MSSA - Terms and conditions

Addendum to MSSA – Redcat Payments Solution

This Redcat Payment Services Addendum (Addendum) forms part of the Master Services and Subscription Agreement (MSSA) between Redcat Pty Ltd of Level 1, 51 Stephenson Street, Cremorne, Victoria, Australia, 3121 (Redcat), and the entity identified in the Order Form (Customer) and is applicable where the Customer orders the Redcat Payments Solution under the MSSA.

1. Definitions and interpretation

1.1 The terms of this Addendum supplement and, where applicable vary the terms of the MSSA. This Addendum must be read in conjunction with the Order Form and the other documents that comprise the Agreement.

1.2 The definition for “Services” in clause 1 of the MSSA is varied to include Payments Solution where specified in an Order Form.

1.3 In addition to the definitions in the MSSA, the following definitions apply to this Addendum:

(a) Account Holder means a person that purchases products and/or services from the Customer using a Payment Method.

(b) Acquirer means a financial institution that is authorised by a Scheme Owner to enable the use of a Payment Method by accepting Transactions from the Customer on behalf of the Scheme Owners, routing these to the Scheme Owners or Issuing Banks and collecting and settling the resulting funds to the Customer, as varied by Redcat from time to time.

(i) the issued share capital of a company; or

(ii) the legal power to direct or cause the direction of the general management of the company.

(d) Chargeback means a Transaction which is successfully charged back on request of the Account Holder or the Issuer pursuant to the relevant Scheme Rules resulting in a cancellation of a Transaction in respect of which the Customer has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which the Customer already received Settlement of the related funds, this results in the unconditional obligation for the Customer to immediately return the Settled funds to the Payment Processor, to enable the Payment Processor to return such funds to the Scheme Owner or Acquirer (as applicable).

(e) Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth);

(f) Issuing Bank means a financial institution that issues Payment Methods to Account Holders.

(g) Licensed User means any of the Customer’s officers or employees who are employed by it to conduct the business at the Site(s) and who are not restricted from using the Payments Solution because of any restrictions specified in the Order Form.

(h) Merchant Deposit means the amount of any merchant deposit or retention amount notified to the Customer by Redcat.

(i) Payment Method means one or more payment methods, specified in an Order Form or this Agreement.

(j) Payment Processing System means the payment processing platform and services made available to the Customer by the Payment Processor.

(k) Payment Processor means the payment processor specified in the Payment Processor Agreement.

(l) Payment Processor Agreement means the agreement between the Customer and the relevant Payment Processor as referenced in the Order Form.

(m) Payments Hardware means any payments terminal that Redcat agrees to supply to the Customer under an Agreement, as set out in an Order Form.

(n) Payments Solution means the Payments Hardware, the Payment Processing System and any Redcat software, Redcat equipment or Services specified in an Order Form.

(o) Payments Solution Onboarding Requirements means the Payments Solution onboarding requirements specified in the Order Form and any other onboarding requirements specified by Redcat and/or the Payments Processor from time to time.

(p) Refund means a (full or partial) reversal of a particular Transaction, whereby the funds are reimbursed to the Account Holder on the initiative or request of the Customer.

(q) Restricted Activities means any activity or transaction that Redcat or the Payment Processor have identified as being restricted (available here: https://www.adyen.com/legal/list-restricted-prohibited), or any other activity or transaction notified by Redcat from time to time (including any activity or transaction that is identified as being restricted in an Order Form).

(r) Restricted Business means any business that Redcat or the Payment Processor have identified as being restricted on our website (available here: https://www.adyen.com/legal/list-restricted-prohibited), or any other business notified by Redcat from time to time (including any business that is identified as being restricted in an Order Form).

(s) Scheme Owner means a third party that regulates and provides a specific Payment Method (e.g. Visa, MasterCard).

(t) Scheme Rules means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which merchants and payment service providers must comply with when using the relevant Payment Method.

(u) Site(s) means the premises owned, controlled or occupied by the Customer and identified in an Order Form for the installation of the Payments Solution.

(v) Specifications means the technical and non-technical specifications for the Payments Solution set out in an Order Form or otherwise issued in writing by Redcat to the Customer from time to time.

(w) Transaction means an authorisation request of an Account Holder for a payment from the Account Holder to the Customer submitted by the Customer to the Payment Processor.

2. Supply of Payments Solution

2.1 The specific Payment Services to be provided to the Customer are as specified in the relevant Order Form.

2.2 The Customer acknowledges that the Payment Processing System is supplied to the Customer by the Payment Processor in accordance with the Payment Processor Agreement.

2.3 Without limiting any of Redcat’s rights or the Customer’s obligations in the Order Form, the Customer acknowledges and agrees that:

(a) Redcat may add additional Acquirers from time to time in connection with the Payments Solutions. Where Redcat decide to add an additional Acquirer, it will notify the Customer of any additional terms and conditions which govern the delivery of associated services for the incoming Acquirer; and

(b) the Customer will be required to accept and comply with the terms and conditions for any Acquirer (existing or new) in order for it to receive the Payments Solution.

2.4 Subject to the Customer’s compliance with the Agreement and payment of any deposit as specified in the Order Form, Redcat will provide the Payments Solution to the Customer.

2.5 Where required under an Order Form, the Customer must provide to Redcat an executed deed of personal guarantee, completed direct debit form and/or completed credit application.

2.6 The Customer must provide all necessary:

(a) cooperation, permissions, authorisations, assistance and consents;

(b) access to Customer equipment, personnel, servers, networks, data, content, facilities, documentation, records, resources, equipment, premises and information; and

as reasonably required by Redcat.

2.7 Redcat is not liable for:

(a) the content or security of any communications that the Customer receives, accesses, transmits or relies upon when using the Payments Solution; or

(b) ensuring that the Customer equipment is compatible or interoperable with the Payments Solution,

except as expressly set out in the Order Form.

2.8 The Customer must follow and complete the implementation and onboarding requirements with respect to the Payments Solution from the Payment Processer.

2.9 If Redcat’s cost basis materially changes due to external circumstances (e.g., Scheme Owner and/or Acquirer costs or currency exchange costs), or due to the Customer’s actual Transaction traffic characteristics materially differing from the figures provided by the Customer (e.g., different types of Transactions, such as cross-border or corporate cards with higher underlying Scheme Owner rates), Redcat has the right to proportionally adjust the Fee by notifying the Customer, such notice to include reasonable substantiation of the reason for such adjustment. This does not permit Redcat to adjust the Fee for changes in Redcat’s internal cost basis (e.g., infrastructure or staff costs).

2.10 Where the Fee includes fees or charges imposed by a third party (including Scheme Owners, Acquirers and Issuing Banks) (“Pass-Through Fees”), the Customer is responsible for all Pass-Through Fees relating to the Payments Solution and features it uses, including any increase or decrease to those fees.

2.11 After the initial subscription or licence term (as defined in the Order Form), Redcat may increase the prices for the Payments Solution with three (3) months prior notice (the “Notice Period”). Any price increases will only become effective for the Payments Solution at the end of the Notice Period. During the Notice Period, the Customer may terminate the Agreement by providing written notice to Redcat prior to the end of the Notice Period. This clause explicitly does not apply to any communicated increase to the Fees that is made to account for (i) an increase of the fees incurred by Redcat from an Acquirer, Scheme Owner or Issuing Bank (e.g., a change in Pass-Through Fees); or (ii) a pricing increase due to a change in applicable law and/or Scheme Rules.

2.12 Redcat may increase the Fees payable under an Agreement annually by 3%. Redcat will provide 30 days’ notice of any increase.

2.13 The Customer agrees that it will not impose a surcharge or any other fee on the relevant Payment Methods that exceeds the amount the Customer pays for that Payment Method as a percentage of the total price. The Customer agrees to provide notices and statements to the relevant Account Holder as described in clauses 7.1 or 7.2 (as applicable) of the Reserve Bank of Australia’s Standard No. 3 of 2016: Scheme Rules Relating to Merchant Pricing for Credit, Debit and Prepaid Card Transactions.

2.14 The Customer agrees that the Payment Processor will pay agreed fees directly to Redcat from Account Holder funds. The Customer must ensure that it obtains the right for the Payment Processor to withhold fees from the Account Holder funds for this purpose.

2.15 The subscription renewal provisions in clause 10.2 of the MSSA apply to the Payments Solution.

3. Onboarding

3.1 The Customer must be approved by Redcat for use of the Payments Solution (Approval). The Customer must:

(a) complete the Payments Solution Onboarding Requirements to Redcat’s satisfaction;

(b) at any time during the Term as reasonably requested by Redcat, provide Redcat with any documents or information required to perform Know Your Customer and Anti-Money Laundering and Anti-Terrorist Financing checks and verifications to Redcat’s satisfaction. The Customer acknowledges and agrees that these checks and verifications may, as necessary, be undertaken by Redcat, any Redcat related entity or a third-party provider for and on behalf of Redcat’s relevant Acquirers.;

(c) confirm that the Customer complies with any applicable law and applicable PCI DSS requirements that Redcat specify; and

(d) complete any further onboarding or approval requirements and provide any documents or information, required by the Payment Processor.

3.2 Redcat will notify the Customer in writing if and when it has been granted Approval. Redcat reserves the right to refuse or revoke any Approval for access to the Payments Solution, in its sole discretion, at any time during the Term and for any reason.

3.3 Redcat will notify the Customer within 30 days of its receipt of the results of any credit application if Redcat is not satisfied with the results.

3.4 If Redcat refuses Approval for access to the Payments Solution or revoke an Approval at any time during the Term, Redcat may terminate the Agreement in accordance with clause 11.1, without liability.

3.5 The Customer is responsible for implementing the Payments Solution in accordance with any instructions provided.

4. Payments Hardware

4.1 Where the Customer is utilising the Payments Solution for POS or Kiosk or as otherwise detailed in the relevant Order Form, Redcat will supply the Payments Hardware to the Customer.

4.2 The Payments Hardware will be delivered to the Customer’s nominated address provided through the onboarding process.

4.3 The Customer must:

(a) ensure that the Payments Hardware is installed and kept at the nominated site under suitable conditions as specified in any documents from Redcat or the Payment Processor or otherwise in accordance with their reasonable instructions; and

(b) notify Redcat if the Payments Hardware is discovered to be operating incorrectly.

4.4 The Payments Hardware may come with guarantees that cannot be excluded under the Consumer Law or other applicable law.

4.5 In addition to any non-excludable guarantees that apply, Redcat warrants that the Payments Hardware supplied by it under the Agreement will:

(a) upon delivery to the Site(s), conform to the Specifications and be free from material defects in design, material and workmanship; and

(b) be of merchantable quality and in Good Working Order.

4.6 Other than with respect to any non-excludable guarantees that apply to the Payments Hardware under the Consumer Law and other non-excludable applicable law and the warranties set out in clause 4.5, all implied rights, representations, guarantees, conditions, warranties, undertakings and other remedies that the Customer may otherwise have in relation to the Payments Hardware are waived and excluded from the Agreement, to the maximum extent permitted by law.

4.7 Without limiting any rights that the Customer has to reject defective goods under the Consumer Law or other non-excludable applicable law, the Customer may reject as defective any delivered Payments Hardware that does not comply with any of the warranties set out in clause 4.5, provided that:

(a) the Customer gives Redcat written notice of rejection:

(b) in the case of a defect that is apparent on normal visual inspection, within 5 days after delivery of the Payments Hardware;

(c) in the case of a latent defect that occurs within 30 days after delivery, within 5 days after the time when the latent defect becomes apparent; and

(d) none of the events listed in clause 4.8 apply.

4.8 Without limiting any rights that the Customer has under the Consumer Law or other non-excludable applicable law, the Customer is deemed to have accepted the Payments Hardware if it fails to give notice of rejection in accordance with clause 4.7, and Redcat is not liable for any loss, damage or malfunction of any Payments Hardware (or a failure of any Payments Hardware to comply with any warranty set out in clause 4.5) as a result of fair wear or tear, or as a result of any of the following events:

(a) a defect arises because the Customer or its personnel failed to follow the Customer’s (or the manufacturer’s) oral or written instructions for the storage, commissioning, installation, use or maintenance of the Payments Hardware or best industry practice;

(b) the Customer or its personnel or any third party not authorised by Redcat, alters or repairs the Payments Hardware without Redcat’s prior written consent;

(d) a defect arises because of the Customer’s (or its personnel’s) or any third party’s wilful or accidental damage, negligence, or abnormal storage or working conditions.

4.9 The Customer indemnifies Redcat from and against all and any loss and/or damage that it incurs as a result of any of the events listed in clause 4.8, including the cost of replacing or repairing any lost Payments Hardware or damage to the Payments Hardware.

4.10 If the Customer rejects Payments Hardware under clause 4.7 then Redcat may, at its option:

(a) replace the rejected Payments Hardware or supply equivalent goods; or

(b) repair the rejected Payments Hardware.

4.11 Where Redcat’s liability for breach of any guarantees under the Consumer Law or any other applicable law can be limited, its liability arising from any breach of those guarantees (if any) is limited, at its option:

(a) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or

(b) with respect to services, to the supply of services again or the cost of re-supplying the services again.

4.12 The Customer must:

(a) promptly inform Redcat in writing of all material complaints or claims in relation to the Payments Hardware;

(b) not admit liability on Redcat’s behalf in respect of any complaint or claim in relation to the Payments Hardware; and

(c) not resolve or settle any complaint or claim in relation to the Payments Hardware, including where doing so may result in Redcat incurring any liability to any party.

4.13 The Agreement does not transfer or assign title to Customer equipment to Redcat. Redcat is not responsible for Customer equipment. The Customer must ensure that its equipment is compatible with the Payments Solution and maintained, including by ensuring that it is used, and all applicable security and other patches are applied, in accordance with the manufacturer’s recommendations.

4.14 The Agreement does not transfer or assign title to Redcat equipment to the Customer.

4.15 The Customer must not, without Redcat’s prior written consent, grant or permit the grant or existence of any security interest in Redcat equipment (except a security interest in Redcat’s favour).

4.16 On termination or expiry of this Agreement for any reason, the Customer acknowledges and agrees that it must return any Redcat equipment to Redcat as soon as reasonably possible. If required by law, Redcat will be responsible for the proper disposal of Redcat equipment in accordance with the applicable rules and regulations and accept all associated costs.

4.17 Redcat reserves the right to charge the Customer a fee for any Redcat equipment that is not returned in accordance with clause 4.16.

5. Title to Payments Hardware

5.1 Words and phrases used in this Addendum that have defined meanings in the Personal Property Securities Act (Cth) (PPSA) have the same meaning as in the PPSA, unless the context indicates otherwise.

5.2 Unless otherwise expressly agreed in writing, all Payments Hardware remains owned by Redcat (or the Payment Processor) and title to any Payments Hardware will not pass to the Customer at any time.

5.3 The Customer must not sell or otherwise dispose of the Payments Hardware during the Term, or anytime thereafter.

5.4 The Customer must not do any of the following in relation to any of the Payments Hardware without Redcat’s express prior written consent:

(a) create or allow any interest (except a security interest in Redcat’s favour) in, or dispose or part with possession of, the Payments Hardware;

(b) allow the Payments Hardware to become an accession to or commingled with any other property; or

5.5 If the Customer deals with the Payments Hardware in contravention of clause 5.4, without limiting any other rights or remedies available to Redcat, the Customer will hold the proceeds of any sale or disposal of the Payments Hardware, and in all other circumstances an amount equaling the replacement cost of the Payments Hardware, on trust for Redcat.

5.6 Where Redcat supplies Payments Hardware to the Customer, the Customer:

(a) is a bailee of the Payments Hardware;

(b) irrevocably appoints Redcat to be its attorney to do all acts and things necessary to ensure the retention of Redcat’s title to the Payments Hardware including the registration of any security interest in Redcat’s favour with respect to the Payments Hardware under applicable law;

(d) agrees that Redcat may enter any premises and retake possession of (and deal with, in its discretion) the Payments Hardware if payment of any Fees is not made in accordance with the payment terms specified in the Agreement (or such longer time as Redcat may, in its complete discretion, approve in writing) or upon termination or expiry of the Agreement.

5.7 The Customer indemnifies Redcat from and against any claims for damage to property or personal injury that may result from Redcat exercising any rights to retake possession of Payment Hardware in accordance with this clause. If Redcat retakes possession of any Payments Hardware, it may deal with it as it thinks fit.

5.8 Each Agreement is a security agreement for the purposes of the PPSA. The Customer hereby acknowledges that it has granted Redcat a security interest in the Payments Hardware and their proceeds.

5.9 The Customer consents to Redcat perfecting any security interest arising in connection with an Agreement by registering/filing a financing statement on the PPSR and any other applicable security registers in any manner Redcat considers appropriate. The Customer agrees to do anything Redcat reasonably asks to ensure that the security interest:

(a) is enforceable, perfected and otherwise effective; and

(b) has priority over all other security interests.

5.10 The Customer agrees to pay or reimburse Redcat for any fees or charges for the PPSR or other registrations or filings contemplated by an Agreement.

5.11 The Customer waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA, unless the notice is required by the PPSA and cannot be excluded.

5.12 The Customer agrees not to exercise its rights to make any request of Redcat under section 275 of the PPSA. This does not limit the Customer’s rights to request information other than under section 275 of the PPSA. Neither the Customer nor Redcat will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.

5.13 Where the PPSA is applicable, to the extent permitted by law, the Customer and Redcat hereby contract out of and the Customer waives its rights under the following provisions of Chapter 4 of the PPSA:

(a) section 95 (notice of removal of accession), to the extent that it requires Redcat to give a notice to the Customer;

(b) section 96 (when a person with an interest in the whole may retain an accession);

(d) section 125 (obligation to dispose of or retain collateral);

(e) section 130 (notice of disposal), to the extent that it requires Redcat to give a notice to the Customer;

(f) section 132(3)(d) (contents of statement of account after disposal);

(g) section 132(4) (statement of account if no disposal);

(h) section 142 (redemption of collateral); and

(i) section 143 (reinstatement of security agreement).

6. Intellectual Property Rights

6.1 As between the Customer and Redcat, all of the Intellectual Property Rights in:

(a) the Payments Solution (including any software, source code, object code, databases and configurations of the Payments Solution);

(b) any modifications, improvements, inventions, discoveries, upgrades or updates to the Payments Solution; and

(c) all reports and other output (except to the extent that it comprises Customer Data) made available in or via the Payments Solution,

are, and will remain, Redcat’s sole property and Redcat reserves the right to commercialise the Payments Solution (in whole or in part) in any way it deems fit, including by granting the right to access and use the Payments Solution to any other party or parties.

6.2 The Payments Solution is proprietary to Redcat (or its third-party licensors) and the Customer acquires no rights in or to the Payments Solution other than those expressly granted by this Agreement.

6.3 The Customer will do and execute, or arrange for the doing and executing of, each necessary act, document and thing that Redcat may consider necessary or desirable to perfect Redcat’s or its third-party licensors’ rights, title and interest (including Intellectual Property Rights) in and to the Payments Solution.

6.4 The Customer must prevent any infringement of Redcat’s or its third-party licensors’ Intellectual Property Rights in the Payments Solution and will promptly report to Redcat any such infringement that comes to the Customer’s attention. In particular, the Customer will:

(a) ensure that each Licensed User, before commencing use of the Payments Solution, is made aware that the Payments Solution is proprietary to Redcat or third parties and that it may only be accessed and used in accordance with the Agreement;

(b) ensure that the Customer’s network is secured to prevent unauthorised access and use of the Payments Solution; and

7. Customer obligations in relation to the Payments Solution

7.1 The Customer is responsible for all and any acts and omissions of its personnel and Licensed Users, as if they were the acts and omissions of the Customer.

7.2 The Customer must comply with the Payment Processor Agreement in place between the Customer and the Payment Processor and indemnifies Redcat from and against any loss or damage it may suffer or incur as a result of the Customer’s breach of the Payment Processor Agreement howsoever arising.

7.3 Redcat may treat any breach of the Payment Processor Agreement as a breach of this Agreement.

7.4 The Customer must:

(a) promptly inform Redcat in writing of all material complaints or claims in relation to the Payments Solution; and

(b) not admit liability on behalf of Redcat in respect of any complaint or claim in relation to the Payments Solution.

7.5 Without limiting any other provisions of this Agreement, the Customer:

(a) is responsible for payment of Merchant Deposit to Redcat or the Payment Processor where required;

(b) is responsible for the payment of all Refunds and Chargebacks and any costs or expenses related to same or otherwise related to the processing of payments;

(c) is responsible for complying with the Scheme Rules and payment of any and all fines and penalties levied by a Scheme Owner that is caused by the Customer’s acts or omissions or those of its Licensed Users and/or Account Holders;

(d) must comply with the Customer’s legal obligations to the Customer’s customers, including with respect to the delivery of goods or services to customers;

(e) must not, and must not permit any other user to, use the Payments Solution for:

(i) the supply of goods and/or services that are not intended to be supplied, provided or delivered to the Customer’s customer within 5 days following receipt from that customer of payment;

(ii) any use not permitted by applicable laws or Scheme Rules or is otherwise illegal;

(iii) in connection with any criminal act, theft or fraudulent activity of any kind;

(iv) the benefit of any business that Redcat or the Payment Processor has identified as a Restricted Business (including to facilitate donations to any Restricted Business); or

(v) any Restricted Activities; and

(f) must comply with all applicable laws, industry codes and rules that apply to the Customer.

7.6 It is the Customer’s responsibility to ensure that it is aware of, accepts and complies with the Scheme Rules including any updates to the Scheme Rules from time to time.

7.7 The Customer must provide the Payment Processor with any documents or information requested by it in order for it to perform any Know Your Customer and/or Anti-Money Laundering and Anti-Terrorist Financing checks and verifications requested by it, to its satisfaction, including in connection with a specific Transaction.

7.8 The Customer warrants that all documents and information provided by it in accordance with this Addendum are complete, true and correct.

7.9 The Customer must:

(a) ensure that it maintains a reliable internet connection for Redcat to use to connect remotely to Customer equipment where reasonably required by Redcat to provide the Payments Solution (except where the Payments Solution includes an internet connection);

(b) ensure that its premises are suitable and maintained in a manner suitable for the use of the Payments Solution;

(c) procure and maintain in good working order all building cabling (existing and new) at the Site in accordance with all applicable industry standards necessary for the Payments Solution; and

(d) not do anything, or allow any of its personnel to do anything, that interferes with or prevents the proper functioning of the Payments Solution.

7.10 The availability of the Payments Solution will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Specifications and/or documentation.

7.11 The Customer must not remove, or allow any person to remove, any trademarks, copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to the Payments Solution.

7.12 Redcat may immediately terminate and/or suspend the Customer’s access to all or some of the Payments Solution, or terminate the Agreement, without further liability to the Customer:

(a) where the Customer and/or its personnel or Licensed Users repeatedly infringe this Agreement or commit a material breach of this Agreement;

(b) if Redcat reasonably determines that the Customer has failed to comply with clause 7.7 within a reasonable timeframe following a request by Redcat or in accordance with clause 7.8;

(d) if Redcat is requested to by or on behalf of the Payment Processor, or any Acquirer or Scheme Owner;

(e) if the Payment Processor Agreement between the Customer and the Payment Processor is terminated or expires or, if Redcat exercises its right to change the Acquirer and the incoming Acquirer does not agree to deliver the associated services to the Customer;

(f) if Redcat’s agreement with the Payment Processor is terminated or expires; and/or

(g) where Redcat is otherwise permitted to do so under the Agreement.

7.13 Redcat may at any time modify the settings of the Payments Solution and/or configure the Payments Solution, or request that the Payment Processor take action to prevent an actual or suspected breach by the Customer and/or its personnel or Licensed Users of this Agreement, the Scheme Rules, the Payment Processor Agreement between the Customer and the Payment Processor, or applicable law.

7.14 The Customer acknowledges that the integrity of the Payments Solution is protected by technical protection measures to prevent Intellectual Property Rights, including copyright, in the Payments Solution from being misappropriated.

7.15 The Customer must not attempt and ensure that its personnel and Licensed Users do not attempt, to remove or circumvent any technical protection measures in the Payments Solution.

7.16 The Customer must comply with and ensure that its personnel and Licensed Users comply with, any security procedures, policies and standards that Redcat notifies to the Customer from time to time with respect to access and use of the Payments Solution.

7.17 The Customer must notify Redcat in writing immediately of:

(a) any Change of Control;

(b) becoming the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

(c) any changes affecting the Customer, the nature of its business activities, beneficial owners, or other important information; or

(d) any other change in circumstance which may impact an Approval.

7.18 At any time, following receipt of a notice in accordance with clause 7.17, Redcat may require the Customer to provide all necessary documents and cooperation required to enable Redcat to re-perform any Approval checks required in accordance with clause 3.

7.19 The Customer indemnifies Redcat in respect of all and any loss and damage that it may suffer as a result of the Customer’s breach of this clause 7.

8. End Users

8.1 The Customer must ensure that any person who accesses and/or uses the Payments Solution (each, an End User):

(a) complies with all applicable documentation, applicable law and Redcat’s directions and policies (including any security policy) during such access and/or use;

(b) does not infringe or permit any person to infringe any of Redcat’s, or its licensors’, Intellectual Property Rights;

(c) provides Redact with access to Customer Data, personnel, equipment and any cooperation and assistance reasonably required by Redcat to carry out its obligations under the Agreement;

(d) does not provide their passwords or other access credentials for the Payments Solution to any other person; and

(e) immediately notifies Redcat of any unauthorised or suspected unauthorised use or disclosure of any access credentials for the Payments Solution.

8.2 Unless otherwise expressly specified in the Agreement, the Customer must not, and must not permit any person to, use the Payments Solution:

(a) to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Payments Solution;

(b) in a manner that in any way breaches applicable laws or violates all or any legal rights of any person in any jurisdiction (including any person's privacy, such as by way of identity theft or "phishing");

(c) to license, sublicense, resell, assign, transfer, distribute, or provide others with access to, the Payments Solution without Redcat’s written consent;

(d) to develop or manufacture any competing product or service;

(e) to “frame”, “mirror” or serve the Payments Solution on any web server or other computer server over the Internet or any other network;

(f) to infringe Redcat’s or any third party’s Intellectual Property Rights;

(g) to store, transmit, distribute or introduce malicious programs into Redcat’s systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);

(h) to make fraudulent offers of goods or services;

(i) to create derivative works from or any other material including, incorporating, using or adding to any of Redcat’s Intellectual Property Rights;

(j) to carry out security breaches or disruptions of network communication (security breaches include, accessing data of which the Customer is not an intended recipient, logging into a server or account that the Customer is not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes);

(k) in any way that causes damage or injury to any person or property;

(l) to execute any form of network monitoring which will intercept data not intended for the Customer; or

(m) to circumvent user authentication or security of any of Redcat hosts, networks or accounts or those of Redcat customers or third-party providers.

8.3 The Customer indemnifies Redcat from and against all and any loss or damage that it suffers or incurs because of any breach of clause 8.2 by the Customer or its End Users.

8.4 The Customer must promptly notify Redcat if it becomes aware that:

(a) any person has breached, or is likely to breach, clause 8.2; and

(b) if any person alleges that the Payments Solution breaches any third-party Intellectual Property Rights or other rights, and fully cooperate with Redcat in connection with any such claims.

9. Customer Data

9.1 Customer Data in any form entered, uploaded into or generated from the Payments Solution is, as between the Customer and Redcat, owned by the Customer and the Agreement does not transfer any Intellectual Property Rights in Customer Data to Redcat.

9.2 The Customer grants Redcat a non-exclusive, transferable, assignable and sub-licensable, worldwide, irrevocable, perpetual licence to collect, record, organise, structure, use, store, adapt, modify, alter, retrieve, disclose, disseminate, align, combine, erase, destroy, commercialise and exploit Customer Data:

(a) to perform its obligations under the Agreement; and

(b) to comply with its legal obligations.

9.3 The Customer must ensure that:

(a) End Users are fully entitled (and where applicable, licensed) to disclose Customer Data to Redcat;

(b) Customer Data is accurate and up to date; and

(c) the exercising of its rights under the licence granted pursuant to clause 9.2 by Redcat does not breach any applicable law or any person’s rights; and

(d) the Customer has obtained all necessary consents required for Redcat to exercise its rights under the licence granted pursuant to clause 9.2.

9.4 Some of Redcat’s products and services may be “cloud-based” services and hosted using physical servers located in third party data centres (or any virtual servers implemented on those physical servers). For cloud-based products and/or services, Customer Data may be hosted by Redcat or its third-party providers on hardware or infrastructure located inside or outside Australia that may or may not be owned by Redcat.

9.5 Data loss and corruption is unpredictable and can occur from time to time. In the event of any loss, destruction, alteration, corruption or damage to any of Customer Data that is stored in the Payments Solution, subject to any non-excludable remedies available to the Customer under applicable law:

(a) the Customer’s sole and exclusive remedy as against Redcat, will be to request that Redcat use reasonable endeavours to restore that data from the latest back-up that Redcat maintains (if any); and

(b) Redcat will not have any liability for any such loss, destruction, alteration, corruption or damage, or for any unauthorised access or disclosure, to Customer Data unless it is caused by Redcat’s wilful misconduct or intentional breach of the Agreement.

9.6 For the avoidance of doubt, Redcat does not provide data backup services unless an applicable Order Form clearly states that they will be provided.

9.7 The Customer indemnifies Redcat in respect of any loss and damage that it may suffer or incur as a result of any third-party claim that:

(a) the exercising of its rights under the licence granted pursuant to clause 9.2 by Redcat and/or its personnel; or

(b) access to and/or use of Customer Data by any End User,

infringes the Intellectual Property Rights and/or other rights of any person or breaches any applicable law.

9.8 Redcat or the Payment Processor may use Transaction data for the purposes of providing insights, optimising payment performance and improving products and services, including fraud prevention and risk assessments. The processing of any personal data for these purposes will be in accordance with Redcat’s and Payment Processor’s privacy policy (as applicable).

10. Liability

10.1 The Customer, and not Redcat, are solely liable for payment of the following:

(a) the Merchant Deposit;

(b) all Refunds and Chargebacks; and

(c) any and all fines or penalties levied by a Scheme Owner and/or a Payment Processor that are caused by the acts or omissions of the Customer, its Licensed Users and/or Account Holders.

10.2 The Customer indemnifies Redcat in respect of any loss or damage that Redcat may suffer or incur as a result of the Customer’s failure to pay any amount that is referred to above as and when due.

10.3 Redact is not liable for:

(a) the creditworthiness or fraud of any person whose payment is processed by the Customer using the Payments Solution;

(b) for any non-performance of the Payments Solution to the extent caused by the Payment Processor or the acts or omissions of any bank or one or more payment, clearing, settlement or other systems provided by a third party, except to the extent caused by Redcat’s fraud or wilful misconduct;

(d) any failure to perform or deliver the Payments Solution caused by any breach of the Agreement by the Customer or its personnel.

10.4 The output of the Payments Solution (including any report generated from the Payments Solution) does not and shall not constitute Redcat’s advice, including financial, legal or other advice. The Customer must obtain all appropriate professional, financial, legal and other advice as applicable before relying on the output that it obtains from the Payments Solution. The Customer must not represent (either expressly or implied) that the output of the Payments Solution is or may constitute Redcat advice.

10.5 Excluding the Customer’s obligation to pay the Fees and any amount referred to in clause 7.5, Redcat and its personnel are not liable to the Customer, and the Customer is not liable to Redcat or its personnel, for any loss of profits, loss of business opportunity, loss of revenue (other than caused by failure to pay the Fees), loss of savings or loss of data, indirect or consequential loss, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage was foreseeable or not.

10.6 To the extent permitted by law and where not already excluded, the total liability of Redcat and its personnel for loss or damage arising under or in connection with this Agreement is limited in the aggregate to an amount equivalent to the total Fees (excluding the cost of any purchased equipment) paid by the Customer in the 6-month period prior to the date of the relevant claim in respect of that Order Form.

10.7 The limitation set out in clause 10.6 is an aggregate limit for all claims, whenever made.

10.8 Each party’s liability is reduced to the extent that the other party or its personnel caused or contributed to the loss or damage.

11. Termination

11.1 In addition to the termination provisions in the MSSA, Redcat may terminate its provision or supply of the Payments Solution to the Customer under an Agreement, if:

(a) the Customer undergoes a Change of Control without Redcat’s prior written consent;

(b) Redcat reasonably suspects, in its sole and absolute discretion, that the Customer may be ineligible to receive the Payments Solution due to fraud, credit risk, or other associated risk;

(c) the bank account owned and operated by the Customer that is associated with Redcat’s delivery of the Payments Solution experiences a negative balance on 3 or more occasions;

(d) the Customer’s Approval is refused or revoked in accordance with clause 3; or

(e) a termination right arises under clauses 7.12.

11.2 If the Agreement is terminated for any reason:

(a) the Customer must, at Redcat’s option and upon its request, promptly return or destroy all copies of Redcat Confidential Information in its possession or control;

(b) the Customer must pay to Redcat all costs and expenses that Redcat incurs in connection with the termination of the Agreement, including any terminal collection fees, debt collection and legal costs and expenses (including solicitor and barrister fees and disbursements on a full indemnity basis), except where the Agreement is terminated for Redcat’s breach;

(d) Redcat may retake possession of (and deal with, in its discretion) Payment Hardware, and the Customer acknowledges and agrees that it will be solely responsible for any terminal collection fees associated with effecting such repossession.

Terms and Conditions

Redcat Payments - Addendum to Master Services and Subscription Agreement (MSSA)