Terms and Conditions

LIVE PAYMENTS MERCHANT TERMS AND CONDITIONS

Australia and New Zealand

TABLE OF CONTENTS

PART 1 — GENERAL TERMS

1.0 Introduction
2.0 Definitions

PART 2 — MERCHANT OPERATIONS, PROCESSING AND SETTLEMENT

1.0 Equipment
2.0 Processing
3.0 Surcharging
4.0 Sale Refunds
5.0 Invalid Transactions
6.0 Chargebacks
7.0 Settlement, Holds, and Recovery

8.0 Direct Debit Request

9.0 Direct Debit Request Service Agreement
10.0 Merchant Cash Advance  

11.0 Instant Settlement
12.0 Online Portal
13.0 Merchant Facility Availability and Business Continuity

PART 3 — SECURITY, DATA AND COMPLIANCE

1.0 PCI DSS, Security and Account Data Compromise
2.0 Records
3.0 Confidentiality and Privacy

PART 4 — CONTRACTUAL FRAMEWORK

1.0 Trustees
2.0 Notices
3.0 Variations
4.0 Assignment

5.0 Live Payments Partners (Referrers and Independent Sales Organisations)
6.0 Suspension and Termination
7.0 Governing Law

PART 5 — CARD SCHEME AND THIRD-PARTY TERMS

1.0 American Express Terms
2.0 New Zealand Payment Processor
3.0 Card Scheme Acquirers

PART 1 — GENERAL TERMS

1.0 INTRODUCTION

(a) These Terms and Conditions set out the terms under which Live Payments provides Merchant Facilities that allow you to accept Transactions in Australia and New Zealand.

(b) Live Payments will issue you an offer communication which includes the commercial details for your Merchant Facility. The commercial details will be available in your application, and your completion and submission of the application form confirms your agreement of this offer. If we approve your application for a Merchant Facility, then the Agreement between you and us begins immediately.

(c) You accept our offer and these terms and conditions if you complete and submit an online application form where the original offer may have been facilitated directly with Live Payments or via a Live Payments Partner.

(d) If you do not wish to accept our offer, you must not submit your online application form. If you do submit your online application form then you have accepted the offer and are subject to these terms and conditions and any termination requirements as per Part 4, Clause 6.0.

(e) If you apply for an additional Merchant Facility at a later date and we approve it, the terms applicable to that Facility will be those stated in the relevant offer communication.

(f) The Agreement consists of:

            (i) these Terms and Conditions;

            (ii) any Product Modules we provide to you;

            (iii) any operational guides or Manuals we specify;

            (iv) any policies referenced in these documents; and

            (v) any variations we make in accordance with this Agreement.

(g) You must ensure that any person who processes Transactions or uses the Merchant Facility on your behalf understands and complies with the Agreement.

General Provisions

(h) Limitation of liability
To the maximum extent permitted by Law, Live Payments total aggregate liability to you arising out of or in connection with this Agreement, any Merchant Facility or any Services, whether in contract, tort (including negligence), statute or otherwise, is limited to the total fees paid or payable by you to Live Payments in the three (3) months immediately preceding the event giving rise to the liability.

(i) Exclusion of indirect and consequential loss
To the maximum extent permitted by Law, Live Payments is not liable to you for any indirect, consequential, incidental, special or exemplary loss or damage, including loss of profit, loss of revenue, loss of business, loss of opportunity, loss of data or reputational loss, whether foreseeable or not and whether arising in contract, tort (including negligence), statute or otherwise.

(j) Force majeure
Neither party is liable for any failure or delay in performing its obligations under this Agreement to the extent that the failure or delay is caused by an event beyond its reasonable control, including acts of God, natural disasters, war, terrorism, labour disputes, failures of utilities, telecommunications or payment networks, acts or directions of government authorities, or failures of Card Schemes, Acquirers, Issuers or other third parties.
If such an event continues for more than thirty (30) days, either party may terminate this Agreement by written notice.

(k) Entire agreement and order of precedence
This Agreement constitutes the entire agreement between you and Live Payments in relation to the Merchant Facility and supersedes all prior discussions, representations or arrangements relating to its subject matter.
If there is any inconsistency between documents forming part of the Agreement, the following order of precedence applies, unless otherwise required by Law or the Rules:

(i) these Terms and Conditions;

(ii) any applicable Product Module; and

(iii) Manuals, operational guides, policies and online communications.

(l) No waiver
A failure or delay by Live Payments to exercise any right, power or remedy under this Agreement does not operate as a waiver of that right, power or remedy. A waiver is effective only if given in writing and applies only to the specific instance for which it is given.

(m) Severability
If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision is to be read down or severed to the extent necessary, and the remaining provisions continue in full force and effect.

(n) Independent relationship
Nothing in this Agreement creates a partnership, joint venture, agency, fiduciary or employment relationship between you and Live Payments. You have no authority to bind Live Payments or to represent that you have such authority.

(o) Mandatory law and scheme supremacy
Nothing in this Agreement excludes or limits any liability, right or remedy that cannot be excluded or limited by Law. Where required by the Rules, or by a Card Scheme, Acquirer, Issuer or regulator, those requirements prevail to the extent of any inconsistency.

(p) You represent and warrant that all information you provide to us in connection with your application, onboarding, underwriting or use of the Merchant Facility is true, complete and not misleading.

(q) You must notify us in writing as soon as reasonably practicable if there is any change to:

            (i) your legal name, trading name or business structure;

            (ii) your directors, partners, trustees or beneficial owners;

            (iii) your business activities, Merchant Category Code, sales channels or transaction profile; or

            (iv) your financial position, including any actual or potential insolvency event.

(r) You warrant that you have full power and authority to enter into and perform this Agreement and that doing so does not breach any Law or obligation binding on you.

(s) You must provide any additional information, documentation or verification we reasonably request to comply with AML/CTF Laws, sanctions obligations, the Rules or our risk management requirements.

2.0 DEFINITIONS

In this Agreement, unless the context requires otherwise:

“Account” means any bank account you nominate for Settlement, debits, Chargebacks, fees or any other amounts payable under this Agreement.

“Account Data Compromise (ADC)” means any actual or suspected unauthorised access to, use of, disclosure of, modification of or loss of Cardholder Data.

“Acquirer” means Live Payments or any other entity that enables you to accept Transactions and processes them through the relevant Card Schemes.

“Agreement” means the agreement formed under clause 1.0, comprising these Terms and Conditions and any associated documents referred to in clause 1.0(f).

“AML/CTF Laws” means the Anti–Money Laundering and Counter–Terrorism Financing Act 2006 (Australia), the Anti–Money Laundering and Countering Financing of Terrorism Act 2009 (New Zealand), and any associated regulations or obligations that apply to you or us.

“Authorisation” means an approval (electronic or manual) indicating that a Transaction may proceed.

“Business Day” means a day other than a Saturday, Sunday or public holiday in the jurisdiction relevant to the Transaction or the Merchant Facility.

“Card” means any valid card issued under a Card Scheme and accepted under your Merchant Facility, including credit, debit, prepaid, contactless, virtual and tokenised cards.

“Card Not Present (CNP) Transaction” means a Transaction where the Card is not physically present, including mail order, telephone order and eCommerce Transactions.

“Card Scheme” means Mastercard, Visa, American Express, Diners Club, JCB, Discover, UnionPay, EPAL, or any similar scheme in which we participate.

“Cardholder” means the person to whom a Card has been issued or any person authorised to use the Card.

“Cardholder Data” means data relating to a Card or Cardholder used to process a Transaction, including the PAN, expiry date and Cardholder name.

“Chargeback” means a Transaction that is reversed by a Card Scheme or Issuer and debited to you after Settlement.

“Credit Card Transaction” means a Transaction processed using the “Credit” function or equivalent under the Rules.

“Debit Card Transaction” means a Transaction processed using the “Cheque,” “Savings” or equivalent debit function under the Rules.

“Device” means any physical or digital mechanism, including mobile or tablet applications, that we approve to accept Transactions.

“Dispute” means any disagreement concerning a Transaction, including where a Cardholder denies authorising the Transaction or claims non‑receipt of goods or services.

“DCC (Dynamic Currency Conversion)” means a facility allowing Cardholders to pay in a currency other than the local currency of the Merchant Facility.

“eCommerce Merchant” means a Merchant authorised to accept Transactions processed via an internet‑based Payment Gateway.

“Electronic Fallback” means the functionality that allows a payment terminal to process Transactions offline or without real-time authorisation where network connectivity or system availability is unavailable.

“Equipment” means any payment terminal, peripheral, accessory, SIM card, software, firmware, signage or promotional material we provide or approve for accepting Transactions.

“Financial Crimes” means any breach of AML/CTF Laws, sanctions breaches, terrorism financing, money laundering, or activity reasonably considered suspicious or linked to illicit conduct.

“Floor Limit” means the maximum Transaction amount that may be processed without obtaining Authorisation, if applicable to your Merchant Facility.

“Fraud” means any intentional or reckless deception, misrepresentation, manipulation, abuse or attempt to gain financial advantage through unauthorised or illegitimate Transactions.

“GST” means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Australia) or the Goods and Services Tax Act 1985 (New Zealand), as applicable.

“High‑Risk Activity” means any business activity, Merchant Category Code, product, service or transaction type classified as high‑risk under the Rules, our policies, or any requirements of a Card Scheme, Acquirer, Issuer or regulator.

“Identification Code” means a Refund Password, PIN, passcode or other authentication credential provided to you for use with a Merchant Facility.

“Issuer” means the financial institution or entity that issued the Card used in the Transaction.

“Insolvency Event” means any event where you:
(i) are unable to pay your debts as they fall due;
(ii) enter administration, liquidation, receivership or any form of external administration;
(iii) propose or enter into any compromise, arrangement or assignment with creditors; or
(iv) experience any analogous event under applicable Law.

“Live Payments Partner” means a third party appointed by Live Payments that acts as an independent sales organisation, affiliate or referrer (ISO) and is authorised to promote, market, refer, or resell Live Payments’ Merchant Facilities. A Live Payments Partner does not provide acquiring or payment processing services, does not act as an agent of the merchant, and has no authority to make warranties or commitments on behalf of Live Payments.

“Manual” means any operating guide, instruction, specification, integration requirement, or other document we provide or make available to you.

“Merchant Facility” means the facility we provide to enable you to accept Transactions, including Equipment, Payment Gateways, processing credentials, and identification codes.

“Merchant Cash Advance” or “MCA” means a merchant cash advance or similar funding arrangement under which repayment is facilitated through deductions from Settlement amounts.

“MCA Repayment Amount” means the percentage or fixed amount of Settlement that we deduct and remit in accordance with the MCA repayment terms applicable to you.

“Funding Partner” means the third party that provides you with an MCA.

“Funding Agreement” means the agreement between you and a Funding Partner relating to an MCA.

“MOTO Transaction” means a mail order or telephone order Transaction initiated without the Card being physically presented.

“PAN (Primary Account Number)” means the number embossed, printed or encoded on a Card that identifies the Cardholder’s account.

“Payment Gateway” means an accredited system used by an eCommerce Merchant to obtain Authorisation and process CNP Transactions.

“PCI DSS” means the Payment Card Industry Data Security Standard, including all related standards such as PA‑DSS and P2PE.

“PFI” means a PCI Forensic Investigator approved by the Card Schemes to investigate an ADC.

“PIN” means a personal identification number used to authenticate a Transaction.

“Privacy Laws” means the Privacy Act 1988 (Australia), the Privacy Act 2020 (New Zealand), and any associated regulations or codes.

“Product Module” means any document issued by us describing terms that apply to a particular product, service or functionality associated with the Merchant Facility.

“Quasi‑Cash Transaction” means a Transaction involving goods or services that can be converted to cash or that represent a cash‑like value.

“Recurring Transaction” means a Transaction processed repeatedly using details previously provided by the Cardholder under a continuous payment authority.

“Reserve” means any amount we withhold or require you to provide as security for your actual or potential liabilities under this Agreement, including in respect of Chargebacks, Invalid Transactions, Fraud, disputes, fines, assessments, or other amounts payable by you.

“Rules” means all applicable Card Scheme rules, operating regulations, technical specifications, security standards and directives.

“Sale Refund” means a Transaction reversing a previous sale and returning funds to the Card used in the original Transaction.

“Sensitive Authentication Data” means security‑related information used to authenticate a Cardholder or authorise a Transaction.

“Service Provider” means any third party engaged by you to provide software, hosting, payment processing, integration development or any other service that interacts with Cardholder Data or the Merchant Facility.

“Settlement” means the process by which we credit your Account with the net value of Transactions, less any fees, adjustments, Chargebacks or other amounts payable under this Agreement.

“Terminal” means any payment terminal or device approved by us for processing Transactions.

“Tokenised Transaction” means a Transaction initiated using a Card credential that has been replaced with a token.

“Transaction” means any Card purchase, payment, Sale Refund or other operation processed using a Merchant Facility.

“Transaction Receipt” means an electronic or printed record of a Transaction containing the information required under the Rules.

“Unauthorised Transaction” means a Transaction that the Cardholder claims was not authorised by them.

“We,” “us,” “our” means Live Payments and, where applicable, its related bodies corporate and authorised representatives.

“Website” means your website or online platform that facilitates eCommerce Transactions.

“You” or “Merchant” means the person or entity to whom we provide the Merchant Facility.

PART 2 — MERCHANT OPERATIONS, PROCESSING AND SETTLEMENT

1.0 Equipment

(a) We may supply, lease, rent or otherwise make available Equipment to you, or approve Equipment obtained from a third party, for use with your Merchant Facility.

(b) You must:
            (i) use the Equipment only for the purposes of processing Transactions under this Agreement;

            (ii) comply with all instructions, Manuals and requirements we provide in relation to the Equipment;

            (iii) ensure the Equipment is operated only by authorised and properly   trained personnel; and

            (iv) not permit the Equipment to be used for any unlawful purpose or in a manner that breaches this Agreement or the Rules.

(c) You must not:

            (i) modify, tamper with, reverse engineer or interfere with the Equipment;

            (ii) install or use unauthorised software, peripherals or applications on or in connection with the Equipment;

            (iii) relocate the Equipment without our prior approval, except where the Equipment is designed to be portable; or

            (iv) allow any third party to access, service or repair the Equipment without our consent.

(d) You are responsible for the security, safekeeping and proper use of the Equipment at all times, including preventing unauthorised access, misuse, loss or damage.

(e) You must notify us immediately if:

            (i) the Equipment is lost, stolen, damaged or compromised;
            (ii) you suspect unauthorised access to or use of the Equipment; or
            (iii) the Equipment malfunctions or does not operate as intended.

(f) We may suspend, disable, replace or require the return of any Equipment at any time where reasonably necessary for security, operational, compliance or risk management reasons.

(g) Title to the Equipment remains with us or our supplier unless otherwise agreed in writing. Nothing in this Agreement gives you any proprietary rights in the Equipment.

(h) Upon termination or expiry of this Agreement, or upon our request, you must:

            (i) return any Equipment we own in good working order (fair wear and tear excepted) or otherwise deal with it as we reasonably direct; and

            (ii) pay the replacement or repair cost of any Equipment that is not  returned when required, or that is returned damaged (fair wear and tear excepted), lost, stolen, tampered with or rendered unusable, together with any reasonable costs we incur in recovering, replacing or securing the Equipment.

GPS Tracking of Terminals

(i) For security, fraud prevention, asset management and operational purposes, we may enable GPS or other location-tracking functionality on Terminals we provide to you.

(j) You consent to our collection, use and storage of location data for those purposes.

(k) You must not interfere with, disable, obscure or attempt to circumvent any GPS or location-tracking functionality embedded in or associated with the Terminals.

(l) Any location data collected will be managed in accordance with applicable privacy laws and our Privacy Policy.

2.0 Processing

(a) You must process all Transactions strictly in accordance with:

            (i) this Agreement;

            (ii) the Rules;

            (iii) all Manuals, operational guides and instructions we provide or make available to you; and

            (iv) applicable Law.

(b) You must obtain valid Authorisation for each Transaction in the manner required by the Rules and must not complete or submit a Transaction if Authorisation is declined, referred or otherwise not obtained where required.

(c) Each Transaction must represent a genuine sale of goods or services supplied by you in the ordinary course of your approved business activities. You must not:

            (i) split a Transaction into multiple Transactions to avoid Authorisation limits, fees, surcharging restrictions or other requirements;

            (ii) process Transactions for third parties or for goods or services not supplied by you (including transaction aggregation, factoring or laundering);

            (iii) process Transactions outside the scope of your approved Merchant Facility or Merchant Category Code; or

            (iv) submit fictitious, fraudulent, misleading or duplicate Transactions.

Changes to Business Activities and Risk Profile

(d) You must not materially change your business model, Merchant Category Code, goods or services offered, sales channels, transaction methods or typical Transaction volumes without our prior written approval.

(e) We may review, re‑underwrite, suspend or vary your Merchant Facility if we reasonably consider that any change to your business activities or Transaction profile increases risk or requires additional controls.

(f) You must not commence any activity classified as high‑risk under the Rules or our policies without our express written approval.

Fraud Controls

(g) We may impose fraud‑prevention or risk‑mitigation measures, including velocity limits, Floor Limits, authentication requirements, MCC restrictions, Transaction caps, or other controls where we reasonably consider it necessary to manage risk.

(h) You must implement any fraud‑prevention or risk‑mitigation measures we reasonably require and cooperate with any fraud‑monitoring or risk‑management initiatives we implement.

(i) We may suspend or restrict your ability to process Transactions where your fraud levels exceed thresholds set by us, the Rules or regulators, or where we reasonably suspect Fraud or elevated risk.

Channel‑specific processing

(j) Card‑present Transactions must be processed using approved Equipment and in accordance with the Rules applicable to card‑present processing.

(k) Card‑Not‑Present (CNP) and eCommerce Transactions must be processed only through Payment Gateways and systems approved by us and in compliance with all security, authentication and fraud‑prevention requirements specified by us or the Rules.

(l) Recurring Transactions and stored credential Transactions must be processed only where you have obtained the Cardholder’s valid consent in accordance with the Rules. You are responsible for managing cancellations, changes and expiry of Card details and for ensuring compliance with stored credential requirements.

MOTO (Mail Order Telephone Order) processing

(m) Mail Order and Telephone Order (MOTO) Transactions may be processed only where expressly permitted by us and are processed entirely at your risk. You acknowledge and agree that;

·       MOTO Transactions carry a higher risk of Fraud and Chargebacks;

·       MOTO transactions are not eligible for chargeback protection or liability shift;

·       You, as the Merchant, bear full liability for all losses, chargebacks, reversals, fees, fines, and penalties arising from MOTO Transactions.

·       Live Payments may suspend or revoke the permission to process MOTO Transactions immediately, at its sole discretion. 

Timing and submission

(n) You must submit Transaction data to us within the timeframes specified by us or the Rules. Failure to submit Transactions within required timeframes may result in delayed Settlement, rejection of Transactions or loss of Settlement rights.

(o) You must not delay submission of Transactions or present Transactions outside permitted timeframes.

Prohibited Transactions and conduct

(p) You must not process Transactions that:

            (i) involve illegal or prohibited goods or services;

            (ii) constitute disguised cash advances, quasi‑cash Transactions or other cash‑equivalent activity unless expressly permitted;

            (iii) are intended to circumvent the Rules, Authorisation requirements or risk controls; or

            (iv) otherwise expose us, a Card Scheme or an Issuer to undue risk.

Records and cooperation

(q) You must retain Transaction documentation, receipts and supporting records in accordance with this Agreement and provide them promptly on request for the purposes of disputes, Chargebacks, audits or investigations.

(r) You must cooperate fully with us, Card Schemes, Issuers, Acquirers and regulators in connection with the processing of Transactions.

Suspension and scheme supremacy

(s) We may suspend or restrict your ability to process Transactions, or specific categories of Transactions, where reasonably necessary to manage risk, investigate suspected Fraud, comply with Law or the Rules, or at the direction of a Card Scheme, Acquirer or regulator.

(t) Transactions are processed strictly in accordance with the Rules. If there is any inconsistency between this Agreement and the Rules in relation to processing, the Rules prevail.

Express Checkout (Hotels and Motels)

(u) This sub‑clause applies only where you have been authorised by us to accept Transactions for express checkout services in hotels, motels or similar accommodation businesses.

(v) Express checkout permits a Cardholder to depart your premises without presenting their Card or completing a Transaction in person at the time of departure, based on a prior authorisation or agreement.

(w) You must obtain the Cardholder’s prior written or electronic consent to use express checkout and must retain evidence of that consent in accordance with the Rules.

(x) You must provide the Cardholder with an itemised account of charges incurred during their stay and make that account available upon request.

(y) You must process express checkout Transactions strictly in accordance with the Rules, including any requirements relating to delayed charges, authorisation validity and dispute resolution.

(z) You remain responsible for resolving any disputes arising from express checkout Transactions and must accept Chargebacks where required under the Rules.

(aa) We may withdraw or suspend your authorisation to offer express checkout at any time where we reasonably determine that your use of express checkout presents an elevated risk of disputes, Chargebacks or non‑compliance.

Vehicle and Equipment Rental Transactions

(bb) This sub‑clause applies only if you provide rental of vehicles or equipment, including (without limitation) cars, trucks, motorcycles, boats, trailers, machinery or similar assets.

(cc) You must not include in a rental Transaction any amount representing:

            (i) a refundable security deposit;

            (ii) an insurance excess or deductible; or

            (iii) an estimated or contingent amount for potential loss or damage.

(dd) Charges for loss, theft, damage or additional costs (including tolls, traffic infringements or repairs) must be processed as a separate Transaction and only after:

            (i) the loss or damage has occurred;

            (ii) the Cardholder has been notified; and

            (iii) the Cardholder has authorised the charge in accordance with the Rules.

(ee) Where repairs are required, you must provide the Cardholder with a reasonable estimate of costs and must not charge more than that estimate by more than fifteen percent (15%), unless otherwise permitted under the Rules.

(ff) You must retain all supporting documentation relating to rental Transactions and additional charges and provide it to us on request.

(gg) Failure to comply with this sub‑clause may result in Transactions being treated as Invalid Transactions and may give rise to Chargebacks.

Quasi‑Cash Transactions

(hh) This sub‑clause applies if you are authorised to process Transactions involving quasi‑cash goods or services, including those defined as Quasi‑Cash Transactions in this Agreement.

(ii) You must clearly disclose to the Cardholder, before completing the Transaction, any commission, fee or premium charged in connection with a Quasi‑Cash Transaction.

(jj) You must verify the Cardholder’s identity in accordance with the Rules and retain evidence of that verification.

(kk) You must not process Quasi‑Cash Transactions where:

            (i) the Transaction would breach the Rules or applicable Law; or

            (ii) we have not expressly authorised you to process such Transactions.

(ll) We may withdraw authorisation for Quasi‑Cash Transactions at any time where we reasonably determine that such Transactions present an unacceptable level of risk.

Electronic Fallback

(mm) Electronic Fallback may be enabled or disabled by Live Payments, at its sole discretion and may be subject to transaction limits, velocity controls, or other restrictions.

(nn) You acknowledge that Transactions processed using Electronic Fallback:

• are not authorised in real time;

• carry a significantly higher risk of fraud, decline, and non-payment;

• may be declined or reversed once connectivity is restored; and

• may result in losses that are not recoverable.

(oo) You must not process a transaction, including by deliberately creating or engineering circumstances in which a transaction is processed using fallback or without real-time authorisation (including a chip decision override), whether by interfering with the equipment, instructing or requesting to modify the equipment, or by any other means, without our prior written consent.

(pp) Live Payments does not guarantee that Electronic Fallback Transactions will be approved, settled, or paid. Settlement of such Transactions is subject to subsequent authorisation, processor acceptance, and card scheme rules.

3.0 Surcharging

(a) You may impose a surcharge on Card Transactions only where permitted by Law and the Rules.

(b) Any surcharge must:

            (i) be clearly disclosed to the Cardholder before the Transaction is completed;

            (ii) not exceed the maximum amount permitted under applicable Law or the Rules; and

            (iii) comply with any additional requirements notified by us from time to time.

(c) You must not impose a surcharge that discriminates between Card Schemes except where expressly permitted by Law and the Rules.

(d) We may require you to provide information or evidence to demonstrate that any surcharge imposed complies with this Agreement, Law and the Rules.

(e) We may require you to reduce, remove or modify a surcharge if we reasonably determine that it does not comply with this Agreement, Law or the Rules.

(f) Where a Merchant Facility supports surcharging functionality, the Merchant is solely responsible for configuring, enabling, disabling, and maintaining all surcharge settings on the Terminal.

(g) You acknowledge that surcharge settings may be impacted by software updates, configuration changes, Terminal replacements, staff actions, or other operational factors. You must regularly and continuously monitor surcharge settings to ensure they are accurate, compliant, and applied as intended.

4.0 Sale Refunds

(a) You may process a Sale Refund only in respect of a valid Transaction that has been previously processed and settled under this Agreement.

(b) All Sale Refunds must be processed:

            (i) using the same Card that was used for the original Transaction;

            (ii) for an amount that does not exceed the amount of the original Transaction; and

            (iii) strictly in accordance with this Agreement, the Rules and applicable Law.

(c) You must not:

            (i) provide a cash refund or any other alternative form of refund for a Card Transaction, except where expressly required by Law or the Rules;

            (ii) process a Sale Refund in respect of a Transaction that has been, is, or is likely to be, the subject of a Chargeback, dispute or retrieval request; or

            (iii) process a Sale Refund to a different Card, account or payment method;

(iv) process a Sale Refund unless it relates to a genuine Transaction previously processed through your Merchant Facility. You must not process a Sale Refund to any Card other than the Card used in the original Transaction, or process any Sale Refund that is false, fictitious, misleading, fraudulent or intended to bypass the Rules or this Agreement; or

(v) process a Sale Refund before Settlement has occurred or use Sale Refunds to circumvent the Rules, launder funds, offset Chargebacks or otherwise manipulate Transaction outcomes.

(d) A Sale Refund does not prevent, reverse or invalidate a Chargeback and does not relieve you of any liability for fees, assessments, penalties, fines or other amounts payable under this Agreement or the Rules in connection with the original Transaction.

(e) You must not misuse the refund functionality, including by

 (i) attempting to circumvent fees, chargebacks or settlement processes

(ii) utilising refund functionality for the purposes of loading gift cards, payouts or any other reason other than stipulated in this Clause 4.0 (b)

(f) You acknowledge

(i) that Live Payments reserves the right to suspend, limit, or revoke access to the refund functionality at its sole discretion

(ii) that it is Your sole responsibility to maintain the security of your terminal including, but not limited to;

A)   instructing Live Payments if You wish to have a refund password set and enabled,

B)   maintaining the security of any associated refund passwords or refund access codes

C)  maintaining the security of the terminal at all times to ensure unauthorised access is not willingly or unwillingly permitted.

(iii) that You are liable for any misuse or fraudulent transactions associate with refund functionality and any failure to comply with applicable Laws or Rules 

(g) You must clearly disclose your refund policy to Customers at the time of sale and comply with all applicable consumer protection Laws.

(h) We may debit your Account for the amount of any Sale Refund processed by you, together with any applicable fees, charges or costs.

5.0 Invalid Transactions

(a) A Transaction is an Invalid Transaction if it:

            (i) is not authorised in accordance with this Agreement or the Rules;

            (ii) is fraudulent, fictitious, misleading or otherwise not genuine;

            (iii) is processed for goods or services not supplied by you;

            (iv) is processed for a third party or for the benefit of a third party;

            (v) is processed using a Merchant Facility not approved for that type of Transaction;

            (vi) is processed in breach of any Law, the Rules or this Agreement;

            (vii) is processed without the Cardholder’s consent;

            (viii) is processed using Cardholder Data obtained unlawfully or improperly;

            (ix) is processed outside the scope of your approved business activities or Merchant Category Code;

            (x) is processed after we have suspended or terminated your Merchant Facility;

            (xi) is a Sale Refund that does not comply with Part 2, clause 4.0; or

            (xii) is otherwise identified as invalid under the Rules.

(b) If a Transaction is an Invalid Transaction, you must, on demand:

            (i) repay to us the amount of the Invalid Transaction;

            (ii) reimburse us for any Chargebacks, reversals, adjustments, assessments, penalties, fines or other amounts imposed by a Card Scheme, Issuer, Acquirer or regulator in connection with the Invalid Transaction; and

            (iii) pay any reasonable costs we incur in investigating or responding to the Invalid Transaction.

(c) You are liable for, and indemnify us against, all losses, liabilities, fines, penalties, assessments, costs and expenses (including those imposed by Card Schemes or regulators) arising out of or in connection with:

            (i) any Invalid Transaction;

            (ii) any breach of this Agreement;

            (iii) any non‑compliance with the Rules; or

            (iv) any act or omission by you or your personnel that results in a Chargeback, assessment, penalty or fine.

(d) We may treat a Transaction as an Invalid Transaction even if it has been previously authorised or settled.

(e) We may debit your Account or withhold Settlement to recover any amount payable by you under this clause 5.0.

6.0 Chargebacks

Scope and definition

(a) A Chargeback occurs when a Transaction is reversed, debited back or otherwise reclaimed by an Issuer, Card Scheme or Acquirer in accordance with the Rules, whether before or after Settlement.

(b) A Chargeback may arise from, including without limitation:

            (i) an Invalid Transaction;

            (ii) a Cardholder dispute or retrieval request;

            (iii) Fraud or suspected Fraud;

            (iv) failure to obtain or retain valid Authorisation;

            (v) non-delivery, late delivery or defective goods or services;

            (vi) a breach of this Agreement, the Rules or applicable Law; or

            (vii) any other reason permitted under the Rules.

(c) Retrieval requests, information requests, representment, pre-arbitration, arbitration or similar processes initiated under the Rules form part of the Chargeback process.

Liability for Chargebacks

(d) You are liable for all Chargebacks unless otherwise required by Law or the Rules.

(e) You are liable for a Chargeback even if:

            (i) you obtained Authorisation;

            (ii) the Cardholder received or used the goods or services;

            (iii) you have complied with your refund policy;

            (iv) the Transaction was processed correctly at the time; or

            (v) the Chargeback arises from circumstances beyond your control.

(f) A Transaction that is an Invalid Transaction is a merchant-liability Chargeback by default.

Information requests and cooperation

(g) You must provide all documentation, records and information we request in connection with a Chargeback, retrieval request or dispute within the timeframe specified by us or the Rules.

(h) You must retain Transaction documentation and supporting records for at least eighteen (18) months after the date of the Transaction, or any longer period required by the Rules or Law.

(i) Failure to provide requested information within the required timeframe may result in:

            (i) the Chargeback being automatically decided against you; and

            (ii) the Transaction being treated as an Invalid Transaction.

(j) You must cooperate fully with us, the Card Schemes, Issuers and Acquirers in relation to Chargebacks and disputes.

Settlement, debits and recovery

(k) If a Chargeback occurs, we may, without prior notice:

            (i) debit the Chargeback amount from your Account;

            (ii) deduct the amount from current or future Settlement;

            (iii) place a hold on Settlement amounts;

            (iv) recover the amount from any Account you have nominated, whether current or former; or

            (v) take any other recovery action permitted under this Agreement or Law.

(l) Chargebacks may be processed and recovered up to eighteen (18) months after the original Transaction date, or such longer period as permitted under the Rules.

(m) You acknowledge that Chargebacks may be processed even after suspension or termination of this Agreement.

No circumvention

(n) You must not:

            (i) attempt to recover a Chargeback amount by reprocessing a Transaction;

            (ii) split, re-submit or disguise Transactions to avoid Chargebacks;

            (iii) require a Cardholder to pay by alternative means to avoid the Chargeback process; or

            (iv) take any action intended to circumvent the Rules.

Scheme supremacy

(o) Chargebacks are processed strictly in accordance with the Rules.
If there is any inconsistency between this Agreement and the Rules in relation to Chargebacks, the Rules prevail.

(p) Decisions of a Card Scheme, Issuer or Acquirer in relation to Chargebacks, disputes, fines or assessments are final and binding.

Indemnity

(q) You indemnify us against all losses, liabilities, fines, penalties, assessments, costs and expenses (including reasonable legal costs) arising out of or in connection with:

            (i) any Chargeback;

            (ii) any failure by you to comply with this Agreement, the Rules or Law; or

            (iii) any information you provide, or fail to provide, in connection with a Chargeback.

(r) This indemnity survives termination of this Agreement.

Monitoring and enforcement

(s) We may monitor your Chargeback levels and ratios.
If your Chargeback levels exceed thresholds set by a Card Scheme or reasonably determined by us, we may take one or more actions including:

            (i) placing Settlement holds or reserves;

            (ii) suspending your ability to process Transactions;

            (iii) imposing additional conditions; or

            (iv) terminating this Agreement.

Relationship to other clauses

(t) This clause operates in addition to, and does not limit, our rights under clauses relating to Invalid Transactions, Settlement, Termination, PCI DSS and Risk Allocation.

7.0 Settlement, Holds, and Recovery 

Settlement

(a) Subject to this Agreement, the Rules and applicable Law, we will arrange Settlement of valid Transactions to your nominated Account.

(b) Settlement amounts are indicative only until finalised. We may delay, withhold, adjust or reverse Settlement amounts where reasonably required to:

            (i) investigate or resolve Chargebacks, disputes or suspected Fraud;

            (ii) comply with Law, the Rules, or directions from a Card Scheme, Acquirer, Issuer, regulator or banking partner;

            (iii) manage credit, security, operational or reputational risk; or

            (iv) recover any amounts payable by you under this Agreement.

(c) We may deduct from Settlement any amounts payable by you under this Agreement, including fees, charges, Sale Refunds, Chargebacks, penalties, fines, assessments, costs or other amounts.

(d) Settlement information provided through statements; reports or the Online Portal is provided for convenience only. Our internal records are conclusive.

Settlement holds and reserves

(e) We may place holds on Settlement amounts or establish reserves where we reasonably determine that doing so is necessary to manage risk, including where:

            (i) your Chargeback levels or dispute ratios are elevated;

            (ii) we suspect Fraud, Financial Crimes or other unlawful activity;

            (iii) your business model, processing activity or Transaction volumes change materially;

            (iv) required by a Card Scheme, Acquirer, regulator or banking partner; or

            (v) we consider there is a risk that amounts payable by you may not be recovered.

(f) Settlement holds or reserves may be applied before or after a dispute arises and may continue until the relevant risk has been resolved to our satisfaction.

Recovery and set-off

(g) You authorise us to recover any amounts payable by you under this Agreement by:

            (i) debiting your nominated Account;

            (ii) deducting amounts from current or future Settlement;

            (iii) recovering amounts from any other Account you have nominated, whether current or former; or

            (iv) taking any other recovery action permitted by Law.

(h) Our recovery rights apply whether or not Settlement has occurred and survive suspension or termination of this Agreement.

(i) Amounts payable by you under this Agreement are immediately due and payable on demand.

8.0 Direct Debit Request (DDR)

(a) By entering into this Agreement, you request and authorise Zepto Payments Pty Ltd (ACN 604 057 598) (User ID 667028) (“Zepto”) on behalf of us, the debiting of your nominated Account for any amounts payable by you under this Agreement.

(b) In Australia, debits will be made through the Bulk Electronic Clearing System (BECS) and are subject to the BECS Rules.
In New Zealand, debits will be made through the Payments NZ Direct Debit system and are subject to the rules of that system and the requirements of your financial institution.

(c) You acknowledge that debits may be made for variable amounts and at variable frequencies, including to recover fees, adjustments, reversals, Chargebacks, penalties or other amounts payable under this Agreement.

(d) This Direct Debit Request remains in effect until this Agreement ends or the Direct Debit Request is cancelled in accordance with clause 9.0(e).

9.0 Direct Debit Request Service Agreement (DDRSA)

Our responsibilities

This is your Direct Debit Service Agreement with Zepto Payments Pty Ltd (ACN 604 057 598) (User ID 667028) (the Debit User) on behalf of us to arrange to debit to your nominated account to pay for the services that you are acquiring from us.  Zepto has been contracted by us to collect direct debit payments from you.  Zepto does not provide any goods or services to you.  Zepto does not accept any liability for the provision of the services provided by us.  If you have a dispute about the services, contact us directly.  

This agreement explains what your obligations are when undertaking a Direct Debit arrangement with Zepto.  It also details what are the obligations of Zepto are to you as your Direct Debit provider.  

Please keep this agreement for future reference.  It forms part of the terms and conditions of your Direct Debit Request (DDR) and should be read in conjunction with your DDR authorisation.

(a) We will only debit your Account for amounts payable under this Agreement.

(b) Where required by the applicable payment system rules:

            (i) in Australia, we will provide at least fourteen (14) days’ written notice of any change to the manner in which we debit your Account, unless the change relates to amounts already disclosed in this Agreement; and

            (ii) in New Zealand, we will provide notice within the timeframe required by Payments NZ or your financial institution.

(c) If a debit date falls on a day that is not a Business Day, we may debit your Account on the next Business Day.

(d) We may cancel or suspend your Direct Debit Request by notifying you or your financial institution where permitted under the applicable payment system rules.

Your rights

(e) You may request to change, defer or cancel your Direct Debit Request at any time by notifying:

            (i) us in writing; or

            (ii) your financial institution, which may act on your request in accordance with the applicable direct debit rules.

(f) If you believe that a debit has been made incorrectly, you must notify us as soon as possible. We will investigate the matter and respond within a reasonable timeframe. If we determine that your Account has been incorrectly debited, we will arrange for the correction through your financial institution.

(g) You may also lodge a dispute directly with your financial institution.

Your obligations

(h) You must ensure that:

            (i) your nominated Account can accept direct debit transactions;

            (ii) sufficient cleared funds are available on the debit date;

            (iii) your Account details are accurate and up to date; and

            (iv) you notify us promptly of any change to your Account details or closure of your Account.

(i) If a debit is dishonoured or reversed, your financial institution may charge a dishonour fee. You agree to reimburse us for any costs or fees we incur as a result of a failed debit.

Confidentiality

(j) We will keep information relating to your Direct Debit Request confidential, except where disclosure is required to:

            (i) process debits under this Agreement;

            (ii) investigate or resolve a disputed debit;

            (iii) comply with Law; or

            (iv) comply with the requirements of a payment system or financial institution.

Contact details

(k) You may contact us regarding your Direct Debit Request at:

Live Payments
Telephone: 1300 780 788 in Australia, or 0800 000 117 in New Zealand
Email: help@livepayments.com

Or you may contact Zepto directly at support@zepto.com.au

Survival

(l) This clause 9.0 survives suspension or termination of this Agreement, including our rights to recover amounts, debit your Account and process Chargebacks.

10.0 Merchant Cash Advance 

Merchant Cash Advance

(a) This clause applies if you have entered into a separate merchant cash advance or similar funding arrangement with a third-party provider (Funding Partner), under which a portion of your Settlement amounts is to be withheld and remitted to the Funding Partner.

(b) We do not provide any funding, credit or financial accommodation to you under any such arrangement. Our role is limited to administering repayments in accordance with this clause and the instructions we receive from the Funding Partner.

Your Funding Agreement

(c) You acknowledge and agree that:

            (i) all commercial terms of the merchant cash advance, including the amount advanced, repayment percentage or amount, fees, duration and          any other obligations, are governed solely by the agreement between you and the Funding Partner (Funding Agreement);

            (ii) we are not a party to, and do not endorse, guarantee or assume any responsibility for, the Funding Agreement; and

            (iii) we are not responsible for assessing, approving, managing, enforcing or monitoring the Funding Agreement or the conduct of the Funding Partner.

Authorisation to withhold and remit

(d) You irrevocably authorise us to withhold from Settlement amounts otherwise payable to you the percentage or fixed amount notified to us by the Funding Partner in accordance with the Funding Agreement (MCA Repayment Amount).

(e) You authorise us to remit the MCA Repayment Amount directly to the Funding Partner without further reference to you.

(f) We may rely on any written or electronic instruction received from the Funding Partner as conclusive evidence of the MCA Repayment Amount to be withheld and remitted, without any obligation to verify the accuracy or validity of that instruction.

(g) This authorisation continues until we receive written confirmation from the Funding Partner that your repayment obligations under the Funding Agreement have been satisfied, terminated or otherwise concluded.

Adjustments, reversals and Chargebacks

(h) If a Transaction is refunded, reversed, charged back or otherwise adjusted, we may adjust future Settlement amounts and the MCA Repayment Amount to reflect that adjustment before calculating any amount to be remitted to the Funding Partner.

(i) You acknowledge that Chargebacks, Sale Refunds or Settlement holds may reduce or delay amounts otherwise available for remittance to the Funding Partner.

(j) We are not responsible for any delay, shortfall or failure in remitting amounts to the Funding Partner that arises as a result of Chargebacks, disputes, Settlement adjustments, system outages, incorrect instructions or external events beyond our reasonable control.

No security interest or fiduciary relationship

(k) Nothing in this clause creates or evidences any security interest, trust or fiduciary relationship between you, us or the Funding Partner.

(l) We process withheld amounts in the ordinary course of business under your authorisation and do not hold Settlement funds on trust for you or the Funding Partner.

Our liability

(m) Our role is limited to deducting and remitting amounts in accordance with instructions provided by the Funding Partner.

(n) To the maximum extent permitted by Law, we exclude all liability for any loss, cost or claim arising out of or in connection with:

            (i) the Funding Agreement;

            (ii) the accuracy or completeness of instructions provided by the Funding Partner;

            (iii) the conduct, solvency or performance of the Funding Partner; or

            (iv) any dispute between you and the Funding Partner.

Your indemnity

(o) You indemnify us against all losses, claims, damages, liabilities and expenses (including reasonable legal costs) arising out of or in connection with:

            (i) your Funding Agreement;

            (ii) any instruction we receive from the Funding Partner relating to withholding or remittance of funds; or

            (iii) any dispute between you and the Funding Partner regarding the merchant cash advance or repayment of amounts under it.

Termination and suspension

(p) We may cease withholding and remitting amounts to the Funding Partner:

            (i) upon receiving confirmation from the Funding Partner that your repayment obligations are complete;

            (ii) if your Merchant Facility is suspended or terminated; or

            (iii) where required by Law, a regulator, a Card Scheme or our banking partners, or where continuation would expose us to legal, regulatory or         operational risk.

(q) Termination of this Agreement automatically terminates our obligation to administer repayments under this clause.

Independent relationship

(r) You acknowledge that the Funding Partner is independent of us. Nothing in this clause creates a partnership, joint venture, agency or association between us and the Funding Partner.

11.0 Instant Settlement 

(a) Instant Settlement is an optional settlement feature that, where approved by us, allows eligible Credit Card Transactions to be settled to your nominated Account prior to standard Settlement timeframes.

(b) Instant Settlement is subject to our approval and ongoing eligibility criteria. We may apply conditions, limits or exclusions to Instant Settlement by Transaction type, Card Scheme, channel, value or volume.

(c) Instant Settlement does not constitute final Settlement. All Transactions settled instantly remain subject to this Agreement, including clauses relating to Chargebacks, Sale Refunds, Invalid Transactions, Settlement adjustment, holds, reserves and recovery.

(d) We may charge an Instant Settlement fee, as notified to you in your offer communication, pricing schedule or Online Portal. Any such fee may be deducted from the instant settlement amount or from future Settlement.

(e) Instant Settlement is subject to the Rules. If there is any inconsistency between this clause and the Rules, the Rules prevail.

12.0 Online Portal

(a) We may provide you with access to an online portal or dashboard (Online Portal) through which you may view Transaction information, Settlement summaries, statements, reports or other data relating to your Merchant Facility.

(b) Access to the Online Portal is provided on an “as available” basis. We do not guarantee continuous, uninterrupted or error-free access and are not liable for any unavailability, outage or delay.

(c) You must ensure that all login credentials, identification codes, passwords or other authentication methods used to access the Online Portal are:

            (i) kept secure and confidential;

            (ii) used only by authorised personnel; and

            (iii) not disclosed to any unauthorised person.

(d) You are responsible for all actions performed using your Online Portal credentials, except to the extent that such actions result directly from our negligence or system error.

(e) Information displayed on the Online Portal is provided for convenience only. If there is any inconsistency between information shown on the Online Portal and our internal records, our internal records prevail.

(f) You must notify us immediately if you suspect any unauthorised access to the Online Portal or any compromise of your credentials.

(g) We may add, remove, modify or suspend features, content or functionality of the Online Portal at any time where reasonably necessary for maintenance, security or operational purposes.

(h) We may provide notices or communications to you through the Online Portal. Any such notice is taken to be received when it is made available to you, unless otherwise required by Law.

13.0 Merchant Facility Availability and Business Continuity

(a) While Live Payments will use reasonable efforts to ensure that Merchant Facilities operate as intended, Live Payments does not guarantee uninterrupted, continuous, or error-free operation of any Merchant Facility.

(b) A Merchant Facility may become partially or fully unavailable due to factors including, but not limited to:

(i) loss or degradation of network connectivity;

(ii) software, firmware, or configuration issues;

(iii) processing or authorisation failures;

(iv) power outages;

(v) third-party service interruptions; or

(vi) hardware faults or damage.

(c) You acknowledge that 

(i) card payment acceptance is a critical and essential service for Your business operations and that the unavailability of a Merchant Facility may result in:

(A) inability to accept payments;

(B)  disruption to business operations;

(C) loss of revenue or sales; and

(D) reputational or customer impact.

(ii) by using the Merchant Facility, You accept the risk of business interruption arising from Merchant Facility unavailability and agree that You are best placed to manage that risk through appropriate contingency planning.

PART 3 — SECURITY, DATA AND COMPLIANCE

1.0 PCI DSS, Security and Account Data Compromise

(a) You must comply at all times with PCI DSS and all other security standards, technical specifications and requirements imposed by the Rules if you store, process, transmit or otherwise have access to Cardholder Data.

(b) You are solely responsible for ensuring that your systems, Equipment, networks, software, personnel and Service Providers comply with PCI DSS and all other applicable security requirements.

(c) You must not store any Sensitive Authentication Data after Authorisation, including:

            (i) card verification values (CVV, CVC or equivalent);

            (ii) PINs or PIN blocks;

            (iii) full magnetic stripe data, chip data or equivalent; or

            (iv) any other data prohibited from storage under PCI DSS.

(d) You must implement and maintain appropriate technical and organisational security measures to protect Cardholder Data against loss, misuse, unauthorised access, disclosure or compromise, including:

            (i) restricting physical and logical access to authorised personnel only;

            (ii) encrypting data where required by PCI DSS or the Rules;

            (iii) maintaining secure networks, devices and applications; and

            (iv) applying security patches and updates promptly.

Service Providers

(e) If you engage a Service Provider that stores, processes or transmits Cardholder Data, or that otherwise has access to the Merchant Facility, you must ensure that the Service Provider:

            (i) is PCI DSS compliant;

            (ii) is appropriately certified where required;

            (iii) is contractually bound to maintain compliance; and

            (iv) provides evidence of compliance on request.

(f) You remain fully responsible for the acts and omissions of your Service Providers and are liable for any breach of this Agreement, the Rules or Law caused by a Service Provider.

Account Data Compromise

(g) You must notify us immediately if you become aware of, or reasonably suspect, an Account Data Compromise.

(h) If an Account Data Compromise occurs or is suspected, you must, at your own cost and without delay:

            (i) cooperate fully with us, Card Schemes, Issuers, Acquirers and regulators;

            (ii) comply with all investigation, remediation and reporting requirements;

            (iii) engage a PCI-approved forensic investigator (PFI) if required by a Card Scheme or by us; and

            (iv) take all steps reasonably required to prevent further compromise.

(i) You must not make any public statement or notify Cardholders of an Account Data Compromise without our prior written consent, except where required by Law.

Costs, assessments and indemnity

(j) You are liable for all losses, liabilities, fines, penalties, assessments, fees, costs and expenses (including forensic investigation costs, Card Scheme assessments and reasonable legal costs) arising out of or in connection with:

            (i) any Account Data Compromise;

            (ii) any failure to comply with PCI DSS or security requirements; or

            (iii) any breach of Privacy Laws or data security obligations.

(k) You indemnify us against all losses, liabilities, costs and expenses referred to in Part 3, clause 1.0 (j).

(l) This indemnity applies whether or not the Account Data Compromise occurs within your systems, Equipment or those of your Service Providers and survives termination of this Agreement.

Suspension and enforcement

(m) We may immediately suspend or restrict your ability to process Transactions where:

            (i) an Account Data Compromise has occurred or is suspected;

            (ii) you fail to demonstrate PCI DSS compliance; or

            (iii) required by a Card Scheme, Acquirer, regulator or banking partner.

(n) Suspension may apply to all or part of your Merchant Facility and may remain in place until we are reasonably satisfied that all security issues have been resolved.

Scheme supremacy

(o) Security requirements are governed by the Rules. If there is any inconsistency between this Agreement and the Rules in relation to PCI DSS, security standards or Account Data Compromise, the Rules prevail.

2.0 Records

(a) You must retain complete and accurate records relating to Transactions, Sale Refunds, Chargebacks, documentation requests and Terminal activity for at least eighteen (18) months, or any longer period required by Law or the Rules.

(b) Records may be stored electronically, provided they are accessible, legible and capable of being reproduced promptly on request.

(c) You must provide records to us, a Card Scheme, an Issuer, a regulator or a law enforcement authority within the timeframe specified by the requesting party.

(d) You must not destroy, alter or conceal any record that is subject to a dispute, investigation or request under this Agreement.

(e) Records containing Cardholder Data must be stored securely and accessed only by authorised personnel.

3.0 Confidentiality and Privacy

(a) Each party must keep confidential all information obtained in connection with this Agreement, except to the extent that disclosure is permitted under this clause or required by Law.

(b) You must not disclose any information relating to our systems, processes, security arrangements or business operations except with our prior written consent.

(c) We may use or disclose information relating to you or your Transactions where reasonably required for:

            (i) providing the Merchant Facility;

            (ii) complying with the Rules;

            (iii) complying with Law or regulatory requests;

            (iv) managing risk, Fraud or Chargebacks; or

            (v) working with Card Schemes, regulators, auditors, banking partners or Service Providers.

(d) You must comply with all Privacy Laws in Australia and New Zealand when handling Personal Information or Cardholder Data.

(e) You must notify us immediately if you become aware of:

            (i) unauthorised access to Personal Information or Cardholder Data;

            (ii) a breach of Privacy Laws; or

            (iii) any data breach that may affect the Merchant Facility.

(f) We may use aggregated or de-identified information for analytics, reporting, fraud detection, benchmarking or product development.

(g) Our privacy practices are described in our Privacy Policy, which forms part of this Agreement.

GPS and Location Data

(h) You acknowledge and agree that location data collected through GPS or other location-tracking functionality on Terminals constitutes personal information.

(i) We may collect, use, store and disclose such location data for the purposes described in this Agreement, including security, fraud prevention, asset management and operational purposes, strictly in accordance with applicable privacy laws and our Privacy Policy.

PART 4 — CONTRACTUAL FRAMEWORK

1.0 Trustees

(a) If you enter into this Agreement as trustee of a trust, you warrant and represent that:

            (i) the trust is validly constituted and exists under applicable Law;

            (ii) you are properly appointed as trustee of the trust;

            (iii) you have full power and authority under the trust deed to enter into and perform this Agreement; and

            (iv) entering into this Agreement and performing your obligations under it is for a proper purpose of the trust.

(b) You warrant that you have a full and unrestricted right of indemnity from the assets of the trust in respect of all liabilities incurred by you as trustee under or in connection with this Agreement.

(c) You must not do, or omit to do, anything that would restrict, prejudice, limit or otherwise impair your right of indemnity from the assets of the trust.

(d) You acknowledge and agree that your liability under this Agreement is not limited to the assets of the trust where:

            (i) your right of indemnity from the trust assets is reduced, lost or unavailable for any reason; or

            (ii) the liability arises as a result of breach of trust, breach of duty, fraud, negligence or misconduct by you.

(e) You must notify us immediately of any change to the trustee, the trust deed or any other matter affecting your capacity or authority as trustee.

(f) If there is a change of trustee, the incoming or replacement trustee must, before continuing to process Transactions, execute any documents and provide any information we reasonably require to assume the obligations of this Agreement. We may suspend processing until those requirements are satisfied.

(g) Termination or suspension of this Agreement does not affect our rights to recover amounts payable by you under this Agreement from trust assets or from you personally, to the extent permitted by Law.

2.0 Notices

How notices may be given

(a) Any notice, consent, approval or other communication under this Agreement may be given by:

            (i) email to the most recent email address notified by the receiving party;

            (ii) post to the most recent postal address notified by the receiving party;

            (iii) publication on our website or Online Portal;

            (iv) electronic message through systems or channels made available by us; or

            (v) any other method permitted or required by Law or the Rules.

(b) Notices given by or on behalf of a Card Scheme, Acquirer, Issuer or regulator may be communicated to you by us using any method permitted under this clause.

Deemed receipt

(c) A notice is taken to be received:

            (i) if sent by email, at the time it is sent, whether or not it is read;

            (ii) if published on our website or Online Portal, at the time it is made available;

            (iii) if sent by post within Australia or New Zealand, on the third Business Day after posting; and

            (iv) if sent by any other electronic means, at the time it is transmitted.

(d) A notice is taken to be received even if the recipient does not access, read or become aware of the notice.

(e) Failure by you to update your contact details does not affect the validity of any notice given in accordance with this clause.

Urgent and no-notice actions

(f) We may take action under this Agreement without prior notice where:

            (i) required by Law, the Rules or a Card Scheme, Acquirer, Issuer or regulator;

            (ii) necessary to manage Fraud, Financial Crime, security or operational risk; or

            (iii) an Account Data Compromise has occurred or is suspected.

(g) Where practicable, we will notify you of any action taken under Part 4, clause 2 (f) as soon as reasonably possible after the action is taken.

Scheme and third-party communications

(h) You acknowledge that some notices or communications originate from Card Schemes, Acquirers, Issuers or regulators and may be passed on to you without modification.

(i) Notices given to you to comply with the Rules are effective regardless of whether they are issued directly by us or by a third party acting through us.

Interaction with variations and termination

(j) Notices relating to variations take effect in accordance with Part 4, clause 3.0.

(k) Notices relating to suspension or termination take effect in accordance with clause Part 4, clause 2.0 (f) and may take effect immediately where permitted under that clause.

Scheme supremacy

(l) If there is any inconsistency between this clause and the Rules in relation to notices or communications, the Rules prevail.

3.0 Variations

Scope of variations

(a) We may vary this Agreement at any time, including by varying:

            (i) these terms and conditions;

            (ii) fees, charges and pricing;

            (iii) processing procedures and operational requirements;

            (iv) Manuals, policies, technical specifications and security requirements;

            (v) reporting, settlement and risk management arrangements; and

            (vi) any other document, requirement or arrangement that forms part of, or is connected with, your Merchant Facility.

(b) Variations may be required to enable us to comply with Law, the Rules, or the requirements of a Card Scheme, Acquirer, Issuer, regulator or banking partner.

Scheme-driven and mandatory changes

(c) You acknowledge that the Rules change frequently and that we may be required to implement variations to this Agreement or your Merchant Facility to remain compliant.

(d) Where a variation is required by a Card Scheme, Acquirer, Issuer, regulator or banking partner, the variation:

            (i) may take effect immediately or on the date required by that entity; and

            (ii) applies whether or not you have received prior notice.

(e) You must comply with all such mandatory variations from the effective date specified, and you have no right to opt out of a mandatory variation while continuing to process Transactions.

Urgent variations

(f) We may make variations without advance notice where we reasonably determine that the variation is required to:

            (i) manage Fraud, security or Financial Crime risk;

            (ii) respond to an Account Data Compromise or suspected compromise;

            (iii) address operational or system stability issues; or

            (iv) comply with Law or the Rules.

(g) Where practicable, we will notify you of an urgent variation as soon as reasonably possible after it takes effect.

Notice and effectiveness

(h) We will notify you of variations in accordance with Part 4, clause 2.0 (Notices), including by publication on our website, Online Portal or by electronic communication.

(i) Subject to clauses (d) and (f), a variation takes effect on the date specified in the notice, or if no date is specified, on the date the notice is given.

Acceptance of variations

(j) You are taken to have accepted a variation if, after the variation takes effect, you:

            (i) continue to process Transactions;

            (ii) continue to use the Merchant Facility or Equipment; or

            (iii) do not terminate this Agreement in accordance with Part 4, clause 6.0.

(k) If you do not accept a variation (other than a mandatory variation), your sole remedy is to terminate this Agreement before the variation takes effect. You must cease processing Transactions upon termination.

Tables and summaries

(l) Any table, summary or schedule included in this Agreement (including tables relating to variations, Acquirers or Card Schemes) is provided for convenience only and does not limit or override the application of this Agreement or the Rules.

(m) If there is any inconsistency between a table, summary or schedule and this Agreement or the Rules, this Agreement or the Rules (as applicable) prevail.

Table 3.1 – Card Scheme Variation Requirements

Manuals, policies and portal updates

(n) Manuals, policies, operational guides and instructions we publish or make available to you (including through the Online Portal) form part of this Agreement as varied from time to time.

(o) You are responsible for monitoring communications, updates and publications made available by us and ensuring ongoing compliance with all current requirements.

Scheme supremacy

(p) If there is any inconsistency between this clause, this Agreement and the Rules in relation to variations, the Rules prevail.

4.0 Assignment

(a) We may assign, novate or otherwise transfer our rights or obligations under this Agreement to any related body corporate or third party without your consent.

(b) You must not assign, novate or transfer any of your rights or obligations under this Agreement without our prior written consent.

(c) This Agreement binds and benefits the parties and their permitted successors and assigns.

5.0 Live Payments Partners (Referrers and Independent Sales Organisations)

(a) Live Payments may from time to time appoint one or more Live Payments Partners (as defined in clause 2.0) to promote, market, refer or resell Live Payments’ Merchant Facilities.

(b) You acknowledge and agree that each Live Payments Partner:

            (i) is an independent third party and is not your agent, representative or adviser;

            (ii) does not provide acquiring, payment processing, settlement or other payment services;

            (iii) has no authority to:

                        A) bind Live Payments;

                        B) make any representation, warranty or commitment on behalf of Live Payments; or

                        C) vary, waive or amend this Agreement; and

            (iv) does not act as an agent of Live Payments for the purposes of entering into this Agreement.

(c) You acknowledge and agree that:

            (i) this Agreement is entered into solely between you and Live Payments;

            (ii) you do not rely, and have not relied, on any statement, representation, warranty or promise made by a Live Payments Partner that is not expressly set out in this Agreement; and

            (iii) Live Payments is not responsible or liable for any act or omission of a Live Payments Partner, except to the extent required by Law.

(d) Any dispute, claim or issue arising in connection with a Merchant Facility, a Transaction or this Agreement is solely between you and Live Payments and does not involve any Live Payments Partner.

(e) Live Payments may appoint, replace, suspend or cease to engage any Live Payments Partner at any time, without notice to you and without affecting this Agreement.

6.0 Suspension and Termination

Suspension

(a) We may suspend, restrict or impose conditions on your Merchant Facility (in whole or in part) immediately, without prior notice, where we reasonably determine that:

            (i) you have breached, or we reasonably suspect you have breached, this Agreement, the Rules or applicable Law;

            (ii) your processing activity presents an elevated risk of Chargebacks, Fraud, Financial Crime or reputational harm;

            (iii) an Account Data Compromise has occurred or is suspected;

            (iv) you fail to demonstrate ongoing PCI DSS compliance;

            (v) required by a Card Scheme, Acquirer, Issuer, regulator or banking partner; or

            (vi) we consider suspension necessary to protect our systems, other merchants or the integrity of the payment system.

(b) Suspension may include, without limitation:

            (i) suspension of Settlement;

            (ii) restriction of Transaction types, channels or volumes;

            (iii) suspension of specific Terminals, Equipment or processing channels;

            (iv) disabling access to the Online Portal; or

            (v) any combination of the above.

(c) Suspension may remain in effect until the relevant issue has been resolved to our reasonable satisfaction and does not limit our right to terminate this Agreement.

Termination

(d) Either party may terminate this Agreement by giving written notice to the other party.

(e) We may terminate this Agreement immediately, without prior notice, where:

            (i) you materially breach this Agreement, the Rules or applicable Law;

            (ii) you fail to remedy a breach within a reasonable period after notice;

            (iii) your Chargeback levels exceed thresholds set by a Card Scheme or reasonably determined by us;

            (iv) we reasonably consider that you are unable to repay Chargebacks, fees or other amounts payable under this Agreement;

            (v) Fraud, Financial Crime or other unlawful activity has occurred or is reasonably suspected;

            (vi) an Account Data Compromise has occurred or you fail to cooperate with required investigations;

            (vii) you provide false, misleading or incomplete information to us;

            (viii) you process Transactions outside your approved business activities or on behalf of third parties;

            (ix) required by a Card Scheme, Acquirer, Issuer, regulator or banking partner; or

            (x) you become insolvent or subject to any form of external administration.

Consequences of suspension or termination

(f) On suspension or termination of this Agreement, you must immediately:

            (i) cease processing Transactions;

            (ii) stop holding yourself out as accepting Cards;

            (iii) comply with any instructions we provide regarding Equipment, Terminals or access credentials; and

            (iv) preserve all records and cooperate with disputes, Chargebacks and investigations.

(g) Suspension or termination does not affect:

            (i) the processing of Chargebacks, disputes or investigations;

            (ii) our right to debit your Account or recover amounts payable by you;

            (iii) any Settlement holds or reserves; or

            (iv) any rights or obligations that by their nature survive termination.

Survival and enforcement

(h) Without limitation, clauses relating to Chargebacks, Settlement and recovery, indemnities, PCI DSS and security, Invalid Transactions, Notices, governing law and jurisdiction survive suspension or termination of this Agreement.

(i) We may continue to recover amounts payable by you under this Agreement after suspension or termination, including by debiting your Account or any other Account you have nominated.

Scheme supremacy

(j) If a Card Scheme, Acquirer, Issuer or regulator requires suspension or termination of your Merchant Facility, we may act immediately to comply with that requirement.
Any such action prevails over any notice, cure period or other provision of this Agreement.

7.0 Governing Law

(a) If the Merchant Facility is located in Australia, this Agreement is governed by the laws of New South Wales, Australia.

(b) If the Merchant Facility is located in New Zealand, this Agreement is governed by the laws of New Zealand.

(c) Each party submits to the non-exclusive jurisdiction of the courts and tribunals of the applicable governing jurisdiction.

PART 5 — CARD SCHEME AND THIRD-PARTY TERMS

1.0 American Express Terms

(a) If and only if you are accepting Amex Cards, this clause applies to you.

(b) You must inform your Customers that Live Payments will be providing their Personal Information, transaction data and other information to American Express Australia Ltd ABN 92 108 952 085 and its affiliates, agents, subcontractors and employees (“Amex”) in the course of delivering the Services. Amex may use this to deliver the Services, operate and promote their network, perform analytics and create reports, and for any other lawful business purpose. Amex will collect, hold and use the Personal Information and transaction data in accordance with Amex’s privacy policy (available at: https://www.americanexpress.com/au/about-us/disclosures/).

(c) Your website must not contain defamatory, profane, pornographic or obscene material or any information that causes or may cause harm to Amex or the Amex brand.

(d) Your refund policies for purchases using the Amex Card must be at least as favourable as your refund policies for purchases on any other branded Card and the refund policy must be disclosed to your Customers at the time of purchase and in accordance with applicable law.

(e) You confer upon Amex third-party beneficiary rights, but not obligations, to this Agreement and any subsequent addendums between you and Live Payments. You acknowledge that Amex has the express right to enforce the terms of the Agreement and any subsequent addendums against you as necessary to protect the Amex brand.

(f) You acknowledge that Amex is not liable to you for:

            (i) any malfunction, unavailability or failure of, or delay in processing through, any devices or equipment operated by Amex or others which is     beyond the reasonable control of Amex; and

            (ii) any indirect, consequential, indirect, special, speculative, punitive, or exemplary damages of any kind (whether based in contract, tort (including negligence), strict liability, fraud or otherwise, or statutes, regulations, or any other source of law) howsoever arising out of or in connection with this   Agreement.

(g) You give express authorization to submit transactions to, and receive settlement from, American Express on your behalf.

(h) You will display American Express Marks and give Amex equal representation with any signage, decals or other identification when promoting payment methods and remove them should the Agreement be terminated.

(i) You will warmly welcome American Express Cards and will not surcharge American Express Cardmembers, or if you do, will apply a surcharge that is not more than any surcharge you apply to other credit cards and you will not discourage Cardmembers from using their cards.

2.0 New Zealand Payment Processor

(a) The New Zealand Payment Processor Terms and Conditions, as amended from time to time (the “NZ Payment Processor Terms”), are incorporated into and form part of this Agreement by reference. The NZ Payment Processor Terms can be found here: https://livepayments.com/nz/terms-and-conditions#nz-payment-processor-terms.

(b) By entering into this Agreement or processing Transactions through the Live Payments platform in New Zealand, You agree to be bound by the NZ Payment Processor Terms as if they were set out in full in this Agreement.

(c) You must comply at all times with the NZ Payment Processor Terms and any breach of the NZ Payment Processor Terms will be considered a material breach of this Agreement.

(d) In the event of any inconsistency between: 

            (i) the NZ Payment Processor Terms;

            (ii) these Merchant Terms and Conditions; and

            (iii) any other Live Payments documentation,

the NZ Payment Processor Terms will prevail to the extent of the inconsistency in respect of New Zealand Transactions.

(e) You acknowledge that;

(i)   the Acquirer may enforce the NZ Payment Processor Terms directly, including by:

(A) declining or reversing Transactions;

(B) imposing fines, penalties, or scheme fees;

(C) suspending or terminating processing services.

            (ii) Live Payments may take any action reasonable required to comply with the NZ Payment Processor Terms or instructions from the Acquirer, including, but not limited to, suspending the Account or withholding settlements.

            (iii) Live Payments is not responsible or liable for any action, decision, or omission of Wpay or its acquiring partners taken in accordance with the NZ Payment Processor Terms, including declines, delays, reserves, chargebacks, or termination.

3.0 Card Scheme Acquirers

(a) We may use one or more Acquirers, Issuers, processors or service providers to enable you to accept Transactions under this Agreement.

(b) The Card Schemes, Acquirers or processors that apply to your Merchant Facility are set out in the table below, as updated from time to time.

(c) You acknowledge that:

            (i) different Acquirers may apply different processing, settlement, dispute or operational requirements;

            (ii) Settlement timing, reporting and Chargeback processes may vary depending on the Card Scheme or Acquirer; and

            (iii) we may change Acquirers or processing arrangements where reasonably required for operational, regulatory or risk reasons.

(d) We may disclose information relating to you, your Transactions and your Merchant Facility to Acquirers, Issuers, Card Schemes, regulators, auditors or service providers where reasonably required to operate the Merchant Facility, comply with Law or manage risk.

(e) You must comply with any additional requirements imposed by an Acquirer or Card Scheme that are notified to you and do not conflict with this Agreement or the Rules.

(f) If there is any inconsistency between this Agreement and the requirements of a Card Scheme or Acquirer, the Card Scheme or Acquirer requirements prevail to the extent of the inconsistency.

Table 3.1 – Card Scheme Acquirers by Product