Terms and Conditions

2. SCOPE
2.1 We provide OMNI Payment Solutions, as a payment solution platform that enables Merchants to receive payment for goods and/or services purchased in Australia.
2.2 You agree to offer and accept the OMNI Payment Solutions as an option for Card payment for your goods and/or services provided through the Website and other delivery channels, subject to these Terms and Conditions.
2.3 We may choose not to offer or provide the OMNI Payment Solutions (in our sole discretion) to any merchant. However, once this Agreement has commenced and you have successfully completed (to our satisfaction) our applicable merchant onboarding and screening procedures for the purposes of satisfying our AML/CTF obligations, we will provide the OMNI Payment Solutions to you subject to these Terms and Conditions.

3. TERMS AND CONDITIONS
3.1 The Term of this Agreement shall commence upon the acceptance of these Terms and Conditions by you and shall continue until it is terminated in accordance with its terms.
3.2 Except where expressly provided otherwise in these Terms and Conditions, this Agreement may not be terminated by notice within the first twelve months of the Term. Following the first anniversary of the commencement of the Agreement, either Party shall be entitled to terminate the Agreement without cause by giving thirty (45) days written notice to the other Party, with termination to have effect at the end of the period which the notice period ends. If there is no notice received, the agreement will continue for another term (months) automatically be renewed.
3.3. We shall be entitled to terminate this Agreement with immediate effect if we have reasonable grounds to believe that you conduct, engage in, facilitate, support or promote activities outside the scope of the business activities which you declared in your Application Form.

4. USER ELIGIBILITY
4.1 User Eligibility: You must be of legal age and have the authority to enter into binding agreements to use our services. By using our services, you represent and warrant that you meet these requirements.

5. ACCOUNT REGISTRATION
5.1 Account Creation: To access certain features of our services, you may need to create an account. You agree to provide accurate and complete information during the registration process.
5.2 Security: You are responsible for maintaining the security of your account and password. You agree to notify us immediately of any unauthorized use of your account.

6. FEES AND PAYMENT
6.1 Fees: You agree to pay all applicable fees associated with our services, as specified in our pricing schedule.
6.2 Payment: Payment must be made in accordance with our billing terms. Failure to pay may result in the suspension or termination of your account.

7. ACCEPTABLE USE
7.1 Compliance: You agree to use our services in compliance with all applicable laws and regulations. You will not engage in any illegal, fraudulent, or harmful activities.
7.2 Prohibited Content: You will not upload, post, or transmit any content that is harmful, offensive, or violates the rights of others.

8. DATA SECURITY
8.1 Data Protection: We take data security seriously and implement measures to protect your information. However, we cannot guarantee the security of your data.
8.2 Data Usage: We may collect and use your data as described in our Privacy Policy.

9. LIABILITY
9.1 Liability: OMNI Payment Solutions shall not be liable for any issues or disruptions arising from the service platform provided by Novatti.
9.2. OMNI Payment Solutions nor its affiliates, subsidiaries, suppliers, or parent corporations shall NOT be liable to the other Party or any third party for special, consequential, incidental, indirect, tort or cover damages, including, without limitation, damages resulting from the use or inability to use the services, delay of delivery and implementation, or loss of profits, data, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages
9.3 OMNI Payment Solutions is NOT and will NOT be liable for damages incurred or caused by failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation decisions or actions by a third party (including but not limited to court, authority, bank, or the other Party). Nor is a Party liable for any damages attributable to actions taken to prevent harm or damage to a Party.

10. MERCHANT OBLIGATIONS
10.1 You may accept payment from Customers using the OMNI Payment Solutions only in respect of the products/services that you offer for purchase. You must not use OMNI Payment Solutions to process transactions on behalf of a third party. For the avoidance of doubt, this includes not processing payments for goods or services sold on another person’s website.
10.2 You may accept OMNI Payment Solutions as a means of payment on the Website. All URLs at which OMNI Payment Solutions will be accepted as a means of payment are set out in the Application Form. The inclusion of OMNI Payment Solutions as a means of payment at additional URLs of yours shall be notified to us by providing an updated Application Form.
10.3 You undertake to comply with all Laws relating to your activities and business, including, but not limited to, applicable tax laws, anti-money laundering provisions, regulations relating to the protection of minors and laws relating to the provision of Cardholder data on specific transactions to us.
10.4 You undertake to comply with applicable provisions on the protection of minors and to carry out an age check for “over 18” adult products that is in conformity with the Law, where applicable.
10.5 You undertake not to allow or facilitate any prohibited activities and/or offer any Illegal products or services and/or services that are included in our “Do Not Process” list as incorporated in Novatti Acquiring Services and/or Merchant Services website are accepted as means of payment.
10.6 You confirm that you hold all rights and licences that are necessary for providing the goods and services offered on the Websites concerned and will hold such rights and licenses for the term of the Agreement.
10.7 You agree to immediately notify us of any suspicious, fraudulent or unauthorized transactions.
10.8 You agree to inform us as soon as practicable upon any changes to your corporate structure or any material change to your operations.
10.9 You shall be responsible for resolving all disputes with Customers and have sole responsibility for dealing with questions, complaints or enquiries raised by a Customer involving a transaction using the OMNI Payment Solutions.
10.10 You must keep your login information to the Portal, including the access name and password, secret and secure. You must also take all reasonable steps to keep your system secure and free from any unauthorized access or computer virus.
10.11 You shall in addition at all times comply with our reasonable policies (including any policies or procedures relating to fraud prevention), as amended from time to time and shall give us audit rights during office hours on business days in relation to relevant consumer data relating to “Know Your Client” information on individual Cardholders specifically for regulatory, fraud and/or AML purposes. A policy will be deemed to be reasonable to the extent it is intended to ensure compliance with any applicable Law or Card Scheme Rules.
10.12 When using the relevant service provided by us under this Agreement, you shall ensure that your procedures for handling orders and the delivery or provision of goods and/or services offered by you are compatible with the settlement process of the Novatti Acquiring Service.
10.13 You shall not intercept any information of the buyer by technical or other illegal means for the purpose of placing orders or making online payments in place of the buyers.
10.14 You shall not employ any reverse engineering method to decipher all systems and procedures including but not limited to, our software systems and procedures, and shall not copy, amend, edit, consolidate and alter any systems or procedures (including but not limited to the source program, object program, software files, data processing in local computer storage devices, data from terminals of clients to servers, server data, etc.) and shall not amend the original functions of or add further functions to our software system.
10.15 You agree to adhere all applicable Card Scheme Rules (including rules relating to Cardholder data) and relevant Law at all times.
10.16 You must ensure that your services and systems at all times comply with the Payment Card Industry Data Security Standards.
10.17 You must provide on request from us, such additional information necessary for us to make an assessment of your credit risk exposure.
10.18 You must provide us with all information and assistance reasonably required to perform our obligations. This includes providing any required information required for us to meet our obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated regulations (AML/CTF obligations).

11. REFUNDS AND CHARGEBACKS 
11.1 You shall give refunds for Transactions only by means of credit to the same account used for the original Transaction and not in another card or cheque or cash.
11.2 You can request refunds only up to the amount available in your Merchant Settlement Funding Account balance.
11.3 You agree to follow all reasonable policies and procedures provided by us and fulfill all requirements set out in these Terms and Conditions and the on-boarding materials in order to keep the Chargeback volume as low as possible. Should the Chargeback volume be equal to or more than 0.5% total volume for any month, we will have the right to terminate this Agreement with immediate effect by providing written notice.
11.4 Should at any time the total of the amounts owed by you to us under these Terms and Conditions (including but not limited to amounts paid or required to be paid by us for Transactions that are reversed as Chargebacks or otherwise refunded) exceed the settlement amounts held by us, you will pay the amount of that excess to us promptly on demand.
11.5 We may require you to provide a bank guarantee to us (Bank Guarantee) to secure your obligations to us under this Agreement. We will inform you of the amount of the Bank Guarantee required and must provide you with written notice of these requirements from time to time. We may increase or decrease the amount of the Bank Guarantee in our absolute discretion, and will provide you with written notice. We must notify you of the deadline for providing the Bank Guarantee, the minimum period of notice that we are required to give you is 10 days. In the event of your breach of this Agreement, we can exercise our rights under the Bank Guarantee.
11.6 We may require you to hold a security deposit with us (Security Deposit). We will set the amount of the Security Deposit required (and its basis of calculation) and must provide you with written notice of these requirements from time to time. We may increase or decrease the amount of the Security Deposit in our absolute discretion, and will provide you with written notice. We must notify you of the deadline for paying the Security Deposit. Where directed to do so under this clause, you must pay the Security Deposit into a dedicated bank account notified by us (security deposit account) within the timeframe for such payment. Any interest which accrues on the funds held in such security deposit account will form part of the Security Deposit.
If you fail to provide the required amount of the Security Deposit as required, we may:
(i) retain a percentage (as specified by us from time to time) of Transaction proceeds which would otherwise be payable to you, and treat them as forming part of the Security Deposit, up to the amount of the required Security Deposit; or
(ii) obtain the amount of any shortfall from you.
11.7 If, following the commencement of this Agreement, we require you to provide a Bank Guarantee and/or Security Agreement or to increase the amount of any existing Bank Guarantee and/or Security Agreement (referred to in this clause as a Security Requirement) and you are unwilling to comply with the Security Requirement, you may, at any time prior to the deadline for complying with the Security Requirement, provide us written notice of your intention to terminate this Agreement. If we have not waived or dispensed with the Security Requirement (by confirming this to you in writing) within 10 days of our receipt of your notice, then:
(i) this Agreement will terminate with effect from the end of the first calendar month following the month in which we received your notice of intention to terminate; and
(ii) you will not be liable for any failure to comply with the Security Requirement prior to such termination.
11.8. We may also withhold Transaction proceeds for a period of up to 7 days, if we have reasonably determined that doing so is necessary. We must provide you with written notice of these requirements from time to time.  Any Transaction proceeds retained will form part of the Security Deposit.
11.9. You agree that:
(i) We may deduct from the Security Deposit any chargebacks, fines or penalties, and any amounts which we are required to deduct from the Security Deposit in accordance with the applicable Card Scheme Rules and any other amounts payable by you to us under this Agreement; and
(ii) in circumstances where an amount has been deducted from the Security Deposit by us in accordance with these Terms and Conditions, you will contribute additional funds to the Security Deposit account equal to the top-up amount within the reasonable timeframe specified by us.
11.10 You grant us a security interest over the Security Deposit and any amounts credited to us or a nominated third party bank account to secure performance of your obligations under this Agreement. You undertake to:
(i) do all acts and provide us on request all information we require to register a financing statement or financing change statement on the Personal Property Securities Register; and
(ii) advise us immediately in writing of any proposed change in your name or other details on the Personal Property Securities Register.
You waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest created by this clause. Sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the Personal Property Securities Act 1999 will not apply in relation to the security interest created by this clause or its enforcement.
11.11 We must refund to you any remaining Security Deposit held within the Security Deposit account on the date which is 18 months following termination or expiry of this Agreement or such sooner date determined by us in our sole discretion.
11.12 You must provide us with a direct debit authority over your nominated bank account. You agree that we are authorised to use this direct debit authority in respect of any amounts owing to us under this Agreement.

12. MERCHANT SETTLEMENT FUNDING ACCOUNT 
12.1 We will maintain a Merchant Settlement Funding Account for you.  Amounts in your Merchant Settlement Funding Account are held on bare trust for you.  The Merchant Settlement Funding Account does not constitute a checking, savings or other bank account and is not connected in any way to any other account you may have.
12.2 We will provide you with access to information about your Transactions and the Merchant Settlement Funding Account, via the Portal and/or in such form and manner as we determine from time to time.  You may raise any issue that you have concerning an amount paid, or not paid to you, within 3 months of the date of payment or of the date the payment was due.
12.3 We reserve the right to withhold payment to the Merchant Settlement Funding Account of any amount for such period as we consider necessary to comply with Law and/or any Card Scheme Rules where we have reasonable grounds to suspect you have processed Transactions otherwise than in accordance with this Agreement or where we are required to do so by Law.

13. MERCHANT SERVICE CHARGES 
13.1 All fees associated with us providing OMNI Payment Solutions to you will be detailed within a separate document provided to you prior to the commencement of this Agreement (‘Merchant Fees’) which is hereby incorporated into this Agreement by reference.
13.2 We may amend the Merchant Fees at any time by informing you directly via email to your designated email account. The revised Merchant Fees will become effective 30 days after the initial notice is sent or such later date as may be specified in the notice (Fee Change Effective Date).
13.3 If you do not agree to the new Merchant Fees, you may, at any time within 20 days of the notice being sent, provide us written notice of your intention to terminate this Agreement. If we have not, prior to the Fee Change Effective Date, agreed (in writing) to keep the Merchant Fees unchanged, this Agreement will terminate effective from the Fee Change Effective Date.
13.4 If you do not give notice within the 20-day period referred to in that clause and you continue to use the OMNI Payment Solutions, you shall be deemed to have accepted the new Merchant Fees as administered by us.

14. DISBURSEMENT 
14.1 We will credit to your Merchant Settlement Funding Account any amounts received in respect of your Transactions.  We will use reasonable endeavors to credit such amounts to your Merchant Settlement Funding Account within 2 business days after the date we receive the funds.
14.2 Settlement shall be effected in the currency used for the payment of your goods and/or services.
14.3 Any bank fees or handling costs incurred for receiving funds are to be paid by you.
14.4 We will enable the remittance of the money collected, less any Merchant Fees, deductions or adjustments made in accordance with these Terms and Conditions.
14.5 We are entitled to withhold transfer of the Settlement Amount if we have reasonable grounds to believe that you offer or provide Illegal goods and/or services and/or services and/or are undertaking activities that may constitute money laundering, or fraud or an event occurs in respect of you which has an adverse effect on our credit risk.

15. CONFIDENTIAL INFORMATION 
15.1 Confidential Information means this Agreement and any information of, or relating to, the businesses (including without limitation any person with whom a Party has entered into a joint venture, strategic alliance or another business arrangement), systems, operations, Cardholders, properties, assets or affairs of a Party or its related bodies corporate which is or has been disclosed by the disclosing Party to the receiving Party or learned or acquired by the receiving Party under or in connection with this Agreement, whether orally, electronically or in writing, together with documentation or information that is marked as “confidential”, other than any information which was already available and/or has been requested to become available by a relevant Authority. The Parties undertake to keep strictly secret all Confidential Information and the obligation to maintain confidentiality shall apply during the Term and for three years after termination of this Agreement.
15.2 Either Party shall disclose Confidential Information only to those members of its enterprise and/or its agents who require such information for handling the business relationship and who are subject to duties to maintain confidentiality that are at least equivalent to the provisions contained herein.
The obligations in this clause do not apply to the extent disclosure is required by Law, the rules of a stock or securities exchange applying to a Party or a related body corporate of a Party, or a regulatory or government authority.

16. INTELLECTUAL PROPERTY 
16.1 Any and all texts, pictures, charts, sound files, animation files, video files and other content and files provided by us or our affiliates are our intellectual property or third parties and are protected by copyright, trademark rights, or other intellectual property rights.
16.2 You shall neither change nor configure, modify or transfer the software to third parties and shall use the same only to the extent granted under the licence hereunder. You must comply with terms and conditions of use and licence regulations notified by the author or us in respect thereof, as the case may be.
16.3 All rights to use the software plus documentation shall expire upon termination of this Agreement.

17. DATA PROTECTION/SECURITY
17.1 Each Party undertakes to provide appropriate data protection and to ensure confidentiality, availability and accuracy of data. Each Party shall, in particular, be obliged to ensure reasonable protection of its systems against unauthorised or accidental destruction, accidental loss, technical errors, falsification, theft, unlawful use, unauthorised alteration, copying, access and other unauthorised activities.
17.2 You and we are obliged to securely process and maintain privacy of data, and therefore must obtain, including but not limited to, any permits, licences, or certificates that may become necessary. The Parties mutually agree that the obligations that arise under this clause 14 shall, also, be imposed on their agents and/or affiliated companies.
17.3 Where a Party (referred to in this clause as the First Party) holds or stores any of the other Party’s data, the First Party hereby agrees to notify the other Party in writing no later than forty-eight hours after the First Party discovering that there has been (or believed to have been) any unauthorized or accidental accessed access to, or disclosure, alteration, loss, or destruction of, the data or any action that prevents the First Party from accessing the data (a Data Breach). The First Party will provide reasonable cooperation and assistance in relation to the other Party’s response to the Data Breach.

18. REPRESENTATIONS & WARRANTIES
18.1 Each Party represents, warrants and undertakes that:
(a) it has the full right, power, legal capacity and authority to perform its obligations under this Agreement;
(b) it complies and shall continue to comply with all applicable legislation; and
(c) it has and shall maintain (as applicable) for the duration hereof all necessary licences, consents and approvals for the provision of the services in accordance with this Agreement.
18.2 In the event of a breach by us of the warranties in this clause or any other provision of this Agreement which we have not remedied within 30 days of receiving notice of the breach from you, you may, without limiting any of your other rights under this Agreement, terminate this Agreement with immediate effect by providing written notice.
18.3 In the event of a breach of this Agreement (whether material or not) by you, without limiting any of our other rights under this Agreement, we may, at our sole discretion, immediately suspend the provision of OMNI Payment Solutions until the breach is remedied or, if the breach is not remedied within 30 days of you receiving notice of the breach from us, immediately terminate this Agreement on written notice to you.
18.4 You acknowledge and agree that:
(a) although we will use commercially reasonable efforts to take appropriate actions to remedy and avoid disruptions with respect to your use of OMNI Payment Solutions, we cannot guarantee that such events will not occur;
(b) we will not be responsible or liable to you in respect of any inability for you to access or use the OMNI Payment Solutions to the extent that this is caused by any unavailability or failure of, or fault in, any public telecommunications network (including any internet service) or any software, hardware, systems or schemes (including Card Schemes) not supplied by us to you; and
(c) we do not warrant that the OMNI Payment Solutions will be uninterrupted, error-free, or completely secure.
18.5 You represent and warrant that:
(a) all information provided under this Agreement is true, accurate and complete and does not impersonate any other person or use a name without authorisation to use that name; and
(b) you will not violate any applicable Law in connection with the performance of its obligations and use of the OMNI Payment Solutions.
19. LIMITATION OF LIABILITY AND INDEMNITY
19.1 Except for the warranties expressly set out in this Agreement and to the extent permitted by the Law, we expressly exclude all conditions and warranties, whether express or implied, statutory or otherwise.
19.2 The liability of each Party to the other Party for loss and damage shall be limited as follows:
(a) Subject to clauses, the maximum aggregate liability of a Party for any and all direct loss or damage arising from an act or omission under this Agreement shall be no more than the aggregate amount of the Fees actually paid to us in the 6-month period prior to the date of the relevant act or omission which led to the direct loss or damage.
(b) Subject to clauses, any liability for any consequential or indirect loss or damage, loss of data or loss of profits or revenue, howsoever caused is hereby excluded to the fullest extent permitted by Law.
(c) Each Party (referred to in this clause as the First Party) shall have no liability to the other Party for any failure to perform any of the First Party’s obligations under this Agreement if and to the extent that such failure is due to any material delay or other material default on the other Party’s part to perform its obligations under this Agreement.
The limitations and exclusions in this clause apply in respect of all causes of action that may arise under or in connection with this Agreement, whether in contract (including under an indemnity), tort or otherwise.
19.3 The limitations and exclusions in clauses will not apply to:
(a) liability for any chargebacks, fines, penalties and any amounts which are incurred in accordance with the applicable Card Scheme Rules;
(b) your liability to pay the Fees;
(c) liability arising from any Illegal conduct;
(d) liability arising from infringement of a Party’s intellectual property rights, a Party’s breach of Confidentiality clause or Data Protection/Security cause, or a Data Breach in relation to data held or stored by a Party; or
(e) your liability under the indemnities in clauses
19.4 Nothing in these Terms and Conditions (including the limitations and exclusions of liability is intended to exclude, contract out of, limit or restrict any right or remedy you may have under the Fair Trading Act 1986. For further information in relation to this legislation, you can visit: https://comcom.govt.nz/
19.5 You shall release and indemnify us from any claims, demands or losses of a Cardholder caused by your conduct in relation to the Card Acquiring Services and the Novatti Acquiring Services, including but not limited to any fines imposed as a result of an unacceptable rate of Chargebacks; or any assertion of claims under warranty, claims for damages or other claims with regard to the goods and services offered by you.
19.6 You shall release and indemnify us from liability for damage caused by you if you:
(a) operate Illegal systems, offer Illegal products and/or services or act as an agent for or solicits Illegal activities for third parties;
(b) engages in Illegal marketing activities for its goods and services; or
(c) fails to check the age of the prior to selling goods and services that are suited only for persons above the age of 18 or a different age limit.
19.7 Without limiting any other provision in this Agreement but subject to each Party (Indemnifying Party) shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) the other Party and its directors, officers, employees, agents, shareholders and related bodies corporate (collectively, Indemnified Parties) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable solicitor’s fees and costs), whether or not involving a third party claim, which arise out of or relate to:
(a) any breach of any representation or warranty of the Indemnifying Party contained in this Agreement; and
(b) any breach or violation of any term, covenant, undertaking or other obligation or duty of the Indemnifying Party under this Agreement or under applicable Law.