QuayPay Merchant Agreement

A. QUAYPAY provides a mobile phone and online payment service permitting any Customer with an email address and a mobile phone to authorise payments via mobile phone and online (including authorisation of payments by credit cards) to persons or businesses for payment of goods and services.

B. The Client wishes to purchase from QUAYPAY certain services including payment processing services offered by QUAYPAY.

C. QUAYPAY agrees to provide the Services (and if the context so requires the Additional Services) and the Client agrees to accept the Services (and if the context so requires the Additional Services) on the terms set out in this Agreement.

D. By executing this document, the Client warrants that they have read, agree with, and accept all of the terms and conditions contained in this Agreement and the Westpac Merchant Terms and Conditions.

E. By accepting this Agreement, the Client also accepts and agrees to the business and payment process, fees and charges as set out in this Agreement.

F. The information in the Merchant Application process and QUAYPAY website forms part of this agreement.

G. The term of this agreement shall be 12 months or as described in the QUAYPAY website and unless terminated by either party it automatically extends for additional 12 months periods. 

H. To minimize chargebacks it is the Client’s responsibility to notify the customer by email or SMS, the transaction identification details and that QUAYPAY Payments facilitated the payment, at the time of the transaction.

I.  The parties acknowledge that this Agreement is divided into the following parts:
Part A – Payment Processing
Part B – Additional Services
Part C – General Terms and Conditions
Payment Processing Agreement

1. Preconditions
(a) The Client agrees that notwithstanding any other agreement or understanding in place, the Client is solely responsible for the submission to the Bank of all financial information, application details and all other matters requested by the Bank or required for all purposes related to:
(i) all approvals required to be completed by the Bank; and
(ii) the finalisation and execution of the Merchant Agreement.

(b) The parties acknowledge and accept that despite any other provision of this Agreement, this Agreement:
(i) shall not have any effect until that date when the Merchant Agreement is executed by the Client and the Bank; and
(ii) is terminated on that date when the Merchant Agreement between the Bank and the Client is terminated or expires.

(c)  QUAYPAY is not responsible or liable to the Client for any delay or failure by the Client to execute the Merchant Agreement or a decision by the Bank not to execute a Merchant Agreement with the Client.

2. Relationship
(a) QUAYPAY acts as an aggregator and the provider of the Transaction Platform for the processing of payments by Customers as Card Transactions. QUAYPAY enters into this sub-merchant agreement with the Client on behalf of and as an agent of the Acquirer.  The Client agrees to use the Services and in exchange pay to QUAYPAY the fees specified in Merchant Application process.

(b) The Client acknowledges that:
(i) QUAYPAY is not a bank and the Service is an authorisation and payment processing service rather than a banking service; and
(ii) QUAYPAY is not acting as a trustee, fiduciary or escrow with respect to the funds which are processed by each Card Transaction, but is acting only as an aggregator and temporary custodian of the funds in exchange for the fees.
3. Transaction Platform
(a) QUAYPAY will support and maintain the Transaction Platform. At times this may involve QUAYPAY disclosing information about your transactions to third parties and you consent to this disclosure for the purpose of fault finding and verification that the Transaction Platform for your merchant service is operational.

(b) QUAYPAY shall bear all costs for the procurement, installation and maintenance of any hardware, software or equipment necessary for the provision of the Transaction Platform.

(c) QUAYPAY will provide the Client with all reasonably necessary technical assistance to enable the Client to provide all necessary details, approval and information required for the Transaction Platform to complete a Transaction provided that the Client acknowledges that QUAYPAY will not be liable to the Client for any impact or affect that this technical assistance may have on the Client’s sales and purchasing arrangement, network or systems.

(i) shall use all reasonable endeavours to provide the Transaction Platform in accordance with this Agreement, and
(ii) shall not be liable to the Client or any person claiming through or under the Client for any loss or damage arising out of any failure to provide the Transaction Platform.

(e) Where for any reason QUAYPAY fails to provide the Transaction Platform, it shall not be obliged to provide any temporary or replacement facility to the Client.

(f) QUAYPAY does not warrant that the Transaction Platform or the Provider Network will be fault free or free from interruptions.

(g) Without prejudice to QUAYPAY’s other rights under this Agreement, in its absolute discretion, QUAYPAY may where QUAYPAY reasonably considers the Client to be in breach of this Agreement or the Merchant Agreement:
(i) immediately cease processing Transactions via the Transaction Platform; or
(ii) suspend access to the Transaction Platform by the Client and/or Customers.
(iii) retain any funds held;
(iv) recover any funds settled to the merchants bank account or any account known to QUAYPAY operated by the merchant.

(h) QUAYPAY will not be liable to the Client or any person claiming through or under the Client for any loss or damage arising out of:
(i) any suspension of access to the Transaction Platform; or
(ii) ceasing to process Transactions, in the circumstances referred to in clause 4(g).

(i) QUAYPAY’s rights under this Agreement to suspend access to the Transaction Platform or to cease processing Transactions may be exercised for any period which QUAYPAY in its absolute discretion may determine.

(j) QUAYPAY may monitor the capacity and performance of the Transaction Platform in any manner deemed necessary by it from time to time.

(i) shall have the right from time to time to improve or alter the Transaction Platform provided that any such changes do not substantially change the nature of the Transaction Platform; and
(ii) may suspend the operation of the Transaction Platform for the purposes of remedial or preventative maintenance or improvement of the Transaction Platform.
4. Acknowledgements
(a) The Client acknowledges that:
(i) QUAYPAY is not a bank or accredited deposit taking institution;
(ii) QUAYPAY never has access to any record of the Card details of a Customer, except as allowed under PCI:DSS;
(iii) QUAYPAY is not responsible for any Card Transaction which does not proceed due to a decision of the Bank not to complete that Card Transaction; and
(iv) where a Card Transaction is not processed by the Bank, QUAYPAY is not liable for any loss of the Client arising from any incomplete Card Transaction.
5. Card Data Security – Data Stored
(a) QUAYPAY stores Card data relating to each Card Transaction. However, QUAYPAY is unable to recover any card details including Card numbers independently from its records.
(b) It is the Client’s responsibility to manage sensitive information provided to it and to take the appropriate steps to ensure continued security of the sensitive information once QUAYPAY has processed approvals via the Transaction Platform.
(c) The Client agrees to secure any Card data in the Client’s possession in strict accordance with the Merchant Agreement.
(d) The Client understands QUAYPAY does not challenge the validity or accuracy of any information, including Card details, expiry date, entered into the Provider Network. QUAYPAY cannot and does not make any determination on the validity or accuracy of information provided by the Client or Customers by any means.

6. Charges and Payment
(a) The costs for the Services are those amounts as set out on Merchant Application process. All prices stated are exclusive of GST. 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 of the fees shall be as set out at the time of the account application and also listed in the relevant section of this agreement.

(b) After the initial risk assessment of the application as defined under Merchant Application Process, QUAYPAY may increase the amounts stated in Merchant Application process by giving the Customer at least 14 days written notice at any time.  The Client agrees that QUAYPAY 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 QUAYPAY and the Client agrees to pay any such additional fees and charges as notified to the Client.

(c) The Client agrees that QUAYPAY may without notice review the risk status of the merchant and the merchant’s industry. QUAYPAY may apply a refundable security reserve, request other security, impose penalties and change fees based on the merchant trading history, information provided by the Merchant, the risk profile and prepayment exposure.  Any reserve is separate to your normal obligations to providing payments of refunds or chargebacks. The reserve will be accumulated by deductions out of settlements until the reserve limit is achieved based on daily transactions volume or paid in advance.  Once the reserve is met it will be monitored monthly and adjusted based on recent transactions volume.  The unused balance of the reserves is refunded when all refund and chargeback liability on historical payments expires, subject to any other relevant clauses in this agreement.

7. The Client authorises QUAYPAY:
(i) to receive the funds from any Card Transactions into QUAYPAY’s nominated account;
(ii) to deduct from those funds the amount for the Services and retain those fees; and
(iii) to withhold from the funds received any other amount equal to the liability incurred by QUAYPAY under any agreement between it and a Provider (if any such amount is incurred).
(iv) to arrange, through its own financial institution a debit to your Nominated Account any amount deemed payable by the Client. The debit or charge will be made through the Bulk Electronic Clearing System (BECS) from the Clients account held at the financial institution you have nominated and will be subject to the terms and conditions of the Direct Debit Request Service Agreement provided for download on this website.
(v) to direct debit the Nominated Account or withhold funds for any chargeback amounts, SMS fees or other fees, fines, penalties, reserves (if incurred).
8. Obligations imposed by the Bank
(a) “Chargeback” means a debit entry to your Account processed by us, and is the reversal of a credit previously settled to you, as a result of an invalid Transaction (as described in Westpac merchant terms and conditions).

(b) QUAYPAY shall implement procedures and processes to address various matters including reversals, disputed transactions and chargebacks. Where QUAYPAY is under an obligation to the Bank to rectify a matter, the Client must take immediate action to rectify that matter in accordance with any direction given by QUAYPAY to the Client.

(c) Failure by the Client to follow a direction contemplated by clause 8) may result:
(i) in the non-compliance with the Card Scheme and Card Scheme fines may be levied and shall be payable by the Client;
(ii) in the immediate termination of this Agreement by QUAYPAY; or
(iii) both (i) and (ii).
9. Term of Agreement
The term of this agreement is 12 months, commencing on the date of this Agreement and unless otherwise stated in writing, shall be automatically renewed on the anniversary date of this Agreement.

10. General
(a) Any notice or other communication to a party under this document must be in writing and delivered personally, sent by prepaid mail, or sent by email to the recipient at the address or email address appearing in the relevant section of this agreement or such other address or email address as the recipient may have notified to the sender.

(b) A notice is deemed to be received:
(i) if delivered personally, on the date of delivery;
(ii) if sent by prepaid post, 5 Business Days after posting; and
(iii) if sent by email, on receipt by the sender of an electronic transmission in the sender’ email inbox confirming receipt.

(c) This document may be executed in any number of counterparts and all counterparts (including facsimile copies) taken together will be deemed to be a single instrument.

(d) A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy arising from a breach of or default under this document, does not result in a waiver of that right, power authority, discretion or remedy.

(e) A party is not entitled to rely on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this document or default under this document as constituting a waiver of that right, power, authority, discretion or remedy

(f) All parties must do all things reasonably necessary to give full effect to this document and the transactions contemplated by this document.

(g) If any part of this document is, or becomes, legally invalid or unenforceable, the remainder of this document subsists and remains enforceable.

(h) This document contains the entire agreement between the parties. All representations or agreements, whether oral or in writing made prior to the date of this document and relating to any matter dealt with in this document are merged in this document and do not have any effect from the date of this document.

(i) This Agreement can only be varied in writing by a document executed by both parties.

(j) This document is governed by the law of New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and waives any objection to the venue of any legal process on the basis that the process has been brought in any inconvenient forum.

(k) The Client must not transfer any rights or obligations of the Client under this Agreement without the prior written consent of QUAYPAY.

11. Information
For the term of this Agreement, the Client agrees to provide true, accurate and complete information relevant to the processing of a Transaction or the Services (or if the context so requires the Additional Services) and to promptly advise QUAYPAY if information changes. If any information the Client provides is untrue, inaccurate, not current, or incomplete, without limiting other remedies, QUAYPAY has the right to immediately terminate the Client’s use of the Services (or if the context so requires the Additional Services).

12. Prohibited Transactions:
(a) The Client must not use the Transaction Platform (or if the context so requires the Additional Services):
(i) to accept payment for illegal products or services, including but not limited to materials that infringe the intellectual property rights of third parties; or
(ii) for any unlawful or fraudulent activity.
(b) If QUAYPAY has reason to believe that the Client may be engaging in or has engaged in fraudulent, unlawful, or improper activity, including without limitation any violation of any terms and conditions of this Agreement, applicable law, guideline, code or regulation, the Client’s ability to provide Customers with access to the Transaction Platform (or if the context so requires the Additional Services) will be suspended or terminated.  Any funds gained in these activities may be recovered and/or retained by QUAYPAY as a reserve against future chargebacks for a period of 18 months and refund is at QUAYPAY’s total discretion.

13. Electronic Communications
To the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding QUAYPAY and this Agreement and the Clients use of the Services (or if the context so requires the Additional Services) (Communications), may be provided to the Client electronically and the Client agrees to receive all Communications from QUAYPAY by email.

14. Proper Use
If the Client uses, or attempts to use the Services (or if the context so requires the Additional Services) for purposes other for which it is expressly designed, provided or deployed, including but not limited to the sale of inappropriate goods or services (as determined by QUAYPAY, the card schemes or the acquirer), tampering, hacking, modifying or otherwise corrupting the security or functionality of the Services (or if the context so requires the Additional Services), the access by the Client will be terminated and the Client will be subject to damages and other penalties, including criminal prosecution where and if applicable.  The Client expressly agrees to waive all rights to any funds gained through the improper uses described in this clause or deemed by QUAYPAY in its absolute discretion.

15. Force Majeure
(a) If by virtue of a Force Majeure Event, QUAYPAY (Affected Party) is wholly or partly prevented from performing any of its duties or obligations under this Agreement, then as soon as 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); and
(iv) the expected duration of any delay in the performance of the Affected Obligations.

(b) If an Affected Party complies with the requirements of clause 17(a), 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).

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

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

(e) 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 this Agreement on the giving of not less than 5 Business Days notice to the Affected Party.
(f) If this Agreement is terminated pursuant to clause 17(e):
(i) the accrued rights or remedies of the parties will not be affected;
(ii) the rights and obligations of the parties under this Agreement shall cease, except for the obligation of the Client to pay the fees due and payable under this Agreement; and
(iii) the party terminating this 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 17.

16. Warranties and Indemnities
(a) The Client must not make any warranty or representation whatsoever in relation to any of the Services (or if the context so requires the Additional Services) which may bind QUAYPAY or the Bank.

(b) The processing of any approval initiated by a Customer shall constitute warranties from the Client to QUAYPAY 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.

(c) The Client agrees to indemnify QUAYPAY on demand against all losses, expenses and damages QUAYPAY may suffer:
(i) as a result of the Client’s failure to observe the Client’s obligations under this Agreement and/or any Sub – Merchant Agreement;
(ii) as a result of the Client’s failure to do something that this Agreement and/or any 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 any Sub – Merchant Agreement contemplated that the Client must not, or should not do;
(iii) as a result of MasterCard and/or Visa and/or the Bank imposing fees, fines or penalties on QUAYPAY under the agreement between QUAYPAY and the Bank as a direct or indirect result of the Client’s failure to observe the terms of this Agreement and/or any Sub – Merchant Agreement; (iv) arising out of any dispute between the Customer and the Client;
(v) as a result of any error, negligence or fraud relating to a transaction by a Customer; or
(vi) as a result of any fees, fines or penalties that QUAYPAY 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.

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

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

17. Additional Services
(a) The parties may determine that QUAYPAY will provide and the Client will procure Additional Services under this Agreement and the terms and conditions regarding those Additional Services shall be included in a separate Agreement or quotation. The parties acknowledge and agree that the additional Agreement or quotation shall be incorporated into this Agreement as a variation to this Agreement;

(b) All Intellectual Property Rights created by QUAYPAY as a result of the provision of the Additional Services are the property of QUAYPAY. The Client hereby assigns to QUAYPAY all Intellectual Property Rights created by the Client as a result of the development of the Additional Services and acknowledges that no additional documentation is necessary to complete the assignment given. The Client grants a licence to QUAYPAY to use all Intellectual Property rights belonging to or licensed to the Client to the extent necessary for QUAYPAY to deliver the Additional Services under this Agreement.

18. Definitions and Interpretations
Acquirer means the entity that acquires the transaction for the respective Card Scheme, namely the Bank.
Additional Services means those services and or products which the parties determine are to be delivered by QUAYPAY in accordance with the terms and conditions incorporated into this Agreement.
Agreement means this sub-merchant document and any schedules or annexures to it, where QUAYPAY is acting on behalf of or as an agent for the Acquirer.
Bank means the Westpac Banking Corporation Limited (ABN 33 007 457 141) www.westpac.com.au and any entity which is related to that entity (or if notified in writing to the Client by QUAYPAY another institution nominated by QUAYPAY).
Business Day means a day on which the trading banks are open for general banking business in Sydney, New South Wales excluding Saturdays and Sundays.
Card means any valid financial transaction card or payment card.
Card Scheme means the MasterCard International Incorporated and Visa Inc Services Association card schemes or any other card scheme provider that the Bank or QUAYPAY is a member of or participates in.
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 us the internet, mobile phone confirmation or other means of confirmation.
Client means the merchant or merchant applicant.
Commencement Date means the date stated in Merchant Application process.
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 QUAYPAY and all related entities of QUAYPAY.
Customer means a person who accesses the Transaction Platform to complete a Card Transaction which will provide for payment of funds to the Client.
Expiration Date means the date stated in Merchant Application process unless another date is notified to the Client in writing by QUAYPAY.
Force Majeure Event means any event or thing beyond the relevant party’s reasonable control, other than a lack of money.
GST means the goods and services tax payable on a supply in accordance with the applicable law of the Commonwealth of Australia.
Intellectual Property Right means an invention, discovery, secret process, trade mark, 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 Additional Services under this Agreement.
Provider means an entity which has entered into an arrangement with QUAYPAY whereby Card Transactions shall be processed in accordance with the rules governing that Card and which Transactions completed using the Transaction Platform.
Provider Network means the systems 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.
Services means the payment services and associated activities undertaken by QUAYPAY associated with the provision of the Transaction Platform.
Merchant Terms means as the context so requires either the terms 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 terms 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).
Merchant Application Process means the content on http://QuayPay.com/signup  and any amendments to fees or conditions based on risk assessment of the application and notified to the applicant before the settlement of any transactions to the applicant.
Nominated Account means the bank account provided in your application, subsequently updated or in the case of a breach of this agreement any bank account known to QUAYPAY as belonging to the merchant business or owner.
Transaction means the complete processing of an approval (including an approval for a recurring payment on a cycle nominated by a Customer) by the Transaction Platform:
(a) which commences when the Transaction Platform receives a message which has been initiated by a Customer or external or internal process; and
(b) which concludes when the associated approval or application process has been completed,
and a Transaction may be received by the Transaction Platform via various media types which provide interfaces to:
(a) short message service (SMS);
(b) .api messaging; and
(c) internet browsers (http),
and the like.
Transaction Platform means QUAYPAY’s infrastructure, network equipment and related computer hardware and software:
(a) which is designed to process Customer approvals for the completion of a Card Transaction by a Customer using the Provider Network; and
(b) which will be interfaced with the Provider Network.
Unless expressed to the contrary:
(a) a word which is a defined term under the Sub – Merchant Agreement if used in this Agreement has the same meaning as given to that term in the Sub – Merchant Agreement;
(b) headings and boldings are for convenience only and do not affect the interpretation of this document;
(c) where an expression is defined anywhere in this document another part of speech or grammatical form of that expression has a corresponding meaning;
(d) a reference to an individual or person includes a firm, corporation, incorporated association, and government or statutory body or authority:
(e) a reference to any gender includes all genders;
(f) a reference to the singular includes the plural and vice versa;
(g) a reference to recitals, clauses, schedules or annexures are to recitals, clauses, schedules or annexures of or to this document;
(h) a reference to a statute, ordinance or other law includes regulations and other statutory instruments made under it and consolidations, amendments and re-enactments of it;
(i) a reference to money is to Australian currency;
(j) a reference to this document or another document includes the document as varied or replaced; and
(k) a reference to any party to this document, or any other document or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns.
E-signature agreement consent
Under the Electronic Transactions Act 1999, this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature. By pressing “Submit”, “Accept” or “I Agree”, as the case may be, the Client agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
Other relevant documents are the Westpac Merchant Terms and Conditions and the general QuayPay Limited - merchant services terms & conditions