(1) LATERAL PAYMENT SOLUTIONS PTY LTD a company registered in Australia under company number 12 610 150 064 whose registered office is at Level 1, 7 Bay Street, Southport, QLD 4215 ("LPS");
(2) ENTITY a company registered in [Insert] under corporate identification number [Insert] with its registered office at [Insert]("Client").
(A) LPS operates a credit and debit payment service via the Internet through a number of its banking partners.
(B) The Client operates a business and requires a Service whereby it can receive and pay funds from and to customers’ credit and debit payment cards and bank accounts.
(C) LPS and Client have agreed that LPS will provide the Client with the required Service on the terms and conditions contained in this Agreement.
IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement unless the context otherwise requires:
"Acquiring Bank" means the bank(s) or the provider(s) of money processing services with which LPS has a contract(s) and which will acquire money from the Client’s customers’ credit and debit payment card accounts and pay such money to the Trust Account less certain deductions;
"Banking Day" means any day on which banks are open for business and dealing in currency in Sydney excluding Saturdays, Sundays and public holidays;
“Card Not Present Transactions” means the ability to process the Client’s card payments via the internet or via other non-face-to-face Transactions, in accordance with the terms set out in Schedule 2;
“Card Present Transactions” means the ability to process the Client’s card payments via face-to-face Transactions;
"Card Scheme" means the credit or debit card scheme offered by each of VISA, MasterCard, and any other such card scheme operator authorised by the Acquiring Bank;
"Cardholder" means a person who is the holder of a credit or debit payment card;
"Chargeback" means a debit entry to the Trust Account (where applicable), the reversal of a credit previously settled to the Client’s Account, as a result of an invalid Transaction or a re-imbursement claimed by an Issuing Bank on behalf of a Cardholder for the amount of a Cardholder’s Transaction;
"Cleared Funds" means funds held in the Trust Account that are available for distribution to the Client’s Account;
"Client’s Account" means the bank account to where all Cleared Funds will be transferred by LPS for the benefit of the Client;
“Charges” means the fees and charges outlined in Schedule 1;
"Confidential Information" means (a) all information LPS receives from the Client in relation to this Agreement; (b) all personal information and data obtained from Cardholders including but not limited to Cardholders’ email addresses, internet addresses and/or other identifying and profiling information; and (c) the existence and contents of this Agreement;
"Deductions" means the (a) service charges, (b) transaction charges, (c) Reserves, (d) Chargebacks, (e) Refunds, (f) all government charges and taxes (including goods and services tax) that apply, (g) the full amount of all sales refund Transactions the Client processes, (h) any overpayments or credits LPS have made in respect of Transactions due to errors or omissions, (i) the value of Transactions (including Card Not Present Transactions) which are invalid, including any costs resulting from or monies paid or charges levied in relation to an investigation into the validity of the Transaction or suspected Chargeback, (j) any fees, fines or penalties charged by Card Schemes or costs charged by the Acquiring Bank or Card Schemes, including but not limited to the cost of all forensic investigations, incurred as a direct or indirect result of the Client’s failure to observe its obligations under this Agreement, any procedures set out in the manuals and Operational Guide, and any other practical operating instructions provided by LPS, (k) any other money the Client owes LPS under this Agreement; (l) reasonable enforcement expenses for any breach of this Agreement and (q) any additional charges imposed by the Acquiring Bank or Card Schemes;
“Direct Entry” means the transfer of funds between Australian bank accounts. The clearing and settling of which is regulated by Australian Payments Clearing Association as the Bulk Electronic Clearing System;
“Dynamic Currency Conversion”
(DCC) means a facility which enables some Cardholders who have cards issued by a non-Australian financial institution to elect to pay for goods or services in Australian dollars or their local currency at the time of the purchase. DCC is only available in a number of selected non-Australian currencies and on eligible Merchant Facilities;
“eCommerce Merchant” means the Client who has been authorised by the Acquiring Bank to accept credit card Transactions whilst conducting the sale of goods or services with a Cardholder electronically over the internet or other network;
“eCommerce Transaction” means a credit card Transaction between the Client and a Cardholder where the Cardholder sends card data to the Client over the internet or other network (including via a Website), regardless of how the data is transmitted from the Client to the Acquiring Bank;
“Floor Limit” means the total value of sales or cash out which the Client is authorised from time to time to make to a Cardholder on any one occasion in respect of any one card without obtaining an authorisation number from LPS. LPS may change the authorised floor limit at any time by giving notice;
"Group" means, in relation to a company, that company and any company which is a holding company of that company or a subsidiary of that company or of such holding company;
"Intellectual Property Rights" means patents, inventions, utility models, petty patents, registered and unregistered design rights, know-how, copyrights, semi-conductor topography rights, rights of extraction relating to databases, the right to use software, marks, trademarks, trading names, domain names and all other similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
"Internet" means the publicly accessible non-proprietary global data network comprising interconnected networks using TCP/IP (transmission control protocol/internet protocol);
“Issuing Bank” means the bank that issued the card to the Cardholder;
“Key Loader Solution” means the Software developed and implemented in accordance with this Agreement and which is used to inject security keys and terminal identification numbers into the Terminals so that they are able to pass Transactions securely to the Acquiring Bank Transaction network. The Key Loader Solution shall be managed in accordance with Card Scheme requirements;
“Merchant Facility” means the facility made available by the Acquiring Bank for the benefit of the Client to enable the Client to accept payments using cards;
“Other Service” means any of the services described in Schedule 4;
“Operational Guide” means the guide provided by LPS to the Client which contains instructions on how the Client is to comply with this Agreement;
“PAN” means the Primary Account Number or Cardholder account number commonly located on the front of a Card;
“PCIDSS” means Payment Card Industry Data Security Standards. This refers to the data security standards mandated by Visa and MasterCard to facilitate protection of Cardholder payment data from unauthorised access, which is applicable to any person who stores, processes or transmits card data regardless of that storage or transmittal device;
“PCI PA-DSS” means Payment Card Industry Payment Application Data Security Standards, developed and updated by the PCISSC from time to time, and applying to software vendors and other vendors developing payment applications that store, process or transmit Cardholder data, as part of an authorisation or settlement process, where these payment applications are sold, distributed, or licensed to third parties;
“PCISSC” means the Payment Card Industry Security Standards Council, being a not-for-profit organisation responsible for the development of the PCIDSS, the PCI PA-DSS and other standards;
“PIN” means personal identification number;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Prohibited Use” means any use described in Schedule 3;
"Refunds" means a refund of the amount of a Transaction to a Cardholder totalling no more than the original Transaction value;
“Reserve” A percentage of the transaction value retained in the Reserve Trust Account as set out in Schedule 1;
"Reserve Trust Account" means a bank account operated by LPS for the sole purpose of holding Reserves;
“Security Interest” includes any security interest under the PPSA, mortgage, pledge, lien, charge, hypothecation, trust arrangement, title retention arrangement or other security interest or encumbrance;
“Sensitive Authentication Data” includes any full magnetic stripe, PIN verification or code otherwise known as CAV, CVC, CVC2, CVV, CVV2, PVV, PIN and PIN Block data and excludes the information listed in clause 6.4.
“Service” means the service operated by LPS to credit and debit payments for its Clients via the Internet through the Acquiring Bank, and includes any Other Service provided by LPS to the Client;
“Service Provider” means the provider of any software or hardware that the Client operates to assist with the acceptance of card payment details;
“Software” means the Terminal software, the Key Loader Solution, the computer software or firmware comprised in the Terminal Management System and the operating system, application software and any updates issued from time to time;
“Technical Standards” means: (a) the PCI-PA-DSS, PCIDSS and 3DES; (b) any standards developed by Standards Australia Limited relevant to the Merchant Facility(ies); all applicable Card Scheme rules, industry mandates and requirements of industry bodies (c) all applicable pin entry device security requirements, including but not limited to requirements in relation to the protection of security information, controls and audit and pin entry device management; and (d) any other standards and requirements notified by LPS to the Client from time to time in writing. These standards may be amended or replaced over time;
“Terminal” means the hardware used to accept card payments and the software that is installed on that hardware, and includes any replacement hardware;
“Terminal Management System”
(TMS) means the Software, computer and communications infrastructure which is used to store Terminal records, Terminal configuration data, Software and Software information, and to upload all of these to the Terminals;
"Transaction" means a financial transaction conducted by a Cardholder when interacting with the Client;
"Transaction Date" means the day on which a Transaction takes place; and
“Transaction Receipt” means a receipt for the Transaction containing the information set out in the Operational Guide;
"Trust Account" means a bank account operated by or on behalf of LPS for the purpose of (1) receiving from the Acquiring Bank; (2) Paying the Reserve Account; (3) Receiving funds from the Reserve Account; and (4) paying Cleared Funds to the Client’s Account;
“Website” means any website owned or operated by the Client in respect of which Cardholders make or receive payments in respect of Transactions and facilitate an eCommerce Transaction which includes but is not limited to a web page, web portal or smart phone application;
1.2. Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporated; and, in each case vice versa.
1.3. A reference to a party to this Agreement or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns.
1.4. This Agreement is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this Agreement to protect itself.
2. LPS’ OBLIGATIONS
2.1. use its best endeavours to provide the Service to the Client on a 24 hour, seven (7) days a week basis, subject to the Acquiring Bank providing its services during these times;
2.2. transfer by Direct Entry, the balance of all Cleared Funds into Client’s Account less Deductions;
2.3. provide the Client with real-time online reports to enable the Client to reconcile all Transactions; and
2.4. perform ongoing merchant monitoring of the Client as required by LPS, the Card Schemes or the Acquiring Bank.
3. CLIENT’S OBLIGATIONS
3.1. The Client undertakes:
3.1.1. to use its best endeavours to maintain Chargeback rates below chargeback thresholds set by the Card Schemes.
3.1.2. to reconcile all Transactions.
3.1.3. to perform fraud control and risk monitoring in accordance with the requirements of LPS, as is advised from time to time.
3.1.4. to provide a complete copy of the Transaction Receipt to the Cardholder (unless otherwise stated, for example, contactless Transactions) at the time of payment for goods delivered or services performed, and advise the Cardholder to retain the receipt as proof that payment has been made. The Transaction receipt may be delivered in either of the following formats:
(a) electronic (e.g. email or fax); or
(b) paper (e.g. hand-written).
3.1.5. to respond promptly to all customer inquiries, including cancellations and order changes.
3.1.6. to provide LPS with a complete list of the Client’s Websites and inform LPS of any changes to such list within five (5) Banking Days of such change.
3.1.7. to comply with Australian applicable laws relevant to the operation of its business.
3.1.8. not to use the Service or the Merchant Facility for a Prohibited Use.
3.1.9. not to return the Cardholder’s number to the Cardholder either electronically or on the Transaction receipt.
3.1.10. not to do anything that constitutes or encourages a violation of any applicable law or regulation in Australia or an overseas jurisdiction, including but not limited to the sale of illegal goods or the violation of export controls, obscenity laws or gambling laws.
3.1.11. not offer for sale goods or services, or use or display materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate.
3.1.12. not generate a significant number of complaints for failing to be reasonably accessible to customers.
3.1.13. that it and any service provider who participates in the storage of card payment details on behalf of the Client, must fully comply with the PCIDSS. LPS will advise the Client on the volume of Transactions processed.
3.1.14. that it does not, either directly or indirectly, process any Transaction or present any voucher to LPS or the Acquiring Bank which was not originated as a result of a Transaction between the Client and a Cardholder to whom the Client has actually supplied the goods and/or services for which the card was used in payment unless the Client has been approved by the Acquiring Bank to process pre-payment Transactions and the Cardholder has expressly authorised the Transaction; and
3.1.15. that it does not split a Transaction into two or more Transactions on the same card to avoid having to obtain an authorisation.
3.2. The Client is responsible for all goods and services, including, but not limited to, the supply of those goods or services to the Client’s customers, where payment for those goods or services is made via the Service.
3.3. For Merchant Facility(ies) that facilitate Card Present Transactions, the Client is responsible for all materials used or displayed at the Client’s point-of-sale.
3.3.1. For Merchant Facility(ies) that facilitate Card Not Present Transactions:
3.3.2. the Client must ensure that the URL of the Website must be substantially similar to the trading name of the Client and be designed in such a way that a reasonable Cardholder is able to readily identify it as the Client’s Website without any confusion.
3.3.3. the Client is responsible for all materials used or displayed on the Client’s Website, and all acts or omissions that occur at those Websites. The Client must ensure that their Website complies with all requirements contained in the Operational Guide.
3.4. The Client agrees to provide LPS and the Acquiring Bank with reasonable access to view, monitor and audit the pages of the Website.
3.5. The Client must make provision for payment and delivery of goods or services as specified at the Client’s Website. Payment pages provided will be accredited by the Acquiring Bank or an accredited provider and must adhere to the relevant security requirements.
3.6. Any eCommerce Transaction forwarded to LPS must be identified with the appropriate Card Scheme eCommerce indicator. LPS will supply the Client with details of these requirements on request.
3.7. The Client must ensure that it:
3.7.1. does not substantially change the Client’s goods or services or other material aspects of the Client’s Website from the time it was accepted by LPS without its written agreement;
3.7.2. keeps all information on the website true, accurate, current and complete;
3.7.3. does not change the Client’s domain name without first obtaining the written consent of LPS to the change of name; and
3.7.4. fulfils customer orders in a timely manner and adequately deal with a customer’s warranty or service requirements.
3.8. The Client is responsible for:
3.8.1. ensuring that the connection between LPS and the Client’s Website is operational. LPS does not warrant that the provision of the services will be continuous, uninterrupted or without errors;
3.8.2. ensuring that its Website is secure and that Cardholder information is encrypted during the exchange of Cardholder information between the Client’s Website and the payment gateway. The Client must utilise LPS’s hosted payment page or ensure that the level of encryption for Cardholder information is compliant with the standards of the PCIDSS and PCI PA-DSS;
3.8.3. ensuring that at no time does it store Cardholder information; and
3.8.4. ensuring that any service provider that the Client engages to participate in the payment process is to be approved by LPS. LPS is not responsible for the functioning of any third party service provider.
4. FEES AND PROCESSING CHARGES
4.1. In consideration for the services, the Client shall pay to LPS the Charges, which shall be deducted from funds held in the Trust Account.
4.2. Unless otherwise stated in Schedule 1, LPS may at any time review the Charges payable under this Agreement and will notify the Client of such changes in accordance with this Agreement.
4.3. The Client must pay:
4.3.1. all duties, taxes and charges, including goods and services tax, in relation to this Agreement or any document related to this Agreement to which it is a party.
4.3.2. all fees charged by the Acquiring Bank in relation to Card Schemes.
4.4. Unless stated otherwise in Schedule 1, the amounts payable to LPS under this Agreement are exclusive of any goods and services tax.
4.5. To the extent that anything done or to be done under or in connection with this Agreement by LPS constitutes a taxable supply for the purposes of any goods and services tax legislation, the amounts expressed elsewhere in this Agreement as payable or to be provided in relation to that supply will automatically include the additional amount on account of goods and services tax. Such amount will have been calculated by multiplying the value of the non-taxed amount payable or to be provided by the Client for the relevant taxable supply by the prevailing goods and services tax rate. Any additional amount paid or payable on account of goods and services tax shall be calculated and shall be payable by the Client without any deduction or set-off of any amount payable by LPS to the Client.
4.6. If it is determined on reasonable grounds that the amount of any goods and services tax paid or payable by LPS differs for any reason from the amount of any goods and services tax recovered from the Client, the amount of goods and services tax recovered or recoverable from the Client shall be adjusted by LPS repaying to the Client the amount of the overpayment or by the Client paying to LPS the amount of the underpayment, as the case may be.
5. ROLLING RESERVE
LPS warrants, covenants and represents to the Client that:
5.1. funds held in the Reserve Trust Account will:
5.1.1. be held in trust;
5.1.2. will at all times be held for the benefit of the Client; and
5.1.3. will be held in a separate bank account;
5.2. it will not grant or purport to grant any security or other legal or beneficial interest in the funds held in the Reserve Trust Account to any other person; and
5.3. it shall release to the Client Cleared Funds held in the Reserve Trust Account immediately as and when such amounts become due.
6. PROCESSING TRANSACTIONS
6.1. The Client must:
6.1.1. accept all valid cards and process all Transactions in accordance with this Agreement, the Operational Guide and any other practical operating instructions that LPS provides to the Client from time to time;
6.1.2. process all Transactions in Australian dollars except where approved by the Acquiring Bank to process Dynamic Currency Conversion Transactions;
6.1.3. obtains prior authorisation for any sale using a credit card if it exceeds the Floor Limit. An authorisation only confirms that the Cardholder has sufficient funds available to cover the purchase, and that the card has not been reported lost or stolen. It does not protect the Client from subsequent Chargebacks which may be effected by the Acquiring Bank; and
6.1.4. verifies the identity of the Cardholder, and ensures any Cardholder authorisation is not forged, obtained by fraud or deception, unauthorised or that the Transaction is not otherwise invalid.
6.2. The Client will not undertake any Transaction that does not comply with the requirements as set out in the Operational Guide.
6.3. LPS will not be responsible or liable for any delay that might occur in the processing of payments or any lost Transactions that might occur where the Merchant Facility is not available for any reason. This includes instances where cash-out Transactions are not available.
7. SALES REFUNDS
7.1. The Client agrees to accept all liability and take sole responsibility, and, for the avoidance of doubt, not to delegate or apportion liability or responsibility to LPS or the Acquiring Bank, for:
7.1.1. resolving disputes, complaints or enquiries in accordance with the Card Scheme rules with Cardholders who use the Service; and
7.1.2. invalid Transactions (including, but not limited to, Chargebacks) in connection with any Service.
For the avoidance of doubt, the Client acknowledges and agrees that LPS and the Acquiring Bank shall not be involved with resolving a dispute (including a Chargeback) in relation to a customer or client of the Client.
7.2. The Client will establish a fair policy for exchange or return of merchandise, as is reasonable in the ordinary course of the Client’s business, and give credit upon each return, not in cash, but by means of a sales refund Transaction. This includes establishing a fair policy for refunds for each return of merchandise or for each order not authorised by the Cardholder. This clause 7.2 also applies to all Merchant Facilities that facilitate Card Not Present Transactions, including without limitation, mail, telephone, internet orders and standing authority Transactions.
7.3. Subject to clause 7.4 and where applicable clause 7.2, the Client may process sales refund Transactions by transferring the amount of the refund from the Trust Account.
7.4. The Client agrees that LPS and the Acquiring Bank will not be responsible for any unauthorised sales refund Transactions processed through the Service, even if those Transactions may cause the Trust Account to be debited by the amount of the Transaction(s).
7.5. Where LPS or the Acquiring Bank do not supply Terminals to the Client, LPS and the Acquirer Bank shall not be responsible for any unauthorised sales refund Transactions processed through the Terminal.
7.6. LPS will control and be responsible for access to the Terminal sales refund password. LPS will change its password if for any reason it thinks it has become known to persons other than those who LPS has authorised to complete refund Transactions.
8. INVALID TRANSACTIONS
8.1. A Transaction is invalid if it satisfies the criteria for an invalid Transaction as set out in the Operational Guide.
8.2. A telephone, internet or mail order Transaction is also invalid if the Transaction is not authorised by the Cardholder, or in the case of a standing authority, the authority has expired or was cancelled prior to the Transaction. The Client acknowledges that authorisations obtained provide no guarantee that the person providing the card details is the Cardholder.
8.3. The Client acknowledges and agrees that the Acquiring Bank may refuse to accept, or may Chargeback, any Transaction if:
8.3.1. the Transaction is invalid or the Acquiring Bank considers it to be invalid;
8.3.2. the Cardholder claims the Transaction is invalid or disputes liability for any reason;
8.3.3. the Client processes a cancelled recurring Transaction; and
8.3.4. the Cardholder asserts a claim for set-off or a counterclaim.
8.4. Chargebacks may be processed to the Trust Account up to 18 months after the date of the original Transaction.
8.5. The Client undertakes to abide by industry best practices to minimise fraud and chargebacks as set out in the manuals from time to time.
9.1. The Client must ensure that it:
9.1.1. charges a Cardholder a price for goods and services comparable to the price it charges for cash for those goods and services;
9.1.2. honours a card tendered by a Cardholder for the payment of goods or services to be supplied by the Client to the Cardholder in accordance with this Agreement;
9.1.3. clearly discloses any surcharges that might apply before processing the Transaction, if the Client charges a fee for Transactions;
9.1.4. includes any surcharge in the relevant Transaction and not process as a separate Transaction;
9.1.5. limits the cost of the surcharge to the permitted surcharge as defined by the Reserve Bank of Australia in a standard or other instrument as updated; and
9.2. before a Transaction is completed, allow the Transaction to be cancelled, without the cardholder incurring any cost after advising the Cardholder of the total Transaction amount.
9.3. The Client acknowledges that the card issuers may from time to time change the classification of a card (i.e. standard or premium) and, as a result when applying a surcharge rate to a Cardholder, it cannot be guaranteed that the classification of the card on which the Client has based the surcharge will be the same as the classification on which the Client is charged a merchant service fee in relation to the same Transaction.
9.4. The Client will pay any fines associated with the Client’s non-compliance of Card Scheme surcharging rules.
10. ACCOUNTS AND DEDUCTIONS
10.1. The Client authorises LPS to make Deductions from funds held in the Trust Account in respect of Transactions to which such Deductions relate or from any other funds held by LPS and LPS may adjust any payment to the Client’s Account to correct any errors identified. If LPS debits the Trust Account in which there are insufficient funds, then the payment may be reversed and the Client will be regarded as not having made the payment.
10.2. If at any time there are insufficient funds in the Trust Account to allow all Deductions to be made, LPS may pay the shortfall from the Reserve Trust Account or from future payments received.
10.3. LPS may appropriate funds held in the Trust Account, towards any and all amounts the Client owes LPS under this Agreement. If LPS does this, the balance of the Trust Account will reduce by the amount used for this purpose. LPS will notify the Client promptly after exercising its right to appropriate money in the Trust Account and the Client.
10.4. The Client must pay on demand the amount of any debt the Client owes LPS under this Agreement which remains unpaid. Should the Client fail to pay any debt which the Client owes LPS by the date LPS sets as the due date for that debt, this will be deemed a default of the Client and LPS may commence enforcement action and report the Client’s default to a credit reporting agency, in accordance with any notice period required by law, which may affect the Client’s credit rating and the Client may have difficulty obtaining finance in the future.
10.5. LPS may also debit or credit the Trust Account with the amount of any deficiencies or charges LPS establishes are payable following an audit or check of the Client including where the audit has been carried out by a third party on behalf of LPS or the Acquiring Bank.
10.6. The Client is responsible for reconciling sales and settlements for all Transactions. If the Client has any concerns about any missing amounts, it must, contact LPS within five (5) Banking Days from the date of the Transaction to have it reviewed. Any disputes raised after this time will not be reprocessed.
10.7. The Client is responsible for reconciling the statements that LPS sends the Client under this Agreement to ensure that payments to and from the Trust Account have occurred in accordance with this Agreement. It is the Client’s obligation to check the accuracy of the statements. If the Client fails to notify LPS within 3 months of an incorrect fee being processed, and thus an incorrect amount was debited from the Trust Account, or a payment should have been made to the Client, then the Client will have no claim against LPS and the account with LPS will be deemed settled. This includes but is not limited to Terminal rental fees, minimum Merchant Facility service fees, termination fees and Transaction fees.
This Agreement shall remain in force for 2 years from the date of execution hereof and thereafter shall be terminable by either party on thirty (30) days written notice to the other party, subject to any earlier termination under clause 16 below.
12.1. The Client must maintain and retain in its possession (while complying with all applicable security requirements) its books of account and records (including all Transaction information, voucher and copy rolls and other information that this Agreement requires them to retain) relating to a Transaction for at least 18 months after the Transaction;
12.2. The Client must also keep reasonable records about its compliance with this Agreement including records about when it implemented a variation notified by LPS and the Client's compliance with PCIDSS. The Client must retain these records for at least 6 years and provide access to these records when the Acquiring Bank requests.
12.3. The Client must:
12.3.1. permit LPS and the Acquiring Bank to inspect and examine its books of account and records;
12.3.2. not sell, purchase, provide or exchange a Cardholder's name or card number information in any form, unless providing card number information to LPS or an agent solely to allow the Client or the Client 's agent to process Transactions;
12.3.3. keep all systems and media containing a card number, Cardholder or Transaction information in a secure manner. If the item needs to be discarded, the Client shall destroy it in a manner which makes the information unreadable;
12.3.4. provide LPS or the Acquiring Bank with all clear and legible documentation relating to a Transaction when requested or within fourteen (14) days of the request. Otherwise LPS or the Acquiring Bank may treat the Transaction as invalid and process a Chargeback to the Merchant Facility; and
12.3.5. agrees to LPS and the Acquiring Bank monitoring Transactions processed via the Merchant Facility.
12.4. The obligations under this clause 12 survive termination of this Agreement for any reason.
13.1. The Client acknowledges and agrees that:
13.1.1. LPS or the Acquiring Bank may from time to time, conduct an internal or independent risk audit of the Client;
13.1.2. the audit review may include, but is not limited to, organisational structure, PCIDSS compliance, ongoing Client due diligence, payments to the Client and risk and fraud management;
13.1.3. any costs associated with the audit will be borne by the Client; and
13.1.4. if the Client fails to grant LPS access for the purpose of conducting an audit in accordance with this clause 13 and such non-compliance remains unremedied for a period of one (1) month, LPS may take immediate steps to limit or suspend Client’s use of the Service.
14. CHANGE IN OWNERSHIP OR BUSINESS
14.1. Client agrees that it will not permit any change in:
14.1.1. its ownership or its effective control;
14.1.2. its principal business activities; or
14.1.3. the types of goods or services that the it supplies to its customers or clients,
without first notifying LPS in writing of that change and receiving written consent from LPS for that change.
14.2. Client agrees that it will not change its business from the agreed industry code, without first notifying LPS in writing of that change and receiving written consent from LPS for that change.
15.1. This clause 15 applies where the Client is the trustee of a trust.
15.2. The Client warrants the following:
15.2.1. the trust is validly formed. Any relevant trust document is valid and complies with all applicable laws;
15.2.2. any copy of the trust document that the Client has given to LPS is a true and complete copy and discloses everything about the trust;
15.2.3. the Client is properly appointed as sole trustee of the trust and there have previously been no other trustees of the trust, unless otherwise disclosed to LPS in writing;
15.2.4. the Client has always fully complied with the terms of the trust and the Client’s duties and powers and no one has said that the Client has not done so;
15.2.5. the Client has a full right of indemnity from the trust assets in respect of the Agreement;
15.2.6. the Client has properly signed this Agreement under the terms of the trust and in accordance with the Client’s duties and powers as trustee, or if there is any doubt and all beneficiaries have full legal capacity, the Client has obtained their consent;
15.2.7. the Agreement and the Transactions entered into under it are for proper trust purposes;
15.2.8. the Client has done everything required under the trust document to enter into the Agreement and the Transactions it contemplates;
15.2.9. none of the trust assets have been resettled or set aside; and
15.2.10. the trust has not terminated nor has any event for the vesting of the assets occurred.
15.3. The Client will not re-settle, set aside or distribute any of the assets of the trust without our consent unless compelled to do so by the current terms of the trust document.
16. TERMINATION AND SUSPENSION
16.1. Either party may terminate this Agreement with immediate effect on giving written notice to the other if the other party:
16.1.1. commits any material breach of its obligations under this Agreement or the terms of the Merchant Facility which, in the case of a breach capable of remedy, is not remedied within fourteen (14) days of the date of service of a written notice specifying the breach and requiring it to be remedied;
16.1.2. holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors;
16.1.3. has a receiver, administrative receiver, administrator or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within sixty (60) days) upon the whole or substantially all of its assets;
16.1.4. ceases to carry on business or becomes unable to pay its debts within the normal course of business; or
16.1.5. has become incapable of performing its obligations under this Agreement.
16.2. If LPS suffers any damage or loss or suspects it may suffer any damage or loss as a result of any acts or omissions by Client:
16.2.1. LPS may immediately terminate or suspend this Agreement;
16.2.2. LPS and the Acquirer bank may do all things necessary to terminate or suspend any dealings with Client; and
16.2.3. Client shall comply with any reasonable conditions imposed by LPS in any suspension or termination.
16.3. After one hundred and eighty (180) days of termination of this Agreement LPS shall pay to Client the balance of the monies held in the Reserve Trust Account.
16.4. LPS shall have the right to suspend the Service if the Chargeback percentage is not acceptable to the Acquiring Bank or if required by any law.
16.5. If LPS does so suspend the Service, then Client shall be entitled to terminate this agreement within thirty (30) days from the date of receiving notice of such suspension.
16.6. In the event that an Acquiring Bank refuses to process any Transaction LPS will, if it believes it is necessary, suspend the Service and use reasonable efforts to find an alternative Acquiring Bank.
16.7. Termination for whatever reason of this Agreement will not affect any accrued rights or obligations of the parties at the date of termination:
16.7.1. any and all payment obligations of either party under this Agreement through to the date of termination will immediately become due and payable; and
16.7.2. within ten (10) working days of such termination each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required by law to comply with any applicable legal or accounting record keeping requirement.
16.8. Consequences of termination
16.8.1. On termination of this Agreement the Client must immediately cease to use the Service provided under this Agreement and do anything that is required to terminate its obligations under this Agreement.
16.8.2. Termination of the Agreement for any reason shall not relieve either party of any obligations incurred prior to the date of termination and will not prejudice, extinguish or otherwise affect any rights of either party against the other which:
(a) accrued prior to the time of termination; or
(b) otherwise relate to or may arise at any future time that would otherwise be a breach of this Agreement if this Agreement had not been terminated.
16.8.3. Unused stationery and promotional material remain the property of LPS or the Acquiring Bank. On termination the Client must immediately return all material provided to the Client.
16.8.4. A terminated Client file is a file containing the Client’s name, trading name and address, names and identifications of principals, owners, managers and key employees of the Client, account details, listing reason and Uniform Resource Locator (URL) of internet Client’s terminated for poor card acceptance practices. The Client consents to LPS and the Acquiring Bank providing this information for addition to the file if this Agreement is terminated. The Client shall indemnify LPS against all claims, actions, suits, losses, defaults, damages and liabilities resulting from including the Client’s principals on this file. Any payments made by the Client under this clause shall be automatically increased by the amount of any goods and services tax liability incurred by LPS or the Acquiring Bank in respect of those payments.
17. WARRANTIES & COVENANTS
17.1. Each party warrants and represents to the other that it:
17.1.1. is duly incorporated and subsisting under the laws of its place of incorporation; and
17.1.2. has the power to and is authorized to enter into this Agreement on its own behalf.
17.2. LPS covenants to Client that it:
17.2.1. will use it’s best endeavours to provide the Service;
17.2.2. shall not release to any person, compromise or let out into the public domain, whether directly or indirectly, any Confidential Information; and
17.2.3. shall use reasonable endeavours to ensure efficient security and fraud measures for the Service.
17.3. The Client represents and warrants to LPS that:
17.3.1. it does not conduct a business that amounts to a Prohibitive Use under this Agreement;
17.3.2. it will not make any warranty or representation whatsoever in relation to any of the its goods or services which may bind LPS or the Acquiring Bank;
17.3.3. any Transactions processed through the Service will constitute a warranty by the Client to LPS and the Acquiring Bank that:
(a) all particulars are true;
(b) the Transaction and any voucher is valid; and
(c) the Transaction is not subject to any dispute, set-off or counterclaim;
17.3.4. it conducts an LPS approved business;
17.3.5. it is a corporation validly existing under the laws of the place of its incorporation and it has entered into this Agreement in its own right and not as a trustee of any trust or as an agent on behalf of any other entity;
17.3.6. it has all the necessary power to enter into and perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement and to carry on its business as now conducted or contemplated;
17.3.7. all necessary resolutions have been duly passed and all consents, approvals and other procedural matters, as required by its constitution and the Corporations Act, 2001 (Cth), in relation to the execution, delivery or performance by it and the validity and enforceability of this Agreement and the transactions contemplated by this Agreement have been obtained or effected;
17.3.8. in executing and in giving effect to this Agreement it has not contravened and will not contravene or violate in any respect a provision of a law or a judgement, ruling, order, decree, guideline or directive issued by any government agency; any legislative requirement nor any provision of its constitution, or any deed, agreement or other document to which it is a party.
18. LIABILITY AND INDEMNITY
18.1. The Client indemnifies LPS on demand against all losses, expenses, costs (including legal costs on a full indemnity basis), liability and damages that LPS may suffer arising directly or indirectly as a result of:
18.1.1. the Client’s failure to observe the Client’s obligations under this Agreement including any procedures set out in this Agreement and any other practical operating instructions LPS or the Acquiring Bank provides to the Client;
18.1.2. any dispute between LPS or the Client and a Cardholder;
18.1.3. any liability arising from a Chargeback;
18.1.4. any error, negligence, misrepresentation or fraud on the part of the Client or its servants, agents, employees or contractors;
18.1.5. any damage to, or loss of the Terminals due to negligence or misuse by the Client or any of its servants, agents, employees or contractors;
18.1.6. the performance by LPS of any duty or obligation under this Agreement;
18.1.7. any fees, fines or penalties that LPS is required to pay to the Acquiring Bank pursuant to the rules, by-laws or regulations of any Card Scheme that the Acquiring Bank is a member of or participates in, as a direct or indirect result of the Client’s failure to observe any of the procedures, requirements or obligations required to be complied with under any Card Scheme; and
18.1.8. Transactions that be delayed, blocked, frozen or refused by the Acquiring Bank,
provided that the loss or liability is not caused by any fraud, negligence or wilful default on the part of LPS, its employees, agents and sub-contractors. For the purpose of this clause LPS and the Acquiring Bank shall not be taken to have been negligent if they has acted as required or contemplated by this Agreement or at the express request or direction of the Client.
18.2. Each indemnity given by the Client under this Agreement is a continuing obligation and continues after this Agreement ends. It is not necessary for LPS to incur an expense or a make payment before enforcing the relevant indemnity.
18.3. With the exception of any terms, conditions, rights or warranties that are implied by law in the Agreement and may not legally be excluded, LPS gives no warranty or representation in respect of any Transaction, hardware or software, and all other terms, conditions or warranties, whether expressed or implied, are expressly excluded.
18.4. The Client acknowledges that LPS’ and the Acquiring Bank’s liability for breach of any condition, right or warranty that cannot be excluded from this Agreement by law is limited to the re-performance of the Transaction or the total Charges charged during the 3 (three) months preceding the date on which the Client’s claim arose.
18.5. To the extent permitted by law and notwithstanding that any of the Acquiring Banks’s officers, employees, contractors or agents may be aware of the likelihood of such loss or damage, the Client is not entitled to special, indirect or consequential loss or damage, including loss of profits, income, goodwill, loss of or corruption to data and loss of opportunities, no matter how it is caused.
19. INTELLECTUAL PROPERTY RIGHTS
19.1. Nothing in the Agreement is intended to transfer title to either party’s Intellectual Property Rights in respect of material, information, know-how, skills, methodologies or tools existing at the date of the Agreement.
19.2. Neither party shall challenge the validity or ownership of the Intellectual Property Rights of the other party.
19.3. A party shall notify the other party immediately if that party becomes aware that any third party is infringing the other party’s Intellectual Property Rights.
19.4. A party shall ensure that the content of its Websites, any goods or services offered on its Websites and any hyperlinks set up on such Websites pursuant to this Agreement shall be in accordance with this Agreement, and shall not:
19.4.1. infringe any third party’s rights (including intellectual property rights);
19.4.2. be defamatory or obscene; or
19.4.3. bring either party into disrepute.
19.5. All intellectual property rights in any material created under the Agreement shall, from the time of its creation, vest in the party creating the material.
20.1. The parties undertake to keep confidential any Confidential Information received or which could be gained in the process of performing its obligations under this Agreement and not to use it for any purpose other than in the performance of its obligations under this Agreement.
20.2. In the event of a party becoming aware of or suspecting any disclosure of all or part of the other party’s Confidential Information in breach of this Agreement, that party shall forthwith co-operate with other party in taking reasonable action to limit and remedy the breach. Any such action taken by a party under this clause 20 shall be without prejudice to the other party’s rights hereunder.
20.3. The obligation of confidentiality will not apply to any Confidential Information where the Confidential Information:
20.3.1. is disclosed with the consent of the party who supplied the Confidential Information;
20.3.2. is or comes lawfully into the public domain;
20.3.3. is required to be disclosed pursuant to any legislation or legal process; or
20.3.4. is required to be disclosed to the employees, legal or financial advisers, auditors, or to any other party for the purpose of giving effect to the Agreement.
20.4. The Client acknowledges and agrees that LPS may release the Confidential Information to the Acquiring Bank where:
20.4.1. the sole purpose of such release is to enable performance under this Agreement by LPS; and
20.4.2. such Acquiring Bank agrees to keep confidential the Confidential Information.
20.5. This clause 20 continues after the termination of this Agreement.
21. FRAUD PREVENTION SECURITY
21.1. PCIDSS Compliance
21.1.1. The Client must ensure that its business and any Service Provider acting on its behalf, is compliant to the PCIDSS at all times.
21.1.2. The Client's classification according to the PCIDSS will be determined at the discretion of the Acquiring Bank.
21.1.3. In the event that the Client’s business suffers or is suspected to have suffered an ADC, LPS may pass any penalties levied by the Card Schemes on to the Client and reserve the right to pass on any charges that relate to the investigation of an ADC.
21.2. PCIDSS Validation
21.2.1. If LPS determines that the Client is a Level 1, 2 or 3 merchant under the PCIDSS, the Client must, upon request, validate its compliance with the PCIDSS on an ongoing basis. Validation of compliance must be completed within three (3) months of such request to the Client.
21.2.2. Any ‘off the shelf’ software that stores, processes or transmits Cardholder data during authorisation or settlement, must be certified by a Payment Application Qualified Security Assessor (PA-QSA). as being compliant with the PCI PA-DSS.
21.2.3. The Client must ensure that any software or hardware it purchases, creates or otherwise utilises for the purpose of selling goods or services does not retain its original password before employing it for the acceptance of Transactions. The Client must also ensure that all system and/or software passwords are changed on a regular basis.
21.3. Account Data Compromise (ADC) Events
21.3.1. The Client must comply with the ADC procedures detailed in the booklet “Your Guide to the Payment Card Industry Data Security Standards” set out in the Operational Guide, immediately upon suspected or known breaches of confidential Cardholder data whether or not the breach has occurred through a Service Provider or otherwise.
21.3.2. If the Client’s business is suspected of having suffered an ADC or been the subject of Terminal manipulation:
(a) The Client must give LPS or the Acquiring Bank and each of its agents full access to its systems and databases, to facilitate a forensic analysis to ascertain:
(i) what Card data has been compromised;
(ii) what weaknesses in the system permitted the unauthorised access to the database; and
(iii) whether Card data was created, deleted, altered, copied or manipulated in any manner.
(b) If the Client uses the services of an external Service Provider, the Client must ensure that LPS or the Acquiring Bank and each of its agents are given full access to necessary outsourced components such as (without limitation) databases and web hosting systems.
(c) The Client must pay all costs in connection with analysing and resolving the ADC.
(d) In order to continue processing Transactions, the Client will validate to the satisfaction of the Acquiring Bank that it is in compliance with the PCIDSS as a Level 1 merchant within three (3) months of the ADC or the event(s) giving rise to the Terminal manipulation. All costs incurred by the Client as a result of its compliance with this clause 21 will be borne by the Client.
21.4. Consent to share information
21.4.1. The Acquiring Bank may report all ADC events to Card Schemes and its members and may be required to report ADC events to law enforcement agencies and/or Australian regulators. The Client grants, an irrevocable and enduring consent to the Acquiring Bank to disclose details of any such ADC (including information about the Client or its customers) to the aforementioned bodies.
21.4.2. The Client agrees, to irrevocably confer upon the Acquiring Bank the enduring right to contact any Services Providers that enable the Client to acquire credit card Transactions.
21.5. Chargeback and Fraud Management
21.5.1. Where excessive fraud or Chargeback behaviour is observed under any Merchant Facility, the Client consents to LPS providing information to Acquiring Bank on the Client’s. This may include but is not limited to the items set out in the Operational Guide.
21.5.2. The Client acknowledges that the Acquiring Bank may also request this information to assist with ongoing fraud investigations, or to assist law enforcement/government agencies, or to assist with data compromise investigations.
21.5.3. LPS shall notify the Client if the Client’s Chargebacks in any particular category has, or is in threat of, exceeding the threshold. The Client must take, immediate action to rectify the excessive Chargebacks. Failure to resolve the cause of the problem will result in non-compliance Card Scheme fines which shall be payable by the Client.
22. FINANCIAL CRIMES MONITORING AND ANTI-MONEY LAUNDERING
22.1. In order for the Acquiring Bank to comply with its regulatory and compliance obligations for anti-money laundering and counter financing of terrorism, the Client acknowledges and agrees that:
22.1.1. it will comply with all reasonable directions of LPS and the Acquiring Bank;
22.1.2. it will provide any information that the Acquiring Bank may from time to time require, including “personal information” as defined by the Privacy Act 1988. If the Acquiring Bank asks for such information, the Client agrees to provide the Acquiring Bank with the information requested immediately, or, at least within 24 hours of such a request;
22.1.3. where the Acquiring Bank has reasonable grounds to believe that a suspicious matter has arisen in relation to the Merchant Facility, it is obliged to complete and render a report to the federal government (AUSTRAC). A suspicious matter includes any Transaction that the Acquiring Bank believes may be of relevance to the investigation or prosecution of any breach or attempted breach of an Australian law (including laws related to money laundering, tax evasion, financing of terrorism or the proceeds of crime); and
22.1.4. it will not initiate or conduct a Transaction that may be in contravention of Australian law or the law of any other country.
22.2. The Client agrees to, provide LPS or the Acquiring Bank with any assistance it requests of the Client to assist LPS and the Acquiring Bank to perform identification checks to meet its anti-money laundering and counter financing of terrorism obligations.
23. PRIVACY LAW
23.1. The Client undertakes to comply with:
23.1.1. any privacy laws by which it is bound; and
23.1.2. any other privacy requirement notified by LPS or the Acquiring Bank.
23.2. The Client acknowledges that it does not rely on any information or representation supplied by LPS or the Acquiring Bank to it as advice regarding compliance with the privacy laws.
23.3. The Client warrants that it is aware of the privacy laws which apply to it in respect of this Agreement, and also warrants that, after the enquiry, it is not aware of having breached any of those privacy laws.
23.4. The Client authorises LPS or the Acquiring Bank to obtain, from any Card Scheme, information relating to facilities the Client has obtained or is obtaining from other suppliers.
23.5. The Client acknowledges and agrees that LPS or the Acquiring Bank may disclose any information that has been collected from any application, obtained from any Card Scheme or obtained in connection with this Agreement, including information about terminating a Merchant Facility and the reasons for that termination in the following circumstances:
23.5.1. to the Acquiring Bank’s external service providers (some of which may be located overseas) that provide services for the purposes only of the Acquiring Bank's business and providing the Merchant Facility, on a confidential basis; and
23.5.2. to any person who is a card issuer, Card Scheme operator or otherwise involved in any Card Scheme, for the purpose relating to the operation of those schemes.
24. DISPUTE RESOLUTION
24.1. The parties undertake to use all reasonable efforts in good faith to resolve any dispute, which arises between them in connection with this Agreement.
24.2. A party may give the other a notice of dispute in connection with this Agreement. Any dispute must be referred:
24.2.1. initially to LPS, who will endeavour to resolve the dispute within seven (7) days of the giving of the notice; and
24.2.2. if the dispute is not resolved within the time specified in clause 24.2.1 above, the parties can then take whatever action it deems necessary to resolve that dispute.
24.2.3. The operation of this clause does not detract from either party’s obligation to continue to comply with this Agreement.
25. PROMOTION AND ADVERTISING
25.1. The Client must not use any advertising or promotional or other material advising or promoting the availability of the Service or Merchant Facility(s) if such material has not previously been approved in writing by LPS or the Acquiring Bank.
25.2. The Client agrees to obtain the written approval of LPS or the Acquiring Bank, prior to production and publication of any advertising, documents or other material containing any description of or any reference whatsoever to LPS or the Acquiring Bank by name or otherwise or reproducing the logo or trade mark of LPS or the Acquiring Bank.
26.1. Save in relation to notice of a legal action or proceedings requiring service in a manner described by any rule of court, all notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this clause 28 (the "Relevant Address").Any such notice may be delivered personally or by registered mail or facsimile transmission and shall be deemed to have been served if:
26.1.1. by personal delivery when delivered;
26.1.2. by registered mail, if to an address within Australia, seventy-two (72) hours after posting and if to an address outside Australia, seven (7) days;
26.1.3. by facsimile transmission upon printout of a transmission report showing all pages have been duly sent and provided that a confirming copy thereof is sent by first class registered mail to the other party at the Relevant Address within twenty-four (24) hours after transmission or sending.
27. SUCCESSORS BOUND
This Agreement shall be binding on and shall continue for the benefit of the successors and, subject to clause 15, assigns (as the case may be) of each of the parties hereto.
28.1. The Client may not transfer any rights or obligations it may have under this Agreement without the prior written consent of LPS, which shall not be unreasonably withheld.
28.2. LPS may sub-contract any of its obligations under this Agreement to another company within its group provided that LPS confirms in writing to the Client prior to such subcontracting that such company can perform the obligations of LPS under this Agreement to either the same extent or better than LPS.
28.3. LPS may assign its rights or novate it rights and obligations under this Agreement.
28.4. LPS may also transfer its interest in this Agreement or give another person an interest or security in this Agreement without getting the Client’s consent.
28.5. The Client appoints LPS and any person authorised by LPS to be the Client’s attorney to sign any document or do anything necessary to give effect to the assignment, novation or transfer contemplated in this clause 28.
29. GOOD FAITH
Each of the parties hereto undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of the Agreement.
The failure of either party to enforce or to exercise, at any time or for any period of time, any term of or any right arising pursuant to this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s right later to enforce or exercise it.
The invalidity or unenforceability of any term of, or any right arising pursuant to, this Agreement shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
32. FORCE MAJEURE
32.1. "Force Majeure Event" affecting a party means an event beyond the reasonable control of that party, including without limitation an act of God, tempest, failure or shortage of power supplies, failure of internet service provider or internet connection, flood, lightning or fire, the act or omission of Government and regulators, or other competent authority, war, military operations or riot, which causes that party to be unable to comply with all or a material part of its obligations under this Agreement.
32.2. On the occurrence of a Force Majeure Event affecting a party (the "Precluded Party") then as soon as reasonably practicable after that Force Majeure Event arises, the Precluded Party must notify the other party of the Force Majeure Event.
32.3. To the extent and for the period that the Precluded Party is unable, due to the Force Majeure Event, to comply with its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event and the Precluded Party shall not be liable to the other party for any loss or damage which may be sustained by that other party during such period as a result of the Force Majeure Event. In the event that a Force Majeure Event preventing a party from complying with its obligations continues for a period of thirty (30) days, either party shall have the right to terminate this Agreement on written notice to the other.
33. FURTHER ASSURANCE
The parties hereto shall, and shall procure that any necessary third parties over whom they have control shall, and shall use their respective reasonable endeavours to procure that any other necessary third parties shall, do, execute and perform all such further deeds, documents, assurances, acts and things as any of the parties hereto may reasonably require by notice in writing to the others to carry out the provisions of this Agreement.
LPS may vary this Agreement at any time on reasonable notice in advance to the Client of any variation to the Charges or any term or condition of this Agreement. Use of the Service after notification of any such variation will constitute acceptance of that variation. Advance notice may not be given in certain circumstances, including, without limitation, when a change is necessitated by an immediate need to restore or maintain the security of the Acquiring Bank’s or LPS’s systems or where the Client cannot be reasonably located.
35. THIRD PARTY RIGHTS
Save for the persons mentioned in clause 19 above, a person who is not a party to this Agreement has no right to enforce any term of this Agreement, except that the Acquiring Bank may enforce any terms that are for their respective benefits.
36. CHOICE OF LAW
36.1. This Agreement shall be governed by and construed in accordance with Australian law.
36.2. Both parties irrevocably agree that the courts of Australia are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement and that accordingly any suit, action or proceedings (Proceedings) arising out of or in connection with this Agreement may be brought in such courts.
36.3. Both parties represent and warrant that the choice of Australian law to govern this Agreement is a valid choice of law under the laws of the countries in which they are based and the submission by both parties to the jurisdiction of the courts of Australia and any other country in accordance with this Agreement is valid and binding upon both parties.
36.4. Both parties irrevocably waive any objection which they may have now or hereafter to the laying of the venue of any Proceedings in any such court as is referred to in this clause and any claim that any such Proceedings have been brought in an inconvenient forum, and further irrevocably agree that a judgement in any Proceedings brought in the Australian Courts or in any other country in accordance with this clause shall be conclusive and binding upon both parties and may be enforced in the court of any other jurisdiction.