Terms and Conditions (Merchants)
Merchant – Terms and Conditions
PART A: INTRODUCTION
1. About this Agreement
1.1You provide a food and dining experience to Customers.
1.2We provide our Payment Facility under which you may receive payment from your Customers for your goods and services using the Credit and Debit Facility.
1.3You agree that it is a condition of use of the Payment Facility that you apply the Customer Discount to Customer Sales using the Payment Facility.
1.4This Agreement sets out the terms and conditions which apply to our Payment Facility.
2. Definitions and interpretation
2.1In this Agreement:
Acquiring Bank means the bank(s) or the provider(s) of money processing services with which we have arrangements with and which will acquire money from the Customers’ Card accounts and pay such money to the Trust Account less certain deductions.
Affiliate means a body corporate or other entity which we partially or wholly own, have a contractual relationship with, have control over or have a legitimate interest in.
Agreement means the agreement between you and us which comprises the Merchant Application Form, these Terms and Conditions and the Policies.
App means the application provided by us relating to the Payment Facility we offer and any upgrades and other software enabling use of the application.
Bank means an authorised deposit-taking institution as defined in the Banking Act 1959 (Cth).
Bank Account any bank account you hold in your name opened with a Bank set out in the Application Form.
Business Day means a day on which Banks are trading in Brisbane.
Card means any Australian card issued by Visa or MasterCard but excludes Pre-paid Cards.
Card Schemes means the credit or debit card scheme offered by each of VISA, MasterCard, and any other such card scheme operator authorised by the Acquiring Bank.
Cash Price means the lowest price for your goods and services that you offer customers if they pay by cash.
Chargeback means a debit entry to the Trust Account (where applicable), the reversal of a credit previously settled to your Payment Destination, as a result of an invalid Transaction or a re-imbursement claimed by an Issuing Bank on behalf of a Customer for the amount of a Customer’s Transaction.
Charges means the fees and charges outlined in Merchant Application Form.
Cleared Funds means funds held in the Trust Account that are available for distribution to your Payment Destination.
Credit and Debit Facility means the credit and debit payments facility provided through the Acquiring Bank.
Customer means an online or in-store customer which is entitled to use our Payment Facility to purchase goods and services from you.
Customer Discount means: (a) if you have entered into a Promotion Agreement in addition to this Agreement, the Customer Discount specified in the Promotion Agreement; (b) if you have not entered into a Promotion Agreement, any discount that you may offer to Customers from time to time, which a Customer will receive if the Customer pays you using our Payment Facility which shall be applied to the Cash Price and otherwise in accordance with clause 8.
Deductions means the (a) service charges, (b) transaction charges, (c) Chargebacks, (d) Refunds, (e) all government charges and taxes (including goods and services tax) that apply, (f) the full amount of all sales refund Transactions you process, (g) any overpayments or credits we have made in respect of Transactions due to errors or omissions, (h) the value of Transactions which are invalid, including any costs resulting from or monies paid or charges levied in relation to an investigation into the validity of the Transaction or suspected Chargeback, (i) any fees, fines or penalties charged by Card Schemes or costs charged by the Acquiring Bank or Card Schemes, including but not limited to the cost of all forensic investigations, incurred as a direct or indirect result of the your failure to observe your obligations under this Agreement and any other practical operating instructions provided by us, (j) any other money you owe us under this Agreement; (k) reasonable enforcement expenses for any breach of this Agreement and (l) any additional charges imposed by the Acquiring Bank or Card Schemes.
Direct Entry means the transfer of funds between Australian bank accounts, the clearing and settling of which is regulated by Australian Payments Clearing Association as the Bulk Electronic Clearing System.
Issuing Bank means the bank that issued the Card to the Customer.
Merchant Account means an account that we create to identify you and to enable you to use our Payment Facility.
Merchant Application Form means the application form that you need to complete to use our Payment Facility on our Website or App.
Payment Destination means any or all of the following payment destinations: (a) your Bank Account; (b) your Card; or (c) any other payment destination approved by us.
Payment Facility mean the payment facility and associated services offered by us from time to time via our Website or App, including the Credit and Debit Facility.
Payment Request means, in relation to a Sale, a payment request from you to us generated from our Payment Facility when a Sale is completed with a Customer using our Payment Facility.
PCIDSS means the Payment Card Industry Data Security Standards. This refers to the data security standards mandated by Visa and MasterCard to facilitate protection of Customer payment data from unauthorised access, which is applicable to any person who stores, processes or transmits card data regardless of that storage or transmittal device.
Policies means all of our policies displayed on our Website or App.
Pre-paid Card means any stored value or prepaid card and includes both open loop and closed loop pre-paid cards.
Prohibited Use means: (a) selling of products that are illegal or breach any law or regulation; and (b) any use other than in connection with a genuine and legitimate business that provides a food and dining experience.
Promotion Agreement means the agreement entitled ‘Promotion Agreement’ entered into between you and us from time to time.
Refund means a refund of the amount of a Transaction to a Customer totaling no more than the original Transaction value.
Sale means a sale of goods and/or services by you to a Customer.
Terms and Conditions means these terms and conditions.
Transaction means a financial transaction conducted by a Customer using the Credit and Debit Facility when interacting with you.
Trust Account means a bank account or sub-account of a bank account operated by or on behalf of us for the purpose of receiving from the Acquiring Bank and paying Cleared Funds to your Payment Destination.
Website means www.payo.com.au and any other website operated by us.
we, us or our means Payo Funds Pty Ltd ACN 638 179 567 (PAYO) and includes our Affiliate, where applicable.
you or your means the person identified when a Merchant Account is created. If such person does not exist, the name or details are used by someone who is not in fact that person or is otherwise provided dishonestly or fraudulently, then ‘you’ or ‘your’ means the person who clicks to accept these Terms and Conditions. 2.2 In this Agreement, unless the context indicates a contrary intention: (a) a reference to: (i) the singular includes the plural and vice versa; (ii) an individual or person includes a corporation, partnership, venture, association, authority, trust, state or government; (iii) dollars or $ is to an amount in Australian currency; (iv) time is to time in the state or territory where the Services are performed; (v) a day is to a period of time commencing at midnight and ending 24 hours later; (vi) a month is to a calendar month; (b) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; (c) any headings in this Agreement are for convenience only and do not affect interpretation, and (d) including and similar expressions are not to be treated as words of limitation.
3. Agreement
3.1This Agreement is a contract between you and us.
3.2This Agreement comprises the Merchant Application Form, these Terms and Conditions and the Policies.
3.3By completing the Merchant Application Form and clicking accept to these Terms and Conditions, you agree to be bound by this Agreement.
PART B: CREDIT AND DEBIT FACILITY
4. Credit and Debit Facility
4.1We agree to use our best endeavours to provide the Credit and Debit Facility to you on a 24 hour, seven (7) days a week basis, subject to the Acquiring Bank providing its services during these times.
4.2We will transfer by Direct Entry, the balance of all Cleared Funds into your Payment Destination less Deductions.
4.3We will perform ongoing merchant monitoring of you as required by us, the Card Schemes or the Acquiring Bank.
4.4You undertake to:
(a)use your best endeavours to maintain Chargeback rates below chargeback thresholds set by the Card Schemes;
(b)reconcile all Transactions;
(c)perform fraud control and risk monitoring in accordance with our requirements, as is advised from time to time;
(d)respond promptly to all customer inquiries, including cancellations and order changes.
(e)provide us with a complete list of your websites and inform us of any changes to such list within five (5) Business Days of such change;
(f)comply with Australian applicable laws relevant to the operation of your business;
(g)not use the Credit and Debit Facility for a Prohibited Use;
(h)not do anything that constitutes or encourages a violation of any applicable law or regulation in Australia or an overseas jurisdiction, including but not limited to the sale of illegal goods or the violation of export controls, obscenity laws or gambling laws;
(i)not offer for sale goods or services, or use or display materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate;
(j)not generate a significant number of complaints for failing to be reasonably accessible to Customers;
(k)fully comply with the PCIDSS;
(l)not, either directly or indirectly, process any Transaction which was not originated as a result of a Transaction between you and a Customer to whom you have actually supplied the goods and/or services for which the card was used in payment; and
(m)not split a Transaction into two or more Transactions on the same card to avoid having to obtain an authorisation.
5. Fees and processing charges for the Debit and Credit Facility
5.1In consideration of providing the Debit and Credit Facility, you shall pay us the Charges, which shall be deducted from funds held in the Trust Account.
5.2We may at any time review the Charges payable under this Agreement and will notify you of such changes in accordance with this Agreement.
5.3You must pay:
(a)all duties, taxes and charges, including goods and services tax, in relation to this Agreement or any document related to this Agreement to which you are a party; and
(b)all fees charged by the Acquiring Bank in relation to Card Schemes.
5.4The amounts payable to us under this Agreement are exclusive of any goods and services tax.
5.5To the extent that anything done or to be done under or in connection with this Agreement by us constitutes a taxable supply for the purposes of any goods and services tax legislation, the amounts expressed elsewhere in this Agreement as payable or to be provided in relation to that supply will automatically include the additional amount on account of goods and services tax. Such amount will have been calculated by multiplying the value of the non-taxed amount payable or to be provided by you for the relevant taxable supply by the prevailing goods and services tax rate. Any additional amount paid or payable on account of goods and services tax shall be calculated and shall be payable by you without any deduction or set-off of any amount payable by us to you.
5.6If it is determined on reasonable grounds that the amount of any goods and services tax paid or payable by us differs for any reason from the amount of any goods and services tax recovered from you, the amount of goods and services tax recovered or recoverable from you shall be adjusted by us repaying to you the amount of the overpayment or by you paying to us the amount of the underpayment, as the case may be.
6. Surcharging
6.1You must ensure that you:
(a)charge a Customer a price for goods and services comparable to the price it charges for cash for those goods and services;
(b)honour the payment of goods or services by a Customer via the Debit and Credit Facility in accordance with this Agreement;
(c)clearly disclose any surcharges that might apply before processing the Transaction, if you charge a fee for Transactions;
(d)include any surcharge in the relevant Transaction and not process as a separate Transaction;
(e)limit the cost of the surcharge to the permitted surcharge as defined by the Reserve Bank of Australia in a standard or other instrument as updated; and
(f)before a Transaction is completed, allow the Transaction to be cancelled, without the Customer incurring any cost after advising the Customer of the total Transaction amount.
6.2You acknowledge that the card issuers may from time to time change the classification of a card (i.e. standard or premium) and, as a result when applying a surcharge rate to a Customer, it cannot be guaranteed that the classification of the card on which you have based the surcharge will be the same as the classification on which you are charged a merchant service fee in relation to the same Transaction.
6.3You must pay any fines associated with your non-compliance of Card Scheme surcharging rules.
7. Accounts and Deductions
7.1You authorise us to make Deductions from funds held in the Trust Account in respect of Transactions to which such Deductions relate or from any other funds held by us and we may adjust any payment to your Payment Destination to correct any errors identified. If we debit the Trust Account in which there are insufficient funds, then the payment may be reversed and you will be regarded as not having made the payment.
7.2If at any time there are insufficient funds in the Trust Account to allow all Deductions to be made, we may pay the shortfall from future payments received.
7.3We may appropriate funds held in the Trust Account, towards any and all amounts you owe us under this Agreement. If we do this, the balance of the Trust Account will reduce by the amount used for this purpose. We will notify you promptly after exercising our right to appropriate money in the Trust Account.
7.4You must pay on demand the amount of any debt you owe us under this Agreement which remains unpaid. Should you fail to pay any debt which you owe us by the date we set as the due date for that debt, this will be deemed a default of you and we may commence enforcement action and report your default to a credit reporting agency, in accordance with any notice period required by law, which may affect your credit rating and you may have difficulty obtaining finance in the future.
7.5We may also debit or credit the Trust Account with the amount of any deficiencies or charges we establish are payable following an audit or check of you including where the audit has been carried out by a third party on behalf of us or the Acquiring Bank.
7.6You are responsible for reconciling sales and settlements for all Transactions. If you have any concerns about any missing amounts, you must contact us within five (5) Business Days from the date of the Transaction to have it reviewed. Any disputes raised after this time will not be reprocessed.
7.7You are responsible for reconciling the statements that we send you under this Agreement to ensure that payments to and from the Trust Account have occurred in accordance with this Agreement. It is your obligation to check the accuracy of the statements. If you fails to notify us within 3 months of an incorrect fee being processed, and thus an incorrect amount was debited from the Trust Account, or a payment should have been made you, then you will have no claim against us and the account with us will be deemed settled. This includes but is not limited to terminal rental fees, minimum service fees, termination fees and Transaction fees.
PART C: GENERAL
8. Customer Discount for the Payment Facility
8.1You must provide the Customer Discount set out in the Merchant Application Form to our Customers using the Payment Facility.
8.2We may from time to time request you agree to a variation of the Customer Discount. If you do not accept our request within five Business Days, then this Agreement will come to an end subject to any rights or obligations arising prior to that date.
8.3You must:
(a)ensure that the Customer Discount is applied to the Cash Price for all goods and services you sell to our Customers who use the Payment Facility.
(b)ensure that your Cash Price applies to all your customers that pay cash for your goods and services and no further discount is provided to them;
(c)you must not inflate your Cash Price to our Customers;
(d)you must not discriminate against our Customers because they are using the Payment Facility;
(e)you acknowledge that you may not be able to sell your goods and services to some of our Customers but for the Payment Facility;
(f)you must not engage in any sort of price manipulation practice; and
(g)you must not engagement in any unlawful, fraudulent or misleading conduct.
9. Entitlement to use our Payment Facility
9.1To be entitled to use our Payment Facility, you must:
(a)be capable of entering into a legally binding contract;
(b)have a valid and verifiable email address;
(c)have Australian mobile telephone number;
(d)provide your address in Australia;
(e)have access to a Payment Destination; and
(f)meet our verification of identity requirements.
9.2By entering into this Agreement, you represent and warrant that you are entitled to use our Payment Facility and that you are the person entering into this Agreement.
10. Checks
10.1By completing the Merchant Application Form and clicking to accept these Terms and Conditions you authorise us to verify your identity, including verifying your identity in accordance with the the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). This means we may collect and hold personal information and credit-related information about you if you are an individual or one of the following individuals in relation to:
(a)company: the directors and shareholders of that company;
(b)partnership: the partners;
(c)sole trader: the sole trader; or
(d)trust: the trustee and beneficiaries.
10.2In pursuance of clause 10.1:
(a)You acknowledge and agree that we can rely upon:
(i)the information you provide to us;
(ii)the identity that you use; and
(iii)that your use of your Merchant Account and our Payment Facility be for the intended purpose.
(b)You must provide any information or documents requested by us to verify your identity.
(c)You authorise us to make, directly or through third parties, any enquiries we need to verify your identity and assess your identity under this Agreement including ordering a credit report, performing other repayment capability checks and verifying information you provide against third party databases.
(d)All information that we collect about you, including information collected in connection with the verification of your identity, will be collected, used and stored in accordance with our privacy policy displayed on our Website or App.
(e)If we reasonably consider that you have breached an obligation under this Agreement in relation to your identity, the information you provide to us and/or your use of your Merchant Account and our Payment Facility, you agree, on request from us, to provide us with copies of all documents, notes or communications in relation to such alleged breach.
10.3If your information changes, you must update it through your Merchant Account via our Website or App.
11. Your Merchant Account
11.1Once the things in clause
10.1have been completed to our satisfaction, we will open your Merchant Account which will allow you to use our Payment Facility.
11.2You may only accept payment for Sales using our Payment Facility if you have a Merchant Account.
11.3Once your Merchant Account is created, you will be asked to choose and enter a secure password. You may subsequently access your Merchant Account using your password on our Website or App.
11.4You must not permit others to use your Merchant Account or allow anyone else to have or use your secure password.
11.5You agree that if anyone else uses your Merchant Account to accept payment for a Sale using our Payment Facility, that person will be deemed to be you for the purposes of this Agreement and that will not affect our obligations to you under this Agreement or your obligations to us under this Agreement notwithstanding that:
(a)we know that there has been unauthorised use of your Merchant Account;
(b)there is a dispute in relation to the Sale; or
(c)any rights or claims that we may have against that person. except where we have caused unauthorised access or use of your Merchant Account.
11.6You must:
(a)not use your Merchant Account for any unlawful, fraudulent or improper activity;
(b)immediately notify us if you believe that your Merchant Account may be subject to an unauthorised transaction, fraudulent activity or security breach;
(c)co-operate with us to investigate any suspected unlawful, fraudulent or improper activity on your Merchant Account, including authorising us to disclose information to third parties such as Visa and MasterCard for the purpose of identifying fraud and unlawful behaviour;
(d)pay any taxes that may apply to your Merchant Account or use of our Payment Facility; and
(e)not in any way damage or cause harm to our Payment Facility, Website or App.
11.7You authorise us (or any third parties providing services on our behalf) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you or your Merchant Account.
12. In-store Sales
12.1After you have entered the details of the Sale into the App, we will provide your electronic device with a unique QR Code or unique near-field communication via the App.
12.2To accept payment for in-store Sales using our Payment Facility, you must allow a Customer to use the Customer’s electronic device (such as a mobile phone) with the App installed to either:
(a)use its camera to scan the QR Code; or
(b)use its near-field communication device (NFC Device) to scan your NFC Device.
12.3The Sale will be completed once either the QR Code or near-field communication is scanned by the Customer’s electronic device.
12.4Payments will then be made to you in accordance with the terms of this Agreement.
12.5You are responsible for keeping your electronic device secure at all times from theft, fraud, misuse or unauthorised use.
13. Closing your Merchant Account
13.1You may close your Merchant Account by contacting us via the Website or App. All outstanding Payment Requests prior to closure of your Merchant Account will be paid by us provided you have not breached this Agreement.
13.2We may close your Merchant Account at any time and if we do so, this Agreement will continue to apply to any Payment Requests prior to such closure until all amounts owing have been paid by us provided you have not breached this Agreement.
14. Breach of this Agreement
14.1If you breach this Agreement, you agree that in addition to our other rights, we may suspend our obligation to pay for your Payment Request until we ascertain our loss contributed by your breach. We may then set off our loss against our obligation to pay the Payment Request.
14.2We may also limit your access to our Payment Facility or suspend your Merchant Account if we suspect that there is any unlawful, fraudulent or improper activity on your Merchant Account.
14.3Except as otherwise stated, this Agreement will terminate once your Merchant Account is closed but you will remain responsible for all outstanding obligations relating to the Merchant Account even after it has been closed.
15. Payment Requests
15.1We may refuse to pay a Payment Request, refuse to provide the Payment Facility to you or cancel a Payment Request:
(a)if we believe it is necessary to prevent the risk of fraud and money laundering or terrorism financing; and
(b)if we believe that our systems in relation with the Payment Facility have been tampered with.
16. Refunds
16.1The Sale is a contract between you and the Customer. We take no responsibility for the goods and services the subject of the Sale. You acknowledge that the Payment Facility is a means for you to accept payment for the Sale. All refunds and returns must be handled between you and Customer.
16.2Unless we are notified by you that a return and refund is in progress, we will continue to process any Payment Request.
16.3You may notify us that there is a refund to a Customer by using the refund function on the Website or App, in which case:
(a)if the Customer has used our Payment Facility to pay for the Sale but we have not made payment to you, we will cancel the payment to you for that Payment Request;
(b)if we have made a payment to you for that Payment Request, you acknowledge that you will owe us the amount that has been paid by us and we may set off against that amount against any amounts we otherwise owe you under this Agreement.
17. Disputes between you and a Customer
17.1If you have a dispute with a Customer, you should resolve the dispute directly with the Customer. You agree that the outcome of your disputes with Customers will not affect our rights and remedies under this Agreement.
18. Changes to this Agreement
18.1Except for changes to the Customer Discount which must be changed in accordance with clause 8, we may change this Agreement at any time which includes making changes to our Policies.
18.2Please check this Agreement to ensure you are aware of any changes.
18.3We will endeavour to highlight any significant changes to you where possible via our Website or App.
18.4Each time you place a Payment Request you will be asked to agree to the then current terms of this Agreement. Please read this Agreement as well as our Policies carefully each time you agree to this Agreement when accepting a Sale. If you do not agree with the changes, you may close your Merchant Account but this Agreement prior to the changes will continue to apply to all Payment Requests you have previously placed.
19. Limitation of Liability
19.1It is an essential pre-condition to you using our Payment Facility and Website or App that you agree and accept that we are not legally responsible for any liability, loss or damage you might suffer related to your use of our Payment Facility and Website or App, whether from our errors or from third parties. This includes your use or reliance on our Payment Facility or any information on our Website or App.
19.2Your use of our Payment Facility, Website or App is entirely at your own risk, for which we shall not be liable.
19.3It shall be your own responsibility to ensure that any products, services or information available through our Payment Facility and Website or App meet your specific, personal requirements. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
19.4Access to our Payment Facility or our Website or App may occasionally be unavailable or limited due to a number of reasons such as hardware or software failure or defects, overloading of system capacity, disruptive human activity, interruption of power systems, legal or regulatory restrictions and other causes outside of our control.
19.5To the extent permitted by law, we will not be liable for any loss or damage which you may incur as a result of our Payment Facility or our Website or App being unavailable.
20. Competition and Consumer Act
20.1For the purposes of Schedule 2 of the Australian Consumer Law, in particular Sections 51 to 53, 64 and 64A of Part 3-2, Division 1, Subdivision A of the Competition and Consumer Act 2010 (Cth), our liability for any breach of a term of this Agreement is limited to: the supplying of the goods or services to you again; the replacement of the goods; or the payment of the cost of having the goods or services supplied to you again.
21. Disclaimer
21.1To the fullest extent permitted by law, we absolutely disclaim all warranties, expressed or implied, including implied warranties of merchantability and fitness for any particular purpose. We give no warranty that the Payment Facility, Website or App will be free of errors, or that defects will be corrected, or that our Payment Facility and Website or its server is free of viruses or any other harmful components.
21.2Whilst we, at all times endeavour to have the most accurate, reliable and up-to-date information on our Payment Facility and Website or App, we do not warrant or make any representations regarding the use or the result of the use of any document, product, service, link or information in our Payment Facility and Website or as to their correctness, suitability, accuracy, reliability, or otherwise.
21.3To the fullest extent permitted by law, we will not be liable to you for any loss, damage or costs incurred that is indirect or consequential, any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity other than in respect of any such losses incurred by us directly in respect of this Agreement.
21.4You acknowledge that any consumer-related claims you may have in respect of the goods or services sole to Customer will be a matter between you and the Customer, subject to any obligation on us to process refunds and cancel future payments in accordance with this Agreement and our agreement with the Merchant.
21.5To the extent permitted by law, a party’s liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.
21.6The parties will take all reasonable steps to mitigate any loss incurred by them under this Agreement.
22. Intellectual Property and Restrictions of Use
22.1The Payment Facility and Website contain material which is owned by or licensed to us. This material includes the design, layout, look, appearance, trademarks and graphics. You are not permitted to imitate the Payment Facility or reproduce the documents, information or materials on the Website or App for the purposes of sale or the use by any third party. In particular you are not permitted to republish, upload, transmit electronically or otherwise or distribute any of the materials, documents or products that may be available for download from time to time on the Website or App.
22.2We expressly reserve all intellectual property rights in all documents, information and materials on the Payment Facility and the Website or App.
23. Disputes between you and us
23.1We handle complaints in accordance with the Australian consumer protection legislation such as the Competition and Consumer Act 2010 (Cth).
23.2In this regard, we will acknowledge receipt of your complaint within 5 Business Days and will aim to resolve disputes with you within 20 Business Days.
24. Confidentiality and publicity
24.1In this clause, “Confidential Information” means the existence and contents of this Agreement and any information in respect of our business, operations or affairs.
24.2You must keep our Confidential Information confidential and must:
(a)not publish or disclose the Confidential Information to any person except with our prior written consent, to your legal advisors or as permitted under this clause;
(b)not use the Confidential Information for any purpose, except where strictly necessary for the performance of your obligations under this Agreement; and
(c)comply with all applicable privacy laws.
24.3Except where required by law, you must not issue any promotional material or make any public comment on or in connection with this Agreement or that includes our name or any variant of our name without our prior written consent.
24.4You acknowledge that monetary damages alone would not be a sufficient remedy for a default by you under this clause and, in addition to any other legal remedy, we are entitled to any interim, interlocutory or permanent injunction to prevent default under and compel specific performance of this clause.
25. Notices
25.1Unless otherwise stated in this Agreement, you agree and consent to receive all communications from us in electronic form.
25.2Except as explicitly stated otherwise, any notices to us should be given by mail to:
25.3If you wish to contact us for any other reason, you can do so via the Website or App or using the details below: Email: info@payo.com.au Phone: +61 1800 777 296 Address: 1e/528 Compton Rd, Sunnybank Hills QLD 4109
25.4Where a notice is served personally, service of the notice is taken to be effected when delivered. Where a notice is sent by post, service of the notice is taken to be effected on the fourth day after the date of postage.
25.5Where a notice is sent by electronic mail, or through other electronic means, service of the notice is taken to be effected on the day after the day on which it is sent, unless we receive notification that delivery has failed.
25.6You consent to us using the contact details you have provided to us to:
(a)contact you on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless you have notified us that you do not wish to receive such communication); and/or
(b)contact you in relation to your Merchant Account or our Payment Facility or Payment Request or Sale.
26. Indemnity
26.1You must indemnify us and any of our Affiliates to the extent they are involved in the provision of the Payment Facility against any liability for loss, costs (including reasonable legal fees), expense or damage they suffer or incur:
(a)in relation to any claim or demand arising out of your breach of this Agreement; and
(b)in relation to your use of our Payment Facility and your Merchant Account, except to the extent it is contributed to by the negligent act or omission, or default of us, our Affiliates or others under the control of us or our Affiliates.
26.2This clause survives termination of this Agreement.
27. Waiver
(a)A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. A party does not waive its rights under this Agreement because it grants an extension of time to the other party.
(b)The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
(c)Waiver of a power or right is not effective unless it is in writing.
(d)Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given. Waiver of a power or right will not affect the party’s right to exercise such power or right in respect of a subsequent breach of this Agreement.
28. Miscellaneous
28.1This Agreement is governed by the laws in force in Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Queensland, Australia.
28.2This Agreement represents the whole agreement between you and us concerning your use and access to our Payment Facility, Website or App. No other term is to be included in this Agreement except where it is required to be included by any legislation of the Commonwealth or any State or Territory. All implied terms except those implied by statute and which cannot be expressly excluded are hereby expressly excluded.
28.3You must not assign or otherwise dispose of your rights, entitlements and interest in this Agreement without our consent.
28.4We may assign or otherwise dispose of the Website, App, Payment Facility or this Agreement to any person without your consent.
28.5This Agreement is not intended to create a partnership, joint venture or relationship of principal and agent or trust between the parties.
28.6Each party acknowledges that it has not entered into this Agreement in reliance on, or as a result of any representation, promise, statement, conduct or inducement to it by or on behalf of any other party other than as expressly set out in this Agreement.
28.7If any provision of this Agreement is held invalid, unenforceable, illegal or void, for any reason, such provision will be deemed deleted. The remainder of the Agreement will remain in full force and effect. If any provision of this Agreement is held invalid, unenforceable, illegal or void, for any reason in one jurisdiction, but not in another jurisdiction, such provision which will be deemed deleted only in the jurisdiction in which it is invalid, unenforceable, illegal or void. The remainder of the Agreement will remain in full force and effect.
28.8Each party acknowledges that it has not entered into this Agreement in reliance on, or as a result of any representation, promise, statement, conduct or inducement to it by or on behalf of any other party other than as expressly set out in this Agreement.
28.9The rights, powers and remedies provided in this Agreement are in addition to those provided by law.