Azupay Merchant Terms and Conditions
1. Merchant Terms and Conditions
1.1. These Terms and Conditions are part of the Merchant Terms and Conditions with Azupay.
1.2. The Merchant Terms and Conditions comprise:
a) these Terms and Conditions;
b) the Services Schedule;
c) Purchased Payment Facility Schedule; and
d) the PayTo Schedule,
as varied from time to time in accordance with these Merchant Terms and Conditions. To the extent of any inconsistency between any of these Terms and Conditions and any Schedule, the order of precedence is as listed above.
1.3. Capitalised terms used in the Merchant Terms and Conditions have the meaning given to them in Clause 31 (Definitions).
2. Azupay Services
2.1.Azupay will provide the Azupay Services to the Merchant subject to the terms of the Merchant Terms and Conditions and the Merchant performing its obligations under the Merchant Terms and Conditions.
2.2. The Merchant agrees that Azupay shall be the sole and exclusive provider of any NPP services whilst it is subject to Azupay’s Merchant Terms and Conditions.
3. Conditions Precedent
3.1.Azupay’s obligation to provide the Azupay Services is conditional on Azupay being satisfied at any time:
a) the Merchant has duly accepted the Merchant Terms and Conditions and provided any reasonable evidence of authority requested by Azupay;
b) the Merchant complies with and continues to comply with Relevant Law;
c) Azupay has received all information reasonably requested to satisfy customer due diligence requirements including any requirements that Azupay has under any Relevant Law; and
d) the Merchant has completed all requested integration and user acceptance testing (including as a result of any updates to the NPP) and is operationally ready to start processing Transactions and has confirmed the same to Azupay in writing.
4. Merchant Responsibilities
4.1.The Merchant must:
a) use the Azupay Services in accordance with the Services Schedule;
b) process all Transactions in Australian dollars;
c) ensure that any modifications to its systems do not adversely affect the performance or suitability of the Azupay Services;
d) test and update its systems and operations processes where necessary to support the Azupay Services;
e) securely maintain the confidentiality and security of credentials, personal information and user data including, but not limited to, API keys and login credentials to the Azupay Dashboard;
f) comply with Relevant Law;
g) notify Azupay as soon as reasonably practicable, if:
I. its principal place of business or contact details change;
II. the Merchant intends to sell, transfer or lease its business, or if there is a transaction that will result in a change of control of the Merchant;
III. the Merchant suffers a security or data breach that could reasonably impact the Azupay Services;
IV. an event occurs which has a material effect on the ability of the Merchant to operate its business;
V. there are technical or operational issues or errors which may impact the Azupay Services. Where this occurs, Azupay may seek further incident information from the Merchant, who will comply with any reasonable request;
VI. there are any changes to the Merchant’s account details, including bank account, PayID details or changes relating to any PayTo Agreements;
VII. the Merchant no longer owns or has authority to use the bank account to which any PayTo Agreement has been/will be made;
VIII. the Merchant experiences any activity that appears suspicious or erroneous, which can include, but is not limited to, a cyber security threat or suspected fraudulent Transactions;
h) do anything required to enable Azupay to cooperate and comply with any NPP dispute resolution process in relation to a Transaction; and
I. provide Azupay with any information reasonably requested by Azupay to provide the Azupay Services or comply with Relevant Law.
4.2.The Merchant must not:
a) process a Transaction using the Azupay Services if the Merchant knows or reasonably suspects that the source account is being used fraudulently or in furtherance of a contravention of Relevant Law;
b) process a Transaction using the Azupay Services which was not originated as a result of a transaction between itself and a customer;
c) cause or contribute to a PayID addressing error;
d) initiate the establishment of a PayTo Agreement with an End Customer without the End Customer having accepted an appropriate set of terms and conditions for that PayTo Agreement;
e) initiate the establishment of an Account Check Service without the Merchant having first complied with clause 5.6 in respect of that personal information;
f) initiate a PayTo payment for any PayTo Agreement that is not authorised; or
g) initiate a PayTo payment that is not within the terms of the authorised PayTo Agreement.
5. Sales Transactions
5.1.The Merchant is, and must notify its customer that it is, solely responsible for:
a) any Sales Transaction including any goods or services that are the subject of the Sales Transaction;
b) all customer service relating to the Sales Transaction;
c) dispute resolution in connection with the Sales Transaction; and
d) performance of the terms and conditions of the Sales Transaction.
5.2.The Merchant must maintain a Merchant Funds Account for the term of the Azupay Services.
5.3.The Merchant authorises Azupay to credit and debit the Merchant Funds Account for the purposes of the Merchant Terms and Conditions including to debit any fees, reimbursements or indemnity amounts.
5.4.The Merchant authorises Azupay to create, change or cancel any PayTo Agreements and continue to manage the status of these PayTo Agreements on the Merchant’s behalf in accordance with NPPA regulations and the Merchant Terms and Conditions.
5.5.Once the Merchant has established a PayTo Agreement through Azupay, the payment details may only be amended by Azupay. The Merchant may not request Azupay to amend the payment details of another party.
5.6.The Merchant confirms that it has obtained all necessary privacy consents from its End Customers and End Users to provide the End Customers’/End Users’ personal information when initiating a PayTo Agreement and/or an Account Check Service.
5.7.The Merchant authorise Azupay and any Customer Financial Institution to collect, store and use personal information (amongst other information) in connection with the Azupay Services, including for the purposes of constructing NPP payment messages and enabling Azupay to receive NPP Payments.
5.8.The Merchant authorises Azupay and any Customer Financial Institution to collect, store and use personal information (amongst other information) in connection with an Account Check Service.
5.9.Azupay will credit the Merchant Funds Account with the full amount of all Sales Transactions that are cleared in accordance with the Services Schedule subject to the terms of the Merchant Terms and Conditions.
5.10.Azupay reserves the right to withhold or refund to the Merchant’s customer all or part of the amount of a Sale Transaction if Azupay has reason to believe that the Transaction or payment is fraudulent or disputed whether or not in connection with an Account Check Service.
5.11.Where there is a dispute from an End Customer or End User to the Azupay Services, the Merchant must as soon as reasonably practicable provide full and complete details to Azupay of the dispute and provide reasonable assistance to Azupay to resolve the dispute.
6. Transaction Information
6.1. Azupay will issue a statement to the Merchant through the Azupay Dashboard for each period agreed between the Merchant and Azupay from time to time. The statement will show a summary of Transactions processed by Azupay to or from each Merchant Funds Account during that period.
6.2. The Merchant must retain information about a Transaction for a period of seven (7) years from the date of the Transaction or any longer period required by Relevant Law.
6.3. The Merchant must review each statement and ensure that the records of Transactions noted on the statement reconcile against the actual records of Transactions. To the extent that there is any inconsistency, the Merchant should immediately notify Azupay. Azupay will assume that, in the absence of any notification, that the records of Transactions it provides in a statement are accurate and correct.
6.4. The Merchant must provide Azupay with any information requested by Azupay about a Transaction within 14 days of request.
6. Transaction Information
6.1. Azupay will issue a statement to the Merchant through the Azupay Dashboard for each period agreed between the Merchant and Azupay from time to time. The statement will show a summary of Transactions processed by Azupay to or from each Merchant Funds Account during that period.
6.2. The Merchant must retain information about a Transaction for a period of seven (7) years from the date of the Transaction or any longer period required by Relevant Law.
6.3. The Merchant must review each statement and ensure that the records of Transactions noted on the statement reconcile against the actual records of Transactions. To the extent that there is any inconsistency, the Merchant should immediately notify Azupay. Azupay will assume that, in the absence of any notification, that the records of Transactions it provides in a statement are accurate and correct.
6.4. The Merchant must provide Azupay with any information requested by Azupay about a Transaction within 14 days of request.
7. NPP
7.1. The Merchant acknowledges:
a) Azupay will provide the Azupay Services using the NPP and an arrangement with a financial institution settlement partner (FI Arrangement);
b) Azupay’s ability to provide the Azupay Services is contingent upon the availability and functionality of the NPP and the FI Arrangement; and
c) Azupay is not responsible for the availability and functionality of the NPP or the FI Arrangement.
8. Representations and Warranties
8.1.The Merchant makes the following representations and warranties to Azupay each time it uses an Azupay Service:
a) the details of the Transaction are true and correct;
b) it has taken all reasonable steps to ensure that the details provided for the purposes of an Account Check Service are true and correct, including in relation to payee name, account number, and any other information required by Azupay or its confirmation of payee process provider;
c) all information provided to Azupay in response to a request made by Azupay in the course of satisfying any obligations to Azupay satisfying any obligations under Relevant Laws are true and correct;
d) the Merchant is not aware of any fact which would cause the Transaction to be unauthorised by the Merchant or the customer;
e) the Merchant is satisfied based on its own user acceptance testing that the Azupay Services are fit for the Merchant’s purposes;
f) the information provided by the Merchant to Azupay in connection with Azupay’s due diligence process around the time the Merchant Terms and Conditions were entered into or subsequently is true, complete and up to date; and
g) the Merchant has all necessary governmental and regulatory licences, registrations, consents and approvals under any Relevant Law in order to carry out its obligations under the Merchant Terms and Conditions or to provide any products and services to Customers and all such governmental and regulatory licences, registrations, consents and approvals and are in full force and effect.
8.2. Azupay makes the following representations and warranties to the Merchant:
a) the Azupay Services will conform to the specifications and service levels set out in the Merchant Terms and Conditions;
b) the Azupay Services will be fit for purpose and supplied with due care and skill;
c) Azupay will comply with all Relevant Laws, including but not limited to, maintaining all governmental and regulatory licences, registrations, permits or consents required in order to provide the Azupay Services;
d) the provision of the Azupay Services will not infringe the rights, including any intellectual property rights, of any third parties;
e) Azupay will comply with all applicable regulations, procedures and requirements of the NPP or NPP Australia Limited (ABN 68 601 428 737), including in connection with the provision of the Azupay Services;
f) all data, codes and other information generated by or in connection with the Azupay Services will be materially correct and accurate;
g) the reliability and accuracy of data, codes and other information generated by or in connection with any interfaces with the NPP, including in relation to an Account Check Service, are subject to and will be as specified in the agreement between Azupay and the provider of the relevant NPP interface service;
h) unless otherwise authorised by the Merchant Terms and Conditions, Azupay will not knowingly do anything in connection with the Merchant Terms and Conditions which causes or requires the Merchant to refund any amount the Merchant receives or is entitled to receive from the Merchant’s customers;
i) Azupay will accurately reflect the information provided by the Merchant in connection with a PayTo Agreement; and
j) Azupay will accurately reflect the information provided by the Merchant in connection with an Account Check Service
9. Reimbursement
9.1.The Merchant must reimburse Azupay within two business days upon receiving a written request for the full amount of any Transaction that Azupay is required to pay to a customer or other person to the extent that the Transaction is not funded by a Merchant Funds Account.
10. Privacy and Confidentiality
10.1.Azupay will hold any personal information it collects in connection with the Merchant Terms and Conditions or the Azupay Services in accordance with the Australian Privacy Principles and the Privacy Policy.
10.2.The Merchant must provide a copy of the Privacy Policy to any of its officers, directors or employees who provide personal information to Azupay in connection with the Azupay Services.
10.3.The Merchant must keep all Confidential Information confidential and not disclose it to anyone, except to the extent required by Relevant Law or where the relevant information is already in the public domain other than as a result of a breach of confidentiality.
10.4.Azupay may use and disclose information it collects in connection with the Azupay Services in accordance with the Privacy Policy and otherwise as required by Relevant Law, codes of practice, external payment systems or any FI Arrangement. This will apply in respect of any information provided to the Account Check Service even if the Merchant subsequently opts out of that service.
10.5.Notwithstanding this clause 10, if, during the course of providing the Azupay Services, a party (Information Provider) provides information to the other party (Information Receiver) which:
a) is commercially sensitive to the Information Provider’s business; or
b) would, if disclosed, have a material detrimental effect on the Information Provider’s financial position,then the Information Receiver must keep that information confidential and not disclose it to anyone except to the extent required by Relevant Law or where the relevant information is already in the public domain other than as a result of a breach of confidentiality.
11. Intellectual Property
11.1.Azupay and its suppliers and/or licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to the Azupay Services (“Intellectual Property Rights”). The Merchant agrees that only Azupay shall have the right to maintain, enhance or otherwise modify the Azupay Services.
11.2.To the extent that Azupay develops any changes or modifications to its Intellectual Property Rights (“Developed Materials”), the intellectual property rights in the Developed Material will vest in Azupay, unless otherwise agreed by the parties.
11.3.The Merchant shall have a limited, non-exclusive, non-transferable, revocable and royalty free licence to use the Intellectual Property Rights and any Developed Materials in accordance with the Merchant Terms and Conditions.
11.4.Except as expressly provided in the Merchant Terms and Conditions, Azupay reserves all rights and grants the Merchant no licenses of any kind, whether by implication, estoppel, or otherwise.
12. Relationship
12.1.Nothing in the Merchant Terms and Conditions creates a relationship of joint venture, partnership or principal and agent.
13. Whole Agreement
13.1.The Merchant’s signed application form together with the Merchant Terms and Conditions represent the whole agreement between the parties in connection with the Azupay Services. No other item is to be included except where it is required to be included by any legislation of the Commonwealth or any State or Territory. All implied terms, except those implied by statute and which cannot be expressly excluded, are hereby excluded. Any previous understanding, agreement, representation or warranty relating to the Azupay Services is replaced by the Merchant Terms and Conditions and has no further effect.
14. Suspension
14.1.Azupay may suspend or restrict the Azupay Services immediately if it has reasonable grounds to suspect that:
a) the Merchant has breached or may breach a term of the Merchant Terms and Conditions;
b) the Merchant uses the Azupay Services in connection with the sale of goods or services which are listed as explicitly prohibited in the Azupay Prohibited Industries webpage; https://www.azupay.com.au/prohibited-merchants/
c) an insolvency event occurs in relation to the Merchant;
d) the Merchant has failed to provide all information or documentation reasonably required to provide the Azupay Services;
e) the Merchant is required to cease trading under a Relevant Law or is otherwise requested to cease trading by a regulatory authority or law enforcement agency;
f) there is a change in law or the regulations of the NPP or the FI Arrangement that prevents Azupay from providing the Azupay Services to the Merchant;
g) Azupay has reason to believe the Merchant has engaged in Transactions of the kind referred to in Clause 15 (Anti-money Laundering) ;
h) Azupay reasonably determines that Azupay or the Merchant may suffer loss if the Azupay Services continue to be provided;
i) the Merchant Terms and Conditions become or are claimed to be wholly or partly void, voidable or unenforceable; or
j) the Merchant has, or is reasonably likely to, misuse the Account Check Service in breach of the Merchant Terms and Conditions.
14.2.If Azupay suspends or restricts the Azupay Services, the Merchant must:
a) not process any further Transactions;
b) as soon as reasonably practicable, remove references to Azupay from their business processes, which may include but is not limited to a Merchant’s digital business processes, the Merchant’s website, social media sites, and other Merchant collateral and communications; and
c) destroy or return any Azupay material to Azupay except as required by Relevant Law and on request confirm the same to Azupay.
14.3.Azupay reserves the right to request information or evidence from the Merchant regarding the effectiveness of ongoing remediations that caused or influenced the suspension.
14.4.Subject to the provision of remediation actions of the Merchant, and to the satisfaction of Azupay, Azupay may in its sole and absolute discretion, reinstate the access and use of the Azupay Services to the Merchant.
15. Anti-money Laundering
15.1. Azupay may delay, block, or refuse to process any Transaction without incurring any liability if Azupay knows or reasonably suspects that the Transaction or the application of its proceeds will:
a) breach, or cause Azupay to breach, any Relevant Law (including any sanctions); or
b) allow the imposition of any penalty on Azupay under any Relevant Law,
including where the Transaction or the application of its proceeds involves any entity or activity the subject of any applicable sanctions or the direct or indirect proceeds of unlawful activity.
15.2. Where required by Relevant Law, Azupay may not be authorised to provide a detailed reason or reasons why the Transaction was blocked or refused for processing.
16. Audit
16.1. Azupay, or a person nominated by Azupay, may conduct an audit or review of the Merchant’s compliance with the Merchant’s obligations in relation to:
a) its processes, practices and procedures as they relate to the Transactions;
b) the accuracy of its records and reports in relation to the Transactions; or
c) any other matters reasonably determined by Azupay to be relevant to compliance with the Merchant Terms and Conditions and Relevant Law.
16.2. Azupay will provide the Merchant with at least 14 days’ written notice prior to conducting an audit and will limit the audit to no more than one audit in any 12-month period.
16.3. The Merchant will provide any reasonable assistance requested by Azupay or a person nominated by Azupay to complete any such audit or review. Costs associated with an audit or review requested by Azupay will be at the sole cost of Azupay.
17. Variation
17.1. Azupay, acting reasonably, may vary, add to, remove or otherwise update any of the Merchant Terms and Conditions at any time. The revised version of the Merchant Terms and Conditions will take effect from the time that it is first published on Azupay’s website www.azupay.com.au/legal/merchant-terms and becomes accessible via the Merchant dashboard. The Merchant will be subject to the Merchant Terms and Conditions in force at the time the Merchant uses or accesses the Azupay Services.
17.2. The Merchant’s continued use of the Azupay Services indicates its acceptance of such variations and updates to the Merchant Terms and Conditions. The Merchant should check the Merchant Terms and Conditions regularly to ensure it is aware of any variations and updates thereto.
18. Termination
18.1. Azupay, acting reasonably, is able to terminate the Merchant Terms and Conditions immediately if the use or provision of the Azupay Services presents an unacceptable risk to Azupay (including, but not limited to, due to fraud, data protection, money laundering, terrorism financing or other material risks).
18.2. In accordance with Clause 22.3, the Merchant may terminate the Merchant Terms and Conditions by giving at least 30 days’ written notice to Azupay should a transfer or assignment by Azupay of any of its rights or obligations under the Merchant Terms and Conditions results in adverse changes to the Merchant Terms and Conditions that directly affects the Merchant.
19. Indemnity
19.1. The Merchant indemnifies Azupay against all claims, damages, actions, losses and liabilities (including all fines, penalties and other charges incurred by Azupay as a result of any act or omission of the Merchant) which Azupay suffers or incurs arising directly or indirectly from:
a) a Transaction, except where those matters arise directly from Azupay’s provision of the Azupay Services;
b) an Account Check Service
i. in circumstances where the Merchant has acted in breach of Clause 8.1(b) (Representations and Warranties), whether or not it has acted in reliance on information provided to it by an End User; and/or
ii. in respect of an End User;
c) any Government taxes, duties or charges imposed on providing the Merchant with the Azupay Services;
d) the occurrence of an event referred to in Clause 14 (Suspension);
e) the negligence or fraud of the Merchant or an employee, contractor or agent of the Merchant;
f) a breach by the Merchant of any terms of the Merchant Terms and Conditions;
g) any enquiry, investigation, subpoena (or similar order) or litigation with respect to the Merchant or any Transactions;
h) any dispute between the Merchant and a customer in respect of the supply, use, quality, or fitness for purposes of good and services; and
i) any representation, warranty or statement made by the Merchant to the customer.
except to the extent that they are caused or contributed to as a result of the fraud, wilful default or gross negligence of Azupay.
19.2. Azupay indemnifies the Merchant against all claims, damages, actions, losses and liabilities (including all fines, penalties and other charges incurred by the Merchant as a result of any act or omission of Azupay) which the Merchant suffers or incurs directly or indirectly from:
a) the negligence or fraud of Azupay or an employee, contractor or agent of Azupay;
b) a material breach by Azupay of any term of the Merchant Terms and Conditions and that breach has not been remedied within 30 days from the Merchant notifying in writing Azupay of the breach;
c) any enquiry, investigation, subpoena (or similar order) or litigation with respect to Azupay;
d) breach of any of Azupay’s representations, warranties and/or covenants set forth in the Merchant Terms and Conditions; and
e) an insolvency event occurring in relation to Azupay.
except to the extent that any event listed above is caused or contributed to by the fraud, wilful default or negligence of the Merchant.
19.3. This Clause 19 is subject to the limitations set out in Clause 20 (Liability).
19.4. This indemnity and Clauses 19 (Reimbursement), 10 (Privacy and Confidentiality), 18 (Termination), 20 (Liability) and 27 (Jurisdiction) survive the termination of the Merchant Terms and Conditions.
20. Liability
20.1. To the extent permitted by law, Azupay is not liable (including in contract, tort or under statute) for any loss or damage incurred by the Merchant in connection with or caused by the Azupay Services greater than the total amount of all Transactions fees collected by Azupay under the Merchant Terms and Conditions in the six (6) months preceding the event of claim.
20.2. To the extent permitted by law, the Merchant is not liable (including in contract, tort or under statute) for any loss or damage incurred by Azupay in connection with the Azupay Services greater than the total amount of all Transactions fees collected by Azupay under the Merchant Terms and Conditions in the six (6) months preceding the event of claim.
20.3. Despite anything to the contrary herein, to the maximum extent permitted by law, neither party will be liable under or in connection with the Merchant Terms and Conditions for any consequential loss or indirect, incidental, or special damages.
20.4. Neither party will be liable to the other for any delay or non-performance of its obligations under the Merchant Terms and Conditions to the extent to which such delay or non-performance arises from any Force Majeure Event.
20.5. The Account Check Service is provided on an “as-is” and “as-available” basis. The Merchant acknowledges that Azupay makes no representation or warranties of any kind, express or implied, regarding the accuracy, reliability or completeness of the Account Check Service.
20.6. To the fullest extent permitted by law, Azupay disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement in relation to the Account Check Service.
20.7. The Merchant acknowledges that Azupay does not warrant that the Account Check Service will be uninterrupted, timely, secure, or error-free, or that any errors in the services will be corrected.
20.8. Azupay shall not be liable for any direct, indirect, incidental, special, consequential, or punitive damages arising out of or in connection with the use of the Account Check Service, including but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses, even if Azupay has been advised of the possibility of such damages.
20.9. The Merchant acknowledges and agrees that the use of the Account Check Service is at its own risk and that Azupay shall not be responsible for any errors or omissions in the information provided through the services.
20.10. The Merchant waives any right to claim against Azupay in respect of any loss or liability arising from the Merchant’s use of, or reliance on, the Account Check Service and indemnifies Azupay against any claim brought by an End User or other third party arising from the Merchant’s use of, or reliance on, the Account Check Service.
21. Set-off
21.1. Azupay may, but need not, set off any matured obligation due from the Merchant against any obligation owed by Azupay to the Merchant.
22. Assignment
22.1. The Merchant must not use the Azupay Services on behalf of a third party or allow the Azupay Services to be used by a third party without the prior written consent of Azupay.
22.2. The Merchant must not assign or grant security over any of its rights under the Merchant Terms and Conditions without the prior written consent of Azupay.
22.3. Azupay acting reasonably, may transfer or assign any of its rights or obligations under the Merchant Terms and Conditions on at least 14 days’ written notice. If the transfer results in adverse changes to the Merchant Terms and Conditions that directly affect the Merchant, the Merchant has the option to terminate under Clause 18 (Termination).
23. Sub-contracting
23.1. Azupay may engage or employ any person, sub-contractor or agent to perform any of its obligations under the Merchant Terms and Conditions (Sub-contractor).
23.2. Azupay is not relieved of any of its liability or obligations under the Merchant Terms and Conditions if it engages a Sub-contractor.
24. Notices
24.1. Notices delivered under the Merchant Terms and Conditions may be delivered by email to Azupay’s email address ([email protected]) or, in relation to the Merchant, the email address most recently notified to Azupay and are taken to be received when sent unless the sender receives an automated message that the email has not been delivered.
25. Severability
25.1. If a term of the Merchant Terms and Conditions is illegal or unenforceable in a jurisdiction, the Merchant Terms and Conditions are to be construed in that jurisdiction to give effect to that term only to the extent possible to avoid any illegality or unenforceability.
26. Waiver
26.1. Azupay’s rights under the Merchant Terms and Conditions are not waived by any delay or failure to exercise them and may only be waived in writing.
27. Jurisdiction
27.1. The Merchant Terms and Conditions and any non-contractual rights arising out of them are governed by the laws and courts of New South Wales, Australia. The Merchant and Azupay submit to the non-exclusive jurisdiction of the courts of New South Wales in relation to any disputes.
28. Dispute Resolution
28.1. If any dispute arises between the Merchant and Azupay arising out of or in connection with the Merchant Terms and Conditions, including its construction, effect, the rights and obligations of the parties, the performance, breach, rescission or termination of the Merchant Terms and Conditions, the entitlement of any party to damages or compensation (whether for breach of contract, tort or any other cause of action) or the amount of that entitlement (Dispute), the party claiming that a Dispute has arisen must give the other party a notice containing particulars of the Dispute (Dispute Notice).
28.2. During the period of 10 business days from the date that the Dispute Notice is given, or any longer period agreed in writing by the Merchant and Azupay, each of the parties must use its reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation.
28.3. On failure to reach a mutually agreed resolution, either Azupay and/or the Merchant may request the services of an independent dispute resolution entity to hear the matter and issue its final resolution. During the entire period of when either party issues the Dispute Notice, Azupay reserves the right to suspend the Merchant from Azupay Services and will reinstate pending resolution or not, should either party terminate the Merchant Terms and Conditions.
29. Multiple Parties
29.1. If the Merchant comprises more than one person, those persons are jointly and severally liable as the Merchant under the Merchant Terms and Conditions.
30. Interpretation
30.1. In the interpretation of the Merchant Terms and Conditions, the following provisions apply unless the context otherwise requires:
a) Headings are inserted for convenience only and do not affect the interpretation of the Merchant Terms and Conditions.
b) A reference to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in Sydney, NSW.
c) If the day on which any act, matter or thing is to be done under the Merchant Terms and Conditions is not a business day, the act, matter or thing must be done on the next business day.
d) Any reference to time means the time in Sydney, NSW.
e) A reference to dollars or $ means Australian dollars and all amounts payable under this document are payable in Australian dollars.
f) A reference to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
g) An expression importing a natural person includes any company, trust, partnership, joint venture association, body corporate or governmental agency.
h) Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
i) A word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
j) References to the word “include” or “including” are to be construed without limitation.
k) Any schedules and attachments form part of the Merchant Terms and Conditions.
31. Definitions
The following defined terms are used in the Merchant Terms and Conditions:
| Account Check Service | a process to check the identity of the payee before completing a payment for the purposes of providing assurance that payments are made to the correct payee; and the reduction of the risks relating to fraud and errors. |
| Australian Privacy Principles | set out in the Privacy Act 1988 (Cth). |
| Authorised PayTo Agreement | a PayTo Agreement, including a Migrated DDR Mandate, that has had the End Customer accept the agreement terms through the Customer Financial Institution and has been stored in the Mandate Management Service. |
| Azupay | Azupay Trading Pty Ltd ABN 88 635 093 248. |
| Azupay Dashboard | the online website through which the Merchant can access information about the Azupay Services as referred to in the Services Schedule, the Purchase Payment Facility Schedule or the PayTo Schedule. |
| Azupay Services | each service that provides access to and functionality of the NPP to the Merchant as described in the Services Schedule. |
| Confidential Information | all information relating to or arising under the Merchant Terms and Conditions or the Azupay Services in whatever form. |
| Cuscal | Cuscal Limited ABN 95 087 822 455. |
| Customer Financial Institution | the financial institution of the merchants End Customer, used for the necessary consent to authorise the PayTo Agreement. |
| Disbursement Transaction | a payment initiated by the Merchant to a bank account using the Azupay Services. |
| DDR | direct debit request. |
| End Customer | the Merchants customer that is making the Sales Transaction. |
| End User | a person on whose behalf, and/or in respect of whom, the Merchant requests an Account Check. |
| FI Arrangement | has the meaning given in Clause 7 (NPP). |
| Mandate Management Service | means the central, secure database operated by NPP Australia Limited of Authorised PayTo Agreements. |
| Merchant | the party to the Merchant Terms and Conditions named as such at the start of these Merchant Terms and Conditions. |
| Merchant Directed Payment | means a payment to, or in accordance with the written direction of, a person entitled to the Merchant Funds. |
| Merchant Funds | the funds of a Merchant held in the Merchant Funds Account. |
| Merchant Funds Account | an account of Azupay with Cuscal for the purpose of holding Merchant Funds (which Cuscal refers to as a Customer Funds Account) as part of the Purchased Payment Facility provided by Azupay to the Merchant for the purposes of the Azupay Services. |
| Merchant Terms and Conditions | these Terms and Conditions and schedules set out in clause 1. |
| NPP | the New Payments Platform operated by NPP Australia Limited ABN 68 601 428 737. |
| PayTo Agreement | an authorised agreement or migrated DDR mandate established by the Merchant with their End Customer to allow the Merchant to initiate payments from their customers bank accounts in real-time via the Azupay Services and the NPP PayTo facility. |
| PayTo Agreement Transaction | the action taken to create, change, cancel or manage PayTo Agreements. |
| Privacy Policy | Azupay’s privacy policy which is available at www.azupay.com.au. |
| Relevant Law | any law, regulation, order or instrument and any code of practice, practice notes, guidelines, rules, membership rules or standards issued by relevant regulators or industry bodies whether or not having the force of law that is applicable to a person or the business carried on by the person and includes, without limitation, the Corporations Act 2001 (Cth), the Anti-money Laundering and Counter-terrorism Financing Act 2006 (Cth) and any other statute or regulation relating to the proceeds of crime and economic sanctions. |
| Sales Transaction | the supply of goods or services or both paid for using the Azupay Services, including Azupay PayID and Azupay PayTo payment services and Azupay PayTo agreement management and payment services. |
| Settlement Account | a bank account maintained by Azupay for the receipt and payment of the proceeds of Sales Transactions or Disbursement Transactions. |
| Services Schedule | the “Services Schedule” provided to the Merchant on or around the date of the Merchant Terms and Conditions as may be amended or supplemented by any operating information, service or support process descriptions and specifications provided by Azupay to the Merchant from time to time. |
| Transaction | a Sales Transaction, a Disbursement Transaction or a PayTo Agreement Transaction. |
Services Schedule
1. Solution Overview
Azupay is to supply the Merchant with the Azupay payment method to be integrated into the Merchant payment process.
The Azupay service provides a fast, safe and simple NPP/PayID based payment method for merchants and retailers in Australia to receive payments from their customers.
It will enable the Merchant’s customers to pay for their goods and services with their own money, while providing the Merchant with a timelier cash flow management and a simpler and robust reconciliation process.
Azupay is an Australian company specialising in digital payments with the Azupay product
(https://www.azupay.com.au)
being offered as a unique payment method utilising the Australian New Payment Platform – NPP –
https://nppa.com.au.
32. Platform summary
Azupay Trading Pty Ltd commercialises under licence the Azupay payment method.
33. Subscription Details
The below table is a summary of the Azupay Services provided. More detailed information can be found in the Azupay Developer Portal –
https://developer.azupay.com.au/.
| Service | Description |
|---|---|
| Azupay APIs | APIs used by the merchant to process payments, create, change and cancel PayTo Agreements, query data and update configuration. |
| Merchant Dashboard | Manage their Azupay account and configuration, including transaction searching and report download. |
| Settlement | Transfer of funds from the merchant’s Azupay account to their external business banking account. |
| Payment Apps | Configurable UI components merchants can use to manage payments related interactions with their customers. |
Note: Charges for any changes to services other than the operational maintenance and troubleshooting of the platform will be provided at the Merchant’s request on a time and material basis based on Azupay’s standard fee schedule.
34. Usage of the Azupay Services
Azupay PayID, Azupay PayOut and Azupay PayTo and Azupay Account Check Service will be made available to the Merchant’s customers via the Merchant’s payment process.
Azupay will make the Azupay platform available to the Merchant by setting up an account for the Merchant on the Azupay platform and by providing to the Merchant a login and connection details to the platform as soon as practicable following acceptance of the Merchant Terms and Conditions.
Subject to the terms and conditions herein and the limitations below, Azupay will grant to the Merchant non-exclusive rights to use and access the Azupay platform for the defined services in Australia.
The right granted by Azupay to the above for the Merchant is subject to the following limitations:
• the Azupay platform may only be used by the named users identified within the technical integration configuration with the Merchant;
• the platform must be used by the Merchant in accordance with the Merchant Terms and Conditions.
The Merchant must not use the Platform:
• in any way that is unlawful, illegal, fraudulent or that may cause damage or loss to Azupay or any third parties; or
• in connection with any activity that is, or may be, unlawful, illegal, fraudulent or that may cause damage or loss to Azupay or any third parties.
35. Service Level Agreement
The Azupay Service Level Agreement (“SLA”) governs the availability of the services identified below as made available to the Merchant under the Merchant Terms and Conditions.
35.1. SLA Definitions
“Covered Services” means the components of the Azupay payment service identified in Section 5.3 below.
“Downtime” means periods during which material portions of the Covered Services are not available.
“Excluded Downtime” includes Planned Downtime and any Downtime resulting from:
a) events beyond Azupay’s reasonable control, including, but not limited to, network disruptions, denial of service attacks, network hacks, or events constituting a force majeure;
b) any action taken under the customers’ account;
c) any termination or suspension of the Merchant’s account in accordance with the Merchant Terms and Conditions;
d) any third-party software or hardware used to access the Services;
e) use of the Services in a manner that is inconsistent with the Merchant Terms and Conditions or Azupay’s reasonable instructions; and
f) use of Beta, evaluation, and free Services.
“Planned Downtime” means Downtime for scheduled maintenance. Azupay will use commercially reasonable efforts to provide notice of Planned Downtime as early as possible but no less than eight (8) hours beforehand.
35.2. Service Availability
Azupay will use all commercially reasonable efforts to provide the Covered Services with ninety-nine point nine percent (99.9%) availability subject to Excluded Downtime.
• Scheduled maintenance to Tier 1 components of the Azupay platform will be performed during periods of low activity and will be done in a way that minimises system unavailability.
• Scheduled maintenance for Tier 2 components of the Azupay platform will be performed out of business hours (Sydney time) and possible outages will be notified to clients a minimum of 8 hours in advance.
35.3. Covered Services
The following Azupay Payment Services provided are covered by this SLA:
Tier 1
• Azupay APIs access and operation
• Azupay UI/UX components operation
Tier 2
• Azupay Customer portal
• Azupay service desk.
35.4. Incident Response
Azupay categorised incidents into Severities 1 to 4 and provides the following Response and Resolution SLA:
| Severity | Description | First Response Time | Target Resolution Time |
|---|---|---|---|
| 1 | Total loss of service to Tier 1 services or an issue impacting a significant number of customers that prevents payments being taken. No workaround is available. | 60 minutes | 4 hours |
| 2 | Issue impacting some users of a Tier 1 service, intermittent issues or issues where a workaround is available. Issue with a Tier 2 service impacting a significant number of customers. | 60 minutes | 24 hours |
| 3 | Minor issue in either a Tier 1 or Tier 2 service that does not impact merchant’s ability to process payments or where a simple workaround is available. | 1 business day | 5 business days |
| 4 | Request for system enhancement such as altering a report or providing additional data fields. | 5 business days | As agreed with the Merchant |
If the Azupay Services fails to comply with the Merchant Terms and Conditions, Azupay must fix the problem as soon as reasonably possible and in accordance with relevant service levels.
Azupay will provide help desk services as follows:
| Help desk services | The Azupay help desk is accessible online and provides help desk calls and ticket management for Azupay’s clients. |
| Help desk hours | 24/7/365 |
| Help desk contact details | https://azupay.atlassian.net/servicedesk/customer/portal/3 |
35.5. Performance monitoring and reporting
Reporting on performance of the Azupay Services:
• The Azupay Dashboard provides transaction logs and monitoring and uptime reporting of the Azupay platform.
• Azupay will provide a monthly report showing all events that have resulted in the Azupay service being unavailable. This report will show the duration of the event and a plan to prevent recurrence of the issue.
• The report also includes an availability percentage for the month that is calculated as (Number of minutes per month – minutes of unavailability per month)/(Number of minutes per month) * 100
o For example:
A typical month of 30 days has 43200 minutes. If there was one outage of 30 minutes in the month, the availability would be (43200 – 30)/43200 * 100 = 99.93%
Technical arrangements for enabling performance monitoring of the Services:
• The Azupay Dashboard provides transaction logs and monitoring capabilities.
• Status of each component in the Azupay SaaS platform is shown in the Azupay Dashboard.
• Each component is shown as either Green, Amber, or Red where:
o Green: Components are functioning normally
o Amber: Components are functioning but may be having unexpected failures in some cases or reduced performance.
o Red: Components are severely impacted or non-functional.
• There is also an overall system status based on the criticality of each component in the solution. So, if the system status may be Amber even if a non-critical component is offline and Red.
• The Merchant may also log a ticket on the Azupay service desk to get a status update if there are concerns with system behaviour, which is subject to stated help desk SLAs.
• Azupay will notify the Merchant’s designated contact whenever degradation of service or loss of service occurs.
35.6. Merchant and Merchant Customer Transactional Data
Azupay will ensure that all transactional data in its possession is retained throughout the Agreement Period and managed in accordance with the following requirements:
Data encryption:
• Data in transit to, and within, the Azupay platform is encrypted using TLS 1.2 or higher. Connections using versions of TLS lower than 1.2 or using SSL are rejected.
• Data at rest is encrypted using 256-bit Advanced Encryption Standard (AES-256).
Technical mechanisms and processes for enabling access / extract transactional data at any time:
• All transactional data will be accessible from the Azupay Dashboard.
Controls to be applied for managing the platform:
Azupay will:
• keep confidential and not disclose the confidential information to any person except to the extent required by law.
• protect the confidential information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
• deploy and maintain the security systems and technologies detailed above in relation to the confidential information held on the Azupay platform.
Azupay and the Merchant will:
• Not, without the prior written approval of the other party, disclose the other party’s confidential information.
• Not be in breach in circumstances where it is legally compelled to disclose the other party’s confidential information.
• Take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of the Merchant Terms and Conditions, do not make public or disclose the other party’s confidential information.
The Merchant will:
• Not disclose to any third party any information retrieved from the Azupay platform as a result of processing a payment.
• Where payment and payer information are provided to the Merchant by Azupay for fraud and compliance verification purposes, the Merchant will not use this information for any other purpose.
• Ensure all credentials used to access any part of the Azupay platform are kept secure; and
• will notify Azupay immediately if it becomes aware that its credentials become compromised.
35.7. Changes to the Services
• Azupay can make changes to the Services to ensure it keeps pace with technological advancements and improvements in methods of delivery.
• This does not entitle the Merchant to new products or functionality which are not contemplated under the Merchant Terms and Conditions.
• Regardless of any such changes, Azupay must ensure the Services continue to meet all of the requirements under Merchant Terms and Conditions.
Purchased Payment Facility Schedule
1. Azupay will provide a Purchased Payment Facility (PPF) to the Merchant. The PPF provides the Merchant with the ability to hold funds within a Merchant Funds Account for an indefinite period of time. An agreed limit to the amount of funds the Merchant can hold in the Merchant Funds Account will be applied by Azupay and notified to the Merchant. This amount may be changed from time to time.
2. As part of the PPF, Azupay will establish and maintain a Merchant Funds Account with Cuscal, an authorised deposit-taking institution (ADI), to hold the Merchant Funds. Cuscal is the holder of stored value for the PPF. While Cuscal is an ADI, the Merchant Funds are not covered by the Financial Claims Scheme.
3. Azupay will hold the Merchant Funds of the Merchant within the Merchant Funds Account in trust for the benefit of the Merchant.
4. Cuscal is not providing accounts to the Merchant and does not have any contractual relationship with the Merchant.
5. Cuscal provides transaction processing and settlement services to Azupay in relation to the Merchant Funds Account, and Azupay will only action these services based on instructions from the Merchant.
6. Cuscal will only debit the Merchant Funds Account for the purpose of Merchant Directed Payments or any other type of debit permitted by law.
7. Cuscal, as permitted by law, may invest funds in the Merchant Funds Account and deal with interest or other earnings on such investments or the proceeds of their sale.
8. Azupay may retain any interest, or any other earnings from funds held in the Merchant Funds Account, and the Merchant irrevocably assigns to Azupay all rights, interest and benefit to any interest or other earnings that accrue or are attributable to any of the funds held in the Merchant Funds Account.
PayTo Schedule
This PayTo Schedule describes the key services provided and the process and conditions on which these services will be invoked and operated.
1. Creating an Authorised PayTo Agreement
1.1. An Authorised Payment Mandate may be initiated by the Merchant or Azupay where the End Customer is either a new or existing customer of the Merchant.
2. Creating an Authorised PayTo Agreement for new End Customers
2.1. Once the Merchant has agreed the terms upon which the Merchant will engage with the End Customer, the Merchant must request the End Customer to provide their Account number and BSB/PayID. Any data provided to the Merchant by the End Customer will be provided in accordance with the Merchant’s privacy policy and terms and conditions. The Merchant will be responsible for any data provided by the End Customer.
2.2. The Merchant will instruct Azupay to produce a PayTo Agreement which Azupay will include on the Mandate Management Service. The Mandate Management Service will notify the financial institution of the End Customer (the Customer Financial Institution) of the PayTo Agreement at which point the End Customer will receive a notification to either authorise or reject the PayTo Agreement.
2.3. The End Customer is required to authorise or reject the PayTo Agreement within the period of time specified in the PayTo Agreement, otherwise the PayTo Agreement will lapse. Such period of time must not exceed 5 calendar days. For clarity, where the End Customer does not authorise or reject the PayTo Agreement within the specified period of time, the PayTo Agreement is deemed to be rejected.
2.4. If the End Customer rejects a PayTo Agreement because they do not believe that it reflects the terms of the agreement that it will enter into with the Merchant, the End Customer is required to contact the Merchant and have the Merchant amend and resubmit the details of the Mandate.
2.5. Once a PayTo Agreement has been authorised by the End Customer, the Customer Financial Institution will update the Mandate Management Service with this information and the PayTo Agreement becomes an Authorised PayTo Agreement.
2.6. A Merchant may recall a PayTo Agreement at any time up until the point at which the End Customer authorises that PayTo Agreement in accordance with clause 2.3, or the PayTo Agreement expires.
3. Migration of Direct Debit arrangements for existing End Customers
3.1. Where the Merchant are existing “BECS Debit Users”, Azupay may authorise such Merchants to create PayTo Agreements for any existing Direct Debits (Migrated DDR Mandates). To create Migrated DDR Mandates, Merchants must inform the End Customer/s of their decision to process future transactions under the relevant Direct Debit arrangement through PayTo at least one full billing cycle before the new payment arrangements come into effect (and if the billing cycle is less than 14 days, then at least 14 days’ notice is to be given).
3.2. Any data provided to a Payee Customer by End Customer/s, historical or otherwise, will be provided in accordance with the Payee Customer’s privacy policy and terms and conditions. The Payee Customer will be responsible for any data provided to it by End Customer/s.
3.3. Payee Customers acknowledge that they hold, and are able to produce evidence upon request, of each of the End Customers’:
a) existing Direct Debit authorisations to be migrated to PayTo; and
b) all notices pursuant to clause 3.1.
3.4. Azupay will produce a Migrated DDR Mandate which Azupay will include on the Mandate Management Service. Transactions in connection with Migrated DDR Mandates may be processed through PayTo from the date that is 5 calendar days after the date of creation (provided that this is consistent with any instruction provided by the End Customer) at which point the Migrated DDR Mandate becomes an Authorised PayTo Agreement.
3.5. A Migrated DDR Mandate can be recalled by the Merchant at any time up until 5 calendar days from the date of Migration DDR Mandate creation.
4. Amending an Authorised PayTo Agreement
4.1. From time to time, the terms of the agreement between the Merchant and each End Customer may be amended which will then need to be captured in the relevant Authorised PayTo Agreement. The amendment of an Authorised PayTo Agreement must be initiated by the Merchant. The Merchant must obtain consent from each End Customer to any changes to the terms of the Merchants agreement with those customers before initiating an amendment to an Authorised PayTo Agreement.
4.2. The Merchant acknowledges that it holds, and is able to produce evidence upon request, of each End Customer’s consent obtained pursuant to clause 4.1.
4.3. The Merchant must instruct Azupay to process an amendment to the Authorised PayTo Agreement in the Mandate Management Service on the Merchants behalf. The Mandate Management Service will notify the Customer Financial Institution of the amendment request at which point the End Customer is required to either authorise or reject the amendment request.
4.4. The End Customer must either authorise or reject the amendment request within 5 calendar days, otherwise the amendment request will lapse. For clarity, where the End Customer does not authorise or reject the amendment request within the specified period of time, the amendment request is deemed to be rejected.
4.5. If the End Customer rejects the amendment request because they do not believe that it reflects the updated terms of the agreement that it has with the Merchant, the End Customer must contact the Merchant and have them resubmit the amendment request with the correct details.
4.6. Once an amendment request has been authorised by the End Customer, the Customer Financial Institution will promptly update the Mandate Management Service with this information. The updated Authorised PayTo Agreement will apply from the date that is specified in the agreement between the End Customer and the Merchant.
5. Suspending and unsuspending an Authorised PayTo Agreement
5.1. Subject to the terms of the agreement between the Merchant and each of its End Customers, Merchants may suspend and unsuspend an Authorised PayTo Agreement by using the Azupay Services. Any suspension or unsuspension of an Authorised PayTo Agreement will generally be effective immediately. Azupay will promptly notify the Customer Financial Institution of the suspension or unsuspension, who will in-turn promptly notify the End Customer.
5.2. Similarly, subject to the terms of the agreement between the Merchant and each of the End Customers, the End Customer may suspend and unsuspend an Authorised PayTo Agreement. Azupay will promptly notify the Merchant of any such suspension and unsuspension via the Azupay Services.
6. Cancelling an Authorised PayTo Agreement
6.1. Subject to the terms of the agreement between the Merchant and each End Customer, the Merchant may cancel an Authorised PayTo Agreement by using the Azupay Services. Any cancellation of an Authorised PayTo Agreement will generally be effective immediately. Azupay will promptly notify each Customer Financial Institution of the cancellation, which will in-turn promptly notify each End Customer.
6.2. Similarly, subject to the terms of the agreement between the Merchant and each End Customer, the End Customer may cancel an Authorised PayTo Agreement. Azupay will promptly notify the Merchant of any such cancellation via the Azupay Services.