Terms and Conditions

1     Merchant Terms and Conditions

These Merchant Terms and Conditions comprises:

(a)       the Terms and Conditions;

(b)       the Agreement Schedule;

(c)       the Services Schedule,

as varied from time to time in accordance with the Terms and Conditions.To the extent of any inconsistency between any of the Terms and Conditions andany Schedule, the order of precedence is as listed above.

Capitalised terms used in these Merchant Termsand Conditions have the meaning given to them in Clause 34 (Definitions).

2     ShaBaas Services

(a)       ShaBaas will provide ShaBaas Services to theMerchant subject to the terms of these Merchant Terms and Conditions and theMerchant performing its obligations under these Merchant Terms and Conditions.

(b)       ShaBaas Services do not include the provision ofcard acquiring or card settlement services. Those services are provideddirectly by the relevant Third-Party Card Provider.

3     Conditions precedent

ShaBaas’s obligation to provide the ShaBaas Services is conditional onShaBaas being satisfied at any time:

(c)       the Merchant has duly accepted or executed theseMerchant Terms and Conditions and provided any evidence of authority requestedby ShaBaas;

(d)       ShaBaas has received any information requestedto satisfy know your customer and customer due diligence requirements; and

(e)       if applicable, the Merchant has completed anyrequested integration and user acceptance testing (including as a result of anyupdates to the NPP) and is operationally ready to start processing Transactionsand has confirmed the same to ShaBaas in writing.

4     Merchant Responsibilities

The Merchant must:

(a)       use the ShaBaas Services in accordance with theServices Schedule or any other instructions provided by ShaBaas;

(b)       process all Transactions in Australian dollars;

(c)       ensure that any modifications to its systems donot adversely affect the performance or suitability of the ShaBaas Services;

(d)       test and update its systems and operationsprocesses where necessary to support the ShaBaas Services;

(e)       assume all responsibility for the reconciliationof records of Transactions with actual Transactions;

(f)        maintain the confidentiality and security ofcredentials, personal information and user data including, but not limited to,API keys and login credentials to the ShaBaas Platform;

(g)       comply with Relevant Law;

(h)       notify ShaBaas if:

(i)    its principal place of business or contactdetails change;

(ii)    the Merchant intends to sell, transfer orlease its business, or if there is a transaction that will result in a Changeof Control of the Merchant;

(iii)   the Merchant suffers a security or databreach that could reasonably impact ShaBaas Services;

(iv)   an event occurs which has a material effecton the ability of the Merchant to operate its business;

(v)   there are technical or operational issues orerrors which may impact the ShaBaas Services;

(vi)  there are any changes to the Merchant’saccount details, including the Merchant Settlement Account and PayID details;

(vii) theMerchant no longer operates, owns or has authority to use the MerchantSettlement Account to which a Transaction Settlement has been/will be paid; or

(viii) theMerchant experiences any activity that appears suspicious or erroneous;

(i)         do anything required to enable ShaBaas tocooperate and comply with any NPP dispute resolution process in relation to aTransaction; and

(j)         provide ShaBaas with any information requestedby ShaBaas to provide the ShaBaas Services or comply with Relevant Law.

The Merchant must not:

(a)       process a Transaction using the ShaBaas Servicesif the Merchant knows or reasonably suspects that the source account is beingused fraudulently or in furtherance of a contravention of Relevant Law;

(b)       process a Transaction using the ShaBaas Serviceswhich was not originated as a result of a transaction between itself and acustomer;

(c)       cause or contribute to a PayID addressing error;

(d)       initiate a PayTo payment for any PayTo Agreementusing the ShaBaas Services that it knows, or reasonably suspects, is notauthorised;  

(e)       initiate a PayTo payment for any PayToAgreement, NPP payment or process a Sales Transaction with an End Customerusing the ShaBaas Services that exceeds $1,000 (including GST); or

(f)        initiate a PayTo payment that it knows, orreasonably suspects, is not within the terms of the Authorised PayTo Agreement.

5     Sales Transactions

The Merchant is, and must notify its customer that it is, solelyresponsible for:

(a)       any Sales Transaction including any goods orservices that are the subject of the Sales Transaction;

(b)       all customer service relating to the SalesTransaction;

(c)       dispute resolution in connection with the SalesTransaction; and

(d)       performance of the terms and conditions of theSales Transaction.

The Merchant must maintain a Merchant Settlement Account for the term ofthe ShaBaas Services.

The Merchant authorises ShaBaas to credit and debit the MerchantSettlement Account for the purposes of these Merchant Terms and Conditionsincluding to debit any fees, reimbursements or indemnity amounts.

ShaBaas will credit the Merchant Settlement Account with the amount ofall Sales Transactions, less any fees and charges, that are cleared inaccordance with the Services Schedule subject to the terms of these MerchantTerms and Conditions. ShaBaas may withhold or refund to the End Customer all orpart of the amount of a Sale Transaction if ShaBaas has reason to believe thatthe Sales Transaction or payment is fraudulent, disputed or contrary to anyRelevant Law.

The Merchant authorises ShaBaas and any Customer Financial Institutionto collect, store and use personal information (amongst other information) inconnection with PayTo, including for the purposes of constructing NPP Paymentmessages and enabling ShaBaas to receive NPP Payments.

6     Transaction information

On request, ShaBaas will issue a statement to the Merchant through the ShaBaasPortal that will show a summary of Transactions processed by ShaBaas to or fromthe Merchant Settlement Account.

The Merchant must retain information about aTransaction for a period of seven years from the date of the Transaction or anylonger period required by Relevant Law.

The Merchant must provide ShaBaas with anyinformation requested by ShaBaas about a Transaction within 14 days of request.

7     Fees

The Merchant must pay ShaBaas the fees in the amounts and at the timesset out in the Agreement Schedule without (and free and clear of any deductionfor) set-off or counterclaim.

Fees for card transactions are determined by the relevant Third-PartyCard Provider and are payable by the Merchant in addition to any fees payableto ShaBaas.

8     Onboarding

If requested by the Merchant, and where the Merchant has paid theOnboarding Fee, ShaBaas must provide the Merchant with the onboarding materialsdescribed in the Agreement Schedule.  

9     NPP

The Merchant acknowledges:

(a)       ShaBaas will provide the ShaBaas Services usingthe NPP and an arrangement with a financial institution settlement partner (FI Arrangement);

(b)        ShaBaas’s ability to provide the ShaBaasServices is contingent upon the availability and functionality of the NPP andthe FI Arrangement; and

(c)        ShaBaas is not responsible for the availabilityand functionality of the NPP or the FI Arrangement.

10  Representations and warranties

(a)       The Merchant makes the following representationsand warranties to ShaBaas each time it initiates a Transaction:

                    i.        to the best of the Merchants knowledge thedetails of the Transaction are true and correct;

                   ii.        the Merchant is not aware of any fact whichwould cause the Transaction to be unauthorised by the Merchant or the customer;

                 iii.        the Merchant is satisfied based on its own useracceptance testing that the ShaBaas Services are fit for the Merchant’spurposes; and

                 iv.        the information provided by the Merchant to ShaBaasin connection with ShaBaas’s due diligence process around the time theseMerchant Terms and Conditions was entered into or subsequently is true,complete and up to date.

(b)       ShaBaas makes the following representations andwarranties to the Merchant:

                    i.        the ShaBaas Services will conform to thespecifications and service levels set out in these Merchant Terms andConditions;

                   ii.        the ShaBaas Services will be fit for purpose andsupplied with due care and skill;

                 iii.        ShaBaas will comply with all Relevant Laws,including but not limited to, maintaining all licences, permits or consentsrequired in order to provide the ShaBaas Services; and

                 iv.        the provision of the ShaBaas Services will notinfringe the rights, including any intellectual property rights, of any thirdparties;

                  v.        ShaBaas will comply with all applicableregulations, procedures and requirements of the NPP or NPP Australia Limited(ABN 68 601 428 737), including in connection with the provision of the ShaBaasServices;

                 vi.        all data, codes and other information generatedby or in connection with the ShaBaas Services, including any other interfaceswith the NPP, will be materially correct and accurate; and

                vii.        unless otherwise authorised by this agreement, ShaBaaswill not knowingly do anything in connection with these Merchant Terms andConditions which causes or requires the Merchant to refund any amount theMerchant receives or is entitled to receive from the Merchant’s customers.

11  Reimbursement

The Merchant must reimburse ShaBaas within five days on request for thefull amount of any Transaction, plus any applicable fees and/or charges, that ShaBaasis required to pay to a customer or other person on behalf of the Merchant tothe extent that an amount is not able to be paid from the Partner FundsAccount.

12  Privacy and confidentiality

ShaBaas will hold any personal information it collects in connectionwith these Merchant Terms and Conditions or the ShaBaas Services in accordancewith the Australian Privacy Principles and the Privacy Policy.

The Merchant must provide a copy of the Privacy Policy to any of itsofficers, directors or employees who provide personal information to ShaBaas inconnection with the ShaBaas Services.

The Merchant must keep all Confidential Information confidential and notdisclose it to anyone, except to the extent required by Relevant Law or wherethe relevant information is already in the public domain other than as a resultof a breach of confidentiality.

ShaBaas may use and disclose information it collects in connection withthe ShaBaas Services in accordance with the Privacy Policy and otherwise asrequired by Relevant Law, codes of practice, external payment systems or any FIArrangement.

Notwithstanding this Clause 12, if, during the course of providing the ShaBaasServices, a party (Information Provider)provides information to the other party (InformationReceiver) which:

(a)       is commercially sensitive to the InformationProvider’s business; or

(b)       would, if disclosed, have a material detrimentaleffect on the Information Provider’s financial position,  

then the Information Receiver must keep that information confidentialand not disclose it to anyone except to the extent required by Relevant Law orwhere the relevant information is already in the public domain other than as aresult of a breach of confidentiality.

13  Intellectual Property

ShaBaas and its suppliers and/or licensors own and shall retain allright, title and interest (including without limitation all patent rights,copyrights, trademark rights, trade secret rights and other intellectualproperty rights), in and to the ShaBaas Services. The Merchant agrees that onlyShaBaas shall have the right to maintain, enhance or otherwise modify theShaBaas Services.

If the Merchant provides ShaBaas with reports of defects in the ShaBaasServices or proposes or suggests any changes or modifications (Feedback), ShaBaas shall have the rightto use and exploit such Feedback including, without limitation, theincorporation of such Feedback into ShaBaas’s software products and/orservices, including, without limitation, the ShaBaas Services, without anyobligation to the Merchant.

Except as expressly provided in these Merchant Terms and Conditions, ShaBaasreserves all rights and grants the Merchant no licenses of any kind, whether byimplication, estoppel, or otherwise.

14  Relationship

Nothing in these Merchant Terms and Conditions creates a relationship ofjoint venture, partnership or principal and agent.

15  Whole Agreement

These Merchant Terms and Conditions represents the whole agreementbetween the Merchant and ShaBaas concerning the ShaBaas Services. No other termis to be included except where it is required to be included by any legislationof the Commonwealth or any State or Territory. All implied terms except thoseimplied by statute and which cannot be expressly excluded are hereby expresslyexcluded. Any previous understanding, agreement, representation or warrantyrelating to the ShaBaas Services is replaced by these Merchant Terms andConditions and has no further effect.

16  Suspension

ShaBaas may suspend the ShaBaas Services immediately if:

(a)       the Merchant breaches a term of these MerchantTerms and Conditions, and that breach has not been remedied to ShaBaas’sreasonable satisfaction within 10 days upon ShaBaas notifying the Merchant ofthe breach;

(b)       the Merchant uses the ShaBaas Services inconnection with the sale of goods or services which are listed as explicitlyprohibited industries in the Agreement Schedule;

(c)       an Insolvency Event occurs in relation to theMerchant;

(d)       the Merchant is required to cease trading undera Relevant Law;

(e)       there is a change in law or the regulations ofthe NPP or the FI Arrangement that prevents ShaBaas from providing the ShaBaasServices to the Merchant;

(f)        ShaBaas has sufficient reason to believe theMerchant has engaged in Transactions of the kind referred to in Clause 17 (Non-Compliant Transactions);

(g)       ShaBaas reasonably determines that ShaBaas orthe Merchant may suffer loss if the ShaBaas Services continue to be provided;or

(h)       these Merchant Terms and Conditions become orare claimed to be wholly or partly void, voidable or unenforceable.

If ShaBaas suspends the ShaBaas Services, the Merchant must:

(a)       not process any further Transactions;

(b)       remove references to ShaBaas from their businessprocesses; and

(c)       destroy or return any ShaBaas material to ShaBaasexcept as required by Relevant Law and on request confirm the same to ShaBaas.

17  Non-Compliant Transactions

ShaBaas may delay, block or refuse to process any Transaction withoutincurring any liability if ShaBaas knows or reasonably suspects that thetransaction or the application of its proceeds will:

(a)       breach, or cause ShaBaas to breach, any RelevantLaw (including any sanctions);

(b)       inconsistent with, or prohibited by, any of ShaBaas’policies, including its risk management framework; or

(c)       allow the imposition of any penalty on ShaBaasunder any Relevant Law,

including where the transaction or the application of its proceedsinvolves any entity or activity the subject of any applicable sanctions or thedirect or indirect proceeds of unlawful activity.

18  Audit

ShaBaas, or a person nominated by ShaBaas, may conduct an audit orreview of the Merchant’s compliance with the Merchant’s obligations in relationto:

(a)       its processes, practices and procedures as theyrelate to the Transactions;

(b)       the accuracy of its records and reports inrelation to the Transactions; or

(c)       any other matters reasonably determined by ShaBaasto be relevant to compliance with these Merchant Terms and Conditions.

The Merchant will provide any reasonable assistance requested by ShaBaasor a person nominated by ShaBaas to complete any such audit or review. Costsassociated with an audit or review requested by ShaBaas will be at the solecost of ShaBaas.

19  Variation

ShaBaas may vary any term of these Merchant Terms and Conditions bygiving at least 30 days’ written notice to the Merchant.

Nothing in this clause prevents ShaBaas from amending these terms andconditions if the amendment does not adversely affect the Merchant’s rights orwhere such amendment is required to comply with the then current laws,regulations or applicable codes.

Any variation under this paragraph will only be made where the variationalso applies generally to a class of other Merchants (that is, variations willnot be made to one Merchant only).

20  Termination

The Merchant or ShaBaas may terminate these Merchant Terms andConditions on at least 30 days’ written notice to the other party. Thetermination of these Merchant Terms and Conditions does not affect any right orobligation that arises before that date.

If a Third-Party Card Provider suspends or terminates the Merchant’saccess to card services, ShaBaas is not obliged to provide an alternativeservice but may assist the Merchant to source another provider.

21  Indemnity

The Merchant indemnifies ShaBaas against all claims, damages, actions,losses and liabilities (including all fines, penalties and other chargesincurred by ShaBaas as a result of any act or omission of the Merchant) which ShaBaassuffers or incurs arising directly or indirectly from:

(a)       a Transaction, except where those matters arisedirectly from ShaBaas’s provision of the ShaBaas Services;

(b)       any Government taxes, duties or charges imposedon providing the Merchant with the ShaBaas Services;

(c)       the occurrence of any event referred to inClause 16 (Suspension);

(d)       the negligence or fraud of the Merchant or anemployee, contractor or agent of the Merchant;

(e)       a breach by the Merchant of any term of theseMerchant Terms and Conditions;

(f)        any enquiry, investigation, subpoena (or similarorder) or litigation with respect to the Merchant or any Transactions;

(g)       any dispute between the Merchant and a customerin respect of the supply, use, quality or fitness for purposes of goods orservices; and

(h)       any representation, warranty or statement madeby the Merchant to the customer,

except those that are solely the result of the fraud, wilful default orgross negligence of ShaBaas.

ShaBaas indemnifies the Merchant against all claims,damages, actions, losses and liabilities (including all fines, penalties andother charges incurred by the Merchant as a result of any act or omission ofShaBaas) which the Merchant suffers or incurs arising directly or indirectlyfrom:

(a)       the negligence or fraud of ShaBaas or anemployee, contractor or agent of ShaBaas;

(b)       a material breach by ShaBaas of any term of thisAgreement and that breach has not been remedied within 30 days fromthe Merchant notifying in writing ShaBaas of the breach;

(c)       any enquiry, investigation, subpoena (or similarorder) or litigation with respect to ShaBaas;

(d)       breach of any of ShaBaas’s representations,warranties and/or covenants set forth in this Agreement;

(e)       an Insolvency Event occurring in relation to ShaBaas,

except where any event listed above is solely theresult of the fraud, wilful default or negligence of the Merchant.

This indemnity and Clauses 11 (Reimbursement),12 (Privacy and confidentiality), 20(Termination), 22 (Liability), 23 (GST) and 30 (Jurisdiction)survive the termination of these Merchant Terms and Conditions.

22  Liability

To the extent permitted bylaw, ShaBaas is not liable (including in contract, tort or under statute) forany loss or damage incurred by the Merchant in connection with the ShaBaasServices greater than the total amount of all Transactions collected by ShaBaasunder these Merchant Terms and Conditions in the month proceeding the event ofclaim.

ShaBaas has no liability for any loss, cost, damage or claim arisingfrom or in connection with the provision of card services by a Third-Party CardProvider. The Merchant indemnifies ShaBaas against any claims made by theThird-Party Card Provider in connection with the Merchant’s use of thoseservices.

To the extent permitted by law, the Merchant is not liable (including incontract, tort or under statute) for any loss or damage incurred by ShaBaas inconnection with the ShaBaas Services greater than the total amount of allTransactions collected by ShaBaas under these Merchant Terms and Conditions inthe month proceeding the event of claim.

Despite anything to the contrary herein, to the maximum extent permittedby law, neither party will be liable under or in connection with this Agreementfor any Consequential Loss or indirect, incidental or special damages.

Neither party will be liable to the other for any delay ornon-performance of its obligations under this Agreement to the extent to whichsuch delay or non-performance arises from any Force Majeure Event.

23  GST

Terms used in this clause have the same meaning given in the A New Tax System (Goods and Services Tax)Act 1999.

The parties each have an ABN and are registered for GST.

If any supply made under or in connection with these Merchant Terms andConditions is subject to GST, ShaBaas may increase the consideration otherwiseprovided for by the amount of that GST and recover such additional amount fromthe party liable for payment of the consideration.

No payment of any amount in respect of GST is required until ShaBaas hasprovided a tax invoice or adjustment note, as the case may be, to therecipient.  

24  Set-off

ShaBaas may, but need not, set off any matured obligation due from theMerchant against any obligation owed by ShaBaas to the Merchant.

25  Assignment

The Merchant must not use the ShaBaas Services on behalf of a thirdparty or allow the ShaBaas Services to be used by a third party without theprior written consent of ShaBaas.

The Merchant must not assign or grant security over any of its rightsunder these Merchant Terms and Conditions without the prior written consent of ShaBaas.

ShaBaas may assign any of its rights or obligations under these MerchantTerms and Conditions on at least 14 days’ written notice.

26  Sub-contracting

ShaBaas may engage or employ any person, sub-contractor or agent toperform any of its obligations under this Agreement (Sub-contractor).

ShaBaas is not relieved of any of its liability or obligations underthis Agreement if ShaBaas engages a Sub-contractor.

27  Notices

Notices delivered under these Merchant Terms and Conditions may bedelivered by email to ShaBaas’s email address (contactus@shabaas.com) or, inrelation to the Merchant, the email address most recently notified to ShaBaasand are taken to be received when sent unless the sender receives an out ofoffice or error notification.

28  Severability

If a term of these Merchant Terms and Conditions is illegal orunenforceable in a jurisdiction, these Merchant Terms and Conditions is to beconstrued in that jurisdiction to give effect to that term only to the extentpossible to avoid any illegality or unenforceability.

29  Waiver

ShaBaas’s rights under these Merchant Terms and Conditions are notwaived by any delay or failure to exercise them and may only be waived inwriting.

30  Jurisdiction

These Merchant Terms and Conditions and any non-contractual rightsarising out of it are governed by the laws of New South Wales, Australia. TheMerchant and ShaBaas submit to the non-exclusive jurisdiction of the courts ofNew South Wales in relation to any disputes.

31  Complaints and dispute resolution

If the Merchant makes a complaint about ShaBaas or the provision of the ShaBaasServices including these Merchant Terms and Conditions, the parties must seekto resolve the complaint in accordance with ShaBaas’s Internal DisputeResolution Policy.  

32  Multiple parties

If the Merchant comprises more than one person, those persons arejointly and severally liable as the Merchant under these Merchant Terms andConditions.

33  Counterparts and electronicexecution

These Merchant Terms and Conditions may beexecuted in any number of counterparts, and this has the same effect as if thesignatures on the counterparts were on a single copy of these Merchant Termsand Conditions.

The parties consent to these Merchant Terms andConditions being signed by or on behalf of a party by electronicsignature.  In this Clause 33 electronicsignature means a digital signature or other visual representation of aperson’s handwritten signature or mark placed or typed on a copy of this deedby electronic or mechanical means (or any other means of electronic signingthis deed used by agreement between the parties) and electronically signed hasa corresponding meaning.

Where these Merchant Terms and Conditions areelectronically signed by or on behalf of a party, the party warrants and agreesthat the electronic signature has been used to identify the person signing andto indicate that the party intends to be bound by these Merchant Terms andConditions.

Each party consents to the exchange ofcounterparts of these Merchant Terms and Conditions by delivery by email to theparty or its legal representative or other electronic means of exchange as theparties may agree.

The parties agree that a printed copy of acounterpart of these Merchant Terms and Conditions that a party signed byelectronic signature will be taken to be duly executed by that party.

34  Definitions

The following defined terms are used in these Merchant Terms andConditions:

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