BACKGROUND

AirPay Financial Technologies Pty Ltd ACN 615 157 572 (AirPay, we, our or us) is licensed by Tenpay Technology Co Ltd (Tenpay) and Alipay Singapore E-Commerce Pte Ltd (Alipay) to provide merchants in Australia with access to Tenpay and Alipay’s payment services, namely WeChat Pay and Alipay (the Access Services), for the purpose of enabling merchants to receive payments via WeChat Pay and Alipay for goods and services sold.  

These terms and conditions (Terms) govern the way in which Airpay provides the Access Services to the merchant (Merchant or you).  By using, or attempting to use, the Access Services, you agree that you have read, understood and accepted these Terms, as amended from time to time.

Airpay does not have a direct relationship with customers who pay for goods or services via WeChat pay or Alipay and these Terms do not apply to those customers.   

1. Defined words and expressions and Glossary

1.1 WORDS AND EXPRESSIONS DEFINED IN THE DICTIONARY

Words and expressions in these Terms that begin with a capital letter have the meaning set out below.

Affected Party: means the party seeking to claim relief in respect of a Force Majeure Event.

AirPay Merchant Application Form: means the application form provided by AirPay to merchants wishing to be provided with the Access Services, a copy of which is included in these Terms as Schedule 2.

AirPay Settlement Account: means a bank account held in AirPay’s name established to receive AUD payments from Tenpay or Alipay for the purposes of settling Customer Transactions.

Alipay: is the payment service provided by Alipay Singapore E-Commerce Pte Ltd.

AUD: means Australian Dollars.

Australian Bank: has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth).

Business Day means a day on which all banks in Melbourne, Australia, are open for business, except for a Saturday, Sunday or public holiday.

Claim: includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment in respect of any damage, loss, cost, expense or liability however arising under these Terms, whether present, unascertained, immediate, future or contingent and whether based in contract, tort or statute.

Company Representative: means the person appointed under clause 10 as the Company Representative.

Confidential Information: means any information relating to the party disclosing the information (Discloser) or the Discloser’s business to the party receiving the information (Confidant) which is not publicly available including:

(a) information that the Discloser specifically designates as confidential;

(b) information that a third person has provided to the Discloser in circumstances which impose a duty of confidentiality on the Discloser; and

(c) information which the Confidant should reasonably regard as having a commercial value to the Discloser.

Confidential Information does not include:

(a) information that is, or becomes, generally available to the public other than as a result of the Confidant breaching these Terms or an obligation of confidence to a third person; or

(b) information that was lawfully in the Confidant’s possession before the Discloser disclosed it to the Confidant.

Customer Transaction: means a transaction entered into between the Merchant and its customer for the provision of goods or services by the Merchant to the customer which is facilitated by the Access Services.

Extension Period: means a period of one year.

Force Majeure Event: means a cause affecting the performance of a party’s obligations under these Terms arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control, including –

(a) acts of God, riots, war or armed conflict, acts of terrorism;

(b) acts of government, local government or a Regulatory Authority, including but not limited to a change of laws and regulation;

(c) fire, flood, storm or earthquake, or disaster.

A Force Majeure Event does not include:

(a) any industrial dispute relating to the party or its personnel; or

(b) any other failure in the party’s supply chain unless that failure in such supply chain is due to the member of the party’s supply chain being affected by such an act, event, omission, happening or non- happening which is beyond the reasonable control of the member of the party’s supply chain.

ICT System: means the Merchant’s Information and Communications Technology System.

Initial Term: means the period of one year beginning on the Start Date.

Insolvency Event: means in relation to the Merchant:

(a) anything which reasonably indicates that there is a significant risk that such person is or will become unable to pay its debts as and when they fall due, including each of the following:

(i) a step being taken to wind the person up;

(ii) a step being taken to have a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator appointed to the Merchant or any of its assets;

(iii) the Merchant entering into any type of Terms, composition or arrangement with, or assignment for, the benefit of all or any of its creditors; or

(iv) the Merchant ceasing or threatening to cease to carry on its main business; or

(b) the appointment of a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator to the Merchant or any of its assets.

Law: means any law of the Commonwealth of Australia, or a state or territory of the Commonwealth of Australia, or of a foreign jurisdiction, which applies to the Company, the Business or the Company’s affairs.

Merchant Fee: means the fee payable by you set out in the Airpay Merchant Application Form.

Merchant Representative: means the person appointed under clause 10 as the Merchant Representative.

Outlet: means the outlet operated by the Merchant whereby goods and services can be paid for using WeChat Pay or Alipay pursuant to the respective licence agreement.

Party: A party is a party to these Terms. A person may become a party by an assignment under these Terms or by novation.

PayDollar Gateway Payment Service: means the service which AsiaPay provides to interface between the Merchant’s website or point-of- sale system and Tenpay and Alipay’s services.

Purchase Price: means the AUD amount for which the Merchant’s goods or services are supplied to a customer for a given Customer Transaction.

Regulatory Authority: means an authority, agency, commission or similar entity having power or jurisdiction under any law or regulation of the Commonwealth of Australia, a state or territory of the Commonwealth or a foreign jurisdiction which applies to the Company, its business or affairs.

RMB: means renminbi or the Chinese yuan.

Start Date: means the date both parties sign these Terms, or such later date as they agree in writing.

Term: the period commencing on the Start Date and ending on the expiry of the Initial Term or any Extension Period or on earlier termination of these Terms.

Terms: means this document, including any schedules or annexures attached to it, including but not limited to any additional terms and conditions included in the Airpay Merchant Application Form.

USD: means United States Dollar.

WeChat Pay: is the payment service provided by Tenpay Technology Co Ltd.

1.2 INTERPRETATION

In these Terms:

• Words and expressions in these Terms defined in legislation and referenced in a note to the clause have the meaning given to them in that legislation.
• No example is exhaustive. However, an example may extend the operation of the clause in which it appears.
• Expressions such as including, such as, for example and particularly are not interpreted as limitations.
• Headings are inserted for convenience and do not affect the interpretation of these Terms.
• Each gender includes the others.
• The singular and the plural include the plural and the singular respectively.
• Words and expressions defined in one part of speech or other grammatical form have the corresponding meaning when used in others.
• No rule of construction operates to disadvantage the party responsible for preparing these Terms.
• A thing (for example, a thing in action or other right) includes a part of that thing.
• A person who is not to do something is also obliged not to agree or allow that thing to be done.
• The words other and otherwise are illustrative and do not limit the sense of the words that precede them.
• A reference to a law includes a rule of common law or equity.
• A reference to any legislation includes any statutory modification, amendment or re- enactment of that legislation and any regulations issued under that legislation.
• A reference to a document includes all amendments and supplements to that document.
• A hyperlink between these Terms and another document, other than a reference to a defined word or expression in legislation, does not make that document part of these Terms.
• A reference to another document in these Terms, for example, a protocol or policy, or to these Terms in another document, or an electronic link between them, does not make that document a part of these Terms.
• A reference to a month and a year is to a calendar month and a calendar year respectively.

2. ACCESS SERVICES

2.1 OUTLET

Subject to clause 3, Airpay agrees to provide the Merchant with the Access Services for the Merchant to operate an Outlet in accordance with these Terms.

2.2 QR CODE

Airpay will provide the Merchant with a Quick Response (QR) code for the Merchant to make available to its customers to scan when making a purchase either at the Merchant’s business premises, or on the Merchant’s website.

2.3 INTERFACE

Airpay will arrange for the PayDollar Gateway Payment Service to interface between the Merchant’s point of sale (POS) facility and Tenpay and Alipay’s services.

The Merchant agrees and acknowledges that the PayDollar Gateway Payment Service is offered by AsiaPay and that Airpay’s role is to facilitate the provision of the PayDollar Gateway Payment Service only.  The Merchant has a separate agreement with AsiaPay in relation to the provision of the PayDollar Gateway Payment Service, and must comply with the terms and conditions of that agreement. The agreement between the Merchant and AsiaPay is set out in schedule 1 of these Terms.

3. CONDITION PRECEDENT

The Merchant must provide the Company with the information requested in the Airpay Merchant Application Form and ensure that the information provided is full and accurate.  The Merchant agrees that the Merchant has read, understood and accepted the terms and conditions set out in the Airpay Merchant Application Form.

Airpay will not provide the Access Services to the Merchant until the Merchant has completed the AirPay Merchant Application Form and provided all information requested. For the avoidance of doubt, Airpay is not required to provide the Access Services to you, and may refuse to provide you with the Access Services in its sole discretion without providing any reasons for such refusal.

4. MERCHANT’S BUSINESS

4.1 DISCLOSURES

The Merchant warrants and represents that it has disclosed to Airpay all information which is, or might be expected to be, material to Airpay’s evaluation of the Merchant’s suitability to operate an Outlet.

4.2 CHANGE OF MERCHANT’S BUSINESS

The Merchant must give Airpay notice in writing of any material change to the Merchant’s business. A ‘material change’ includes, but is not limited to, the relocation of the Merchant’s business premises, a change in your service offering or a change of the Merchant’s domain names, at least 15 business days before that change is to take effect.

4.3 REVIEW OF THE MERCHANT’S BUSINESS

Airpay may, from time to time, upon written notice to the Merchant, conduct a review of the Merchant’s business and the performance of the Merchant’s obligations under these Terms.

4.4 SUSPENSION OR TERMINATION FOR MATERIAL BREACH

If Airpay reasonably determines that the Merchant has committed a material breach of the Merchant’s obligations under these Terms, Airpay may, upon written notice to the Merchant detailing the alleged breach and steps required to rectify the breach, suspend the provision of Access Services to the Merchant if the steps taken to rectify the breach are not taken within the required period. The required period will be reasonable and depend on the nature of the breach but will not be less than 10 business days. If the breach is not rectified within the required period, Airpay may terminate the provision of the Access Services.

5. ACCEPTABLE USE

5.1 CONDUCT OF THE MERCHANT’S BUSINESS

The Merchant must conduct its business in accordance with all applicable laws and these Terms.

6. INFORMATION AND COMMUNICATIONS (ICT)

6.1 NO HARMFUL VIRUSES

The Merchant is responsible for ensuring that its ICT System does not contain at any time during the Term any code which is capable of disrupting, disabling, harming or otherwise impeding the operation of the Access Services, or allowing unauthorised access to the Access Services.

These harmful viruses include any ‘back door’, ‘drop dead device’, ‘time bomb’ and ‘Trojan Horse’ viruses, as these terms are commonly understood in the Information and Communication Technology (ICT) industry.

6.2 SAFEKEEPING OF PASSWORD, PERSONAL IDENTIFICATION NUMBER (PIN) AND THE SAFETY CERTIFICATE

Airpay may provide the Merchant with a password, Personal Identification Number (PIN) and a Safety Certificate.

The Merchant is responsible for the safekeeping of the password, Personal Identification Number (PIN) and the Safety Certificate. The Merchant may disclose them to the Merchant’s employees as required in order to operate its business, but must not otherwise disclose them to any other person or permit any other person to use them.

6.3 NOTIFICATION OF UNAUTHORISED ACCESS OR SECURITY BREACH

Where the password, Personal Identification Number (PIN) or Safety Certificate has been disclosed to an unauthorised person or misused by the Merchant or its employees, the Merchant must notify Airpay immediately upon becoming aware of such disclosure or misuse in accordance with clause 21 of these Terms.

The Merchant must notify Airpay of any other breach of security that may have an impact on Airpay immediately upon becoming aware of such breach in accordance with clause 21 of these Terms.

The Merchant is solely liable for all losses in respect of the unauthorised disclosure, misuse or breach up until the time of notification to Airpay, including any loss suffered by Airpay.  

For the avoidance of doubt, this clause 6.3 does not make Airpay liable for any such loss after notification is received.

6.4 SUSPENSION AT REQUEST OF TENPAY OR ALIPAY

Airpay may be required to suspend the provision of Access Services to the Merchant at the request of Tenpay or Alipay, or otherwise modify the way in which the Merchant is able to access or use the Access Services. If Airpay receives such a request, it will provide written notice to the Merchant of the suspension and/ or modification prior to imposing the suspension and/or modification. Upon suspension, Airpay will pay all monies to which the Merchant is entitled to receive under these Terms up until the date of suspension to the Merchant’s nominated bank account.

Upon modification, Airpay may pay, in its sole discretion and depending on the extent of such modification, pay all monies owing, or a pro rata amount, to which the Merchant is entitled to receive under these Terms up until the date of modification to the Merchant’s nominated bank account.

7. TRANSACTIONS

7.1 MERCHANTS TO PROVIDE REGISTERED GOODS AND SERVICES ONLY

Prior to the Merchant operating an Outlet, the Merchant must provide Airpay with a proposed list of goods and services for which the Merchant wishes to receive payment via WeChat pay and Alipay.

Airpay will submit the proposed list of goods and services to Tenpay and Alipay for approval and may, in its absolute discretion or at Tenpay or Alipay’s request, decline to allow some or all of the Merchant’s goods and services to be purchased using the Access Services.

The Merchant must not allow customers to pay for goods or services via WeChat pay or Alipay, and must not otherwise receive payments for goods or services via the Access Services, unless the goods or services have been approved by Airpay.

Airpay may, in its absolute discretion or at Tenpay or Alipay’s request, amend the approved list of goods and services that may be purchased using the Access Services from time to time upon written notice to the Merchant.  

7.2 MERCHANT’S TRADING LIMIT

The Merchant acknowledges that a trading limit may apply to all transactions facilitated by the Access Services. Airpay will promptly notify the Merchant where such trading limits applies.

7.3 NO SPLIT TRANSACTIONS

The Merchant must not split a transaction into smaller transactions to avoid compliance with the Merchant’s trading limit, or otherwise take steps to avoid the trading limits. Any such avoidance will be considered a material breach of these Terms.

7.4 ADDITIONAL FEES

The Merchant must not charge a surcharge (unless permitted by law), or provide a reduced level of service, to customers for making payments via WeChat pay or Alipay.

7.5 TRANSACTION RECORDS

The Merchant must keep complete records of all transactions facilitated by the Access Services for a minimum period of seven years on and from the date of each transaction (Transaction Records).  The Merchant must, upon Airpay’s written request, provide Airpay with all Transaction Records in its possession within 3 business days of receiving Airpay’s request.

7.6 TENPAY’S USE OF THE TRANSACTION RECORDS

The Merchant acknowledges that Airpay may provide the Transaction Records to Tenpay or Alipay for the purpose of developing and improving Tenpay or Alipay’s services.  The Transaction Records will be collected and held in accordance with the law (including privacy laws).

8. BRANDING

8.1 DISPLAY OF THE AIRPAY LOGO AND TENPAY LOGO

The Merchant must display the ‘WeChat Pay and Alipay Accepted’ logo along with Airpay’s logo in a prominent position on the Merchant’s business premises.

8.2 OTHER USES OF THE LOGOS

If the Merchant wishes to use Tenpay, Alipay and/or Airpay’s logo(s) in marketing, promotional or advertising materials in a manner other than what is set out under clause 8.1:

1. the Merchant must seek Airpay’s prior written approval; and
2. must provide a copy of the marketing, promotional or advertising materials it proposes to use to Airpay for approval.    

9. PAYMENTS

9.1 MERCHANT FEES*

The Merchant will be charged the Merchant Fees set out in the AirPay Merchant Application Form.

The Merchant acknowledges that Tenpay and Alipay are entitled to a proportion of the Merchant Fees and that Tenpay and Alipay will pay the Purchase Price for each Customer Transaction less the fees to which Tenpay and Alipay are entitled into the Airpay Settlement Account.

Tenpay’s and Alipay’s fees may be rounded up or down to two decimal places to compensate Tenpay and Alipay for any additional charges they are obliged to pay to the Peoples Bank of China or other regulatory authorities. Where this causes an adjustment to the Merchant Merchant Fees set out in the Airpay Merchant Application Form, Airpay will promptly notify the Merchant.

9.2 PAYMENTS INTO MERCHANT’S NOMINATED BANK ACCOUNT

For each Customer Transaction, Airpay will transfer the amount equal to the Purchase Price less the Merchant Fees to the Merchant’s nominated bank account within 2-3 business days of receiving funds for the relevant Customer Transaction in the Airpay Settlement Account.   

Upon receiving confirmation that the Merchant has been approved to operate an Outlet, the Merchant agrees to promptly provide Airpay with the details of its Australian bank account for the purposes of this clause.

The Merchant must notify Airpay promptly if it wishes to change its bank account details.  

9.3 MINIMUM REMITTANCES

Where the amount that Tenpay and Alipay are to transfer into the AirPay Settlement Account under clause 9.1 in respect of all Merchants receiving the Access Services is less than USD 5,000, or its equivalent in Australian dollars, then Tenpay and Alipay may, at their discretion, hold over the transfer into the AirPay Settlement Account until the total amount to be transferred is at least USD 5,000, or the equivalent in Australian dollars.  The Merchant therefore acknowledges that there may be a delay in Airpay receiving funds from Tenpay and Alipay, resulting in a delay to the Merchant receiving funds relating to Customer Transactions from Airpay under these Terms.  

9.4 TRANSACTION DATA

The Merchant may request Airpay to, at no charge to the Merchant, download data in respect of any Customer Transaction within six months from the date of the Customer Transaction.

9.5 REFUNDS

Where the Merchant deems it necessary or where a refund is requested by a customer in respect of a Customer Transaction, the Merchant may request Airpay to arrange for a refund under Airpay’s refund policy, which is published on its website.

The Merchant acknowledges that the refund request will be sent to Tenpay or Alipay, who will only process the refund if or when Tenpay or Alipay possess sufficient funds to do so by reference to funds owing to Airpay in respect of the Merchant which are yet to be transferred into the Airpay Settlement Account, in accordance with the terms between the Merchant and Tenpay and/ or Alipay.   

Where Tenpay or Alipay is required to pay any bank fees in respect of the Merchant’s request to process a refund, Tenpay and Alipay may pay the fee in advance and deduct an amount equivalent to that fee from future funds owing to Airpay in respect of the Merchant.  If this occurs, Airpay will deduct an amount equivalent to from future amounts payable by the Merchant to Airpay under these Terms.

The Merchant will not otherwise be charged any additional fees for requesting a refund to be processed.

10. REPRESENTATIVES

Each party must appoint a representative, who will have the authority to act on behalf of the appointing party on all matters regarding these Terms (Representative).  The Representatives are to be called Airpay’s Representative and the Merchant’s Representative respectively.

Each party must provide written notice to the other party of the name and contact details of its Representative.  Either party may, by further written notice to the other party, revoke or amend the authority of its Representative or appoint a new Representative.

The Representative must be sufficiently senior within the organisation of the appointing party and must have sufficient authority to ensure full cooperation in relation to the operation and management of these Terms, including the authority to resolve any disputes which may arise under these Terms.

11. DISPUTE RESOLUTION

11.1 NOTICE OF DISPUTE

Where there is a dispute between the parties arising from these Terms, then either party may give a notice of dispute to the other (Notice of Dispute).

A Notice of Dispute must be in writing, set out the particulars of the dispute and the position that the party believes to be correct. The notice may include claims relating to Merchant Fees and claims in tort, under statute, for restitution based on unjust enrichment or for rectification or frustration.

Both parties must continue performing their obligations under these Terms despite a Notice of Dispute being given under this clause.

11.2 EXECUTIVE NEGOTIATION

Airpay’s Representative and the Merchant’s Representative will meet within ten business days of the date on which a Notice of Dispute is given under clause 11.1.  

If the Representatives fail to resolve the dispute by negotiation, the parties must appoint a Mediator, an Expert or an Arbitrator as an alternative means of resolving the dispute.

11.3 MEDIATION

The parties may agree to mediate the dispute according to the Mediation and Conciliation Rules of the Institute of Arbitrators & Mediators Australia. If they do so, they will request the President of the Institute of Arbitrators & Mediators Victorian Chapter to appoint a Mediator.

All matters raised in the course of any mediation, including evidence of anything said, documents presented to or admissions made, are confidential to the parties and the Mediator, and are not admissible in any subsequent proceedings.

11.4 COSTS

The parties will pay the professional fees of the Mediator, Expert or Arbitrator, and the nomination fee payable to the Institute of Arbitrators & Mediators Australia, in equal shares, unless they agree otherwise.

Subject to that, each party will be responsible for their own costs.

11.5 SUMMARY OR URGENT RELIEF

Nothing in this clause 11 prejudices the right of a party to institute proceedings to enforce payment of fees or other monies that are due and payable to it under these Terms or to seek urgent injunctive or declaratory relief.

12. NON-DISCLOSURE AND USE OF INFORMATION

12.1 CONFIDENTIAL INFORMATION

A party (Discloser) may disclose Confidential Information relating to that party or its business to the other party (Confidant).

12.2 USE OF CONFIDENTIAL INFORMATION

The Confidant may use the Confidential Information to comply with obligations or exercise rights under these Terms.

The Confidant must not permit the Confidential Information to be disclosed to a third person in any form whatsoever, without the Discloser’s consent in writing.

12.3 DISCLOSURE TO ADVISORS AND OTHERS

The Confidant may disclose Confidential Information to professional practitioners advising on Terms-related issues, or the Discloser’s employees or consultants on a need-to-know basis.

12.4 DISCLOSURE TO A REGULATORY AUTHORITY OR A STOCK EXCHANGE

A Confidant may disclose Confidential Information to a Regulatory Authority, or to a recognised stock exchange, to the extent required by law or the rules of that exchange, or to comply with an order of a court of competent jurisdiction.

To the extent permitted by law, where the Confidant proposes to disclose Confidential Information in these circumstances they must give the Discloser notice of that intention.

12.5 REMEDIES

The Discloser may seek relief, including a claim for damages or an account of profits, or an interlocutory or final injunction, in respect of a breach or a threatened breach of the Confidant’s undertakings in regard to Confidential Information.

The Discloser may seek an indemnity from the Confidant for any loss or harm in connection with any breach or enforcement of its obligations under this clause 12 for any breach of the undertakings.

12.6 NOTICE TO THE DISCLOSER

The Confidant must immediately notify the Discloser of any suspected or actual unauthorised use, copying or disclosure of Confidential Information by the Confidant or the Confidant’s agents or employees.

The Confidant must provide any assistance that the Discloser reasonably requests in relation to any proceedings that the Discloser may take against any person for unauthorised use, copying or disclosure of Confidential Information.

12.7 SURVIVAL

Clause 12 survives the termination of these Terms.

13. GENERAL OBLIGATIONS OF THE MERCHANT

The Merchant will:

(a) at all times allocate sufficient and appropriately skilled resources to use the Access Services in accordance with these Terms;

(b) obtain, and maintain throughout the duration of the Term, all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to use the Access Services; and

(c) cooperate with the Company and provide the Company with any necessary information, advice and assistance which the Company may reasonably require in order to provide the Access Services and perform its obligations under these Terms.

14. COMPANY’S REPRESENTATIONS AND WARRANTIES

14.1 REPRESENTATIONS AND WARRANTIES

The Company represents and warrants that the following statements are true, complete and accurate in all material respects on the date on which these Terms were created and that the Merchant is entitled to rely on the following statements when accepting and agreeing to these Terms:

• The Company is duly incorporated and exists under the laws of Australia.
• The Company is in good standing with the Australian Securities and Investments Commission in respect of filing annual reports.
• The Company is not an externally administered body corporate, as defined in section 9 of the Corporations Act 2001 (Cth).
• The Company has the corporate power and capacity to carry on its business activities.
• The Company has the corporate power and capacity to execute, deliver and perform its obligations under these Terms.
• The Company has duly authorised the execution and delivery of these Terms and the performance of its obligations under these Terms.
• These Terms create valid, legal and binding obligations and is enforceable against the Company.
• The Company enters into these Terms in its own right and not as the trustee, agent, nominee, attorney or representative of another person.

14.2 SEPARATE STATEMENTS

Each statement is made separately from the others. No statement may be limited by reference to another statement.

14.3 REDUCTION OF LIABILITY

The liability of Airpay in respect of all Claims under these Terms is reduced to the extent that any act or omission of the Payment Services Provider contributed to the loss or damage.

15. MERCHANT’S REPRESENTATION AND WARRANTIES

15.1 REPRESENTATIONS AND WARRANTIES

The Merchant represents and warrants that the following statements are true, complete and accurate in all material respects on the date on which these Terms were created and that the Company is entitled to rely on the following statements when accepting and agreeing to these Terms:

• The Merchant is duly incorporated and exists under the laws of Australia.
• The Merchant is in good standing with the Australian Securities and Investments Commission in respect of filing annual reports.
• The Merchant is not an externally administered body corporate, as defined in section 9 of the Corporations Act 2001 (Cth).
• The Merchant has the corporate power and capacity to carry on its business activities.
• The Merchant has the corporate power and capacity to execute, deliver and perform its obligations under these Terms.
• The Merchant has duly authorised the execution and delivery of these Terms and the performance of its obligations under these Terms.
• These Terms create valid, legal and binding obligations and is enforceable against the Merchant.
• The Merchant enters into these Terms in its own right and not as the trustee, agent, nominee, attorney or representative of another person.

15.2 REDUCTION OF LIABILITY

The liability of the Merchant in respect of all Claims under these Terms is reduced to the extent that any act or omission of the Company, or the Company’s agents or employees, contributed to the loss or damage relating to the Claim.

16. FORCE MAJEURE

16.1 RELIEF

A party who is prevented from performing an obligation under the Terms by a Force Majeure Event (Affected Party) is excused to the extent that the non-performance is due to that event.

No party may claim relief where its failure to perform an obligation under these Terms results from a third party’s failure to perform an obligation under a contract with that party, unless that failure is itself attributable to a Force Majeure Event.

16.2 NOTICE OF FORCE MAJEURE EVENT

The Affected Party must, as soon as reasonably practicable and in any event within 2 business days, give the other party written notice of the Force Majeure Event setting out details of the event together with evidence of its effect on the Affected Party’s obligations and any action proposed to mitigate its effect as soon as practicable.

The parties must consult with each other in good faith and use all reasonable endeavours to agree on appropriate terms to mitigate the effects of the Force Majeure Event on the performance of these Terms. Where Airpay is the Affected Party, it will take all steps in accordance with good industry practice to overcome or minimise the consequences of the Force Majeure Event.

16.3 NOTICE THAT FORCE MAJEURE EVENT HAS CEASED

Where the Force Majeure Event ceases, or no longer prevents the Affected Party from performing its obligations under these Terms, the Affected Party must give written notice to the other party within 1 business day of the Force Majeure Event ceasing, or ceasing to have an impact. The parties will then continue performing their obligations under these Terms, unless they agree otherwise.

17. LIMITATIONS ON LIABILITY

17.1 LIMITATION OF LIABILITY

To the extent permitted by law, the respective liabilities of Airpay and the Merchant to each other in respect of all Claims under these Terms is capped at USD 5000, or its equivalent in Australian dollars.

17.2 EXCLUSION OF LIABILITY

To the extent permitted by law, no party is liable to the other under these Terms for any indirect, special or consequential loss or damages, or any loss of profits or any loss of turnover, business opportunities or goodwill, whether direct or indirect.

18. INDEMNITIES

18.1 INDEMNITIES

Each party (the First Party) will indemnify the other party from and against any:

(a) liability incurred under any Claim made by a third party against the other party;

(b) loss or expense incurred by the other party in dealing with any Claim made by a third party including legal costs and expenses on a solicitor and own-client basis,

arising from –

(a) any act, omission or negligence by the First party, or its agents or employees, in connection with these Terms, or

(b) any breach by the First Party of any obligations or warranties under these Terms.

18.2 THE INDEMNITY CONTINUES AFTER TERMINATION

The indemnities under clause 18.1 are continuing obligations independent of the other obligations of the parties under these Terms and survive termination of these Terms.

It is not necessary for a party to incur an expense or make a payment before enforcing the right of indemnity under this clause 18.

19. TERM

These Terms commence operation on the Start Date and terminate upon the conclusion of the Initial Term, unless terminated at an earlier date in accordance with these Terms, or by operation of law.

The parties may agree to extend the Term for one or more Extension Periods.  These Terms will continue to apply throughout any Extension Periods.

20. TERMINATION RIGHTS

20.1 TERMINATION

Airpay may, by written notice to the Merchant, terminate these Terms upon the occurrence of any one or more of the following events:  

(a) the Merchant continues to be in breach (material or not) of these Terms for a period of not less than fourteen days after receiving written notice from Airpay that the Merchant is in breach of these Terms;

(b) the Merchant commits a material breach of these Terms and the material breach is not rectified within the required period as set out under clause 4.4, or if the material breach is, in the Company’s reasonable opinion, not rectifiable;

(c) Airpay is required to terminate the provision of Access Services to the Merchant at the request of Tenpay and/or Alipay, or if Tenpay and/or Alipay revoke its licence to Airpay for the provision of payment services to merchants or the Merchant; or

(d) an Insolvency Event.

20.2 CUMULATIVE RIGHTS

The rights of Airpay (to terminate or otherwise) under this clause 20 are in addition (and without prejudice) to any other right or remedy which the Company may have to make a claim in respect of loss or damage suffered by Airpay which is caused by the Merchant’s acts, omissions or negligence.

20.3 TERMINATION FOR CONVENIENCE

Either party may terminate these Terms prior to the expiry of the Term or Extended Period (if applicable), by giving 30 days’ written notice to the other party.  

This right of termination is in addition to any other rights of either party under these Terms and its exercise will be without prejudice to any claim, remedy or right of action that either party may have in relation to these Terms.

21. COMMUNICATIONS AND NOTICE

21.1 FORM

A party who gives, sends or serves a notice or other communication (each a Communication) under these Terms may do so by electronic communication, post or hand delivery.

Note: The expression electronic communication is defined in section 3 of the Electronic Transactions (Victoria) Act 2000.

21.2 ADDRESS FOR GIVING, SENDING OR SERVING COMMUNICATIONS

Each party agrees to provide the other party with a list of designated contact persons and their electronic and physical addresses for the purpose of giving, sending or serving Communications under these Terms.

Any party may amend the list of designated contact persons, or any of their electronic or physical addresses, at any time by giving written notice to the other party.

21.3 SIGNING COMMUNICATIONS

A party who is an individual may sign a communication on their own account.

Where a party is a body corporate, a director or secretary of that party may sign a communication on the party’s behalf.  Alternatively, either party may appoint a solicitor, attorney or an agent to sign a communication on its behalf.

21.4 ELECTRONIC COMMUNICATIONS

An individual who signs an electronic communication must set out their name and, where appropriate, the capacity in which the electronic communication has been signed.

An electronic communication has been received when it is capable of being retrieved at the recipient party’s electronic address.

An electronic communication received after 5pm on any day is taken to have been received on the next following business day.

21.5 HAND DELIVERED AND POSTED COMMUNICATIONS

An individual who signs a communication which to be given, sent or served by post or hand delivery must sign that notice in manuscript and, where appropriate, set out the capacity in which the communication has been signed.

A party giving, sending or serving a communication by post must use a properly addressed envelope. The communication is taken to have been received on the date that communication would be delivered in the ordinary course of post.

A communication left at the recipient party’s physical address is taken to have been received.

22. GENERAL

22.1 AMENDMENTS

Unless stated otherwise in these Terms, Airpay may vary these Terms by providing 10 Business Days advance notice via its website, or by any other means, at any time.  The Merchant will be taken to have accepted any changes to the Terms by continuing to use the Access Services to operate an Outlet after that notice is provided.

The Merchant acknowledges that Airpay may vary these Terms immediately without advance notice to protect the security or integrity of the Access Services, to comply with Law or regulation or to manage a technical or system fault or error.

22.2 APPROVALS, CONSENTS AND WAIVERS

A party giving or withholding an approval, consent or waiver relating to a right, power or remedy under these Terms must do so in writing. A party may impose reasonable conditions on its approval, consent or waiver. An approval, consent or waiver is only effective in the instance and for the purpose for which it is given.

A party may exercise a right, power or remedy separately or concurrently with any other right, power or remedy available to that party under these Terms or by law. No party waives a right, power or remedy if it fails to exercise, or delays in exercising that right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.

No party may rely on an approval, consent or waiver given when it has failed to disclose all relevant material facts and circumstances within its knowledge before seeking that approval, consent or waiver.

22.3 ASSIGNMENT AND NOVATION

No party may assign these Terms, or any right under it, without the prior written consent of the other party. No party is obliged to agree or consent to a novation of these Terms.

22.5 COSTS

Each party will pay their own costs in respect of these Terms and any related document, unless these Terms expressly provide otherwise or the parties otherwise agree in writing.

22.6 COUNTERPARTS

The parties may execute these Terms in counterparts. These Terms take effect when the parties exchange separately executed counterparts. The parties may deliver counterparts to each other as portable digital files (PDFs).

22.7 CUMULATIVE RIGHTS

The rights of each party under these Terms are cumulative with their rights conferred by law.

22.8 ENTIRE TERMS

No party may rely on any previous terms, or anything that another party, or director, officer, agent or employee of another party, says or does before these Terms are executed.

22.9 SEVERANCE

Each provision of these Terms may be severed from the whole. A provision that is, or becomes, illegal, unenforceable or invalid in any jurisdiction is taken to have been severed from these Terms in that jurisdiction. However, this does not affect any other provision of these Terms or the legality, validity and enforceability of the severed provision in any other jurisdiction.

22.10 SUCCESSION

These Terms binds a successor in title of each party, including a party who taken by an assignment under these Terms or by novation and continues for the benefit of the successor.

22.11 MERGER

The parties’ rights and obligations under these Terms do not merge when any transaction these Terms contemplates is completed.

22.12 FURTHER ACTION

Each party will do everything reasonably necessary to give full effect to these Terms and any transactions it contemplates promptly and at their own expense. This may include, for example, obtaining approvals, consent or waivers, completing, executing or delivering any necessary documents and providing any necessary information to the other party.

22.13 GOVERNING LAW AND JURISDICTION

These terms are governed by the law in force in Victoria, Australia. The parties submit to the non- exclusive jurisdiction of the courts of that state.

22.14 LEGAL ADVICE

Each party has either received legal advice about these Terms or have had the opportunity to do so.

22.15 NO AUTHORITY TO ACT

No party may act, assume any obligation, negotiate or enter into a binding agreement on behalf of another party (for example, by pledging their credit), unless these Terms provide otherwise.