Terms and Conditions

These Terms and Conditions set out here between you (“You” or “you”) and Epos Systems Pty Ltd (company number AU41602690111) (“Epos Now”) for the use of the Epos Now Payment Services (“ENPS”).

NOTICE

IF YOU ARE A CONSUMER AS DEFINED IN THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) YOU HAVE CERTAIN RIGHTS SET OUT IN THE ACT (“THE AUSTRALIAN CONSUMER LAW”). NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE YOU EXERCISING ANY RIGHTS AS A CONSUMER UNDER THE AUSTRALIAN CONSUMER LAW. SEE SECTION 2.12 FOR FURTHER INFORMATION ON THE AUSTRALIAN CONSUMER LAW.

PLEASE NOTE THAT OUR VARIOUS PROPOSITIONS HAVE FIXED TERM COMMITMENTS.

1.  Introduction and Definitions

These Terms and Conditions, together with your invoice shall form the “Agreement”) between you and Epos Now for using ENPS.

ENPS delivers you and your business near real time transaction processing capability over the Internet using card schemes such as VISA and Mastercard (i.e. “Scheme Owners” as defined below). Your transactions are made through ENPS and using our payment devices and we liaise with Scheme Owners and provide you with sums due to you from Transactions. The fees from Scheme Owners and are own fees are deducted before the amounts due to you are paid into your bank account. We normally make payment to you two Business Days after the transaction.

This is a fixed term Agreement which runs for 12/24/36 months – the applicable period will be a minimum 12 months and as specified in your Tailored Proposal and/or Invoice. Unless a party gives at least one month’s written notice confirming that the Agreement is not to renew after such fixed term, the Agreement shall thereafter continue from month-to-month until it is terminated by either party by giving at least two months’ written notice to the other party.

You must activate your POS Terminal and then process a sufficient quantity of monthly minimum payments as set out in Clause 10.4. as failure to do so may result in a monthly payment premium being charged to you.

Your POS Terminal remains owned by Epos Now and must be returned when you cease using ENPS.

The following words highlighted have the meanings set out when used in these Terms and Conditions:

Account Holder	Any person who is authorised to use a Payment Method issued to him.
Acquirer	A financial institution that is authorised by a Scheme Owner to enable the use of a Payment Method by accepting Transactions from merchants on behalf of the Scheme Owners, routing these to the Scheme Owners or Issuing Banks and collecting and settling the resulting funds to you.
API	Application Programming Interface consisting of a direct secured internet connection between your site and the Epos Now environment via which Payment Details are sent.
Authorisation	The process whereby an Account Holder (or Merchant on Account Holder’s behalf) requests permission for a Payment Method to be used for a particular purchase of Merchant’s Products and Services. “Authorised” shall have the corresponding meaning.
Bank Account	The bank account held by an Eligible Merchant with Epos Now on which funds owed by Epos Now to the Eligible Merchant (credit) or by the Eligible Merchant to Epos Now (debit) are administered and on which Epos Now will Settle the funds for Transactions validly processed for you.
Business Day	A day other than a Saturday or Sunday on which banks are open for business in England.
Card	Any form of Credit Card or Debit Card, which may be used by a Cardholder to carry out a Transaction on a Cardholder's account.
Card Verification Method / CVM Code	The 3- or 4-digit numeric code that is printed on a Card. This code is known as: for Visa: CVV2; for MasterCard: CVC2; for American Express and Discover: CID. Collectively referred to as CVM Code.
Cardholder	Any person who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorised user.
Chargeback	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 a Merchant has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Merchant already received Settlement of the related funds, this results in the unconditional obligation for you to immediately return the Settled funds to Epos Now, to enable Epos Now to return such funds to the Scheme Owner or Acquirer.
Chargeback Fee	The fee charged by Epos Now to you in respect of a Chargeback.
CNP or Card Not Present Transaction	A Transaction by a Cardholder where the Cardholder is not physically present at the point of sale at the time of the Transaction. CNP shall comprise MO/TO and E-Commerce Transactions.
Credit Card	Any form of credit card, which permits or enables Transactions on a Cardholder's account.
Customer Area	The secured interface on Epos Now’s website where Merchants can review and operate on their Transactions, profile and settings and find usage instructions, information regarding the Services and the Payment Methods.
Debit Card	Any form of debit card, which permits or enables Transactions on a Cardholder's account.
Delivery Date	The date on which the complete Merchant Product and/or Merchant Service is delivered to the Account Holder who paid for the corresponding Transaction.
Deposit Level	The minimum level of Deposit(s) as provided in these Terms and Conditions.
Deposit(s)	A sum of money held by Epos Now, withheld by Epos Now from funds to be Settled to you and/or separately deposited with Epos Now by you on Epos Now's request as security for Chargebacks, Fines and Fees due to Epos Now.
E-Commerce Transaction	A Transaction by an Account Holder where said Account Holder is not physically present at the point of sale at the time of the Transaction, and the Payment Details are presented to you or Epos Now by the Account Holder by means of secure Internet communications.
Eligible Merchant	A Merchant which is deemed eligible to hold a Bank Account by Epos Now (in its discretion) and, as such, is provided a Bank Account.
Epos Now	Epos Systems Pty. Limited an Australian proprietary limited company (Company number AU41602690111) the legal registered office of which is situated at Coolum Beach, QLD 4573.
Facilitating Bank	A Bank which allows Epos Now to act as the Acquirer on your behalf to enable the use by you of such Payment Method. This is currently Adyen of 10-14 Waterloo Street, Level 1, Surrey Hills NSW 2010, Australia
Fine(s)	Any fine, uplifted service fee or other additional payment as imposed by the Scheme Owners and/or Acquirers to you and/or Epos Now or passed on by the Facilitating Bank as a result of situations such as, but not limited to, breach of Scheme Rules by you or caused by you, excessive fraud levels or excessive Chargeback levels.
Hosted Payment Pages	The Payment Interface where an Account Holder is redirected from your shopping site to a payment site hosted by Epos Now, on which the Payment Details are entered by the Account Holder.
Initial Term	A fixed period of 12/24/36 months from the date of the invoice or such other fixed period set out on your Tailored Proposal/invoice.
Interchange Fee(s)	The fee(s) set and charged by the Scheme Owner (and in part passed on to the relevant Issuer) for processing and Settlement of a Card Transaction and shall include the assessment fees and any other scheme fees charged by the Scheme Owner for the particular Transaction.
Invoice	The accompanying invoice from Epos Now which together with these Terms and Conditions comprise the contract between you and Epos Now.
Issuer / Issuing Bank	An institution that issues Payment Methods to the Account Holder and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the Account Holder with respect to the Payment Method.
Products and Services	A product/service which you are selling and for which Transactions are processed.
MSC / Merchant Service Charge	The fee that Epos Now charges per Transaction for the use of the relevant Payment Method for that Transaction. This can be a percentage of the Transaction amount, or a fixed fee, or a combination of a percentage and a fixed fee. The Processing Fee is not part of the MSC.
Order Currency	The currency in which the Transaction is originally offered to the Account Holder.
Payment Currency	The currency in which a Transaction is processed.
Payment Details	The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Epos Now and to perform fraud checks, including details regarding the Card, the Account Holder, relevant authentication details and the payment amount.
Payment Instruction	Electronic instruction sent by an Eligible Merchant (or by an authorised third party acting on behalf of Eligible Merchant) to Epos Now via the Customer Area to transfer funds from the Bank Account to another bank account.
Payment Interface	An electronic connection method provided by Epos Now to you for providing the Payment Details for individual Transactions allowing Epos Now to provide its Services with respect thereto.
Payment Method	A method of enabling payments by Account Holders to merchants such as Cards, online and offline bank transfers and direct debits offered by the Scheme Owners as further described in Clause 2.5.
PCI DSS	The security standards for transmitting, processing or storing card data / payment details, known under the name PCI DSS, as required to be observed under the Scheme Rules of the Card Schemes. (www.pcisecuritystandards.org)
POS / Point of Sale Transaction	Transaction submitted for processing by a Cardholder via a POS Terminal where the Cardholder is physically present at the location of the POS Terminal
POS Terminal	Device designed to submit Transactions to Epos Now by reading the relevant data on the Card, registering the approval of the Cardholder for the Transaction, encrypting the Payment Details and sending them via the public internet to Epos Now for processing.
Processing Fee	The fee that Epos Now charges for each Transaction submitted for processing to the Payment Interface, regardless of the Transaction amount and the type of Payment Method used.
Refund	A (partial) reversal of a particular Transaction, whereby the funds are reimbursed to the Account Holder on the initiative or request of you.
RFI or Request for Information	A request from Scheme Owner or Acquirer received by Epos Now for more information about a Transaction, made available by Epos Now to you in electronic form.
Scheme Owner	The party offering and/or regulating the relevant Payment Method. E.g., Visa, Mastercard etc.
Scheme Rule(s)	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 Merchant must comply when using the relevant Payment Method. As a service Epos Now endeavours to make up to date versions available of the Scheme Rules applicable to you via the Customer Area, but only the then current applicable Scheme Rules as issued by the relevant Scheme Owner and/or the relevant Acquirer are binding on Merchant.
Service(s)	The collective set of payment processing, payment routing, fraud control, reconciliation, reporting, Settlement, Scheme Rule assistance and/or other services as provided by Epos Now to you to enable you to use Payment Methods to process Transactions, as well as providing a Bank Account to Eligible Merchants and any other services offered by Epos Now to a Merchant under your Agreement.
Settlement	The payment of amounts by Epos Now to you, owed with respect to Settlements received by Epos Now from Acquirers or Scheme Owners for Transactions validly processed for you, minus the amounts for Refund and Chargebacks, Transaction Fees and the amounts needed to keep the Deposit on the then current Deposit Level. “Settle” and “Settled” shall have the corresponding meanings.
Software	The collective set of programs and data developed and/or operated by Epos Now as needed to provide the Service to its merchants (including the Merchant), including the Payment Interface.
Terms and Conditions	The current version of these Terms and Conditions of Epos Now.
Traffic	The profile of Merchant Transactions, including volume, spread across Payment Methods, geographical spread and other relevant information.
Transaction(s)	An Authorisation request of an Account Holder for a payment from the Account Holder to you submitted by you to Epos Now.
Transaction Fee	The sum of Merchant Service Charge (MSC) and Processing Fee.
Uncompleted Order Amount	The total amount of Authorised and/or Settled Transactions for you at any point in time, for which your Products and Services have not been delivered to the relevant Account Holders at that time and/or for which the return rights or order cancellation rights of the Account Holder under the terms and conditions between you and the Account Holder and/or applicable law have not yet lapsed.
Working Hours	shall mean 9am to 6pm on a Business Day in Queensland.

2. Description of the Services

2.1 PAYMENT PROCESSING

Epos Now uses a Facilitating Bank so that it can provide you with ENPS. The Facilitating Bank is Adyen. www.Adyen.com

All Point of Sale Transactions must be submitted by you through an Epos Now provided POS Terminal. All Card Not Present Transactions must be submitted through the Hosted Payment Page or API.

You must supply all Transaction data to Epos Now for each Transaction, including that needed for fraud checks. If you fail to do so on a monthly basis Epos Now may immediately suspend the provision of ENPS.

The POS Terminal which remains the property of Epos Now must be returned at the end of your agreement.

2.2 REGISTRATION AND SECURITY CHECK 

You need to set up an account to use ENPS and this requires you to go through a registration process (known as “Know Your Customer” (or “KYC”)). This process enables you and ENPS to satisfy money- laundering and anti-terrorism and financial services regulatory requirements and the Scheme Owner Rules, as well as the requirements of the Facilitating Bank.

You must also have a bank account, which will be that solely designated for the use of ENPS. Settlement will always be made to this bank account. Please note that if you change this account, it may cause a temporary delay in Settlements.

You warrant to Epos Now that all information you will and have provided as part of KYC is accurate and complete and up to date. Any changes to the information provided by you, must be updated within three Business Days. 

Epos Now may at any time make a RFI to you about your business or company shareholders and you must respond to such requests within 5 Business Days.

Epos Now may undertake its own checks in relation to you and your business with government agencies and organisations such as credit reference agencies and that searches may appear on the record of such organisations. 

Epos Now may submit any information you give us as part of KYC to any Facilitating Bank, Scheme Owner or Acquirer.

If you fail to comply with your obligations under this section relating to KYC, the Facilitating Bank may be unable to deposit funds into your designated bank account due to money laundering regulations.

2.3 USE OF THE SERVICES

You may only use ENPS for selling your own Products and Services and doing so for the products and services of others is strictly forbidden.

Certain Products and Services are prohibited or restricted and a list of those is set out at Schedule 1 below.

ENPS requires the ongoing third-party consent of a Scheme Owner and Facilitating Bank for you to access and use its services at any time. If this consent is withdrawn, then ENPS will be immediately withdrawn, and you will have no remedy against Epos Now.

2.4 AUTHORISATIONS

Once a Transaction has been authorised the Products and Services must never be delivered to an address other than that given at the time of the Transaction.

2.5 PAYMENT METHOD AND CURRENCY SUPPORT

The Payment Methods in this Agreement are sale, cancellation and refund.

The currently supported currencies are Pounds Sterling and Australian Dollars.

Epos Now will support the Payment Methods and currencies as specified in this Agreement, so long as Epos Now continues to support these in its general product portfolio. In case of: (i) materially different terms imposed by the relevant Scheme Owner or Acquirer; (ii) material malperformance by the relevant Scheme Owner or Acquirer (or reasonable ground for Epos Now to expect such malperformance); (iii) reasonable grounds to doubt the credit worthiness of the Scheme Owner or Acquirer; or (iv) sharply increased costs for Epos Now to offer the Payment Method due to new circumstances; then Epos Now may decide in its reasonable discretion to stop supporting a particular Payment Method.

If Epos Now intends to discontinue any Payment Method, it will give you one month’s notice. This may not always be possible, depending on the reason, but Epos Now will use best endeavours to provide you with an alternative Payment Method.

2.6 CARDHOLDER AUTHENTICATION METHODS

For all Transactions processed through the Hosted Payment Pages, 3D Secure authentication will be a requirement, where this is supported by the Acquirer and Payment Method and also the Software.

2.7 ACCOUNT HOLDER PAYMENT CURRENCY 

Epos Now may offer the Account Holder the option to use a different Payment Currency to that used for the order, while still allowing payment in the Order Currency. This will be subject to you having an account in the Payment Currency.

2.8 FRAUD REDUCTION

All Transactions processed through the Services will be screened by a Fraud Control Tool, operated by the Facilitating Bank. The Fraud Control Tool uses a scoring algorithm to determine the likelihood of a transaction being fraudulent. The Fraud Control Tool mitigates the risk of a transaction being fraudulent but Epos Now cannot guarantee that this will be effective in any particular case. Epos Now makes no warranty that the Fraud Control Tool will prevent any individual fraudulent transaction or prevent Scheme Owner Fines or Chargebacks. 

You are ultimately responsible for determining whether to process any transaction and Epos Now gives no express or implied warranty that its actions in relation to the Fraud Control Tool will prevent you being the victim of fraud, nor does it check or exercise any judgment in relation to the fraud risk attributable to your business. YOU ACKNOWLEDGE THAT EPOS NOW OWES YOU NO DUTY OF CARE in relation use of the Fraud Control Tool.

2.9 INFORMATION RELATING TO TRANSACTION DELIVERY TIMESCALES

Epos Now may make a RFI at any time concerning the timescales between Transaction Authorisation and the date for delivery of the Products and Services transacted. You must respond to this RFI promptly. Epos Now will use this information in exercising its discretion whether to set conditions upon your use of ENPS. 

Epos Now generally prohibits accounts which have a significant gap between payment Authorisation and delivery of Products and Services and will take action to terminate accounts where it becomes aware of such. Examples are businesses which sell advance tickets for concerts or events which are due to take place in the future, or businesses which take “down-payments” for a future supply.

2.10 YOUR OBLIGATIONS AND RESTRICTIONS ON USE

You are authorised only to use the ENPS only for the categories of Products and Services which you originally registered for when successfully completing KYC. These can only be added to or changed with the prior written approval of Epos Now and will be subject to Scheme Owner rules in any event.

You are responsible for ensuring that at all times your use of the ENPS is compliant with Scheme Rules. Epos Now accepts no duty of care or liability for ensuring that your use of the ENPS is always compliant with Scheme Rules, except where any action or omission of Epos Now causes you to breach the Scheme Rules.

You must not use the ENPS for any Products and Services which are illegal in your country, or which must be licensed for sale and in relation to which you do not hold a licence.

You must not use the ENPS for any Products and Services which are listed within Schedule 1. This list will be varied from time to time and the contents will be applicable and take effect from the time of change. 

Changes to the list may reflect the need to ensure legality, compliance to Scheme Rules, prevent high levels of Chargebacks, reputational risks and/or to reduce exposure to potentially fraudulent or illegal transactions. Should a change significantly affect your ability to use ENPS, you may terminate the Agreement from the date the change takes effect.

2.11 WEBSITE CONTENT REQUIREMENTS AND RECORD KEEPING

For E-commerce Transactions, you are required to provide all the following on your website: complete description of the goods or services offered, returned merchandise and refund policy, customer service contact (including email address and/or telephone number), address, delivery policy, your consumer data protection policy and all other lawfully required information.

You must retain a copy of all electronic and other records related to Transactions and the ordering and delivery of the Products and Services for the longer of (i) 2 years after the transaction being processed or (ii) the applicable warranty period of the delivered Products and Services. The copy of the records shall include, but not be limited to: shipping details (if relevant), invoices for the delivered Product and Service and all contacts with the Cardholder/Account Holder. In the event of an investigation by Epos Now, the Acquirers and/or the Scheme Owners with respect to Chargebacks, suspected fraud or other RFI’s from the Scheme Owners, you will fully co-operate in the auditing of these records. 

2.12 AUSTRALIAN CONSUMER LAW

The Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law” or “ACL”), may impose consumer guarantees or imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified, or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Epos Now is entitled to do so, Epos Now limits its liability in respect of any claim under those provisions to, at its option the re-supply of the relevant services or payment of the cost of having the relevant services supplied again.

Epos Now confirms the following under the Australian Consumer Law:

Any products supplied will be of acceptable quality, that they will meet the description that we give and that we will honour any guarantees that we give relating to the Products.

If we fail to meet any guarantee that we give, then you have additional rights under the ACL which may include a repair, replacement or refund, cancellation of a service or compensation for loss or damage.

Epos Now will provide the Services with due diligence and ensure they are fit for purpose and where no time is set, that they will be supplied within a reasonable time.

The above is subject to the fundamental provision that POS terminals remain owned by Epos Now.

There are other rights which exist under the ACL. A guide to these can be found at consumerlaw.gov.au/

Notwithstanding the foregoing in relation to the Australian Consumer Law (and providing it is reasonable for Epos Now to rely on these terms under section 64A of the ACL):

• Sections 12 (Disclaimer of Warranties) and 13 (Limitation of Liabilities) do not apply to any liability of Epos Now to comply with an applicable consumer guarantee under the Australian Consumer Law;
• The liability of Epos Now for any liability, loss, cost or damage, however caused (including by the negligence of Epos Now), suffered or incurred by Customer because of a failure to comply with a consumer guarantee is limited to Epos Now (at its election):
•                   resupplying the services; or

•                   paying the cost of having the services supplied again.

If you consider any term in this Agreement unfair you have the remedies provided by the ASIC found here:

https://asic.gov.au/about-asic/what-we-do/our-role/laws-we-administer/unfair-contract-terms-law/unfair-contract-term-protections-for-consumers/

2.13 SCHEME OWNER FINES

The following is a warning relating to potential Scheme Owner Fines which may affect you.

For breaches of certain key requirements under the Scheme Rules, some Scheme Owners (and in particular the card schemes) can levy significant Fines, ranging from $25,000 to over $2 million. The Scheme Owners do this to protect their account holders and providers of Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Some key examples of Scheme Rules which are subject to such Fines: 

1. where you have used the Payment Method for Products and Services other than those for which you are permitted under the Scheme Rules [and this Agreement];
2. where you have used the Payment Method for Products and Services which violate applicable laws; 
3. where you have used the Payment Method for selling types of Products and Services which the Scheme Owners explicitly prohibit (e.g. pornographic content, drugs, arms, gambling);
4. where you have used the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party;
5. where the percentage of transactions which have been subject to a Chargeback has risen above the applicable acceptable levels set by Scheme Owners;
6. where you have breached security and confidentiality obligations with respect to Payment Details; 
7. where you have been associated with fraudulent, misleading activities of which Account Holders are victims. 

Links to Scheme Owner rules can be found here:

• https://www.visa.co.uk/support/consumer/visa-rules.html 
• https://www.mastercard.us/content/dam/mccom/global/documents/mastercard-rules.pdf
• www.Americanexpress.com/merchantopguide

Where Epos Now becomes aware of and/or receives any notice of a potential exposure to a Fine related to any of your behaviour, on request you shall provide all reasonable co-operation to help investigate the relevant circumstances and where such investigation finds you responsible for a violation of the Scheme Rules which results in a Fine, you will remedy the relevant violation. Where possible Epos Now will share relevant feedback received by you with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner. If Fines are applied for your violations, these may be invoiced by the Facilitating Bank, Scheme Owners and/or the relevant Acquirer to Epos Now as their contracting party.

You shall fully indemnify and hold Epos Now harmless from any Fines applied by the Scheme Owners as invoiced by the Facilitating Bank as a result of your breach of the terms of this Agreement and/or the Scheme Rules. 

2.14 ACCOUNT CLOSURE FOR MISUSE

Epos Now may immediately close your account in the event that account activity involves suspicious transactions notified to us by the Facilitating Bank. Such activity may involve any of the following: using credit cards which have been associated with suspicious transactions on a different account, high transaction amounts relative to the nature of your business, or it becoming apparent that individuals associated with your account have attempted to set up multiple accounts with Epos Now. This list is not exhaustive. Where an account it closed for such reason, Epos Now may suspend any Settlements until it is satisfied there is no risk of refunds or chargebacks (being a period of up to 6 months).

3. Pricing and Payment and Deposit

3.1 PRICING AND PRICE INCREASES

You agree to pay the applicable fees listed on the Invoice for use of the ENPS (‘Payment Services Fees’ and, together with the SaaS Fees (as defined in the SaaS Terms), collectively, the ‘Fees’).

Epos Now shall be entitled to increase the Payment Services Fees, on giving you prior written notice, by email. Any increases in fees of Scheme Owners may also be passed on through notification by email.

3.2 MSC CALCULATION

In accepting these Terms and Conditions, you confirm that you have requested a single blended rate Fee and not fees that may differ across networks, categories and brands of Cards.

In relation to ‘Blend Fee pricing structure” for the MSC, you acknowledge that the underlying Interchange Fee is calculated by Epos Now based on Traffic characteristics provided by you and documented when agreeing the Blend Fee. Should actual Traffic subsequently differ materially from the figures provided by you, Epos Now has the right to proportionally adjust the Blend Fee based on the actual current Traffic characteristics. The reason for this is that certain types of Transactions (e.g. Transactions made with Credit Cards issued outside Europe for transactions with European merchants) are charged at higher rates by the Scheme Owner than similar Transactions with European issued Cards. For the ‘Interchange Plus ‘pricing structure, you acknowledge that the actual MSC is calculated by Epos Now based on the actual then current Interchange Fee per Transaction attracted by that transaction, according to Scheme Owner interchange pricing which varies from time to time. 

3.3 PAYMENT

• You agree to the withholding of any fees and other sums due to Epos Now including Chargebacks and Fines from the Settlement amounts. If the Settlement amounts or any Deposit are insufficient to cover amounts due to Epos Now, the amounts remain due as per the due date as stated on the invoice and shall be paid separately by you within 7 days. Epos Now has the right at any time to require immediate payment of sums or to set-off your debts to Epos Now against Settlements to you in the following cases:Refunds and/or Chargebacks to the extent the outstanding Refund and/or Chargeback amounts exceed the Settlement amount.
• Any amount required by Epos Now to cover any (potential) liability of you under this Agreement.
• Any other charges or amounts due from you under this Agreement including Fines from the Card Schemes. Interest shall accrue on any unpaid amounts owed by you to Epos Now at the rate of 1% per month.

3.4 DEPOSIT

Epos Now may by giving notice to this effect by email, retain from Settlement in an account such sums as in its reasonable opinion are required to meet potential indemnities which it may have in relation to your Transactions and use of ENPS. The Deposit will be used solely as security for Chargebacks, Fines and fees due to Epos Now. Epos Now may by notice to you by email set a Deposit Level.

The Deposit reflects the requirements of the Facilitating Bank.

Epos Now may adjust the Deposit level to keep it in line with your current Transaction volume and risk profile. Epos Now will build up the Deposit by withholding the relevant amounts from Settlement. Upon request Epos Now will inform you of the information, estimates and assumptions and calculations used to establish the then current Deposit Level.

You grant Epos Now a lien in and/or a set-off right against any and all funds held in any Deposit and also authorise Epos Now to make any withdrawals or debits from the Deposit without prior notice to you or any bank account linked to Epos Now using your Direct Debit Instruction, to collect amounts that you owe Epos Now. You will execute any additional documentation required for Epos Now to transfer any interest in any funds in the Deposit.

The Deposit shall be released to you 6 months after the termination of this Agreement or 6 months from the last Transaction, provided at that time there are no current potential ongoing liabilities through your use of ENPS.

3.6 TAXES

All quoted or published fees of Epos Now are exclusive of applicable GST, VAT, turnover and other taxes or levies, which shall be invoiced in addition to any fees or charges.

4. Integration

4.1 HOSTED PAYMENT PAGES FOR CNP TRANSACTIONS

Card Not Present Transactions will strictly be undertaken via the Hosted Payment Pages. You must not permit the customer to fill in any Transaction details or capture or register any payment details (expressly including Credit Card data) on your own site. You must not use screen grabbing or other emulation technologies to input Payment Details onto the Hosted Payment Pages. 

4.2 API INTERFACE

(The following is only applicable for merchants with whom Epos Now expressly has agreed to provide a Payment Interface via the API method for Card Not Present Transactions.) Connections to the API interface are made with “SOAP” calls using HTTPS. Authentication is performed via a combination of username/password, IP and/or client certificate checks. If you do not activate 3D-Secure for Transactions offered via the API interface where such option is available, you understand that a higher Interchange Fee may be applied by the Scheme Owners / Acquirers and other restrictions may be applied by the Scheme Owners / Acquirers. Your use of the API interface must at all times be fully compliant with the then current PCI-DSS rules and upon Epos Now’s requirement at any time you must demonstrate such compliance and provide its valid certification of your compliance. If you cannot prove compliance with the PCI-DSS rules or its certification/compliancy becomes invalid, you shall notify Epos Now immediately. Epos Now has the right immediately to suspend transaction processing for you where you are non-compliant with the PCI-DSS standards and which you are unable to provide immediate evidence that such concerns are unsubstantiated. You shall fully indemnify on demand and hold Epos Now harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Epos Now incurs as a result of your breach of this obligation.

4.3 EQUIPMENT AND SOFTWARE / POS TERMINALS

POS terminals always remain within the ownership of Epos Now.

Save for the Software, you shall be solely responsible for the installation, servicing, maintenance, security and operation of the equipment and software needed to connect to the Payment Interface and submit Transactions for processing by Epos Now. Epos Now provides standard software modules and installation guides to you to help enable the connection to the Payment Interface and will provide software tooling to interact with POS Terminals provided or approved by Epos Now to connect to the API. Epos Now shall ensure its input is provided in a professional manner, but it is your responsibility to ensure the correct implementation and use of the Services in accordance with the then current installation and usage instructions and Software updates provided by Epos Now via the Customer Area. 

You may only submit Transactions for processing using POS Terminals provided by Epos Now for such purpose from time to time, adhering strictly to any then current usage instructions as issued by Epos Now with respect thereto via the Customer Area, including by updating the Software embedded on the POS Terminal with Software updates made available by Epos Now. Where a POS Terminal is provided by Epos Now or recommended for use by you in combination with a third-party device like a tablet, I-pad, cash register etc., (a “Third-Party Device”), you must install the then current version of the Software and related updates issued by Epos Now for such Third-Party Device on such Third- Party Device. 

Epos Now is not responsible or liable in relation to the proper functioning of the Third- Party Device and use of such Third-Party Device will be subject to license and usage terms imposed by the relevant third party providers of such Third Party Device. Then current supported Third-Party Devices are listed in the Customer Area. Epos Now may also provide you with software building blocks (such as software libraries) to enable you to create applications to interact with Epos Now provided or Epos Now approved POS Terminals. Support by Epos Now in relation to the use of such tooling and software building blocks and the applications created therewith, is not included in the Services of Epos Now and such tools are provided on an “as is” basis without any warranty.

4.4 HARDWARE WARRANTY POS TERMINALS PROVIDED BY EPOS NOW

Each POS Terminal is provided by Epos Now with a ten months’ limited hardware warranty, which starts on the day the POS Terminal is first activated. The hardware warranty solely entitles you to the free repair or replacement of an Epos Now provided POS Terminal when, through a defect in the POS Terminal or despite use of the POS Terminal by you in compliance with Epos Now’s usage instructions and installation guides, Transactions cannot be submitted. 

In order to claim the repair or replacement of a defective POS Terminal under the hardware warranty, you must contact the Epos Now Service Team prior to the expiry of the ten months’ term. 

The hardware warranty does not apply to any of the following scenarios:

1. the defect was caused by any undue external influence (e.g., contact with water, extreme temperatures, dropping the device etc.); 
2. the defect was caused by any (attempt to) open, change, repair or add to the POS Terminal by parties other than Epos Now or approved by Epos Now by email; 
3. the defect was caused by usage contrary to the operating instructions in the then current usage guides and operating instructions issued by Epos Now for such POS Terminal via the Customer Area; 
4. the defect was caused by use of the POS Terminal in combination with any third-party software or device other than the then current Epos Now approved versions of Third Party Devices, using then-current approved versions of Epos Now released software applications for the relevant Third Party Device. 

Discontinuance of approval by Epos Now for connection to the API by means of a type of POS Terminal provided or previously approved by Epos Now, will where reasonably possible be announced at least 3 months in advance by Epos Now via the Customer Area. Epos Now will use commercially reasonable efforts to continue to support a specific model of POS Terminal it previously provided to you for at least 2 years from the date it is made available for use by you. Epos Now reserves the right to apply a shorter notice period where reasonably deemed necessary: (i) to comply with new Scheme Owner requirements; (ii) to comply with changes in applicable laws; or (iii) to address an imminent security threat identified by Epos Now. If Epos Now discontinues support of a previously provided POS Terminal during the applicable hardware warranty period as specified in this clause 4.4, Epos Now will on your request replace such POS Terminal at no additional charge. 

4.5 INTEGRATION RESPONSIBILITY

It is your responsibility to comply with the relevant instructions and installation manuals issued by Epos Now regarding the POS Terminal’s integration into the Services and Software, including updates issued from time to time to you via the Customer Area. Subject to clause 4.4, Epos Now is not obliged to provide notification of changes to the Software and the interfaces thereto which would not impact your use of the Services if you had correctly followed the integration instructions and other usage manuals.

4.6 DEFENSIVE PROGRAMMING

Epos Now strongly advises the use of “defensive programming” when integrating with the Services. This implies for example that automated decisions programmed into your systems should be defaulted to non-delivery of Products and Services. E.g., program your systems only to deliver Products and Services after receiving an express authorisation of the payment requested and not program your system to deliver in case no explicit rejection is received.

4.7 MEANING OF PAYMENT STATUS “AUTHORISED” 

If a payment request receives the status “Authorised” (or similarly worded status), this indicates the payment transaction is likely to be successful. However, this is not 100% certain. Payment may still be blocked or subject to Chargeback by the Account Holder (where Chargeback is possible under the relevant Scheme Rules). The likelihood of a payment marked as “Authorised” being blocked or unsuccessful depends on the Payment Method which is used. For example, for direct debit transactions this risk is significant because in most cases the status “Authorised” only means the Account Holder's bank account exists and does not confirm that there are sufficient funds in the bank account to complete the payment.

4.8 CHANGES TO SOFTWARE

Epos Now reserves the right to change or amend the Software and the interface to it at any time, to provide you with a new version thereof, and/or to change the functionalities and characteristics of the Software. Changes may be made which reduced functionality and convenience where they reflect: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Scheme Rules, (iii) the need for increased security due to security risks identified by Epos Now (iv) other reasonable grounds which warrant the reduction of functionality. If you are significantly impacted by a material reduction of functionality due to a change in the Software, you may terminate the Agreement by giving written notice to Epos Now within one month after Epos Now announces the change. Epos Now will seek to announce material changes to the API Interface where reasonably possible at least 6 months in advance.

4.9 SECURITY OF PAYMENT DETAILS AND INDEMNITY

It is a strict condition and obligation of this Agreement that you will not copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are entered on the Hosted Payment Page or on the POS Terminal. This rule is imposed by the Scheme Owners to protect Account Holders against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners. Any violation of this rule can lead to the application of high Fines by the Schemes Owners. If Epos Now has reason to believe that you are or have been copying, capturing or intercepting Payment Details, Epos Now has the right to suspend processing of Transactions and Settlement. You shall fully indemnify and Epos Now from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Epos Now incurs as a result of any breach by you of this obligation. 

5. Customer Support

Regular support is available by email, web or telephone on Business Days during Working Hours. Emergency support is provided 24 hour per day. Supported helpdesk languages are English. Support documentation is available in English. The support web site will contain a knowledge base, news items and troubleshooting helpers on a personalised basis.

6. Maintenance

6.1 BACKOFFICE MAINTENANCE

ENPS may on times notified you in advance, be unavailable for periodic system maintenance. Epos Now will use reasonable endeavours to keep such maintenance periods as short as possible.

7. Chargebacks and Refunds

7.1 CHARGEBACK LIABILITY

Many Scheme Owners and including most Scheme Owners issuing Credit Cards allow Account Holders to Chargeback Authorised and Settled Transactions by requesting a Chargeback from the Scheme Owner or the Issuing Bank. Your receipt of a Settlement and/or Authorisation confirmation regarding a particular Transaction therefore does not unconditionally entitle you to receive Settlement of the Transaction amount or to keep the Settled amount. Where an Account Holder, claims a Chargeback in accordance with the relevant Scheme Rules via the Facilitating Bank you shall return it via Epos Now to the Account Holder. 

If your Chargeback levels are above levels acceptable for Epos Now and/or the relevant Scheme Owner, Epos Now reserves the right to suspend the availability of said Payment Method in its discretion. As a guideline, a monthly Chargeback level of more than 0.5% of the total volume of Transactions is considered unacceptable for Epos Now and most Scheme Owners and can lead to suspension of Transaction processing for the relevant Payment Method and/or Fines being applied (for which you will be responsible). For some Payment Methods higher or lower tolerances for Chargeback levels may apply, please check the relevant then-current version of the relevant Scheme Rules for this (see Customer Area for more information). 

Please note that the relevant Scheme Owner, Acquirer and/or Epos Now not taking immediate action in case of excessive Chargeback levels occurring cannot be interpreted as consent or a waiver of related rights by Epos Now, the relevant Acquirer or Scheme Owner. 

You may not provide Refunds to an Account Holder for a previously processed Transaction using a different Payment Method than the method used for the original Transaction. The original Transaction can in such case still be subject to Chargeback by the account holder or issuer, causing you having to Refund the received funds twice. 

If Epos Now has reasons to suspect that you are not delivering your Products and Services on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Epos Now has reason to suspect that your Products and Services for which Epos Now processes transactions are based on fraud, or likely to cause high Chargeback volumes and/or illegal, Epos Now has the right to suspend Settlement of all related transactions and/or block Authorisations until Epos Now has been given assurances to its satisfaction that the relevant Products and Services are actually delivered in accordance with applicable laws and orders placed by the Account Holder.

7.2 CHARGEBACK FEE

For every Chargeback, a non-refundable Chargeback Fee of $50.00 will be charged to you as set out in the Agreement. 

7.3 CHARGEBACK PAYMENT

For every Chargeback where Epos Now is obliged contractually by the Facilitating Bank to pay the Chargeback amount, you hereby give Epos Now authority to deduct the same amount from your Settlements or where the Settlement amount is too low, forthwith by payment on demand. 

7.4 CHARGEBACK PERIOD

To reflect the fact that Chargebacks may arise a considerable period after the date of the relevant Transaction you acknowledge and agree that, notwithstanding any termination of the Agreement for any reason, Epos Now shall remain entitled to recover Chargebacks and Chargeback Fees and related Fines from you arising out of your prior use of the Payment Services.

7.5 REFUNDS

Refunds will be charged as a Transaction by Epos Now and a Refund Fee can be applied by Epos Now after giving prior notice to you. Refunds Fees may be taken from any Settlement due to you.

7.6 NO REFUND OF ORIGINAL TRANSACTION FEES

Fees charged for executing the original Transaction will not be refunded in part or in whole to you if the Transaction is refunded or made subject to a Chargeback. 

8. Intellectual Property Rights

The property rights in the Software and other materials and all other intellectual property rights related to the ENPS are owned by Epos Now and its licensors. The Agreement does not transfer any intellectual property rights with respect thereto and only provides you a limited, non-exclusive and non-transferable license to use the Software and all other materials made available by Epos Now solely for the purpose of using the Services in accordance with these Terms and Conditions and the applicable usage instructions communicated to you via the Epos Now website from time to time.

9. Confidentiality, Privacy and Compliance

9.1 CONFIDENTIALITY

All information relating to you or to Epos Now and designated as being confidential, and all information not expressly designated as confidential, but which should reasonably be deemed confidential by reason of its nature or content, is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. You acknowledge that the terms of the Agreement and any information provided by Epos Now on its Services (including communications from Epos Now’s support functions) are Confidential Information. Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:

• to share Confidential Information solely with personnel and representatives of the parties which have a need to have access to such information in order to exercise rights and obligations under the Agreement; and
• to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Epos Now where necessary to perform the Services. 
• The obligation to maintain confidentiality does not apply to information:
  • available to the general public;
  • disclosed to one of the parties by a third party without any obligation of confidentiality;
  • already in the possession of or known to one of the parties at the time of disclosure;
  • developed independently of the Confidential Information by the other party; or
  • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority or applicable law to disclose such information. 
• The obligation of confidentiality as described in this clause shall remain in effect for two years following the termination of the Agreement, regardless of the grounds for termination. The following data is to be considered confidential, without need for special mention:
  • all financial data;
  • any agreed specific Terms and Conditions in the Agreement, if applicable; and
  • all user manuals, guides and any Software relating to Epos Now’s products and services.

9.2 PRIVACY

Where Epos Now processes personal data while performing the ENPS they will act as data processor in accordance with the Australian Privacy Act 1988 (Cth), EU General Data Protection Regulation and the UK Data Protection Act 2018 and any other applicable law. The parties will comply with the applicable personal data protection laws of their country of origin and of those countries in which each party operates. Your personal data shall be processed for the purpose of carrying out the terms of this Agreement with you and in relation to your customers it will be processed on the basis of a legitimate interest. Both Epos Now and you shall implement appropriate technical and organisational measures to protect personal data against misuse. You must ensure that your website has appropriate Privacy Notices.

9.3 PCI COMPLIANCE

If you store, process or transmit customer data, you will comply with the applicable PCI-DSS. You will cooperate in forensic investigations as required by Epos Now in accordance with clause 2.11. For additional information, including tools to help you assess your compliance. 

see http://www.visa.com/cisp and http://www.mastercard.com/sdp.

Epos Now warrants it complies with the requirements of PCI DSS. In relation to cardholder data, Epos Now acknowledges that it is responsible for the security of such cardholder data that it stores, possesses or transmits on behalf of a Cardholder or to the extent that it could impact the security of the Cardholder’s data environment.

10. Duration and Cancellation

10.1 DURATION 

The Agreement once commenced runs for 12/24/36 months [such fixed period being set out in your Tailored Proposal/invoice] and thereafter continues from month-to-month until it is terminated by either party by giving at least two months’ written notice to the other party.

10.2 TERMINATION 

You have the right to terminate the Agreement immediately if:

• The Service availability in any given calendar month is less than 90%.

Epos Now has the right to terminate the Agreement and/or stop the processing or Settlement of Transactions for you immediately in part or in whole if any of the following apply:

• The provision of your Products and Services is reasonably suspected by Epos Now to be in breach of legislation in the country where the Products and Services are either offered or delivered;
• You have materially changed the type of Products and Services without obtaining Epos Now’s prior written permission;
• You have or have attempted to process a suspicious number of transactions, for example for high amounts not reflective of your type of business or using cards which have been flagged by the Facilitating Bank as having been used in other suspicious transactions;
• You have materially breached any of the terms of the Agreement, the Scheme Rules and/or applicable laws in the context of using the ENPS;
• An Acquirer or Scheme Owner or Facilitating Bank requires Epos Now to terminate or suspend providing Services to you with respect to Payment Methods made available by such Acquirer or Scheme Owner to Epos Now; or

• Epos Now establishes that you are or are likely to become insolvent and/or unable to provide a material part of your Products and Services.
• Epos Now is unable through the actions of the Facilitating Bank to provide the Services.

10.3 CESSATION OF USE DURING INITIAL TERM

Should you cease using ENPS during the Initial Term or seek to terminate the Agreement during the Initial Term in accordance with clause 10.2 above, Epos Now may invoice you for the notional value of the POS Terminal, the notional value being $1,500 or as otherwise agreed between the parties in writing or as stated on your invoice (“Notional Value”). This sum will then be payable within 7 days and may be taken from any Deposit.

This provision is without prejudice to the provisions clause 10.4 below, relating to minimum transaction requirements.

10.4 ACTIVATION AND MINIMUM TRANSACTION REQUIREMENTS

You must within 45 days of this Agreement activate your POS Terminal. This requires you to carry out a single ENPS transaction of $50 and thereafter process per rolling 28-day period either (i) at least 75 per cent of your card processing or (ii) process card payments to a minimum of $2,500 (the “Minimum Processing Level”) for the duration of the Initial Term. Should you fail to process the Minimum Processing Level for the duration of the Initial Term, Epos Now may by written notice place you on and charge a payment premium of $69.00 per month per POS Terminal (the “Payment Premium”).

By re-establishing the Minimum Processing Level threshold subsequently for a period of 28 days, the Payment Premium will be suspended for so long as you then continue to meet the Minimum Processing Level.

In the event that Epos Now has exercised its rights under Clause 10.3, the provisions of this Clause 10.4 shall cease to apply from the date that Epos Now has invoiced the notional value of the Payment Terminal.

You will not be required to meet the Minimum Processing Level in the event of a planned or unplanned cessation of the Products and Services including a Force Majeure Event. 

If your business is seasonal, Epos Now may at its discretion and notified to you in writing, average the Minimum Processing Level over a longer period. Any requests under this paragraph should be made by you to Customer support.

11. Liability

11.1 NO LIABILITY FOR SCHEME OWNERS AND THIRD-PARTY ACQUIRERS 

Epos Now shall be liable only for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or the Facilitating Bank or for events or activities originating outside the systems or control of Epos Now (such as internet disturbances or malfunctions in third party systems).

11.2 LIMITATION OF LIABILITY

The total liability of Epos Now under the Agreement to you for any breach of contract shall be limited to the total sum of Processing Fees paid by you to Epos Now during the previous full calendar year (or if no Services were provided in the previous calendar year, the total Processing Fees paid in the Initial Term). 

EPOS NOW SHALL NOT BE LIABLE FOR BREACH OF CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY FOR ANY LOSS OF PROFIT, BUSINESS, CONTRACTS, REVENUES OR ANTICIPATED SAVINGS, OR REPUTATIONAL DAMAGE; OR FOR ANY SPECIAL, INDIRECT, PURE ECONOMIC LOSS OR CONSEQUENTIAL DAMAGES. NEITHER EPOS NOW NOR ANY OTHER PARTY TO THE AGREEMENT EXCLUDES OR LIMITS ITS LIABILITY UNDER THE AGREEMENT FOR DEATH, FRAUD OR PERSONAL INJURY OR ANY OTHER LIABILITY A PARTY IS UNABLE TO EXCLUDE UNDER APPLICABLE LAW.

You acknowledge that were it not for this limitation of liability, the sums you would pay Epos Now for the use of ENPS would be significantly greater.

12. Additional Indemnity

You will indemnify, defend and hold Epos Now and our Facilitating Bank (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to any Transaction submitted by you through ENPS (including the accuracy of any content or product, service or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you).

Further, you accept any recurring Card payment transactions from your customers at your own risk.

You shall indemnify and Epos Now from any claim (including legal fees) brought against Epos Now by any third party (expressly including Scheme Owners and Acquirers, Facilitating Bank and their claims for Chargebacks or payments of Fines) as a result of your breach of the terms of the Agreement, applicable laws and/or the Scheme Rules applying to the Payment Methods used by you.

13. General Provisions

13.1 TRANSFER

Epos Now shall be entitled, at any time, to assign, novate or otherwise transfer the Agreement to another company.

13.2 VOIDABLE PROVISIONS

In the event that any provision in this Agreement (including the Epos Now Terms and Conditions) is declared void or inapplicable, the said condition shall be removed from the interpretation of the contract, and all other provisions of the Agreement (including the Epos Now Terms and Conditions) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic intention of the provision void.

13.3 ENTIRE AGREEMENT

The Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Agreement shall be of any force or effect unless expressly reduced to writing and repeated in the Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Agreement, expressly excluded to the fullest extent permitted by law.

13.4 USE OF NAME OF THE PARTIES

• you agree that your business name and standard logo may be included by Epos Now on the Epos Now client list on its website and in its sales materials; 
• Epos Now shall be entitled to use said list freely in its commercial efforts.

Any other use of your name, logo or information shall only occur with your prior written approval. You may on your website in the section “frequently asked questions”, or in a similar informational section on its website, refer to Epos Now as its payment service provider, explaining that this is the reason why the name Epos Now may appear on bank statements of the customer. You may also include an internet link to the website of Epos Now in such context. You may not mention Epos Now on the home page of your website in any situation. You must in each case also clearly state that your customers should not contact Epos Now for support or questions regarding payments processed by Epos Now for You. You may not use the logo of Epos Now anywhere on its website without the prior express written approval or save in accordance with guidelines circulated or published by Epos Now on its web site.

13.5 CHANGES TO THE TERMS AND CONDITIONS

Epos Now may revise the Terms and Conditions from time to time by giving at least 14 days written notice to you via email or by notice in the Customer Area. If the change has a material adverse impact on you and you do not agree to the change, you may give written notice of your objection to Epos Now within thirty days after receiving notice of the change. If Epos Now receives such notice, Epos Now will contact You to discuss the objection. In the event that the problem cannot be resolved, you may terminate the Agreement by giving at least one month written notice to Epos Now (such termination notice to be sent at the latest 60 days after you received notice of the change). 

Where any changes to the Terms and Conditions are necessary through the stipulation or requirements of relevant Acquirers and/or Scheme Owners, then such changes will be binding and you shall have no right to object to the extent the changes represent a legally binding change to the Services. For such imposed changes shorter notice periods may be applied by Epos Now.

13.6 DEVIATING TERMS 

These Terms and Conditions shall represent the agreement between you and Epos Now relating to the provision of the ENPS. They may be varied only by agreement in writing with a Director or Legal Counsel of Epos Now. Any published Terms and Conditions of business relating to your business shall have no application relating to the ENPS.

13.7 ONLINE CONTRACTING –WRITTEN CONFIRMATION 

In a situation where you have made this Agreement by electronic signature or through a website, Epos Now may at any time require that you re-confirm your acceptance of the terms of the Agreement (including these Epos Now Terms and Conditions) by means of a written document signed by an authorised representative. Should you not comply with such request within 10 Working Days after receiving a request by Epos Now to do so (which request may be issued to you via the contact email address submitted by you when concluding the Agreement), Epos Now reserves the right to suspend part or all of the Services until you have complied with such request.

13.8 APPLICABILITY OF EU PAYMENT SERVICES DIRECTIVE

The following applies to the European Economic Area (“EEA”) only.

Directive (EU) 2015/2366 (“PSD2”) or its predecessor, Directive 2007/64/EC ("PSD") are excluded to the maximum extent in accordance with Article 38 and 61 PSD2 (or Article 30 and 41 PSD). Where Epos Now provides payment services within the EEA and where the Account Holder's payment service provider is located in the EEA, the parties hereby agree and confirm in accordance with article 62(2) of PSD2 that you shall pay the charges levied by Epos Now and the Account Holder shall pay the charges levied by his payment service provider (i.e. the ‘SHA’ (shared) principle).

14. Settlement of Disputes

14.1 DISPUTE HANDLING

The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Agreement. This clause 14.1 is without prejudice to a party's right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties.

14.2 APPLICABLE LAW AND JURISDICTION

The Agreement and these Terms and Conditions are solely governed by the laws of Queensland, Australia. 

Schedule 1

PROHIBITED PRODUCTS AND SERVICES

This list shows which Products and Services are prohibited, or restricted, in relation to the use of ENPS. 

PROHIBITED FOR ALL TYPES OF TRANSACTIONS

You must never use ENPS in relation to any of the following Products and Services:

• Drugs, and tools specifically intended for the production of drugs, Drug paraphernalia Illegal Drugs, substances designed to mimic illegal drugs, and/or other psycho active products (e.g., K2, salvia divinorum, nitrate inhalers, bath salts, synthetic cannabis, herbal smoking blends, herbal incense, and HCG/HGH-like substances)
• Products/services specifically offered or intended to be used to create drugs or grow ingredients for drugs (e.g. ‘grow shop’ products, seeds for cannabis plants, etc.)
• Pyramid selling
• Escort agencies / massage parlours / sexual services.
• Timeshare and timeshare maintenance
• Independent financial advisers (IFA), Payday loans and unsecure loan/lines originating from non-FDIC insured banks
• Counterfeit goods/replicas or those infringing on intellectual property rights, including those designed to infringe on such intellectual property (i.e., knock-offs, imitations, bootlegs)
• Trade of weapons, ammunitions, military arms, explosive devices and firearm parts
• Products/services that promote hate, violence, discrimination, terrorism, harassment or abuse
• Products designed to circumvent copyright protection techniques or to otherwise facilitate the unlicensed use of copyrighted materials (e.g. ‘mod-chips’ to break the encryption of game computers to enable the playing of unlicensed copies of games).
• Providing gambling services in jurisdictions where this is illegal or (where applicable) offering gambling services without a valid license to the relevant jurisdiction.
• Illegal products/services or any service providing peripheral support of illegal activities.
• Adult entertainment, websites & content (such as)
• Adult book stores, video stores, toys as follows:
  • Any products on the internet containing graphic or nude content or Audio (phone sex and adult phone conversations)
  • Companion/escort services or Dating services
  • Fetish products
  • Membership, clubs, subscriptions relating to adult content
  • Prostitution
  • Gentleman’s clubs, topless bars, and strip clubs
  • Video (web-based sexually-oriented video)
• Fake references and other services/products that foster deception (including fake IDs and government documents)
• Mail order spouse and international match-making services
• Social media “click farms” (i.e., the sale of clicks/likes/reviews/endorsements on social media sites)
• Telemarking companies involved with the following methods of operations:
  • Offering a free gift, prize, or sweepstakes/contest entry as an inducement to purchase their product or service
  • Inbound telemarketing companies that receive calls as the result of post cards or similar mailings (as opposed to catalogue or media advertising)
  • Selling products/services as an agent for a third party
• Merchants engaged in any form of deceptive marketing practice including but not limited to:
  • Hidden disclosure
  • Bogus claims & endorsements
  • Pre-checked opt-in boxes
  • Refund/Cancellation avoidance
  • Poorly-disclosed negative options
  • Merchants offering substantial rebates or special incentives (e.g., free gift, prize, sweepstakes, or contest) as an inducement to purchase Products or Services
  • Negative response marketing techniques by any type of merchant (i.e., where a customer is automatically charged if they don’t return the merchandise at the end of a free trial period)
• Jammers or devices that are designed to block, jam or interfere with cellular and personal
  communication device/signals (e.g., GPS), Decryption and descrambler products including
  mod chips, Spy devices / services / software.

RESTRICTED FOR ALL TRANSACTION TYPES

The following Products and Services may only be provided by you with approval by email from a Director of Epos Now:

• Betting and gambling, including:
  • Legal gambling where the cardholder is not present when the bet is made as well as for direct purchase of wagers/chips via payment card
  • Lotteries, including online lotteries
  • Sports forecasting or bookmaking
  • Internet gambling
• Games of skill where participants receive cash or cash equivalents or prizes with/of material
  value. (e.g. electronics, travel, gift cards etc.)
• Fantasy sports leagues where participants receive cash or cash-equivalents or prizes with/of
  material value. (e.g. electronics, travel, gift cards etc.)
• Financial Services / Money Service Businesses, including:
  • Provider or seller of prepaid access/stored value*
  • Quasi-cash
  • Cash advances (by non-financial institutions)
  • Issuer/seller/redeemer of money orders or traveller’s cheques
  • Check cashing services
  • Virtual currency or e-wallet or e-money that can be monetised, re-sold or converted to physical/digital goods/services or otherwise exit the virtual world
  • Money Transfer
• Open-loop & Closed-loop prepaid access includes gift cards, phone cards, subway cards, college campus cards, game cards and other limited-use prepaid access devices 
• Third Party Payment Processors/Aggregators/Payment Service Companies (e.g., bill pay service, crowd funding, peer-to-peer payments, commissary accounts), Payment Facilitators, ISO's and other Internet Payment Service Providers (IPSP) / Member Service Providers (MSP) / Fulfillment houses, Shipping/forwarding brokers
• Auctions, Bidding fee auctions 
• Paying fines or penalties of any kind
• Charities
• Security brokers & Investments of any kind, such as purchase of securities, currencies, derivatives, commodities, shares, foreign currencies, options, other financial instruments or precious metals
• Private medical practices and e-doctors.
• Products or services related to political or social campaigning
• Car sales / importers and car advertising publications
• Multi-Level Marketing
• Airlines (including airlines “nested” under another entity)
• Bail bonds
• Bankruptcy lawyers
• Business/Investment opportunities operating as “get rich quick schemes”(e.g., real estate purchase with no-money-down, government grants)
• Business service companies, such as payroll services, invoicing services and consumer services.
• Chain letters
• Collection agencies or firms involved in recovering/collecting past due receivables
• Credit repair/restoration or card protection (including identity theft protection)
• Cruise lines (including cruise lines ”nested” under another entity)
• Data pass (merchants up-selling or cross-selling products to other merchants and then sharing the cardholder data with the third party or receiving cardholder data from third parties)
• Debt consolidation and mortgage reduction/consulting services
• Door-to-Door sales
• Embassy, Foreign Consulate, or Other Foreign Government
• Essay mills/paper mills (i.e., ghost writing services that sell essays, term papers, etc. with intent that the purchaser will submit documentation as their own)
• Extended warranties
• Merchants that have ransom-like or extortion-like basis for their business model (e.g., mugshot removal)
• Merchants utilizing tactics to evade Scheme Owner excessive chargeback monitoring programmes
• Marketplaces

RESTRICTED FOR E-COMMERCE/CNP ONLY

For E-commerce and card-not-present the following Products and Services may be used with the prior permission of Epos Now in writing. Where given Epos Now may in its discretion revoke permission at any time:

• Travel and holidays
• Ticket agencies
• Tobacco & Alcohol product, Businesses selling age or legally restricted products or services (including e-cigarettes)
• Prescription medicines and pharmaceuticals, incl prescription medical devices (like contact lenses).
• Pseudo pharmaceuticals / Nutraceuticals and food products or other digestibles marketed via-unsubstantiated and/or unlawful health or medical claims (e.g., food supplements, vitamins, weight-loss, anti-aging, muscle-building, sexual-stimulant supplements, colon cleansers, detox products).
• Specific cosmetic products that claim extreme results (Anti-wrinkle, Skin Repair etcetera)
• Cyber Lockers, Cloud Storage and File Sharing services
• Services associated with pseudo-science (e.g., clairvoyance, horoscopes, fortune telling, etc.)