Merchant Agreement – Merchant Agreement

Merchant Agreement General Terms

This Merchant Agreement for Payment Services (as defined below) is entered into between:

• (1) Till Payments Solutions Pty Ltd (ABN 64 160 726 349) whose registered office is S6, 2-4 Giffnock Ave, Macquarie Park, NSW 2113 (Acquirer);

• (2) PayNuts Pty Ltd (ABN 14 659 309 529) of Ground Floor, 132 Albert Rd South Melbourne, VIC 3205 (PayNuts); and

• (3) the recipient of the Payment Services identified in the Application into which these General Terms are incorporated (Merchant).

RECITALS

A. Acquirer and PayNuts have entered a PayFac Payment Services Agreement which allows PayNuts to on sell Merchant Services offered by Acquirer and for the provision of settlement of funds as part of the Merchant Services (Payment Services).

B. Acquirer is a member of Card Schemes and agrees to appoint PayNuts as its exclusive agent to provide Services to the Merchant subject to the terms and conditions of this Agreement.

C. The document sets out the standard terms and conditions on which PayNuts (as agent for the Acquirer) agrees to provide the Payment Services to the Merchant. The Agreement between PayNuts, the Acquirer and the Merchant for the Payment Services is comprised of:

• (i) these General Terms;
• (ii) the Merchant Application Form signed or otherwise agreed to by the Merchant (Application); and
• (iii) any additional documents specified in the Merchant Application Form (as applicable).

If there is any inconsistency between the above referenced documents, the document earlier in the list prevails to the extent of the inconsistency.

AGREEMENT

The parties agree as follows:

1. DEFINITIONS

1.1 Unless the contrary intention appears, the following words have these meanings in this Agreement:

Affiliates means any entity directly or indirectly controlled by PayNuts or the Acquirer. For the purposes of this definition, control means: (a) the beneficial ownership of more than 50% of the issued shares of the party; or (b) the capacity to determine the outcome of decisions about the party’s financial and operating policies in accordance with section 50AA of the Corporations Act 2001 (Cth).

Agreement has the meaning given in the Recitals.

Application has the meaning given in the Recitals.

Authentication Procedures means those procedures as set out in the Card Scheme Rules.

Banking Day means a day on which banks are open for general banking business in Sydney Australia except for Saturdays, Sundays and National Public Holidays in Australia.

Card Schemes means, unless otherwise agreed by the parties, Visa, Mastercard and EFTPOS.

Card Scheme Rules means the rules and regulations which regulate participants in the Card Schemes.

Cardholder means the Person in whose name the Card has been issued.

Change of Control means any of the following:

• (a) the Merchant agrees to acquire or dispose of, or acquires or disposes of, a substantial asset or assets;
• (b) a person (alone, through or together with their associates) acquires a relevant interest in 50% or more of the issued securities in the Merchant;
• (c) the Merchant is or agrees to be controlled (as defined in section 50AA of the Corporations Act 2001 (Cth)) by a person who did not or was not entitled to control the Merchant on the date of commencement of this Agreement; or
• (d) a person who has not appointed or is not entitled to appoint a majority of directors to the board of directors of the Merchant on the date of commencement of this Agreement does, or becomes entitled to, appoint a majority of directors to the board of directors of the Merchant.

Chargeback is the reversal of a sales Transaction.

Card means a card that has been designated by the issuer as a Visa or Mastercard or a card issued by any other Card Scheme which You have agreed to accept, and We have agreed to process.

Data Breach means any occurrence which results in the loss, unauthorised access by, or unauthorised disclosure to, a third party to confidential data relating to Card Transactions stored by Your business or any entity engaged by You to provide storage or transmission services in respect of that data.

Data Security Standards means the Payment Card Industry Data Security Standards (“PCIDSS”) and the Payment Application Data Security Standard issued by the Payment Card Industry Standards Council (or its replacement body or successor) as mandated by the Card Schemes for the protection of Cardholder details and Transaction information, and any additional or replacement standards of which You are advised from time to time.

Equipment means the POS Terminals and associated hardware, spare parts and replacement parts and software at the Merchant's premises through which electronic funds transfer can occur (including Supplied Equipment (as defined in Schedule A) but excluding power outlets and telecommunications lines).

Merchant Services means the merchant services facility offered by the Acquirer to PayNuts in conjunction with an approved Payment Services Gateway Provider, who utilise the Authentication Procedures.

Operating Procedures means any operating manual and information provided or otherwise made available to the Merchant by Us from time to time, including operational procedures, instructions and other directives relating to Transactions, as amended from time to time or any Card Scheme Rules, industry regulations and any information identified as such on the PayNuts website accessible to the Merchant.

Payment Service means the payment services that enables Merchants to set up and receive secure Card payments from their end customers.

Payment Services Gateway Provider means a third-party provider of software and internet technology that enables Transactions to be made securely over the internet to the Acquirer as the acquiring bank, in accordance with the Authentication Procedures.

Person includes an individual, firm, body corporate, unincorporated body or association, partnership, joint venture and any government agency or authority.

Personal Information refers to 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 reasonably be ascertained, from the information or opinion, which is received by You from any source as a consequence of the performance of the rights and obligations under this Agreement.

PIN means the personal identification number allocated by a Card issuer or personally selected by the account holder.

POS Terminal means a point of sale device placed in a Merchant location which is connected to the Acquirer’s system via telephone lines and is designed to authorise, record and settle data by electronic means for all Transactions with Us.

Privacy Law means all applicable legislation and principles and industry codes or policies, relating to the collection, use, disclosure, storage and granting of access rights to Personal Information in connection with this Agreement as well as data protection, surveillance, security, direct marketing and other related matters.

Refund means the reversal of a sales transaction in accordance with the Operating Procedures.

Related Body Corporate has the meaning given to it in the Corporations Act, 2001 (Cth).

Relevant Law means any:

• (e) statute, ordinance, code or other law including regulations and other instruments under them that are relevant to the obligations and rights of this Agreement; and
• (f) any code of practice, guidelines or standards issued by relevant regulators or industry bodies, whether or not having the force of law; and
• (g) any Card Scheme Rules (including the Issuers and Acquirers Community Framework Regulations as published by the Australian Payments Network Limited) relevant to this Agreement.

Transaction means any sales transactions (being the supply of goods or services or both) in which a Card or Card number is used, and which is processed by the Merchant either manually or electronically, and any Refunds.

Transaction Receipt means a document used to evidence a Transaction.

We, Us and Our means, collectively, the Acquirer and PayNuts.

You and Your means you, the Merchant, the Person to whom the Payment Service is provided by Us.

2. APPROVAL TO USE PAYMENT SERVICES

2.1 You acknowledge that:

(a) the operation of this Agreement is conditional on the Acquirer approving an application for PayNuts to provide the Payment Services to You; and

(b) in relation to information provided by You to PayNuts in connection with Your application:

• (i) PayNuts may provide that information to the Acquirer;
• (ii) We may rely on such information as being complete, accurate and not misleading or deceptive; and
• (iii) the Acquirer is not obliged to verify the completeness or accuracy of the information it receives from PayNuts

(c) We may obtain from any Card Scheme or a person who is involved in any Card Scheme, any credit reporting agency or any other person, information about Your merchant history or Personal Information about You, a Related Body Corporate, Your officers, employees or agents for any purpose relating to the operation of those Card Schemes and We can use any such information to assess an application from Us under clause 2.1(a);

(d) We can disclose information about Your merchant history, a data breach and relevant Personal Information in the following circumstances:

• (i) to any Card Scheme or to any person who is involved in any Card Scheme, information about You for any purpose related to the operation of those schemes, Card fraud detection agencies (including information about termination of merchant solutions and reason(s) for termination of the Acquirer merchant solutions; and
• (ii) where the law requires or permits Us to do so; and
• (iii) where We have reasonable grounds to believe that either You are involved in dishonest or criminal activity, are a victim of such activity, may have information relevant to an inquiry into such activity or have experienced a data breach, to any state or federal law enforcement or regulatory agency whether or not We have been requested by that agency to provide such information; and

(e) We can disclose Your information to any Affiliates of Ours and to any outsourced service providers engaged by Us (for example, mail houses, debt collection agencies (where necessary) or data analytics providers); and

(f) the decision whether to approve Your application is at the Acquirer’s sole discretion and the reason for any decision which is made may not be given to You;

(g) an approval by the Acquirer is specific to PayNuts providing Payment Services to You and does not in any way constitute a representation by the Acquirer that You will be able to use the services of another payment service provider or of the Acquirer directly should You cease using PayNuts’s payment services for any reason; and

(h) any information obtained by the Acquirer during its assessment of an application under clause 2(a) is and remains confidential to the Acquirer and will not be shared with You. the Acquirer is bound by Card Scheme Rules and all correspondence and discussions between Card Schemes and the Acquirer are confidential as between the Acquirer and the Card Schemes; and

(i) the terms of this Agreement are confidential and You must not disclose them to any third party without Our prior written consent.

2.2 You represent and warrant that:

(a) any information You provide to PayNuts in connection with an application for PayNuts to provide the Payment Services is complete, accurate and not misleading or deceptive; and

(b) if You have disclosed Personal Information to PayNuts in connection with the application under clause 2.1(a), You have provided the required notices and obtained the relevant individual’s prior consent to the disclosure and otherwise complied with Your obligations under Privacy Law; and

(c) You are able to satisfy Your obligations and responsibilities under this Agreement.

2.3 You acknowledge and agree that:

(a) PayNuts and the Acquirer are authorised to obtain from third parties financial and credit information relating to You in connection with Our decision to approve Your application and in respect of Our continuing evaluation of Your financial and credit worthiness; and

(b) any information collected by PayNuts may be disclosed by Us to the Acquirer.

2.4 The Parties agree that no Party is or will be bound by this Agreement unless and until the Acquirer has confirmed its approval for PayNuts to provide the Payment Services to You.

2.5 Equipment: Where You use any Equipment approved or supplied by PayNuts in connection with the Payment Services (i.e. any POS Terminals but excluding power outlets and telecommunication lines), You must comply with the terms of Schedule A to this Agreement.

2.6 Gateway Services: To facilitate the processing of Transactions online, We may provide You Our online processing system that provides an interface for the transmission of Transaction data between You and Us in connection with the acquiring services (the Gateway Services). Where You use the Gateway Services, You shall comply with the terms of Schedule B to this Agreement.

2.7 PayNuts Merchant Portal: If You receive access to the PayNuts Merchant Portal in connection with the Payment Services, you acknowledge and agree that Your access to and use of the PayNuts Merchant Portal is subject to the Merchant Portal Terms of Use available on the PayNuts website at www.paynuts.au (as amended from time to time).

3. YOUR OBLIGATIONS

3.1 You:

(a) must immediately notify PayNuts of any change to Your financial position which may affect Your ability to perform Your obligations under this Agreement; and

(b) must immediately notify Us if You have or are likely to undergo a Change of Contol; and

(c) must provide PayNuts with prior written notice of any change in Your place of business and not carry on business in a place which has not been approved by PayNuts and must not move Your place of business without Our prior written consent; and

(d) must not change Your business name or ownership of Your business without giving PayNuts prior notice and not substantially change the type of goods and services You sell without Our prior written consent; and

(e) only submit a Transaction where You are the supplier of the goods and/or services; and

(f) not submit Transactions on behalf of a third party. For the avoidance of doubt, this includes submitting Transactions for goods or services sold on another Person’s website; and

(g) must allow the employees, contractors or agents of the Acquirer or those of any Card Scheme reasonable access to Your premises during normal business hours to check Your compliance with this Agreement, the Data Security Standards or for the purposes of the relevant Card Scheme Rules; and

(h) must provide PayNuts and the Acquirer with all information and assistance reasonably required to perform their obligations and to deal with any queries in relation to the Payment Service; and

(i) must comply with all applicable Card Scheme Rules and Relevant Laws and contractual requirements in accepting Card payments and performing Your obligations under this Agreement; and

(j) must comply with the Operating Procedures and observe and implement the fraud prevention procedures set out in the manuals, guides or directions provided to You, unless otherwise mutually agreed to by the parties.

3.2 You must:

(a) immediately provide Us with your records, all information and assistance that We may reasonably require, relating to any Transactions;

(b) keep in a secure manner all Transaction records for at least 24 months from the date of delivery of the goods or services; and

(c) give Us a clear and legible copy of any receipt, voucher or other Transaction record that We ask for (otherwise the Transaction may be charged back to you); and

(d) stop accepting Cards as and when notified to you by Us.

Data Security Standards

3.3 This clause applies to You if You collect payment data directly from a Cardholder or store any Cardholder data. In addition to the other provisions of this Agreement, You acknowledge and agree:

(a) Cardholder data is confidential and constitutes personal information defined in the Privacy Act 1988 (Cth). You must comply with all applicable Privacy Laws in connection with Your collection, handling, processing and storage of such Cardholder Data; and

(b) You must protect stored Cardholder data, regardless of the method used to store such data. Data storage also includes physical storage and security of Cardholder data. Some examples of other data storage which must be secured include an access or excel database and hard copy files. Storage should be kept to the minimum required for business, legal, and/or regulatory purposes; and

(c) You must not store the personal identification number (PIN) or sensitive authentication data after authorization (even if encrypted); and

(d) if PayNuts or the Acquirer tell You that You must comply with the Data Security Standards, You must, at Your cost, successfully complete the protocols for PCIDSS within the time frame stipulated by PayNuts or the Card Schemes. You acknowledge and agree that if You fail to do so:

• (i) PayNuts or the Acquirer may terminate the Payment Services; and
• (ii) You are liable for any fine imposed upon the Acquirer by the Card Schemes as a result of Your failure to comply; and
• (iii) You are liable for any fines which the Card Schemes levy in the event that You suffer a Cardholder data compromise incident, and have not complied with the PCIDSS Accreditation program; and
• (iv) the Acquirer is obliged to report all Data Breach events to Card Schemes, law enforcement agencies and/or Australian regulators. You grant irrevocable and enduring consent for the Acquirer to release details of any such Data Breach to the aforementioned bodies; and

(e) if You have suffered a Data Breach, You must give the Acquirer and its agents full access to Your systems and databases to facilitate a forensic analysis to ascertain:

• (i) what Cardholder data has been compromised; and
• (ii) what weaknesses in the system permitted the unauthorised access to the data base; and
• (iii) whether Cardholder data was created, deleted, altered, copied or manipulated in any manner; and
• (iv) all costs of the forensic analysis must be paid by You; and

(f) in order to continue processing Card Transactions, You must undergo a full PCIDSS accreditation. All costs of this accreditation exercise must be paid by You.

Your duties to Cardholders

3.4 Subject to the other provisions of this Agreement, You:

(a) must accept any valid and acceptable Card in a Transaction; and

(b) must only send PayNuts a Transaction when You have committed to provide the goods and services to the customer; and

(c) must not accept a Card in a credit card Transaction for the purpose of giving a Cardholder cash; and

(d) must perform all obligations (including supplying all goods and/or services) to the Cardholder in connection with the sale; and

(e) must not sell, purchase, provide or exchange any information or document relating to a Cardholder’s account number, or Card number, or a Transaction, to any Person other than:

• (i) PayNuts;
• (ii) the Acquirer; and
• (iii) the Card issuer; or
• (iv) as required by Relevant Law; and

(f) must destroy any document that is no longer required to be retained by Relevant Law or Card Scheme Rules, in a manner which makes the information unreadable; and

(g) must take reasonable steps to ensure that the information and documents mentioned in (e) are protected from misuse and loss and from unauthorised access, modification or disclosure; and

(h) must not make any representation in connection with any goods or services which may bind PayNuts, the Acquirer or any Card Scheme; and

(i) must not indicate or imply that PayNuts, the Acquirer or any Card Scheme endorse any goods or services or refer to a nominated Card in stating eligibility for goods, services, or any membership; and

(j) must not accept a Card or a Transaction which is of a type You have been previously advised is not acceptable; and

(k) must prominently and unequivocally inform the Cardholder of Your identity at all points of Cardholder interaction (including on any relevant website, promotional material and invoice) so that the Cardholder can readily distinguish You from PayNuts, any supplier of goods or services to You, or any other third party; and

(l) must provide notice to any Cardholder with whom You enter into a Transaction that You are responsible for that Transaction, including for any goods or services provided, any payment Transaction, related service enquiries, dispute resolution, and performance of the terms and conditions of the Transaction; and

(m) must not unfairly distinguish between issuers of a Card when accepting a Transaction; and

(n) must not refuse to complete a Transaction solely because a Cardholder refuses to provide additional identification information in circumstances where We do not require You to obtain it; and

(o) if You collect or store Cardholder information, You must comply with any Data Security Standards notified to You; and

(p) You must not transfer or attempt to transfer financial liability under this Agreement by asking or requiring a Cardholder to waive his or her dispute rights.

Recurring Transactions

3.5 You may only process a Transaction as a recurring Transaction if:

(a) You have obtained Cardholder permission (either electronically or in hardcopy) to periodically charge for a recurring service; and

(b) You retain this permission for the duration of the recurring services and make it available to Us on request; and

(c) You provide a simple and accessible online cancellation procedure if the Cardholder request for the goods or services was initially accepted online.

Indemnity

3.6 You agree to indemnify and hold each of PayNuts and the Acquirer (jointly and severally) harmless from and against any fines imposed on the PayNuts and/or the Acquirer by a Card Scheme because of Your conduct in relation to the Payment Services, including any fines imposed as a result of an unacceptable rate of Chargebacks.

4. WEBSITE REQUIREMENTS

4.1 Unless You are otherwise notified in writing, You must, before You accept any electronic commerce Transaction over the Internet, establish and maintain at Your own expense a website that complies with the requirements of clause 4.2.

4.2 The website must clearly display the following information:

(a) Your business name (and Australian Business Number as applicable); and

(b) the address of Your approved place of business; and

(c) Your business contact details, including telephone numbers and an email address; and

(d) a complete description of the goods and services available for purchase on Your website with the price advertised in Australian dollars or, if We have agreed that You can process Transactions in another currency, that currency; and

(e) details of Your return and refund policy, including how a Transaction can be cancelled by a Cardholder; and

(f) details of Your delivery times for goods and services. Delivery times are to be appropriate for the type of business carried on by You. If the delivery is to be delayed, the Cardholder must be notified of the delay and an option provided to them to obtain a Refund; and

(g) details of any Australian export restrictions (if applicable); and

(h) details of Your privacy policy and how You intend to deal with, or share, Personal Information obtained from and about the Cardholder; and

(i) a description of the measures You have to maintain the security of:

• (A) Cardholders’ account data; and
• (B) any other information which, by notice, We or the Acquirer require You to display from time to time; and
• (ii) any other information required for the purpose of complying with Card Scheme Rules.

4.3 You must provide Us with reasonable access to view, monitor and audit the pages of Your website.

4.4 Your website payments page must be protected by Secure Sockets Layer or any other form of security method approved in writing by Us.

5. CARD ACCEPTANCE REQUIREMENTS

5.1 You must:

(a) use reasonable care to detect forged or unauthorised signatures or the unauthorised use or forgery of a Card; and

(b) notify PayNuts if You become aware of or suspect fraud on the part of a Cardholder; and

(c) not deliberately reduce the value of any one Transaction by:

• (i) splitting a Transaction into two or more Transactions; or
• (ii) allowing a Cardholder to purchase items separately; and

(d) establish a fair policy for dealing with Refunds and disputes about Transactions and include information about that policy on Transaction Receipts as required by PayNuts; and

(e) only submit a Transaction as a Refund to a Cardholder if it is a genuine Refund of a previous sale Transaction. The Refund must be processed to the same Card that was used in the original sales Transaction and be for the original sale amount; and

(f) give Refunds for Transactions by means of credit and not in cash or cheque; and

(g) not process a Refund as a way of transferring funds between Your accounts; and

(h) if a Transaction for a sale does not cover the full amount of the sale:

(i) in the situation in which the Card is used to make a deposit or pay an instalment You may accept the Card in payment of all or part of the outstanding balance; and

• (ii) in any other circumstance You must obtain the balance due at the time the sale is completed in cash; and
• (iii) not state or set a minimum or maximum amount for a Card Transaction without Our prior written consent; and

(j) not ask a Cardholder to reveal their PIN or any other secret identifier; and

(k) contact PayNuts for instructions if the identification of a Cardholder or the validity of the Card is uncertain; and

(l) not knowingly submit for processing any Transaction that is illegal or that You should have known is illegal.

5.2 For remote Transactions, You must:

(a) take reasonable steps to verify the identity of the Person You are dealing with, in order to confirm that they are the genuine Cardholder; and

(b) record reasonable identification details of the Person You are dealing with, as well as the commencement and expiry dates of the Card.

6. SURCHARGING

Amount of Surcharge

6.1 Where You elect to charge a Cardholder a surcharge in respect of a Transaction, You must not impose a surcharge in excess of the reasonable cost of Card acceptance or which breaches any Relevant Law or Card Scheme Rules.

6.2 Upon request by Us or any Card Schemes, You must produce supporting information to substantiate Your costs of Card acceptance. Where the Card Scheme dictates the format of the required substantiation, e.g. through use of a “reasonable cost of acceptance calculator”, You must provide details of Your costs in the required format.

6.3 Where required by a Card Scheme, You must submit, at Your cost, to an audit of Your costs of Card acceptance by an independent auditor approved by the Card Scheme requiring the audit. The audit must be completed, and results reported back to the relevant Card Scheme within the timeframe specified by the Card Scheme.

6.4 Where, following an investigation into Your surcharging and cost of Card acceptance, We or a Card Scheme determine that the amount that You are surcharging exceeds the reasonable costs of Card acceptance, We may by 30 days’ notice to You require You to reduce Your surcharge level to an amount that does not exceed the reasonable costs of Card acceptance.

6.5 Without limiting any other rights that We may have under this Agreement, We may, by notice to You, terminate this Agreement if, following receipt of notice under clause 5, You fail to reduce Your surcharge level to an amount that does not exceed the reasonable costs of Card acceptance.

6.6 You acknowledge that excessive surcharging by You could expose PayNuts and the Acquirer to fines from Card Schemes. You agree to indemnify PayNuts and the Acquirer against any fines imposed by Card Schemes in relation to Your surcharging practices.

6.7 You acknowledge that Card issuers may from time to time change the classification of a credit card (i.e. standard or premium) and, as a result, when applying a surcharge rate to a Cardholder, it cannot be guaranteed that the classification of the Card (i.e. standard or premium) on which You have based the surcharge will be the same as the classification on which You are charged Your merchant service fee in relation to the same Transaction.

Disclosure of surcharge

6.8 You must clearly disclose to the Cardholder before the Transaction is completed any surcharge that You will charge for completing the Transaction, and do it in such a way that allows the Transaction to be cancelled without the Cardholder occurring any cost.

6.9 You must display on the payment page on Your website a notice stating:

• (a) that You charge a surcharge; and
• (b) the exact amount or percentage of the surcharge.

6.10 You must not represent or otherwise imply that the surcharge is levied by a Card Scheme or by Us or any other financial institution.

6.11 Definitions

“Surcharge” means any fee charged by a merchant to a Cardholder that is added to a Transaction for the acceptance of a Card.

Costs that form Your “reasonable costs of Card acceptance” will be determined having regard to the Reserve Bank of Australia’s Guidance Note: Interpretation of Surcharging Standards, as amended or replaced from time to time.

7. TRANSACTION RECEIPTS

7.1 Unless We have agreed that We will provide the Transaction Receipt to the Cardholder, You must give the Cardholder a copy of the Transaction Receipt for each Transaction, but You must not charge a fee for doing so.

7.2 If You are notified that You must prepare the Transaction Receipt, You must ensure the information contained in the Transaction Receipt:

• (a) is identical with the information on any other copy; and
• (b) legibly includes the information notified to You.

7.3 You must provide PayNuts with the Transaction Receipt and any other required evidence of the Transaction within seven (7) days after You are asked by PayNuts to provide it.

7.4 If You wish to change Your Internet or email address, or telephone number appearing on the Transaction Receipt, You must notify PayNuts in writing at least fifteen (15) Banking Days prior to the change taking effect.

8. INVALID OR UNACCEPTABLE TRANSACTIONS

8.1 A Transaction is not valid (Invalid Transaction) if:

(a) the Transaction is illegal as per Relevant Laws; or

(b) if applicable, the signature on the voucher, Transaction Receipt or authority is forged or unauthorised; or

(c) the Transaction is before or after any validity period indicated on the relevant Card; or

(d) You have been told not to accept the Card; or

(e) the Transaction is not authorised by the Cardholder; or

(f) the particulars on the copy of the voucher or Transaction Receipt given to the Cardholder are not identical with the particulars on any other copy; or

(g) the price charged for the goods or services is inflated to include an undisclosed surcharge for Card payments; or

(h) another person has provided or is to provide the goods or services the subject of the Transaction to a Cardholder; or

(i) You did not actually supply the goods or services to a genuine Cardholder as required by the terms of the Transaction, or have indicated Your intention not to do so; or

(j) the Transaction did not relate to the actual sale of goods or services to a genuine Cardholder; or

(k) the Transaction is offered, recorded or billed in a currency We have not authorised You to accept; or

(l) this Agreement was terminated before the date of the Transaction; or

(m) You have not complied with Your obligations in clause 3.3; or

(n) if applicable, the details are keyed into Equipment and You did not legibly record on a Transaction Receipt the information required by clause 7; or

(o) it is a credit Transaction in which:

• (A) the amount of the Transaction or Transactions on the same occasion is more than any applicable limit notified to You; or
• (B) You collected or refinanced an existing debt including, without limitation, the collection of a dishonoured cheque or payment for previous Card charges; or
• (C) You provide a Cardholder with cash; or

(p) it occurs during a period in which Your rights under this Agreement were suspended under or after this Agreement was terminated; or

(q) You cannot give a Transaction Receipt as required by clause 7 provided for herein; or

(r) for any other reason, the Cardholder is entitled under the Card Scheme Rules to a Chargeback of the Transaction.

8.2 A Transaction is not acceptable (Unacceptable Transaction) if:

(a) the Cardholder disputes liability for the Transaction for any reason or makes a claim for set-off or a counterclaim; or

(b) it is of a class which the Acquirer or PayNuts decide, in their discretion, is not acceptable.

8.3 If a Transaction is an Invalid Transaction, or otherwise constitutes a valid Chargeback in accordance with this Agreement and relevant Card Scheme Rules, You acknowledge and agree that the Acquirer or PayNuts may (at Our discretion as the context dictates and without a request or demand from a Cardholder):

(a) refuse to accept the Transaction; or

(b) if the Transaction has been processed, at any time within two (2) years of the date of the Transaction, charge it back to You by debiting Your nominated account or otherwise exercising any other rights under this Agreement; or

(c) without limiting the above, delay, block, freeze or refuse to accept any Transaction where the Acquirer or PayNuts has reasonable grounds to believe that the Transaction breaches Australian law or sanctions or the laws or sanctions of any other country.

8.4 You must indemnify and keep each of PayNuts and the Acquirer (jointly and severally) indemnified against and must pay Us on demand against all claims, actions, liability, suits, loses defaults, expense, costs (including legal costs and disbursements) and damages we may incur or suffer arising out of or in connection with any Invalid Transactions or Unacceptable Transactions.

9. SETTLEMENT OF TRANSACTIONS

9.1 We will only acquire and settle Transactions for Card types specified in your Application.

9.2 The Acquirer will provide settlement to PayNuts on each Banking Day for the gross amount of all funds received from the Card Schemes in respect of Transactions processed under this Agreement, less any Chargebacks or Refunds.

9.3 PayNuts is responsible for disbursing to You, in accordance with Your funding, reserve and payments arrangements with PayNuts, any settlement amounts received from the Acquirer in respect of Transactions processed under this Agreement.

9.4 You agree to direct any queries regarding settlement to PayNuts.

9.5 You agree to provide bank account details to PayNuts which will be used for settlement of Transactions and authorise PayNuts and the Acquirer to initiate:

• (a) credits to the bank account for proceeds of Transactions submitted; and
• (b) debits to the bank account for any amounts that may be owed or required to be paid to Acquirer under this Agreement, including any amounts or additional fees that We are entitled to charge You for or set off against your account in accordance with this Agreement.

You agree to reimburse PayNuts and/or the Acquirer for the amount of charges incurred as a result of any direct debit being rejected. You acknowledge and agree that We may also charge interest on amounts outstanding where there were insufficient funds in your account to satisfy the above amounts.

9.6 You acknowledge and understand that You are subject to continuous due diligence requirements by PayNuts and the Acquirer and agree that if You are identified on any official sanctions list, or breach any Relevant Laws or regulatory requirements, then neither PayNuts nor the Acquirer:

(a) will have any obligation to settle any then outstanding Transactions to You and the proceeds shall be deposited and held in a reserve account;

(b) will be obligated to pay to You any amounts remaining from the reserve account after all other then-current and contingent liabilities or obligations related to Your payment Transactions have expired unless You obtain necessary compliance clearance, and may otherwise deal with such money as required by Relevant Laws which You agree shall be deemed to be a payment direction issued by You and will satisfy the Acquirer’s and PayNuts’ settlement obligations under this Agreement; and

(c) You agree to indemnify and hold harmless each of PayNuts and the Acquirer (jointly and severally) from any claims arising from or related to the non-settlement of such Transactions.

10. FEES

10.1 Fees and payments

(a) You must pay PayNuts the fees for the Payment Services, Supplied Equipment and any other ancillary services as set out in your Application, as well as any additional fees, set offs or pricing set out in this Agreement (together the Fees).

(b) Unless the Application states that any Fees are payable up front or in advance, PayNuts will invoice you in arrears for the Fees based on the services provided during the prior billing period. You must pay each invoice within 7 days of the date of the invoice.

(c) PayNuts or the Acquirer may net settle funds to your account periodically less any Fees and set offs incurred.

(d) You must keep a bank account (which may or may not be the same as your settlement account) at a financial institution, from which PayNuts or the Acquirer may collect Fees.

(e) If you do not nominate in your Application a separate fees account, the settlement account will be used and you authorise Us to collect Fees from Your settlement account.

(f) On request at any time, You must provide Us with a direct debit authority to enable PayNuts and/or the Acquirer to debit your fee account with the Fees and set offs specified in this Agreement.

(g) Should You fail to pay any debt which you owe Us, We may commence enforcement action and report your default to a credit reporting agency, which may affect your credit rating and your ability to obtain commercial finance in the future.

10.2 Fee adjustments

(a) The Fees may be adjusted by PayNuts upon at least 30 days' prior written notice:

• (i) if the actual volume or average Transaction size are not as expected or otherwise represented by you in your Application over a period of at least 60 days; or
• (ii) there is a material change in the type of Card interchange type presented
• (iii) if You significantly alter your method of doing business; or
• (iv) to account for any additional services or the provision for further Equipment; or
• (v) to reflect any increases in associated costs by Card Schemes, government or regulatory bodies (such as in the case of interchange, assessments, taxes and other fees), or to pass through increases charged by third parties for on-line communications and similar items.

(b) PayNuts may also increase the Fees for any other reason by notifying you in writing at least 30 days prior to the effective date of any such change.

(c) PayNuts may charge additional fees for responding to specific requests from you for assistance such as providing extra statements, investigations of account activity requested by you and fees associated with dishonoured payments. These additional fees may be charged on a time and materials basis or based on the cost of fulfilling such requests averaged across all merchants and represent additional work required to manage your account with PayNuts in respect of these requests, which are not part of the services provided under this Agreement.

10.3 GST

(a) In this clause, words and expressions which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the same meaning as in the GST Act.

(b) Unless otherwise expressly stated, all consideration to be provided under this Agreement is expressed exclusive of GST. Where any charges are expressed to be inclusive of GST and the applicable GST rate changes, the charges will automatically be adjusted accordingly.

(c) If GST is payable by either of us on any supply made under this Agreement, you will, upon receiving a tax invoice from either of us, pay to the relevant person an amount equal to the GST payable on the supply.

(d) This amount will be paid in addition to, and at the same time, as the consideration for the supply is to be provided.

(e) You agree that either of us, as a recipient of supplies under this Agreement, such as but not limited to in the case of Refunds and other adjustments, may from time to time issue Recipient Created Tax Invoices and submit those invoices to the other. Those invoices will detail the GST applicable to the supply.

11. USE OF CARD SCHEME LOGOS AND TRADEMARKS

11.1 You acknowledge and agree that:

(a) the Card Scheme logos, names and holograms (“the Marks”) are owned solely and exclusively by the relevant Card Scheme; and

(b) You will not contest the ownership of the Marks for any reason; and

(c) the Card Schemes may at any time, immediately and without notice, prohibit You from using any of the Marks for any reason; and

(d) You may only use advertising and promotional material for the Cards or which show a Card Scheme Marks in the manner the Acquirer approves, unless You have received authorization from the Card Schemes through other means.

12. REPRESENTATIONS AND WARRANTIES BY YOU

12.1 You represent and warrant that:

(a) by entering into this Agreement, You are not currently and will not be in breach of any Relevant Law or any obligation owed to any Person; and

(b) where applicable, You are duly authorised to enter into this Agreement and the obligations under this Agreement are valid, binding and enforceable in accordance with its terms; and

(c) if You are an incorporated body, You validly exist under the laws of Your place of incorporation and have the power and authority to carry on Your business as that business is now being conducted and using any name under which that business is being conducted; and

(d) if You, a Related Body Corporate or any officer, employee or agent of You or a Related Body Corporate has at any time been listed on a database of terminated merchants maintained by any Card Scheme or have otherwise had merchant services terminated by another acquiring bank, You have disclosed that fact to PayNuts.

12.2 The representations and warranties set out in this clause will be deemed to be repeated each day after the date You enter into this Agreement.

13. NO WARRANTIES BY US

Neither PayNuts nor the Acquirer make any warranties in respect of any of the Payment Services and any other ancillary services provided under this Agreement. To the maximum extent permitted by Relevant Law, any and all implied warranties and guarantees are excluded. In respect of any warranty or guarantee which is unable to be excluded under any applicable Relevant Law, Our liability in respect of a breach of that warranty or guarantee is limited to the re-supply of the goods or services or the payment of the cost of having the goods or services supplied again.

14. EXCLUSION OF LIABILITY

14.1 In no event will PayNuts or the Acquirer be liable for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages.

14.2 To the extent permitted by Relevant Law, neither PayNuts nor the Acquirer will be responsible for any loss or damage suffered by You under the Agreement except for loss or damage directly caused by the willful misconduct or gross negligence of PayNuts or the Acquirer.

14.3 Notwithstanding clause 14.2, neither PayNuts nor the Acquirer shall not be liable for any loss, expenses or damage whatsoever caused by:

(a) the failure for whatever reason of a Card or any Equipment or the system (including any communications, messaging, processing or other system) to function properly or at all; or

(b) the acquisition by any person of information through any unauthorised electronic or other interception of communication on the system; or

(c) the failure of any systems or equipment provided by You.

(d) It is your responsibility to ensure that you have other means available to accept payments if there is any malfunction of the Equipment or any system.

(e) To the extent PayNuts or the Acquirer is liable under this Agreement, you acknowledge and agree that each party’s cumulative liability for all losses or damages You may suffer arising out of or related to this Agreement will not exceed the lesser of:

• (i) $50,000; or
• (ii) the amount of Fees received by PayNuts pursuant to the Agreement for Services performed in the immediately preceding 12 months.

15. TERM, TERMINATION AND SUSPENSION

15.1 The Agreement commences on the date that PayNuts advises You in writing that Your Application has been approved and You are able to commence processing Transactions, unless a later date is specified in Your Application.

15.2 The Agreement continues until terminated by any party in accordance with this clause.

15.3 The Acquirer or PayNuts may suspend or terminate this Agreement or suspend then terminate this Agreement or any part of it at any time if:

(a) You are in breach of Your obligations under or arising out of this Agreement; or

(b) if in PayNuts’s or the Acquirer’s reasonable opinion, the processing of Your Transactions exposes PayNuts or the Acquirer to an unacceptable level of risk; or

(c) You are or have engaged in conduct which exposes PayNuts or the Acquirer to potential fines or penalties imposed under Relevant Law or by the Card Schemes; or

(d) Your business or Equipment is or has been targeted by a person engaged in fraudulent or dishonest activity whether with or without Your knowledge; or

(e) You or any service provider (other than PayNuts or the Acquirer) that Your use in connection with Your use or receipt of the Payment Services has suffered a Data Breach; or

(e) a direction is made by a Card Scheme or under Relevant Law that the Payment Service be suspended or terminated; or

(f) You have experienced an adverse change in financial circumstances; or

(g) You undergo a Change of Control that has not been notified to and approved by Us; or

(h) We have concerns about Your solvency or if You become insolvent or are subject to any form of insolvency administration or a resolution is passed, or an order is made for winding up; or

(i) You have a significant adverse credit event recorded against You.

15.4 This Agreement will terminate automatically and immediately if:

(a) PayNuts’ registration as a member service provider or independent sales organization with any Card Scheme is cancelled;

(b) PayNuts’ agreement with the Acquirer for the provision of merchant services is terminated for any reason; or

(c) any other agreement that You have with PayNuts in respect of PayNuts’ payment processing services is terminated for any reason.

15.5 You may terminate this Agreement in the following circumstances:

(a) for convenience on at least 30 days’ prior written notice; or

(b) on 10 Banking Days’ notice if we notify you of an increase in the Fees or modification to the terms of this Agreement, which materially increases your obligations or diminishes your rights, and you provide notice of termination within 30 days of the date of such notice; or

(c) immediately on written notice to PayNuts if We have breached a material obligation under this Agreement and such breach is not remedied within ten (10) Banking Days after You have given PayNuts written notice requiring Us to do so; or

(d) immediately on written notice to PayNuts if either PayNuts and/or the Acquirer becomes insolvent or are subject to any form of insolvency administration or a resolution is passed, or an order is made for PayNuts’ and/or the Acquirer’s winding up.

15.6 On termination of this Agreement for any reason:

(a) all amounts payable under this Agreement become immediately due and payable; and

(b) You must not process any Transactions through Us, and We have no further obligations to accept Transactions from You after the termination date; and

(c) any rights and obligations of any pary which arose before the termination date will continue, including:

• (i) Your obligations to pay or reimburse Us for any obligations associated with Transactions you have submitted to Us; and
• (ii) Your responsibility for all Chargebacks, Fees, Refunds and adjustments resulting from Transactions processed under this Agreement and all other amounts then due or which thereafter may become due under this Agreement.

(d) You must promptly deliver all Supplied Equipment (including all attachments and parts) to PayNuts at your cost in accordance with Schedule A.

15.7 You authorize the Acquirer to disclose to any Card Scheme advice of termination of this Agreement and the reasons for the termination. You acknowledge that the information concerning termination of this Agreement then becomes available to any member of the Card Schemes. This information, available to any member of the Card Schemes, may be used in assessing subsequent applications for merchant facilities.

15.8 This clause 15 survives termination of this Agreement.

16. ASSIGNMENT

16.1 You may not assign or charge Your rights under this Agreement without Our prior written consent (including by way of a Change of Control).

16.2 Subject to providing you with at least 30 days’ prior written notice, we may assign, novate or transfer this Agreement and/or our rights and obligations hereunder, and/or may appoint an agent or subcontractor to perform our duties hereunder, in whole or in part, to any other third party.

17. AUSTRALIAN AND/OR NEW ZEALAND DOMICILE REQUIREMENTS

17.1 If we are providing the Payment Services to you in Australia, You acknowledge that We may only provide services to You under this Agreement where You:

• (i) have a permanent establishment in Australia through which Transactions are completed;
• (ii) are registered to do business in Australia;
• (iii) have a local address in Australia for correspondence and acceptance of judicial process, other than a post-office box or mail-forwarding address; and
• (iv) pay taxes in Australia (where required) in relation to the sales activity; and
• (v) satisfy any other domesticity requirements imposed by Card Schemes from time to time.

17.2 If we are providing the Payment Services to you in New Zealand, You acknowledge that We may only provide services to You under this Agreement where You:

• (i) have a permanent establishment in New Zealand through which Transactions are completed;
• (ii) are registered to do business in New Zealand;
• (iii) have a local address in New Zealand for correspondence and acceptance of judicial process, other than a post-office box or mail-forwarding address; and
• (iv) pay taxes in New Zealand (where required) in relation to the sales activity; and
• (v) satisfy any other domesticity requirements imposed by Card Schemes from time to time.

17.3 In addition to any other right to terminate or suspend the services, We may immediately cease to accept Transactions under this Agreement where You fail to satisfy the above requirements.

18. GOVERNING LAW

This agreement is governed by the laws of the State of New South Wales, Australia. Each party submits to the jurisdiction of the courts of that State of New South Wales and any courts of appeal from them.

19. AMENDMENT

Subject to Your rights under 15.5(b), We may vary this agreement (including the Fees) on at least 30 days’ written notice to You. If You do not exercise Your rights under 15.5(b) within 30 days of our notice in accordance with this clause, You will be deemed to have accepted the variation to the Fees or other terms of this Agreement.

20. NOTICES

20.1 You acknowledge that the Acquirer and/or PayNuts may deliver notices to You in any of the ways listed in clause 19.2.

20.2 A notice must be in writing and is taken to be received:

• (a) if delivered personally, at the time of delivery;
• (b) if sent by pre-paid post, on the third day after the posting;
• (c) if sent by facsimile transmission, on the date the transmitting machine records transmission of the complete document;
• (d) when the party sending the notice is the Acquirer or PayNuts, if sent by email, at the time when the email enters Your information system.

20.3 The address, facsimile number or email address to be used for notices is the last address, facsimile number or email address advised by a party. You must inform PayNuts immediately of any change of Your address, facsimile number or email address.

21. SET-OFF

PayNuts and the Acquirer may at any time without notice to You set off any Liability owed by PayNuts and/or the Acquirer (as the case may be), to You on any account against any Liability owed by You to PayNuts or the Acquirer (as the case may be) under or in connection with this agreement. For the purpose of this clause, “Liability” means any debt or monetary liability, irrespective of whether the debt or monetary liability is future or present, actual or contingent.

 

Schedule A: Equipment

This Schedule A sets out additional terms and conditions that apply if You use Equipment to process Transactions under this Agreement.

1. Equipment may consist of equipment supplied by PayNuts (Supplied Equipment) or, Your own Equipment (Your Equipment). In processing Transactions using Equipment, You shall only use Equipment that has been approved or supplied by PayNuts.

2. If You use Your Equipment in connection with the Payment Services, You must ensure that Your Equipment complies with all Relevant Laws, policies, and certification procedures that may be specified by Us from time to time. You are, notwithstanding any approval from PayNuts, solely responsible for maintaining, repairing, and replacing, Your Equipment.

3. If PayNuts provides you with Supplied Equipment, then PayNuts:

• (i) will supply such Supplied Equipment;
• (ii) will maintain the Supplied Equipment in accordance with clause 4 of this Schedule A;
• (iii) will deliver and install the Supplied Equipment at the site(s) set out in Your Application;
• (iv) grants you a non-exclusive, temporary and revocable license to use all software, computer programs, related documentation, technology and processes embodied in or provided in connection with the Supplied Equipment, solely for the purposes of using the Supplied Equipment for the purposes of processing Transactions in accordance with this Agreement. You must not reproduce, modify or reverse engineer the software, and you must not give any third party access to the software without PayNuts' prior written consent;
• (v) may replace any Supplied Equipment with other equipment of the same or similar type. The substitute Supplied Equipment shall then be subject to this Agreement;
• (vi) retains (or the Acquirer) retains all ownership and rights in and to the Supplied Equipment as well as associated manuals and Card decals and promotional material;
• (vii) will provide training following its installation, either online or by phone, on the use of the Supplied Equipment to one delegate nominated by You. You are responsible (including all costs) for training Your personnel and must not permit untrained personnel to operate the Supplied Equipment.

4. If an item of Supplied Equipment appears to be defective, you must immediately notify PayNuts. PayNuts will:

• (i) provide general support, assistance and advice regarding the technical and operational feature of the Supplied Equipment;
• (ii) use best endeavours to identify and rectify faults in the Supplied Equipment including Software via remote access or on-site support and maintenance as PayNuts may deem appropriate.

You must ensure that PayNuts or its agents may enter your premises during business hours on reasonable notice to install, inspect the condition of, replace, repair or maintain the Supplied Equipment.

5. You are responsible for ensuring that any devices, hardware, or software, which You use in conjunction with the Equipment have been adequately tested and are compatible with the Equipment.

6. You shall indemnify Us against any losses, liabilities, damages, and expenses, arising out of the use of (i) the Equipment, or (ii) any other devices, hardware, or software, that You use in conjunction with the Equipment.

7. You must:

• (i) operate all Equipment in accordance with this Agreement, the Operating Procedures, and any other instructions We may provide You;
• (ii) keep all Equipment in good working order;
• (iii) safeguard the Supplied Equipment from loss, damage, unauthorised use, misuse, or theft;
• (iv) not remove, disconnect, relocate or modify any Supplied Equipment without PayNuts’ prior written consent;
• (v) allow PayNuts to upgrade the Supplied Equipment where required to comply with any change to Relevant Law or applicable industry or security standards;
• (vi) notify PayNuts immediately regarding any damage to or loss of the Supplied Equipment; and
• (vii) pay a fee of $1,000 (as varied from time to time in accordance with clause 19 of the Agreement) for each item of lost, stolen or damaged Supplied Equipment, as reasonably determined and notified to you by PayNuts. The loss, destruction, theft of or damage to the Supplied Equipment shall not relieve you from your obligations under this Agreement.

8. Without limiting any other rights or remedies that PayNuts may have under this Agreement or at law, You acknowledge and agree that PayNuts may direct debit your nominated bank account specified in your Application for any fees for lost, stolen or damaged Equipment or set off such fees against any settlement amounts payable to You in accordance with the terms of this Agreement.

9. You shall not alter, modify, the Supplied Equipment, or the installation site of the Supplied Equipment, without PayNuts’s consent.

10. If You request changes to the Supplied Equipment, Paynuts shall be entitled to charge the You reasonable fees as determined in Paynuts’s discretion to effect the requested changes. All Supplied Equipment remains the property of PayNuts. If this Agreement is terminated, or if PayNuts requests, You must, in the manner prescribed by PayNuts, return the Supplied Equipment:

• (i) in good working order (fair wear and tear excepted);
• (ii) cleaned and with markings removed; and
• (iii) free from cracks, dents, scratches, and stains;

failing which PayNuts may impose reasonable fees on You for the repair or replacement of the lost or damaged Supplied Equipment (as determined by PayNuts in its discretion).

11. Additional Cards outside of those approved in Your Application may only be used with Equipment upon PayNuts’s prior written consent.

12. You must not give, rent, lease, sub-license, sell to any third party, or grant any form of security or encumbrance over, or cease to be in possession of any part of, the Supplied Equipment. You shall not permit any third party, other than its authorised employees, to use the Equipment.

13. To the extent permitted by Relevant Law, all warranties, and representations, by PayNuts of any kind with respect to the Supplied Equipment, including without limitation any implied warranties of satisfactory quality and fitness for a particular purpose, are excluded. Additionally, without excluding or limiting any obligations that PayNuts has under Relevant Laws (including any applicable consumer guarantees), PayNuts does not warrant or represent that the Supplied Equipment will perform uninterrupted, error-free, with impenetrable security, or with flawless verification of the Cardholder or any other aspect of the Transaction.

Schedule B: Gateway Services

This Schedule B sets out additional terms and conditions that apply if You use the Gateway Services.

1. The Gateway Services include protocols, software components and other interfaces and software related to the Gateway Services (the Gateway Software). PayNuts may also provide Gateway Documents in connection with the Gateway Services. The Gateway Documents comprise of any and all manuals, operating policies, procedures, and other written materials or instructions that are provided in connection with the Gateway Services.

2. You shall not use the Gateway Services in any way, other than in accordance with this Agreement, and any other instructions PayNuts may provide in writing.

3. Subject to any non-excludable rights, You shall not attempt to circumvent any applicable security measures of the Gateway Services, including by disassembling, decompiling, decrypting, extracting, reverse engineering, or modifying the Gateway Software. You shall not apply procedures or processes to the Gateway Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for any Gateway Software, or any algorithm, process, procedure, or other information, contained in the Gateway Software.

4. You shall not allow any third party to access the Gateway Services except Your authorised employees or contractors, both of which must be subject to a confidentiality agreement no less restrictive in every aspect than the confidentiality provisions in this Agreement.

5. You shall not remove or alter in any way whatsoever any copyright notice or acknowledgements appearing on any element of the Gateway Services save to extent approved by PayNuts in writing.

6. You shall ensure that all user credentials (including passwords) for the Gateway Services are kept confidential. You shall not allow any other party to use such user credentials unless permitted by PayNuts. You shall be liable for all acts and omissions done under user credentials that are assigned to You. You shall notify PayNuts immediately if the Gateway Services have been compromised.

7. You shall be responsible for updating Your systems, at Your own cost, to ensure that Your systems are compatible with the Gateway Services and any updates thereto. You are responsible for the correct functioning of Your systems, and shall be responsible for the technical support and integration of Your systems into the Gateway Services. You shall be responsible for the costs of development of Your systems and the integration of Your system into the Gateway Services.

8. PayNuts may in its absolute discretion suspend the Gateway Services for a reasonable period of time for any reason including system maintenance or upgrades. PayNuts will provide as much notice as is reasonable practicable in the circumstances, depending on the reason for the suspension.

9. For the duration of this Agreement, PayNuts grants You a personal, non- exclusive and non-transferable right to use the Gateway Services, the Gateway Software, and the Gateway Documents, strictly for the purpose of PayNuts’s provision of Acquiring Services. All intellectual property rights associated with the Gateway Services are reserved for PayNuts and its licensor (as the case may be).

10. Save for the limited license granted under clause 9 of this Schedule B, nothing in, or arising out of, this Agreement grants You any other intellectual property rights relating to the Gateway Services, the Gateway Documents, or the Gateway Software.

11. To the extent permitted by Relevant Law, all warranties, and representations, by PayNuts of any kind with respect to (a) the Gateway Services; (b) the Gateway Software; and (c) the Gateway Documents; including without limitation any implied warranties of satisfactory quality or fitness for a particular purpose, are excluded. Additionally, PayNuts does not warrant or represent that the Gateway Services or the Gateway Software will perform uninterrupted, error-free, with impenetrable security, or with flawless verification of the Cardholder or any other aspect of the Transaction.