Terms and Conditions

Last updated on 2 November 2011

PAYMENT GATEWAY AGREEMENT

DEFINITIONS
The following words have these meanings:
“Anti Fraud Checking” means a series of checks made on a Web Payment Transaction (payment only);
“Application Provider” means a third party who provides to and hosts on behalf of an Applicant an application  that requires certification under PCI DSS; 
“Approved Application Provider” means an Application Provider who meets the security standards set out by the Bank and card scheme providers;
“Business Hours” means hours between 9am and 5pm Eastern Australian Standard Times on Business Days;
“Bank” means in respect of Bank Direct Entry, Westpac Bank, otherwise, the Bank specified in the Merchant Application;
“Credit Card Agreement” means an agreement between the Applicant and a Bank or card scheme provider (in the case of American Express, Diners Club and JCB) that provides credit card or charge card facilities authorising the Applicant to process credit card or charge card payments; 
“Direct Entry Agreement” means an agreement between the Applicant and the Bank that provides direct entry facilities authorising the Applicant to process direct entry transactions;
“Execution Date” means the date of acceptance by the Applicant of these Terms and Conditions;
“Fees” means amounts billable by SecurePay to the Applicant under this Merchant Application;
“FraudGuard” means the service of Anti Fraud Checking;
“GST” means any tax payable under the ‘A New Tax System (Goods and Services Tax) Act 1999’ and any related or replacement act;
“Integration Guide” means the integration guide relevant to the Interface set out on the web site of SecurePay, as amended from time to time;
"Merchant Application" means either an online or paper based application for the provision by SecurePay of Payment Services which refer to these online Terms and Conditions;
“Payment Services” means Transaction processing services provided by SecurePay utilising the Payment System including the provision of access via the web to a merchant management facility and the distribution of emailed Transaction reports, as applicable;
“Payment System” means the software and technology system known as SecurePay, eSec or Direct One payments gateway enabling a payment to be made using either a phone or a web site; 
“Term” means in respect of Post Paid Plan 2 and Post Paid Plan 3, three years, and in respect of all other plans, the earlier of the period during which the Transaction Entitlement (if any) is used and one year;
“Transaction” means a payment, pre-authorisation of a payment, refund or reversal attempted by the Applicant or their customer, via a credit card or charge card or via direct entry, as applicable; and
“Transaction Entitlement” means the number of Transactions able to be processed by the Applicant specified in the relevant price plan within the Term.

PAYMENT SERVICES
SecurePay agrees to provide the Payment Services to the Applicant for the purpose of processing Transactions via the Payment System.

SECUREPAY’S OBLIGATIONS
SecurePay will attempt to process via the Payment System Transactions made using:

  1. any MasterCard Card issued by a member or affiliate of MasterCard International Inc, on which the MasterCard or MasterCard II marks appear, and any other card conforming to the Standards established by MasterCard  International Inc.;
  2. any Visa Card issued by a member or affiliate of Visa International on which the Visa marks appear, and any other card conforming to the Standards established by Visa International; and
  3. any duly authorised American Express, Diners Club or JCB credit card which has been approved by SecurePay,
  4. direct entry,

subject to a valid Credit Card Agreement and Direct Entry Agreement, as applicable, being in place in respect of each type of Transaction to be processed.

CONFIDENTIALITY
SecurePay will maintain the confidentiality of each Transaction and will not collect or otherwise deal in commercially sensitive information, except to the extent necessary for the Payment Services.

FEES
The Applicant must pay to SecurePay the Fees within 30 days of invoice date. Transaction Fees without FraudGuard are charged for or deducted from the Transaction Entitlement on Transactions that are either approved or declined by the Bank. Transaction Fees with FraudGuard are charged for or deducted from the Transaction Entitlement on Transactions reviewed by Anti Fraud Checking. SecurePay is not obliged to refund any portion of the Fees in the event that this Merchant Application is terminated for any reason. In the event you default in making payment and recovery action is undertaken, you will be responsible for all expenses in relation to the collection of the outstanding amount including, but not limited to, all charges and fees, legal costs on an indemnity basis, and disbursements.

AUTHORITY
The Applicant authorises SecurePay, the Bank and any other required party to:

  1. discuss any matter that relates to the establishment of an Internet Merchant Account, the provision of the Payment Services and the Applicant’s Obligations,
  2. complete and/ or correct any details in this Merchant Application, and
  3. provide where necessary a copy of this Merchant Application as evidence of the granting of such authority.

SOFTWARE (as applicable)
SecurePay licenses to the Applicant on a non-exclusive non-transferable basis for use on the Web Site during the Term, such software as is necessary to link the Web Site to the Payment System.

APPLICANT’S OBLIGATIONS
Without limiting the Applicant’s obligations under this Merchant Application, the Applicant will:

  1. comply with all reasonable directions of SecurePay relating to the Payment Services including only implementing an Interface exactly to the specification of the relevant Integration Guide;
  2. if hosting the Payment Services with an Application Provider, only do so with one that is an Approved Application Provider; and
  3. comply with all technical, security and privacy standards set out by the Bank and the card scheme providers and provide evidence of compliance to SecurePay upon request.

WITHDRAWAL OF PAYMENT SERVICES
SecurePay reserves the right to immediately and without notice to the Applicant, withdraw or temporarily suspend, the Payment Services, or any part thereof, in the event that:

  1. the Applicant ceases to be a party to a binding Credit Card Agreement or Direct Entry Agreement;
  2. the Applicant fails to comply with its obligations in relation to this Merchant Application;
  3. if advised to do so by any Bank, Visa, MasterCard, Diners, Amex or JCB;
  4. if fraud or the inability of the Applicant to meet charge backs is suspected;
  5. if the Applicant is suspected of not meeting security standards set out by the Bank or card scheme providers;
  6. this Merchant Application is terminated for any reason; or
  7. a service upon which the Payment System relies is unavailable.

LIABILITY
To the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations relating in any way to the services provided under this Merchant Application are excluded.  Without limiting this, SecurePay will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any services provided under this Merchant Application.

GST
Where SecurePay is entitled to any payment under this Merchant Application, SecurePay will also be entitled to recover the amount of the GST on any supply (within the meaning of the GST Legislation).

PRIVACY LEGISLATION
SecurePay undertakes to comply with the Privacy Amendment (Private Sector) Act 2000 and the National Privacy Principles in respect of the storage and handling of information.

CONDITIONS PRECEDENT
This Merchant Application is conditional upon the Applicant being granted a Credit Card Agreement and Direct Entry Agreement, as applicable, and SecurePay’s acceptance of this Merchant Application by a duly authorised representative.

TERM
Payment Services will be provided for the Term commencing on the Execution Date and for additional Terms if not otherwise terminated either in writing by either party 14 days after the end of the concluding Term or otherwise in accordance with any term herein.

GOVERNING LAW
This Merchant Application is governed by the laws of the State of Victoria, Australia.

COMMISSION
SecurePay may pay commission to any person who introduces the Applicant to SecurePay.

REFERRER AGREEMENT

DEFINITIONS
The following words have these meanings:
“Applicant” means the party named in Part 2, excluding a party related directly or indirectly to an employee of SecurePay, at the sole discretion of SecurePay;
“Bank” means any bank providing a merchant service facility to the Client;
“Client” means a party to a Payment Services Application arising from a Referral;
“Credit Card Agreement” means an agreement between the Applicant and a Bank or card scheme provider (in the case of American Express and Diners Club) that provides credit card facilities authorising the Applicant to accept and process credit card payments;
“Card Transaction” means a payment transaction or refund attempted by the Client;
“Execution Date” means the date specified in Part 6;
“GST” means any tax payable under the ‘A New Tax System (Goods and Services Tax) Act 1999’ and any related or replacement act;
“Invoices” means an invoice or invoices issued by SecurePay to the Client for fees rendered pursuant to a Payment Services Application but excludes any component thereof that relates to development, customisation or programming work and any recovery of out of pocket expenses relating to telephony;
“Payment Services” means credit card payment processing services provided by SecurePay to the Client utilising the Payment System including the provision of access via the web to a merchant management facility and the distribution of emailed Card Transaction reports, as applicable;
“Payment Services Application” means an agreement, in a form prescribed by SecurePay, entered into between the Client and SecurePay for the provision of Payment Services and Shopping Cart Services including the renewal thereof up to the number of times specified in Part 4;
“Payment System” means the software and technology system known as SecurePay enabling a payment to be made by a customer using a phone via a credit card to the Client;
“Referral” means the referral of a prospective Client by the Applicant to SecurePay for the provision of Payment Services, accepted as such in the sole discretion of SecurePay, but specifically excludes the Applicant and any party related thereto;
“Shopping Cart Services” means shopping cart hosting services provided by SecurePay to the Client.

COMMISSIONS
SecurePay will pay to the Referrer a Commission calculated by multiplying the Commission Rate specified in Part 4 to Invoices rendered by SecurePay to the Client in any given calendar month. The Commission will be paid by direct bank deposit into the bank account, the details of which are specified in Part 5, such payment being made in the month following the month in which the Invoices were rendered. SecurePay may withhold, in its absolute discretion, a Commission payment or any part thereof until such time as payment of the Invoices is received by SecurePay. In the event a Commission is paid and the Invoices to which the Commission relates is not, SecurePay may deduct the applicable Commission from any future Commission payment and if no such payment takes place, can recover such Commission from the Referrer.

EXCLUSIONS
For the avoidance of doubt, Commissions will not be paid on:-

  1. any component of an Invoice that relates to development, customisation or programming work and any recovery of out of pocket expenses relating to telephony, or
  2. an Invoice rendered to a Client that is the Applicant or any party related thereto.

ACCEPTANCE OF REFERRALS
SecurePay agrees to accept a Referral from the Referrer with a view to entering into a Payment Services Application therewith but provides no guarantee of such occurring.

SECURITY
SecurePay will not collect or otherwise deal in commercially sensitive information, except to the extent necessary to execute its obligations herein or in respect of the Payment Services Application. FEES SecurePay retains sole discretion to set and vary from time to time the fees it charges under the Payment Services Application to the Client, subject to any restrictions therein.

WITHDRAWAL OF PAYMENT SERVICES
SecurePay reserves the right to immediately and without notice to the Client and the Referrer, withdraw the Payment Services in the event that:

  1. the Client ceases to be a party to a binding Credit Card Agreement;
  2. the Client fails to comply with its obligations in relation to their Payment Services Application;
  3. if advised to do so by any Bank, Visa, MasterCard, Diners or Amex;
  4. if fraud or the inability of the Client to meet charge backs is suspected;
  5. if the Client is suspected of failing to meet security standards set out by card scheme providers; or
  6. the Payment Services Application is terminated for any reason.
In the event Payment Services are withdrawn, the Referrer is no longer entitled to Commissions.

LIABILITY
To the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations relating in any way to the services provided under this Application and under the Payment Services Application are excluded. Without limiting this, SecurePay will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any services provided under this Application or under the Payment Services Application either by the Applicant or the Client.

GST
Commissions quoted exclude GST. Where SecurePay is entitled to make any payment under this Application, SecurePay will also pay the amount of the GST on any supply (within the meaning of the GST Legislation).

PRIVACY LEGISLATION
SecurePay will comply with the Privacy Amendment (Private Sector) Act 2000 and the National Privacy Principles in respect of the storage and handling of information.

GOVERNING LAW
This Application is governed by the laws of the State of Victoria.

ACCEPTANCE
The Applicant agrees to be bound by the Terms and Conditions published herein including any and all updates made from time to time,

  1. if in the event of an online application, the Applicant selects the option to accept the Terms and Conditions and clicks the "Set Up My Account" button, or
  2. if the event of a paper application, the paper application refers to the Online Terms and Conditions herein,

provided howsoever that if the Applicant, does not agree to any such update, the Applicant may terminate this Merchant Application within 30 days of the update being published.