The parties agree as follows:
Networks. PSP will provide the Company with payment services including the acquiring of the Company’s electronic transactions (Acquiring Services) for Visa, MasterCard and other networks as agreed (Networks). PSP will be the Company’s exclusive provider of the Acquiring Services during the Term of this Agreement.
Acquirer’s Role. Acquirer is a member of the Networks, permitting the Acquirer to acquire payment transactions. Acquirer sponsors PSP as a Member Service Provider with the Networks and appoints PSP as its agent, allowing PSP to provide a range of payment services. With respect to the Acquiring Services and all rights in relation thereto, references to PSP through this Agreement shall be taken to include the Acquirer; however, Acquirer’s obligations under this Agreement are limited solely to those related to Acquirer’s obligations defined by the Network Rules. PSP itself may provide Services in addition to those described in this Section under this Agreement, for which it is solely responsible.
Additional Card Acquiring Services.
Additional Cards. PSP, and not Acquirer, will provide the Acquiring Services to the Company also for its transactions that are initiated with Cards issued by additional networks (other than those described under clause 1.1) that are identified in this Agreement. A Card is a card, code, device, or other means allowing access to a credit, debit, prepaid, stored value, or similar account. An Additional Card is a Card issued by American Express Company, JCB International Co Ltd, and Diners Club International Ltd and others as agreed by all parties.
Additional Card Network Agreements. Payment transactions for Additional Cards are subject to separate agreements between the Company and the Additional Networks (Additional Card Network Agreements). The Company will comply with the terms of its Additional Card Network Agreements and obtain any consents required by those Additional Card Networks to submit Additional Card transactions to PSP for processing. The Company will promptly notify PSP if any of its Additional Card Network Agreements expire or terminate. PSP will not be obligated to process the Company’s Additional Card transactions if Company does not have an effective Additional Card Network Agreement with the applicable Additional Card Network. PSP has no responsibility to the Company for an Additonal Card Network’s performance obligations, responsibilities, or liabilities to the Company under their Additional Card Network Agreements.
Processing. PSP will only provide the Company with data capture and authorisation processing services for transactions initiated with Additional Cards; Neither PSP nor Acquirer will provide settlement services for the Additional Card Networks. PSP will submit settlement files for Additional Card transactions to the appropriate Additional Card Networks on behalf of the Company. Additional Card transactions will be settled directly between the Company and the corresponding Additional Card Network according to their Additional Card Network Agreements.
Network Rules and Industry Regulations. The Company will comply with all rules, requirements, and standards of each of the Networks (together, Network Rules) and any regulations, requirements and standards issued by a governmental authority or industry body (together, Industry Regulations). Company acknowledges receipt of PSP’s current payments acceptance guide (Payment Acceptance Guide), which will assist the Company with properly accepting and submitting its transactions for processing. Under Network Rules, the Company does not own the Card account, Cardholder, personal, or other payment transaction information generated when a payment transaction is processed using the Acquiring Services. The Company will not use, retain, disclose, sell, or disseminate any Card or Cardholder information (including, names, addresses, and Card account numbers) obtained in connection with payment transactions except for (1) authorising, processing, and settling transactions; or (2) resolving chargebacks, retrieval requests, or similar issues related to its transaction. The Company will not reproduce electronically captured Cardholder signatures except as requested by PSP or the Networks. A Cardholder is the individual who was issued a Card.
Locations. The Company must be domiciled in Australia as required by applicable Laws and Network Rules in order to submit transactions under this Agreement. PSP will perform the Acquiring Services for payment transactions submitted from all the Company’s locations in Australia.
Submitting Transactions. The Company is responsible for:
properly transmitting the transaction data (including all transaction detail required by the Networks) to PSP’s systems using the format and specifications provided by PSP. The Company will maintain and update the systems that it uses to accommodate changing Network requirements and Industry Regulations as specified by PSP.;
all payment transactions submitted for processing under its merchant identification numbers (MIDs), including, without limitation, all returns, refunds, or chargebacks, whether charged back by Cardholders or Card issuers;
preventing its employees and others from submitting returns or refunds that do not reflect valid returns or refunds corresponding to prior transactions; and
retaining transaction records according to the timelines required by the Network Rules, Industry Regulations or applicable Laws.
Transaction Acceptance. The Company will only accept and submit transactions where:
the transaction represents a genuine sale of the Company’s goods or services to the Cardholder;
the transaction is not materially different than the transactions the Company has described to PSP with regard to the products or services sold, the procedures for payments acceptance, or the fulfilment of obligations to the Cardholder;
the transaction complies with all requirements of the applicable Network Rules and Industry Regulations, the laws of all relevant jurisdictions, and all other requirements of this Agreement;
the transaction is not a duplicate of any other transaction;
the transaction is authorised by the rightful Cardholder for the amount of the transaction in satisfaction of the Cardholder’s obligation to the Company;
the transaction is in payment of goods or services provided simultaneously with the payment transaction (except for delayed delivery, advance deposit, or other partial transactions specifically allowed under the Network Rules and Industry Regulations and explicitly authorised by PSP in writing);
the transaction is not a refinancing of an existing obligation;
the transaction is valid, collectible, and is not subject to any dispute, setoff, or counterclaim; and
in the case of a refund, the transaction is submitted to reimburse the Cardholder for a sale transaction that was previously submitted.
Transaction Representation and Warranty. The Company represents and warrants that each transaction that it submits will comply with this clause.
Transaction Receipts. The Company will provide PSP a copy of any transaction receipts upon request.
Acquirer, and not PSP, is responsible for the settlement of Network transactions to the Company. Acquirer will pay the Company for proceeds of transactions submitted and the Company will pay Acquirer all transactions that are charged back by Cardholders, Card issuers, or the Networks and all refunds submitted in connection with the Company’s transactions.
The Company will identify a bank account held in the Company’s name (the Settlement Account) that Acquirer will use in connection with the Acquiring Services. The Company authorises Acquirer to initiate: (1) credits to the Settlement Account for proceeds of transactions submitted, and (2) debits to the Settlement Account for any amounts that may be owed or required to be paid to Acquirer under this Agreement. The Company will reimburse Acquirer for the amount of charges incurred as a result of any direct debit being rejected.
The Company may identify more than one bank account as the Settlement Account. If the Company designates more than one Settlement Account, credits to any of these Settlement Accounts will satisfy Acquirer’s obligations, and successful debits to any of the Settlement Accounts will satisfy the Company’s obligations under this Agreement.
Acquirer will initiate a transfer to the Settlement Account of the value of all valid sales and cash out transactions for the Company’s Card payment transactions, less any amounts due from Company for refunds, chargebacks, other debits or monies paid into any Reserve in accordance with clause 6.1. Acquirer will initiate the transfer by the second Banking day (for transactions submitted before merchant cut-off on the prior Banking day) if reasonably practicable but is not responsible ‘for any delays, failures or errors caused by the Networks, the Australian payment system, the Company’s financial institution, telecommunications networks or failure or delay in any system of electronically transmitting or receiving information or funds. It will depend on the Company’s financial institution when funds will be available in the Settelment Account.
The Company does not have a property or ownership interest in any proceeds of transactions or funds received by Acquirer/PSP in connection with the Company’s transactions (including any funds held in a Reserve in accordance with clause 6.1) until those funds are transferred to the Settlement Account.
The Company acknowledges that it is subject to continuous due diligence requirements by the PSP and Acquirer and agrees that if the Company is identified on any official sanctions list, including lists maintained by the Australian Department of Foreign Affairs and Trade (DFAT), the United States Office of Foreign Assets Control (OFAC) or the United Nations Security Council (UNSC) sanctions regimes and those maintained by the European Union, or breach clause 8.2, then:
neither the PSP or Acquirer will have any obligation to settle any then outstanding transactions to the Company and the proceeds shall be depositied into a Reserve Account;
notwithstanding clause 6.1, the PSP shall not be obligated to pay to the Company any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Company’s payment transactions have expired unless the Company has obtained necessary compliance clearance, and may otherwise deal with such money as required by Law which the Company agrees shall be deemed to be a payment direction of the Company and will satisfy the Acquirer’s/PSP/’s settlement obligations under this Agreement; and
the Company agrees to indemnity and holdnarmless the PSP and Acquire from any claims arising from or related to the non-settlement of such transactions.
After funds have been deposited into the Settlement Account, Cardholders, Card issuers, and the Networks still have the right to require reimbursement of transactions, to impose obligations relating to violations of the Network Rules, to assess additional interchange or other assessments, and to impose fees, fines, or charges relating to the qualification of transactions and the Settlement Account may be debited in accordance with clause 1.10(b) for these amounts at a later date.
The Company must promptly notify PSP if it fails to receive any settlement funding or if there are any changes to the Settlement Account. Transfer of settlement funds may be delayed or misdirected if the Company provides inaccurate information about, or fails to notify Acquirer of changes to, the Settlement Account. Acquirer is not responsible for settlement errors that arise if the Company provides inaccurate information about, or fails to notify Acquirer of changes to, the Settlement Account. If the Company has not received any settlement funding in the period agreed with the PSP, the Company shall report such delay to the Acquirer directly.
MATCH Reporting. Under some circumstances, PSP may be required to report the Company to the Member Alert to Control High Risk (MATCH) listing or similar listings maintained by the Networks. The Company agrees that PSP will not be liable for any losses, damages, or liabilities that may result from that reporting.
Mark License; Network Decals.
Acquirer grants the Company a revocable, royalty free, non-exclusive, limited license that cannot be assigned, transferred, or further sublicensed to use the Networks’ trademarks and service marks (together, Protected Marks) in Australia according to the applicable Network Rules. This license does not grant the Company any other intellectual property right, title, interest, or claim (express or implied, by estoppel, or otherwise) to the Protected Marks. The Company will not take any action that impairs an owner’s intellectual property rights in its Protected Marks.
The Company will discontinue use of the Networks’ decals, promotional, or other materials after termination of this Agreement. The Company will not indicate that its products or services are endorsed by any of the Networks.
Financial Information; Audit.
The Company will at all times promptly provide any financial or other information reasonably requested by PSP to perform credit risk, security, qualification, regulatory and Network compliance tasks and other reviews related to the provision of the Services, transactions submitted, fulfilment of obligations to PSP, or Cardholders, or the financial condition of the Company. The Company authorises PSP to obtain information from third parties when performing credit risk, security, qualification, and other reviews and share such information with such of its affiliates or the Acquirer as reasonably necessary in connection with this agreement. PSP may perform a reasonable audit of the Company’s records related to its performance under this Agreement with 30 days’ advance written notice to the Company, during the Company’s normal business hours, and at PSP’s expense.
Notice of Material Changes; Third Parties.
The Company will provide PSP with reasonable advance notice of any material change in the nature of the Company’s business (including any change in control or merger, any liquidation, any transfer or sale of substantially all of its assets, or any change to the Company’s operations that would materially affect the products or services sold, the procedures for payments acceptance, or the fulfilment of obligations to a Cardholder). The Company will provide PSP with written disclosure identifying the third parties, systems, and services the Company uses to receive, transmit, process, or otherwise manage information or its information technology systems (e.g., without limitation, third party gateways, encryption or firewall providers) related to the transaction information or payment data processed in connection with this Agreement (these third parties must be registered providers with the Networks).
The Company’s Payment Obligations.
Payment Obligations. The Company will pay PSP for:
all fees and charges for the Services as set out in the Application Form;
all costs, liabilities, or other obligations imposed on PSP or Acquirer by the Networks or other third parties arising out of or in connection with transactions submitted by the Company or the actions taken (or not taken) by the Company or its third party service providers including but not limted to all Chargebacks, fines, fees, penalties, assessments, or other obligations of any kind imposed by a Network.
Minimum Fee. The minimum monthly fees paid by the ‘Company’ (the ‘Minimum Fee’) shall be $10.00 ex GST payable on the 01st of every calendar month in arrears. This fee is waived if the Merchant processes ‘Card Transactions’ resulting in a cost that exceeds this value. The Merchant authorises ‘Fat Zebra’ to debit this cost from their nominated bank account by way of Direct Debit as stipulated in the ‘Direct Debit Agreement’.
Cancellation Fee. If the Company elects to cancel its Merchant Facility within 12 months of establishment, the Company shall pay Fat Zebra a cancellation fee equal to $50.00 ex GST. This fee will be recovered from their nominated bank account by way of Direct Debit as stipulated in the ‘Direct Debit Agreement’.
Fees Account. The Company will keep a bank account (Fees Account) and authorises PSP to debit the Fees Account in respect of any of the Company’s payment obligations. The Company will execute a direct debit authority and will reimburse PSP for the amount of charges incurred as a result of any direct debit being rejected.
GST Exclusive Consideration. All fees and charges are quoted inclusive of goods and services tax (GST and GST Exclusive Consideration).
General. PSP and the Company will pay their own taxes.
Tax Invoice. PSP will invoice the Company in arrears and will issue a valid tax invoice. Payment will be due within 30 days from the date of the invoice..
GST Payment. Where GST is imposed on any supply made under this Agreement by PSP to the Company, the Company must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed unless the supply is made after a change to the GST rate has been effected and the agreed GST inclusive consideration has not had the GST rate change taken into account, in which case the consideration payable for the supply shall be calculated pursuant to this clause. If the amount of GST recovered by the PSP from the Company differs from the amount of GST payable at law by PSP in respect of the supply, the amount payable by the Company to PSP will be adjusted accordingly.
Reimbursements. Where one party (Payer) is liable to reimburse another party (Payee) for any expenditure incurred by the Payee (Expenditure), the amount reimbursed by the Payer will be the GST exclusive Expenditure plus any GST payable to the Payee by the Payer.
WHT. The Company will maintain the right to deduct or withhold any withholding taxes (WHT) from any amounts payable to PSP under this Agreement, and payment to PSP as reduced by such deductions or withholdings will constitute full payment and settlement to PSP of such amounts. Where the Company is required to deduct or withhold any WHT or other charges imposed by the Company’s taxing jurisdiction from any amounts payable to PSP under this Agreement, the Company shall promptly upon becoming aware of such tax payments inform PSP accordingly. Within 90 days after the date upon which the payment hereunder was due, the Company shall supply PSP the original receipt, duplicate original, or a duly certified or authenticated copy of such original receipt evidencing tax payments deducted.
Reserve, security and set-off
Reserve. PSP may require the Company to fund a cash reserve (Reserve) in an amount that reflects PSP’s assessment of risk, as it may determine in its discretion from time-to-time. The Reserve is a payment obligation of PSP, established by holding back transaction proceeds or debiting the Settlement Account in order to potentially offset any obligations that the Company may have to PSP. The Reserve is not a segregated fund that the Company may claim to own and is not held by PSP on trust for the Company but is held on trust for the Acquirer. Unless expressly provided otherwise, the PSP is obligated to pay to the Company any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Company’s payment transactions have expired (as provided for under the Network Rules, Industry Regulations or this Agreement).
The obligations due to the Company from the Reserve will not accrue interest.
PSP will notify the Company if a Reserve is established (including its amount) or if the amount of the Reserve is modified.
PSP may set off any obligations that the Company owes to PSP from the Reserve.
Although the Company acknowledges that the Reserve is a general obligation of PSP, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of the Company that is held by PSP, the Company grants and acknowledges that PSP has a security interest in the Reserve and, at PSP’s request, will provide documentation to reflect this security interest and cooperate with PSP to perfect the security interest.
Setoff and Priority. All funds that PSP and Acquirer owe to the Company under this Agreement are subject to the Company’s payment obligations under this Agreement. PSP or Acquirer may set off the respective amounts the Company owes to PSP or Acquirer against any funds that PSP or Acquirer owe to the Company.
Security and Security Interest. PSP may from time to time request security from the Company or a guarantor to secure performance of the Company’s obligations under this Agreement. PSP may determine that this Agreement, a transaction or any security provided creates a security interest for purposes of the Personal Property Securities Act (PPSA). The Company will do anything necessary to provide documentation to reflect any security or perfect any security interest.
PSP will provide the Company with statements or electronic reporting (Statements) reflecting the fees, settlement amounts, and other information related to the Services. The Company must review the Statements and inform PSP of any errors within 60 days following the date that the error was, or should have been, reported. The reporting of any errors will enable PSP to recover amounts or prevent the errors from continuing. PSP will have no obligation to provide refunds for errors that the Company reports more than 60 days after it was, or should have been, reported. The Company and PSP will work together to resolve issues or disputes that arise in connection with the Statements, or the funds credited or debited to the Settlement Account.
AML/CTF Act. The Company acknowledges that Acquirer is and will remain subject to supervision by AUSTRAC and the Networks regarding regulatory compliance with the Anti-Money Laundering and Counter-Terrorism Finance Act (2006) (AML/CTF Act).
Regulatory Requirements. The Company will comply with the AML/CTF requirements that are put in place to comply with Network Rules and to satisfy regulatory obligations under the AML/CTF Act as well as any other regulatory requirements set out in this Agreement and Schedule 3 (Regulatory Requirements).
Company Obligation. The Company will provide acceptable evidence to PSP and Acquirer, demonstrating its ongoing compliance with Regulatory Requirements. PSP and Acquirer will have the right to audit the Company regarding compliance with Regulatory Requirements.
Privacy and Confidential Information.
Privacy. Each party will comply with, and ensure its third party service providers comply with, the Privacy Act Cth (1988) and will treat personal information collected from individuals in Australia, used, and disclosed in accordance with the Australian Privacy Principles.
Confidentiality. No party will disclose non-public information about the other party’s business (including the terms of this Agreement, technical specifications, customer lists, or information relating to a party’s operational, strategic, or financial matters) (together, Confidential Information). Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information.
Disclosure. The recipient may disclose the other party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its affiliates, subcontractors or vendors) that need to know it in connection with the recipient’s performance under this Agreement as well as the purposes set out in the Collection Statement, and are bound by confidentiality obligations materially similar to those required under this Agreement; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable Laws, Network Rules or Industry Regulations.
The Company is responsible for any unauthorised access to any transaction data from the Company or from third parties retained by or on behalf of the Company. PSP is responsible for any unauthorised access to the Company’s transaction data on PSP’s systems.
Compliance with Standards.
The Company must comply with, Payment Card Industry Data Security Standards (PCI DSS) and obtain timely certification of its systems and processes (which must be maintained during the Term) as required under the Network Rules and Industry Regulations. The Company must also comply with all additional standards that the Acquirer, Networks or Industry Regulations may require. The Company will allow the Networks, PSP or Acquirer to audit its data security compliance, including PCI DSS, and information technology systems related to the Services provided under this Agreement. The Company is responsible for its service providers’ compliance with the same requirements.
PSP must comply with all PCI DSS requirements and the Network Rules and Industry Regulations that apply to its performance under this Agreement.
If the Company becomes aware that there has been unauthorised access to transaction data (a Security Incident), it will promptly notify PSP. If requested by PSP, the Company will retain a reputable firm that is certified and approved by the Networks that provides forensic information security services and risk assessments in order to: (1) assess the nature and scope of the Security Incident; and (2) identify the access controls or transaction data involved in the Security Incident. The Company will take appropriate steps to contain, control, stop, and remediate any Security Incident.
The Company will provide reasonable details regarding the Security Incident to, and cooperate with, PSP, Acquirer, Networks, governmental authorities or industry bodies and their agents that are involved in the investigation and remediation of a Security Incident. The Company will take all actions that the Networks, governmental authorities, industry bodies, Acquirer or PSP require in connection with the investigation and remediation of a Security Incident.
The Company will reimburse PSP and/or Acquirer for all fines, fees, penalties, assessments, or other obligations of any kind imposed by a Network on PSP or Acquirer due to a Security Incident caused by the Company or its third party service providers (together, Network Security Fees).
Data Use. PSP may use transaction data obtained from providing the Services to the Company to fulfil performance obligations under this Agreement and investigate fraud, or suspected fraud, related to the Company’s transactions. Acquirer may use transaction data obtained from providing the Services under this Agreement in aggregated and anonymised form (as required by applicable Laws) for research and development, or to provide services generally.
Term, termination and suspension
Term. This Agreement commences on the earlier of:
(a) the PSP advising you that it has approved your Application and that First Data Merchant Solutions Australia Pty Ltd is your Acquirer; or
commencing to process and Acquiring accepting Transactions; or
by PSP issuing an Acquirer issued MID to you.
(the “Effective Date) and will continue unless terminated as allowed under the terms of this Agreement.
General Termination. Either the Company or PSP may terminate this Agreement by giving 30 days’ advance written notice if the other materially breaches this Agreement and fails to remedy the breach within 30 days of receiving notice of it. A party must exercise this right within 60 days of becoming aware of a material breach.
Risk Termination. PSP may immediately suspend or terminate this Agreement, in its discretion, upon notice if the Company:
engages in fraud, misrepresentation, or intentional misconduct related to its performance under this Agreement;
experiences excessive chargebacks, irregular, or fraudulent payment transactions (based on Network thresholds), or engages in business practices creating excessive risk for Cardholders or PSP;
experiences a material adverse change in its financial condition (including the failure to pay any of its debts or if the Company’s accountants fail to deliver an unqualified audit opinion with respect to the Company’s and its consolidated subsidiaries’ annual financial statements as required under this agreement);
fails to provide notice of a material change in the nature of its business;
fails to disclose the third parties or systems it uses in connection with the transaction information or payment data processed under this Agreement;
fails to fund a Reserve when required under this Agreement;
experiences a Security Incident or fails to comply with PCI DSS or a material Network requirement;
materially changes its operations, products, services, or procedures for payments acceptance;
fails to satisfy a review or audit conducted under this Agreement;
sells substantially all of its assets, undergoes a change in ownership or control, merges, or effects an assignment without obtaining the prior consent of PSP;
on expiry or termination of any agreement with the PSP for the PSP Services; or
is the subject of the events described in clause 1.10(f), or a Network, a governmental authority, or Acquirer instructs PSP to limit, suspend its performance under or terminate this Agreement.
fails to comply with Acquirers's acceptable use policy and/or Acquirer's credit risk criteria (as amended from time to time).
Together, the events described in this clause are Default Events.
Early Termination Fee. PSP will suffer substantial injury, and it would be difficult to determine the damages, if the Company breaches this Agreement’s exclusivity requirements or this Agreement is terminated before the end of the Initial Term due to any Default Event. PSP and the company agree an accurate reflection of the damages caused by an early termination of this agreement is the amount described as such in the Merchant Agreement Application Form (the Early Termination Fee).
Deemed Termination. The Company will be deemed to have terminated this Agreement of no Transaction has been submitted for a period of 90 days or more.
Indemnity and liability
Indemnity. The Company will indemnify PSP and Acquirer (including their respective affiliates, directors, officers, managers, and employees) for losses, damages, costs, or expenses (together, Losses) due to third party claims that result from the Company’s gross negligence, wilful misconduct, or breach of this Agreement. PSP will indemnify the Company (including its respective affiliates, directors, officers, managers, and employees) for Losses due to third party claims that result from PSP’s gross negligence, wilful misconduct, or breach of this Agreement. Acquirer does not have any indemnification obligations under this Agreement.
Process. The indemnified party will promptly notify the indemnifying party of any third party claim that is subject to indemnification under this Agreement. The indemnifying party will have the opportunity to defend these claims using counsel it selects and will have the authority to enter into a settlement for monetary damages provided that it pays such amounts. The parties will cooperate with regard to any other conditions of settlement as well as in providing records, access to personnel or other information reasonably necessary to defend any indemnified claims. The indemnified party shall take reasonable steps to mitigate the liability, loss or damage giving rise to the claim and shall not commit or make any act, omission admission of liability or other statement to the third party prejudicial to the defence of the claim unless agreed with the indemnifying party.
Exclusion of Damages. PSP, Acquirer and the Company will not be liable to each other for lost profits, revenues, or business opportunities, expected savings, opportunity costs, loss of goodwill, image or reputation, (whether direct or indirect losses) nor any exemplary, punitive, special, indirect, incidental, or consequential damages under this Agreement; regardless of whether these damages were foreseeable or a party was advised they were possible. Network Security Fees and other amounts for which a party is liable under this Agreement (including, without limitation, amounts imposed by a regulatory authority that are specifically due to a party’s failure to perform its obligations under this Agreement) are not excluded by this clause.
Limitation of Liability. PSP’s, Acquirer’s and the Company’s aggregate liability to the other for losses arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will be limited to AUD $50,000 (Liability Cap). The Liability Cap will not apply to: (1) Acquirer’s obligation to remit the proceeds of the Company’s transactions that are processed under this Agreement (after accounting for all offsetting obligations); or (2) the Company’s payment obligations related to the Acquiring Services, Network Security Fees and other amounts for which it is liable under this Agreement (including, without limitation, amounts imposed by a regulatory authority that are specifically due to the Company’s failure to perform its obligations under this Agreement).
Notices. Written notices (other than normal operations) required under this Agreement will be sent by email, certified mail, or courier (all with tracking and delivery confirmation). Notices will be effective upon receipt.
Notices to the Company will be sent to:
Legal Address detailed in the Merchant Agreement Application Form
A notice is valid when sent to the Company’s registered address.
Notices to PSP will be sent to:
Fat Zebra Pty Ltd
Level 2, 58-62 Kippax Street
Surry Hills NSW 2010
Notices to Acquirer will be sent to:
First Data Merchant Solutions Australia Pty Ltd
Attn: Company Secretary
Level 11, 168 Walker Street
North Sydney, NSW 2060
Emailed notices will be sent to: CompanySecretary.ANZ@firstdata.com
Providers. Each party is responsible for the performance of any third parties it uses in connection with the Services, and their compliance with the terms of this Agreement.
Waivers. A party’s waiver of a breach of this agreement will not be considered a waiver of a subsequent breach. A party’s delay or failure to exercise any of its rights under this Agreement will not be a waiver of those rights unless otherwise expressly provided for under this Agreement.
Compliance with Law, Choice of Law. The parties will comply with all laws, rules (including Network Rules), and regulations (including Industry Regulations), (together Laws), that are applicable to their respective obligations under this Agreement. This Agreement will be governed by the laws of New South Wales. The courts of New South Wales will be the proper venue for legal proceedings brought in connection with this Agreement.
Entire Agreement, Amendment, Counterparts. The defined term Agreement includes its schedules, addenda, and any amendments (capitalised terms used in the schedules, addenda, or amendments without definition will have the meanings given to them in this Agreement). This Agreement is the entire agreement between the parties and replaces any prior agreements or understandings (written or oral) with respect to its subject matter. Amendments, or any other modifications to this Agreement related to Services require written agreement of the parties. This Agreement and amendments may be executed electronically and in counterparts, each of which constitutes one agreement when taken together. Electronic and other copies of the executed agreement are valid. PSP may, by written notice to the Company, amend this agreement to reflect changes to Laws, as required by a Network or Acquirer or as specifically set out in this Agreement.
Assignment, Novation. The Company may not assign rights under this Agreement or novate this Agreement without the other parties’ written consent. PSP may not assign rights under this Agreement or novate this Agreement without the Acquirers written consent. Acquirer may assign, novate or transfer its rights or obligations under this Agreement to another financial or other institution provided that it is a member of the Networks. Acquirer may also substitute or assign, PSP’s rights or obligations under this Agreement or a particular Territory Addendum to another financial or other institution provided it is a member of the Networks. The Company agrees (1) to a novation by written notice to the Company where the new contract is on the same terms and conditions as the existing agreement, the new party assumes the rights and obligations of the outgoing party and the outgoing party is released from those rights and obligations, and (2) to enter into such documents as Acquirer may reasonably require in order to effect such assignment, novation or transfer. This Agreement will be enforceable against a party’s permitted successors or assigns.
Force Majeure. No party shall be liable to the other for any delay in the performance or inability to perform any of its obligations under this Agreement to the extent that such delay or inability is caused by an event beyond its control.