is in addition to any other rights Merchant Warrior may have, and the Client agrees to bear the burden of proof in respect to any alleged defect in the Services.
Merchant Warrior's maximum aggregate liability for a breach of a condition or warranty implied into this Agreement by any Statutory Provisions is limited, to the maximum extent permitted by law, to either of the following, as determined by Merchant Warrior in absolute and sole discretion:
- The replacement of the Services or the resupply of equivalent Services;
- Repair of the Services or payment of the cost of having the Services repaired;
- Refunding the payment made by the Client, or part of that payment (where appropriate), for the Services ordered, or offering credit where payment has not been made.
The Client, having acknowledged that not all components of the service may be provided by Merchant Warrior, hereby indemnifies Merchant Warrior and shall keep Merchant Warrior indemnified from and against all claims, tort, liability and expense on account of any injury or damage suffered by the Client as a result of the provision of the Services by another party under this Agreement.
All conditions and warranties expressed or implied by the Statutory Provisions, law, trade, custom or usage, are expressly excluded to the maximum extent permitted by law.
9. LIMITATION OF LIABILITY
9.1 Exclusion of consequential loss
Except for liability arising under or out of breaches of clause 7, in no event will either Client or Merchant Warrior be liable to the other for special, incidental, indirect or consequential damages, damages from loss of profits, business opportunities, or failure to achieve cost savings, in contract, tort or otherwise, arising out of or in connection with this Agreement.
10. FORCE MAJEURE
10.1 Excusable Delay
(a) Neither party will be responsible for delays or failures in performance resulting from an event of Force Majeure.
(b) The party claiming such Force Majeure event will notify the other party as soon as possible after such party becomes aware of the occurrence of such Force Majeure event.
10.2 Extension of Deadlines
If there is any such Force Majeure event, then, subject to clause 10.4, the periods for the completion of the parties’ obligations under this Agreement will be automatically extended by the period of such delay.
In every case, the party claiming that it is affected by a Force Majeure event will exercise all reasonable efforts to mitigate the extent of such delay or failure.
10.4 Termination of Extended Force Majeure
Notwithstanding the foregoing, either party may terminate this Agreement in the event that a party is unable to fulfil its obligations pursuant to this Agreement because of such excusable delays which continue in effect for thirty (30) consecutive days.
11. RELATIONSHIP OF PARTIES
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.
12. CUSTOMER FEES, CHARGEBACKS, AND SECURITY DEPOSIT REQUIRED
(a) The Client will be charged fees for the Services provided in accordance with the pricing set forth in the Letter of Offer (LOO).
(b) The Client will be charged the equal amount for any fee, liability or cost in relation to any Chargeback Merchant Warrior may incur from its suppliers as a result of any transaction on behalf of the Client. Such charge shall not exceed the total cost to Merchant Warrior.
(c) The Client is required to hold a Security Deposit with Merchant Warrior to accommodate for such charges in the form set forth in the Letter of Offer (LOO).
(a) Each party warrants that it is, as at the date of this Agreement, and will be during the Term, registered for GST.
(b) If any party (the Supplier) (or the Representative Member of any GST Group of which that party is a Member) is liable to pay GST on any Supply made to any other party (the Recipient) under this Agreement, then the Recipient agrees to pay to the Supplier an additional amount equal to that GST (additional GST amount).
(c) The additional GST amount is payable at the same time and in the same manner as the consideration for the Supply to which the additional GST amount relates, unless a Tax Invoice has not been issued, in which case the additional GST amount is payable upon receipt of the Tax Invoice.
(d) The obligation to pay the additional GST amount arises only if the Supplier of the Supply has issued the Recipient of the Supply with a valid Tax Invoice for the Supply.
(e) In this clause the terms 'GST', ‘Member’, ‘Representative Member’, 'Supply', ‘Tax Invoice’, 'Taxable Supply' have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(f) All prices and quotes provided by Merchant Warrior are estimates only and do not constitute an agreement to supply Services in accordance with that price/ quote and are subject to alteration.
(g) Unless expressly stated otherwise all prices are inclusive of GST.
(h) Unless expressly stated otherwise all fees are billed on a per transaction basis.
14. TECHNICAL ADVICE
The Client acknowledges and agrees that the Client is responsible for all implementing all system connections to the Services and that Merchant Warrior assumes no liability for any technical advice, recommendation, information or assistance given in relation to the system connections to the Services, or the results obtained there from. Any advice given by Merchant Warrior to a Client is given at the sole risk of, and subject to verification by, the Client. and the Client hereby indemnifies and keeps indemnified Merchant Warrior from and against any loss, damage cost or other expense of whatsoever nature in respect of the application of such advice by the Client.
15. NOTICES AND CONTRACT REPRESENTATIVES
Any notice given under this Agreement (Notice) must be in writing and may be delivered by hand, by mail or by facsimile to the address of a party set out on page 1 of this Agreement 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 facsimile, on transmission of the notice to the receiving party in complete form as evidenced by a hardcopy transmission report by the machine which sent the Notice.
15.3 Change of Details
Each party may from time to time change the contact person and/or address for service by Notice to each other party.
(a) No party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed.
(b) Nothing contained herein will prevent the use by, or the assignment of this Agreement, or any rights acquired, by a party to any one of its Related Bodies Corporate.
17. TRADEMARK USE
(a) Each party authorises the other party during the Term to use its trademark only in conjunction with the making of the limited publicity representations and for no other purpose.
(b) The rights granted under this clause are non-exclusive and non-transferable.
(c) Each party agrees not to combine or use the other party’s trade mark in combination with any other name, mark or trade mark, and not to modify, alter or change the other party’s trade mark in any way or to do anything that would in any way infringe, impeach or lessen the value of validity of the other party’s trade mark or the goodwill associated with that trade mark.
18. INTELLECTUAL PROPERTY
The Client agrees that nothing in this Agreement transfers or assigns any intellectual property rights from Merchant Warrior to the Client.
Merchant Warrior may suspend the Service (or any part thereof) or disconnect or deny the Client access to the Service to remedy any defect or failure or to improve the Service, or in any other instance Merchant Warrior deems necessary, or if the Client is in breach of the Terms. The Client will remain liable for all charges and fees throughout any period of suspension at Merchant Warrior’s reasonable discretion.
20. CORPORATE AUTHORITY/FURTHER ASSURANCES
(a) Each party represents that it has taken all necessary corporate action to authorise the execution of this Agreement and will furnish the other party with satisfactory evidence of the same upon the request of the other party.
(b) Each party agrees to negotiate in good faith the execution of such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the effective execution of the Transactions, and will continue to do so during the Term.
21. DISPUTE RESOLUTION
Merchant Warrior and Client agree to resolve any dispute, controversy or claim arising in relation to this Agreement (“Dispute”) in good faith in the manner set out in this clause 21.
21.2 Escalation to Authorised Representatives
Within five (5) Business Days of one party notifying the other party in writing of a Dispute, each party will nominate in writing to the other party a representative authorised to settle the Dispute as between the parties on its behalf.
21.3 Resolution by Authorised Representatives
Merchant Warrior and the Client will ensure that during the ten (10) Business Day period after the notice under clause 21.2 (or such longer period as the parties may agree in writing) is given its representative uses his or her best endeavours to resolve the Dispute.
21.4 Failure to Resolve Dispute
Where the representatives of the parties fail to resolve the Dispute in accordance with clause 21.3, the parties agree to commit to and undertake Arbitration by an independent Arbitrator within the city limits of Brisbane, Queensland. Nothing in this paragraph prevents either party from applying to a Court of competent jurisdiction for urgent injunctive relief. However, a party may appeal an Arbitrators decision and commence proceedings in respect of the Dispute in a court of competent jurisdiction in the State of Queensland.
This Agreement binds the heirs, executors, administrators, successors and assigns of the respective parties.
The provisions of this Agreement which by their nature are intended to survive, will survive completion, expiration, recession or termination of this Agreement.
24. GOVERNING LAW
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.
In the event any one or more of the provisions of this Agreement will for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement will be unimpaired, and the invalid, illegal or unenforceable provision(s) will be replaced by a mutually acceptable provision(s), which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision(s).
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.
No modification, amendment, supplement to or waiver of this Agreement or any of its provisions will be binding upon either party unless made in writing and duly signed by the both parties (or in the case of a waiver, by the waiving party).
A failure or delay of any party to this Agreement to enforce at any time any of the provisions of this Agreement or to exercise any option which is herein provided, or to require at any time performance of any of the provisions, will in no way be construed to be a waiver of such provisions of this Agreement.
29. ENTIRETY OF AGREEMENT
29.1 Entire Agreement
This Agreement together with the Letter of Offer (LOO) and any Schedules attached hereto constitute the entire agreement between the parties and supersedes all previous agreements, promises, representations, understandings and negotiations, whether written or oral, between the parties with respect to the subject matter to the effect that any such prior agreement will be terminated with no further force or effect as of the Effective Date.
(a) The parties release each other from all future performance obligations under any such prior agreement.
(b) The parties acknowledge and agree that the termination of any such prior agreement will be without prejudice to any claims either party may have against the other arising prior to termination and that all obligations expressed to survive termination will continue in full force and effect.
SCHEDULE 1 - SERVICES AND SERVICE LEVELS
Merchant Warrior will provide the following Services:
- Online hosted payment solutions;
- IVR solutions;
- Batch Payment solutions;
- API solutions for online payments;
- Tokenisation solutions;
- EFT solutions.
Merchant Warrior will ensure that transactional services are available in full for access and use by the Client 99.7% of every month.
In the event that there is no system accessibility or access to Merchant Warrior transactional services, Merchant Warrior will credit the monthly service charge for the Merchant Warrior Payment Gateway as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed the monthly service charge for the affected month:
|98% to 99.7%
|95% to 97.9%
|90% to 94.9%
|89.9% or below