THOROUGHBRED PAYMENTS

MErchant TERMS & CONDITIONS – January 2023

1.      Definitions (as used in this agreement)

Account holder means any person, other than a customer, who makes payment to you on behalf of a customer.

Account holders account means any bank, credit, debit or other account that facilitates the debiting by the Thoroughbred Payments Program of fees and other payments payable to you on behalf of a customer.

Beneficial Owner is a person who has effective control of the Merchant, owns more than 25% of the Merchant, or is a person on whose behalf a transaction is conducted. For the purposes of this agreement and when the entity is a partnership, sole trader, public company, or association, or when there is no Beneficial Owner, this includes an Authorised Representative who is authorised to sign this contract on behalf of the Merchant and who is in a position to assert significant influence over, or substantively stand behind the actions of, the Merchant.

Card (or Account) means the credit, debit or other account nominated or used to make a Payment to you.

Card Scheme means a central payment network (e.g., Visa, Mastercard or American Express) that uses credit and debit cards to process payments.

Card Scheme Rules means the rules, regulations and standards which regulate participants in a Card Scheme.
Client Registration Form means an agreement between a client and us whereby the client or customer agrees to participate in the Thoroughbred Payments Program.

Commencement date means the date of this agreement or other date as the parties agree in writing.

Customer means any client or person with whom you engage in a business transaction requiring payment to you including clients and others

Customer’s account means any credit, debit or bank account nominated by the customer that facilitates the debiting by us of fees and other payments payable to you.

Customer authorisation means a form of authority provided from your customer and reasonably required by us from time to time.
Insolvent in the case of a company, means that a company is or becomes unable to pay its debts when they become due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001, or is presumed to be insolvent under that Act, or in the case of an individual, the individual dies, becomes bankrupt or is of unsound mind.

Month means a calendar month.

Nominated bank account means the bank account nominated by you in this or your previous agreements for the purpose of receiving payments and for payment of any fees due by you.

Online payments page or MerchantPay or WebPay means an online payment facility that may be available to you to process fees and other payments during the course of this agreement.

Privacy law means all legislation, principles, and industry codes and policies regulating the handling of personal information including the Privacy Act 1988 (Cth) and the National Privacy Principles contained in schedule 3 to that Act.

Fees in relation to a customer, means the fees described in that client’s registration form or customer Authorisation, being the fees payable or due to you by that client.  For the purpose of this agreement, it also includes any other payments made to you by your customers and/or processed by you.

Review date means the date that is 3 years after the commencement date.

Surcharge or payment processing fee means the amount so described or described as the convenience fee or payment processing fee in this agreement, the Client Registration Form, customer authorisation or Online Payment Page.

Thoroughbred Payments means the program developed by Zenith Payments Pty Ltd (ABN 71 083 359 684) for the processing of payments.

2.      Collection and Payment Arrangements

2.1 Agency

You appoint us as your Merchant for the purpose of receiving fees and other payments paid to us using a customer’s or account holders account.  This appointment is limited to the performance by us of acts necessary to receive these payments from your customers. We are not authorised to act on your behalf in any other capacity or to bind you in any other way.

2.2 No Collection

You acknowledge and agree that:

a.  we are not a collection Merchant;

b.  we are not responsible for collecting fees or liable if a customer fails to pay any fees due to you;

c.  we are not obliged to do anything in addition to stated tasks to recover outstanding fees, participate in or resolve any dispute between you and a customer or levy any charges that you may wish to impose on a customer;

d.  this agreement does not alter your relationship with the customer other than by nominating us as the recipient of money that is otherwise payable directly to you by the customer; and

e.  this agreement does not oblige us to deal with your customers or with account holders except to the extent necessary to receive payments from them.

2.3 Direction

You must execute any documents reasonably required by your bank or us to give your customer’s permission and authority to pay their fees to us as your Merchant.

2.4 Surcharge or Payment Processing Fee

This agreement obliges you to pay the surcharge or payment processing fee and any other applicable fees when utilising the Thoroughbred Payments Program. The surcharge or payment processing fee is deduced from payments made via the Thoroughbred Payments program before those funds are dispersed to your nominated bank account.

2.5 Failed Payment Fee

In the event of an automatic, recurring or scheduled bank account or card payment subsequently being rejected by the client or account holder’s bank or another party, you or your customer will pay to Thoroughbred Payments a fee (a “Failed Payment Fee”) as outlined in this agreement. This Failed Payment Fee will be automatically applied four days after we receive notification of the rejected payment. The Failed Payment Fee does not apply to failed one-off online card payments.

2.6 SMS or Email Fees

SMS or Email fees may apply if you have enabled the ability for your customers to nominate to receive an SMS or Email confirmation message from Thoroughbred Payments when a payment is sent for processing and the customer nominates to receive such a message or when you send messages to your customers via the Communications module on the Thoroughbred Payments website.

2.7 Payments

This agreement applies whenever customers make payments to you and/or us using a customer’s account or when you and/or we process payments on behalf of you or customers.

2.8 Payment Processing Fees

We will cause the fees and other payments received by us from a customer or account holder, less the applicable surcharge or payment processing fee, to be transferred to your nominated bank account within 3 business banking days after the payment was made subject to normal banking and transaction processing operations.

2.9 Exclusivity

Our appointment is exclusive for any customer who wishes to pay fees to you or us (acting as your Merchant) using a customer’s account and, for the term of this agreement, you must not accept payments via a customer’s account unless you do so pursuant to this agreement.

2.10 Beneficial Owner

You as the Beneficial Owner understand that we are obliged to undertake necessary identity checks on you and to confirm your beneficial ownership of the Company detailed in section 2. You provide consent for these checks which may involve confirming information using third party databases.

3.      Term & Amendments

3.1 This initial agreement will commence on the commencement date and continue until it is terminated in accordance with this agreement.  Upon reaching the review date, this agreement is automatically renewed on it’s then current terms for a period equal to the original agreement unless either party provides 14 days written notice to the contrary prior to the review date. We reserve the right to vary or amend any term of this agreement and any change will be effective from the date that we post the change on the Thoroughbred Payments website and you shall be deemed to accept this variance or amendment unless we receive written notice to the contrary within 14 days of the date of the posting of the change.

4.      Responsibilities

4.1 Our responsibilities

During the term of this agreement we must:

a.  handle all enquiries from you about the operation of Thoroughbred Payments;

b.  provide efficient payment methods to your customers to facilitate the efficient payment of fees and other payments due to you;

c.  receive fees and other payments on your behalf;

d.  provide a online payment mechanism, WebPay, (subject to its stated terms & conditions) for you to accept and/or process fees and other payments due to you;

e.  transfer funds, once cleared, due to you to your nominated bank account;

f.  provide a reconciliation file for monies deposited in your nominated bank account;

g.  use reasonable efforts to assist customers participating in the Thoroughbred Payments Program in order to facilitate the efficient payment of fees;

h.  use reasonable efforts to provide payment failure notifications to customers and you participating in the Thoroughbred Payments Program to encourage payment via alternative methods.

4.2    Your responsibilities

During the term of this agreement you must:

a.  actively promote this service to your customers including on invoices and via other channels

b.  notify us in writing and in advance if you wish to change your nominated bank account;

c.  ensure any Client Registration Forms are correctly completed by you and the client;

d.  only use Client Registration Forms, customer direct debit authority forms and other customer payment authorisation forms that have been approved in writing for use by us;

e.  immediately process or deliver Client Registration Forms after they have been completed;

f.  securely store Client Registration Forms after they have been processed for a period of seven years from the last transaction;

g.  when using the Merchant online payments page, agree to that facility’s stated terms & conditions;

h.  exercise due care and responsibility before processing any payments using the Thoroughbred Payments program;

i.  implement processes and procedures to ensure the security of card numbers given to you in accordance with the principles of PCI DSS requirements;

j.  ensure that you hold original customer authorisation from the customer for any one-off payments you process via the Merchant online payments page;

k.  disclose your participation in the Thoroughbred Payments Program to any customer if you legally or otherwise required to;

l.  provide to us and authorise usage by us of your logo, Merchant name or similar branding in conjunction with the Thoroughbred Payments Program.

5.      Termination

5.1 Termination without cause

You may terminate this agreement at any time 1 year after the commencement date by giving us 6 months’ written notice of your intention to terminate.

5.2 Termination

Either you or we (the non-defaulting party) may terminate this agreement by giving notice to each other (the defaulting party) in the following circumstances:

a.  if the defaulting party fails to make any payment due under this agreement when due and that failure continues for a period of 5 days from the date of receipt of a notice requiring the defaulting party to remedy such failure;

b.  the defaulting party has breached or failed to perform any of its material obligations (other than payment obligations) under this agreement and where in the opinion of the non-defaulting party that breach or failure is capable of remedy, it continues for a period of 14 days from the date of receipt of a notice requiring the defaulting party to remedy such breach or failure; or

c.  the defaulting party becomes insolvent.

5.3 Liability for termination

a.  Termination of this agreement under clause 5.2 will be without prejudice to our respective rights (including the right to damages) at law or in equity.

b.  Termination of this agreement under clause 5.1 or clause 5.2 will be without liability for either party in respect of the relevant event but will not affect a party’s rights in relation to any breach of this agreement prior to the termination.

5.4 Obligations on termination

On termination, you must pay any amount payable under this agreement. We will process this total payable amount upon termination of this agreement.

6.      Indemnities

a.  We indemnify you against any liability or loss that you may suffer or incur arising from a breach by us of our obligations under this agreement.

b.  You indemnify us against any liability or loss that we may suffer or incur arising from a breach by you of your obligations under this agreement.  This indemnity includes any liability or loss that we are liable for to a third party arising from a breach by you of your obligations under this agreement.

7.      Privacy

You agree to comply with all privacy laws which are binding on you or which we are bound to comply with, and which are notified to you.

8.      Disputed Payments, Chargebacks & Refunds

8.1 Care

You must exercise care and take reasonable precautions to prevent fraudulent, illegal, reversed or disputed payments from occurring.

8.2 Responsibility

As you are the beneficiary of funds collected by us, the supplier of goods and services to the customer and the party privy to relationships with the customer, you bear all responsibility and liability for any reversed or disputed payments or other form of recovery of funds by us.  You indemnify and hold us harmless from and against all claims, costs, liabilities and expenses suffered or incurred by us as a result of us being obliged, for any reason, to refund or reverse payments before or after the corresponding amount has been remitted to you.

8.3 Notice

We will promptly notify you if a payment is refunded by us, or if we receive notice of a disputed payment that might lead to such refund or disgorgement.  You must do everything necessary on your part to enable us to avoid having to refund payments, including, for example, immediately providing information or agreements to us about the goods and services supplied by you and the Client Registration Form or customer authorisation in relation to a payment.

8.4 Resolution of Disputes

Notice of a disputed payment or chargeback will be successfully refuted if you provide clear customer authorisation from your customer that is subsequently accepted by your customer’s or the account holder’s financial institution.  Should the disputed payment or chargeback not be refuted, you will need to resolve the matter directly with your customer.

8.5 Refund

If we receive notice of a disputed payment and/or are required to refund or reverse all or part of any payment to a customer, an account holder or their bank or such a refund is debited from our account or otherwise disgorged, then:

a.  we will be discharged from any obligation to remit that amount to you; and

b.  you must reimburse us for that amount and/or we may set amounts due to you under this clause off against any other payments due by us to you and/or deduct amounts from your nominated bank account.

8.6 Recovery

If you pay money to us in accordance with paragraph 8 and we subsequently recover funds from the customer, then we will deposit it in your nominated bank account.

8.7 Licences & Authority

You represent and warrant to us that you hold any and all statutory licences and authorities necessary for the operation of your business and the collection of payments.  You acknowledge that we are not providing any payment facility in addition to our stated services.

9.      Card Scheme & Payment Account Provisions

9.1 Payment Account Acceptance

For all payment accounts, methods, or Cards that we agree with you to make available, you agree to:

1. equally accept Customer transactions and to not unfairly preference or discourage the use of any payment account, method, or Card;

2. have a fair, equitable and reasonable refund policy that is in accordance with industry standards and disclosed to your Customer at or before the time of purchase;

3. accept payment accounts or Cards subject to the provisions of Card Scheme, processor or acquirer rules, provisions, or industry specific requirements;

4. authorise us to submit transactions to, and receive settlement from, Card Schemes, processors, banks, or acquirers on your behalf;

5. remove payment account, method or Card identification, logos and decals from your website, systems, and premises upon the termination of this agreement or our provision of that payment account or Card to you;

6. not have libellous, defamatory, obscene, pornographic, or profane material, or any instructions on your website that may cause harm to any individuals or to brands associated with the operators of the payment accounts, methods, or Cards;

7. confer on Card Schemes the third party right, but not the obligation, to enforce the terms of this agreement as necessary to protect the Card Schemes’ brands;

8. indemnify Card Schemes against any liability or loss that they may suffer or incur arising from a breach by you of this agreement;

9. Card Schemes, their affiliates, agents, successors, or assigns not being, in any event, liable to you for any damages, losses, or costs incurred, including incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based on contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory), arising out of or in connection with the agreement; and

10. us disclosing transaction and other data about you to Card Schemes, processors, or acquirers to enable us and them to operate and promote services, perform contractual obligations, report and analyse data, and for other lawful purposes.

9.2 Tri-Party Agreement

You acknowledge that due to Card Scheme Rules, where your card volumes exceed, or are reasonably expected to exceed, $1,000,000 per annum with either Visa or Mastercard:

1. you may be required to enter into a Tri-Party agreement, that will be provided to you, between you, the acquirer and us in respect of all card transactions processed by the third-party acquirer that will be mentioned in the Tri-Party agreement; and

2. we will be the provider of the services to you.

10.    Authority To Credit & Debit:

10.1 Authority

You authorise us to credit and debit your nominated bank account in accordance with the terms and conditions set out within this agreement.

10.2 Merchant Fees

We will process payment via your nominated bank account for the applicable set up fee as detailed above at the time of processing this activation form and we will process applicable monthly service, transaction and other fees as detailed above on the first business day of every month.

10.3 Payment Failure

Should the debiting of any payment due by you under this agreement be unsuccessful, we will retry debiting after an additional 5 business days.  Should any amount due remain unpaid by this time, we will attempt to contact you and we reserve the right to immediately withdraw our services and/or to off-set any amounts due against any funds due to you.

10.4 Errors

You authorise us to debit your nominated bank account of any previously credited amount that was subject to banking, system or human error and notified as such to you.