The following words have the meanings set out below:
ATM means an electronic device, approved by the administrator of the ATM Access Code, which is unattended by the device owner and capable of automatically dispensing Cash in response to a Cash withdrawal Transaction initiated by a Cardholder but excludes self-service point of sale terminals. Limited service devices (known as “Cash dispensers”) that only allow for Cash withdrawal are included.
ATM Transactions means transactions utilising an ATM for:
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, Australia.
of a party means all information of that party or any of its Related Bodies Corporate (regardless of form) which:
(a) is regarded by the party as confidential to it or can reasonably be inferred to be confidential from the circumstances in which it is disclosed;
(b) is disclosed to or observed by another person; and
(c) is not in or has not come into the public domain otherwise than by disclosure in breach of an obligation of confidence owed to the party,
and all notes, compilations, analyses, extracts, summaries and other records prepared by or for the benefit of the person receiving information or any of its Related Bodies Corporate based on or incorporating that information, but does not include:
(d) information which is generally and publicly available; or
(e) information on an aggregated basis which is required by eftpos for reporting requirements, but which does not identify the provider of the information.
eftpos Materials means any materials (including any methodologies, templates, tools, ideas, processes, procedures, practices, software, reports, guides, diagrams and techniques, and training materials) provided by eftpos under this Agreement.
Fee Letter means the side letter between the parties that sets out the Fees and forms part of this Agreement.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
IAC means the Issuer and Acquirer Community Framework, as amended from time to time.
IAC Code Set means the code set administered by Australian Payments Network Limited for the Issuers and Acquirers Community as amended from time to time and any documents that supersede or replace those documents in respect of ATM governance as published by the Australian Payments Network Limited in respect of ATM Transactions from time to time.
Insolvency Event means the occurrence of any one or more of the following events:
(a) an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed and, in the case of an application, the application is not withdrawn, struck out or dismissed within 21 days of it being made;
(b) a liquidator or provisional liquidator is appointed and the appointment is not terminated within 21 days of it being made;
(c) an administrator (as defined in section 9 of the Corporations Act) or a controller (as defined in section 9 of the Corporations Act) is appointed to any of a party’s assets and the appointment is not terminated within 21 days of it being made;
(d) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
(e) it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
(f) it is insolvent as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
(g) a party becomes, or states that it is, an insolvent under administration (as defined in section 9 of the Corporations Act) or action is taken which could result in that event and the proceeding is not dismissed within 21 days of the date action is taken;
(h) an order is made, a resolution is passed, proposal put forward or any other action taken, in each case which is preparatory to or could result in any of the matters referred to in paragraphs (i) to (vii) inclusive;
(i) it is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act;
(j) a notice is issued under sections 601AA or 601AB of the Corporations Act and not withdrawn or dismissed within 21 days;
(k) a writ of execution is levied against it or a material part of its property which is not dismissed within 21 days;
(l) any step is taken by a mortgagee to enter into possession of or dispose of the whole or any part of the other party’s assets or business; or
(m) anything that occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
In this Agreement the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) the words “such as”, “including”, “particularly” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, governmental agency, association, corporation or other body corporate;
(ii) a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to or replacements of that document;
(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;
(vi) this Agreement includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(viii) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(ix) a monetary amount is in Australian dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) when the day on which something must be done is not a business day in Sydney, that thing must be done on the following business day unless a specific date is stated in which case the thing must be done on that date;
(i) in determining the time of day, where relevant to this Agreement, the relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii) for any other purpose under this Agreement, the time of day in the place where the party required to perform an obligation is located; and
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.
(a) These terms apply to the processing of ATM Transactions using the eftpos Hub. In consideration of the Fees, eftpos will provide the Services to the Recipient in accordance with the Service Levels for the Term.
(b) The connection between the Recipient and eftpos will be a Standard Hub Direct Connection for the purposes of the eftpos Scheme Rules as far as they apply to the processing of ATM Transactions. The parties agree that that the following apply to this Agreement:
(i) clauses 10, 15, 26, 27 and 28 inclusive of the eftpos Scheme Rules, as if the Recipient were a Direct Connector under those rules;
(ii) the provisions of the eftpos Technical, Operational and Security Rules, including the Standard Hub Service Schedule and the eftpos Link Specification as varied by Schedule 2 of this Agreement; and
(iii) the IAC Code Set to the extent it applies to ATM Transactions.
(a) eftpos must meet the Service Levels. Within 10 Business Days of the end of each calendar month, eftpos must provide to the Recipient a Service Level report for the period since the last report.
(i) take active steps to return to required Service Levels within one month; and
(ii) escalate in accordance with the escalation path as set out in the Schedule.
(k) If a Fault Event occurs, then eftpos will provide Rectification Services in accordance with the escalation path as set out in Schedule 1 to this Agreement.
Nothing in this Agreement shall be construed as creating a partnership or relationship of agency between eftpos and the Recipient or constitute the ATM Transactions as eftpos Transactions for the purposes of the eftpos Payment System. Neither party is to hold itself out as having the authority or power to bind the other party in any way in respect of ATM Transaction processing.
This Agreement commences on the Commencement Date and, for the initial term, will continue for a period of 3 years, unless terminated earlier in accordance with this Agreement. Unless either party gives notice to the other that it does not renew this Agreement not more than 7 months nor less than 6 months before the End Date of the then current term, this Agreement automatically renews for a further period of 3 years at the pricing agreed between the parties in the then current Fee Letter.
(f) On termination of this Agreement:
(i) eftpos will provide the Transition Out Services for a period of 180 days after the end of the termination notice period;
(ii) the Recipient will continue to pay the Fees for the Services as set out in the Fee Letter.
(a) In exchange for provision of the Services and the delivery of a valid tax invoice in accordance with GST Law, the Recipient will pay to eftpos the Fees within 30 days of the date of an invoice. Invoices will be issued monthly in arrears.
(b) Any Service Level Credits will be deducted from the next monthly invoice except if they apply in the last month of the Term in which case eftpos will refund the amount of any unpaid and undisputed Service Level Credits to the Recipient.
(i) if an amount payable under or in connection with this Agreement (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred; and
(ii) no Additional Amount is payable under paragraph (b) in respect of a Supply to which s 84-5 of the GST Law applies.
The Recipient will pay the undisputed amount of each tax invoice within 30 days of receipt of the invoice.
(iv) In this clause, a reference to “transfer Personal Information” or “disclose Personal Information” (or any similar terms) includes allowing or facilitating access to such Personal Information.
Clause 45 of the eftpos Scheme Rules applies to this Agreement.
Except as expressly provided in this Agreement, a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this Agreement.
This Agreement comprises the Application, Fee Letter, these terms and conditions, any SOW and such of the eftpos Scheme Rules and Technical Operational and Security Rules as are referred to and incorporated by reference into these terms and conditions. The Agreement is created, effective from the date specified in the Fee Letter, by the Recipient applying for the Services via the eftpos website, through which the Recipient agrees to these terms and conditions.
Except as expressly provided in this Agreement, each party must pay its own costs and expenses of negotiating, preparing and executing this Agreement and any other instrument executed under this Agreement.
Each indemnity in this Agreement is a continuing indemnity, separate and independent from the other obligations of the parties and survives termination of this Agreement.
Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.
This Agreement is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
Clause 43 of the eftpos Scheme Rules applies to this Agreement.
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.
Except as expressly provided in this Agreement:
The effective date stated in the Fee Letter.
Switching and processing of off-us ATM Transactions between the Recipient and issuers directly or indirectly connected to the eftpos Hub, being:
(a) ATM Transaction routing;
(b) Provision of reconciliation reports for the Recipients off-us ATM Transactions in respect of each settlement counterparty nominated by the Recipient in the Project Documents.
For clarity, unless otherwise specifically agreed between the parties, eftpos is not involved in Interchange Settlement nor dispute resolution relating to ATM Transactions. The eftpos Link Specification applies to the Services.
The Standard Hub Service Service Levels apply to this Agreement.
eftpos will produce service level reports within 10 Business Days of the end of each calendar month
See table below
* The time period runs from the earlier of when eftpos first becomes aware of the Fault Event or when the Recipient notifies eftpos of the Fault Event
** eftpos will determine the appropriate Priority level for each Fault Event
First contact eftpos
Escalation contact eftpos
eftpos Member Support
1300 650 831
Escalation level 2:
Executive Manager, Payments IT and Operations
Escalation level 3:
Chief Technology Officer
Terms defined in the eftpos Scheme Rules or the Technical, Operational and Security Rules have the same meanings when used in this schedule which forms part of the Agreement. The eftpos Technical, Operational and Security Rules (TOSR), including the Standard Hub Service Schedule, are incorporated by reference into this Agreement and apply to ATMs, ATM Transactions and the Services, provided that:
1. The Standard Hub Service Schedule applies:
o to ATM Transactions as if they were eftpos Transactions;
o as if eftpos Interchange Activities related to ATM Transactions;
o to escalation procedures related to ATM Transactions processed using the eftpos Hub, save that section 7.2.4 and Table 1 of Section 7 of the Standard Hub Service Schedule are replaced with items 4 and 5 of Schedule 1 of this Agreement
2. The definition of Standard Direct Connection Process in the Standard Hub Service Schedule does not include bilateral connections for the purposes of this Agreement. This Agreement does not apply to bilateral connections between the Recipient and any other person.
3. References to Applicant Direct Connector are to be read as references to the Recipient under this Agreement without any additional qualification requirement under the eftpos Scheme Rules
4. Sections 3.3(c), 3.3.2 of the Standard Hub Service Schedule, only applies in respect of other Direct Connectors for ATM Transactions for the purposes of this Agreement
5. References to Acquirer Members, Member(s) and eftpos Acquirers are references to acquirers and references to Issuer Members are references to issuers in respect of ATM Transactions
6. References to eftpos Terminals and Terminals and POS are references to ATMs. For clarity, eftpos does require TAV and cTAV certification for ACe applications on ATMs through the eftpos Certification Body
7. References to testing protocols for the eftpos Hub and terminal application validation apply to such testing protocols as eftpos publish from time to time in respect of ATMs
8. References to Settlement are references to the process of discharging payment obligations between Issuers and Acquirers arising from ATM Transactions and the IAC requirements will be applied to the Services as confirmed between the Recipient and eftpos as part of the Standard Direct Connection Process. Specifically, Sections 2.13.2 and 220.127.116.11 of the TOSR do not apply. Instead, transaction activity files will be provided to the Recipient in the format published by eftpos in the Project Documents and sections 9.1.1, the first paragraph of 18.104.22.168, 22.214.171.124, and 9.1.3 of the TOSR do not apply
9. References in the TOSR to:
o fallback processing, other than Technology Fallback, and authorisation of transactions above floor limits (sections 2.12, 4.12.4–4.12.8 inclusive and 8.7)
o disputed transactions and chargebacks (section 7 Disputes and Chargebacks)
o statement narratives for refund transactions (sections 3.11.1-3.11.3 and 7.1.3)
o fees (section 2.15)
o compromised Terminals (sections 3.12.1 and 3.12.2)
o merchant checks (section 4.7.1)
o the last paragraph of (section 4.11)
o insufficient funds – short duration pre-authorised transactions (section 7.1.3)
o eftpos operating procedures (sections 4.7.2-4.7.4 and 4.7.8-4.7.9)
o cardholder enquiries, merchant enquiries and branch enquiries (second paragraph of 4.14.1, 4.14.2 and4.14.3)
o cards left on merchant premises (section 4.15)
do not apply. The IAC governs the above and allocates liability between the issuer and the acquirer.
10. Any ATM Transactions utilising Technology Fallback must comply with both the IAC Code Set and the eftpos Link Specification.
11. Sections 2.13.2 and 126.96.36.199 do not apply. Instead, transaction activity files will be provided to the Recipient in the format published by eftpos in the Project Documents
12. Transaction messages and acquirer interfaces with the ATMs must comply with the ATM Transaction sections of the eftpos Link Specification which applies to the extent of any inconsistency with the TOSR
13. Section 6.4 Supported Transaction Set does not apply to ATM Transactions. Instead, the transaction flow and description set out in the IAC Code Set applies.
14. The following appendices do not apply:
o Appendix 2,
o Appendix 3A,
o Appendix 3B,
o Appendix 3C,
o Appendix 3E,
o Appendix 3F, and
o Appendix 4A – instead see the report published by eftpos as part of the Project Documents.