Payxcrypto © 2022. All Rights Reserved.
Novatti Acquiring Services (AUS) Pty Ltd (“Novatti Acquiring” or “Service Provider”) is a payment transaction processing service using a payment gateway to provide Merchants with a solution to accept Card payments and Cryptocurrency payments in accordance with the terms of this Agreement.
This Agreement sets forth the terms and conditions that apply to your access and use of the Card Acquiring Services (with SR Global Solutions as the acquirer and provider of those services) and Novatti Acquiring for the processing of the transactions.
The Service Provider and its subsidiaries and/or affiliates are collectively referred to herein as “we,” “our,” or “us”.
This is a legal agreement between us and the entity or person doing business in their individual capacity (“you,” “your,” “user” or “Merchant”) who registered for the provision of the Novatti Acquiring Services through the completion and submission of the Novatti Acquiring Merchant Application Form. These Terms describe the terms and conditions that apply to your use of the Service.
By accessing or using the Service you agree to these Terms.
We may amend these Terms at any time by posting a revised version on our website or by informing you directly via email to your designated email account. The revised version will be effective at the time we post or send it to you, whichever occurs first. In addition, if the revised version includes a substantial change, we will provide you with 30 Days’ prior notice of that substantial change.
Novatti Acquiring Services (AUS) Pty Ltd is located at Level 3, 461 Bourke Street, Melbourne, VIC, 3000, Australia.
NOW, THEREFORE for good and valuable consideration as hereinafter agreed, and respecting the covenants, promises and mutual undertakings hereinafter written, the Parties agree as follows:
The following terms when used in this Agreement or any other document referred to herein, shall have the following meaning:
API means Application Program Interface.
Bank Guarantee means a bank guarantee or bank guarantees issued on behalf of the Merchant to us in accordance with clause 9,
Card means a card that has been designated by the issuer as a Visa or MasterCard card or a card issued by any other Card Scheme, including digital versions of such cards placed in a digital wallet or other platform.
Card Acquiring Services means the activities undertaken by SR Global Solutions to authorise, process and settle Card transactions undertaken by Cardholders with Merchants, including all other activities necessary for the provision of online Card acquiring services, but excluding the Novatti Acquiring Services.
Card Schemes means Visa, MasterCard and any other card scheme agreed by all parties for the purposes of the Card Acquiring Services for the purposes of the Novatti Acquiring Services.
Card Scheme Rules means the rules and regulations which regulate participants in the Card Schemes.
Cardholder means the person in whose name the Card has been issued.
Chargeback means the reversal of a transaction.
Confidential Information has the meaning given to that term in clause 14.
Cryptocurrency Acquiring means the activities undertaken by Novatti to enable the Merchant to receive payments through various cryptocurrency exchanges.
Illegal means in contravention of any Law.
Fees means the fees payable by the Merchant to Novatti Acquiring in accordance with clause 11.
Law means a statute, regulation, ordinance or other law in force in Australia and any other jurisdiction in which the Merchant offers to sell goods or services on the Website.
Merchant’s Settlement Funding Account means the account in which funds are held on behalf of the Merchant.
Novatti Acquiring Services means a payment transaction processing service, including Card Acquiring Services and Cryptocurrency Acquiring.
Party/Parties means the party/parties of this contract, Novatti Acquiring, the Merchant or both together (plural).
Payment Card Industry Data Security Standard means the standards published by the PCI Security Standards Council or such other minimum standards for enhancing payment and account security required by us, or any Card Scheme, from time to time.
Portal means a gateway to a management system the Merchants can use to perform a number of activities related to the Novatti Acquiring Services.
Settlement Amount means, in relation to a transaction, the transaction amount less the Fees.
Security Deposit means an amount to be held by us as security for any amounts payable by the Merchant under these Agreement, as determined in accordance with clause 9.
SR Global Solutions means SR Global Solutions Pty Ltd (ABN 13 132 951 172) trading as Merchant Warrior.
SR Global Terms and Conditions means the terms and conditions for merchants under which SR Global Solutions operate as published online here (current online version): www.merchantwarrior.com/merchantAgreement
Term means the period from the date this Agreement commences to the date it is terminated.
Transaction means a payment transaction by Card between a Cardholder and the Merchant using the Novatti Acquiring Services.
Website means the Merchant’s website(s) on the internet, through which the Merchant offers its products and/or services for sale and includes any mobile or tablet application through which the Merchant’s website may be accessed and products/services may be purchased by Cardholders.
2.1 The Service Provider provides the Novatti Acquiring Services, as a payment solution platform that enables Merchants to receive payment for goods and/or services purchased in Australia.
2.2 The Merchant agrees to offer and accept the Novatti Acquiring Services as an option for Card payment for its goods and/or services provided through the Website and other delivery channels, subject to these terms and conditions.
2.3 The Service Provider may choose not to provide the Services in its sole discretion.
3. TERM AND TERMINATION
3.1 The Term of this Agreement shall commence upon the acceptance of these Terms and Conditions by the Merchant and shall continue until it is terminated in accordance with its terms.
3.2 The 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 (30) days written notice to the other Party, with termination to have effect at the end of the calendar month in which the notice period ends.
3.3 The Service Provider shall be entitled to terminate this Agreement with immediate effect if it has reason to believe that the Merchant conducts, engages in, facilitates, supports or promotes activities outside the scope of their declared business activities.
3.4 The Service Provider shall be entitled to terminate this agreement with immediate effect upon notice to the Merchant in the Service Provider’s sole discretion.
4. MERCHANT OBLIGATIONS
4.1 The Merchant may accept payment from Cardholders using the Novatti Acquiring Services only in respect of the products/services that the Merchant offers for purchase.
4.2. The Merchant may accept Novatti Acquiring Services as a means of payment on the Website. All URLs at which Novatti Acquiring Services will be accepted as a means of payment are set out in the Application Form. Inclusion of Novatti Acquiring Services as a means of payment at additional URLs of the Merchant shall be notified to the Service Provider by providing an updated Application Form.
4.3 The Merchant undertakes to comply with all Laws relating to its 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 the Service Provider.
4.4 The Merchant undertakes 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.
4.5 The Merchant undertakes not to offer any Illegal products or services on any Websites on which Novatti Acquiring Services are accepted as means of payment.
4.6 The Merchant undertakes not to allow or facilitate any prohibited activities as listed in Annex A (below).
4.7 The Merchant confirms that it holds all rights and licences that are necessary for providing the services offered on the Websites concerned and will hold such rights and licences for the term of the Agreement.
4.8 The Merchant agrees to immediately notify the Service Provider of any suspicious, fraudulent or unauthorised transactions.
4.9 The Merchant agrees to inform the Service Provider as soon as practicable upon any changes to the corporate structure of the Merchant or any material change to the operations of the Merchant.
4.10 The Merchant shall be responsible for resolving all disputes with Cardholders and has sole responsibility for dealing with questions, complaints or enquiries raised by a Cardholder involving a transaction using the Novatti Acquiring Services.
4.11 The Merchant must keep its login information to the Portal, including the access name and password, secret and secure. The Merchant must also take all reasonable steps to keep its system secure and free from any unauthorised access or computer virus.
4.12 The Merchant shall in addition at all times comply with the Service Provider’s policies (including any policies or procedures relating to fraud prevention), as amended from time to time and shall give Novatti Acquiring Services audit rights during office hours on business days in relation to relevant consumer data relating to KYC information on individual Cardholders specifically for regulatory, fraud and/or AML purposes.
4.13 When using the relevant service provided by the Service Provider under the Agreement, the Merchant shall ensure that its procedures for handling orders and the delivery or provision of goods and/or services offered by the Merchant are compatible with the settlement process of the Novatti Acquiring Service.
4.14 The Merchant 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.
4.15 The Merchant shall not employ any reverse engineering method to decipher all systems and procedures including but not limited to, software systems and procedures of the Service Provider, 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 the software system of the Service Provider.
4.16 The Merchant agrees to adhere to the SR Global Solutions Terms and Conditions and all applicable Card Scheme Rules (including rules relating to Cardholder data) and relevant Law at all times.
4.17 The Merchant must ensure that their services and systems at all times comply with the Payment Card Industry Data Security Standards.
4.18 The Merchant must provide on request from the Service Provider, such additional information necessary for the Service Provider to make an assessment of the Merchant’s credit risk exposure.
4.19 The Merchant must provide the Service Provider with all information and assistance reasonably required to perform the Service Provider 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 Rules (AML/CTF obligations).
5. SERVICE PROVIDER’S OBLIGATIONS
5.1 The Service Provider shall be responsible for the establishment, operation and management of the Novatti Acquiring Service and the Portal.
5.2 The Service Provider has the right to obtain trading information such as orders received by the Merchant, financial statements, logistics and delivery information, amount of transaction, etc. The Service Provider shall retain such information for 7 years or more. If the Service Provider requests such information, the Merchant shall provide such information within three (3) calendar days upon request.
5.3 The Service Provider shall be responsible for receiving and dealing with complaints arising from defects of the Novatti Acquiring Service or relating to disputes pertaining to settlements. The Merchant acknowledges and agrees that, the Service Provider, as a payment service provider, only provides the relevant payment service under the Agreement, and shall not be held liable for any other dispute between the Merchant and any other party relating to payments conducting by utilising the Novatti Acquiring Service, including but not limited to disputes pertaining to the quality and/or quantity of the Merchant’s products and/or services, the settlement amount and the delay in delivery.
5.4 The Service Provider shall provide the Merchant with all the required information and guidance relating to interface technology, files, etc. necessary for the performance of the Agreement.
6.1 Each Party authorises the other Party during the Term to use its trademarks only for the purposes expressly contemplated in this Agreement and for no other purpose.
6.2 The rights granted under this clause are non-exclusive and non-transferable.
6.3 Each Party agrees not to combine or use the other Party’s trade mark in combination with any other name, mark or trade mark, and not to modify, alter or change the other Party’s trademark in any way or to do anything that would in any way infringe, impeach or lessen the value of validity of the other party’s trade mark or the goodwill associated with that trade mark.
7. PROCESSING OF PAYMENTS
7.1 The Service Provider will process the transactions and provide transaction management services in accordance with this Agreement.
7.2 The Service Provider will provide the Merchant with access to the Portal, where the Merchant can track and manage its transactions. The Service Provider accepts no responsibility for any inability to use the Portal that arises from an issue between the Merchant and its network or communication provider.
7.3 The Service Provider shall have no liability to the Merchant for any failure to perform any of its obligations under this agreement if and to the extent that such failure is due to any material delay or other material default on the part of the Merchant to perform its obligations under this agreement.
7.4 In case of a Merchant’s Cardholder/ customer rightfully requesting a Chargeback or claiming payment that was incorrectly executed due to an error, the Merchant can access the refund management system in the Portal and order a Chargeback of the funds to the Cardholder. If a Merchant doesn’t have sufficient unbalanced funds in the Merchant Settlement Funding Account to support the Chargeback, the funds will be taken out of the Merchant’s Settlement Funding Account.
8. CRYPTOCURRENCY ACQUIRING
8.1 The Merchant may choose to receive Cryptocurrency Acquiring from the Service Provider.
8.2 Cryptocurrency Acquiring involves Novatti making a request for payment from a cryptocurrency exchange which a Cardholder holds cryptocurrency with. The cryptocurrency exchange then converts the required amount into AUD and transfers it to Novatti who in turn provide it to the Merchant.
8.3 The Service Provider’s role in relation to Cryptocurrency Acquiring is limited to Novatti making a payment request of a cryptocurrency exchange and passing on the amount received from the cryptocurrency exchange to the Merchant. Novatti is a payment facilitator and Cryptocurrency Acquiring enables you to accept cryptocurrency from customers for the payment for goods and services. Novatti does not bear any responsibility for the conduct of the cryptocurrency exchanges.
8.4 Irrespective of anything contained in clause 9, all refunds for Transactions in relation to Cryptocurrency Acquiring will be paid by Novatti to the relevant cryptocurrency exchange in FIAT money.
8.5 Novatti does not provide any guarantee of availability of Cryptocurrency Acquiring nor of what cryptocurrency exchanges are approved for Cryptocurrency Acquiring.
9. REFUNDS AND CHARGEBACKS
9.1 The Merchant shall give refunds for Transactions only by means of credit to the same account used for the original Transaction and not in card or cheque or cash.
9.2 The Merchant can request refunds only up to the amount available in their Merchant’s Account balance.
9.3 The Merchant agrees to follow all policies and procedures provided by the Service Provider 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 per month, the Service Provider will have the right to terminate this Agreement in line with Clause 3.3 (immediate termination).
9.4 Should at any time the total of the amounts owed by the Merchant to SR Global Solutions or the Service Provider under these Terms and Conditions (including but not limited to amounts paid or required to be paid by SR Global Solutions or the Service Provider for Transactions that are reversed as Chargebacks or otherwise refunded) exceed the settlement amounts held by SR Global Solutions, the Merchant will pay the amount of that excess to the Service Provider promptly on demand.
9.5 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.
9.6 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 the Merchant fails 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 the Merchant, 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 the Merchant.
9.7 The Service Provider may also withhold Transaction proceeds for a period of up to 7 days if it has 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.
9.8 The Merchant agrees 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 Scheme Rules and any other amounts payable by the Merchant to Us under this Agreement; and
(ii)in circumstances where an amount has been deducted from the Security Deposit by us in accordance with the Terms, the Merchant will contribute additional funds to the security deposit account equal to the top-up amount within the timeframe specified by us.
9.9 The Merchant grants 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 the Merchant’s obligations under this Agreement.
9.10 We must refund to the Merchant 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.
9.11 You must provide us with a direct debit authority over your nominated bank account. The Merchant agrees that we are authorised to use this direct debit authority in respect of any amounts owing to us under this Agreement.
10. MERCHANT SETTLEMENT FUNDING ACCOUNT
10.1 We will maintain a Merchant Settlement Funding Account 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.
10.2 We will provide you with access to information about your Transactions and the Merchant Settlement Funding Account, 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.
10.3 We reserve the right to withhold payment to the Merchant Settlement Funding Account of any amount for such period as we consider necessary 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.
11. MERCHANT SERVICE CHARGES
11.1 All fees associated with Novatti Acquiring providing Novatti Acquiring Services to the Merchant are going to be detailed within a separate document provided to the Merchant prior or during the on-boarding application stage (‘Merchant Fees’) which is hereby incorporated into this Agreement by reference.
11.2 The Service Provider may amend the Merchant Fees at any time by informing the Merchant directly via email to its designated email account. The revised Merchant Fees will become effective 30 days after the initial notice is sent.
11.3 If the Merchant continues to use the Novatti Acquiring Service after the effective date, the Merchant shall be deemed to have confirmed the new Merchant Fees as administered by the Service Provider.
12.1 We will credit to your Merchant Settlement Funding Account any amounts received in respect of your Transactions. We will use reasonable endeavours to credit such amounts to your Merchant Settlement Funding Account within 2 business days after the date we receive the funds from SR Global Solutions.
12.2 Settlement shall be effected in the currency used for the payment of the Merchant’s goods and/or services.
12.3 Any bank fees or handling costs incurred for receiving funds are to be paid by the Merchant.
12.4 The Service Provider will remit the money collected to SR Global Solutions, less any Merchant Fees, deductions or adjustments made in accordance with these Terms and Conditions.
12.5 The Service Provider is entitled to withhold transfer of the Settlement Amount if it has reasonable grounds to believe that the Merchant offers or provides Illegal goods and/or services and/or services and/or is undertaking activities that may constitute money laundering, or fraud or an event occurs in respect of the merchant which has an adverse effect on the credit risk to the Service Provider.
13. DIRECT DEBIT PAYMENTS
13.1 The Direct Debit Services allow customers to make payments to the Merchant via Direct Debit Payments.
13.2 The Service Provider may arrange for a customers to use the Direct Debit Service.
13.3 Before a customer can use the Direct Debit Services, the Merchant must arrange for the customer to complete the Direct Debit Request.
13.4 Direct Debit Services will not be available to the customer until the completed Direct Debit Request is returned to the Service Provider and accepted.
13.5 The Service Provider, in its sole discretion, may decline to arrange the Direct Debit Services for customer.
13.6 The funds will be held in the Service Providers account while settlement is arranged.
14. CONFIDENTIAL INFORMATION
14.1 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 other 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 learnt 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.
14.2 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 14 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.
15. INTELLECTUAL PROPERTY
15.1 Any and all texts, pictures, charts, sound files, animation files, video files and other content and files provided by the Service Provider or its affiliates are the intellectual property of the Service Provider or third parties and are protected by copyright, trademark rights, or other intellectual property rights.
15.2 The Merchant 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. The Merchant must comply with terms and conditions of use and licence regulations notified by the author or the Service Provider in respect thereof, as the case may be.
15.3 All rights to use the software plus documentation shall expire upon termination of this Agreement.
16. DATA PROTECTION/SECURITY
16.1 The Merchant and the Service Provider undertake to provide appropriate data protection and to ensure confidentiality, availability and accuracy of data. They shall, in particular, be obliged to ensure reasonable protection of their systems against unauthorised or accidental destruction, accidental loss, technical errors, falsification, theft, unlawful use, unauthorised alteration, copying, access and other unauthorised activities.
16.2 The Merchant and the Service Provider 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 16 shall, also, be imposed on their agents and/or affiliated companies.
17. REPRESENTATIONS & WARRANTIES
17.1 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.
17.2 In the event of a breach by the Service Provider of the warranties in this Section, without limiting any of its other rights under this Agreement, the Merchant’s sole remedy will be termination of this Agreement pursuant to Section 3.
17.3 In the event of a breach by the Merchant, without limiting any of its other rights under this Agreement, Novatti Acquiring may, at its sole discretion, either immediately suspend the provision of Novatti Acquiring Services and obligations under this Agreement or immediately terminate this Agreement.
17.4 The Merchant acknowledges and agrees that:
(a)although the Service Provider will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid disruptions with respect to the Merchant’s use of Novatti Acquiring Services, the Service Provider cannot guarantee that such events will not occur and the Service Provider excludes any and all liability resulting from, or related to, such events;
(b)the services are provided solely on an “as is” basis, and the Merchant’s use of the Novatti Acquiring Services is at its sole risk; and
(c)the Service Provider does not warrant that the services will be uninterrupted, error-free, or completely secure.
17.5 The Merchant represents and warrants 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)it will not violate any applicable Law or cause a breach of any of the Service Provider’s third-party agreements, in connection with the performance of its obligations and use of the Novatti Acquiring Services.
18. LIMITATION OF LIABILITY AND INDEMNITY
18.1 Except for the warranties expressly set out in this Agreement and to the extent permitted by the Law, the Service Provider expressly exclude all conditions and warranties, whether express or implied, statutory or otherwise.
18.2 Notwithstanding clause 18.1, neither Party excludes or limits its liability to the other Party for death or personal injury resulting from the negligence of that Party or its directors, officers, employees, agents or sub-contractors or for its own fraud (or that of its directors, officers, employees, agents or sub-contractors).
18.3 Notwithstanding any other provision of this Agreement, the liability of each Party to the other Party for loss and damage shall be limited as follows:
(a)The maximum aggregate liability of the Service Provider for any and all direct loss or damage arising under the Agreement shall be no more than the aggregate amount of the Fees actually paid to the Service Provider in the 12-month period prior to the date of the relevant act or omission which lead to the direct loss or damage; and
(b)Any liability for any consequential or indirect loss or damage, loss of data or loss of profits, howsoever caused is hereby excluded to the fullest extent permitted by Law.
18.4 The Merchant shall release and indemnify the Service Provider and SR Global Solutions from any claims, demands or losses of a Cardholder caused by the Merchant’s 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 the Merchant.
18.5 The Merchant shall release and indemnify the Service Provider from liability for damage caused by the Merchant if it:
(a)operates Illegal systems, offers Illegal products and/or services or acts 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.
18.6 Without limiting any other provision in this Agreement, the Merchant shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) the Service Provider and its directors, officers, employees, agents, shareholders and affiliates and/or subsidiaries (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 Merchant contained in this Agreement; and
(b)any breach or violation of any term, covenant, undertaking or other obligation or duty of the Merchant under this Agreement or under applicable Law, in each case whether or not caused by the negligence of Novatti Acquiring or any other Indemnified Party and whether or not the relevant claim has merit.
19. MISCELLANEOUS PROVISIONS
19.1 Neither Party shall be liable for damage caused by force majeure, riot, war and/or Acts of God or by other events (e.g. strike, lock-out, traffic disruption, political risk) which are beyond the control of that Party.
19.2 This Agreement shall be governed and construed in accordance with the laws of Victoria, Australia and the Parties submit to the exclusive jurisdiction of the Australian Courts.
19.3 If a provision of this Agreement is or becomes ineffective in whole or in part, the validity of the remaining provisions shall not be affected thereby.
19.4 The waiver of any breach in this Agreement will not constitute a waiver of any subsequent breach or default and will not negate the rights of the waiving Party.
19.5 The Merchant must not assign or transfer this Agreement, or its interest, without the prior written consent of the Service Provider. The Service Provider shall be entitled to assign and/or transfer its rights and obligations under this Agreement to its affiliated companies in whole or in part. The Merchant hereby gives its irrevocable consent to such transfer.
19.7 Any notice or other communication to be given under this Agreement shall be in writing.
19.8 The relationship between the Parties is solely as independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between Novatti Acquiring and the Merchant. Neither Novatti Acquiring nor the Merchant will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
19.9 This Agreement constitutes the sole, final and entire agreement between the parties, and supersedes any prior agreements or understanding.
Prohibited Activities List
In using the Card Acquiring Services and Novatti Acquiring Services (together the Services), you must not engage or attempt to engage in any of the following activities.
a. Activities that violate any applicable local, state, federal or international law including, without limitation the Spam Act 2003 (Cth), Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;
b. Activities that that we deem to be insensitive and/ or promote hate or illegal activities
c. Activities that violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, Confidential Information, electronic fraud, invasion of privacy, pornography, obscenity or libel);
d. Activities that interfere with or disrupt any other third parties (including other Users of the Services), equipment, functions, features, the Services;
e. involve the unauthorised use of any machine or network, denial of service attacks, falsification of Activities that header information or User identification information, monitoring or scanning the networks of others;
f. Activities that gain unauthorised access to the Services;
g. Activities that disrupt, impair, alter or otherwise interfere with the functions, features, content of the Services; restrict or inhibit any other visitor from using the Services, including, without limitation, by means of “hacking” or defacing a portion of this Services;
h. Activities that express or imply that statements you make are endorsed by us, without our prior written consent;
i. Activities that modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Services to a human-perceivable form;
j. Activities that remove any copyright, trademark or other proprietary rights notices contained in the Services; or
k. Activities that provide access to the Services to persons who are not Merchants or have not paid the relevant fees for the service.
l. A Merchant must not be involved or associated with any activities or materials which may infringe, dilute, denigrate, or impair the goodwill and/or reputation of the Service Provider’s brand.
m. You must not be associated directly or indirectly with the following products or services:
a. Terrorism, Racism and Violence: products and associated websites which in any way promote violence or advocate violence against a target group. A target group is distinguished by its race or ethnic origin, colour, national origin, religion, disability, sex, age, veteran status or sexual orientation/gender identity.
b. Body parts: promotion, sale or dealings of nature in body parts or human remains or the non- consensual mutilation of a person or body part.
c. Copyright unlocking devices: mod chips or other devices designed to circumvent copyright protection.
d. Abusing copyright or counterfeit goods: All products and services presented by Merchants must respect copyright and trademark law. Unauthorised or “bootleg” copies of media, software, or other licensed or protected material will not be acceptable. In addition, products that are replicas or imitations of designer goods; products without a celebrity endorsement that would normally require such an association, fake autographs, counterfeit stamps, and other potentially unauthorized goods will also fall into this category.
e. Drugs, drug paraphernalia, and drug test circumvention aids: promotion of illegal drugs and drug accessories, including herbal drugs such as salvia and magic mushrooms and drug test circumvention aids and products such as drug cleansing shakes and urine test additives.
f. Illegal goods and services: materials, products, or information promoting illegal goods or enabling illegal acts e.g. illegal knives or other illegal weapons. Other examples included in this category are manuals, how-to guides, information or equipment enabling illegal access to software, servers, websites, or other protected property and products that descramble cable and satellite signals in order to obtain free service.
g. False representation: fake IDs, passports, diplomas, and noble titles.
h. Personal Information: content that includes contact or personal information about another individual without their permission.
i. Adult Merchants associated directly or indirectly to child pornography and underage sex, bestiality, incest, rape, brutality, forced sex or prostitution
j. Pyramid Schemes – but legitimate Multi-level Marketing businesses will be acceptable.
k. IP anonymizers or private VPNs or any similar service which has the intention of hiding the true identity of a computer or device.