AFTERPAY MERCHANT AGREEMENT
(AUSTRALIA)
IMPORTANT NOTE: Please
read the terms below carefully – this page will not time-out at any stage.
These terms govern your relationship with Afterpay and your use of Afterpay’s
Services. By clicking to accept these
terms, you understand and agree that you are entering into a legally
binding agreement.
Additionally, You acknowledge that Afterpay may request personal
information from You from time to time. By accepting this Agreement you also
consent to be bound by Afterpay’s
Privacy Policy which details how we collect, handle and protect
the personal information you provide to us.
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(a)
These
Afterpay Merchant General Terms of Service (these “General Terms”), together with the Afterpay Merchant Supplementary
Terms (the “Supplementary Terms”),
which by this reference are incorporated herein (together, the “Agreement”) are entered into between
the merchant entity set out under Part A of the Supplementary Terms (“Merchant”, “you”, or “your”) and
Afterpay Australia Pty Ltd (ABN 15 169 342
947) (“we”, “us”, “our” or “Afterpay”) (each individually a “Party”, and collectively, the “Parties”) as of the date that the
Supplementary Terms are accepted to by you, or as of the date these General
Terms are provided to you under clause 1(e) of these General Terms, as
applicable (the “Effective Date”).
Except as otherwise expressly provided by us in writing, the Parties agree that
this Agreement supersedes any and all prior executed merchant agreements
between the Parties with respect to Afterpay Services. In the event of any
inconsistency or conflict between the terms and provisions of these General
Terms and the Supplementary Terms, the terms and provisions of the
Supplementary Terms shall control. All schedules to these General Terms are
expressly made part of the Agreement.
(b)
By signing this
Agreement (i.e. by clicking to accept its terms), You agree to be bound by its terms. By electronically indicating Your
acceptance of this Agreement and signing up for an Afterpay merchant account,
You agree that Your electronic consent will have the same legal effect as a
physical signature. If You have not accepted this Agreement prior to using Afterpay’s
Services, Your use of Afterpay’s Services shall constitute acceptance of this
Agreement.
(c)
If You are using
the Services on behalf of a business, You represent to Us that You have the
power and full legal authority to bind that business to the terms of this
Agreement and You accept these terms as an authorised representative on behalf
of that business.
(d)
By signing this
Agreement or using the Services, You also agree to any additional terms
specific to Your use of the Services (if applicable, such additional terms will
display below these terms), which become part of Your agreement with us. Please
ensure You read this Agreement, the Afterpay policies and any other agreements
that apply to You carefully.
(e)
We may revise this
Agreement and our policies at any time. We will give you not less than 30 days’
written notice of any material change to the Agreement and our policies unless
a shorter notice period is required for compliance with any law or regulator
policy applicable to us, to address a material business risk, or for the
purposes of ensuring the security or integrity of any data, IT system or
business process. By continuing to use
the Services without objecting to any amendments or new versions of this
Agreement, You agree to and accept all terms and conditions of any amended
Agreements, including any new or changed terms or conditions. If you do not
wish to continue receiving the Services as a result of any change notified to
You by Afterpay, You may terminate this Agreement in accordance with clause 11.2(b).
2
Term
The Term of the Agreement is set out under Part B of
the Supplementary Terms.
(a)
By signing this
Agreement, You consent to Afterpay’s Privacy Policy,
which details how we collect and handle the personal information You provide to
us.
(a)
Our Services allow
Customers to pay for goods or services offered by You. Afterpay
may permit You to use Our Services online and/or in-Store (as applicable), as
may be set out under Part C of the Supplementary Terms. When Your Customers make an authorised
Afterpay Purchase, we will pay You on behalf of that Customer in accordance
with the terms of this Agreement, in exchange for the Customer agreeing to
repay the amounts to us in accordance with our User Agreement with the Customer.
(b)
We will assume all risk in
collecting payments from Customers that make Afterpay Purchases, except where
liability transfers to You in accordance with this Agreement.
(c)
You must complete
and return to us Your direct debit details and Compliance Documentation so that
we can Verify these details. We may suspend Our Services or suspend the Payment
Date until such details have been Verified. Afterpay may terminate this Agreement
immediately if this documentation can’t be Verified. By providing us with Your bank details and executing
this Agreement, You authorise Us to withdraw monies from Your Account in
accordance with the terms of this Agreement and the Direct Debit Request
Agreement included at Schedule 1. You will not provide Us with any information
in connection with this Agreement that is false, inaccurate, or misleading.
(d)
You warrant that
all information You provide to us in connection with this Agreement
(including any information contained in documents we request from You), is
complete, current and correct.
(e)
Cross Border Trade. Afterpay
may, in its sole discretion, activate Cross Border Trade. The Cross Border
Trade Terms set out in Schedule 2 of these General Terms apply to any Cross
Border Transactions processed by You under this Agreement. Notwithstanding
this, to the extent this Agreement permits You to offer our Services in-Store,
if Afterpay is able to offer You its Services in respect of Cross Border
Transactions at Your Stores at a later date and the Parties agree in good faith
to offer this capability to customers, this Agreement and Schedule 2 of these
General Terms will also apply to Your Stores.
(a)
Technical Integration of Afterpay Gateway. You agree to comply with any reasonable direction given
by us in respect of the integration of the Afterpay Gateway on Your Website
and/or in-Store (as applicable). If the Afterpay express checkout functionality
is made available for technical integration (Express Checkout), You
agree to integrate Express Checkout on Your Website(s) where relevant and
technically possible. If You have implemented
the Afterpay Gateway
other than in accordance with the materials
that Afterpay has provided
to You, You must obtain
written approval from an Afterpay
representative before You
allow Customers to make Afterpay Purchases.
You must obtain written approval from Afterpay if Your implementation of the
Afterpay Gateway deviates from the Brand Management Materials provided by
Afterpay.
(b)
Availability. You
must make Afterpay available for use by Customers on Your Website and/or
in-Store (as applicable) as soon as reasonably practicable or as otherwise
agreed by Afterpay in writing, acting reasonably. You must continue to allow Customers to make Afterpay
Purchases as permitted under this Agreement as long as this Agreement
remains on foot, except: (i) during any period of suspension imposed by us in accordance with the terms of this Agreement; or (ii) as otherwise notified by us.
(c)
Merchant Portal.
You agree that the email address provided to Afterpay as part of the merchant
onboarding process will be automatically added and granted access to Afterpay’s
merchant portal. You may elect to nominate other individuals to be granted
access to the merchant portal upon written notification to Afterpay. Afterpay
may require You to assign a role to each user nominated by You. You acknowledge
You are wholly responsible for the actions of any person to whom access is
granted, including any person who abuses his/her rights. If You would like us
to amend or remove a person’s rights, You must submit a written request to
Afterpay.
(d)
Afterpay Assistance. If you grant Afterpay, including any employee or agent of Afterpay,
access to Your system, website, platform, code base or other technology, for
any purpose related to the Services including, but not limited to, integration
of computer code, other technology, content, images or marketing materials, you
acknowledge and expressly agree that Afterpay will have no liability for any
damage, interruption, errors or other loss related to your system, website
platform, code base or other technology that may be caused by the acts or
omissions of Afterpay,
unless such damage, interruption, errors or other loss related to your system,
website platform, code base or other technology is caused by Afterpay's wilful
misconduct, gross negligence or fraud.
(e)
Control of Website. You agree that You control and will continue to control the content of
Your Website. You must not provide Customers with any information about
Afterpay, the Afterpay Gateway or our Services that is false, misleading or inaccurate. Without
limiting this clause
5.1(e), You must not make any
warranty, representation or statement to any Customer relating to Afterpay, the
Afterpay Gateway or our Services, other than
those contained in Afterpay’s User Agreement,
included on our website, or included in materials provided by us, as may be
updated from time to time, or as otherwise expressly permitted by Afterpay in
writing. You must not use any technology (device, software or hardware) to
damage, intercept or interfere with our Services, or any software
or technology that we use to provide
the Services.
(f)
Display of Afterpay Materials on Your Website. Without
limiting clause 5.1(g), You agree to:
(i)
include on Your
Website and/or in-Store (as applicable) a description of the Afterpay Gateway
in such terms as may be otherwise provided or approved by us in writing;
(ii)
(where relevant
and technically possible) present such description as a 'lightbox' on Your Website as may be provided or approved by us in writing
from time to time;
(iii)
comply with any
reasonable directions we give about how any description of the Afterpay Gateway
is to be displayed on Your Website and/or in-Store (as applicable);
(iv)
as soon as
practicable and, at the latest, within 7 Business Days, comply with any
reasonable direction we give You to modify, replace or remove any description of the Afterpay
Gateway displayed on Your Website
and/or in-Store; and
(v)
not provide any
description of the Afterpay Gateway which does not comply with this clause 4.1(f), or has not otherwise been approved by us in writing.
(g)
Modification or Deletion of Afterpay Materials. If we are
concerned that any content or materials displayed on Your Website or Store does
not comply with clause 5.1(f) of these General Terms, we may request that You
modify or delete the relevant content or materials, or remove them from
display. You must comply with any
request made under this clause as soon as practicable and, at the latest,
within 7 Business Days of the request, unless You can otherwise establish to
our reasonable satisfaction within this time frame that the content or
materials comply with the requirements of this Agreement. We have the right under clause 10 of these
General Terms to suspend Your access to the Afterpay Gateway if you breach
these requirements, or if we reasonably suspect that You have breached them.
(h)
Reimbursement. You
must reimburse us any chargeback amounts (including associated chargeback fees
or other costs incurred) and/or any part of the Sale Price and associated
Shipping Costs that we cannot or do not recover from a Customer in connection
with that Afterpay Purchase to the extent that we reasonably determine, based
on evidence (to be
provided to You, upon request), the chargeback or Customer non-payment is
because of:
(i)
any
conduct (including false or misleading representations), contract,
representation or warranty by you, your officers, directors, employees or
sellers, relating to the Afterpay Services or an Afterpay Purchase;
(ii)
the
Goods which are the subject of the relevant Afterpay Purchase (including,
without limitation, any product liability or warranty claim relating to those
Goods);
(iii)
the
non-delivery of any Goods, late delivery of Goods, or damage to Goods caused
during delivery, or a breach of your obligations under clauses 5.2(a), 5.2(b)
and 5.2(c) of these General Terms; or
(iv)
a
breach of your representation and warranties under clause 12.1 of these General
Terms.
Where practicable, we will provide you with five (5)
Business Days’ notice of any such determination(s). Any
reimbursement under this clause shall be limited to the Purchase Amount (plus
any chargeback costs, if applicable) of any Afterpay Purchase(s) impacted by clauses
5.1(h)(i)-(iv) above, as applicable. You authorise us to collect such
reimbursement via your Direct Debit Request and set-off rights pursuant to
clause 6.1(e) of these General Terms, including against any Purchase Amounts we
hold in suspension under clause 6.1(h) of these General Terms or any Reserve
amounts we hold under clause 6.1(d) of these General Terms. You may
contest any reimbursement by providing Afterpay with evidence showing that
clauses 5.1(h) (i)-(iv) above (as applicable) do not apply, within thirty (30)
days of the date of the reimbursement.
(i)
Customer Disputes. You must co-operate with us to promptly resolve
all disputes with Customers (including where necessary, taking any action reasonably directed by us and as required to protect our
legitimate interests). You agree to respond to any correspondence received from
Afterpay in relation to customer disputes promptly and at the latest within 2
Business Days. You must also ensure the contact details You provide to Afterpay
are up-to-date, complete and accurate.
(j)
Compliance with Law. You must comply with all Relevant Laws in fulfilling Your obligations under this Agreement including in relation to each Afterpay
Purchase, and in relation to the Goods.
You must assist
us to comply with our obligations under any Relevant
Laws as reasonably directed by us. You also agree to comply with all Data
Protection Laws and to not do anything that would cause Afterpay to breach such
laws. Without limitation, You must:
(k)
Misleading information. You must not provide us with any information that is
false or misleading.
(l)
Restricted and Prohibited Goods. You acknowledge
that Afterpay may not permit its Services to be offered on all Goods. You must
not:
(i)
allow the Services
to be used to purchase any of the following categories of Prohibited Goods or
Services at any time; and
(ii)
allow the Services
to be used to purchase any of the following categories of Restricted Goods or
Services without successfully complying with any additional underwriting, due
diligence and/or conditional approval requirements (communicated to You separately
in writing or otherwise by Afterpay).
You agree that
we may immediately terminate this Agreement if You are allowing the Services to
be used to purchase any Prohibited Goods or Services and/or You are unable to
or refuse to comply with any reasonable request by us relating to Restricted
Goods or Services.
Notwithstanding
clauses 5.1(l)(i) and (ii) above, if You are allowing the Services to be used
to purchase any goods or services which Afterpay otherwise considers, in its
reasonable discretion, to be dangerous, inappropriate or high risk, Afterpay
reserves the right to prohibit the use of the Services to purchase such goods
or request removal of such goods from Your Website or Store. Where practicable,
we will provide you with five (5) Business Days’ notice of any such
determination(s).
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Prohibited Goods or Services |
Restricted Goods or Services |
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·
goods or
services that infringe third party Intellectual Property, including (without
limitation) counterfeit goods and pirated content; ·
dangerous goods,
being goods that cause damage, harm or injury, including (without
limitation), recreational drugs (chemical or herbal), psychoactive
substances, equipment to facilitate drug use, weapons, weaponised knives,
self-defence products, ammunition, explosive materials and fireworks,
instructions for making explosives or other harmful products, tobacco
products, e-cigarettes or vaping products, weaponised hunting equipment,
militarised products or armoured goods and clothing; ·
gang or hate
group affiliated products; ·
multi-level
marketing or pyramid structure businesses; ·
jamming and/or
interference devices; ·
financial
services or products; ·
business to
business sales; ·
utilities; ·
pre-orders or
regular subscriptions ·
gambling or gambling-related
content (including lottery, games of chance, and raffles); ·
Selective
Androgen Receptor Modulators or Peptides; ·
products that
enable dishonest behaviour, including (without limitation) hacking software
or instructions, fake documents, essay mills and academic cheating products; ·
prescription drugs, regulated
products, illegal drugs and testosterone boosters or sexual enhancement
products; ·
beauty or
cosmetic treatments that are physically invasive with a high risk of
infection not approved by the Therapeutic Goods Administration ·
cannabis
products (prescription or otherwise); Without limiting the above, any goods or services which are required
by law to be sold to Customers over 18 years of age. |
Categories of Goods sold: ·
gift cards, open loop cards or
reloadable debit cards, calling cards, payment cards that can be used at any
location that accepts cards authorised by the payment card’s network, cash,
or cash equivalents; ·
adult goods (including
pornographic materials, experiences and content), online streaming services
and other content formats deemed offensive or of a sexual nature; ·
alcoholic beverages; ·
services, in the following
categories: Pay-to-remove services; No-value-added services; “Experiences”;
Financial services; Ticketing services; Software services; Health services;
Auto services; Cleaning services and Other personal services; Without limiting the above, any goods or services which are required
by law to be sold to Customers over 18 years of age. |
(m)
BNPL Code. Under the BNPL Code, Afterpay is required to ensure
that its merchants meet certain minimum standards. Without limiting any other
obligations in this Agreement, You must: (i) act lawfully, fairly and ethically
in Your dealings with Customers; (ii) communicate clearly when dealing with
Customers and in marketing and advertising material that relates to Afterpay or
the Services; (iii) have appropriate process and controls in place to safeguard
the confidentiality of Customer information; (iv) respond to Customer
complaints in a timely manner; and (v) provide Customers with clear and up
front information about our Services, fees and charges in a format that is
accessible to Customers. You must also ensure that your employees and agents
are aware of and are trained to meet these minimum standards.
(a)
Approval Confirmation. When a Customer makes an Afterpay Purchase, Afterpay's
systems will promptly issue or withhold Approval Confirmation to You. Afterpay exercises
sole discretion regarding the decision to issue or withhold Approval
Confirmation. You must only Deliver or
provide Goods to a Customer after you have received Approval Confirmation.
Afterpay will not be liable to You for Goods Delivered or provided without
Approval Confirmation.
(b)
Delivery of Goods. Where a Customer makes an online
Afterpay Purchase, You are
responsible for ensuring that all Goods are Delivered to the Customer promptly, and within the expected Delivery
period as represented to the Customer
at the point of sale, and for Goods other than Extended Delivery
Goods, up to a maximum of: (i) fourteen (14) days in respect of Goods that are
goods; and (ii) ninety (90) days in respect of Goods that are services. Except
where You have received specific written approval from Afterpay to the
contrary, Goods must be available to be shipped to the Customer at the time of
the Afterpay Purchase. Where a Customer makes an Afterpay Purchase in-Store, the Goods must be Delivered (or provided) to the Customer
immediately after Approval Confirmation, unless You
expressly agree an alternative Delivery time with the Customer.
(c)
Extended
Delivery Goods. If we have authorised you to allow Customers to make an Afterpay Purchase on Extended
Delivery Goods:
We will have no liability to you for any Extended Delivery Goods that you Deliver to the
Customer after the Extended Delivery Period. For any Afterpay Purchases that
are Extended Delivery Goods, we reserve the right to: (1) extend the Payment
Date to up to seven (7) Business Days, (2) create a Reserve pursuant to clause
6.1(d) of these General Terms; and (3) in the event that Extended Delivery
Goods are Delivered after the Extended Delivery Period, seek a refund from you
on any Purchase Amounts we have paid you as well as reimbursement of any
chargeback fees that we incur in connection with the relevant Afterpay
Purchase. We reserve the right to remove the availability of the Services for
Extended Delivery Goods where we determine in our sole but reasonable
discretion that doing so is necessary to comply with Relevant Laws or to avoid
a higher than acceptable level of risk to Afterpay.
(d)
Non-Delivery of Goods. If we suspect
Goods have not been delivered or a Customer refuses to pay us or issues a
chargeback request on the basis that Goods have not been Delivered, we may ask
You to provide us with proof of Delivery. If we make such a request, You agree to provide us with any information
reasonably requested by us (by email or via the Merchant Portal) to prove
Delivery including but not limited to the shipping carrier name, tracking
number and confirmation that the Goods were delivered to the address specified
by the Customer when making the Afterpay Purchase (or for permitted services,
provide proof of supply of the services).
If You do not
provide this information, or otherwise demonstrate to our reasonable
satisfaction that Goods have been Delivered to the Customer, within two (2)
Business Days of our request, then you agree to
Refund to us any Purchase Amount we have paid you and reimburse us any chargeback
fees we incur in connection with the relevant Afterpay Purchase. We may
elect to be paid such amounts in accordance with clause 6.1(e) of these General
Terms. We will, subject to any accepted chargebacks, refund to the Customer any
amounts paid by the Customer to us in connection with the Afterpay Purchase
upon our receipt of the Purchase Amount
from You. You agree that Afterpay also reserves the right in its sole
discretion to withhold any Purchase Amounts
owed to You until we are satisfied that Goods have been delivered to the
Customer. You also agree that if Afterpay is required to refund a Customer due
to a breach by You of this clause, it is entitled to recover from You any
monies owed to us and may elect to recover those funds in accordance with
clause 6.1 of these General Terms.
(e)
Surcharges. You must not impose a surcharge on
the Customer or discriminate against the Customer in any way for using Afterpay
as a payment mechanism. A surcharge includes any charge
or increase in the sale price, shipping costs or any other Customer fees and
charges that are applied because the Customer has elected to use Afterpay as
their method of payment. For example, You must not charge the Customer a
fee in addition to the Sale Price (and any applicable Shipping Costs) on the
basis that the Customer has elected Afterpay as their chosen payment method.
Similarly, You are not permitted to charge a fee (i.e. a restocking fee) to the
Customer where you accept a Return for a Refund on the basis that the
Customer’s chosen payment method was Afterpay. For
in-Store transactions, You may pass on to the
Customer a surcharge to recover the cost of accepting Mastercard
transactions, or such equivalent costs of any other relevant card scheme
utilised by Afterpay to facilitate in-Store transactions, if required by Your
policies and in accordance with Relevant Law.
(f)
Damaged Goods. You are responsible for
ensuring that appropriate insurance policies are in place for Your Delivery of
the Goods to Customers. Afterpay will not be responsible for any damage
caused to Goods during Delivery, or any loss or damage caused in connection
with the supply of Goods that are services.
(g)
Exclusivity. The exclusivity clause set out under Part E
of the Supplementary Terms will apply.
(a)
Except
as expressly provided herein, nothing in the Agreement shall confer to either
Party or any of its Affiliates any right of ownership in any of the
Intellectual Property of the other Party.
(b)
We
hereby grant to you a limited, fully-paid, non-exclusive, non-transferable,
non-sublicensable, revocable limited license, during the Term, to use the
Afterpay Marks, Afterpay Gateway, Merchant Portal, and Afterpay Software, in
each case, solely in connection with your use of the Services as defined herein
and otherwise carrying out your rights and privileges hereunder. You must not
copy, modify, alter, amend, supply to any third party or use for any other
purpose any Afterpay Intellectual Property without our express prior written
consent. Subject to clauses 7.1(d) and 11.3(a) of these General Terms, on termination of the
Agreement, you must: (i) permanently delete all copies of the Afterpay
Software in your possession or control, (ii) as soon as reasonably practicable
discontinue the use or display of any Afterpay Intellectual Property, and (iii)
dispose of any works embodying any Afterpay Intellectual Property. Without
limiting this clause, if these General Terms are amended to remove your right
to offer the Afterpay Gateway online or in-Store, you must immediately
discontinue the use or display of any Afterpay Intellectual Property associated
with the discontinued right.
(c)
You
shall use the Afterpay Trade Marks only in accordance with the design,
description and/or appearance of the Afterpay Trade Marks as presently used by
us. You may not change or modify the Afterpay Trade Marks. You agree to abide
by any reasonable guidelines provided by us from time to time in connection
with the use of the Afterpay Trade Marks. You further agree that any products
or services promoted in association with the Afterpay Trade Marks meet or
surpass the standards set by us and conveyed to you from time to time for the
character and quality of such products and services. The initial standard for
such products and services is the nature, standard and quality of the same or
equivalent products and/or services provided by us up to and including the date
hereof in association with the Afterpay Trade Marks. At our request, you shall
provide to us for our review, comment and approval, samples of such products
and sample copies of materials associated with such products or used to
advertise/promote the products on which the Afterpay Trade Marks appear and the
services promoted and provided in association with the Afterpay Trade Marks.
(d)
You
hereby grant Afterpay a fully-paid, non-exclusive, non-transferable limited
license, during the Term, to use your legal name or trade name in the user flow
associated with the Afterpay Services. You shall retain all Intellectual
Property rights in such name. Other than the foregoing license rights, Afterpay
shall not obtain any right, title, or other interest in or to your name by
virtue of the Agreement. Upon the earlier of the expiration or termination of
the Agreement, all license rights conveyed by you to Afterpay shall cease, and
all such rights shall revert to you.
(e)
You
grant Afterpay and its Affiliates during the Term a non-exclusive,
non-transferable, revocable and royalty free licence to use your name, logo,
and details of your Website in our marketing materials and channels, including,
without limitation: in directory listings of Afterpay's merchants; product
listings; email marketing; social media marketing; and affiliate network
marketing. You also grant Afterpay and its
Affiliates during the Term a non-exclusive, non-transferable, revocable and
royalty free licence to use one or more image(s) of
our choosing from your Website in our marketing materials and channels. You
agree to obtain on our behalf any third-party consents or licenses required to
enable us to use any such image as contemplated by the Agreement, without
attribution and without charge to us. If you notify us that you would like your
name, logo, and/or details of your Website removed from this marketing
material, or would prefer us to use a different image, we will do so as soon as
reasonably practicable.
(a)
All payments made
under this Agreement must be made in Australian dollars.
(b)
We will pay the Purchase Amounts associated with each Afterpay Purchase
to You on the Payment Date for such Afterpay Purchase, as a single transaction,
netting the aggregate Purchase Amounts for all Afterpay Purchases due to You on the Payment Date
against all amounts then due to Us under this Agreement, as described in this clause
and by direct transfer to Your Account nominated and communicated by You to
Afterpay in writing. We cannot guarantee
against any delays of receipt of Purchase
Amounts caused by the banking system or other external factors.
The Fee is not refundable unless
paid incorrectly.
(d)
Afterpay reserves
the right to seek a certain amount of funds from You, or withhold amounts from the Purchase Amounts that
may be payable to You, for the purposes of setting aside a reserve (“Reserves”),
in order to secure the performance of Your obligations under this Agreement. We
may set aside a Reserve if we determine in our sole but reasonable discretion
that there may be a higher than acceptable level of risk associated with You,
Your business model or Your performance under this Agreement where:
(i)
Your average
expected Delivery period exceeds fourteen (14) days in respect of Goods that
are goods or ninety (90) days in respect of Goods that are services;
(ii)
Your average
expected Delivery period for Extended Delivery Goods exceeds any authorised
Extended Delivery Period;
(iii)
We reasonably
consider that Your business model or industry has a higher than acceptable rate
of chargebacks or disputes;
(iv)
You materially
change Your business model;
(v)
there are issues
relating to excessive disputes or refunds;
(vi)
We reasonably
determine that You are experiencing a material deterioration in Your financial
performance and position;
(vii)
We reasonably
consider that other activity associated with Your use of our Services is in
breach of any law;
(viii)
You are subject
to, or we reasonably consider that You may be at a higher than acceptable risk
of becoming subject to, an Insolvency Event; or
(ix)
required by law,
court order or regulatory body.
If we require a Reserve we will use reasonable efforts
to provide You with 14 days’ written notice. However, there may be
circumstances where we need to take immediate action to comply with any law or
regulator policy applicable to us or to address a material business or security
risk. We will communicate the terms of the Reserve to You, including the
general reason for the Reserve and the conditions upon which the funds in
the Reserve will be released to You.
We may, acting reasonably, change or condition the
terms of the Reserve based on our continuous assessment and understanding of
the risks associated with You, Your business model, or the performance of Your
obligations under this Agreement and we will communicate this to You. You
can monitor your Reserve balance by viewing the Reserve Activity Report in the
Merchant Portal.
Afterpay’s
rights under this clause 6.1(d) and related set-off rights under clause 6.1(e)
below shall continue in effect for up to one hundred and twenty (120) days
after termination of this Agreement for any reason
(e)
Afterpay may, without notice: (i) set off against any amounts We
owe You under this Agreement, including any amounts we may hold in Reserves, all
amounts we reasonably determine that You owe Us under this Agreement
(including, without limitation, the Fees, any Refund Amounts, Customer Payments
and any amounts under clauses 5.1(h), 5.2(c) and 5.2(d)); or (ii) debit Your
Account for the amounts owed to Us under this Agreement and in accordance with
the Direct Debit Request. Any amounts that we offset
or debit against payments owing to us shall nonetheless be treated as a payment
from you to us for all Tax, accounting, invoicing, and other relevant purposes.
You may contest any set-off or debit by providing Afterpay with evidence
showing that the applicable set-off or debit amount is not owed to Afterpay in
accordance with this Agreement, within thirty (30) days of the set-off or debit
(as applicable).
(f)
You must not accept payments or ongoing repayments for
any Goods on Our behalf.
(g)
If, for any reason, You receive any part of a payment
relating to an Afterpay Purchase
directly from a Customer ("Customer
Payment"): (i) You will promptly notify us of the details of the
Customer Payment, including the identity of the Customer, the Goods to which
the Customer Payment relates, and the amount of the Customer Payment; and (ii) You authorise us to set off any
Customer Payment against amounts We owe to You under this Agreement in
accordance with this clause.
(h)
Afterpay reserves
the right to suspend, extend or delay the Payment Date or otherwise suspend,
extend or delay the payment of Purchase
Amounts to Your Account until Your details have been Verified under
clause 4(c) of these General Terms. For the avoidance of doubt, where
payments of the Purchase Amounts
to Your Account are suspended, extended or delayed, Afterpay reserves the right
to deduct from the suspended Purchase Amounts
any amounts You owe Afterpay under this Agreement, including Your liability to
Afterpay arising from a breach of Your representations and warranties under
clause 12.1 of these
General Terms. If we suspend, extend or delay the Payment Date for any reason
under this clause, we will communicate to You: (a) the general reason for the
suspension, extension or delay, (b) any reasonable information we may require
to assist Us with progressing the release of funds, and (c) a timeline for
releasing the funds, if applicable.
(a)
Taxes on Underlying Afterpay Purchases. You agree and acknowledge that Afterpay shall
not be responsible for determining, or calculating, paying or remitting to the
applicable Tax Authority any Taxes that may be assessed, incurred, or required
to be collected, paid, reported, or withheld for any reason with respect to
transactions or payments initiated by any Customer or otherwise in connection
with Your use of the Services or any Afterpay Purchase. In the event that a Tax
Authority assesses additional Tax on any underlying transaction to Afterpay,
You shall fully indemnify, defend, and hold Afterpay harmless against such
Taxes and any other related expenses or costs. For the avoidance of doubt,
Afterpay shall not be liable to You for any Taxes (or any charges similar to a
Tax) assessed on or upon any Afterpay Purchase. Such limitation of liability
shall cover assessments by any Tax Authority as well as any other
indemnification claim.
(b)
Taxes on Fees and Services. The Fees payable by You to Afterpay as set
forth in this Agreement are exclusive of any Taxes. You agree to pay any Taxes
(other than any income Taxes of Afterpay) imposed in connection with the Fees
or otherwise in respect of the Services, unless You provide Afterpay with
documentation satisfying the requirements under Relevant Law to establish that
the otherwise applicable Taxes are not required to be charged. In the event
that such Taxes are applicable, such Taxes shall be calculated by Afterpay, and
presented to You as required under applicable Tax law, for payment to Afterpay.
In addition, You agree to fully indemnify, defend and hold Afterpay harmless
against any Tax imposed by a Tax Authority for failure to apply correct Taxes
if such failure is a result of Your failure to provide Afterpay with the
correct evidence to support your exemption from such Taxes.
(c)
Withholding Taxes. If applicable, Afterpay shall be entitled to deduct from any payments
to You the amount of any applicable withholding T faxes with respect to amounts
payable, or any other Taxes, in each case required to be withheld by Afterpay
to the extent that Afterpay remits to the appropriate Tax Authority on behalf
of You such Taxes. Any amounts so deducted or withheld shall be treated as
having been paid for all purposes of this Agreement and Afterpay will not be
obliged to increase or gross-up any payment on account of any withholding of
Tax. If Afterpay eliminates or reduces withholding Tax in accordance with any
treaty or other Tax claim by You and a relevant Tax Authority determines a
higher withholding Tax amount should have been paid than that which was withheld
by Afterpay, then You agree to fully indemnify and hold Afterpay harmless for
the full amount of such underwithholding as well as any related penalties,
interest and other costs.
(d)
Tax Information Reporting. Afterpay may be obligated under Relevant Law
to report certain information to Tax Authorities (“Tax Information”)
and/or to You with respect to amounts payable to You under this Agreement.
Prior to payment, You shall provide Afterpay with the necessary Tax forms, Tax
identification details and other Tax documentation to complete any applicable
Tax Information reporting and recertify such documentation from time to time,
as may be required by Relevant Law. You acknowledge and agree that Afterpay
will report to the applicable Tax Authority the required Tax Information.
Afterpay also may, but is not obligated to, send to You the Tax Information
reported.
(e)
No Tax Advice. You acknowledge that Afterpay is not providing any Tax advice and
nothing Afterpay says or provides to you should be interpreted as such. For any
Tax-related inquiries in connection with the Services or this Agreement, you
should consult your own Tax or legal advisor.
(a)
Your policies and
agreements (including Your refund policy) with a Customer must comply with
Relevant Laws. You must consider any Customer's request for Return in good
faith and in accordance with your policies and Relevant Law. You will be
responsible for processing any Returns in accordance with your policies.
(b)
Subject to clause
7.1(d), if Goods are Accepted for Refund (in whole or in part), by You then any
Refund Amount due in relation to the Return is owed to Afterpay and not the
Customer. You must promptly upon receipt of the returned Goods (and, at the
latest, within 3 Business Days of such receipt), inform Us of the Return and
enter the Refund Amount via the Merchant Portal or the associated API. All
Afterpay Purchases that are Accepted for Refund (in whole or in part) must,
subject to clause 7.1(d), be refunded via the Afterpay tender type. If a refund
for such Goods is processed using another payment method, We reserve the right
to hold you liable for the Purchase Amount
associated with the Goods Accepted for Refund via another tender type.
(c)
When You agree to provide a Customer with a Refund,
You will be liable to Us for the Refund Amount on the applicable Payment Date,
and We may recover those sums in accordance with clause 6 of these General
Terms (or, where we have not yet paid the Purchase Amount to You, by deducting the Refund Amount
from the Purchase
Amount
relating to those Goods). Afterpay will cancel any future payments due by
the Customer to Afterpay and/or
refund to the Customer any amounts paid by the Customer to Afterpay.
(d)
For Returns processed more than 120 days after the
date on which Approval Confirmation was provided or for Returns processed more
than 60 days after the termination of this Agreement (to the extent Afterpay,
in its sole discretion, permits any Returns after the termination of this
Agreement), the terms of this clause 7 shall not apply, and Afterpay shall have
no liability to You with respect to such Returns. You must deal directly with
the Customer with respect to such returns and the associated refund and process
such refund via another tender type. Without limiting this clause 7.1(d), any
assistance We may provide to You to effect payments to Customers for any
Refunds for such Goods shall be at Our sole and absolute discretion.
(e)
Nothing in this clause
will prevent any Customer from exercising any other rights in respect of the
Return of any Goods (including for the exchange or repair of the Goods) or
store credit for the Goods.
(a)
Except as
permitted or required by this Agreement, each Party must not use or disclose
any of the other Party's Confidential Information.
(b)
Each Party may
disclose the Confidential Information of the other Party:
(i)
when required to
do so by Relevant Law or any regulatory authority of competent jurisdiction
(provided that the first Party provides the other Party with reasonable prior
written notice of such disclosure, if legally permitted, to allow such Party
adequate opportunity to seek a protective order preventing or limiting the
disclosure) or registered stock exchange offering either Party’s securities;
(ii)
to a director,
officer, employee, agent, contractor, professional adviser, investor or
financing source (or potential investor or financing source) of the first party
whose duties reasonably require such disclosure, provided such person has
agreed to keep the information confidential;
(iii)
with respect to
Your Confidential Information provided in connection with a specific Afterpay
Purchase, Afterpay may use such information to process transactions and service
Customer accounts; and
(iv)
when reasonably
necessary for the purposes of any legal or arbitral proceedings involving the
first party or any of its related bodies corporate or Affiliates.
(c)
Each Party may use
the Confidential Information of the other Party to fulfil its obligations under
this Agreement and, with respect to Confidential Information provided in
connection with a specific Afterpay Purchase, Afterpay may use such
Confidential Information to process such specific transaction or as otherwise
provided under its privacy policy.
(d)
Each Party must
take all reasonable steps to ensure that no Confidential Information of the
other Party is used, directly or indirectly, in any way that is detrimental or
adverse to the other Party and that each person to whom any Confidential
Information of the other Party must be or has been disclosed does not use or
disclose such Confidential Information except as is consistent with these
confidentiality commitments.
(e)
Each Party must
take steps no less rigorous than those which it takes in respect of its own
information to prevent any unauthorised use, disclosure or loss of, or
unauthorised access or damage to, the Confidential Information of the other
Party under its possession or control.
(f)
Any and all Confidential Information disclosed by one
Party and received by the other Party prior to the Effective Date will be
subject to the obligations set out in this clause 8.
(a)
If any dispute arises between the Parties under this
Agreement, both Parties agree to make a good faith effort to resolve the
dispute within thirty (30) days’ written notice of such dispute. No claim,
arbitration, litigation, or other proceeding may be commenced (other than for
undisputed amounts) before the Parties have attempted to resolve the dispute
pursuant to this provision, unless immediate injunctive relief is being sought.
If the Parties are unable to resolve the dispute (including after conducting
good faith negotiations), the Parties may pursue their respective rights under
Relevant Law with respect to the dispute.
(b)
We may request additional
documentation from You to assist us in resolving any complaints or disputes
(including Customer complaints and disputes), and You must provide all
reasonable assistance to us to facilitate us in resolving
any complaints or disputes (including Customer complaints and disputes).
(a)
In addition to Our
rights in this Agreement, we may suspend Your access to the Services, including
the ability to process Refunds and, in the event of non-delivery of Goods,
suspected fraud or malicious activity, withholding of Purchase Amounts, by giving You written notice if:
(i)
You have breached
(including repeatedly), or we reasonably suspect that You have breached, any
provision of this Agreement;
(ii)
You undergo a
change of ownership or control and We are unable to verify your new ownership
or We are prohibited from doing business with You under Relevant Law;
(iii)
It is necessary to
protect Our systems or the Services against harm, including but not limited to
fraud or malicious activity;
(iv)
You are subject to
an Insolvency Event;
(v)
Afterpay is
unsuccessful in debiting Your account pursuant to the Direct Debit Request
Agreement;
(vi)
We reasonably believe that continuing to process transactions is in
breach of Relevant Laws; or
(vii)
Acting reasonably,
we consider that Your behaviour is in breach of any Relevant Law or our
internal policies and procedures (which are required by us to meet our own
obligations relating to Relevant Laws).
(b)
This suspension
will remain in place until the reason for the suspension has been remedied.
(c)
Without limiting
Your other obligations under the Agreement, while any suspension is on foot, You must promptly comply with all
reasonable directions that We give regarding Your advertisement and offer of
the Afterpay Gateway, including Your use of Afterpay Intellectual Property.
(a)
Either Party may
terminate this Agreement immediately (or from such other date as it may
nominate) by giving the other Party written notice of termination if:
(i)
the other Party
breaches any provision of this Agreement, and
either: (A) such breach is incapable of remedy; or (B) the other Party has failed to remedy such breach
within 14 days of the date
of a written notice issued to it by the Party requiring remedy of the breach;
(ii)
the other Party
engages in any fraudulent activity or conduct;
(iii)
the other Party is
unable to perform its obligations as a result of a Force Majeure event, and
such event continues for a period of 30 days;
or
(iv)
the other Party
experiences an Insolvency Event.
(b)
In addition, We
may terminate this Agreement by giving You written notice of termination if:
(i)
We are unable to
Verify Your direct debit details and/or Compliance Documentation under clause 4(c)
of these General Terms;
(ii)
we reasonably
believe that Your consumer agreements with Customers do not reflect the
original basis of our contracted agreement (including, without limitation,
where You change Your policies
in any way that affects
the ability of any Customer to Return any Goods in the manner
intended under this Agreement);
(iii)
we reasonably
believe that You have breached any of Your representations and the warranties
in clause 12.1 on a repeated basis;
(iv)
the Monthly
Default Rate is 4% or higher for 2 or more consecutive months;
(v)
You are offering
for sale or selling Prohibited Goods or Services and/or Restricted Goods or
Services through Your Website or in-Store;
(vi)
Without our
consent (which will not be unreasonably withheld) You become subject to the
control of a person who does not control You at the time this agreement is made
or you have a new beneficial owner who directly or indirectly owns 25 per cent
or more of You;
(vii)
Afterpay ceases
providing the Services; or
(viii)
We are
unsuccessful in debiting Your account pursuant to the Direct Debit Request
Agreement and any such default remains uncured for more than two (2) Business
Days.
(a)
Either You or We
may terminate this Agreement for any reason by giving at least 14 days’ prior
written notice. To the extent that Part B of the Supplementary Terms
includes an “Initial Term”, this clause 11.2(a) will noy apply during such
Initial Term.
(b)
Despite clause
11.2(a), if we provide You with written notice of a proposed change in
accordance with clause 1(e), at any time before the effective date of the
proposed change, You may terminate this
Agreement in response to the proposed change by giving us written notice at any
time before the effective date of the proposed change.
(a)
Termination of
this Agreement does not affect any right or obligation which arose under this
Agreement before such termination
and is without prejudice to the Parties' other rights and remedies. Afterpay, in its
sole discretion, may permit or require Returns processed within 60 days
following the termination of this Agreement to be processed via the Afterpay
tender type in accordance with clause 7.1. For
the avoidance of doubt, Afterpay's rights under clause 6.1(c), 6.1(d) and 6.1(e)
of these General Terms continue in relation to Customer Payments received by
You, and Refunds approved by You, after termination.
(c)
Any amounts owing
to You under this Agreement which are due to be paid to You after the date of
termination may be withheld until we are satisfied that the obligations in
clause 11.3(b) have been met.
(d)
Without limiting
the other provisions of this Agreement, clauses 5, 6, 7, 8, 11.3 and 12 of these
General Terms, and all other terms which by their nature are required to
survive termination of this Agreement, will survive termination of the Agreement.
(a)
You make the
following representations and warranties to us in relation to each Afterpay Purchase:
(i)
You do not know of
or have any reason to suspect any fraud or suspicious activity relating to the
Afterpay Purchase, and neither You nor Your employees or agents have concealed
or otherwise failed to disclose to us any information of which You or Your employees
or agents have become aware is contrary to any of the statements made in the
Afterpay Purchase or in any other information or documentation provided by You
to us, or otherwise engaged in any fraudulent or misleading conduct in
connection with the Afterpay Purchase;
(ii)
You have Delivered
or have arranged for Delivery of, all the Goods involved in the Afterpay
Purchase;
(iii)
in relation to
Goods that are goods: (A) the Customer has, or will have, title to the Goods
listed and clear of all encumbrances, liens and claims; (B) the Goods, at the
time they were Delivered to the Customer, were of merchantable and acceptable
quality; (C) the Goods match any sample or demonstration model shown to the
Customer; (D) the Goods, at the time they were Delivered to the Customer, were
fit for any particular purpose which the Customer made known to You or Your
agents or employees; and, in relation to Goods that are services; and (E) the
Goods have been, or will be, provided with due care and skill within the agreed
time frame, or within a reasonable time frame if no time has been agreed for
provision of the services, in each case up to a maximum time frame of ninety
(90) days from the date of the Afterpay Purchase;
(iv)
You will not: (A)
allow the Services to be used to purchase Prohibited Goods or Services, and (B)
without prior written permission from Afterpay, allow the Services to be used
to purchase Restricted Goods or Services;
(v)
each Afterpay
Purchase will represent a bona fide sale of the Goods by You in the ordinary
course of Your business, and You will provide Us with complete and accurate
purchase information with respect to each Afterpay Purchase;
(vi)
You have all the
licences, approvals and consents necessary to supply the Goods (including
services) offered by You;
(vii)
You will maintain
in full force and effect at all times during the operation of this Agreement
appropriate insurance policies to cover You and Your respective employees,
officers, contractors and agents for their respective rights, interests and
liabilities to third parties for loss or damage to any property and injury
(including death) to any person arising from or in connection with the
provision of any services offered by You;
(viii)
any services
offered by You will only be performed by personnel of Your Store with the
appropriate level of certification and training required to perform such
services;
(ix)
You have not
sought or obtained, and will not seek or obtain, any special arrangement or
condition from, nor discriminated in any way against, the Customer with respect
to the terms of the Afterpay Purchase; and
(x)
You will not do
anything to prevent any amounts owing to Us in connection with an Afterpay
Purchase from being valid and enforceable against the relevant Customer.
(a)
To the extent not prohibited by law, under no
circumstances shall either Party, its subsidiaries, partners, or Affiliates, be
liable to the other Party, its subsidiaries, partners, or Affiliates, for
personal injury or any indirect, incidental, consequential, special or
exemplary damages, loss of profits, loss of revenue, loss of sales or business,
loss of agreements or contracts, loss or damage to goodwill, loss of use or
corruption of software, data or information arising from or relating to this
Agreement, the use of or inability to use the Services, the Afterpay Gateway or
the Merchant Portal, or Our or Your liabilities to third parties arising from
any source.
(b)
To the full extent
permitted by law, and subject to clause 12.2(e), the aggregate liability of either Party and its Affiliates and
suppliers to the other Party and its Affiliates and suppliers for all claims
arising out of or related to this Agreement or Your use or inability to use the
Afterpay Gateway or the Merchant Portal will not exceed $5,000. This does not limit Afterpay’s obligations to pay you any
Purchase Amount due to you under this Agreement, your obligations relating to
Refunds or Fees under this Agreement, or your representations and warranties
under clause 12.1(a)(i)-12.1(a)(iii), and Your obligations under clause
12.3(a).These limitations will apply even if the above stated remedy
fails of its essential purpose. For the avoidance of doubt, this does not limit
Afterpay's obligations to pay You any Purchase Amount due to You under the
Agreement.
(c)
To the extent
permitted by Relevant Laws, Afterpay limits its liability in connection with
the Non-Excludable Rights (including its liability for breach of any implied
condition or warranty) to, at our option:
(i)
in the case of services: (A) the re-supply of the
relevant services; or (B) the payment
of the cost of having
the relevant services
supplied again; and
(ii)
in the case of goods: (A) the replacement of the goods
or the supply of equivalent goods;
(B) the repair of the goods; (C) the payment of the cost of replacing the goods
or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired.
(f)
To the extent permitted by law, a Party's liability to the other Party under
or in connection with this
Agreement is reduced to the extent, if any, to which the other Party's acts or
omissions (including as a result of negligence, wilful misconduct or a breach
of this Agreement) cause or contribute to its own loss or damage.
(g)
The Parties must
take all reasonable steps to mitigate any loss incurred by them under this
Agreement.
(i)
any transaction,
contract, understanding, promise, representation, warranty or other
relationship, actual, asserted or alleged, between You and any Customer
relating to the Afterpay Purchase or the Goods
(including, for example, without limitation, any claim that a Customer was not
advised of the risks associated with the supply of services by You or was not
otherwise provided with the appropriate waiver forms to undergo such services);
(ii)
any Goods
(including, without limitation, any product liability or warranty claim
relating to those Goods, any claim that the supply of the Goods breaches
a statutory guarantee, and
any claim by the Customer relating to the quality or sufficiency of the Goods).
For the avoidance of doubt, this clause includes any services performed by You
or Your personnel (including any claim relating to the supply of those
services, such as any claim that the services were not performed by personnel
with the appropriate certification and training);
(iii)
any false or
misleading representation or fraudulent conduct by You or Your officers, directors, employees or agents
in connection with an Afterpay
Purchase or any related
Goods, the Services, or any related matter; and
(iv)
any
inaccuracy in any Tax Information provided hereunder.
(b)
This indemnity is
a continuing obligation, independent of Your other obligations under this
agreement and continues after this Agreement ends. It is not necessary for us
to incur expense or make payment before enforcing a right of indemnity under
this Agreement. However, we will not exercise the right of indemnity under this
clause where it relates to a particular Customer's Afterpay Purchase until
after we have raised the relevant issue with You for discussion, and You have
had a reasonable time to respond or to remedy the issue with that Customer to
our reasonable satisfaction.
(c)
To the extent that
the indemnity in clause 12.3(a) is in favour of a person other than
Afterpay, we contract as trustee of the rights under the indemnity.
(a)
Unless otherwise
specified in this Agreement, any notices to be given hereunder to any other
Party, including any notice of a change of address, shall be in writing and
shall be deemed validly given if sent by electronic mail, as follows:
(i)
If to Afterpay:
[email protected] (or an email address otherwise notified to You by
Afterpay)
(ii)
If to You, to the
address You provide through the Merchant Portal.
Afterpay
does not: (a) enter into a partnership, joint venture, agency or employment
relationship with You; (b) guarantee
the identity of any Customer who may place an order to buy goods or services from You or assume any other
responsibility for that Customer other than as set out in this Agreement; or (c) determine if You are liable for any Taxes,
or collect or pay any Taxes that may arise from Your use of our Services.
(a)
This Agreement is
governed by the law in force in New South Wales, Australia. Each Party
irrevocably submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction in New South Wales, Australia.
(b)
The arrangements
for the sale and purchase of any Goods is a separate consumer contract between
You and the relevant Customer and that the Customer’s rights and remedies as a
consumer in respect of that sale and purchase (including any Return of those Goods) are as between
You and the Customer, to the exclusion
of Afterpay (to the maximum
extent permitted by law).
13.4
Entire Agreement. This Agreement, including these General
Terms, together with the Supplementary Terms, and all Schedules, Exhibits or
Addenda hereto, constitute and contain the entire agreement between You and us
with respect to the subject matter hereof and supersedes any prior or
contemporaneous oral or written agreements. You and we acknowledge and agree
that the other has not made any representations, warranties or agreements of
any kind, except as expressly set forth herein.
13.5
No Waiver. A failure
to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as
a waiver. A single or partial exercise or waiver of the exercise of any right,
power or remedy does not preclude any other or further exercise of that or any
other right, power or remedy. A waiver is not valid or binding on the Party
granting that wavier unless made in writing.
13.6
Headings
Not Controlling. The headings of the clauses of this Agreement are inserted for
convenience only and are not intended to affect the meaning or interpretation
of this Agreement.
13.7
Severability.
If any provision of this
Agreement (or any portion thereof) is determined to be invalid or
unenforceable, the remaining provisions of this Agreement shall not be affected
thereby and shall be binding upon the Parties and shall be enforceable, as
though said invalid or unenforceable provision (or portion thereof) were not
contained in this Agreement.
(a)
You may not
transfer or assign any rights You may have under this Agreement without our
prior written consent, not to be unreasonably
withheld.
(b)
We may transfer or assign this
Agreement, and any right under this Agreement, to a third party or an Afterpay
Affiliate, and we will notify You in advance of such a transfer or assignment.
Terms
in these General Terms which are capitalised but not otherwise defined above or
in the Supplementary Terms have the following meanings:
Accepted for
Refund means, in respect of any Goods that are Returned
to You, Your acceptance
of those Goods for Refund.
Account means Your bank account held at Your financial
institution from which Afterpay is authorised to arrange for funds to be
debited as detailed in the Direct Debit Request.
AFIA means Australian Finance Industry Association
Limited. AFIA is responsible for the development of the BNPL Code, including
the independent Code Compliance Committee that has been established by AFIA to
monitor and investigate compliance with the BNPL Code.
Affiliate
means
a person or entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with
the respective Party. For the purposes of this agreement, control shall mean
ownership (directly or indirectly) of at least 50% either (i) of the voting
shares or similar voting instruments or the combined voting power in an entity
or association or the power to direct or cause the direction of the general
management or policies of an entity or (ii) the total value of all stock,
capital interest, or profits interest in such entity or association.
Afterpay
Gateway means the Afterpay electronic payment gateway system, which
allows participating merchants to offer Customers the ability to pay for
Afterpay Purchases in instalments, on a "buy now, pay later" basis.
Afterpay
Intellectual Property means all
Intellectual Property owned or licensed by Afterpay, including the Promotional
Materials and Afterpay Trade Marks, but excluding Your Intellectual Property.
Afterpay
Purchase means a purchase by a Customer
of any Goods via Your Website or in- Store up to the value permitted by
Afterpay for supply in-Store or Delivery to a location in Australia, using
Afterpay as a payment method and for which Afterpay has provided Approval
Confirmation to You.
Afterpay
Software means the
software provided by Afterpay to you pursuant to the Agreement.
Afterpay
Trade Marks means all Trade Marks
owned or licensed by Afterpay, excluding Your Trade Marks.
Approval
Confirmation means electronic notice
from us to You that an Afterpay Purchase has been approved by us.
Australian
dollars, $ and cents refers to the
lawful currency of the Commonwealth of Australia.
BNPL
Code means the Code of Practice for Buy Now Pay Later
Providers established by AFIA that is available
https://afia.asn.au/AFIA-Buy-Now-Pay-Later-Code-of-Practice.
Brand
Management Materials mean the Afterpay brand, logo, website integration,
marketing guidance and Promotional Materials that Afterpay provides to
Merchants from time to time.
Business Day means a day other than a Saturday, Sunday or national
public holiday in Australia.
Compliance
Documentation means the documentation which we are required to obtain from You and
Verify in accordance with our internal risk and compliance procedures, which
will be provided to You or made available on our website.
Confidential Information means the terms of this
Agreement, trade secrets or proprietary business information, and any information (of whatever form and
nature) disclosed by a party to the other party, but Confidential Information does
not include information which: (i) at the time of the first disclosure to a party, was already in the lawful
possession of the party; (ii) is in or comes into the public domain otherwise
than by disclosure in breach of this
Agreement; (iii) becomes available
to a party legitimately from any other third party source that is legally
entitled to that information; or (iv)
was
independently developed by employees or agents of the receiving Party who had
no access to any Confidential Information.
Cross Border
Trade means functionality to allow Afterpay merchants
to use the Services for transactions relating to certain Customers located
outside of Australia which allows those Customers to use their Afterpay
Affiliate account to purchase Goods offered on merchant websites for delivery
outside of Australia.
Cross Border Transaction means an Afterpay Purchase between You and a Customer
residing, and with their principal place of residence in an overseas
jurisdiction permitted by Afterpay.
Customer means a person who buys Goods from
You via Your Website or in-Store using Afterpay
in Australia or, in relation to a Cross Border Transaction, a person who is
customer of an Afterpay Affiliate who uses a product or service similar to
Afterpay's to buy Goods via Your Website or in-Store.
Customer
Payment has the meaning given to it by
clause 6.1(g) of these General Terms.
Data means data, information and Personal Information about
Customers that is collected by You, directly or indirectly, from Afterpay and
handled by You in connection with this Agreement.
Data Protection Laws means all applicable laws
and regulations, including without limitation the Privacy Act and any spam or
do not call laws relating to privacy and processing Data (each as modified,
amended, extended, consolidated, re-enacted and/or replaced from time to time).
Delivered means: (a) in the case of Goods that are goods,
delivered; and (b) in the case of Goods that are services, supplied; and
Delivery and Deliver have corresponding meanings.
Direct Debit
Request means the direct debit request
and annexed direct debit request service agreement which authorises us to
withdraw monies from Your Account in accordance with its terms and this
Agreement.
Fee means the fee set out in Part D of the Supplementary Terms.
Goods means the item(s) or service(s) supplied by You to a
Customer under an Afterpay Purchase.
GST means the goods and
services tax as defined in the GST Law, or any other like tax imposed in
Australia.
GST Law means the A New Tax
System (Goods and Services Tax) Act 1999, A New Tax System (Goods and
Services Administration) Act 1999, A New Tax System (Goods and Services
Tax Transition) Act 1999, Taxation Administration Act 1953 and any
regulations made pursuant to any of these Acts, or if any one of these Acts
does not exist for any reason, any act imposing or relating to a GST and any
regulation made pursuant to any such Act.
Insolvency
Event means an event where a receiver,
administrator, liquidator, other controller or similar official is appointed
over any of the assets or undertaking of a Party, or where a Party suspends
payment of its debts generally or becomes insolvent, or where a Party enters
into any arrangement, composition or compromise with, or assignment for the benefit of its creditors or any class
of them; or where a Party
ceases to carry on business.
Intellectual
Property means all (i) Trade
Marks, service marks, and other indications of origin, and all goodwill
associated therewith and all applications, registrations and renewals
associated with the foregoing; (ii) inventions, discoveries and ideas (whether
patentable or unpatentable and whether or not reduced to practice), and all
patents, patent rights, applications for patents (including, without
limitation, divisions, continuations, continuations-in-part and renewal
applications), and any renewals, extensions or reissues thereof; (iii) trade
secrets, know-how, Confidential Information, and other proprietary rights and
information; (iv) copyrights and works, including works of authorship, whether
copyrightable or not and all applications, registrations, renewals and
extensions in connection therewith (whether presently available or subsequently
available as a result of intervening legislation); (v) designs, industrial
designs and design patents and applications and registrations thereof; (vi)
domain names; (vii) databases; and (viii) all other intellectual property and
other proprietary rights.
Merchant
Portal means the online interface
provided to You by Us which is accessible via Our website.
Monthly
Default Rate means the total amount of
payments by Customers in relation to Afterpay Purchases that are more than
thirty (30) days overdue divided by the total amount of payments by Customers
in a particular month, calculated thirty (30) days after the end of that particular
month.
Party
or
Parties has the meaning
given in clause 1 of these General Terms.
Payment Date means, as the context requires:
For Purchase
Amounts and Fees,
up to Five Business
Days immediately following the date of the Afterpay Purchase.
For Refund
Amounts: The Business Day following
the day on which the Goods are Accepted for Refund and You enter the refund of
the Goods via the Merchant Portal.
Personal Information has the same meaning as in the Privacy Act.
Privacy Act
means the Privacy Act 1988 (Cth), together with any related or ancillary
legislation, codes of conduct, recommendations, directives or orders made or
issued under any such legislation.
Promotional
Materials means electronic banners and
logos, lightboxes, point of sale materials, and any other marketing,
advertising and promotional materials
relating to Afterpay
and provided by Us to You from time to
time.
Purchase
Amount means, in respect of each
Afterpay Purchase, the relevant Sale Price plus any Shipping Costs.
Refund means a partial or whole refund of the Sale Price for
any Goods Accepted for Return and/or of any related Shipping Costs.
Refund Amount means, the amount that You agree to Refund to a
Customer for Goods Accepted for Return according to Your policies, or other
amount that You agree to refund to a Customer.
Relevant Law means any law, regulation, code, ordinance, rule or
other legislative instrument, or any guideline issued by any regulator or
statutory authority or any relevant industry codes including, without limitation the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth), the
Spam Act 2003 (Cth) and the Data Protection Laws, as amended from time
to time.
Return means the return of any Goods to You by a Customer in connection
with an Afterpay Purchase (and other than a return of goods by the
Customer for the purposes of an exchange, the grant of store credit or for
repair) initiated by the Customer.
Sale Price means the purchase price of the Goods supplied by You
(including GST).
Services means our provision of deferred payment services to You
for the use of Your Customers in Australia (and other jurisdictions as may be
permitted by Afterpay from time to time) as contemplated by this Agreement, including but not
limited to access to the Afterpay Gateway and the Merchant Portal.
Shipping
Costs means any fees, costs or
expenses charged by You to a Customer for the Delivery of Goods purchased through
the Services to the address specified by the Customer when making the Afterpay
Purchase.
Store means any physical location in Australia at or from
which You supply the Goods, or conduct transactions for the supply of the
Goods.
Tax means any taxes, including
sales, use, value added, consumption, GST, harmonized sales or other similar
taxes, withholding taxes (including backup withholding), income, gross
receipts, ad valorem, property, unclaimed property, escheat, franchise, transfer,
stamp, or any other duties, levies, fees, excises or tariffs imposed by any
federal, state, foreign, provincial or local governmental taxing authority,
whether disputed or not, and including any penalties, interest, fine, surcharge
or additions to tax.
Tax Authority means any taxing, revenue
or other authority (in any jurisdiction) competent or responsible for imposing,
administering or collecting any Tax.
Term has
the meaning given to it under Part B of the Supplementary Terms.
Trade Marks means signs, trade marks, service marks, brand names,
rights in get up or trade dress, logos, slogans, stylizations, devices and
similar rights, whether registered or unregistered and whether within or
outside Australia.
User Agreement means the agreement
between Afterpay and Customers, as
made available via our website (https://www.afterpay.com/en-AU/terms-of-service) and as amended from time
to time.
Website means any electronic retail sales facility (including
any website and mobile or tablet sites or applications) owned and operated by
You, including the website(s) listed under Part C of the Supplementary Terms.
Verification means:
(a)
with respect to
the Compliance Documentation, verification of that documentation by or on
behalf of Afterpay in accordance with our internal risk and compliance
procedures; and
(b)
with respect to
the direct debit details, verification that the details provided in that form
are complete and sufficient to enable Afterpay to process direct debit
transactions in accordance with this Agreement,
and
Verify
and Verified have corresponding meanings.
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Afterpay Australia Pty Ltd ABN
151 693 429 47 |
Direct Debit Request – Service Agreement |
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Definitions |
account means the account held
at your financial
institution from which we are authorised to arrange for funds to be debited. Afterpay
Merchant Agreement means
the agreement entered into between Afterpay Australia Pty
Ltd (ABN 15 169 342 947) and
you governing the provision of the services to you. agreement means this Direct Debit Request Service Agreement between you and
us. banking day means a day other than a Saturday or a
Sunday or a
public holiday listed throughout Australia. debit
arrangements means the debit arrangements
that apply between you and us as set out in this agreement and the direct
debit request. debit day means the day that
your account is due to be debited under this agreement. debit payment means a particular instance of a debit
being made from your account. direct debit request means the
provisions of this Agreement, which is a written or online request between you to us to debit funds from your account. services has the meaning
given in the Afterpay Merchant Agreement. us, our or
we means Afterpay
Australia Pty Ltd (ABN 15 169 342 947). you means the merchant who signed the direct debit request. your financial institution is the financial institution where
you
hold the account that
you have authorised us to
arrange to debit. |
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1. Debiting your
account |
1.1 1.2 |
By signing the direct debit request,
you have authorised us to arrange for funds to be debited from
your account. You should refer to the direct debit request and this
agreement for the terms of the arrangement between us and you. We will only arrange for funds
to be debited from your account in the amount(s) payable to us in accordance
with the Afterpay Merchant Agreement and which is notified to you. The debit
will be made no earlier than the date on which such amount is required to be
paid to us under the Afterpay Merchant Agreement. If the debit
day falls on a day that is not a banking day, we
may direct your financial
institution to debit your account on the
following banking day. If
you are unsure about which day
your account has been or
will be debited, you should ask your financial institution. |
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2. Changes by us |
We
may vary any details of or
cancel the debit arrangements at any time by giving you at least thirty (30) days’ written
notice using the contact details in clause 9 below. |
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3. Changes by you |
3.1 3.2 3.3 3.4 3.5 |
Subject to 3.2 and
3.3 and 3.4, you may
request changes
to the debit arrangements by contacting Afterpay
Australia Pty Ltd using the contact
details in clause 9 below. If you wish to change, stop or
defer a debit payment,
you must give
us at least fourteen (14) days written notice prior to that debit payment
being processed by your financial institution. You may also
request for cancellation
or suspension of the direct debit request at any time by giving us at
least fourteen (14) days notice in writing. You should give us in the
first instance your request for stopping a debit payment or cancellation of your authority for us
to debit your account,
but may also direct such a request to your financial institution. If you change the debit
arrangements or the authorisation given under the direct debit request, you
will still be liable to us for the payment(s) owing to us under the Afterpay
Merchant Agreement and will be required to pay us through alternative means by
the due date(s) for such payment(s). |
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4. Your
obligations |
4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 |
It is your responsibility to ensure that there
are sufficient clear funds available in your account to allow a
debit
payment to be made in accordance with the debit arrangements. If a debit payment cannot be made on the debit day
for that debit payment for any reason including, without limitation, there
being insufficient clear funds in your account or your financial institution not
permitting that debit payment: (a) you may be charged a
fee and/or interest by your financial
institution; (b) you may also be
required to pay fees or charges incurred by us
(to reimburse us for costs and expenses we have incurred for the failed debit
payment), or imposed by us under the Afterpay Merchant Agreement; and (c) you must arrange for the payment to
be made by another method or
arrange for sufficient clear funds to be in your account
within the next five [5] calendar days or another agreed time so that the
debit payment
can be processed. If we
are unable to effect a debit payment on the relevant debit day, we may,
without prejudice to our other rights and remedies (including those set out
in clause 4.2 above): (a) suspend or cancel your access to the
services until all outstanding payments owed by you are made to us. We will use reasonable endeavours to
provide you with prior notice of such suspension or cancellation; and/or (b) commence
proceedings against you for recovery of outstanding amounts due by you to us. Nothing in this agreement overrides or otherwise affects the terms of
the Afterpay Merchant Agreement. You should check
your account statement to verify that the amounts debited from
your account are correct. If we are
liable to pay goods and services tax (“GST”) on a supply made in connection with this agreement, then you agree to pay us on demand an amount equal to the consideration payable for the
supply multiplied by the prevailing
GST rate, together with any fine, penalty or interest
payable because of a default by you. You must not alter or close
the account during the term of the Afterpay Merchant Agreement without
notifying us of this change, and delivering to us a direct debit request in
respect of an alternative account in a form and substance acceptable to us. You acknowledge and agree
that the direct debit authority given by you under this agreement will remain
in full force and effect in respect of all debit payments made or to be made
to your account notwithstanding your death, disability, lack of capacity,
power or authority, bankruptcy, insolvency or improper exercise of power or
authority. |
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5. Dispute |
5.1 5.2 5.3 5.4 |
If you believe that there has been an error in debiting your account, you should notify us directly on via email ([email protected]) or
notify your financial institution and confirm that
notice in writing to us as soon as possible, so that we
can resolve
your query quickly. If we conclude as a result of our investigations that your account has
been incorrectly debited, we will respond to
your query by arranging,
within a reasonable period, for your financial institution to adjust your account (including interest and charges) accordingly or
by sending you a refund cheque. We will also notify you in
writing of the amount by which your account has been adjusted. If we conclude as a result of our investigations that your account has
not been incorrectly debited, we will
respond to your query by providing you with reasons and any evidence for this finding. Any queries you
may have about an error made in debiting your account should be directed to us in the first instance so that
we can attempt to
resolve the matter between us and you. If
we cannot resolve the matter,
you can still
refer it to
your financial institution which will
obtain details from you of the disputed transaction and may lodge a claim on your behalf. |
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6. Accounts |
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You should check: (a) with your financial institution whether direct
debiting is available from your account as direct
debiting is not available
on all accounts offered by financial institutions; (b) your account details which
you
have provided to us are correct by checking them against
a recent statement of your account; and (c) with your financial institution before completing the direct debit request if you are uncertain about the debit arrangements or
have any queries about how to complete the direct
debit request. |
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7. Confidentiality |
7.1 7.2 |
We will keep any information (including your account details)
in your direct debit request confidential. We will make reasonable
efforts to keep any such information that we have about you secure and to
ensure that any of our employees and agents who have access to information about
you do not make any unauthorised use, modification, reproduction or disclosure of that information. We
will only disclose information that
we
have about you:
(a) to the extent required by law; or (b) for the
purpose of
the debit arrangements (including
disclosing information
to your financial institution or others involved in the Bulk Electronic Clearing
System), or in connection with a claim or allegation that a
debit payment was made incorrectly or wrongfully. |
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8. Privacy |
8.1 8.2 |
When
you submit a direct debit request, the information we collect for the
purposes of fulfilling your direct debit request and providing the services
to you above may be personal information about you. If we do not collect this
personal information we cannot fulfil your direct debit request. Your personal information may
be disclosed to other entities as set out in clause 7. Your personal information may be disclosed
to third parties outside Australia in accordance with our Privacy Policy.
Further information about how we handle your personal information can be
found in our Privacy Policy, available on our website at https://www.afterpay.com/en-AU/merchant-privacy. Our Privacy Policy also contains
information on how you can access and seek correction of information we hold
about you, as well as information on how to complain about how we have
handled your personal information. |
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9. Notice |
9.1 9.2 |
If you
wish to notify us in writing about anything relating to this agreement, you
should write to Afterpay Australia Pty Ltd by email at [email protected] or by post to GPO Box 2269 Melbourne VIC 3001, Australia. We may
notify you by sending a notice to the email or postal address you have given
us in the direct debit request or last advised to us. Any notice will be deemed to have been
received by you on delivery by hand, on the next day after sending the email (provided that no delivery failure notice has been received by the
sender), or the third banking day after posting (whichever
is applicable). |
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10. Governing law |
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This
agreement is governed by and to be construed in accordance with the laws of
New South Wales. |
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Schedule 2 - Afterpay Services Cross Border Trade Terms
(a)
In accordance with
clause 4(e) of the General Terms, this Schedule 2 applies and will form part of
your obligations under the Agreement for any Cross Border Transactions
processed by You.
(b)
In this Schedule
2:
(i)
all references in
this Agreement to “Afterpay Purchase” shall also include Cross Border
Transactions and apply as they would in relation to any Afterpay Purchase;
(ii)
the limitations on
the purchase of Goods from, and the delivery of Goods to, locations outside
Australia do not apply in respect of Cross Border Transactions but shall only
apply to locations outside Australia authorised by Afterpay;
(iii)
subject to clause
5.2(c) of the General Terms, and in accordance with clause 5.2(b) of the
General Terms, You must ensure that all Goods are Delivered to the Customer
promptly, and within the expected Delivery period as represented to the
Customer at the point of sale, and in the case of Goods that are goods, up to a
maximum of twenty-one (21) days (where shipping must occur within ten (10)
days), or in the case of Goods that are services, up to a maximum of ninety
(90) days, if it is a Cross Border Transaction;
(iv)
You are
responsible for arranging Delivery in respect of all Cross Border Transactions
and for any and all additional costs and charges (including without limitation
any applicable Taxes, duties, delivery charges and other applicable amounts)
associated with any Cross Border Transaction;
(v)
You must ensure
that any and all additional costs and charges associated with a Cross Border
Transaction (including without limitation any applicable Taxes, duties,
delivery charges and other applicable amounts) charged by You to the Customer
in respect of a Cross Border Transaction are included in the Sale Price and
Shipping Costs (as applicable) or are otherwise clearly represented to the
Customer prior to the point of purchase;
(vi)
To allow for
foreign exchange settlement, the Payment Date for Purchase Amounts and Fees and for Refund Amounts for a Cross
Border Transaction may be extended in each case by three (3) additional
Business Days (to the Business Day timeframes included in this Agreement);
(vii)
In accordance with
clause 6 of the General Terms, Afterpay will make all payments to You in
respect of a Cross Border Transaction. These payments will be made in
Australian dollars;
(viii)
In addition to any
Fee payable by you for each Afterpay Purchase for each Cross Border
Transaction, a “Cross Border Transaction Fee“ will be payable by you to
Afterpay for each Afterpay Purchase as set out under Part D of the
Supplementary Terms.
(x)
The terms of
clause 6 of the General Terms apply to the Cross Border Transaction Fee in the
same way as they apply to the Fee (including that the Cross Border Transaction
Fee is not refundable unless paid incorrectly). For the avoidance of doubt, the
Cross Border Transaction Fee will not be refunded or repaid to You in respect
of Goods that are returned to You by Customers; and
(xi)
You and we will,
when performing obligations in relation to Cross Border Transactions for
Customers located outside of Australia, each comply with the Cross Border
Privacy Terms available here: https://www.afterpay.com/attachment/409/download/XBPrivacy.
For the avoidance of doubt, Afterpay is not performing any cross-border
business and is not acting as agent for any Afterpay Affiliate in relation to
the Cross Border Transactions.
(c)
In addition to the
other rights of termination under this Agreement, Afterpay may terminate the
provision of Cross Border Trade to You for any reason immediately by written
notice to You (including without limitation where Afterpay ceases to offer
Cross Border Transaction capability in connection with its Services). If
Afterpay terminates Cross Border Trade, this Schedule 2 shall not apply but the
remaining provisions of this Agreement shall not be affected and the Agreement
shall remain in full force and effect and shall continue to be legally binding
on the Parties. For the avoidance of doubt, if either Party terminates this
Agreement pursuant to clause 11 of the General Terms, if applicable, this shall
also terminate Your provision of the Services to customers located outside
Australia such that the Cross Border Trade offering shall also terminate.
(d)
Additional
definitions solely for use in this Schedule 2:
(i)
“Cross Border Transaction” means an
Afterpay Purchase between you and a Customer who is located in, and resides
outside of Australia, where Delivery of the Goods takes place outside of
Australia;
(ii)
“Customer” means a Customer of an
Afterpay Affiliate who uses Afterpay Affiliate's services where it is offered
outside of Australia; and
(iii)
“we” includes an Afterpay Affiliate,
where applicable.
1.
Introduction
a.
This
Afterpay Card Services Addendum (the “Addendum”) amends Your Afterpay
Merchant Agreement (the “Agreement”) between You and
Afterpay.
b.
Afterpay
will provide You with the Services for use in-Store or for use on Your Websites
for Customers using a digital wallet (the “Afterpay Card Services”) in
accordance with this Addendum.
c.
All
other provisions of the Agreement shall remain in full force and effect,
provided that, in the event of a conflict between any provision of this
Addendum and any provision of the Agreement, the provisions of this Addendum
shall take precedence. Capitalised terms
used but not defined in this Addendum shall have the meanings set out in the
Agreement.
2.
Description of the Afterpay Card
Services
a.
Afterpay Card Services The Afterpay Card Services allow Customers to pay for Goods
or Services using a virtual card (Afterpay Card), which will be
processed via Your payment
service provider (PSP) and card acquirer (Acquirer).
b.
Approval Confirmation for Afterpay Card Services The successful authorisation of a transaction using the
Afterpay Card through the card network constitutes Approval Confirmation to
You. You must only Deliver or provide Goods to a Customer after You have received Approval Confirmation.
Afterpay will not be liable to You for Goods Delivered or provided without
Approval Confirmation.
c.
Authorising the Afterpay Card By authorising
the Afterpay Card at Your terminal, You communicate to Afterpay that a Customer
is making an Afterpay Purchase, and the Goods have been or will be Delivered to
the Customer with a total Sale Price, plus any applicable Shipping Costs, equal
to the amount of the authorisation (the “Authorisation Amount”).
d.
Capture from Afterpay Card You will have up
to 14 days from the date of the Afterpay Purchase to capture any portion of the
Authorisation Amount, based on the dollar value of Goods Delivered, or for
Delivery, to the Customer (the aggregate amount of such Authorisation Amount so
captured “Purchase Amount”). If You do not capture the full Authorisation
Amount within 14 days of the Afterpay Purchase (i.e., if the Purchase Amount
for a given Afterpay Purchase is less than the Authorisation Amount for that
Afterpay Purchase 14 days or more after the Afterpay Purchase), we reserve the
right to void and refund to the Customer the difference between the
Authorisation Amount and the Purchase Amount as of the end of the 14th
day after the date on which the Customer makes a purchase. Afterpay may hold
You liable for: (1) amounts captured more than 14 days after the Afterpay
Purchase; (2) amounts captured that exceed the Authorisation Amount; and (3)
amounts captured which are not tied to the associated Authorisation Amount
(collectively, the “Unauthorised Capture Amounts”). We will recover any
Unauthorised Capture Amounts and any associated fees in accordance with clause
3 below.
e.
Transmission of Purchase Amounts Your PSP will pay
You for each Afterpay Purchase made through the Afterpay Card Services. You
acknowledge that Your PSP will deduct from the Purchase Amount any amount
payable by You to the PSP in connection with the relevant Afterpay Purchase in
respect of fees, including interchange fees, acquiring fees and other relevant
scheme fees related to Your receipt of the Purchase Amount via Your PSP
(collectively “Processing Fees”). The manner in which You receive the Purchase
Amounts, the total Processing Fees payable, and the timing of settlement will
depend on Your arrangements with Your PSP.
We cannot guarantee and make no warranties regarding delays in receipt
of Purchase Amounts caused by external financial systems, Your PSP, or other
external factors.
f.
Provision of Transaction Data You must provide
Afterpay with accurate business and transaction data for the purpose of
facilitating Afterpay Purchases and Refunds made using the Afterpay Card
Services, including merchant category code, acquiring ID, merchant ID, terminal
ID and such other information required by Afterpay.
3.
Afterpay Card Services Fees and
Invoicing
a.
Afterpay Card Fees and Invoicing The Fee for all
Afterpay Purchases using the Afterpay Card Service will be due on each
Purchase. Afterpay will invoice You on a daily basis for any Fees, Unauthorised
Capture Amounts, Non-Card Refunds, Unauthorised Refunds and Refunds incorrectly
processed to the Afterpay Card, in accordance with this Addendum (an “Invoice”).
Afterpay will direct debit Your Account for amounts due to us under an Invoice
on the second day following the Invoice date. Where the second day following
the Invoice date is a weekend or public holiday, Afterpay will direct debit
Your Account on the next Business Day. If Afterpay is unable to debit Your
Account for amounts owed to us we reserve the right to immediately suspend Your
Afterpay Account without notice to You until such amounts have been paid, or,
at our option, set off the Fee against aggregate Purchase Amounts due from online purchases. If such amounts remain
unpaid for more than 10 Business Days we may immediately terminate the
Agreement by notice to You and issue You an invoice for any outstanding
amounts.
b.
Fee Payable by You The Fee for each Afterpay Purchase
using the Afterpay Card Services is set out in Part D of the Supplementary
Terms
4.
Display and Use of Afterpay Name and
Materials
a.
Marketing
Collateral Afterpay may provide You, at its cost, with marketing
collateral and other promotional material for use in-store to market the
availability of the Afterpay Card Services. If Afterpay provides such
collateral at its cost You must implement and display such collateral in-store
in accordance with Your obligations in the Afterpay Agreement, or as otherwise
instructed by Afterpay, acting reasonably.
5.
Refunds for Purchases using Afterpay
Card Services
a.
Refunds With respect
to Refunds for Purchases made using the Afterpay Card Services: (i) If Goods
are Accepted for Refund (in whole or in part) by You then any Refund Amount due
in relation to the Return is owed by You to Afterpay (via the Afterpay Card)
and not the Customer. You must promptly
upon receipt of the returned Goods (and, at the latest, within 3 Business Days
of such receipt), process a refund to the Afterpay Card of the associated
Afterpay Purchase(s). All Afterpay Purchases made using the Afterpay Card
Services that are Accepted for Refund (in whole or in part) must be refunded
via the Afterpay Card. Unless Afterpay directs You to do so, Afterpay will not
accept or process a Refund Amount processed via the Afterpay Merchant Portal or
the Afterpay API for Afterpay Card Afterpay Purchases. We reserve the right to
hold You liable for the Refund Amounts associated with the Goods Accepted for
Refund if they are refunded via any payment method or processed via any method
except for the Afterpay Card (“Non-Card Refunds”); and (ii) When
You agree to provide a Customer with a Refund, You will be liable to us for the
Refund Amount. Afterpay will then cancel any future payments due by the
Customer to Afterpay and/or refund to the Customer any amounts paid to
Afterpay. If You process a refund amount to the Afterpay Card that has no
associated Afterpay Purchase, we reserve the right to hold You liable for any
disputed amounts raised by the Customers in relation to such Refund (each an “Unauthorised
Refund”).
6.
Changes to Agreement for Afterpay Card
Services
a.
Card Services Changes This Addendum amends the Agreement
solely with respect to the Afterpay Card Services. For the avoidance of doubt,
this Addendum does not amend provisions with respect to the Services provided
to You on Your Website(s) via the Afterpay Gateway and each provision of the
Agreement will continue in effect with respect to such Services provided to You
on Your Website(s) via the Afterpay Gateway without alteration.
Schedule 4 - New Verticals - Additional Terms - Adult
These Additional Terms will only apply in your new
Merchant Agreement if these are relevant to Your business and you are approved
by Afterpay to sell Goods in this category.
These additional terms apply to Your business and
expressly form part of Your Agreement with Afterpay. By signing this Agreement
(i.e. by clicking accept at the bottom of this page), You agree to be bound by
these additional terms, together with the General Terms displayed below (and
any applicable Schedules). For the avoidance of doubt, to the extent these
additional terms do not replace any terms set out in the General Terms, the
General Terms will continue to apply.
A Subject to clause 4(c) of the General
Terms, the timing of the launch of the provision of the Services on Your
Website will be mutually agreed by the parties.
B You must not use any Afterpay branding
without the prior written consent of Afterpay. For more information about use
of Intellectual Property, see clause 5.3 of the General Terms.
C Notwithstanding
clause 5.1(l) of the General Terms, in accordance with Afterpay’s approval
(communicated to You separately in writing or otherwise), You are permitted to
use the Services for the sale of adult merchandise, including (without
limitation) sex toys and sexual enhancement products as could reasonably be
expected to be offered by You in Your ordinary course of business, but
excluding any pornographic materials, experiences and content.
D Except as expressly provided in this
Agreement, You agree not to promote the Afterpay Service via Your marketing
channels or publicly disclose the partnership (including through press
announcement or media release) without Afterpay’s prior written approval. You
also agree to adhere to any brand or marketing guidelines provided by Afterpay
from time to time.
E Clause 5.3(b) of the General Terms
shall be replaced with the following:
We hereby grant to you a limited, fully-paid,
non-exclusive, non-transferable, non-sublicensable, revocable limited license,
during the Term, to use the Afterpay Marks, Afterpay Gateway, Merchant Portal,
and Afterpay Software, in each case, solely in connection with your use of the
Services as defined herein and otherwise carrying out your rights and
privileges hereunder. Afterpay’s Intellectual Property must be used in
accordance with any use or brand guidelines notified to You from time to
time. You must submit each proposed
application or use of Afterpay Intellectual Property to Us for written approval
prior to use, except to the extent that such use is expressly permitted under
this Agreement or otherwise expressly agreed in writing by Afterpay. You must not copy, modify, alter, amend, supply to any
third party or use for any other purpose any Afterpay Intellectual Property
without our express prior written consent. Subject to clauses 7.1(d) and
11.3(a) of these General Terms, on termination
of the Agreement, you must: (i) permanently delete all copies of the
Afterpay Software in your possession or control, (ii) as soon as reasonably
practicable discontinue the use or display of any Afterpay Intellectual
Property, and (iii) dispose of any works embodying any Afterpay Intellectual
Property. Without limiting this clause, if these General Terms are amended to
remove your right to offer the Afterpay Gateway online or in-Store, you must
immediately discontinue the use or display of any Afterpay Intellectual Property
associated with the discontinued right.
F In addition to Our rights under this
Agreement, You agree that Afterpay may terminate this Agreement immediately
upon written notice to You if, in the reasonable determination of Afterpay, the
provision of the Services on Your Website or in-Store causes reputational harm
or brand damage to it.
G You agree that clause 11.2(a) of the
General Terms is replaced with the following:
Termination for convenience
11.2(a) Either
You or We may terminate this Agreement for any reason by giving at least 2 days
prior written notice.
Schedule 5 - New Verticals - Additional
Terms – Health
These Additional Terms will only apply in your new
Merchant Agreement if these are relevant to Your business and you are approved
by Afterpay to sell Goods in this category.
These additional terms apply to Your business and
expressly form part of Your Agreement with Afterpay. By signing this Agreement
(i.e. by clicking accept at the bottom of this page), You agree to be bound by
these additional terms, together with the General Terms displayed below (and any applicable
Schedules). For the avoidance of doubt, to the extent these additional terms do
not replace any terms set out in the General Terms, the General Terms will
continue to apply.
A Notwithstanding clause 5.1(l) of the General
Terms, in accordance with Afterpay’s approval (communicated to You separately
in writing or otherwise), You are permitted to use the Services for the sale of
one or more of the following health sub-verticals as could reasonably be
expected to be offered by You in Your ordinary course of business (Health
Sub-Verticals):
(i) Dental;
(ii) Optometry;
(iii)
Radiology;
(iv) Medical;
(v) Veterinary;
(vi) Day
Hospital – completed within a single day (not requiring an overnight stay);
(vii) Allied
Health – includes general podiatry, general physiotherapy, limb and upper limb
rehabilitation and associated products;
(viii)
Pharmacy; and
(ix) Other health sub-verticals approved by
Afterpay from time to time (and communicated to You).
For the avoidance of doubt, the Health Sub-Verticals
include:
(i)
prescription
medicines that are available for purchase at Your Stores but only where a
medical practitioner has provided a properly authorised medical prescription to
provide such medicines to the Customer in connection with the relevant Health
Sub-Vertical; and
(ii)
the
provision of injectables and fillers (including vaccines, Botox or Dermal
Fillers), whether cosmetic or non-cosmetic, for uses approved by the
Therapeutic Goods Administration in Australia to treat the Customer in
connection with the relevant Health Sub-Vertical.
B To the extent that You disclose any personal
or sensitive information about Customers to Afterpay You must provide any
notice or obtain any consents required to do so.
C In addition to the warranties under clause
12.1 of the General Terms, You warrant and represent to us that all
practitioners operating at Your Stores are registered with the Australian
Health Practitioner Regulation Agency (or the equivalent, appropriate
regulatory body) and You will be responsible at all times for ensuring such
registration is current and validly issued.
D The definition of “Sale Price” shall be
replaced with the following:
Sale Price means the purchase price of the Goods supplied by You
(including GST) that would otherwise be payable by the Customer to You, but
does not include any amount discounted by You or reimbursed or reimbursable to
the Customer by Medicare or on account of the Customer’s private health
insurance.
F Where
you are using Afterpay Services for prescription or pharmacy only medicine
online, Afterpay is the merchant of record and is acting on Your behalf in
relation to those Afterpay Purchases and Afterpay will comply with the Scheme
Rules in relation to those Afterpay Purchases. You must provide us with all
reasonable assistance we require to comply with the Scheme Rules. In this
clause, Scheme Rules means all card schemes accepted by Afterpay
and their published rules for Your Merchant Category Code that apply to
prescription or pharmacy-only medicine sold online.
Schedule 6 - New Verticals - Additional
Terms - Marketplaces
These additional terms (‘Additional Terms’) will only
apply in Your new Merchant Agreement if these are relevant to Your business and
You are approved by Afterpay to sell Goods in this category.
These Additional Terms apply to Your business and
expressly form part of Your Agreement with Afterpay. By signing this Agreement
(i.e. by clicking accept at the bottom of this page), You agree to be bound by
these Additional Terms, together with the General Terms displayed below (and
any applicable Schedules). For the avoidance of doubt, to the extent these
additional terms do not replace any terms set out in the General Terms, the
General Terms will continue to apply.
A Notwithstanding clause 5.1(l) of the
General Terms, in accordance with Afterpay’s approval (communicated to You
separately in writing or otherwise), You are permitted to use the Services to
allow for the sale of Goods by Marketplace Sellers on Your Website.
B You control Your Website, which allows
Customers to purchase Goods from Marketplace Sellers. The parties acknowledge
and agree that: (i) by making a purchase on Your Website, a Customer agrees to
pay the Sale Price associated with the Goods as specified by the Marketplace
Seller and the Customer enters into a sale agreement with the Marketplace
Seller; (ii) where an Afterpay Purchase is rejected by a Marketplace Seller,
You will process the Refund for the Customer as soon as the rejection is
notified in accordance with clause 7.1 of the General Terms; (iii) the timing
for Delivery of Goods must be communicated clearly to the Customer by the
Marketplace Seller at the point of purchase; and (iv) once an Afterpay Purchase
has been made by a Customer, You are responsible for settlement of the Sale
Price (and any other applicable delivery and other fees) with the associated
Marketplace Seller, provided that any such settlement process does not breach
the terms of Your Agreement.
C You agree to comply with any
reasonable direction given by us to provide product information to Afterpay
(such as SKU-level data and cart information).
D You must continue to allow Customers
to make Afterpay Purchases from all Marketplace Sellers on Your Website as
permitted under and in accordance with Your Agreement.
E You will obtain any information We
require from any Marketplace Seller (including shipping information) to
demonstrate that the Goods were Delivered to the address specified by the
Customer when making an Afterpay Purchase.
F If a Customer: (i) disputes that the
Marketplace Seller has Delivered the Goods; disputes that the Goods have been
Delivered to an acceptable standard, or disputes any policies imposed by You or
Marketplace Sellers, and (ii) is unable to reach a resolution directly with the
Marketplace Seller, You will use commercially reasonable efforts to mediate a
resolution between the Customer and the Marketplace Seller. If the Customer and
the Marketplace Seller are not able to come to a resolution following any mediation
facilitated in accordance with this clause, You will make a final determination
about whether or not the Customer is entitled to a Refund in accordance with
Your standard business practices.
G You
are authorised to and will ensure compliance with the terms of this Agreement
by all Marketplace Sellers in relation to Afterpay Purchases through Your
Website, including but not limited to, obligations set out in clause 5.2(d) and
7.1(a) of the General Terms.
H The parties will collaborate to reduce
risk and fraud via the Services across their respective fraud teams. This will
include: (i) You providing any agreed risk metrics via the Afterpay
Gateway/Admin Portal which will include at a minimum - Marketplace Seller name
or identification details, basket details and, if Afterpay has approved
services for Your Website, the date of future bookings (including but not
limited to, expected date of service delivery); (ii) where a party detects any
fraud on Your Website, that party promptly notifying the other party of the
details of the alleged fraud, and the parties will, as soon as reasonably
practicable, collaborate to determine the appropriate steps to reduce the risk
of fraud; and (iii) Afterpay monitoring Customer non-payments, fraud and other
losses in relation to the Afterpay Purchases (“Loss Rates”). If
Afterpay, acting reasonably, determines that the Loss Rates are too high,
Afterpay shall discuss means to limit the Loss Rates and You shall assist with
any reasonable and commercially practical solution to mitigate the Loss Rates.
I The terms of Your Agreement, including
the Fee, do not extend to any of Your Affiliates or related bodies corporate,
nor any website owned and operated by any individual Marketplace Seller outside
of Your Website.
J Notwithstanding any terms in Your
Agreement, Afterpay retains the right to withhold reserves or otherwise hold
any amount of the Purchase Amount if Afterpay determines, in its sole
discretion, that there are any material concerns with the performance of Your
obligations under this Agreement.
K Afterpay may also exercise its rights
to terminate Your Agreement under clause 11.1(b)(ii) of the General Terms where
a Marketplace Seller changes its policies in any way that affects the ability
of any Customer to Return any Goods in the manner intended under Your
Agreement.
L You confirm that You make the
representations and warranties set out in clauses 12.1(a)(iii), (iv) and (v) of
the General Terms on Your behalf and on behalf of each Marketplace Seller.
M You
acknowledge and agree that any reference to You or Your in the indemnity in
clause 12.3(a) of the General Terms also includes a reference to Marketplace
Sellers and their personnel.
N In these terms, “Marketplace Seller”
means a person or business registered as a seller on Your Website who offers
their Goods and/or Services to Customers on Your Website.
Afterpay Merchant Supplementary Terms
These are the Afterpay Merchant Supplementary Terms
(these “Supplementary Terms”) which,
together with the Afterpay Merchant General Terms of Service (the “General Terms”), a current version of
which can be found at https://get.afterpay.com/merchant-agreement-au-static.html, comprise the terms of the agreement
between us pursuant to which we provide the Services to you. The Supplementary
Terms and the General Terms, together, referred to as the “Agreement”. In the event of any inconsistency or conflict between
the terms and provisions of the General Terms and these Supplementary Terms,
the terms and provisions of these Supplementary Terms shall control. All
capitalised terms not otherwise defined in these Supplementary Terms will have
the meanings given to them in the General Terms.
Merchant entity entering into this Agreement:
Merchant (Full legal
name of business) : ________________________________________________________
This Agreement will become effective on the date these
Supplementary Terms are agreed by you and will continue until the date that the
Agreement is terminated in accordance with its terms (the “Term”).
D. FEE
AFTERPAY E-COMMERCE (ONLINE) FEE
(i) The Fee for each Afterpay Purchase made on your Website(s) = Fee =
_____ % x Purchase Amount + $0.30.
AFTERPAY CARD SERVICES (IN-STORE) FEE
(ii) The
Fee for each Afterpay Purchase made
using the Afterpay Card Services = _____ % x Purchase Amount + $0.30.
AFTERPAY CROSS BORDER TRANSACTIONS
(iii) The Cross Border Transaction Fee for each Afterpay Purchase = _____ % x Purchase Amount.
This means, for example, if the applicable
Fee payable in the E-COMMERCE (ONLINE) FEE portion of Section D (Fee) above is _____ % x Purchase
Amount + $0.30, the amount payable by you for
each Cross Border Transaction shall be: _____ % x Purchase Amount
+ $0.30.
E. EXCLUSIVITY
For the purposes of this Section E,
“Competing
Payment Service” means any “buy now, pay later” or “pay
by instalments” electronic payment system, or other short-term consumer finance
service, excluding any such systems or services offered by Visa, Mastercard or
American Express.
“Preferred
Placement” means that our logo is displayed in comparable size to or larger
than, above (when featured top-to-bottom), or to the left of (when featured
left-to-right) that of any Competing Payment Service.
AFTERPAY ECOMMERCE (ONLINE) EXCLUSIVITY
The option marked with an "X"
below shall apply to you:
_____ You must not, during the Term, allow Customers
to purchase Goods from your Website using any Competing Payment Service.
_____ Not applicable
AFTERPAY
CARD SERVICES (IN-STORE) EXCLUSIVITY
The option marked with an "X"
below shall apply to you:
_____ You must not, during the Term, allow Customers to
purchase Goods from your Store using any Competing Payment Service.
_____ Not applicable