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Commercial Entity User Agreement with Cuscal Limited

Last updated: 14 January 2016

This Commercial Entity User Agreement (this ‘Agreement’) is provided to all applicable users of the Square AU Pty Ltd ACN 167 106 176 (‘Square’) mobile application, card reader devices and payments service (collectively, the ‘Square Service’) for the acceptance of card payments that are ‘Commercial Entities’ as defined by Visa, Inc. and MasterCard International, Inc. (collectively, the ‘Card Brands’). As such an entity, the seller signing or electronically agreeing to the terms of this Agreement (‘Seller’ or ‘you’) is entering into this Agreement with Cuscal Limited ACN 087 822 455 (the ‘Member’), to govern the authorisation and settlement of Transactions utilising the Square Service. Any authorisation and/or settlement of Transactions using the Square Service will ultimately be given effect by Square. By entering into this Agreement, Seller is fulfilling the Card Brand Rules requiring a direct contractual relationship between the Member and Seller and Seller is agreeing to comply with Card Brand Rules as they pertain to payments Seller receives through the Square Service.

1. Card Brand Rules And Acceptance Requirements.

Seller agrees to comply with all Card Brand Rules as may be applicable to Seller and in effect from time to time and such other procedures as Square and/or the Member may from time to time prescribe relating to Seller’s acceptance of Cards. Without limiting the generality of the foregoing, Seller agrees to each of the following requirements and restrictions:

Bona Fide Transactions.

Seller shall not submit any Transaction that is not a bona fide Transaction. A ‘bona fide’ Transaction means a Transaction that is (i) between the Seller and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Seller’s property or that Seller has the legal right to sell, (iii) submitted on behalf of Seller (and not on behalf of any third party) and (iv) legal, authorised by the Customer, non-fraudulent or otherwise damaging to the Card Brand(s) and is, to the Seller’s knowledge, enforceable, collectible and in full compliance with this Agreement, applicable Law and Card Brand Rules.

Honouring all Cards.

Seller must accept and honour all valid Cards properly presented for payment.

Minimum/Maximum Thresholds For Card Acceptance; Surcharges.

Except as expressly permitted or required by Law, Seller shall not (i) set a dollar amount above or below which Seller refuses to honour Cards or (ii) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Seller under this Agreement) in connection with or as a condition of the use or acceptance of a Card.

Split Transactions.

Seller agrees to submit a single Transaction for the full amount of each sale. Seller shall not split a single Transaction into two or more Transactions, except to allow for partial payment by prepaid or gift Card.

Taxes.

Seller shall not add any tax or surcharge to Transactions, unless applicable Law expressly allows or requires the Seller to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount shall be included in the Transaction amount and shall not be collected separately.

Use of Card Account Numbers.

Seller shall not request or use Card Information for any purpose except as payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Card Brand Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Square, the Member, any Card Brand or in response to a government request; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate in a forensic investigation if so required.

Existing Debt.

Seller shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonoured cheque or the collection, transfer or refinancing of any existing or prior debt or obligation. Seller shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer’s consent. Seller shall not submit any Transaction which it knows or should know to be unenforceable or uncollectable.

Time of Payment.

At the time Seller accepts a Card for any goods or services, the goods shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Seller’s Application (or otherwise approved in writing by the Member in advance).

Cash Advances.

Seller shall not disburse or advance any cash to a Customer (except as authorised by the Card Brand Rules) or to itself or any of its representatives, agents or employees in connection with a Transaction, nor shall Seller accept payment for effecting credits or issuing refunds to a Customer.

Discrimination.

Unless permitted by the Card Brand Rules and to the extent permitted by Law, Seller shall not engage in any practice that unfavourably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand.

Refunds/Credits.

Any Transaction submitted to the Member to credit a Customer’s Card account represents a refund for a prior Transaction submitted to the Member using the same Card.

Instalment Plans.

Unless specifically stated in its Application or otherwise approved in writing by the Member in advance, Seller shall not accept Cards in connection with instalment plans. If the Customer pays in instalments or on a deferred payment plan, as previously approved by the Member, a Transaction Data record has been prepared separately for each instalment transaction or deferred payment on the dates the Customer agreed to be charged. All instalments and deferred payments, whether or not they have been submitted to the Member for processing, shall be deemed to be a part of the original Transaction.

Recurring Transactions.

For recurring Transactions, if any, permitted by the Seller Agreement, Seller must (i) obtain the Customer’s consent to periodically charge the Customer on a recurring basis for the goods or services purchased; (ii) retain this permission for the duration of the recurring services and provide it upon request to the Member or the issuing bank of the Customer’s Card; and (iii) retain written documentation specifying the frequency of the recurring charge and the duration of time during which such charges may be made and the amount or range of amounts that may be charged. Seller shall not submit any recurring transaction after receiving: (i) a cancellation notice from the Customer (so long as such notice was timely provided three (3) or more days prior to the transaction date); or (ii) notice from the Member or any Card Brand (via authorisation code or otherwise) that the Card is not to be honoured. Seller shall include in its Transaction Data the electronic indicator that the Transaction is a recurring Transaction.

Seller Identification.

Seller agrees to prominently and unequivocally inform the Customer of the identity of the Seller at all points of interaction.

Visa and MasterCard Marks.

Seller is authorised to use the Visa and MasterCard logos or marks only on Seller’s promotional materials and website to indicate that Visa and MasterCard cards are accepted as funding sources for Square Transactions.

Seller must not indicate or imply that Visa or MasterCard endorses the goods or services provided.

Chargebacks.

Seller shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Seller shall promptly comply with all requests for information from Square. Seller shall not attempt to recharge a Customer for an item that has been charged back to the Customer, even with the Customer’s consent. You shall have full liability for the amount of any and all successful Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules).

Additional Information.

Seller may request but must not require a Customer to provide additional identification information as a condition of Card acceptance, unless such information is required to complete the Transaction, such as for shipping purposes or the Security Standards specifically permit or require such information to be collected.

Multiple Merchant Category Codes (‘MCCs’)

For Sellers that operate under multiple MCCs a separate merchant agreement must exist for each service offered or type(s) of products sold and a unique code (‘Card Acceptor Business Code’) for each stream of business must be used.

Mail Order / Telephone Order Payments (‘MOTO’) (if applicable)

For mail orders/telephone orders, Seller must verify, as far as possible, the Customer’s identity and the validity of the Transaction.

For telephone orders, Seller must use the CVV2 (‘Card Verification Value’) to verify that the Customer has a legitimate card in hand at the time of the order.

All mail/phone order Transaction authorisation requests must include the Card expiration date. An exception applies to recurring Transactions, which do not require an expiration date in the authorisation request.

Seller must never re-use the CVV 2 or retain the CVV 2.

2. Authorisations Required For All Transactions.

Seller is required to obtain an authorisation through the Square Service, in accordance with this Agreement, for each Transaction. The Member reserves the right to refuse to process any Transaction Data presented by Seller unless it includes a proper authorisation.

3. Refunds.

Seller is required to maintain a refund policy if Seller limits refund/exchange terms or other specific conditions for Card Transactions, Seller’s policy must be clearly provided to the Customer prior to the sale and as part of the sale confirmation process. Qualifying Seller’s refund or exchange terms does not completely eliminate Seller’s liability for a refund because consumer protection laws and Card Brand Rules frequently allow the Customer to still dispute these items. If the Customer is a Consumer, the policy must be consistent with the requirements of the Australian Consumer Law. If, under Seller’s refund policy, Seller allows a refund, Seller shall implement such refund within three (3) days of approving the Customer’s request for such refund. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise. Seller shall not accept any payment from a Customer as consideration for issuing a refund.

4. Term And Termination.

This Agreement is effective upon the date Seller agrees to it (by electronically indicating acceptance of this Agreement or otherwise) and continues so long as Seller uses the Square Service or until terminated by Seller or the Member. This Agreement will terminate automatically upon any termination or expiration of your Seller Agreement. This Agreement may be terminated by the Member at any time based on a breach of any of Seller’s obligations under this Agreement or the Seller Agreement or based on the termination of the payment processing relationship between Square and the Member. In addition and without limiting the generality of the foregoing, the Member may terminate this Agreement at any time upon written notice to Seller as a result of any of the following events: (a) irregular Transactions by Seller, excessive Chargebacks or any other circumstances which, in the Member’s discretion, may increase the Member’s exposure for Seller’s Chargebacks or otherwise present an unreasonable anticipated financial, reputational or legal risk to the Member; (b) Seller fails in any material respect in performance or observance of any term, covenant, condition or agreement contained in this Agreement or the Seller Agreement, including, without limitation, the funding or establishing of any reserve account which Square may require; (c) a case or other proceeding shall be commenced by or against Seller in any court of competent jurisdiction seeking relief under the Bankruptcy Act 1966 or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganisation, winding up or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator or the like of Seller or of all or any substantial part of the assets, domestic or foreign, of Seller and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive days or an order granting the relief requested in such case or proceeding against Seller (including, without limitation, an order for relief under the Bankruptcy Act) shall be entered; (d) any Card Brand notifies the Member that it is no longer willing to accept Seller’s Transaction Data or requires the Member to terminate or limit this Agreement; (e) Seller or any person owning or controlling Seller’s business is listed in one or more databases of terminated or high risk Sellers maintained by the Card Brands; or (f) Seller engages in conduct that creates or could tend to create harm or loss to the goodwill of any Card Brand, the Member or Square or which otherwise may impose undue risk of harm to any Card Brand, the Member or Square. Notwithstanding any termination of this Agreement, those terms which by their nature are intended to survive termination (including without limitation, indemnification obligations and limitations of liability) shall survive.

Termination does not affect either party’s respective rights and obligations under this Agreement as to Transaction Data submitted before termination.

5. Limitation of Liability.

To the maximum extent permitted by Law, the Member excludes all liability for any lost sales, loss of revenue or profit or loss of custom suffered by Seller as a result of any service failure or delay which results in Seller being unable to promptly accept payments from its customers.

6. Indemnity.

Seller agrees to indemnify and hold the Member harmless from and against all losses, liabilities, damages and expense: (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Seller under this Agreement; (b) arising out of Seller’s or its employees’s negligence or wilful misconduct in connection with Transactions or otherwise arising from Seller’s provision of goods and services to Customers; (c) arising out of Seller’s use of the Square Service; of (d) arising out of any third party indemnifications the Member is obligated to make or liabilities or other obligations the Member may incur, as a result of Seller’s actions (including indemnifications of or liabilities to, any Card Brand or Card-issuing bank).

7. Information About Seller’s Business.
Additional Financial Information.

Upon three (3) days’ written notice at any time, Seller agrees to furnish to Square and/or the Member such financial statements and financial information as Square and/or the Member may request relating to Seller, Seller’s creditworthiness and/or Seller’s ability to fulfil its financial and other obligations under this Agreement.

Audit Rights.

With prior notice and during Seller’s normal business hours, the Member’s duly authorised representatives may visit Seller’s business premises and may examine Seller’s books and records that pertain to Seller’s Transactions or Seller’s compliance with this Agreement.

Other Information.

Seller agrees to provide the Member at least 30 days prior written notice of its intent to change current product lines or services, Seller’s trade name or the manner in which Seller accepts payment instruments. If the Member determines such a change is material to its relationship with Seller, the Member may refuse to process Transaction Data made subsequent to the change or terminate this Agreement. Seller agrees to provide the Member with prompt written notice if Seller is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Seller’s signature on this Agreement authorises the Member to perform any credit check deemed necessary with respect to Seller. Seller will also provide the Member with prompt written notice of (i) any adverse change in Seller’s financial condition, (ii) any planned or anticipated liquidation or substantial change the basic nature of Seller’s business, (iii) any transfer or sale of any substantial part (25% or more in value) of Seller’s total assets or (iv) if Seller or Seller’s parent is not a corporation whose shares are listed on an stock or securities exchange or on the over-the-counter market, any change in the control or ownership of Seller or Seller’s parent. Seller will also notify the Member of the appointment of a receiver, administrator, provisional liquidator or liquidator to the Seller or any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of Seller’s total assets not later than three (3) days after Seller obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy.

8. Consumer Laws
Australian Consumer Law – Consumer Guarantees.

Nothing in this Agreement is intended to exclude, restrict or modify the rights which the Seller may have under the Australian Consumer Law. If you are a Consumer, the Member acknowledges that the Consumer Guarantees in Chapter 3 Division 1 of Part 3-2 of the Australian Consumer Law will apply to the supply of goods or services (or both) under this Agreement.

Where you are a Consumer, because the goods or services provided under this Agreement are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Member’s liability for breach of a Consumer Guarantee is limited to (at its election):

  • In the case of a supply of goods, (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or acquiring equivalent goods; or (iv) paying the cost of having the goods repaired; and
  • In the case of a supply of services, (i) resupplying the services; or (ii) paying the cost of having the services supplied again.
Disclaimer; Limitation Of Damages.

The Member will, at its own expense, correct any Transaction Data to the extent that such errors have been caused by the Member or by malfunctions of its processing systems.

If the Consumer Guarantees apply, the Member’s liability is limited in accordance with and to the maximum extent permitted by the Australian Consumer Law. In all other respects and to the maximum extent permitted by applicable Law:

  • the maximum liability to Seller shall be to correct the Member’s systems as soon as reasonably practicable; and
  • except as otherwise provided for in this Agreement and except with respect to Seller’s failure to comply with the Security Standards, in no event will any party, its respective directors, officers or employees or affiliates, be liable for special, incidental, indirect consequential or punitive damages or for any loss, theft, disappearance or damage to data transmitted electronically in connection with this Agreement.
9. Miscellaneous.
Application and Credit Check.

Seller represents and warrants that statements made on its Application for this Agreement are true as of the date of its execution of this Agreement. Seller’s signature on or electronic agreement to this Agreement authorises the Member to perform any credit check deemed necessary with respect to Seller.

Clause Headings.

The clause headings of this Agreement are for convenience only and do not define, limit or describe the scope or intent of this Agreement.

Assignment.

The Member may assign this Agreement to an entity qualified under Card Brand Rules to perform its obligations under this Agreement. Seller cannot assign or transfer your rights or delegate its responsibilities under this Agreement without the Member’s prior written consent. Failure to obtain our consent may result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as the Member may request in order to ensure continued processing of Transactions under this Agreement.

Parties.

This Agreement binds Seller and its respective heirs, representatives and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.

Severability.

Should any provision of this Agreement be determined to be invalid or unenforceable under any Law or any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement.

Waivers.

No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced.

Entire Agreement.

This Agreement represents the entire understanding between Seller and the Member with respect to the matters contained in this Agreement and supersedes any prior agreements between the parties. For purposes of clarity, this Agreement does not supersede the Seller Agreement between Seller and Square. Seller agrees that in entering into this Agreement it has not relied on any statement of the Member or its representatives. The parties acknowledge and agree (i) that this Agreement applies only to Transaction Data generated within the Australia; and (ii) that this is a contract for commercial services.

Notices.

Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, sent via registered post, express post, electronic mail transmission or overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing.

Governing Law.

This Agreement will be construed in accordance with and be governed by the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.

Any claim, dispute or controversy (‘Claim’) by either Seller or Member against the other or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this clause or the validity of the entire Agreement, shall be resolved in accordance with and be governed by the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.

Dispute Resolution.

In the event of any dispute with respect to this Agreement, including a dispute as to the validity or existence of this Agreement, you may send a written dispute directly to the Member:

Attention: Company Secretary \
Cuscal Limited \
GPO Box 4720 \
Sydney NSW 2001

If we are unable to resolve your dispute to your satisfaction within 45 days, you may be eligible to escalate the complaint to the Member’s external dispute resolution service. The external dispute resolution service is:

Financial Ombudsman Service Limited ABN 67 131 124 448 at:

Mail: GPO Box 3, Melbourne VIC 3001 \
Phone: 1300 78 08 08 \
Fax: (03) 9613 6399 \
Email: info@fos.org.au

Force Majeure.

Neither party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labour strikes, riots, war, terrorist attack, non-performance of our vendors or suppliers, acts of God or other causes over which the respective party has no reasonable control, except that nothing in this clause will affect or excuse your liabilities and obligations for Chargebacks, refunds or unfulfilled products and services.

Amendment.

This Agreement may be amended at any time by the Member upon 30 days’ notice to you where the amendment is reasonably necessary in order to protect the legitimate interests of the Member. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Brand Rules or any third party with jurisdiction over the matters described in this Agreement, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment.

Tax Matters.

The Member and Square may be obliged to collect and report certain taxpayer information to the Australian Taxation Office (‘ATO’). Therefore, upon request, Seller shall provide Square and/or the Member with the appropriate taxpayer information. The Member or Square may, in accordance with applicable Law and from time to time during the term of this Agreement, request Seller to recertify its taxpayer information provided. Furthermore, Seller shall be responsible for any ATO interest or penalties (or both) accruing based on the actions or inactions of Seller despite reasonable requests and/or notices from the Member.

10. Definitions.

‘Application’ is a statement of your financial condition, a description of the characteristics of your business or organisation and related information you have previously or concurrently submitted to Square, including credit and financial information, as required by the Member to enter into and process Transactions under, this Agreement.

‘Australian Consumer Law’ means Schedule 2 to the Competition and Consumer Act (Cth).

‘Card’ is an account or evidence of an account, authorised and established between a Customer and a Card Brand or representatives or members of a Card Brand that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorised account or access numbers, paper certificates and credit accounts.

‘Card Brand’ is any payment method provider whose payment method is accepted by the Member for processing, including, but not limited to, Visa, Inc., MasterCard International, Inc. and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers.

‘Card Brand Rules’ are the bylaws, rules and regulations, as they exist from time to time, of the Card Brands and the Payment Card Industry Security Standards Council.

‘Card Information’ is information related to a Customer or the Customer’s Card, that is obtained by Seller from the Customer’s Card or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number or the customer’s postcode when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Card account number and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted or otherwise obtained from the Card, whether printed thereon or magnetically, electronically or otherwise stored on the Customer’s Card.

‘Chargeback’ is a reversal of a Transaction you previously presented to the Member pursuant to Card Brand Rules.

‘Consumer’ has the same meaning as in section 3 of the Australian Consumer Law.

‘Consumer Guarantee’ means a Consumer Guarantee applicable to goods or services supplied or to be supplied under this Agreement by operation of the Australian Consumer Law, including any Express Warranty.

‘Customer’ is the person or entity to whom a Card is issued or who is otherwise authorised to use a Card.

‘Express Warranty’ has the same meaning as in section 2(1) of the Australian Consumer Law.

‘Law’ means applicable statutes, statutory regulations, by-laws, ordinances, orders, awards and proclamations of the government or governmental, semi-governmental, public or statutory bodies, including, in each case, all applicable approvals, permissions and waivers.

‘Member’ is Cuscal Limited ACN 087 822 455 or other entity providing sponsorship and acquiring services to Square AU as required by all applicable Card Brand. Member is a principal party to this Agreement and your acceptance of Card Brand products is extended by the Member.

‘Security Standards’ are all rules, regulations, standards or guidelines adopted or required by the Card Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards (‘PCI DSS’), Visa’s Cardholder Information Security Program (‘CISP’), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (‘SDP’), Visa’s Payment Application Best Practices (‘PABP’), the Payment Card Industry’s Payment Application Data Security Standard (‘PA DSS’), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.

‘Seller’, ‘you’ and ‘your’ is the Seller identified in the Application.

‘Seller Agreement’ is an agreement governing the provision of the Square Service by Square AU to the Seller.

‘Transaction’ is a transaction conducted between a Customer and Seller utilising a Card in which consideration is exchanged between the Customer and Seller.

‘Transaction Data’ is the written or electronic record of a Transaction, including but not limited to an authorisation code or settlement record