1. Services

a. Subject to the Merchant completing and passing all onboarding checks with the Payment Services Provider and being accepted by the Processor for the provision of Services, the Processor will provide the Services to the Merchant on the terms of the Merchant Agreement in the Territory.

b. The Merchant enters into, and is bound by, the Merchant Agreement (including these Payment Processor Terms and Conditions) by undertaking any of the following actions:

i. submitting an application with the Payment Services Provider to receive the Services from the Processor;

ii. executing a Payment Services Agreement that incorporates the Merchant Agreement;

iii. providing the Processor with a request to process, acquire or settle any Transaction;

iv. otherwise requesting the Processor provide Services to the Merchant.

v. Where required by a Card Scheme or the Processor, the Merchant must enter into a card acceptance agreement (or equivalent agreement) to receive the Services in respect of that Card Scheme.

c. The Merchant must not allow any third party to use the Services provided by the Processor under the Merchant Agreement without Processor’s prior written consent.

d. The Merchant must not engage in any activity or provide any goods or services that is illegal, that the Processor prohibits or restricts, or that exceeds the Processor’s risk appetite (as notified from time to time).

e. By submitting an application or otherwise providing information (including Personal Information) to the Payment Services Provider, the Merchant acknowledges that such information (including Personal Information) will be disclosed to the Processor for the purposes of assessing any application and otherwise providing Services under this Merchant Agreement, which shall be held by the Processor in accordance with its privacy policy (available here: https://wpay.io/privacy-policy/).

2. Transaction Acquiring and Settlement

a. The Processor will process, acquire and settle all valid authorised Transactions for supported Card Schemes on the terms of the Merchant Agreement.

b. If not already provided, the Merchant must notify the Processor or Payment Services Provider of the Nominated Account (which must be owned and operated by the Merchant). The Merchant must immediately notify the Payment Services Provider of any change to the Nominated Account.

c. Subject to the Merchant Agreement, the Processor will process and acquire each valid authorised Transaction and will credit the Nominated Account with the corresponding settlement amount received by the Processor on a ‘net settlement basis’ for the settlement period. For clarity, settlement for each Transaction will be the gross Transaction amount minus:

i. any applicable Payment Processing Fee;

ii. any chargebacks payable by the Merchant for the applicable settlement period;

iii. any refunds payable by the Merchant for the applicable settlement period;

iv. any amounts that the Processor may, or is required to, withhold under the Merchant Agreement; and

v. any other fines, fees, charges or amounts that are payable by the Merchant under the Merchant Agreement or in connection with a Card Scheme or Law.

d. To the extent the settlement amount for an applicable settlement period is a negative number, the Processor may:

i. set-off or deduct that amount against future settlement amounts payable to the Merchant; or

ii. immediately demand payment of any shortfall.

e. The Processor is under no obligation to make any payment or perform any act in respect of an Invalid Transaction. The Processor may withhold a Transaction amount for up to 90 calendar days where it reasonably believes that Transaction is an Invalid Transaction.

3. Term and Termination

3.1 Term

Unless otherwise agreed, the Merchant Agreement will continue until it is terminated under this clause 3 or clause 10.1.

3.2 Automatic termination 

1.1 The Merchant Agreement automatically terminates (unless otherwise notified by the Processor):

a. with effect on and from the date that the Payment Services Agreement terminates or expires; or

b. in respect of a Card Scheme, on the date that the Payment Services Provider becomes a ‘payment facilitator’ for the purposes of the Card Scheme Rules that apply to that Card Scheme.

3.3 Mutual termination for material breach

Either party may immediately terminate the Merchant Agreement on written notice if the other party materially breaches the Merchant Agreement that is not remediable, or where such breach is remediable it has not been remedied within 7 calendar days.

3.4 Processor termination for cause

The Processor may terminate the Merchant Agreement on 7 calendar days’ written notice if:

a. (Disputed Transactions, chargebacks and refunds) in the Processor’s reasonable opinion the Merchant has an unacceptably high number of Disputed Transactions, chargebacks or refund requests which are persistent and unresolved;

b. (fraud) the Merchant processes a Transaction which they know or ought reasonably to have known to be fraudulent, or the Merchant otherwise acts fraudulently;

c. (representations and warranties) any representations or warranties provided by the Merchant are untrue;

d. (damage to brand or reputation) the Processor reasonably determines that continuation of the Merchant Agreement may damage the Processor’s brand or reputation;

e. (Card Scheme requirement) if required to do so by any Card Scheme, in which case the termination notice period will reflect the notice period required by that Card Scheme;

f. (inaccurate information or failing to provide information) the Merchant provides inaccurate information or fails to provide information required by the Processor to provide the Services;

g. (breaches of Law or Card Scheme Rules) the Merchant breaches any Law or Card Scheme Rule that directly relates to the Merchant Agreement, or acts in a way that causes the Processor to breach any Law or Card Scheme Rule;

h. (no Transaction volume) the Merchant does not submit Transactions in any consecutive 3 month period;

i. (termination with Payment Services Provider) any agreements or arrangements between the Processor and the Payment Services Provider that relate to the Processor providing the Services to the Merchant are terminated or expire; or

j. (termination of third-party arrangements / withdrawal of consents) the Processor can no longer provide the Services due to termination of arrangements with third parties required to provide those Services or the withdrawal of any necessary consents or authorisations, in which case Processor may terminate the Merchant Agreement with immediate effect.

3.5 Consequences of termination

a. The Processor is not liable for any Loss incurred by the Merchant as a result of a termination.

b. All amounts accrued or outstanding under the Merchant Agreement shall become immediately due and payable on termination.

3.6 Suspension

In addition to other suspension and termination rights in the Merchant Agreement, the Processor may (using reasonable endeavours to provide prior notice) vary, suspend or terminate all or part of the Services for the purposes of (routine or emergency) maintenance; security or technical reasons, to avoid a material disadvantage and/or damage to either the Processor or the Merchant.

4. Merchant obligations

4.1 Transactions

The Merchant must:

a. (unless otherwise notified by the Processor) not unreasonably reject the acceptance of Payment Methods (for example, by placing thresholds on the amount or value of the potential Transaction before a Payment Method will be accepted);

b. not accept Invalid Transactions (but if it accepts an Invalid Transaction the Merchant acknowledges that it is liable for the amount of that Invalid Transaction and the Processor will not pay the Merchant in respect of the Invalid Transaction);

c. (unless otherwise agreed with the Processor) only display prices and submit Transactions in the Territory Currency;

d. comply with all Laws,  Rules and Card Scheme Rules in relation to Transactions and any receipts;

e. obtain such Authorisation from the Payment Method holder in relation to a Transaction (as notified by the Processor);

f. ensure that acceptance advice from a Payment Method issuer cannot be overridden;

g. use its best endeavours to resolve any dispute with its customers relating to a Transaction or associated the goods and services;

h. comply with any lawful written direction given by the Processor in relation to Authorisation requirements, Payment Method acceptance or Transaction submission;

i. if a Transaction cannot be processed electronically in real time and the Merchant uses the "Store and Forward" capability, impose appropriate floor limits as advised by the Processor;

j. only charge a fee or surcharge for completing a Transaction in accordance with Laws, Rules and Industry Codes, which must not be more than the Merchant’s cost of acceptance for that Transaction;

k. establish and disclose to its customers clear refund policies that comply with Laws;

l. only process refunds electronically to the original Payment Method used in the Transaction;

m. ensure the Payment Method holder is notified when goods or services cannot be delivered or provided on the agreed upon date;

n. provide such assistance as requested by the Processor in relation to a Disputed Transaction (which may include allowing the Processor (or its agent) to enter the Merchant’s premises to examine and take copies of the Merchant’s books of account and records as they related to the Disputed Transaction); and

o. prominently display all marks of the Payment Methods at its premises and on any website where it submits Transactions.

4.2 Acknowledgements

The Merchant acknowledges and agrees that:

a. the Processor has no obligation to verify any Transaction information supplied to it;

b. an authorised Transaction may still be subject to chargeback or refund, and the Merchant is liable for any chargebacks or refunds;

c. the Merchant is liable for any fines, fees, charges or amounts imposed as a result of its actions under any Law or Card Scheme;

d. if a Transaction cannot be processed electronically in real time and the Merchant uses the "Store and Forward" capability, the Merchant will be responsible for any costs associated with the liability of the "Store and Forward" transactions, including any chargeback costs;

e. the provision of the Services may be affected by outages, faults, or delays. Such outages, faults or delays may be caused by many factors, including without limitation, technical difficulties with the performance or operation of the Merchant or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures;

f. the Processor in its absolute discretion may pay the amount of a Disputed Transaction to the holder of the relevant Payment Method; and

g. the Merchant is liable for the amount of any Disputed Transaction and the Processor may set-off amounts owing by the Merchant under this clause against amounts owing by the Processor under the Merchant Agreement.

5. Liability and indemnity

a. The Processor and its Related Bodies Corporate are not liable for any Loss incurred by the Merchant as a result of its use of the Services, including if the Services or any provided software or terminals are not working or not available, if the Merchant cannot process Transactions for any reason (or there are any errors, failures or delays with Transaction processing), as a result of any suspension of the Services, payment failures or delays due to technical difficulties relating to the banking system or the actions of any intermediary bank or payment, clearing or settlement system, telecommunications providers or the Processor’s own systems.

b. Subject to this clause and except the extent caused by the Indemnified Party, each party (Indemnifying Party) indemnifies and holds harmless the other party and its Related Bodies Corporate (Indemnified Party) against any Loss incurred by the Indemnified Party in connection with any Claim, to the extent caused or contributed by the Indemnifying Party as a result of non-compliance with the Merchant Agreement, Laws, Rules, or Industry Codes.

c. Notwithstanding any other provision and to the extent permitted by Law, neither party will be liable for any Consequential Loss, except to the extent caused by that party’s fraud or wilful misconduct. The aggregate amount of liability of each party in respect of all claims made by the other in connection with the Merchant Agreement is limited to $25,000.

d. The indemnities in the Merchant Agreement are continuing obligations, independent from the other obligations and continue after termination.

6. Data Security and Privacy

6.1 Data security 

a. The Merchant must maintain the security of the Merchant Data in its possession through appropriate security management processes and governance systems that comply with all relevant Industry Codes, Rules, and the Security Standards. If applicable, the Merchant must provide the Payment Services Provider with an annual PCI Attestation Certificate issued by an appropriate quality assurance provider.

b. The Merchant acknowledges that although the Processor implements appropriate security procedures it does not warrant that unauthorised access to information and data could not occur.

6.2 Privacy

a. The Merchant must: comply with Privacy Requirements in relation to Personal Information; provide reasonable assistance to the Processor or Payment Services Provider for any Personal Information inquiry or complaint, ensure that only authorised personnel have access to Personal Information.

b. Where an Eligible Data Breach has occurred (or is reasonably suspected to have occurred) in respect of Personal Information connected to a Transaction, the Merchant must:

i. promptly disclose to the Processor or Payment Services Provider all information relevant to that actual or suspected Eligible Data Breach; and

ii. comply with its obligations under the Privacy Requirements in respect of the Eligible Data Breach.

c. If the Merchant suspects or becomes aware of any other unauthorised use or disclosure of Merchant Data or other breach of the Privacy Requirements, the Merchant must promptly notify the Processor or Payment Services Provider after forming the suspicion or becoming aware of the incident.

7. Intellectual Property Rights

The Merchant acknowledges that:

a. the Processor owns and retains all Intellectual Property Rights related to the Services;

b. any new Intellectual Property Rights created in connection with the Merchant Agreement will be owned by the Processor;

c. the Merchant Agreement does not transfer any Intellectual Property Rights to the Merchant; and

d. any licence provided to the Merchant is only provided to the extent required to receive the Services.

8. Representation and Warranties

The Merchant represents and warrants that:

a. (application not misleading) the information provided by the Merchant as part of its application for Services or in connection with the Payment Services Agreement is true and correct;

b. (existence) it is duly organised, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or taken to be incorporated, and is in compliance with its constituent documents;

c. (solvency) it is not Insolvent;

d. (enforceability) by executing the Payment Services Agreement or any other document referring to the Merchant Agreement, the Merchant Agreement is legal and valid, and is binding on the Merchant;

e. (compliance with laws) it will comply with all of its obligations under the Merchant Agreement and perform all its obligations under the Merchant Agreement in compliance with all applicable Laws, Rules and Industry Codes.

f. (Transactions) in respect of each Transaction:

i. the Merchant has complied with transaction processing rules in the Merchant Agreement, any Law, Rule, Industry Code;

ii. all Transactions details are correct; and

iii. the Merchant is not aware of any fact that would cause the Transaction to be an Invalid Transaction or a Disputed Transaction.

g. The Merchant must provide the Processor or Payment Services Provider with all requested information and assistance to comply with the Anti-Money Laundering and Sanctions Laws, which may be disclosed to service providers or regulators as required.

h. The Processor may suspend the Services and delay, block or refuse to process any payment or other Transaction if the Processor determines that it is reasonably necessary to mitigate or manage its money laundering or terrorism financing risks or risks of breaching Anti-Money Laundering and Sanctions Laws or the Processor knows or reasonably suspects that the payment or Transaction or the application of the Transaction’s proceeds will breach, or cause the Processor or its Related Bodies Corporate to breach, any applicable Laws (including Anti-Money Laundering and Sanctions Laws) or directives of any jurisdiction or any directive or regulation of any agency of any such state or jurisdiction or allow the imposition of any penalty on the Processor or any Related Body Corporate.

9. General

10.1 Changes. The Processor may change these Payment Processor Terms and Conditions from time to time by giving at least 30 calendar days’ written notice to the Merchant. If the Merchant does not agree to these changes, it may terminate the Merchant Agreement on 30 calendar days’ notice to the Processor.

10.2 No partnership. Nothing contained or implied in the Merchant Agreement constitutes a party the partner, joint venturer, agent, fiduciary or legal representative of another party for any purpose or creates any partnership, joint venture, agency, trust or other type of fiduciary relationship, and no party has any authority to bind another party in any way.

10.3 Audit. Where required under Law, any Rules or by any Card Scheme, regulator or similar body, the Processor may audit the Merchant’s compliance with the Merchant Agreement. The Merchant will provide all reasonable assistance and access to allow the Processor to undertake this audit.

10.4 Exercising rights. Subject to express provisions contained in the Merchant Agreement, a party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions). If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.  

10.5 Severability. If the whole of any part of a provision of the Merchant Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction.

10.6 Novation. The Merchant Agreement may be novated to a Related Body Corporate of the Processor.

10.7 Disputes. The parties will not commence arbitration or court proceedings in connection with the Merchant Agreement unless they have first made reasonable attempts to resolve the dispute. Nothing prevents either party seeking urgent injunctive or similar interim relief from a court. Any dispute will be submitted to mediation in accordance with ACDC Guidelines for Commercial Mediation and be conducted in Sydney, Australia. Each party will bear its own costs for mediation. If the dispute is not resolved within 20 Business Days after the appointment of the mediator, either party may commence court proceedings in relation to the dispute.

10.8 Governing law and jurisdiction. The Merchant Agreement is governed by the law in force in New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.

10.9 Subcontracting. The Merchant must not appoint any subcontractor to carry out its obligations under the Merchant Agreement. The Processor may use subcontractors to perform its obligations under the Merchant Agreement.

10.10 Force majeure. If a party is unable to perform its obligations under the Merchant Agreement as a result of a Force Majeure Event, the affected party shall promptly notify the other party and shall be excluded from performing the affected obligations during the period of the Force Majeure Event. The affected party must use reasonable efforts to perform its obligations as soon as reasonably practicable.

10.11 Interpretation. The plural includes the singular and vice versa. The word including and other similar words do not imply any limitation. A reference to any legislation includes a reference to that legislation as from time to time amended, re-enacted or substituted, includes regulations, orders in council and other instruments from time to time issued or made under that legislation and, unless otherwise stated, is a reference to legislation of the applicable Territory.

11. Definitions

These meanings apply unless the contrary intention appears:

American Express means American Express Company and any Related Bodies Corporate.

Anti-Money Laundering and Sanctions Law means rules, regulations or industry codes relating to anti-money laundering and counter-terrorism financing or economic or trade sanctions, including but not limited to: the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and associated regulations, and any sanctions laws or trade embargos administered or enforced by the United Nations Security Council or the Department of Foreign Affairs and Trade (Australia).

Authorisation means the process through which the Merchant requests approval for a given Transaction.

Business Day means any day except a Saturday, Sunday or public holiday in Sydney or Melbourne, Australia.

Card means each card supported by the Processor under the Merchant Agreement.

Cardholder means a person that has been issued with a Card.

Card Schemes mean the card schemes operated by eftpos, Visa, MasterCard, American Express, Diners Club, UnionPay and JCB.

Card Scheme Rules means the rules and regulations which regulate participants in the Card Schemes (including where the requirements are "optional" but triggered by participation and the Merchant is participating).

Claim means any action, cause of action, dispute, controversy, complaint, suit, litigation, proceeding, claim, demand or assessment, fine or similar charge whether arising in contract, tort or otherwise.

Consequential Loss means any loss or damage which, whether or not in contemplation of the parties at the time they entered into the Merchant Agreement, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omission. Consequential loss also means any of loss of opportunity, loss of goodwill, loss of contract, loss of income or revenue, loss or corruption of data or business interruption, loss of profit, losses associated with damage to reputation and loss of sales or goods.

Corporations Act means the Corporations Act 2001 (Cth).

Digital Wallet means a GooglePay, ApplePay, SamsungPay, or any other original equipment manufacturer payment that allows a Cardholder to access a Card or any other Payment Method that the parties agree is a Digital Wallet.

Disputed Transaction means a Transaction:

a. that is an Invalid Transaction;

b. that in the Processor’s opinion is validly disputed by the holder of a Payment Method;

c. in relation to which other evidence is produced that establishes that the holder of the Payment Method has not received in part or in full cash from a cash out request by the holder of the Payment Method.

eftpos means eftpos Payments Australia Limited.

Eligible Data Breach has the meaning given in the Privacy Act 1988 (Cth).

Force Majeure Event means any event beyond the control of a party including act of God, fire, explosion, accident, pandemic, war, acts of terrorism or nuclear disaster, but excluding changes in Law.

Diners Club means Diners Club International Limited and any Related Bodies Corporate.

Industry Code means the ePayments Code, the Issuers and Acquirers Community rules, regulations and procedures, the EPAL rules and regulations, any standards set by the PCISSC including the PCI Security Standards and the rules, regulations, procedures and any other conditions or requirements which apply to participation in any payment, clearing and settlement system relevant to the services provided under the Merchant Agreement including participation in a Card Scheme.

Intellectual Property Rights means, in relation to a party, the rights of that party in and to: any copyrights, patents, designs, trade marks, trade names, business names, get up circuit layout rights; any applications for, or rights to obtain or acquire, any intellectual property rights; any information which may be protected by Law or by an order of any court or tribunal; and any techniques and know-how associated with computer systems and databases relating to the segmentation, storage, retrieval and manipulation of information and data, whether registrable, registered or unregistered and whether protected by Law in the Territory or elsewhere.

Invalid Transaction means:

a. a Transaction that is illegal, fraudulent or undertaken in relation to an activity that the Processor prohibits or restricts, or that exceeds the Processor’s risk appetite (as notified from time to time);

b. a Transaction in respect of which:

    i. the Transaction is not authorised by the Payment Method holder;

    ii. the Merchant did not actually supply the goods, services or cash to a genuine customer as required by the terms of the Transaction, or have indicated an intention not to do so;

    iii. the Transaction did not relate to the actual sale of goods or services to a genuine customer;

    iv. the Merchant did not comply with any requirements set by Processor and notified to the Merchant for the processing of the Transaction;

c. a Transaction in respect of which Processor reasonably suspects that the holder of the Payment Method, the Merchant or its employees, agents or contractors have acted fraudulently; or

d. a Transaction that is submitted using the incorrect Merchant Category Code approved by the Processor.

JCB means JCB Co. Ltd. and any Related Bodies Corporate.

Law includes: common law and principles of equity; any applicable laws made by parliament (and "laws made by parliament" include statutes (including, in the case of Australia, State, Territory and Commonwealth statutes), regulations, orders, rules, subordinated legislation and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them including any standards made by the Reserve Bank); Anti-Money Laundering and Sanctions and Privacy Requirements; and the Card Scheme Rules.

Loss means any liability of any kind, loss, claim, damage, interest, fine, penalty, fee, charge, cost or expense (including reasonable and properly incurred legal and other professional fees, costs and/or expenses).

Mastercard means Mastercard International, Inc and any Related Bodies Corporate.

Merchant means the party entering into the Merchant Agreement with the Processor that is related to the Payment Services Agreement.

Merchant Agreement means the terms (and any documents) agreed to or referred to in the application process (including these Payment Processor Terms and Conditions) that comprise the agreement entered into between the Processor and the Merchant for the provision of the Services to the Merchant, including all Appendices, schedules and other documents incorporated by reference.

Merchant Data means the following information:

a. details of a Payment Method holder used in a Transaction (being name, address, email address, phone numbers and date of birth);

b. account specific information relating to the Payment Method used in a Transaction (being account number, Payment Method number, expiry date, transaction history, payment and credit history and credit limits);

c. details of the Transaction (including the goods or services purchased).

Nominated Account means an account owned and operated by the Merchant with a bank in the Territory.

Payment Method means a Card, Digital Wallet and such other payment instruments that the Processor supports under the Merchant Agreement.

Payment Processing Fee means any fee or charge imposed on the Merchant by the Payment Services Provider or under the Payment Services Agreement.

Payment Services Provider means Oolio Pty Limited (ABN 95 657 508 426).

Payment Services Agreement means an agreement between the Payment Services Provider and the Merchant for the provision of the payment services in connection with the Merchant Agreement.

PCI Security Standards means the security standards set and governed by the PCISSC.

PCISSC means the global forum that is responsible for the development, management, education and awareness of the PCI Security Standards. https://www.pcisecuritystandards.org/

Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

Privacy Requirements means any Law applicable to the collection, storage and disclosure of personal information, including the Privacy Act 1988 (Cth), and, if applicable, any foreign law that applies to the collection, storage and disclosure of personal information.

Processor means Wpay Pty Limited (ABN 86 646 547 908).

a. **Related Body Corporate** has the meaning given to it in the Corporations Act.

b. **Reserve Bank** means the Reserve Bank of Australia.

c. **Rules** means the bylaws, rules, regulations, documentation, manuals and any other instructions issued by the Card Scheme (other than the Card Scheme Rules), government agency or Australian Payments Network Limited.

Security Standards means the PCI Security Standards and standards set by Card Schemes and any other such standards for point of sale systems as specified by the Processor.

Services means the services provided by the Processor to the Merchant under the Merchant Agreement.  

Territory means Australia.

Territory Currency means Australian dollars.

Transaction means the use of a Payment Method to purchase products or services or to obtain a cash advance (if applicable).

UnionPay means UnionPay International Co. Ltd and any Related Bodies Corporate.

Visa means Visa International Service Association and any Related Bodies Corporate.

Appendix: American Express Terms and Conditions

Note: The below terms and conditions are only applicable to merchants that have no direct relationship with AMEX.

About this Appendix

This Appendix applies where the Merchant is located in Australia or New Zealand and the Processor agrees to provide the Services under the Merchant Agreement to the Merchant in relation to American Express Payment Methods.

This Appendix forms part of the Merchant Agreement. It should be read in conjunction with the Payment Processor Terms and Conditions and any other documents that comprise the Merchant Agreement (including the “Appendix: New Zealand Terms and Conditions” where the Merchant is in New Zealand).

This Appendix incorporates the following American Express documents (Amex Terms), as amended from time to time:

• American Express Terms and Conditions for Merchant Card Acceptance dated October 2020;
• International Merchant Regulations; and
• American Express Data Security Operating Policy.

This Appendix is subject to the terms and conditions of Processor’s agreement with American Express (Our Amex Agreement). By using the Services, the Merchant agrees to comply with any directions that Processor gives the Merchant relating to compliance with Our Amex Agreement. The Merchant is not a third party beneficiary under Our Amex Agreement.

Any capitalised terms that are not defined in this Appendix have the meaning given to them in the Payment Processor Terms and Conditions.

Changes to the Payment Processor Terms and Conditions

Payment Processor Terms and Conditions

Where this Appendix applies, the Payment Processor Terms and Conditions continue to apply to the Processor and the Merchant in relation to the Services by including the changes set out in this Appendix as if they were in the Payment Processor Terms and Conditions.

• Where the terms of this Appendix are inconsistent with the Payment Processor Terms and Conditions, the terms of this Appendix apply to the extent of the inconsistency.

Merchant Obligations

• The Merchant must accept American Express Payment Methods in accordance with the terms of:

  • this Appendix (which forms part of the Merchant Agreement);
  • Our Amex Agreement; and
  • the Amex Terms (including any updates or amendments as notified by Processor from time to time). It is the Merchant’s sole responsibility to periodically review the Amex Terms and ensure it complies with them.

• The Merchant acknowledges that the Services under this Appendix are only provided on the basis that the Merchant operates in a consumer retail space or other industry notified by Processor. If the Merchant shifts its business to predominantly sell goods and/or services to other businesses, the Merchant may be required to enter into a direct card acceptance agreement with American Express.

• The Merchant must not contain libellous, defamatory, obscene, pornographic, or profane material or any information that may cause harm to any individuals or damage to the American Express brand on any website that it operates. The Merchant will comply with any directions to remove material or information that breaches this requirement.

• Where required by Processor, the Merchant will implement the American Express SafeKey Programme as a fraud protection tool and comply with applicable requirements notified by Processor (including as set out in the Amex Terms).

American Express Transactions

• The Merchant authorises Processor to submit Transactions to, and receive settlement from, American Express on its behalf.
• The Merchant must promptly inform the holder of an American Express Payment Method if an Authorisation declines.
• Where the Merchant indicates that it accepts Payment Methods from Card Schemes, it must indicate to customers that it accepts American Express Payment Methods (including through the use of American Express marks provided by Processor and in accordance with provided marketing guidelines) at its business location or website prominently, in the same manner and with equal representation as Payment Methods from other Card Schemes. Where this Appendix or the Payment Processor Terms and Conditions terminate for any reason, Merchant must promptly remove all American Express marks from its business location and website.
• The Merchant will comply with all directions and provide all requested information (including documents) to Processor in connection with disputes, Transaction processing, Authorisation, submission and protecting information relating to American Express Payment Method holders.
• The Merchant’s refund policy for purchases on American Express Payment Methods must be at least as favourable as its refund policy for Payment Methods of other Card Schemes and must be disclosed to customers at the time of purchase and in compliance with Law.
• The Merchant must not submit any Transactions that are ‘Prohibited Uses’ under the Amex Terms.
• If American Express determines at any time that the Merchant is high risk or has a disproportionately high number of disputed Transactions or fraud related Transactions, it may place the Merchant on a fraud full recourse program. The Merchant agrees to comply with all directions associated with its placement in that program.

Surcharging

• In accepting American Express Payment Methods, the Merchant must either:
  • not surcharge the holder of the American Express Payment Method to complete a Transaction; or
  • if the Merchant surcharges the holder of the American Express Payment Method to complete a Transaction, such surcharge must not exceed:
    • the surcharge imposed on other credit card Payment Methods that it accepts; and
    • its reasonable cost of acceptance for the American Express Payment Method.
• Merchant must clearly disclose any surcharge it imposes on the holder of an American Express Payment Method prior to submitting a Transaction.
• If Merchant breaches paragraph (a) or (b), Processor may terminate this Appendix and stop providing the Services for American Express Payment Methods with no liability to the Merchant if directed to do so by American Express.
• Merchant acknowledges that American Express may conduct studies from time to time to determine Merchant’s compliance with paragraphs (a) and (b).

American Express Rights

The Merchant acknowledges that American Express:

• holds any rights (but not obligations) that the Processor holds under this Appendix and American Express may enforce such rights against the Merchant as necessary to protect the American Express brand;
• may engage directly with the Merchant for matters relating to this Appendix (including compliance) and the Merchant’s acceptance of American Express Payment Methods. This may include periodic audits and the Merchant will comply with all requests by American Express in relation to such audits; and
• has the benefit of clause 5(a) of the Payment Processor Terms and Conditions as if American Express were included within it. The Merchant’s liability against American Express is also limited as set out in Our Amex Agreement.

Data

• For the purposes of this clause 2.6, Merchant Data (as defined in the Payment Processor Terms and Conditions) also includes any names, postal and email addresses, tax ID numbers, names and social security numbers of the authorised signer of the Merchant, and similar identifying information about the Merchant.
• The Merchant consents to:
  • Processor disclosing Transaction data, Merchant Data, Personal Information and other information about the Merchant to American Express, its affiliates, agents, subcontractors and employees; and
  • American Express, its affiliates, agents, subcontractors and employees using such information to perform its obligations under Our Amex Agreement, operate and promote the American Express network, perform analytics and create reports, and for legal, regulatory and compliance reasons, or any other lawful business purpose.