Square Seller Agreement
Last updated: 20 June 2017
This Seller Agreement (‘Agreement’) is a legal agreement between you (‘you’, ‘your’) and Square AU Pty Ltd (ABN 38 167 106 176) (‘Square’, ‘we’, ‘our’ or ‘us’) governing your use of Square’s mobile applications and websites, payment processing services, hardware and other products and services (together, the ‘Services’). If you are using the Services on behalf of a business, you accept these terms as an authorised person, on behalf of the business.
Please read this Agreement carefully. This Agreement is divided into three parts. Part One explains the terms that govern your use of the Services. Part Two contains additional legal terms, including provisions that limit our liability to you. Part Three contains the Direct Debit Request Service Agreement which governs the terms and conditions of your direct debit arrangement with Square. To use the Services, you must accept all of the terms of this Agreement.
In particular, Square draws your attention to Part Two of the Seller Agreement, which contains provisions that require arbitration for any potential legal dispute.
Part One: Terms Governing Use of the Services
1. Square Account Registration
You must open an account with Square (a ‘Square Account’) to use the Services. During registration we will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must complete this and other processes to access any funds that you accept through the Services. You must also keep the information that you provide up-to-date. We reserve the right to suspend or terminate the Square Account of anyone who provides inaccurate, untrue or incomplete information or who fails to comply with the account registration requirements.
If you are signing up for a Square Account as a business or a company, you must use the true and accurate name of your business or company and supply the correct details of its Australian Business Number (ABN) or Australian Company Number (ACN). This name will appear on the Buyer’s credit or debit card statement for all payments you accept using the Services.
The software associated with mobile and website applications and hardware products is part of the Services. Among other things, the software enables you to access and use the Services. You must install any and all software updates to continue to use the Services.
4. Verification and Inspection
If your request to open a Square Account is approved, Square may request additional information from you at any time. For example, Square may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s licence, a business licence or other information. Square may also ask for permission to inspect your business location. If you refuse any of these requests, your Square Account may be suspended or terminated (pursuant to clause 40).
5. Compatible Mobile Devices and Third Party Carriers
Your Square Account permits you to accept payment card transactions and to account for cash transactions, on compatible mobile devices. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to those with disabled hardware or software controls—sometimes referred to as ‘jail broken’—are not compatible mobile devices. You acknowledge that using a modified device to use the Services is expressly prohibited, constitutes a violation of the terms of this Agreement and is grounds for termination of your Square Account. Square does not warrant that the Services will be compatible with your mobile device or third party carrier.
Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
6. Your Square Account
By creating a Square Account, you confirm that you are either a legal permanent resident of Australia, an Australian citizen or a business entity authorised to conduct business by the State(s) in which you operate or, if applicable by the Commonwealth of Australia. The Services and your Square Account may only be used for business purposes in Australia. You may not export the Services directly or indirectly.
By creating a Square Account, you also confirm that you will not accept payments in connection with the following businesses or business activities: (1) any illegal activity or goods, (2) buyers or membership clubs, including dues associated with such clubs, (3) credit counseling or credit repair agencies, (4) credit protection or identity theft protection services, (5) direct marketing or subscription offers or services, (6) infomercial sales, (7) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (8) unauthorised multi-level marketing businesses, (9) inbound or outbound telemarketers, (10) prepaid phone cards or phone services, (11) rebate based businesses, (12) up-sell merchants, (13) bill payment services, (14) betting, including lottery tickets, casino gaming chips, off-track betting and wagers at races, (15) manual or automated cash disbursements, (16) prepaid cards, cheques or other financial merchandise or services, (17) sales of money-orders or foreign currency, (18) wire transfer money orders, (19) high-risk products and services, including telemarketing sales, (20) automated fuel dispensers, (21) adult entertainment oriented products or services (in any medium, including internet, telephone or printed material), (22) sales of (i) firearms, firearm parts or hardware and ammunition; or (ii) weapons and other devices designed to cause physical injury (23) internet/mail order/telephone order cigarette, tobacco or vaporiser sales, (24) drug paraphernalia, (25) occult materials, (26) hate or harmful products, (27) escort services, (28) insolvency lawyers or collection agencies engaged in the collection of debt, (29) door-to-door organisations, (30) products designed to circumvent copyrights or otherwise facilitate illegal use of copyright materials, (31) ticketing agencies, (32) businesses selling software over the internet, (33) timeshare and timeshare maintenance, (34) internet payment service providers, (35) fulfillment houses and (36) network member payment processing service providers.
If you accept payments in connection with any of the above businesses or business activities, we may terminate the use of the Services (pursuant to clause 40).
7. Our Role
The Services allow you to accept payments, including Card-based payments initiated with Cards bearing the trademarks of the American Express Company, MasterCard International Inc. and Visa Inc. (collectively, the ‘Networks’).
As a payment service provider, Square facilitates the processing of payments you receive from your Buyers. This means that we collect, analyse and relay information generated in connection with these payments.
In order to serve in this role, we must enter into agreements with Networks, processors and members of Networks that provide acquiring services (Square is not a member of any relevant Networks although it is a participant in those Networks). In some cases, including if your annual volume is in excess of applicable Network Rules, Visa and MasterCard require that our Sellers enter into an agreement directly with a member of their Network. If you are such a Seller we will provide you a ‘Commercial Entity Agreement’ that you must complete in order to use the Services. This may happen during the registration process or at some other time. If you fail to complete a ‘Commercial Entity Agreement’, we may suspend or terminate your Square Account (pursuant to clause 40). Similarly, if you are a high value customer, American Express may require that you maintain your agreement directly with them and designate Square as your agent for American Express payments. If that is the case, we will notify you of such requirement.
8. Your Authorisation
You authorise us in relation to the Services to act as your agent for the purposes of holding, receiving and disbursing funds on your behalf. Your authorisation permits us to generate an electronic funds transfer to process each payment transaction that you authorise. Your authorisations will remain in full force and effect until your Square Account is closed or terminated. You agree that our receipt of transaction proceeds satisfies the Buyer’s obligations to you. We will remit to you funds actually received by us on your behalf, less amounts owed to us, subject to any Chargeback (see clause 27) or Reserve (see clause 19) withheld or applied in accordance with this Agreement.
9. Restricted Use
Hardware products provided to you by Square are for your use with the Services and you may not act as a hardware product reseller. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party. This means that you may not use the Services to handle, process or transmit funds for any third party. You also may not use the Services to process cash advances. You may not use the invoices feature of the Services to send invoices to yourself or in any other manner for which the invoices feature is not intended.
10. Unauthorised or Illegal Use
We may decide not to authorise or settle any transaction that you submit to us if we believe that the transaction is in violation of this Agreement or any other agreement that you have with Square or that it exposes you, other Square customers, the Networks, our processors or Square to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Square Account has been used for an unauthorised, illegal or criminal purpose, you give us express authorisation to share information about you, your Square Account and any of your transactions with law enforcement authorities.
11. Accepted Cards
Square works with any Australian-issued and most non-Australian issued credit, debit, prepaid or gift cards (‘Cards’) with a Visa, MasterCard or American Express logo. We may remove or add Cards that we accept at any time without prior notice. We will generally only process Cards that receive an authorisation from the applicable Network and Card issuer. You understand that there may be times when the Buyer may not be the authorised user of the Card or that a Buyer may otherwise contest the transaction through the Chargeback process (described below). You agree to comply with the Chargeback process and to liability associated with such Chargebacks.
12. Applicable Network Rules
The Networks require that you and Square comply with all applicable bylaws, rules and regulations (‘Network Rules’). Networks may amend their Network Rules from time to time. Square may be required to change this Agreement in connection with amendments to the Network Rules using its power to amend in clause 52 of this Agreement. Significant portions of the Network Rules are available to the public at www.visa.com, www.mastercard.com and www.americanexpress.com.
Network Rules currently prohibit you from dispensing cash on any Card transaction. The Network Rules also restrict your ability to limit a surcharge or split a single transaction in to multiple transactions except in certain limited situations.
Your use of Network logos is governed by the Network Rules; you agree to familiarise yourself with and to comply with these requirements.
13. Information about You
Square will review the information that you submit in connection with your request to sign up for the Services. You agree that Square may share information about you and your Square Account with its processor and/or acquiring bank. After you submit your application, Square or its processor and/or acquiring bank may conclude that you will not be permitted to use the Services.
You authorise Square to request identity verifying information about you, including a report from a data analytics service provider that contains your name, date of birth and address. You further agree that Square may periodically obtain additional reports to determine whether you continue to meet the requirements for a Square Account.
You agree that Square is permitted to share information about you and your application (including whether you are approved or declined) and your Square Account with your bank or other financial institution. This includes sharing information (a) to create and update their customer records about you and to assist them in better servicing you (b) about your transactions for regulatory or compliance purposes (c) for use in connection with the management and maintenance of the Service and (d) to conduct Square’s risk management process.
14. Our Fees
You agree to pay the applicable fees listed on our Fee Schedule (‘Fees’) for use of the Services. Subject to the terms of this Agreement, we reserve the right to change our Fees upon thirty days’ advance notice. You must agree to the change in Fees to continue to use the Services. To withdraw your consent, you must close your account with Square (‘Square Account’). All Balances and all Fees, charges and payments collected or paid through the Services are denominated in Australian dollars.
15a. Access to Square Account Funds
Subject to the payout schedule identified below, we will deposit amounts received by us for transactions you submit through the Services (less any applicable Fees) to your verified Australian bank account.
If Square is not able to debit or credit the bank account you link to your Square Account, the bank account will be de-linked from your Square Account.
Funds for any given transaction will not be deposited until the transaction is taken to be complete. Transactions are taken to be complete when we have received or sent the funds and when we or the designated financial institutions have accepted the transaction or funds.
15b. Right of Setoff
If at any time an amount payable by you under this Agreement is due but unpaid, we may withhold payment of any amount that is payable by Square to you until you have made payment of the amount that you owe us.
We may set off any amount that you owe us against any amount that we owe you.
We may apply any credit balance in your Square Account or any other account you have with us (including without limitation any Reserve) in and towards satisfaction of or payment of any of your obligations to pay an amount which is then due under this Agreement.
- any amount standing to the credit of your Square Account;
- any amount standing to the credit of any other account you hold with Square (including without limitation any Reserve); and
- any amount payable by Square to you and the benefit of any claim you may have against Square,
to secure payment of any and all amounts payable by you to Square under this Agreement.
You acknowledge that this clause contains security interests for the purposes of the PPSA. You will execute any additional documentation required for us to perfect our security interest in any funds in any accounts including those funds in the Reserve. These security interests survive for as long as we hold funds in your accounts or in the Reserve.
16. Payout Schedule - Standard
Once you validate your Australian bank account, Square will automatically initiate a payout to your bank account at the end of every business day. Payouts to your bank account for payments received by you during business hours (before 5pm Australian Eastern Standard Time) will usually fund the next business day.
17. Availability of Funds
Should Square need to conduct an investigation or resolve any pending dispute related to your Square Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as necessary to comply with Law or court order or if otherwise requested by law enforcement or a governmental entity.
18. Square Account History
When a payment is made to your Square Account, we will update your Square Account activity on the website and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your Square Account activity, including monthly statements, are available on our website for up to one year of account activity. Except as required by Law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Square Account and your use of the Services and (b) reconciling all transactional information that is associated with your Square Account. If you believe that there is an error or unauthorised transaction activity is associated with your Square Account, you agree to contact us immediately.
From time to time, we may temporarily suspend or delay payments to you and/or designate an amount of funds that you must maintain in your Square Account or in a separate reserve account (a ‘Reserve’) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks (described in clause 27), refunds or other indications of performance problems related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history. By not less than 7 days’ notice, the Reserve may be raised, reduced or removed at any time by Square, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in Square’s favour or otherwise as Square may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Square Account, including but not limited to any funds (a) held in your Square Account or any other account you hold with Square, (b) due to you under this Agreement or (c) available in your bank account or other payment instrument registered with us (and you authorise us to debit the bank account or to claim under the payment instrument for that purpose). Under clause 15b, you grant us rights in connection with any and all funds held in any Reserve and also authorise us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your Square Account.
20. Square Account Balances
If you hold a monetary balance in your Square Account (your ‘Balance’), you are not required to keep that Balance in your Square Account (but we have rights under clause 19 in relation to that Balance). If you end up with a Balance, your funds will be co-mingled and held by us with funds of other clients of Square in one or more pooled accounts of Square at one or more Authorised Deposit-taking Institutions on your behalf and for the benefit of you and others holding balances (each a ‘Pooled Account’). We have sole discretion over the establishment and maintenance of any Pooled Account. Funds associated with your Square Account will at all times be held separate from our corporate funds. We will not use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose and will not knowingly permit our creditors to obtain an order restraining application of the funds to carry out any execution process that affects the funds. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the Services, you irrevocably assign to us all interests and rights you have or may have to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve (described above).
21. Tax Invoices/Receipts
When your Buyer is present at the time of the transaction and signs or enters their Personal Identification Number (‘PIN’), you benefit from the Network Rules for card present transactions. You agree to request that your Buyer enter their PIN or personally sign for all transactions when your Buyer is present. You acknowledge that it is your responsibility to provide customers with receipts, proof of purchase or tax invoices (as appropriate) and we accept no responsibility or liability for the form, content, accuracy or provision of receipts, proof of purchase or tax invoices (as appropriate). You may use the Services to sign up the Buyer to receive a receipt, proof of purchase or tax invoice (as appropriate) by email or text message. Digital receipts may contain additional messages, offers or links that may be of interest to Buyers. Buyers may be able to use the Services to submit feedback to you about their recent customer experience. When Buyers submit feedback using the Services, we share that feedback with you and allow you to send responses to Buyers who have enabled replies to their feedback. You may not use the feedback features of the Services: (a) to send responses to Buyers who have not enabled replies to their feedback, (b) to request Buyer Card information, (c) to send Buyers marketing messages, requests for information or other communications unrelated to their feedback, (d) to send abusive, harassing, excessive or objectionable messages or (e) in any other manner that would violate any provision of this Agreement or Square’s policies. If you do not wish to receive feedback or to report a problem with feedback from a Buyer, you should contact Square Support.
22. Usage of Shortcode (778273)
You agree that Square may send you real-time receipts via a text message, which you may also use as secondary authentication. Standard message and data rates may apply (check with your carrier). You may start by entering your mobile phone number during a transaction with a Buyer or by opting-in at squareup.com. Text STOP to quit.
You are responsible for determining any and all taxes assessed, incurred or required to be collected, paid or withheld for any reason in connection with your use of our software and Services (‘Taxes’). You also are solely responsible for collecting, withholding, reporting and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply or calculate, collect, report or remit any Taxes to any tax authority arising from any transaction. Square specifically disclaims any liability for Taxes.
Words used in this clause 23b that have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in the GST Law (as defined in that Act) unless the context indicates otherwise. Unless expressly included, the consideration for any supply under or in connection with this Agreement does not include GST. For this purpose, the Fees listed in the Fee Schedule are expressly inclusive of GST.
To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the recipient must pay, in addition to the consideration provided under this Agreement for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The recipient must pay the additional amount at the same time as the consideration to which it is referable. Whenever an adjustment event occurs in relation to any taxable supply to which this clause 23b applies (a) the supplier must determine the amount of the GST component of the consideration payable and (b) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable. We will issue a monthly statement, which will comprise a Tax Invoice for supplies made by us in the preceding calendar month. For any taxable supplies not covered by such a statement, the supplier must issue a Tax Invoice to the recipient of a supply to which this clause 23b applies no later than at the time of payment of the GST inclusive consideration for that supply under that clause. If either party is entitled under this Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified or by its representative member.
24. Customer Service
You are solely responsible for all customer service policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a Buyer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any Square Account, payment, Card processing, debiting or crediting.
25. Refunds and Returns
By accepting payment Card transactions with Square, you agree to process returns of and provide refunds and adjustments for, your goods or services through your Square Account in accordance with this Agreement and Network Rules. Network Rules require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to Buyers at the time of purchase, (c) not give cash refunds to a Buyer in connection with a Card sale, unless required by law and (d) not accept cash or any other item of value for preparing a Card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the Buyer for postage that the Buyer paid to return merchandise. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the Buyer, you may still receive a Chargeback relating to such sales.
You can process a refund through your Square Account up to one hundred twenty (120) days from the day you accepted the payment. If you are an Online Store Seller, you may not be able to process a partial refund. If your available Balance is insufficient to cover the refund, Square will request your authorisation to withdraw up to the requested refund amount from your bank account. Square will then withdraw the amount you were paid (the sale amount minus the initial transaction fee) from your bank account and credit it back to your Buyer’s Card. The Fees are also refunded by Square, so the full purchase amount is always returned to your Buyer. Square has no obligation to accept any returns of any of your goods or services on your behalf.
26. Your Liability for Chargebacks
The amount of a transaction may be reversed or charged back to your Square Account (a ‘Chargeback’) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor or a Buyer or our financial institution, (c) was not authorised or we have any reason to believe that the transaction was not authorised, (d) is allegedly unlawful, suspicious or in violation of the terms of this Agreement.
27. Our Collection Rights for Chargebacks
For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may debit the amount of any Chargeback and any associated Fees, fines or penalties listed in the Fee Schedule or assessed by the networks or our processor from your Square Account (including without limitation any Reserve), any proceeds due to you, your bank account or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Square Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is processed by the issuer of the Buyer’s Card due to a Buyer’s complaint, in which case we will retain the funds; (b) the period of time under Law by which the Buyer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation lawyer’s fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Square Account deficit balances unpaid by you.
We will debit any Chargebacks or associated payments due to us by direct debit in accordance with the terms and conditions of the Direct Debit Request which you agreed to as part of the sign up for a Square Account and the Direct Debit Request Service Agreement which is in Part Three of this Agreement.
28. Excessive Chargebacks
If we reasonably determine that you are incurring an excessive amount of Chargebacks, we may (a) establish controls or conditions governing your Square Account, including without limitation, by (i) establishing new processing fees, (ii) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (iii) delaying payouts or (b) subject to clause 40, terminate or suspend your Square Account (pursuant to clause 40).
29. Contesting Chargebacks
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Services. To that end, you permit us to share information about a Chargeback with the Buyer, the Buyer’s financial institution and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release to your Square Account any funds previously withheld in respect of that Chargeback (except where we exercise rights under clause 15b in relation to those funds). If a Chargeback dispute is not resolved in your favour by the Network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
30. Our Set-off Rights
To the extent permitted by Law, consistently with clause 15b, we may set off against your Balance any obligation you owe us under this Agreement, including without limitation any Chargebacks. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance in your Square Account. If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered in your Square Account or any connected Square Account (as well as set off against any Balance in any connected Square Account). Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation lawyer’s fees and expenses, collection agency fees and any applicable interest.
31. Dormant Square Accounts
If there is no activity in your Square Account (including access or payment transactions) for at least 1 consecutive year and you have a Balance, we will notify you by sending an email to the email address associated with your Square Account and give you the option of keeping your Square Account open and maintaining the Balance or withdrawing the Balance. If you do not respond to our notice within thirty days, we will automatically close your Square Account and deal with your funds in accordance with Law.
32. Square Processing Errors
We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the amount to which you were entitled, Square will credit your Square Account for the difference. If the error results in your receipt of more than the amount to which you were entitled, Square will debit the extra funds from your Square Account. Square will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty days of when it first appears on your electronic transaction history will be taken to be a waiver of any right to amounts owed to you.
33. Your Privacy
34. Privacy of Others
35. Disclosures and Notices
Upon acceptance of this Agreement, you confirm that you have read, understood and accepted Square’s E-Sign Consent policy. You agree that Square can provide disclosures and notices required by Law and other information about your Square Account to you electronically by posting it on our website or by emailing it to the email address listed in your Square Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
If you wish to withdraw your consent to receiving electronic communications, you should contact Square Support. If we are not able to support your request, you may need to terminate your Square Account.
36. Your Content
In connection with your Square Account, any business listing and your use of the Services, you may be able to upload or provide photos, logos, products, loyalty programs, promotions, advertisements and other materials or information (‘Seller Content’). You agree that you will not upload or provide any Seller Content unless you have created that content yourself or you have permission from the content owner to do so. You represent that you have authority to use the Seller content in the relevant manner and to grant us the rights below.
You grant us, our affiliates and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform and publicly display your Seller Content throughout the world in any media in order to provide and promote the Services and Square’s business, with or without attribution or reference to you and even where the treatment of your Seller Content may be considered derogatory. You acknowledge that this consent is irrevocable and is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement. You retain all rights in your Seller Content, subject to the rights granted to Square in this Agreement. You may modify or remove your Seller Content via your Square Account or by terminating your Square Account, but your Seller Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You agree not to upload or provide Seller Content or otherwise post, transmit, distribute or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive or inflammatory; (b) encourages conduct that would be considered a criminal offence or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive or destructive files; (e) advertises products or services competitive with Square’s or its partners’ products and services, as determined by Square in its sole discretion; or (f) in Square’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services or which may expose Square, its affiliates, its customers or Buyers to harm or liability of any nature.
You may be able to use the Services to create, manage and send marketing messages to Buyers who have elected to receive offers and updates from Sellers they frequent. Square is not involved in your marketing messaging to Buyers, except for providing the Services that facilitate the creation, delivery and management of messages by you to Buyers. You (and not Square) are the sponsor, sender and administrator of marketing messages you send using the Services. You are responsible for creating, managing and honouring any terms included in such messages and for the Seller Content of your marketing messages, even if your Square Account is closed, suspended or terminated. Messaging features available in the Services are unrelated to and do not account for, any customer relationship activities you may have or may engage with Buyers outside of the Services. You are solely responsible for compliance with federal, state and local Laws and regulations that apply to your messages. You may not use the Services to send unsolicited bulk messages. You agree to pay the applicable Fees for use of the Services.
Although Square has no obligation to screen, edit or monitor any Seller Content, Square reserves the right and has absolute discretion, to remove, screen, edit or disable any Seller Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Seller Content that is offensive, indecent or objectionable. We take no responsibility and assume no liability for any Seller Content, including any loss or damage to any of your Seller Content.
37. Copyright and Trademark Infringement
Square respects the copyright and trademark rights of others and asks you to do the same. Square has adopted a Copyright & Trademark Policy regarding claims that third party material infringes the copyrights or trademarks of others. Square responds to all valid notices of such copyright and trademark infringement and it is Square’s policy to suspend or terminate the access privileges (as referred to in clause 40) of those who infringe the copyrights and trademarks of others.
We have implemented technical and organisational measures designed to secure information about you from accidental loss and from unauthorised access, use, alteration or disclosure. However, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use information about you for improper purposes. You acknowledge that you provide information about you at your own risk.
39. Your Right to Terminate
You may terminate this Agreement and other Square agreements by closing your Square Account at any time. Upon closure of a Square Account, any pending transactions will be cancelled. Any funds that we are holding for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Square Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Square Account, we may hold your funds as described in clause 17. If you are determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
40. Suspension or Termination by Us
We may at any time suspend payment of funds into your Square Account, suspend your access to the funds currently held in your Square Account or terminate this Agreement (a) in the circumstances specified in clauses 1, 4, 6, 7, 28 and 37 (b) if you have violated the terms of this Agreement, any other agreement you have with Square or Square’s policies, (c) if you pose an unacceptable credit or fraud risk to us or (d) if you provide any false, incomplete, inaccurate, conflicting or misleading information or otherwise engage in fraudulent or illegal conduct. We will notify you of a suspension of our obligation to make payment or termination within 30 days of imposing the suspension or terminating. We will let you know the steps you can take in order for us to be able to consider lifting the suspension.
We may terminate this Agreement for convenience upon providing 30 days’ notice to you.
41. Effect of Termination
We will not be liable to you for compensation, reimbursement or damages in connection with your use of the Services or in connection with any termination or suspension of the Services. Any termination of this Agreement or suspension does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination or suspension and any other amounts owed by you to us as provided in this Agreement.
42. Your obligations upon termination
If this Agreement is terminated you agree: (a) to continue to be bound by those provisions of this Agreement that are intended to survive termination of this Agreement (including without limitation those specified in clause 56), (b) to immediately stop using the Services (unless we terminate for convenience in which case you must stop using the Services upon expiry of the notice period we give you), (c) that the licence provided to you under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers and (e) that Square shall not be liable to you or any third party for termination of access to the Services or for deletion of your information or account data.
Part Two: Additional Legal Terms
43. Your Licence
Square grants you a personal, limited, non-exclusive, revocable, non-transferable licence, without the right to sublicense, to electronically access and use the Services solely to accept and receive payments and to manage the funds you so receive, in accordance with this Agreement. The Services include our website, any mobile applications, software, programs, documentation, tools, internet-based services, components and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) and hardware products provided to you by Square. You will be entitled to download updates to the Services, subject to any additional terms made known to you at that time, when Square makes these updates available from time to time.
You may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Square system using any manual process or robot, spider, scraper or other automated means unless you have separately executed a written agreement with Square referencing this clause 43(i) that expressly grants you an exception to this prohibition; (ii) copy, reproduce, reverse engineer, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way software, material or information from Square; (iii) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Services or any Square service or product, work around, bypass or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that this restriction is expressly prohibited by Law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) use the Services other than as expressly allowed under this clause.
The Services are licensed and not sold or assigned. Square reserves all rights not expressly granted to you in this Agreement. The Services are protected by patent, copyright, trademark, trade secret and other intellectual property Laws. Square owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any rights to Square’s trademarks or service marks.
For the purposes of this Agreement, ‘Intellectual Property Rights’ means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or after come into existence and all applications and registrations, renewals and extensions, under the Laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our other products (‘Ideas’). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction, that it will not place Square under any fiduciary or other obligation and that we are free to use the Idea without any compensation to you whatsoever and we are entitled to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Square does not waive any rights to use similar or related ideas previously known to Square or developed by its employees or obtained from sources other than you.
You will indemnify, defend and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest and expenses (including without limitation reasonable lawyer’s fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties or obligations set out in this Agreement, including without limitation any violation of our policies or the Network Rules; (b) your unauthorised, wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any Seller Content or product, service or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any Law of Australia or any other country; (f) any third party’s access and/or use of the Services using your unique name, password or other appropriate security code.
46. Representation and Warranties
You represent and warrant to us that: (a) if you are an individual, you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services and any ACN, ABN or other identifier provided by you for your business is correct; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each Buyer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Buyer; (g) you and all transactions initiated by you will comply with all federal, state and local Laws, rules and regulations applicable to you and/or your business and employees, including (but not limited to) any applicable tax or employment Laws and regulations; (h) except in the ordinary course of business, no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor or owner of your entity; (i) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) no transaction submitted by you through the Services will involve your Cards (except for reasonable test swipes); and (k) your use of the Services will be in compliance with this Agreement.
47a. Australian Consumer Law – Consumer Guarantees
Nothing in this Agreement is intended to exclude, restrict or modify the rights which you may have under the Australian Consumer Law. If you are a Consumer, Square acknowledges that the Consumer Guarantees in 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. Square’s liability for breach of a Consumer Guarantee is governed by clause 47b.
47b. Australian Consumer Law – Limitation of Liability
Where you are a Consumer, Square’s liability for breach of a Consumer Guarantee is limited to (at our 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.
48a. Limitations of Liability and Damages
If the Consumer Guarantees apply, Square’s liability is limited in accordance with clause 47b.
In all other respects and to the maximum extent permitted by Law:
(a) in no event shall Square, its processors, service providers, suppliers or licensors (or their respective affiliates, agents, directors or employees) be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages or for any damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, inability to use or unavailability of the Services. Under no circumstances will Square be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorised access or use of the Services or your Square account or the information contained in it.
(b) Square, its processors, service providers, suppliers and licensors (and their respective affiliates, agents, directors and employees) assume no liability or responsibility for any (i) errors, mistakes or inaccuracies of the service; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the service; (iii) any unauthorised access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the service; (v) any bugs, viruses, trojan horses or the like that may be transmitted to or through the services by any third party; (vi) any errors or omissions in any content or data or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transmitted or otherwise made available through the Services; and/or (vii) seller content or the defamatory, offensive or illegal conduct of any third party. In no event shall Square, its processors, service providers, agents, suppliers or licensors (or their respective affiliates, agents, directors or employees) be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount of fees earned by Square in connection with your use of the Services during the three (3) month period immediately preceding the event giving rise to the claim for liability.
This limitation of liability clause applies whether the alleged liability is based on contract, tort (including, negligence), strict liability or any other basis, even if Square has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by Law in the applicable jurisdiction.
The Services are controlled and operated from facilities in the United States and Japan. Square makes no representations that the Services are appropriate or available for use other than in Australia. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Australian and local Laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed or sanctioned by the United States or Australia or are a foreign person or entity blocked or denied by the United States or Australian government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies or other entities located in Australia.
48b. Third Party Products
All third party hardware and other products included or sold with the Services are provided according to the warranty and other service and support terms specified by the manufacturer and subject to the Consumer Guarantees in the Australian Consumer Law (if and to the extent it is applicable to you).
Square does not endorse, any product or services advertised or offered by a third party through the Services or any hyperlinked website or service or featured in any banner or other advertising and Square will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
If the Consumer Guarantees apply (see clause 47a), Square’s liability to you arising out of your use of or inability to use third party products is limited in accordance with clause 47b. In all other respects, Square will not be liable for any indirect, special, punitive, incidental or consequential cover damages arising out of your use of or inability to use third party products or any amount in excess of the amount paid by you for the product that gives rise to any claim.
49. Dispute Resolution
If a Dispute arises, we want to understand and address your concerns quickly and to your satisfaction. Before commencing any legal proceedings, please contact Square Support with your Dispute and we will try to resolve it within 30 days. This clause does not prevent either party from seeking urgent injunctive or urgent declaratory relief.
50. Binding Arbitration
You and Square agree to arbitrate all Disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can.
Any Dispute arising out of or in connection with this Agreement shall be submitted to final and binding arbitration in accordance with and subject to, the IAMA Arbitration Rules (as varied by this clause 50).
Any arbitration under this agreement will only be on an individual basis. Class arbitrations and class actions are not permitted and you are waiving your rights to participate in a class action against Square.
Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in their local small-claims tribunal rather than through arbitration.
The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
For any claim where you are seeking relief, Square will not seek to have you pay its legal fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous.
Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction of the Courts of Victoria.
51. Governing Law
This Agreement will be construed in accordance with and be governed by the laws of Victoria and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria.
52. Right to Amend
By providing reasonable prior notice to you, we may vary, change or add to the terms of this Agreement at any time or vary, change, delete, discontinue or impose conditions on any feature or aspect of the Services. We may give such notice by publishing the relevant information within the most current version of this Agreement, which is available on our website. If the information includes any material change to your existing rights and obligations or the material terms of the Services, we will alert you by email. Any use of the Services after notice becomes effective shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement (including clause 49) that was in place when the Dispute arose.
This Agreement and any rights and licences granted in it, may not be transferred or assigned by you, but may be assigned or novated by Square without restriction to a third party nominated by Square.
54. Third Party Services and Links to Other Websites
55. Other Provisions
Except as expressly provided in this Agreement or by a statutory provision which may not be excluded (including but not limited to the Australian Consumer Law), these terms are a complete statement of the agreement between you and Square and they describe the entire liability of Square and its processors, service providers, suppliers and licensors (and their respective affiliates, agents, directors and employees) and your exclusive remedy with respect to your access and use of the Services. In the event of a conflict between this Agreement and any other Square agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under Law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Law and the remaining provisions will continue in full force and effect. Headings are included for convenience only and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Square may have under trade secret, copyright, patent or other Laws. Square’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following clauses of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 6, 13, 15-20, 24, 25, 27-32, 33, 34, 36, 37,41, 42, 44-57.
57. Personal Property Securities Act
(a) You acknowledge that under this Agreement (including without limitation clauses 15b and 19) you grant Security Interests to us and you acknowledge that this Agreement constitutes a Security Agreement for the purposes of the PPSA.
(b) You will do anything reasonably required by us to enable us to register our Security Interests on the PPSR, with the priority we require and to maintain the registrations.
(c) You acknowledge that we may perfect our Security Interests by lodging Financing Statements on the PPSR.
(d) The Security Interests attach to the Secured Property when you have rights in the Secured Property and the parties confirm that they have not agreed that the Security Interests attach at any later time.
(e) All of the enforcement provisions of Chapter 4 of the PPSA apply to all of the Security Interests created under or referred to in this Agreement, except as follows:
- (1) section 95 (notice of removal of accession), to the extent that it requires us to give a notice to you;
- (2) subsection 121(4) (enforcement of liquid assets – notice to grantor);
- (3) section 130 (notice of disposal), to the extent that it requires us to give you a notice;
- (4) paragraph 132(3)(d) (contents of statement of account after disposal);
- (5) subsection 132(4) (statement of account if no disposal);
- (6) section 135 (notice of retention);
- (7) section 142 (redemption of collateral); and
- (8) section 143 (reinstatement of security agreement).
(g) We do not need to give you any notice under the PPSA (including a notice of a Verification Statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
(h) The parties agree that neither party will disclose to an ‘interested person’ (as defined in section 275(9) of the PPSA) or any other person, any information of the kind described in section 275(1) of the PPSA. You will not authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.
‘Australian Consumer Law’ means Schedule 2 to the Competition and Consumer Act (Clth).
‘Buyer’ means any person that presents a card to a Seller in order to make a payment.
‘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.
‘Dispute’ means any dispute, difference or issue between the parties concerning or arising out of or in connection with or relating to this Agreement or the subject matter of this Agreement or the existence, breach, termination, validity, repudiation, rectification, frustration, operation or interpretation of this agreement including, without limitation, any claim: (i) in tort; (ii) in equity; (iii) pursuant to any applicable state, territory, Commonwealth, foreign or international statute or law; or (iv) of any other kind or nature under any applicable law.
‘Express Warranty’ has the same meaning as in section 2(1) of the Australian Consumer Law.
‘Financing Statement’ means a financing statement within the meaning of the PPSA.
‘Law’ means common law, principles of equity and any legislation, enactment, proclamation, by-law, regulation published policy or regulatory guide passed or adopted by any government body or authority with applicable jurisdiction and includes any amendments, consolidations or replacements of them and all orders, ordinances, regulations, rules, by-laws and policies made under them.
‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
‘PPSR’ means the Personal Property Securities Register established under Section 147 of the PPSA.
‘Security Agreement’ means a security agreement within the meaning of the PPSA.
‘Security Interest’ means a means a security interest within the meaning of the PPSA.
‘Security Interest’ means a means a security interest within the meaning of the PPSA.
‘Seller’ means any person that signs up for a Square account to accept payments using the Square Services.
‘Verification Statement’ means a verification statement within the meaning of the PPSA.
Part Three: Direct Debit Request Service Agreement
By electronically agreeing to a Direct Debit Request (‘DDR’) as part of the sign up for a Square Account, you authorise us to direct debit any Chargebacks or associated payments due to us under this Agreement (or any arrangements which replace this Agreement), from an Australian dollar denominated bank account set up for Square Services and designated by you in the DDR.
You must ensure that (a) the financial institution specified in the DDR accepts and acts upon direct debits for the account specified in the DDR (direct debiting through the Bulk Electronic Clearing System may not be available on all accounts) and (b) the account details specified in the DDR are correct (for example, by comparing them with a recent statement from your financial institution or checking these directly with your financial institution).
If a direct debit is scheduled to be made from the account specified in the DDR on a day other than a business day, that direct debit will be made on the next business day. If you are uncertain about when a direct debit will be processed, you should check with your financial institution. A ‘business day’ is a day on which banks and financial institutions are generally open for business in Melbourne. If you have made any changes to your account and for any other matters related to this direct debit arrangement, including deferment, stops, cancellations or alternations, please contact Square Support. Please allow 7 days for the amendments to take effect. You may also contact your financial institution to stop any direct debit or cancel the DDR. If we or our financial partners make any changes to this direct debit arrangement, we will advise you of such change at least 14 days in advance of such change.
If you believe that there has been an error in debiting your account, you should contact Square Support in the first instance to confirm the details so that we can investigate the matter and advise you in writing whether your account has been incorrectly or correctly debited. You can also contact your financial institution.
It is your responsibility to ensure you have sufficient cleared funds available in the account to be debited when payments are due.
In the event that you do not have sufficient cleared funds and a debit to your account is returned unpaid, you will be notified that your payment has been returned unpaid and a request will be made for you to update your account information and we will reinitiate the debit without additional fees.
We will keep your details, the details of the account and any underlying subject matter specified in the DDR (including any ‘Personal Information’ (as defined in the Privacy Act 1988 (Cth))) confidential except where: (a) it is required for the purposes of conducting direct debits (for example. we may need to provide this information to our financial partner in connection with a claim made on the financial partner relating to an alleged incorrect or wrongful debit); or (b) we receive your permission to release those details; or (c) we are required to disclose such details by Law.