Zeller Terms of Service
4 May 2021
These are the terms and conditions (Terms) on which NPCO Pty Ltd ACN 637 321 147 and NPCO Operations Pty. Ltd. ACN 649 001 383 together Zeller Australia (referred to as Zeller, we, us, our) permits a user (referred to as User, you, your) to access our services.
To the extent that these Terms relate to your use of the Card Scheme Services, these Terms constitute an agreement between us, you and Cuscal Limited ACN 087 822 455 (Card Scheme Acquirer). In relation to the Card Scheme Services, any right conferred on us under these Terms is also conferred on the Card Scheme Acquirer.
To the extent that these Terms relate to your use of the BNPL Payment Services, these Terms constitute an agreement between us, you and Zip Co Limited (BNPL Provider). In relation to the BNPL Payment Services, any right conferred on us under these Terms is also conferred on the BNPL Provider.
! Whenever you see this symbol, we have provided an explanation of our Terms.
PART A: OVERVIEW AND USER ACCEPTANCE
! Part A applies to all Users and sets out how you can apply to become a User.
1. Your acceptance
! These Terms apply to your use of our services. We can update them from time to time.
(a) These are the Terms on which we permits you to access and use:
(i) the public elements of our website at myzeller.com (Website);
(ii) the Card Scheme Services;
(iii) the AMEX Payment Services;
(iv) the Non-Scheme Payment Services;
(v) the BNPL Payment Services;
(vi) the Zeller Account; and
(vii) the Zeller MasterCard
(collectively, the Zeller Services).
(b) You agree to be bound by these Terms by using or accessing any part of the Zeller Services. If you do not accept these Terms, you must not use the Zeller Services.
(c) We may from time to time review and update these Terms, including to take account of new laws, regulations, products or technology. Your use of the Zeller Services will be governed by the most recent Terms posted on the Website. By continuing to use the Zeller Services, you agree to be bound by the most recent Terms which will be made available on the Website. It is your responsibility to check the Website regularly for updated versions of the Terms.
(d) The following documents form part of and are incorporated into these Terms:
(i) any terms of an Acquirer as notified to you from time to time;
(ii) the Product Disclosure Statement for the Zeller MasterCard;
(iii) Direct Debit Authority; and
(iv) any policies and procedures we provide to you from time to time in relation to the Zeller Services, including our policies and procedures and policies and procedures set by an Acquirer, a Card Scheme, AMEX or a Non-Scheme Body.
2. Becoming a User
! To become a User, you need to apply and provide us with all the information we need.
(a) You may apply to become a User by completing the online Application Form and providing all required information. Zeller may accept, partially accept or reject your application in its sole discretion. It may take time for Zeller and its Services Providers to process your application and for you to begin receiving the Zeller Services.
(b) You represent and warranty to us that:
(i) any information you provide to us is complete, accurate and not misleading or deceptive; and
(ii) if you have disclosed Personal Information to us, you have obtained the relevant individual’s prior consent to the disclosure and otherwise complied with your obligations under the Applicable Laws.
3. Electronic signatures
! You may sign documents electronically.
(a) To the extent permitted by law, you may sign this or any other Zeller document electronically, including by using software or a platform for the electronic execution of contracts.
(b) A print out of the executed Zeller document once all parties signing electronically have done so, will be an executed original counterpart of the Zeller document, irrespective of which party prints it.
(c) Each party that signs Zeller document electronically represents and warrants that it or anyone signing on its behalf:
(i) has been duly authorised to enter into and execute the Zeller document electronically and to create obligations that are valid and binding obligations on the party;
(ii) has affixed their own electronic signature; and
(iii) holds the position or title indicated under their electronic signature.
PART B: ACQUIRING SERVICES
! Part B applies to Users who wish to access and use any of the Card Scheme Services, AMEX Payment Services, Non-Card Scheme Payment Services and the BNPL Payment Services.
4. Acquiring Services
4.1 Payment connectivity
! To access our services you will need to connect with the Zeller System and provide us with information we request.
(a) Zeller will provide you with access to Zeller System.
(b) Zeller will provide you with the Acquiring Services you have chosen to receive, subject to you satisfying all applicable requirements of us and the relevant Acquirer. Your access to Acquiring Services is conditional on the relevant Acquirer approving an application for you to receive the Acquiring Services from us.
(c) We are a payment facilitator and the Acquiring Services enable you to accept Cards from customers for the payment for goods and services. We do not provide banking services and are not a bank.
(d) If you wish to receive Non-Card Scheme Payment Services or BNPL Payment Services, you must notify us and provide us with all information required by us or the Acquirer in order to activate those services.
(e) You must connect to the Zeller System and ensure that your System is compatible with Zeller System.
(f) Without limiting any other provision of these Terms, you must, at your sole cost and expense, establish and maintain such interfaces between your System and Zeller Systems as are necessary to permit Zeller to deliver the Acquiring Services to you.
4.2 Transaction processing
! We will arrange for you to receive the Acquiring Services you have selected and which for are approved for. You must meet certain conditions and confirm your compliance with them.
(a) In respect of the chosen Acquiring Services, Zeller must:
(i) attempt to register the User with each applicable Card Scheme, Acquirer and Non-Scheme Body, as applicable;
(ii) arrange for the processing of all Transactions through the chosen Payment Methods which are valid in accordance with these Terms and any terms and conditions or policies and procures of the relevant Acquirer; and
(iii) take reasonable steps to comply with Zeller policies and procedures and any applicable compliance frameworks as agreed with a Card Scheme, Acquirer or Non-Scheme Body.
(b) You must:
(i) accept all valid Cards and process all Transactions in accordance with all Applicable Laws and any obligations in these Terms;
(ii) not process or encourage Transactions through the Zeller Services that relate to, or are in connection with, the sale of goods or services that are:
(A) in contravention of Applicable Law; or
(B) obscene, vulgar, offensive or dangerous
(C) not within its Merchant Category Code; or
(D) not, in Zeller's absolute discretion, acceptable from time to time.
(iii) implement specific procedures from time to time when notified or required by Zeller;
(iv) not deliberately reduce the value of any one Transaction by:
(A) splitting a Transaction into two or more transactions for the purposes of avoiding Cardholder verification; or
(B) allowing a Cardholder to purchase items separately;
(v) not, without the prior written consent of Zeller, process purchases relating to BNPL Transactions unless delivery to the Cardholder will be completed within 14 days of the date of the Transaction;
(c) If a Transaction for a sale does not cover the full amount of the sale:
(i) in the situation in which the Card is used to make a deposit or pay an instalment, you may accept the Card in payment of all or part of the outstanding balance; and
(ii) in any other circumstance, you must obtain the balance due at the time the sale is completed in cash.
(d) In respect of remote Transactions, you must:
(i) take reasonable steps to verify the identity of the person you are dealing with in order to confirm that they are the genuine Cardholder; and
(ii) record reasonable identification details of the person you are dealing with, as well as the commencement and expiry dates of the Card.
4.3 Ongoing User obligations
! To continue to use our services on an ongoing basis you will have specific ongoing obligations and must notify us of certain events
In respect of accessing and using the Acquiring Service on an ongoing basis, the User must:
(a) immediately notify us of any change to your financial position which may affect your ability to perform your obligations under these Terms; and
(b) provide us with 10 Business Days’ prior written notice of any change in your place of business, internet address, website name, email address or telephone number; and
(c) not change your business name or ownership of your business without giving us 10 Business Days’ prior notice and not substantially change the type of goods and services you sell without our prior written consent;
(d) only submit a Transaction where you are the supplier of the goods and/or services and not submit transactions on behalf of a third party;
(e) not act as a Payment Facilitator;
(f) provide us and the Acquirers with all information and assistance reasonably required to perform our and their obligations, including but not limited to information about the veracity of a transaction;
(g) comply with all applicable Card Scheme Rules, Applicable Laws and contractual requirements in accepting Card payments and performing your obligations under these Terms.
4.4 Dealing with Cardholders
! You must meet these requirements when dealing with cardholders.
(a) In respect of accessing and using the Acquiring Service, the User must:
(i) ensure each Cardholder is aware of your identity;
(ii) obtain and hold Cardholder authorisation for all Recurring Transactions and ensure the nominated Card is within current validity at all times;
(iii) not charge a fee to a Cardholder or impose a surcharge for a Transaction beyond the merchant service fee that is agreed with Zeller. Failure to comply with this requirement may lead to an Acquirer imposing additional fees which will be recovered from you;
(iv) not accept a Card in a credit card transaction for the purpose of giving a Cardholder cash;
(v) perform all obligations (including supplying all goods and/or services) to the Cardholder in connection with any Transaction;
(vi) not make any representation in connection with any goods or services which may bind us or an Acquirer and must not indicate or imply that we or an Acquirer endorse any goods or services;
(vii) not unfairly distinguish between issuers of Cards when accepting a Transaction;
(viii) not refuse to complete a Transaction solely because a Cardholder refuses to provide additional identification information in circumstances where we do not require you to obtain it;
(ix) not transfer or attempt to transfer financial liability under these Terms by asking or requiring a Cardholder to waive their dispute rights;
(x) not ask a Cardholder to reveal their personal identification number (PIN) or any other secret identifier;
(xi) contact us for instructions if the identification of a Cardholder or the validity of the Card is uncertain; and
(xii) not knowingly submit for processing any Transaction that is illegal or that you should have known is illegal.
(b) You may only process a Recurring Transaction if:
(i) you have obtained Cardholder permission (either electronically or in hardcopy) to periodically charge for a recurring service; and
(ii) you retain this permission for the duration of the recurring services and make it available to us on request; and
(iii) you provide a simple and accessible cancellation procedure.
(c) You must provide customers with a written receipt for each Transaction and must not charge a fee for doing so.
4.5 Cardholder Data
! Cardholder Data must be protected. You must comply with security standards in relation to processing and storing Cardholder Data
(a) You must not hold, store or collect Cardholder Data other than in compliance with Zeller's policies and procedures.
(b) Zeller has the right to undertake reviews of User systems containing Cardholder Data which may have been processed on Zeller systems.
4.6 Sale Refunds
! You must deal fairly with exchanges, disputed amounts and Sale Refunds and only process Sale Refunds to the same Card (or other Payment Method, if applicable) used for the initial Transaction.
In respect of providing refunds to Cardholders, the User must:
- establish a fair policy for dealing with refunds and disputes about Transactions and include information about that policy on receipts for Transactions;
(a) give credit upon each return where a refund is due by means of a sales refund Transaction (Sale Refunds);
- only submit a Transaction as a Sale Refund to a Cardholder if it is a genuine refund of a previous Transaction. The refund must be processed to the same Card (or other Payment Method, if applicable) that was used in the original Transaction and be for the original sale amount, or the amount of the item(s) in the case of a partial refund;
- give Sale Refunds for Transactions by means of a credit Transaction and not in cash or cheque; and
- not process a Sale Refund as a way of transferring funds between your accounts.
4.7 AMEX Payment Services
! This section covers particular requirements for processing AMEX transactions. If you exceed a specified volume, you may need to sign up with AMEX directly. You must also treat AMEX Transactions equivalently to other Payment Methods.
(a) If you submit AMEX Transactions above a certain volume (determined from time to time by AMEX), AMEX may require that you enter into an agreement directly with AMEX in order to continue receiving the AMEX Payment Services.
(b) You agree to display all AMEX advertising and give AMEX equal representation with any signage, decals or other identification when promoting Payment Methods and remove them should these Terms end.
(c) You agree that any refund policy you have in place will be as favourable in relation to AMEX Transactions as it is to Transactions involving any other Payment Methods.
(d) Notwithstanding anything else in these Terms, you agree that you will not impose any surcharge on AMEX Cards or if you do apply a surcharge it is not more than any surcharge which you apply to other Cards.
4.8 Non-Card Scheme Payments Services
! To access the Non-Card Scheme Payment services (such as AliPay and WeChat Pay) you must also have a direct relationship with the relevant Acquirer, ChinaPayments.
(a) In order to receive the Non-Card Scheme Payment Services, you must enter into an agreement with the Acquirer for the Non-Card Scheme Payments Services. Zeller acts as an introducer and has no authority or ability to negotiate or vary the terms of the agreement between you and the Acquirer.
(b) The provision of the Non-Card Scheme Payment Services under these Terms is subject to the provisions of the agreement between you and the Acquirer. Any breach of that agreement by you will be treated as a breach of these Terms.
(c) You authorise and direct the Acquirer for the Non-Card Scheme Payments Services to settle all Transactions by payment to Zeller to be credited to your Zeller Account or to a nominated third party bank account you nominate.
4.9 BNPL Payment Services
! This section covers particular requirements for processing BNPL transactions. You must treat BNPL Transactions equivalently to other Payment Methods.
(a) In respect of the BNPL Payment Service, you must:
(i) honour purchases tendered by a Cardholder for the payment of goods or services to be supplied by you to the Cardholder;
(ii) not charge a Cardholder a different price for a purchase than that charged to the Cardholder for other payment methods;
(iii) not charge a Customer a fee or charge for using the BNPL Provider as their payment method;
(iv) handle Transactions so as to minimise the possibility of Cardholder disputes and the unauthorised use of accounts;
(v) perform all obligations to a Cardholder in connection with a sale giving rise to a purchase prior to processing the purchase;
(vi) obtain alternative payment in full for the balance due at the time the sale is completed if less than the full amount of any sale is included in any purchase;
(vii) not make any warranty or representation whatsoever to any person which may bind the BNPL Provider;
(viii) not enter into a purchase with a Cardholder where the goods the subject of the purchase are not located in Australia at the date of purchase; and
(ix) not process a Transaction for the payment of a gift card, gift voucher or prepaid stored value card or voucher.
(b) You may be supplied with goods or services including software, decals, logos, links, plug-ins, instructions, insignia and other promotional material from BNPL Providers. All of these items will remain the property of the BNPL Provider and the BNPL Provider will license the User to use the software and other items on a non-exclusive basis, limited to the use of the software and items as described in these Terms.
(c) You will:
(i) display prominently on your website or premises logos, decals, banners, payment links, and other signs advertising the BNPL Provider's services; and
(ii) not use any advertising or promotional material relating to the BNPL Provider or the BNPL Provider's services except as authorised by the BNPL Provider.
(d) You authorise the BNPL Provider to publish the name, address, telephone number and email address of the User and to use any logo applicable to the User in any website, correspondence, circular or publication of the BNPL Provider.
(e) You will to remove all references to the BNPL Provider from your website or premises, uninstall any software provided, and return all the BNPL Provider's property immediately on termination of these Terms or if specifically instructed to do so by us at any time.
(f) In order for a BNPL Provider to ensure that it does not incur any liability as a linked credit provider or otherwise, you User must provide:
(i) any information and correspondence that may affect the validity of a purchase, sale contract and/or the credit; and
(ii) such other information reasonably requested by the BNPL Provider from time to time to demonstrate the User's ability to satisfy the representations and warranties made by them to the BNPL Provider.
4.10 Payment Method acceptance
! Communication of payment methods to potential customers must comply with this section.
Whenever you communicate the Payment Methods that you accept to customers, you must comply with any guidelines we provide to you in relation to the display of Card Scheme, AMEX and Non-Card Scheme logos, trademarks and branding and must display all such content with equal prominence for all accepted Payment Methods.
! Zeller will attempt to settle all transactions in connection with your use of the services within one Business Day.
(a) Zeller will:
(i) credit to your Zeller Account or a nominated third party bank account any amounts received from an Acquirer in respect of your Transactions. Zeller will use reasonable endeavours to credit such amounts to your Zeller Account or nominated third party bank account within one Business Days after the date of the Transaction; and
(ii) provide you with access to information about your Transactions and your Zeller Account, in such form and manner as Zeller determines from time to time. You may raise any issue that you have concerning an amount paid, or not paid to you, within 3 months of the date of payment or of the date the payment was due.
(b) You acknowledge that the Acquirers' obligations to settle Transactions to you are satisfied by the amounts being credited to your Zeller Account or nominated third party bank account.
(c) We reserve the right to withhold payment to your Zeller Account or nominated third party bank account of any amount for such period as we consider necessary where we have reasonable grounds to suspect you have processed Transactions otherwise than in accordance with these Terms or where we are required to do so by Applicable Law.
(d) Zeller reserves the right to suspend settlement on notice to the User if:
(i) directed to do so by an Acquirer, Card Scheme or Non-Scheme Body; or
(ii) Zeller is required or permitted to suspend the Zeller Service to which the Transaction relates pursuant to these Terms or Applicable Law.
! We will provide software updates for the Terminals, which you must install. Tell us if a Terminal is lost or stolen.
(a) The User will
(i) install all updates and releases of Terminal software as notified by Zeller from time to time; and
(ii) notify Zeller of lost or stolen Terminals within 24 hours of identification that a Terminal has been lost or stolen.
(b) Zeller represents and warrants that if you become aware of any Defect in a terminal during the Terminal Warranty Period, then Zeller must rectify any such Defect as soon as practicable, or refund you for the full amount.
! Zeller will settle Chargebacks in accordance with this clause 6 and will provide details of Chargebacks on request. You must act in accordance with the processes contained in this clause 6.
(a) Zeller will settle Chargebacks in accordance with this clause 5 and will provide details of Chargebacks on request. You must act in accordance with the processes contained in this clause 5.
(b) Without limiting any other provision of these Terms, you accept liability for all Chargebacks from Offline Transactions.
(c) Where Zeller is unable to offset any amounts from Transactions that have been processed but not settled, we will debit your Zeller Account or your account (as defined in the Direct Debit Authority) with the full amount of all:
(i) valid and acceptable refund transactions processed by you; and
5.2 Invalid Transactions
! A transaction will be considered to be invalid where it meets any of the conditions described in this section. Invalid Transactions must not be submitted for processing.
(a) A Transaction is not valid if:
(i) the Transaction is illegal as per Applicable Law;
(ii) the Transaction breaches any terms of this Agreement;
(iii) the signature on the voucher, receipt or authority (as applicable) is forged, obtained by fraud or deception or unauthorised;
(iv) the User knows or should have known that the Transaction is unauthorised or fraudulent;
(v) the Transaction is before or after any validity period indicated on the relevant Card;
(vi) you have been told not to accept the Card;
(vii) the Transaction is not authorised by the Cardholder;
(viii) the particulars on the copy of the voucher or receipt for the Transaction given to the Cardholder are not identical with the particulars on any other copy of the voucher or receipt;
(ix) the voucher or receipt for the Transaction given to the Cardholder is not completed in accordance with this Agreement or is illegible;
(x) the price charged for the goods or services is different to that charged to the Cardholder for other payment methods or inflated to include an undisclosed surcharge for Card payments;
(xi) the Transaction is offered, recorded or billed in a currency we have not authorised you to accept;
(xii) it is a credit Transaction in which:
(A) the amount of the Transaction or Transactions on the same occasion is more than any applicable limit notified to you; or
(B) you collected or refinanced an existing debt including, without limitation, the collection of a dishonoured cheque or payment for previous Card charges;
(xiii) it occurs during a period in which your rights under these Terms were suspended or after these Terms were terminated;
(xiv) the Cardholder is entitled to a Chargeback of the Transaction.
(xv) the Cardholder disputes liability for the Transaction for any reason or makes a Claim for set-off or a counterclaim; or
(xvi) the User does not have a valid regulatory licence or authorisation to process the Transaction;
(xvii)the Transaction is split into two or more Transactions on the same Card or over two or more Cards, where the purpose is to avoid having to obtain an authorisation for the total amount of the sale (in which case, each such Transaction will be invalid);
(xviii) the User has not retained its copy of the receipt or voucher signed by the Cardholder for 18 months after the date of the Transaction; or
(xix) the User is unable to demonstrate the validity of the Transaction to Zeller's reasonable satisfaction;
(xx) the User does not comply with these Terms in relation to the Transaction;
(xxi) the User does not respond to voucher requests or other supporting information required by Zeller within the timeframes specified by Applicable Law;
(xxii)the Cardholder has not received the goods or service as required by the terms of the Agreement and the User has failed to provide Zeller with proof of receipt of, and satisfaction with, the goods or services by the Cardholder within 4 Business Days of Zeller's request to do so;
(xxiii) the goods or services to which the purchase relates were supplied from outside Australia without Zeller's consent;
(xxiv) in Zeller's reasonable opinion, the Cardholder justifiably disputes liability for the purchase for any reason;
(xxv) the goods or services purchased under the purchase or transaction receipt are not of acceptable quality, or are damaged, (on a reasonable determination) and the User is unable to resolve the complaint to the Cardholder's satisfaction;
(xxvi) the Transaction:
(A) is not for the supply of goods or services to a genuine Cardholder;
(B) is for cash out on an account or includes cash out on an account;
(C) represents a transfer of funds, not the supply of goods or services; or
(D) the User failed to comply with all messages generated by the Non-Card Scheme Payment Service in relation to the Transaction;
(xxvii) in respect of a BNPL Transaction, the Transaction was processed for the purchase of a gift card, gift voucher or prepaid stored value card or voucher;
(xxviii) it is of a class which we or an Acquirer decide, in their discretion, is not acceptable.
(b) A telephone, Internet or mail order Transaction is also invalid if the Transaction is not authorised by the Cardholder, or in the case of a standing authority, the authority has expired or was cancelled prior to the Transaction. The User acknowledges that authorisations obtained provide no guarantee that the person providing the Card details is the Cardholder.
(c) You acknowledge and agree that we or an Acquirer may:
(i) refuse to accept a Transaction if it is invalid, or may charge it back to you if it has already been processed, even if we have given you an authorisation;
(ii) reverse a sales Transaction as a Chargeback, and debit your account for the amount of the Chargeback, for any reason; and
(iii) without limiting the above, delay, block, freeze or refuse to accept any Transaction where we or the Acquirer has reasonable grounds to believe that the Transaction breaches Applicable Law.
5.3 Processing Chargebacks
! Zeller may refuse to process invalid transactions and you may be liable for any chargebacks raised against you.
(a) If a Transaction is an Invalid Transaction and it has been processed, you must provide the Cardholder with a refund.
(b) If a Transaction is an Invalid Transaction, or is otherwise charged back by a Card Scheme, AMEX or Non-Scheme Body, Zeller may:
(i) in its sole discretion (and without a request or demand from a Cardholder) refuse to accept the Transaction; or
(ii) if the Transaction has been processed, at any time within two years after the date of the Transaction, Chargeback that Transaction to the User, provided that it is reasonable for Zeller to do so in the circumstances.
(c) Subject to the resolution of a disputed Chargeback in the User's favour in accordance with paragraph (c), the User is liable for all Chargebacks raised against the User (including by a Cardholder).
(d) In the event that the User disputes a Chargeback, Zeller will provide reasonable assistance to the User (at the User's cost) to enable the User and the Card Scheme, AMEX or Non-Scheme Body to resolve the dispute.
(e) Zeller will notify the User if Zeller has reasonable concerns that the volume of Chargebacks and/or fraudulent Transactions, in any particular category, are excessive. Any failure by the User to provide a remediation plan aimed to resolve the cause of the problem, may result in Chargebacks, Card Scheme or AMEX or non-compliance assessments or Non-Scheme Body fines (which Zeller may choose to pass on to the User at Zeller’s discretion).
5.4 Chargebacks to be set off against settlement proceeds
! Zeller will settle Chargebacks by setting off these amounts against your settlement proceeds.
(a) In the event that there is a Chargeback, Zeller will set off any such Chargeback against the User's settlement proceeds.
(b) Zeller will provide the User details of each Chargeback (including description, reason code, terminal ID, amount, Transaction date, and truncated Card details) where available.
(c) The User must raise any dispute in respect of any Chargeback within 3 Business Days. If the User does not raise any dispute within this period, the User acknowledges that Zeller may not be able to dispute the Chargeback with the relevant Card Scheme, AMEX or Non-Scheme Body.
5.5 Direct Debit
! Zeller requires a Direct Debit Authority over your linked bank account in order to ensure you will meet your obligations under these Terms, including with respect to Chargebacks.
(a) For the purposes of meeting your obligations in connection with Chargebacks and in relation to any other amounts payable by you to us or any of our Service Providers under these Terms, you must provide us with the Direct Debit Authority.
(b) During the application process to receive the Acquiring Services, we will ask you to complete the Direct Debit Authority.
(c) If you cancel or revoke the Direct Debit Authority at any time, you will no longer be able to receive the Zeller Services, unless an alternative Direct Debit Authority is established on another account.
6. Documentation to be provided to User
! Zeller provides you with the policy documents you require in order to access and use the services.
(a) Zeller will provide the User with policies, procedures and other information the User requires for the day-to-day operation of the Acquiring Services, and will include requirements set down under Applicable Law. You will comply with such policies, procedures and other information.
(b) Zeller grants a licence to the User, on a non-exclusive basis, without the transfer or other alienation of any of Zeller's intellectual property rights, and with no right to sub-license, to make at its own cost such copies of the Documentation as the User reasonably requires for the operation, training and use of the Zeller Services. The User acknowledges that nothing in these Terms will be construed as transferring title in or ownership of any intellectual property rights in the Documentation to the User.
(c) The User must operate the Zeller Services only in accordance with the Documentation.
! You need to maintain certain records with respect to the Transactions for the timeframes specified in this section.
To ensure compliance with Applicable Laws, you must:
(a) retain in your possession adequate physical and electronic records (including all sales and refund transaction information) for each Transaction for at least 24 months following settlement of that Transaction; and
(b) give Zeller access to the records referred to in clause 7(a) if, and to the extent that, Zeller requires access to those records in order to comply with Applicable Laws on reasonable notice during the 18 month period set out in clause 7(a).
(c) If you do not comply with this clause 7, we may Chargeback the Transaction if such Transaction is required to be charged back pursuant to Applicable Law as a result of such non-compliance.
8. Security Deposit
! We may require you to hold a Security Deposit with us.
(a) Zeller may set the amount of the Security Deposit required (and its basis of calculation) and must provide the User with written notice of these requirements from time to time.
(b) Zeller may increase or decrease the amount of the Security Deposit in its absolute discretion, and will provide the User with written notice.
(c) Zeller must notify the User of the deadline for paying the Security Deposit.
(d) Where directed to do so under clauses 8(a), the User must pay the Security Deposit into a dedicated bank account notified by Zeller (security deposit account) within the timeframe for such payment referred to in clause or 8(c) Any interest which accrues on the funds held in such security deposit account will form part of the Security Deposit.
(e) If the User fails to provide the required amount of the Security Deposit as required, Zeller may:
(i) retain Transaction proceeds which would otherwise be payable to the User and treat them as forming part of the Security Deposit; or
(ii) obtain the amount of any shortfall from the User pursuant to the Direct Debit Authority.
(f) The User agrees that:
(i) Zeller may deduct from the Security Deposit any Chargebacks, Card Scheme, AMEX or Non-Scheme Body fees, fines or penalties, and any amounts which Zeller is required to deduct from the Security Deposit in accordance with the applicable Scheme Rules and any other amounts payable by the User to Zeller under these Terms; and
(ii) in circumstances where an amount has been deducted from the Security Deposit by Zeller in accordance with clause 8(f)(i) (top-up amount), the User will contribute additional funds to the security deposit account equal to the top-up amount within the timeframe specified by Zeller.
(g) The User grants us a security interest over the Security Deposit and any amounts credited to the Zeller Account or nominated third party bank account to secure performance of the User's obligations under these Terms.
(h) Zeller must refund to the User any remaining Security Deposit held within the security deposit account on the date which is 18 months following termination or expiry of these Terms or such sooner date determined by Zeller in its sole discretion.
! Zeller may suspend your access to the services on the occurrence of certain events.
(a) If Zeller reasonably considers a Suspendable Action has occurred or may occur, Zeller will promptly notify the User in writing and via your dashboard, your notification centre, by email or by phone call, including explaining the circumstances causing the Suspendable Action to arise and (if relevant) providing to the User a copy of any notification from the relevant Card Scheme, AMEX or Non-Scheme Body (Direction); and
(b) The User must:
(i) promptly remedy the non-compliance; and
(ii) comply with the Direction and Zeller's reasonable directions to remedy the non-compliance, including directions as to timing.
(a) If the User commits a Suspendable Action, Zeller may immediately suspend any Zeller Service impacted by the Suspendable Action (Suspended Service). If the User remedies a Suspendable Action within a reasonable time in accordance with clause 9.1(b), Zeller may immediately reinstate the Suspended Service.
(b) Notwithstanding paragraph (a), or any other provision of these Terms, Zeller reserves the right to suspend a Zeller Service on notice to the User if:
(i) directed to do so by an Acquirer, Card Scheme or Non-Scheme Body; or
(ii) Zeller is required to suspend that Zeller Service pursuant to Applicable Law.
(c) When Zeller suspends a Zeller Service pursuant to this clause 9, the User will not be able to accept the applicable Card as payment for goods or services and Zeller will not accept any such Transactions processed by the User (if suspension of that Zeller Service would not allow Transactions made with that Card to be processed in accordance with these Terms).
(d) Zeller has the authority to keep a service suspended until such time that all outstanding current or anticipated disputes are resolved.
(e) If a Service is suspended in accordance with this clause 9 for a period of 30 days or more either party may, on written notice to the other party, terminate these Terms as it relates to the relevant Zeller Service.
(f) For the avoidance of doubt, Zeller shall not be liable or responsible in any respect to the User for any Losses flowing directly or indirectly from any Zeller Services being suspended in accordance with this clause 9.
10. Fraud and financial crimes monitoring
! You will investigate fraud and take steps to prevent it. You must comply with our directions when we are notified of any issues relating to fraud or financial crimes in connection with your use of our services.
10.1 User acknowledgements
The User agrees:
(a) where Zeller suspects a data compromise pertaining to fraud, or is notified by a Card Scheme, AMEX or a Non-Scheme Body of a data compromise pertaining to fraud and is permitted to notify the User, the User shall use best endeavours to cooperate and investigate the alleged fraud and take reasonable steps to prevent further fraud incidences from occurring in future. In addition to any other rights under these Terms, the Zeller Services may be suspended until resolution any such fraud; and
(b) where Zeller considers a data compromise pertaining to fraud warrants suspension or termination of a Zeller Service or is directed by a Card Scheme, AMEX or a Non-Scheme Body to suspend or terminate the relevant services to the User, then Zeller will do so.
For the avoidance of doubt, Zeller shall not be liable or responsible in any respect to the User for any Losses flowing directly or indirectly from any Zeller Services being suspended.
10.2 Notification and compliance
The User must:
(a) observe and implement the fraud prevention procedures set out in the manuals, guides or directions provided to you by us or an Acquirer;
(b) use reasonable care to detect forged or unauthorised signatures or the unauthorised use or forgery of a Card; and
(c) notify us if you become aware of or suspect fraud on the part of a Cardholder.
PART C: ZELLER ACCOUNT AND ZELLER MASTERCARD
! Part C applies to all Users.
11. Zeller Account
! Zeller will maintain an account for you.
(a) Zeller will maintain a Zeller Account for you. The Zeller Account does not constitute a checking, savings or other bank account and is not connected in any way to any other account you may have.
(b) On request from you and subject to these Terms and Applicable Law, we will transfer the amount in your Zeller Account to a bank account nominated by you. We will use reasonable endeavours to effect any such transfer within 15 Business Days.
(c) You authorise and direct Zeller to:
(i) credit the proceeds of Transactions to your Zeller Account or nominated third party bank account. Amounts will only be credited to your Zeller Account or nominated third party bank account once we have received the funds from the relevant Acquirer; and
(ii) debit any Chargebacks and any other amounts you owe to us under these Terms from your Zeller Account or nominated third party bank account.
(d) You will not receive any interest on the funds in your Zeller Account, but we may retain interest we receive in respect of such funds.
(e) You have an onus to ensure that any payments made are correct and authorised. Zeller will not be liable or responsible for any mistaken or unauthorised payments.
12. Zeller MasterCard
! The Zeller MasterCard can be used to access amounts in your Zeller Account.
(a) The Zeller MasterCard is a prepaid MasterCard debit Card that allows you to access and utilise amounts credited to your Zeller Account through the Zeller Services.
(b) The Zeller MasterCard must be activated before you can use it. You must provide us with all information which we require in order to active the Zeller MasterCard. We can accept or reject your application to activate the Zeller MasterCard in our sole discretion.
(c) Any amounts credited to your Zeller Account will be available to be spent using your Zeller MasterCard within no more than 1 Business Days after they are received into your Zeller Account.
(d) The Card does not constitute a chequing, savings or other bank account and is not connected in any way to any other account you may have except for your Zeller Account. The Card is not a credit card.
(e) Eligible Users may be able to utilise funds in their Zeller Account for shopping at merchants that accept MasterCard.
(f) The Zeller MasterCard is issued to you by EML Payments Limited. The terms on which the Zeller MasterCard is issued to you are set out in the Product Disclosure Statement (https://myzeller.com/product-disclosure-statement). You acknowledge that you have been provided with our Financial Services Guide in relation to the Zeller MasterCard (at https://myzeller.com/financial-services-guide).
(g) Your access to and use of the Zeller MasterCard may be suspended from time to time in accordance with these Terms or the Product Disclosure Statement.
PART D: GENERAL TERMS
! Part D applies to all Users
13. Using the Zeller Services
! You must comply with all applicable laws and relevant guidance when using the services provided by Zeller.
(a) You agree to use the Zeller Services in good faith in accordance with these Terms and Applicable Laws.
(b) You will comply with any policies, procedures, operating rules and directions of Zeller from time to time in relation to the Zeller Services and the manner of performance of your obligations under these Terms.
(c) You are responsible for all dealings through the applicable Zeller Services, including any fraudulent, illegal or unauthorised dealings, which are attributable to your conduct. You release and discharge Zeller from any liability in respect of such dealings.
14. AML/CTF Obligations
! Zeller is required to comply with anti-money laundering laws and it may request certain information from you.
You acknowledge and agree:
(a) in order for Zeller to meet its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated Rules (AML/CTF obligations), Zeller is required to verify the identity of its Users as well as certain information about Users' beneficial owners;
(b) Zeller may, in its sole and absolute discretion delay, block or refuse to process or settle any Transaction without incurring any liability, if Zeller suspects, for any reason, that an Unlawful Act has occurred;
(c) in order to use and continue to use the Zeller Services, Zeller may at any time request further information from you. If you do not provide Zeller the information as requested, or there is a delay in you providing this information to Zeller, Zeller may not be able to open your Zeller Account, or provide you with access to the Zeller Services;
(d) Zeller may disclose your Personal Information to a Credit Reporting Body to verify your identity and obtain an assessment of whether the information you have provided us with matches the information provided by the Credit Reporting Body ;
(e) Zeller is not liable for any Loss incurred by you as a result of any action of Zeller which either delays a Zeller Account being opened, results in an application to receive Zeller Services being declined or you don’t have access to the Zeller Services, when these actions are necessary for Zeller to comply with its AML/CTF obligations; and
(f) Zeller may require further information from you from time to time in order to meet its AML/CTF obligations and you agree to provide Zeller with whatever additional information is reasonably required in order for Zeller to meet its AML/CTF obligations.
! Zeller has the right to request specific information and conduct an audit in connection with your use of the services.
(a) On Zeller's request, the User must:
(i) provide Zeller, a regulator or any of the Service Providers (or their nominees) with reasonable access to its personnel, premises and facilities;
(ii) provide Zeller, a regulator or any of the Service Providers (or their nominees) with all internal policies and procedures of the User relevant or related to the Services; and
(iii) permit Zeller, a regulator or any of the Service Providers (or their nominees) to view and make copies of any materials including any certifications, licenses, permits, records and information required to be obtained and maintained by the User under this Agreement,
relevant to assessing compliance with this Agreement.
(b) Each party must take reasonable steps to minimise the cost of any audit.
! Zeller will charge you the following fees in connection with your access to and use of the services.
(a) The Fees that apply in respect of the Zeller Services are available at https://myzeller.com/pricing and may be viewed before becoming a User, and at any time after becoming a User.
(b) You acknowledge that the Fees include a portion to cover the fees charged by the Acquirers in respect of the Transactions and a portion to be retained by Zeller in connection with the facilitation of these Transactions and the provision of the Zeller Services.
(c) We reserve the right to change our Fees by providing you with 5 Business Days' prior notice.
(d) We may set off against any amount due and payable under these Terms by us to you (including any amounts received in respect of Transactions and any amounts in your Zeller Account), any amount due and payable under these Terms by you to us, including any Fees, Chargebacks or Card Scheme, AMEX or Non-Scheme Body fines or penalties.
! Either you or Zeller may terminate your arrangement if there is a breach of these terms.
(a) You or Zeller may terminate these Terms immediately by giving the other party written notice if that party has materially breached these Terms.
(b) Zeller may also terminate these terms immediately by written notice if:
(i) it becomes illegal or impossible in practice for Zeller to continue to provide the Zeller Services to the User; or
(ii) Zeller is instructed to do so by a Card Scheme.
(c) Zeller may terminate the provision of any of the Acquiring Services where the relevant Acquirer ceases to provide its services to Zeller.
(d) Where these Terms are terminated:
(i) The User must pay Zeller all amounts outstanding up to the date of termination of these Terms;
(ii) Notwithstanding paragraph (i), the parties acknowledge and agree that all rights, obligations and liabilities accrued up to and including the date of termination, including without limitation in relation to any indemnity payments, damages, Direct Debit Authority, Chargebacks, and any fines or penalties incurred by the User from any Card Scheme or otherwise arising in connection with the provision or use of the Zeller Services, and all other accrued rights and obligations up to the date these Terms end, will continue and survive termination of these Terms; and
(iii) you authorise us to disclose to any of our Service Providers the fact of termination of these Terms and the reasons for termination.
(e) Upon termination of these Terms, you will no longer have access to the Zeller Services, other than those portions of the Website which are publicly available to all users. Any such use of the Zeller Services by you will continue to be subject to these Terms.
(f) On termination of these Terms, we may retain an amount credited to your Zeller Account until we are reasonably satisfied that there will be no further Chargebacks or other amounts payable by you to us under these Terms.
(g) Despite any other provision in these Terms, this clause 17 and clauses 1, 4.3, 4.4, 4.5, 4.6, 7, 8, 10, 13 through 40 survive the expiry or termination of these Terms.
18. Cooperation with Service Providers
! You may be provided with services from the Service Providers in connection with the Zeller Services
(a) The User acknowledges that Zeller may appoint Service Providers to provide services to the User which are connected to the Zeller Services.
(b) The User must provide Zeller and/or the Service Provider, as applicable, with all reasonable cooperation and assistance requested by Zeller in connection with any services or systems provided by the Service Provider to the extent necessary for Zeller to provide the Zeller Services, including:
(i) providing such information and documentation about the manner in which the Zeller Services are provided to the User as is reasonably necessary for the Service Providers to provide their services or systems to the User or carry out such activities as have been delegated to it by Zeller including information regarding the operating environment, system constraints and other operating parameters applicable to the Zeller Services from time to time;
(ii) making system specifications, security details and similar information available to such Service Providers;
(iii) meeting with Zeller and the Service Providers to discuss the Zeller Services and the services provided by third parties and engaging in joint problem resolution;
(iv) providing such information as is reasonably necessary to ensure that the results of the services and systems provided by an Service Provider are compatible and integrate with the Zeller Services;
(v) providing access to and use of the User System and services to a Service Provider in connection with the services being provided by the Service Provider in a form and manner no different to that if Zeller personnel were requesting such access to and use of the User's System and services;
(vi) ensuring integration of the results of the services provided by a Service Provider with the Zeller Services; and
(vii) operating and maintaining any new software, hardware or technology resulting from the services or systems provided by an Service Provider.
19. Intellectual Property
! Zeller retains all intellectual property rights in the Zeller Services.
(a) All intellectual property rights (including copyright and patents) in the Zeller Services and all components of them are owned or licensed by us unless otherwise indicated. You must not copy, modify or transmit any part of the Zeller Services except as permitted in these Terms.
(b) The Zeller Services contain trademarks, logos, service names and trade names of Zeller or third parties that may be registered or otherwise protected by law. These include the Zeller logo. You are not permitted to use any trademarks, logos, service names or trade names appearing on the Zeller Services.
(c) We grant you a non-exclusive and non-transferable licence to use the Website and, if you are a User, the Zeller Services, for your own personal use. You may not download (other than page caching) or modify the Zeller Services.
(d) You consent to Zeller's use of the User's logos for the purpose of receipts printed from Zeller terminals or provided to Cardholders electronically.
! Zeller complies with the Privacy Laws and collects and stores personal information in accordance with this clause. Zeller may disclose your information to the Service Providers and others.
(a) We will comply with the Privacy Laws in respect of any Personal Information we collect and handle on your behalf in the course of providing the Zeller Services to you, to the extent that the Privacy Laws apply to us in our role as a service provider to you under these Terms, and except to the extent such obligation is inconsistent with our obligations under any other Applicable Law.
(b) You acknowledge that:
(i) from time to time in order to perform Zeller's obligations under these Terms, Zeller will collect Personal Information about your staff, clients or customers; and
21. User warranties
! You make the following representations and warranties to Zeller.
The User represents and warrants that:
(a) it will comply with all Applicable Laws in the course of performing its obligations under these Terms;
(b) when the User supplies Transaction details to Zeller:
(i) all Transactions details are true and correct;
(ii) the User has complied with the requirements of these Terms applicable to the processing of Transactions; and
(iii) the User is not aware of any fact which would cause the Transaction to be an Invalid Transaction; and
(c) the User has power to enter into and perform its obligations under these Terms and that these Terms are valid, binding and enforceable against the User.
22. Data protection and security
! Zeller complies with the following data protection and security protocols.
22.1 General obligations
(a) Zeller must comply with all applicable Data protection and security requirements required by Applicable Law in relation to the collection, use, disclosure, storage, processing and security of Data.
(b) Zeller acknowledges that it is responsible for securing the Card Data in its possession in accordance with the requirements imposed on it by PCIDSS.
22.2 Restricted Information
(a) To the extent any Data hosted by or on behalf of Zeller, or any configuration settings related to the delivery or receipt of the Zeller Services, that does not relate to the User (Restricted Information) is or becomes accessible by the User at any time, the User acknowledges and agrees that:
(i) it will not seek to access any such Restricted Information;
(ii) if the User does access any such Restricted Information, it will:
(A) notify Zeller promptly;
(B) not use such Restricted Information for any purpose (including any internal business purposes);
(C) destroy and report any copies of the Restricted Information; and
(D) provide a written notice to Zeller confirming its compliance with this clause 22.2; and
(iii) for the avoidance of doubt, any such Data and configuration settings are considered Confidential Information of Zeller.
(b) The User must indemnify and hold harmless Zeller and any Zeller Personnel in respect of any Losses suffered by Zeller or Zeller Personnel arising out of or otherwise in connection with a breach of this clause 22.2 by the User.
22.3 Scheme requirements
(a) The User must provide Zeller with a compliance action plan (if required by any Card Scheme for the purposes of complying with PCIDSS) within 90 days of receiving a request from Zeller to do so. The User must also comply with the Scheme Rules notified to the User from time to time, including any obligations regarding compliance with the PCIDSS. Zeller will notify the User of any such obligations and, to the extent practicable, will provide the User with a reasonable period of time to comply with such obligations.
(b) If Zeller receives a breach notification or warning (which may or may not include a fine and/or penalty) from a Card Scheme (Breach Notice) arising from the User being in breach of applicable Scheme Rules, Zeller will liaise with the User to resolve the Breach Notice.
(c) The User must pay the fine and/or penalty detailed in the Breach Notice to Zeller within the timeframe specified by Zeller in accordance with clause 22.3(b) and in a manner agreed between the parties.
(d) For the avoidance of doubt, the parties agree that:
(i) the User is liable for all fines and/or penalties imposed by the Card Schemes (whether imposed on Zeller or the User directly) as a result of the User’s breach of the Scheme Rules; and
(ii) other than in respect of fines and/or penalties which are imposed due to the sole action (or actions, as the case may be) of another merchant (or merchants, as the case may be) or Zeller, the User is liable for any other fines and/or penalties imposed by the Card Scheme (whether imposed on Zeller or the User directly) pro-rated in accordance with the User's use of the Zeller Services as against all other merchants to whom Zeller provides the Zeller Services or services similar to the Zeller Services.
(e) The User acknowledges that Zeller may receive a Breach Notice without having received a non-compliance alert from the Card Scheme. However, if Zeller receives a non-compliance alert that relates to the User, it must promptly provide a copy to the User.
(f) If a Breach Notice is issued, the Card Schemes may require an external investigation of the User's premises and systems. The User agrees to fully cooperate with any such external investigation, and to pay the reasonable costs of the Third Party appointed to undertake the external investigation. To the extent Zeller has a right to approve or select the person who will undertake the external investigation, Zeller may only approve or select that person with the prior written consent of the User (such consent not to be unreasonably withheld or delayed)
23. Prohibited Uses
! You are prohibited from using the Zeller Services in connection with the activities described in this clause.
In using the Zeller Services, you must not engage or attempt to engage in any activities that:
(a) violate any applicable local, state, federal or international law including, without limitation the Spam Act 2003 (Cth), Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;
(b) violate the rights of any third party (including, without limitation abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, Confidential Information, electronic fraud, invasion of privacy, pornography, obscenity or libel);
(c) interfere with or disrupt any other third parties (including other Users of the Zeller Services), equipment, functions, features, the Zeller Services;
(d) involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or User identification information, monitoring or scanning the networks of others;
(e) gain unauthorised access to the Zeller Services;
(f) disrupt, impair, alter or otherwise interfere with the functions, features, content of the Zeller Services; restrict or inhibit any other visitor from using the Zeller Services, including, without limitation, by means of "hacking" or defacing a portion of this Zeller Services;
(g) express or imply that statements you make are endorsed by Zeller, without Zeller's prior written consent;
(h) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Zeller Services to a human-perceivable form;
(i) remove any copyright, trademark or other proprietary rights notices contained in the Zeller Services; or
(j) provide access to the Zeller Services to persons who are not Users or have not paid the relevant fee for the service.
24. Disclaimer of Warranties and Limitation of Liability
! Zeller is not liable to you, except as outlined in this clause.
(a) You agree that you have not relied on any representation, description, illustration or specification that is not expressly stated in these Terms.
(b) Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL), or any other Applicable Law, that cannot be excluded, restricted or modified by agreement.
(c) To the extent permitted by Applicable Law (including the ACL), Zeller excludes all warranties, whether express or implied (not including any consumer guarantees under the ACL), including any warranties or representations concerning availability of the Zeller Services, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the Zeller Services, all links to or from the Zeller Services and the goods and services advertised or accessible using the Zeller Services. Subject to the consumer guarantees provided for in consumer protection legislation (including the ACL), we do not warrant that you will have continuous access to the Zeller Services. We will not be liable in the event that the Website or the full functionality of Zeller Services are unavailable to you or due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply.
(d) We and the Service Providers do not guarantee the delivery of communications over the internet as such communications rely on third party service providers. The exchange of information electronically is vulnerable to interception by third parties and we do not guarantee the security or confidentiality of information available through the Zeller Services nor the security of the Zeller Services. Whilst we strive to protect information transmitted via the Zeller Services, any such information is transmitted at your own risk.
(e) To the extent permitted by law (including the ACL), Zeller's liability in respect of any non-excludable warranties or conditions relating to the Zeller Services, all links to or from the Zeller Services and the goods and services advertised or accessible using the Zeller Services is limited to resupplying the relevant Zeller Services or the reasonable cost of resupplying the relevant Zeller Services, whichever Zeller sees fit to provide.
(f) For all other Claims or liability, and to the extent permitted by law, the maximum liability of Zeller and its employees, agents or contractors (including, the Service Providers) for any Loss, damage, Claim, cost or expense whatsoever arising out of or in connection with these Terms, the Zeller Services, all links to or from the Zeller Services and the goods and services advertised or accessible using the Zeller Services will be the amount of any Fee received from you in the preceding month in the aggregate of all Claims.
(g) Except where Zeller or a Service Provider fails to meet a consumer guarantee under the ACL and notwithstanding any other provision of these Terms, Zeller or a Service Provider will not be liable to you for:
(i) any damage, Loss or expense resulting from or caused by:
(A) any act of Zeller which was carried out in good faith (notwithstanding that such act may have been in breach of these Terms or negligent);
(B) any act or omission of any third party;
(C) any inaccurate or incorrect information provided by you;
(D) any event or circumstance beyond Zeller's reasonable control including, without limitation, a Force Majeure Event;
(E) any breach of these Terms, negligence, default, fraud or dishonesty by you;
(ii) any direct or indirect lost profit, loss of opportunity, incidental, consequential or special damages, howsoever the loss is caused and regardless of whether it was foreseeable or not; and
(iii) to the extent permitted by Applicable Law, in the case of contributory negligence, a party’s liability to the other party under or in connection with these Terms will be reduced proportionately by the extent, if any, to which the acts or omissions of the first party or those of any of its Personnel or contractors caused or contributed to the relevant loss or damage suffered or incurred by the second party.
! You indemnify Zeller in connection with you use of the Zeller Services
You agree to indemnify Zeller and the Service Providers in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings incurred howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:
(a) any breach of these Terms by you;
(b) your use of the Zeller Services; and
(c) your communications with Zeller or the Service Providers.
26. Jurisdiction and Law
These Terms are governed by and must be construed in accordance with the laws of the State of Victoria, Australia. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.
(a) You may not assign or charge your rights under these Terns without our prior written consent.
(b) We may, in our sole discretion, assign, novate or transfer our rights or obligations arising out of these Terms by giving notice to you.
(c) In respect of any of the Acquiring Services, the relevant Acquirer may assign, novate or transfer our rights or obligations arising out of these Terms by giving notice to you.
(d) Any reference to Zeller in these Terms is a reference to either NPCO Pty Ltd or NPCO Operations Pty Ltd as determined by Zeller in its absolute discretion.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
29. Third Party Beneficiary
You agree that the Service Providers are third party beneficiaries of these Terms, with all rights to enforce such provisions as if the Service Providers were parties to these Terms.
30. Contacting Zeller
31. Definitions and Interpretation
In these Terms unless the context requires otherwise:
- Acquirer means:
- in respect of the AMEX Payment Services, American Express Australia Limited;
- in respect of the Card Scheme Services, the Card Scheme Acquirer, being Cuscal Limited;
- in respect of the Non-Scheme Payment Services, the Non-Scheme Acquirer, being FlexeWallet Pty Ltd; and
- in respect of the BNPL Payment Services, the BNPL Provider, being Zip Co Limited.
- Acquiring Services means the AMEX Payment Services, the Card Scheme Services, the Non-Card Scheme Services and the BNPL Payment Services.
- AMEX means American Express Australia Limited;
- AMEX Payment Services means the services to be provided by Zeller under these Terms in relation to AMEX Transactions and Transactions in relation to the "Japan Credit Bureau" Payment Method operated by JCB.
Applicable Law means the Corporations Act, and any other statute, statutory instrument or general law that is applicable to a party in connection with these Terms, together with:
- regulation or best practice industry guidance notes issued by AusPayNet, ASIC, the OAIC, AUSTRAC, or a similar Australian regulator;
- any non-statutory rule of any Industry Body that is applicable to the governance of Card processing, such as the PCIDSS; or;
- any other non-statutory rule or a non-statutory mandatory code of conduct applicable to the Zeller Services or the processing of Card Scheme Transactions or Non-Scheme Transactions, including Scheme Rules,
as amended, consolidated or replaced from time to time.
Application Form means the application form to become a User made available on the Website or by Zeller, from time to time.
ASIC means the Australian Securities and Investment Commission, the Australian regulator responsible for financial services licensing, regulation and enforcement.
AusPayNet means the Australian Payments Network, the body responsible for issuing regulation and guidelines relating to payment systems, devices and frameworks.
Australian Consumer Law means the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth).
BNPL Provider means Zip Co Limited.
BNPL Payment Services means the services to be provided by Zeller under these Terms in relation to BNPL Transactions.
Breach Notice has the meaning given to that term in clause 22.3(a).
Business Day means a day other than Saturday or Sunday on which banks are open for general banking business in Sydney.
Business Hours means 9:00am to 5:30pm AEST/AEDT (as applicable) on a Business Day.
- a valid financial transaction card issued by a member or affiliate of a Card Scheme;
- any other financial transaction card or financial transaction method in respect of a Payment Method.
Cardholder means a person to whom a Card has been issued.
Card Data or Cardholder Data means any 'cardholder data' or 'sensitive authentication data' as those terms are defined in the PCIDSS.
Card Scheme means any association that provides common branding for Payment Methods and sets rules and regulations concerning use of those Payment Methods. This includes schemes known as Visa, MasterCard, and EFTPOS and any other Payment Methods supported by the Card Scheme Acquirer.
Card Scheme Acquirer means Cuscal Limited ACN 087 822 455.
Card Scheme Payment Method means any Payment Method provided by or in respect of a Card Scheme.
Card Scheme Services means the services to be provided by Zeller under these Terms in relation to Card Scheme Transactions.
- Change in Control means, in respect of a person (the first person), when:
- the person or persons who Controlled the first person cease to Control the first person; or
- the person or persons who did not Control the first person Control the first person.
Chargeback means a Transaction that is charged back to the User, whether initiated by the Acquirer. Cardholder or Zeller, in accordance with these Terms and any Applicable Laws.
Claim means in relation to a party, a demand, claim, action or proceeding made or brought by or against that party, however arising and whether present, unascertained, future or contingent.
Confidential Information means all information belonging or relating to Zeller and/or the Zeller Services, whether oral, graphic, electronic, written or in any other form, that:
- is or should reasonably be regarded as, confidential to Zeller; or
- is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms.
Control has the meaning given in section 50AA(1) of the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Credit Reporting Body has the meaning given to this term in the Privacy Laws.
Data means all Card Data and Transaction Data stored or processed by Zeller or the User under these Terms.
Data Breach means an actual or suspected loss of or unauthorised access to Data.
Defect means if the Terminal hardware does not conform to the applicable specifications and that the User is not able to use the Zeller Services in line with these Terms.
Direct Debit Authority means the authority from you to us contained in Part E of these Terms.
Documentation means the documentation relating to the Zeller Services to be provided by Zeller described in clause 6(a).
- EFT System means the system through which, on instructions received by the User, a Cardholder's bank account is debited and the User Account is credited or vice versa as the case may be:
- in relation to goods or services supplied by the User through a Store to the Cardholder; or
- with the amount of any refund in respect of goods or services supplied by the User through a Store to the Cardholder.
Fees means the fees as referred to in clause 15 and set out at https://myzeller.com/pricing.
Force Majeure Event means any act, event or cause including:
- an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, quarantine, radiation or radioactive contamination;
- an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
- breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material,
To the extent that the act, event or cause directly or indirectly results in a party being prevented from or delayed in performing one or more of its obligations under these Terms and that act, event or cause is beyond the reasonable Control of that party.
GST has the meaning given to that term in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Industry Body includes the Australian Payments Network (APN) (formally known as the Australian Payments and Clearing Association (APCA)), Australian Prudential Regulatory Authority (APRA), the Reserve Bank of Australia (RBA), the Australian Securities and Investments Commission (ASIC), and any other regulatory body regulating a Card Scheme Transaction or Non-Scheme Transaction from time to time, and any recognised securities exchange including ASX and Chi-X.
Invalid Transaction has the meaning given in clause 5.2.
- JCB means JCB Co., Ltd.
Loss means losses, liabilities, claims, proceedings, actions, demands, damages, costs, charges, expenses or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.
Merchant Category Code means the four digit number used to classify a merchant by the type of goods or services it provides.
Non-Scheme Acquirer means FlexeWallet Pty Ltd trading as ChinaPayments.
Non-Scheme Body means any person, entity or body that provides or administers any Non-Scheme Payment Method.
Non-Scheme Payment Method means any Payment Method that is not cash or a Card Scheme Payment Method, including payment by use of:
- the Payment Method known as "AliPay";
- the Payment Method known as "WeChatPay"; or
- any other Payment Method supported by the Non-Scheme Acquirer.
Non-Card Scheme Services means the services to be provided by Zeller under these Terms in relation to Non-Card Scheme Transactions.
OAIC means the Office of the Australian Privacy Commissioner.
Offline Transactions means a Transaction where no authorisation is received from the relevant Card Scheme or Non-Scheme Body.
Payment Facilitator means a User who providing acquiring services to sub-merchants or who otherwise seeks to make the Zeller Services available to a third party merchant.
Payment Method means a method by which a consumer transacts with the User for payment of goods or services received by that consumer from the User, including by use of a card or other device (including virtual and digital devices and electronic chips).
PCIDSS means the Payment Card Industry Data Security Standard published by the PCI Security Standards Council or such other minimum standards for enhancing payment and account security required by Zeller, or any Card Scheme, from time to time.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.
Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information.
Recurring Transaction means when the User is authorised to make regular drawings on a Card at predetermined intervals (not to exceed one year between Transactions) with the Cardholder’s written authority.
Related Corporation means, in the case of a party, any entity that is Controlled by, or under common Control with, that party, including but not limited to, subsidiary corporations or entities.
Sale Refunds has the meaning given to that term in clause 4.6.
Scheme Rules means any rules issued by a Card Scheme, from time to time, to govern its respective Payment Method.
Security Deposit means an amount payable by the User to Zeller to be held by Zeller as security for any amounts payable by the User under these Terms, as determined in accordance with clause 8.
Service Providers means Zeller's service providers as appointed from time to time, including but not limited to the Acquirers;
Suspendable Action means Zeller reasonably considers that:
- the User has, or is likely to have, breached these Terms or any Applicable Law;
- the User has failed to provide Zeller with any information it has requested under these Terms; or
- if it does not suspend the Zeller Services or any of them, the User's conduct, or continuation of the User's conduct, will result in a breach by either the User or Zeller of these Terms or any Applicable Law;.or
- risk assessments are required to be completed by Zeller.
- Suspended Service has the meaning given to it in clause 9.2.
- System means your systems for accessing the Zeller Services;
- Transaction means any sales transaction or sales refund transaction effected pursuant to these Terms between a Card Holder and the User.
- Terminal means an electronic terminal obtained by the User from Zeller for the processing of Transactions from time to time.
- Terminal Warranty Period means the period in which Zeller will fix or refund for a Defect, being 12 months.
Transaction Data means any data generated by Zeller in the processing of a Transaction, and includes any data produced as the result of processing, or failing to process, a Transaction, but excludes Card Data.
Unlawful Act means, collectively and individually, when Zeller's involvement in a Transaction or performance of any service in respect of that Transaction might in any way cause Zeller to:
- to breach any Applicable Law;
- to deal in any way with any person (natural, corporate or governmental) that is sanctioned, or is connected in any way to any person that is sanctioned, under economic and trade sanctions imposed by the United Nations, the European Union or any country;
- to breach any sanction of any kind imposed by any country (including any sanction that supports a decision or resolution of the United Nations Security Council);
- to deal in any way with any person (natural, corporate or governmental) that has been listed or named by any government, or independent authority (such as the United Nations or the European Union), as a person who is in any way suspected of being involved (or potentially involved) in terrorism or in any activities connected with terrorism; or
- to be involved (whether directly or indirectly) in any Transaction which involves the proceeds of unlawful conduct or which involves proceeds which might be applied for the purposes of unlawful conduct.
- Zeller Account means an account maintained by Zeller for you in accordance with these Terms.
Zeller MasterCard means the prepaid MasterCard prepaid card which is issued by EML Payments Limited and which is linked to your Zeller Account.
Zeller Services has the meaning given to that term in clause 1(a).
- Zeller System means the systems used by Zeller and its Service Providers to process Transactions in performing the Zeller Services (and includes Terminals, internet payment gateways, the switch, network routers, firewalls, load balancers and VPN concentrators and any other Acquirer hardware or software owned by or under the responsibility of Zeller or its contractors which are related to the Zeller Services), but excluding the User System and systems of Card Schemes.
In these Terms unless the context requires otherwise:
- the singular includes the plural and vice versa;
- a gender includes the other genders;
- the headings are used for convenience only and do not affect the interpretation of these Terms;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a document includes the document as modified from time to time and any document replacing it;
- a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
- if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
- the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any body or entity whether incorporated or not;
- the word "month" means calendar month and the word "year" means 12 months;
- the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
- a reference to a thing includes a part of that thing;
- a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
- wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";
- money amounts in these Terms are stated in Australian currency unless otherwise specified;
- a reference to time is to Melbourne, Australia time;
- a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body;
- any agreements, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and separately; and
- any agreements, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and separately.
PART E: DIRECT DEBIT AUTHORITY
! This part authorises us to deduct amounts from your linked bank account in line with these Terms.
32. Direct Debit Authority Definitions
In addition to the definitions in clause 31, for the purposes of this part:
account means the account held at your financial institution from which we are authorised to arrange for funds to be debited, as notified by you to us in your Application Form;
agreement means this Part E of the Terms;
banking day means a day other than a Saturday or a Sunday or a public holiday listed throughout Australia;
debit day means the day that payment by you to us is due.
debit payment means a particular Transaction where a debit is made.
Direct Debit Request means the written, verbal or online request between us and you to debit funds from your account. An application to become a User is a Direct Debit Request to debit the account specified in your Application Form for the purposes outlined in these Terms.
your financial institution means the financial institution at which you hold the account you have authorised us to debit.
33. Debiting your account
(a) By submitting a Direct Debit Request, you have authorised us to arrange for funds to be debited from your account. The Direct Debit Request and this agreement set out the terms of the arrangement between us and you.
(b) We will only arrange for funds to be debited from your account as authorised in the Direct Debit Request.
(c) 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 or will be debited you should ask your financial institution.
34. Amendments by us
We may vary any details of this agreement or a Direct Debit Request at any time by giving you at least 14 days written notice sent to the preferred email or address you have given us in the Direct Debit Request.
35. How to cancel or change direct debits
(a) cancel or suspend the Direct Debit Request; or
(b) change, stop or defer an individual debit payment at any time by giving us at least 14 days' notice.
To do so, contact us at email@example.com or by telephoning us on 1800 ZELLER (935 537) during Business Hours.
You can also contact your own financial institution, which must act promptly on your instructions.
36. Your obligations
(a) 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 Direct Debit Request.
(b) If there are insufficient clear funds in your account to meet a debit payment:
(i) you may be charged a fee and/or interest by your financial institution;
(ii) we may charge you reasonable costs incurred by us on account of there being insufficient funds; and
(iii) you must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that we can process the debit payment.
(c) You should check your account statement to verify that the amounts debited from your account are correct.
(a) If you believe that there has been an error in debiting your account, you should notify us directly on firstname.lastname@example.org. Alternatively you can contact your financial institution for assistance.
(b) 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. We will also notify you in writing of the amount by which your account has been adjusted.
(c) 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 in writing.
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 account statement; and
(c) with your financial institution before completing the Direct Debit Request if you have any queries about how to complete the Direct Debit Request.
(a) 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 or agents who have access to information about you do not make any unauthorised use, modification, reproduction or disclosure of that information.
(b) We will only disclose information that we have about you:
(i) to the extent specifically required by law; or
(ii) for the purposes of this agreement (including disclosing information in connection with any query or Claim).
40. Contacting each other
(a) If you wish to notify us in writing about anything relating to this agreement, you should write to email@example.com
(b) We will notify you by sending a notice to the preferred address or email you have given us in the Direct Debit Request.
(c) Any notice will be deemed to have been received on the second banking day after sending.