ATM processing terms and conditions

 

1          Definitions and interpretation

1.1       Definitions

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:

(a)        Cash withdrawals;

(b)        Account balance enquiries; and

(c)        any other transactions agreed between eftpos and the Recipient from time to time through an SOW.

Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, Australia.

Confidential Information

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.

Commencement Date means for the initial Term, the effective date specified in the Fee Letter and for each subsequent Term, the Renewal Date.

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.

eftpos Scheme Rules means the document of that name accessible through the eftpos secure portal, together with the eftpos Technical, Operational and Security Rules, Standard Hub Service Schedule and eftpos Link Specification as far as those documents relate to ATM Transaction processing as specified in this Agreement.

eftpos Service Provider means the entity notified by eftpos to the Recipient from time to time.

End Date means the 3rd anniversary of the Commencement Date.

Fault Event means failure or degradation of Services as referenced in the Schedule.

Fees means the fees agreed between the parties in a side letter, which forms part of 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.

Laws means any laws, regulations, regulatory instruments, subordinate legislation, rules, guidance or directions issued by a governmental agency applicable to eftpos or the Recipient.

Materials means all materials provided by the Supplier to eftpos under this Agreement (including methodologies, collateral, templates, ideas, processes, procedures, practices, software, reports, guides, diagrams and techniques).

Personal Information has the meaning in the Privacy Act 1988 C’th.

Project Documents means the documents developed for and from a Standard Hub Direct Connection On-Boarding Workshop between the Recipient and eftpos.

Recipient means an applicant that has submitted to eftpos an application to receive the Services.

Rectification Services means diligently and continuously working to rectify and resolve a Fault Event within the timeframe set out in the Schedule and escalation using the escalation path set out in the Schedule.

Regulatory Event means a change in Law that adversely impacts the continued provision by eftpos or continued receipt by the Recipient of the Services.

Related Body Corporate has the meaning in the Corporations Act 2001 C’th.

Renewal Date means each date from which the Term is renewed in accordance with clause 3.1.

Services means the services specified in the Schedule.

Service Level Credits means an amount equal to 10% of the monthly Fees for the month in which a Service Level failure occurs.

Service Level means the standards of service delivery specified in the Standard Hub Service Schedule.

SOW means a statement of work for additional standard services, constituted by an application for the service by the Recipient, the standard service terms applicable to the relevant service as published by eftpos from time to time and a separate pricing letter signed by both the Recipient and eftpos for the relevant service.

Standard Hub Service Schedule means the document of that name accessible through the eftpos secure portal.

Term means the period between the Commencement Date and the End Date.

Transition Out Services means services ancillary to the Services which are required to affect a smooth transition away from eftpos of the Services, including but not limited to project meetings between eftpos, the eftpos Service Provider and the Recipient’s incoming service provider.

1.2      Interpretation

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.

2          Services and Service Levels

2.1       Services

(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.

2.2      Service Levels and escalations

(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.

(b)         The parties’ relationship management representatives will meet once per quarter, or such other lesser frequency as agreed, to review performance against Service Levels.  If Service Levels are not met in any month, eftpos will:

(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.

2.3       Relationship

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.

3          Term and Termination

3.1       Term

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.

3.2      Termination

(a)      A Termination Event occurs on either party giving 30 days’ notice if:

(i)       any of the parties is in breach of its obligations under the Agreement and such breach is not remedied within 60 days of receipt of notice of breach from the other party; or

(ii)      an Insolvency Event occurs in respect of any other parties; or

(iii)     a Regulatory Event occurs.

(b)        eftpos may terminate this Agreement upon 180 days written notice to the Recipient if eftpos resolve to cease supplying the Services as a business line.

(c)      The Recipient may terminate this Agreement:

(i)     upon 180 days’ written notice to eftpos; or

(ii)   if eftpos fails to meet the same Service Level on 3 consecutive occasions in any rolling 6 month period.

(d)      On termination each party shall return to the other or destroy any Confidential Information of the other party. 

(e)      Termination of this Agreement does not affect any rights accrued prior to termination.

(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.

4          Fees and GST

4.1       Fees

(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.

4.2       Fees and GST

(a)       Any consideration or amount payable under or in connection with this Agreement, including any non-monetary consideration (as reduced in accordance with paragraph (e) if required) (Consideration) is exclusive of GST.

(b)       If GST is or becomes payable on a Supply made under or in connection with this Agreement, an additional amount (Additional Amount) is payable by the party providing consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (in this clause 4.2 only, the Supplier) in accordance with the GST Law.

(c)       The Additional Amount payable under paragraph (b) is payable without set off, demand or deduction at the same time and in the same manner as the Consideration for the Supply, and the Supplier must provide the Recipient with a Tax Invoice within 14 days after the time of payment of the Additional Amount.

(d)       If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.

(e)       Despite any other provision in this Agreement:

(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.

(f)        Any reference in this clause 4.2 to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of a GST Group of which the party is a member is entitled.

(g)       Terms used in this clause have the same meaning as in the GST Law unless otherwise stated.

4.3      Taxes

(a)        Subject to clause 4.2, the Supplier must pay any taxes payable upon, or in respect of, the provision of the Services or the performance of the Supplier’s obligations under this Agreement wherever and however such taxes arise.

(b)        The Recipient may withhold any withholding payments required by law to be withheld.

4.4      Payment of Fees

The Recipient will pay the undisputed amount of each tax invoice within 30 days of receipt of the invoice. 

4.5      Fee disputes

(a)      If there is a genuine dispute about whether all or any part of the Fees or any other amount contemplated by this Agreement is paid or payable, the Recipient may withhold the disputed amount until the dispute is resolved.

(b)       Clause 8 applies to a dispute of the kind referred to in paragraph (a).

(c)       If requested to do so by the Recipient, eftpos must promptly provide the Recipient with sufficient evidence to substantiate any amount invoiced by eftpos under this Agreement that are queried or disputed by the Recipient.

5          Liability Regime

5.1      Implied warranties

(a)       All express or implied guarantees, warranties or conditions relating to this Agreement or its subject matter, not contained in this Agreement, are excluded from this Agreement to the maximum extent permitted by law.

(b)       Nothing in this Agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy implied or imposed by any statute which cannot lawfully be excluded, restricted or modified (a Non-Excludable Condition).

(c)       If a Non-Excludable Condition is implied or imposed in relation to this Agreement and cannot be excluded, and eftpos is able to limit the Recipient’s remedy for a breach of the Non-Excludable Condition, then the liability of eftpos for breach of the Non-Excludable Condition is limited to one or more of the following at the Recipient’s option:

(i)        in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or

(ii)       in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

5.2   Indirect and consequential damages

(a)        Clauses 42.2, 42.3, 42.4, 42.5, 42.6, 42.7 and 42.9 of the eftpos Scheme Rules apply in respect of claims capable of being made under this Agreement as if the Recipient was a Direct Connector as referred to in the eftpos Scheme Rules.

(b)        Specifically, neither party will be liable for:

(i)         any special, indirect, incidental, consequential or punitive damages; or

(ii)        economic loss, loss of profits or loss of any of the following – revenue or clients, goodwill, bargain, anticipated savings, use of products or equipment, software, data or management time,

whether the relevant claim is made for breach of contract, in tort (including negligence), under product liability legislation, under any other statute, under an indemnity or otherwise and whether or not the party was aware or should have been aware of the possibility of such loss or damage.

5.3   Capped liability

Subject to clause 5.2:

(a)        the maximum aggregate liability of the Recipient for all claims, suits, losses, damages, costs and expenses under or relating to this Agreement or its subject matter is limited to the amount of the unpaid Fees; and

(b)        the maximum aggregate liability of eftpos for all claims, suits, losses, damages, costs and expenses under or relating to this Agreement or its subject matter is limited to the Service Level Credits.

6          Confidentiality and privacy

6.1   Confidentiality

Clause 41 of the eftpos Scheme Rules applies to this Agreement.

6.2   Privacy

(a)   This clause applies to any Personal Information provided to, or obtained or accessed by, eftpos in the course of performing its obligations under this Agreement, or otherwise in connection with this Agreement.

(b)   If eftpos collects, uses, discloses, transfers or otherwise handles Personal Information to which this clause applies, it will comply with all applicable Privacy Legislation.

(c)   eftpos will and will ensure that the eftpos Service Provider:

(i)          only use Personal Information to which this clause applies to the extent necessary to perform its obligations in accordance with this Agreement;

(ii)        subject to paragraph (d), not disclose Personal Information to which this clause applies to any other third party without the express, prior written authority of the Recipient or as expressly required by Law;

(iii)        establish, maintain and enforce appropriate policies and procedures, and associated access controls and other technological measures, to ensure that Personal Information to which this clause applies is only accessible to those personnel who require such access for the purpose of performing their duties of engagement;

(iv)       without limiting paragraph (iii), ensure that none of its or their personnel who have access to any Personal Information to which this clause applies use, disclose, transfer or retain such Personal Information except to the extent necessary to perform their duties of engagement;

(v)        co-operate with any of the Recipient’s requests or directions concerning the rights of individuals to access and correct such Personal Information;

(vi)      immediately notify the Recipient after eftpos becomes aware that a disclosure of Personal Information to which this clause applies may be required by Law (including under Privacy Legislation), and, prior to any such disclosure if requested by the Recipient:

A.         assist the Recipient in obtaining a written legal opinion, from a reputable law firm or senior counsel nominated by the Recipient (and for which the Recipient pays), confirming that the disclosure is required by Law; and
B.         assist the Recipient to prevent or limit such disclosure;

(vii)      ensure that any personnel of eftpos who are required to deal with Personal Information to which this clause applies are made aware, through training, of the obligations in this clause;

(viii)    without limiting any of eftpos’ obligations under this clause, or otherwise under this Agreement, not do any act or engage in any practice that would breach any Privacy Legislation, or which, if done by or engaged in by the Recipient, would be in breach of any Privacy Legislation;

(ix)    immediately notify the Recipient if it becomes aware of a breach of this clause; and

(x)     on the termination or expiry of this Agreement for any reason but subject to any requirement of Law to retain such information, destroy or otherwise deal with any Personal Information to which this clause applies in accordance with the directions of eftpos.

(d)     Without limiting any of eftpos’ obligations under this Agreement, eftpos will not transfer any Personal Information outside of Australia unless it complies with this paragraph. If eftpos wishes to transfer any Personal Information outside of Australia (including to a sub-contractor or Related Body Corporate outside of Australia), eftpos will, prior to transferring any Personal Information:

(i)       provide to the Recipient all relevant information relating to the proposed transfer, including the country and any including to a sub-contractor or Related Body Corporate to which the Personal Information is intended to be transferred, a detailed description of the Personal Information that is intended to be transferred and the purpose for which such transfer is required; and

(ii)     obtain the Recipient’s prior written approval to the transfer. The parties agree that eftpos may transfer Personal Information to the eftpos Service Provider located in the United States of America, which has entered into a written agreement with eftpos that reflects the eftpos obligations of privacy under this Agreement. As part of considering whether to give such approval for eftpos to transfer Personal Information to any other entity than the eftpos Service Provider, the Recipient will require eftpos to satisfy the Recipient that a written agreement and appropriate arrangements have been put in place (including between the Supplier and any sub-contractor or Related Body Corporate to whom the Personal Information will be transferred) to ensure that the handling of Personal Information will at all times be conducted in accordance with this clause.

(iii)     If an individual whose Personal Information is received by eftpos makes a request to eftpos to access their Personal Information, eftpos will immediately notify the Recipient and, subject to any other instructions from the relevant individual, consult with the Recipient about the access and comply with the Recipient’s privacy policy (including the relevant time periods) when providing access.

(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.

7          Intellectual Property

Clause 45 of the eftpos Scheme Rules applies to this Agreement.

8          Dispute resolution

(a)       If any bona fide dispute arises between the parties under or in relation to this Agreement, before commencing any action or court proceeding, the party raising the dispute must give a notice to the other party setting out reasonable particulars of the dispute (Dispute Notice).  Both parties’ contract representatives must then meet within 10 Business Days of the date of the Dispute Notice to discuss in good faith and attempt to resolve the dispute.

(b)       If both parties’ contract representatives are unable to resolve the dispute under paragraph (a) within 15 Business Days of the date of the Dispute Notice, each party must nominate a senior executive who has express authority to resolve the dispute.  Each party’s nominated senior executives must then meet with 20 Business Days of the date of the Dispute Notice to discuss in good faith and attempt to resolve the dispute.

(c)       If the senior executives nominated under paragraph (b) are unable to resolve the dispute within 30 Business Days of the date of the Dispute Notice, either party may initiate court proceedings.

(d)       Nothing in this clause 8 prevents either party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction over such action or proceeding.

(e)        The parties will continue performing their respective obligations under this Agreement while the dispute is being resolved, unless and until such obligations are terminated or expire in accordance with this Agreement.

(f)         Each party must bear its own costs of complying with this clause 8.

9          General

9.1       Consents and approvals

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.

9.2       Constitution of 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.

9.3       Costs, expenses and duties

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.

9.4       Indemnities

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.

9.5       Cumulative rights

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.

9.6    Entire agreement

(a)       This Agreement, together with documents incorporated by reference into this Agreement, is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.

(b)       Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.

9.7    Governing law and jurisdiction

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.

9.8    Notices

Clause 43 of the eftpos Scheme Rules applies to this Agreement.

9.9     Survival and merger

(a)       No term of this Agreement merges on completion of any transaction contemplated by this Agreement.

(b)       Clauses 3.2(d), (e) and (f), 4, 5, 6, 8 and 9 survive termination or expiry of this Agreement together with any other term which by its nature is intended to do so.

9.10   Severability

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.

9.11   No third party rights

Except as expressly provided in this Agreement:

(a)       each person who enters this Agreement does so solely in its own legal capacity and not as agent or trustee for or a partner of any other person; and

(b)        only those persons who execute this Agreement have a right or benefit under it.

9.12   Variation and waiver

(a)        eftpos may vary these terms and conditions through publication of a new version of the terms and conditions on the eftpos website.  The changed terms and conditions apply 30 days after publication on the eftpos website without further notice from eftpos to the Recipient, except in respect of changes to clauses 3, 4 and 5 which will only be changed following consultation with participant ATM direct connectors to the eftpos Hub through the ATM Working Group held by eftpos and eftpos Member representatives for participant ATM direct connectors to the eftpos governance committee called Member Advisory Committee.  No variation of the Fee Letter is effective unless made in writing and signed by each party.

(b)        No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.

(c)        A single or partial exercise of a right or remedy under this Agreement does not prevent a further exercise of that or of any other right or remedy.

(d)        Failure to exercise or delay in exercising a right or remedy under this Agreement does not operate as a waiver or prevent further exercise of that or of any other right or remedy.

9.13     Further assurances

(a)       Each party must do all things and execute all further documents necessary to give full effect to this Agreement.

(b)       Where this Agreement requires eftpos to certify a matter, the certification must be in writing and delivered to the Recipient.

(c)       A certification given under this Agreement is a representation and warranty of the matter certified and binds eftpos in the same way as a representation and warranty expressly stated in this Agreement.



 


Schedule 1     Details

Item number

Item

Details

1

Commencement Date

The effective date stated in the Fee Letter.

2

Services

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.

3

Service Levels

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

4

Fault Event

See table below

 

Priority level **

Severity level

Description and example

Initial response or notification to Direct Connector*

Target Fix or resolution time*

Update frequency

1

Extreme

Total system failure where the eftpos Hub BCP/DRP is invoked;

Security incident;

Data breach

15 mins

1 hour

hourly

2

High

500 or more transactions in aggregate impacted resulting in transactions timing out within a single 24 hour period;

A reporting/settlement issue with a value greater than $200,000 occurs;

Security incident;

Data breach

30 mins

2 hours

hourly

3

Moderate

Less than 500 transactions in aggregate impacted resulting in transactions timing out within in a single 24 hour period;

A reporting/settlement issue with no monetary/service impact;

Security incident;

Data breach.

Repeat Priority 2 incidents may be deemed a Priority 1 incident.

 

1 hour

1 Business Day

4 hours

4

Low

New release

1 hour

New release

N/A

 

* 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

5

Escalation

path

First contact eftpos

Escalation contact eftpos

 

 

Level 1:

eftpos Member Support

1300 650 831

eMS@eftposaustralia.com.au

 

Escalation level 2:

Executive Manager, Payments IT and Operations

David Menghe

8270 1883

DMenghe@eftposaustralia.com.au

Escalation level 3:

Chief Technology Officer

Paul Jennings

8270 1871

PJennings@eftposaustralia.com.au


Schedule 2     Change to Technical, Operational and Security Rules for ATM processing services

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 9.1.2.1 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 9.1.2.1, 9.1.2.2, 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 9.1.2.1 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.