1.0 RECITALS

1.1 SQID Payments Pty Ltd ABN 44 166 730 310 (SQID is an Australian technology company that is a specialised Payment Service Provider (PSP) for processing merchant transactions, high level authentication of remote transactions, transaction management, transaction switching and transaction test tools. SQID Payments is a subsidiary of SQID Technologies Ltd ACN 121 655 472 that was founded in 2006 and is a Merchant Aggregator for Westpac Banking Corporation ABN 33 007 457 141 (Westpac). SQID has developed and patented multi-factor security technology to deliver secure remote payment and identification solutions for mobile and internet banking, shopping and e-Identity applications.

1.2 SQID is an authenticated distributor of transaction payment test tools, simulators and payment processing technology.

2.0 INTRODUCTION

2.1 This document defines the terms and conditions of the SQID / Merchant working relationship. The terms and conditions apply to the acceptance of Cards under a Merchant Facility provided by us “SQID” and powered by “Westpac”.

2.2 These Terms and Conditions operate in conjunction with the Westpac Terms and Conditions, available for viewing on our website.

2.3 All products of SQID or an affiliate including the SQID website, VirtualPOS page and online documentation are subject to the terms and conditions set out below.

2.4 By clicking “I agree” to the SQID Terms and Conditions and Westpac Terms and Conditions or signing a merchant questionnaire or signing a merchant agreement you agree to be bound by ALL the Terms and Conditions of this Agreement. If you do not agree to ALL the Terms and Conditions set out below, then you must not use the Site or Service.

3.0 DEFINITIONS

(a) “Account” means any account nominated by you for any purpose under the Merchant Agreement (including settlement, Chargeback, Direct Debit or billing purposes);

(b) “Australian Domestic Consumer” means the definition applied by a Card Scheme to the card type;

(c) “Banking Day” means a day on which the trading banks are open for general banking business in Brisbane, Queensland, Australia excluding Saturdays and Sundays;

(d) “Bank” means the Westpac Banking Corporation Limited (ABN 33 007 457 141) and any entity which is related to that entity (or if notified in writing to the Client by SQID another institution nominated by SQID)

(e) “BECS” Bulk Electronic Clearing System;

(f) “Business Day” means a day on which the trading banks are open for general banking business in Brisbane, Queensland, Australia excluding Saturdays and Sundays;

(g) “Card” means a physical or virtual card issued by an approved issuer under a Card Scheme;

(h) “Card Data” means the account information of a Cardholder;

(i) “Card Scheme” means the MasterCard, Visa, American Express, Diners Club, Discover, JCB and EPAL or any other Card Scheme provider that the Bank or SQID is a member of or participates in;

(j) “Card Transaction” means a transaction where the details of a Card have been presented and the transaction is processed using any Bank approved process such as the internet mobile phone confirmation or other means of confirmation;

(k) “Card Type” means the definitions applied by the Card Schemes such as Australian Domestic Consumer or International;

(l) “Client” means a person who accesses the Transaction Platform to complete a Card Transaction which will provide for payment of funds to the Client

(m) “Confidential Information” means any information directly or indirectly relating to the business, practices, processes, databases, staff, customers, fees, costs, agreements, performance, intellectual property and technology of SQID and all related entities of SQID;

(n) “Force Majeure Event” means any event or thing beyond the relevant party’s reasonable control, other than a lack of money;

(o) “GST” means the goods and services tax payable on a supply in accordance with the applicable law of the

(p) “Intellectual Property” means an invention, discovery, secret process, trademark, service mark, copyright work, design, patent and any other intellectual property right which is created for or related to or connected with the delivery of the Services under the Merchant Agreement;

(q) “Merchant Agreement” means as the context so requires either the agreement between Westpac Banking Corporation Limited (ABN 33 007 457 141) and the Client (and / or any other agreement between the Client and a Bank) under which agreement the Client will access a Provider Network for the completion of Card Transactions (and such agreement includes the terms, conditions, rights and obligations incorporated by reference into that agreement);

(r) “Non-Australian Cards” also called “International” means cards where the issuing bank is not an Australian based bank;

(s) “Provider Network” means the system established by the Bank for the submission, recording and storage of personal details, Card information and the processing of funds transfer to and from accounts either as credit or debit transactions.

(t) “Services” means the payment services and associated activities undertaken by SQID associated with the provision of the Transaction Platform.

(u) “Transaction” means the complete processing of a payment request (including a request for a recurring payment on a cycle nominated by a Customer) by the Transaction Platform;

(i) Which commences when the transaction Platform receives a message which has been initiated by Customer or external or internal process and

(ii) Which concludes when the associated approval, rejection or application process has been completed, and a Transaction may be received by the Transaction Platform via various media types which provide interfaces to:

(i) Short message service (SMS)

(ii) API messaging; and

(iii) Internet browsers (http / https) and the like.

(v) “Transaction Platform” means SQID’s infrastructure, network equipment and related computer hardware and software:

(i) Which is designed to process Customer approvals for the completion of a Card Transaction by a Customer using the Provider Network; and

(ii) Which will be interfaced with the Provider Network. References in this agreement refer to the following:

“Party” where a party refers to more than one person, liability is joint and several.
“Annual”,” Year”, or “Month” are references to a calendar month or year.
“Legislation” relates to Australian Legislation unless stated otherwise.
Time of day refers to AEST.

4.0 APPROVAL AND COMMENCEMENT

4.1 If we approve an application form for you, for a Merchant Facility, we will set up a Merchant Identification Number (MID) and send you a letter of approval which will contain login access details to the Merchant website.

4.2 The Merchant Agreement will determine the Term of the Agreement and unless stated otherwise in writing, the commencement date shall be the date of the Agreement.

4.3 If you accept our offer in the manner outlined above, you undertake to us:

(i) To observe at all times your obligations set out in the Merchant Agreement.

(ii) To execute any directions and authorities we require to give effect to any of your obligations under the agreement; If you do not wish to accept our offer of a Merchant Facility, you must immediately contact us to withdraw your application whereupon we shall cancel your MID.

4.4 You accept using the SQID service and Terms and Conditions by commencing to process Transactions through the Merchant Facility.

5.0 CREDIT CHECK

5.1 The client consents to and agrees to provide the necessary assistance for SQID Payments Pty Ltd to obtain a credit report from a recognised credit reporting agency containing personal information for business purposes, including the assessment of an order for Services or collection of overdue accounts. Credit reporting obtained is in compliance with the Commonwealth Privacy Act.

6.0 Fees

6.1 During the term of the Merchant Agreement, fees will be quoted and charged on an individual Client basis and as set out in Schedule 1 of the Merchant Agreement. Different fees apply based on the Card Scheme and/or Card Type.

7.0 INTELLECTUAL PROPERTY

7.1 SQID either owns the Intellectual Property rights in the underlying HTML, audio clips, text, Java scripts and any other content made available to Clients on this website, or has obtained the permission of the owner of such Intellectual Property to be displayed and used on the SQID website. Nothing in these Terms and Conditions assigns or transfers any Intellectual Property rights from SQID to the Client

7.2 The Client acknowledges and agrees that it does not have any rights in the intellectual property in or associated with SQID, the underlying HTML, audio clips, text, Java scripts and other content available on the SQID website other than pursuant to the Merchant Agreement under these Terms and Conditions.

8.0 AMENDMENTS

8.1 The terms and conditions of this agreement may be amended from time to time without prior notice. Notice of amendments made to the Terms and Conditions will be posted on our website and will be effective immediately. You should ensure you are aware of any amendments to the Terms and Conditions and acknowledge and agree that continued use of the site and service will mean that you accept unconditionally any amendments made.

9.0 WEBSITE ACCESS

9.1 As a Merchant, SQID offers you non-exclusive access to the website and Service. Upon acceptance of your application, you will be issued with a Merchant ID consisting of a User Name and Password, which will allow you access to the Online Merchant Facility.

9.2 You may not and warrant that you will not, copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the site or the Services, transfer or attempt to transfer any part of the site or Services or Your right to access them or otherwise make them available to any other person, attempt to discover SQID’s source code, sublicense, rent or lease any portion of the site or the Services; reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the site or Services except so far as such actions are permitted by applicable law, notwithstanding this limitation or are approved in writing by SQID.

10.0 PASSWORDS

10.1 Your password for access to the SQID Merchant Facility must be kept confidential and safe at all times. SQID accepts no responsibility for unauthorized access to your Merchant Facility. Should you suspect your login details have been compromised please change your password immediately or contact SQID Payments for assistance.

11.0 ASSIGNMENT

11.1 The Merchant Agreement shall be binding upon the parties, their executors, administrators, successors and assignees. Where the Client consists of any two or more persons, the Clients obligations shall be joint and several.

11.2 You may not assign the Merchant Agreement to any other person without our written consent. We may assign our rights or novate our rights and obligations under the Merchant Agreement. We may also transfer our interest in the Merchant Agreement, or give another person an interest or security in the Merchant Agreement without obtaining your consent. You appoint us and any other person authorised by us to be your attorney to assign any document or do anything necessary to give effect to the assignment, novation or transfer contemplated in this clause.

12.0 WARRANTIES

12.1 The Client must not make any warranty or representation whatsoever in relation to any of the Services (or if the context so requires the Addition Services) which may bind SQID or the Bank.

12.2 The processing of any approval initiated by a customer shall constitute warranties from the Client to SQID that:

(i) all particulars are true;

(ii) the transaction is valid; and

(iii) The sale is not subject to any dispute, set off or counterclaim.

13.0 FORCE MAJEURE

13.1 If by virtue of a Force Majeure Event, SQID (Affected Party) is wholly or partly prevented from performing any of its duties or obligations under the Merchant Agreement, then as soon as it is reasonably practicable after the Force Majeure Event has arisen, the Affected Party shall give the other party written notice of:

(i) the particulars of the Force Majeure Event;

(ii) the duties or obligations which the Affected Party is precluded from performing (Affected Obligations);

(iii) the extent to which the Affected Party reasonably believes that the Force Majeure Event will prevent the performance of the Affected Obligations (Notified Extent);

(iv) the expected duration of any delay in the performance of the Affected Obligations.

13.2 If an Affected Party complies with the requirements of clause 13.1, its obligations to perform the Affected Obligations will be suspended:

(i) to the Notified Extent; and

(ii) for the duration of;

(a) the actual delay arising out of the Force Majeure Event; and

(b) a reasonable time having regard to all the circumstances which does not exceed 60 Business Days (Period of Delay).

13.3 On the occurrence of a Force Majeure Event, the other party’s obligations to perform any duty or obligation under the Merchant Agreement which is dependent on an Affected Obligation will be suspended until a reasonable time after the Affected Party resumes performance.

13.4 The Affected Party shall use all reasonable diligence and do all things reasonably possible to overcome or remove a Force Majeure Event.

13.5 If:

(i) the Affected Obligations are fundamental obligations; and

(ii) the Period of Delay continues for more than 60 Business Days, The other party may terminate the Merchant Agreement on the giving of not less than 5 Business Days’ notice to the Affected Party.

13.6 If this Agreement is terminated pursuant to clause 13.5:

(i) the accrued rights or remedies of the parties will not be affected

(ii) the rights and obligations of the parties under the Merchant Agreement shall cease, except for the obligations of the Client to pay the fees due and payable under the Agreement; and

(iii) The party terminating the Merchant Agreement will not be entitled to claim liquidated or other damages against the Affected Party unless the Affected Party has failed to comply with its obligations under this clause 13.

14.0 CHARGES AND PAYMENTS

14.1 During the term of your Agreement, the costs for the Services are those amounts as set out on Schedule 1 of the Merchant Agreement. All prices are exclusive of GST and quoted in Australian Dollars. From time to time invoices shall be issued for payment of the Services and payment will be required from the Client on the terms set out in that invoice. Payment terms of the fees shall be as set out in Schedule 1.

14.2 SQID may increase the amounts stated in Schedule 1 by giving the Customer at least 14 days written notice at any time.

14.3 SQID may from time to time in addition to the fees specified for the Services, invoice the Client an amount to compensate for increased bank fees, state and federal taxes and other increases of cost associated with the delivery of the Services outside the control of SQID.

15.0 RENEWALS

15.1 The term of the Agreement is as per the Merchant Agreement and shall be automatically renewed on the anniversary of your entering this Agreement and continue for successive 12 months unless either party gives notice in writing.

16.0 INDEMNITY

16.1 In this clause SQID includes parent companies, subsidiaries, officers, directors, employees and agents. The Client indemnifies and holds harmless SQID for all losses, claims, damages, liabilities, costs or expenses including those resulting from any threatened, indirect or pending investigation, action, proceeding or dispute that SQID incurs; and

Against all Claims, (including the cost of defending or settling any Claim) which may be instituted against SQID, as a result of:

(i) a breach of the Merchant Agreement by the Client;

(ii) the Client failing to comply with any Regulatory or Compliance Matter;

(iii) the Clients failure to observe the Client’s obligations under the Merchant Agreement and / or SubMerchant Agreement;

(iv) the Client’s failure to do something that the Merchant Agreement and / or Sub-Merchant Agreement contemplated that the Client must or should do, or as a result of the Client doing something that this Agreement and/or Sub-Merchant Agreement contemplated that the Client must not, or should not do;

(v) MasterCard and/or Visa and/or the Bank imposing fees, fines or penalties on SQID under the agreement between SQID and the Bank as a direct or indirect result of the Client’s failure to observe the terms of the Merchant Agreement and/or Sub-Merchant Agreement;

(vi) any dispute between the Customer and the Client;

(vii) any error, negligence or fraud relating to a transaction by a Customer; or

(viii) any fees, fines or penalties that SQID is required to pay pursuant to the rules, by-laws or regulations of any Card Scheme that the Bank is a member of or participates in, as a direct or indirect result of the Client’s failure to observe any of the procedures, requirements or obligations required to be complied with under any Card Scheme;

(ix) all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Website or the Service from any terminals or access points within Your control, custody or power.

16.2 With the exception of any conditions, rights or warranties that are implied by law in the Merchant Agreement and may not legally be excluded, SQID gives no warranty or representation in respect of the Services (and if the context so requires Additional Services) and all other terms, conditions or warranties whether expressed or implied are expressly excluded

16.3 The Client acknowledges that SQID’s liability for breach of any condition, right or warranty that cannot be excluded from the Merchant Agreement by law is limited to the reperformance of the Services ( and if the context so requires Additional Services) as contemplated by the Merchant Agreement

17.0 TERMINATION

17.1 The Merchant Agreement commences when you accept our offer in accordance with Clause 4 and will continue until such time as it is terminated in accordance with this clause 17.

17.2 SQID in its absolute discretion may where SQID reasonably considers the Client to be in breach of this Agreement or the Merchant Agreement, may immediately cease processing Transactions via the Transaction Platform or suspend access to the Transaction Platform. SQID will not be liable to the Client or any person claiming through or under the Client for any loss or damage arising out of the suspension or cessation of Transactions through the Transaction Platform.

17.3 Notwithstanding the return of any Equipment to us, you may terminate the Merchant Agreement or use of any underlying Merchant Facility by providing us with 30 days written notice to the address in this document. Such written notice is to be signed by a duly authorised officer signatory. If you fail to provide us the above mentioned notice within that timeframe, your Merchant Agreement (including fees and charges) will continue to apply.

17.4 It is your obligation to reconcile your bank account after termination of the Merchant Agreement and notify us of any discrepancies. If for any reason there are discrepancies in your Account then our maximum aggregate liability to you for
reimbursement will be limited to the exact amount of the difference of discrepancy.

17.5 We may terminate the Merchant Agreement or use of an underlying Merchant Facility at any time and for any reason. The grounds on which we may do so include, but are not limited to, the following:

(i) You breach any terms of the Terms and Conditions or any term of the Merchant Agreement;

(ii) You fail to pay to SQID any monies due and payable to SQID on the due date;

(v) We have concerns about you or any of your Directors solvency, or the solvency of your business;

(vi) We have reasonable grounds to suspect that you have fraudulently processed Transactions, or have knowingly allowed fraudulent Transactions to be processed through your merchant facility.

17.6 We will endeavour to give you verbal or written notice before we terminate the Agreement or facility. If we are unsuccessful in contacting you, we can choose to continue to terminate the Agreement or Merchant Facility. However, we will give you subsequent written confirmation in the form of an email or by post to the last known address, that the Merchant Facility has been terminated.

17.7 Without prejudice to any right or remedy of ours, we are entitled to charge you a termination fee for termination of the Merchant Agreement, as set out in the Merchant Agreement. You must promptly pay any such termination fee after we notify you of it.

18.0 NOTICES

18.1 Termination of the Merchant Agreement including but not limited to the terms set out in this document and the Merchant Agreement shall be without prejudice to the rights and obligations of parties under the Merchant Agreement up to and including the date of expiry or termination.

18.2 In the event of termination or expiry of the Merchant Agreement, for whatever reason, access to the Merchant Facility will be suspended

19.0 CONFIDENTIALITY

19.1 The Client agrees to keep confidential, and not to use or disclose, other than as permitted by the Merchant Agreement, any Confidential Information provided to or obtained by the Client prior to, or after entry into the Merchant Agreement.

19.2 The obligations of confidence in the above clause do not apply to Confidential Information:

(i) That is required to be disclosed by applicable law, or under compulsion of law by a court or government agency;

(ii) That is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or

(vii) That is already known by, or rightfully received, or independently developed, by the Client free of any obligation of confidence.

19.3 The Client acknowledges that SQID may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of SQID, and that monetary damages would be an insufficient remedy and in addition to any other remedy available at law or in equity, SQID is entitled to injunctive relief to prevent a breach of this clause.

19.4 If the Merchant Agreement is terminated for any reason, the Client must return to SQID, together with all copies, all documents provided by SQID containing Confidential Information in any material form including electronic form.

20.0 PRIVACY

20.1 SQID values the privacy of all its users and uses every effort to ensure all communication from SQID is carried out to benefit recipients.

20.2 Details on how SQID collects uses and discloses Client information can be found in the SQID Privacy Policy.

21.0 SPAM

21.1 SQID adheres to the Australian Spam Act 2003.

21.2 Should you receive any form of communication from SQID which you no longer wish to receive, please contact our office immediately on +61 7 3393 9187 or email sales@sqidpayments.com.au

21.3 For further information visit http://www.acma.gov.au

22.00 Other providers shall be given access

22.1 SQID provides a Transaction Platform that delivers the Services and will use the services of third parties which are integrated into the operation of the Transaction Platform, and the Client will procure from each Customer any reasonable approvals as notified to it in writing from time to time, regarding the approvals for the disclosure of any information (including Customer personal information) to a third party service referred to in this clause.

22.2 Notwithstanding the above clause, the Client accepts that all information collected by it at the time a transaction is submitted to the Transaction Platform, shall be made available to a third party service referred to in this clause to the extent such information is necessary for that third party service provider to complete the Services. The Client remain at all times responsible for and liable for the information it has collected and then disclosed in order to receive the Services.

23.0 COMPANY DETAILS

SQID Payments Pty Ltd
63 Westgate Street
Wacol 4076 Queensland
Phone: +61 7 3393 9187
Email: sales@sqidpayments.com.au
Website: http://www.sqidpayments.com.au

Other relevant documents are Westpac Merchant Terms and Conditions and the general SQID Terms and Conditions and the Direct Debit Service Agreement

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