Terms & Conditions

1. About this Service Schedule

   • This POS Solution Service Schedule (this Service Schedule) applies with respect to the following items of a myPOS Zero POS Solution that we agree to supply to you:
     • myPOS Zero Hardware;
     • myPOS Zero Software;
     • myPOS Zero Payments Solution;
     • Initial Training Services; and
     • Support Services.
   • The specific components of the myPOS Zero POS Solution that we agree to supply to you are specified in the Accepted Quotation.
   • This Service Schedule must be read in conjunction with the Accepted Quotation, our Terms of Service and the other documents that comprise the Agreement.
   • In this Service Schedule, any reference to a clause is to a clause of this Service Schedule unless otherwise specified.

2. myPOS Zero Payments Solution

   • You acknowledge that in order to be approved by us for use of the myPOS Zero Payments Solution (Approval), you must:
     • complete the Payment Processor’s Merchant Application;
     • provide all requested documents and information to, and complete all other Payments Solution Onboarding Requirements of, the Payment Processor to the Payment Processor’s satisfaction;
     • complete any further onboarding or approval requirements and provide any documents or information, required by us to our satisfaction;
     • execute a binding Payment Processor Agreement between you and the Payment Processor; and
     • notify us when you are in possession of a fully executed Payment Processor Agreement.
   • We will notify you in writing if and when you have been granted Approval. We reserve the right to refuse Approval for access to the myPOS Zero Payments Solution, in the event that you have not complied with clause 1.
   • If you do not obtain Approval for access to the myPOS Zero Payments Solution, we may terminate the Agreement, without liability.
   • If you obtain Approval for access to the myPOS Zero Payments Solution, then during the Term, we will, within a reasonable period after receipt of written notice from you that includes any evidence confirming that you have made the relevant payments (in Australian dollars), reimburse you for any and all Payments Hardware rental fees and charges (excluding GST) that have been reasonably incurred and actually paid by you to the Payment Processor.

3. Implementation Plan

   • We will provide you with a short Implementation Plan for the implementation of the myPOS Zero POS Solution at the Site(s) which includes:
     • date(s) for pre-install inspection(s) of the Site(s) where we consider such inspection(s) to be necessary;
     • Site preparation requirements that you must comply with;
     • dates by which we will aim to deliver and install the myPOS Zero Hardware at the Site(s);
     • dates by which we will aim to deliver, and you and/or we will install and configure the myPOS Zero Software at the Site(s);
     • subject to Approval, the dates by which the Payment Processor has advised us it will aim to deliver and install the Payments Hardware at the Site(s);
     • subject to Approval, the dates by which the Payment Processor has advised us it will aim to install and setup the Payments Software to be accessed from the Payments Hardware at the Site(s) and configure the myPOS Zero Payments Solution;
     • dates by which you and/or we will aim to configure the myPOS Zero Software to be accessed from the myPOS Zero Hardware or Other Hardware at the Site(s) as specified in the Accepted Quotation;
     • dates by which you and/or we will aim to integrate the myPOS Zero Hardware, Other Hardware, myPOS Zero Software, Customer Software and subject to Approval, the Payment Processing System, to the extent specified in the Accepted Quotation;
     • subject to Approval, a date by which we will aim for the myPOS Zero POS Solution to be Ready for Service; and
     • any other particulars of the implementation that we wish to include in the Implementation Plan.
   • You must prepare the Site(s) in accordance with any requirements set out in the Implementation Plan or that we otherwise notify you of. You will also be responsible for ensuring that all Customer Software and Other Hardware is installed, set up, configured, fit for purpose, in working order and available to us, and that all internet connections and network connections (including Wi-Fi networks) are complete and operational, no later than the relevant date(s) specified in the Implementation Plan.
   • Each party must use reasonable endeavours to comply with the Implementation Plan.
   • There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one of more of the following events occur:
     • you and we agree to a change to the Implementation Plan or any part of the myPOS Zero POS Solution;
     • a shipping or Third Party Provider delay occurs, or another Force Majeure Event occurs, that prevents you or us from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan; or
     • an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.
   • For any extension of time the subject of clause 4:
     • we will negotiate with you an amended version of the Implementation Plan; and
     • we will provide you with a copy of the agreed amended Implementation Plan.
   • You must:
     • ensure that all myPOS Zero Hardware, Payments Hardware and Other Hardware is installed and kept at the Site(s), under suitable conditions, as specified in any applicable Operating Manuals, and that you follow any operating instructions as we, or the Payment Processor as it relates to the Payments Hardware, may give from time to time;
     • at all reasonable times permit full and free access to the Site(s) and to the myPOS Zero POS Solution to us and Our Personnel and provide us and them an adequate and safe working space, and any telecommunications facilities as are reasonably required to enable us to perform Requested Services while at the Site(s); and
     • take any steps reasonably necessary to ensure the safety of Our Personnel when attending the Site(s).

4. Implementation management

   • You will notify us of the name and qualifications of the person appointed as your Project Coordinator upon request by us.
   • You must ensure that your Project Coordinator co-operates with our Implementation Coordinator and attends meetings scheduled by the Implementation Coordinator to advise and assist on all matters relating to the implementation of the myPOS Zero POS Solution at the Site(s) requested by the Implementation Coordinator.
   • We will not replace the Implementation Coordinator unless:
     • the individual to be replaced is prevented by ill-health from carrying out his or her duties in connection with the Agreement for a significant period;
     • the individual resigns from our employment; or
     • the contract of employment of the individual or the relevant contractor agreement is terminated.
   • You agree that your Project Coordinator will not be replaced before the Target Implementation Completion Date without notice to us, unless:
     • the individual to be replaced is prevented by ill-health from carrying out his or her duties in connection with the Agreement for a significant period;
     • the individual resigns from your employment;
     • the contract of employment of the individual is terminated; or
     • we make a reasonable, written request to you to replace the individual because he or she has in our opinion performed unsatisfactorily or has caused a breach of any of your obligations under the Agreement howsoever arising.
   • In the event that your Project Coordinator is replaced, you must consult with the Implementation Coordinator regarding the suitability of any replacement and ensure that the replacement person is suitably appraised of the progress of the implementation and where required by us, undergoes any “catch-up” training required by us at our hourly rates then in effect to ensure that the replacement does not result in any delay in the Implementation Work.

5. Site Preparation

   • You must provide all cabling, cabinet works (holes through benchtops, access holes for cables, installation of brackets etc.) and carry out all other works and provide all other equipment needed to prepare the Site(s) for the installation of the myPOS Zero Hardware and Payments Hardware, including any equipment needed to connect and interface the myPOS Zero Hardware and Payments Hardware with any Other Hardware at the Site(s).

6. 
   

   Acceptance of myPOS Zero Hardware

   • The myPOS Zero Hardware may come with guarantees that cannot be excluded under the ACL.
   • In addition to any non-excludable guarantees that may apply to myPOS Zero Hardware under the ACL and any other Applicable Law, we warrant that the myPOS Zero Hardware supplied by us under the Agreement will:
     • upon delivery by us to the Site(s), conform to the Specifications and be free from material defects in design, material and workmanship and will remain so free of material defects for a period of 12 months provided that the myPOS Zero Hardware is used in accordance with the Documentation and none of the events listed in clause 5 apply; and
     • upon us confirming that the myPOS Zero POS Solution is Ready for Service, be of merchantable quality and in Good Working Order.
   • Other than with respect to any non-excludable guarantees that apply to the myPOS Zero Hardware under the ACL and other Applicable Law and the warranties set out in clause 2, all implied rights, representations, guarantees, conditions, warranties, undertakings and other remedies that you may otherwise have in relation to the myPOS Zero Hardware are waived and excluded from the Agreement, to the maximum extent permitted by law.
   • You may reject as defective any myPOS Zero Hardware delivered to the Site(s) that does not comply with the express warranties set out in clause 2, provided that:
     • you give us written notice of rejection:
   • in the case of a defect that is apparent on normal visual inspection, within 20 Business Days of delivery of the myPOS Zero Hardware to the Site(s);
   • in the case of a latent defect that occurs within 40 Business Days of delivery to the Site(s), within 20 Business Days after the time when the latent defect become apparent; and
     • none of the events listed in clause 5 apply.
   • We are not liable for any loss, damage or malfunction of any myPOS Zero Hardware (or a failure of any myPOS Zero Hardware to comply with any warranty set out in clause 2) as a result of fair wear or tear, or as a result of any of the following events:
     • You, Your Personnel or any third party make any further use of that myPOS Zero Hardware after giving notice in accordance with clause 4;
     • a defect arises because you, Your Personnel or any third party has failed to follow our (or the manufacturer’s) oral or written instructions for the storage, commissioning, installation, use or maintenance of the myPOS Zero Hardware or best industry practice;
     • a defect arises as a result of us following any drawing, design or specification supplied by you or Your Personnel;
     • you, Your Personnel or any third party alters or repairs the myPOS Zero Hardware without our prior written consent;
     • you or Your Personnel losing the myPOS Zero Hardware;
     • theft of myPOS Zero Hardware from any Site; or
     • a defect arises as a result of your, Your Personnel’s and/or any third party’s wilful or accidental damage, negligence, or abnormal storage or working conditions.
   • You must indemnify us from and hold us harmless from and against all and any loss and/or damage that we incur as a result of any of the events listed in clause 5, including, where applicable the cost of replacing or repairing any lost myPOS Zero Hardware or damage to the myPOS Zero Hardware, except to the extent that it was caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement.
   • If you reject myPOS Zero Hardware under clause 4 then we may, at our option:
     • replace the rejected myPOS Zero Hardware or supply equivalent goods;
     • repair the rejected myPOS Zero Hardware;
     • reimburse you for the cost of replacing the rejected myPOS Zero Hardware or of acquiring equivalent goods;
     • reimburse you for the cost of repairing the rejected myPOS Zero Hardware;
     • if you have not paid the Price to us for the rejected myPOS Zero Hardware, release you from any obligation to pay the Price for the rejected myPOS Zero Hardware; or
     • if you have already paid the Price for the rejected myPOS Zero Hardware, refund to you the Price for the rejected myPOS Zero Hardware, subject to you first restoring unencumbered title to the rejected myPOS Zero Hardware to us.
   • Once we have complied with clause 7, we are not liable to you, and you will have no further remedy arising out of or in connection with the rejected myPOS Zero Hardware’s failure to comply with clause 6.2.
   • If we breach any guarantee under the ACL that applies to the supply of the myPOS Zero Hardware to you, you may exercise your rights under the ACL instead of exercising your rights under clause 4, and in such circumstances you will not be entitled to exercise your rights under that clause. Where our liability for breach of any guarantees under the ACL or any other Applicable Law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of services again or the cost of re-supplying the services again.
   • Nothing in clause 4 limits your applicable rights under the ACL to make a claim in respect of a non-excludable guarantee under the ACL.
   • The terms of the Agreement apply to any repaired or replacement myPOS Zero Hardware supplied by us.

7. Your obligations in relation to the myPOS Zero Hardware

   • You must not make any representation or give any warranty in relation to the myPOS Zero Hardware not expressly authorised by us in writing.
   • You must:
     • promptly inform us of all material complaints or claims in relation to the myPOS Zero Hardware;
     • not admit liability on our behalf in respect of any complaint or claim in relation to the myPOS Zero Hardware; and
     • not resolve or settle any complaint or claim in relation to the myPOS Zero Hardware, including where doing so may result in us or our Related Bodies Corporate incurring any liability to any party.

8. Title to the myPOS Zero Hardware

   • Words and phrases used in an Agreement that have defined meanings in the PPSA have the same meaning as in the PPSA, unless the context indicates otherwise.
   • Clauses 4 – 8.9 and clauses 10, 11 and 12 do not apply to any myPOS Zero Hardware whose title has passed to you.
   • Unless otherwise expressly agreed in writing by us, title to any myPOS Zero Hardware will not pass to you at any time.
   • You must not sell or otherwise dispose of the myPOS Zero Hardware:
     • during the Term; or
     •  
   • You must keep the myPOS Zero Hardware separately stored and marked as our property.
   • During the Term (and thereafter), you must not do any of the following in relation to any of the myPOS Zero Hardware without our express prior written consent:
     • create or allow any interest (except a security interest in our favour) in, or dispose or part with possession of, the myPOS Zero Hardware;
     • allow the myPOS Zero Hardware to be removed from any Site;
     • allow the myPOS Zero Hardware to become an accession to or commingled with any other property; or
     • grant any security interest in relation to the myPOS Zero Hardware, without our prior written consent.
   • If you deal with the myPOS Zero Hardware in contravention of clause 6, without limiting any other rights or remedies available to us, you will hold the proceeds of any sale or disposal of the myPOS Zero Hardware, and in all other circumstances an amount equalling the replacement cost of the myPOS Zero Hardware, on trust for us.
   • Where we supply any myPOS Zero Hardware to you, you:
     • are a bailee of the myPOS Zero Hardware;
     • irrevocably appoint us to be your attorney to do all acts and things necessary to ensure the retention of our title to the myPOS Zero Hardware including the registration of any security interest in our favour with respect to the myPOS Zero Hardware under Applicable Law;
     • must separate the myPOS Zero Hardware from other goods which are held by you;
     • must affix labels to the myPOS Zero Hardware that state that the myPOS Zero Hardware is owned by us;
     • must not register any security interest in your favour with respect to the myPOS Zero Hardware or allow any third party to have or acquire any security interest in the myPOS Zero Hardware; and
     • agree that we may retake possession of (and deal with, in our discretion) the myPOS Zero Hardware if payment of any Fees is not made in accordance with the Payment Terms (or such longer time as we may, in our complete discretion, approve in writing).
   • You grant us and our representatives an irrevocable licence to enter any land or premises for the purpose of inspecting, retaking possession of or otherwise enforcing our rights in respect of, myPOS Zero Hardware (including by breaking any locks, doors and windows as required to access any myPOS Zero Hardware and dismantling anything to which the myPOS Zero Hardware has been fixed) and hereby indemnify and hold us harmless from and against any claims for damage to property or personal injury that may result from us or our representatives exercising any rights under the licence referred to in this clause 9, except to the extent caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement. If we retake possession of any myPOS Zero Hardware, we may deal with it as we think fit.

9. Insurance

   • You must, at your own cost and expense, obtain and maintain during the Term of the Agreement, the following insurances:
     • insurance covering the myPOS Zero Hardware against all risks of loss, including theft and damage, for its full replacement value;
     • workers compensation insurance covering liability for your employees; and
     • public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim.

10. Registration on the PPSR

    • Each Agreement is a security agreement for the purposes of the PPSA. You hereby acknowledge that you have granted us a security interest in the myPOS Zero Hardware and their proceeds.
    • You consent to us perfecting any security interest arising in connection with an Agreement by registering a financing statement on the PPSR and any other applicable security registers in any manner we consider appropriate. You agree to do anything we reasonably ask to ensure that the security interest:
      • is enforceable, perfected and otherwise effective; and
      • has priority over all other security interests.

11. Contracting out of enforcement and notice provisions

    • You waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA unless the notice is required by the PPSA and cannot be excluded.
    • You agree not to exercise your rights to make any request of us under section 275 of the PPSA. This does not limit your rights to request information other than under section 275 of the PPSA. Neither you nor we will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.
    • To the extent permitted by law, you and us contract out of and you waive your rights under the following provisions of Chapter 4 of the PPSA:
      • section 95 (notice of removal of accession), to the extent that it requires us to give a notice to you;
      • section 96 (when a person with an interest in the whole may retain an accession);
      • section 121(4) (enforcement of liquid assets – notice to grantor);
      • section 125 (obligation to dispose of or retain collateral);
      • section 130 (notice of disposal), to the extent that it requires us to give a notice to you;
      • section 132(3)(d) (contents of statement of account after disposal);
      • section 132(4) (statement of account if no disposal);
      • section 142 (redemption of collateral); and
      • section 143 (reinstatement of security agreement).

12. Changes in your details

    • You must notify us at least 14 days before you:
      • change your name;
      • change your place of registration or incorporation; or
      • change or apply for an Australian Company Number, Australian Business Number, Australian Registered Body Number or Australian Registered Scheme Number.
    • You must notify us if anything mentioned in clause 1 occurs immediately on becoming aware of it.

13. myPOS Zero Software and documentation

    • We will use reasonable endeavours to install the myPOS Zero Software on applicable myPOS Zero Hardware or Other Hardware by the Target Implementation Completion Date, in accordance with the Implementation Plan.
    • Where any of the myPOS Zero Software or Customer Software installed on any applicable myPOS Zero Hardware or Other Hardware includes Third-Party Software, the Third-Party Software will be subject to Third Party Licences, copies of which will be provided to you, and you agree to be bound to the relevant third parties by such Third Party Licences.
    • We will provide to you from time to time copies of the Documentation containing sufficient up-to-date information for the proper use of the myPOS Zero POS Solution. Such Documentation may be supplied in electronic form.
    • Any Open-Source Software provided by us may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, and if and to the extent permissible by Applicable Law, is provided “as is”.

14. Monthly Revenue Commission and Audit

    • Within 7 days’ of the end of each full month (not calendar month) during the Term, you must notify us in writing as to your Monthly Actual Turnover for the preceding full month (not calendar month) during the Term, together with copies of all records reasonably required by us to substantiate the calculation of your Monthly Actual Turnover for the preceding full month during the Term (not calendar month) (each, a Monthly Report).  
    • Following receipt of each Monthly Report, we will issue a tax invoice to you in the amount of the Monthly Revenue Commission (if any) that is due and payable by you in respect of the preceding full month (not calendar month) and you must pay each such invoice in accordance with the Payment Terms.
    • During the Term and for a period of six (6) years thereafter, you must retain true and accurate records in connection with your Monthly Actual Turnover during the Term.
    • If at any time, you become aware of any over or under-calculation of your Monthly Revenue Commission due to us under this Agreement, you will promptly notify us of such undercalculation and provide us with an updated Monthly Report in respect of the month when such undercalculated Monthly Revenue Commission should have been earned. Upon receipt of the updated Monthly Report, we may issue a tax invoice to you in the amount of the undercalculation of the Monthly Revenue Commission due to us, which must be paid by you in accordance with the Payment Terms.
    • Subject to your reasonable confidentiality requirements, we (or a third party on our behalf) shall at any time on seven (7) days’ notice, but in no event more than once in any 12 month period, have the right to conduct an audit of your books, records and accounts to assess its compliance with this clause 14 (Audit). In the event of an Audit, you will comply with our reasonable requests for you to provide access to all books, records and accounts necessary to the Audit.
    • Each party shall bear its own costs in connection with any Audit, unless the Audit reveals that you have undercalculated any Monthly Revenue Commission, in which case our costs of the Audit shall be borne by you and shall become immediately due and payable upon demand.

15. 
    

    Change of Payment Processing System

    • We may, during the Term, by written notice to you (New Payment Processor Notice), nominate a new Payment Processor (New Payment Processor) for the supply of the Payment Processing System to you.
    • If we give you a New Payment Processor Notice, then subject to clause 4, you must within 90 days of the New Processor Notice:
      • complete the New Payment Processor’s Merchant Application that we notify you of;
      • provide all requested documents and information to, and complete all other Payments Solution Onboarding Requirements of, the New Payment Processor to the New Payment Processor’s satisfaction;
      • execute a binding New Payment Processor Agreement between you and the New Payment Processor; and
      • notify us when you are in possession of a fully executed New Payment Processor Agreement with the New Payment Processor.
    • Subject to clause 2, we will notify you in in writing if and when you have been granted Approval for use of the Payment Processing System offered by the New Payment Processor.
    • If we give you a New Payment Processor Notice and you reasonably consider that:
      • the New Payment Processor Agreement; and
      • the functionality of the Payment Processing System offered by the New Payment Processor,

when, taken as a whole, and compared to:

• the then-current Payment Processor Agreement; and
• the functionality of the then-current Payment Processing System offered by the then-current Payment Processor,

would cause you financial or other detriment, then you must notify us accordingly within 90 days of the New Payment Processor Notice (Detriment Notice).

• Any Detriment Notice must include:
  • reasonable supporting evidence of the detriment that would allegedly be suffered by you; and
  • any other supporting evidence that we may reasonably require to assess the alleged detriment.
• Following any Detriment Notice provided to us, we may, by written notice to you:
  • withdraw the New Payment Processor Notice to which the Detriment Notice related, in which case the parties will proceed as if that New Payment Processor Notice was not given; or
  • confirm that the New Payment Processor Notice to which the Detriment Notice related stands, in which case you must within 90 days of such notice, complete the items at clause 2(a)-15.2(d) and then we will notify you in writing if and when you have been granted Approval for use of the Payment Processing System offered by the New Payment Processor.
• In the event that we issue a confirmation under clause 6(b), you may, within 90 days of such notice, terminate the Agreement.
• Subject to Approval for use of the Payment Processing System offered by the New Payment Processor being granted, we will provide you with a short Implementation Plan for the implementation of the Payment Processing System offered by the New Payment Processor at the Site(s), including a Target Implementation Completion Date, and each party must use reasonable endeavours to comply with the Implementation Plan.
• There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one of more of the following events occur:
  • a shipping or New Payment Processor delay occurs, or another Force Majeure Event occurs, that prevents you or us from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan;
  • one or more delays are caused in whole or in part by any of your acts or omissions, or those of Your Personnel;
  • an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.
• For any extension of time the subject of clause 9:
  • we may amend the Implementation Plan; and
  • we will provide you with a copy of the amended Implementation Plan.

16. Early termination fees

    • If this Agreement is terminated prior to the expiry of the Term (other than due to our breach or because you terminated the Agreement in accordance with clauses 12.2, 15.1 or 15.2 of the Terms of Service or in accordance with clause 7 of this Service Schedule), you will pay us an ETF, calculated as follows: ETF = Monthly Qualification Amount x the number of full months (not calendar months) remaining during the Term x 0.5%.

17. Change control

    • You may, by giving written notice to us at any time during the Term, request a change to the myPOS Zero POS Solution.
    • We may (but are not obliged to):
      • prepare a fee estimate for the implementation of the change at our standard rates then in force (if we offer to implement the changes on a time and materials basis); or
      • prepare a written quote for the implementation of the change (if we offer to implement the change at a fixed price);
      • prepare a quote for any increase or decrease in the Price; and
      • notify you of any effect that the requested change may have on the Implementation Plan.
    • You must inform us in writing of whether or not you wish the requested change to be made. No change will be implemented or deemed to have been agreed unless it is agreed by you and us in writing.
    • We specifically deny any implied or express representation that the myPOS Zero POS Solution will be fit to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with the myPOS Zero POS Solution.

18. Your obligations in relation to the myPOS Zero POS Solution

    • You are responsible for all and any acts and omissions of your Personnel and Licensed Users, as if they were the acts and omissions of you.
    • You must comply with the Payment Processor Agreement then in place between you and the Payment Processor.
    • You must comply with Applicable Laws relating to card surcharging, including the Reserve Bank of Australia Standard No. 3 of 2016 and any replacement or update thereto. You acknowledge and agree that any change in the Applicable Law relating to card surcharging does not and will not vary your obligation under the Agreement to pay the Fees in accordance with the Payment Terms.
    • We may treat your breach of any Payment Processor Agreement as a breach of the Agreement.
    • You must:
      • promptly inform us of all material complaints or claims in relation to the myPOS Zero POS Solution; and
      • not admit liability on our behalf in respect of any complaint or claim in relation to the myPOS Zero POS Solution.
    • You must not, and must not permit any other person to, install any payments hardware, including any terminal, at the Site(s) that is supplied by a third party other than the then-current Payment Processor.
    • Without limiting any other provisions of this Agreement, you:
      • are responsible for payment of any Merchant Deposit to the Payment Processor;
      • are responsible for the payment of all Refunds and Chargebacks and any costs or expenses related to same;
      • are responsible for complying with the Scheme Rules and payment of any and all fines and penalties levied by a Scheme Owner that is caused by your acts or omissions or those of your Licensed Users and/or the Account Holders;
      • must comply with your legal obligations to your customers, including with respect to the delivery of goods or services to customers; and
      • must comply with all applicable laws, industry codes and rules that apply to Your Business.
    • It is your responsibility to ensure that you are aware of, accept and comply with the Scheme Rules including any updates to same from time to time.
    • You must not make any representation or give any warranty in relation to the myPOS Zero POS Solution, or any part of it, that is not expressly authorised by us in writing.
    • You must provide the then-current Payment Processor with any documents or information requested by it in order for it to perform any Know Your Customer and/or Anti-Money Laundering and Anti-Terrorist Financing checks and verifications requested by it, to its satisfaction, including in connection with a specific Transaction.
    • You warrant that all documents and information provided by you in accordance with clauses 1, 15.2 and 18.10 are complete, true and correct.
    • We may immediately terminate and/or suspend your access to all or some of the myPOS Zero POS Solution, or terminate the Agreement, without further liability to you:
      • if you do not use the myPOS Zero Payments Solution to process a Transaction for more than 30 days at any time;
      • if the then-current Payment Processor Agreement between you and the Payment Processor is terminated or expires other than in circumstances referred to in clause 7;
      • if our agreement in place with the then-current Payment Processor is terminated or expires; and/or
      • where we are otherwise permitted to do so under the Agreement.
    • You acknowledge that the integrity of the myPOS Zero POS Solution is protected by technical protection measures to prevent Intellectual Property Rights, including copyright, in the myPOS Zero POS Solution from being misappropriated (TPMs).
    • You must not attempt, and ensure that your Licensed Users do not attempt, to remove or circumvent any TPM in the Payments Solution.
    • You must comply with, and ensure that your Licensed Users comply with, any security procedures, policies and standards that we notify you of from time to time with respect to access and use of the myPOS Zero POS Solution.

19. Ownership

    • As between you and us, all of the Intellectual Property RIghts and all other right, title and interest in the myPOS Zero Software are, and will remain, our (or our licensors’) sole property (irrespective of whether the myPOS Zero Software is installed on any myPOS Zero Hardware or Other Hardware and whether or not you own the hardware on which it is installed), and we reserve the right to commercialise the myPOS Zero Software (in whole or in part) in any way we deem fit, including by granting licences to use the myPOS Zero Software to any other party or parties.
    • As between you and us, all of the Intellectual Property Rights in the configuration of the myPOS Zero POS Solution are, and will remain, vested solely in us, are our (or our licensors’) sole property and we reserve the right to commercialise the myPOS Zero POS Solution (in whole or in part) in any way we deem fit, including by replicating the configuration thereof for any other party or parties.
    • As between you and us, the myPOS Zero Software, the configuration of the myPOS Zero POS Solution, the Documentation and Implementation Plan are proprietary to us or our licensors and you acquire no rights in or to them other than those rights that may be expressly granted to you under an Agreement.
    • You must prevent any infringement of our or our licensors’ Intellectual Property Rights in the myPOS Zero POS Solution, Documentation and Implementation Plan in your possession or control and will promptly report to us any such infringement that comes to your attention. In particular, you will:
      • ensure that each Licensed User, before commencing use of the myPOS Zero Software, is made aware that the myPOS Zero Software is proprietary to us and that it may only be used and copied in accordance with the Agreement;
      • implement suitable disciplinary procedures for, and immediately notify us of, any Licensed User who makes unauthorised use or copies of the myPOS Zero Software, except as provided for in clause 1;
      • ensure that your network is secured so as to prevent unauthorised access and use of the myPOS Zero Software; and
      • not permit third parties to have access to the myPOS Zero Software without our prior written consent, which may require that such third parties execute a written confidentiality agreement in our favour on terms approved by us, before being given access to the myPOS Zero Software.

20. 
    

    myPOS Zero Software Licence (for the on-premises components of the myPOS Zero Software)

    • Clauses 20 and 21 only applies to the extent a Accepted Quotation specifies that we will provide components of the myPOS Zero Software for installation on myPOS Zero Hardware or Other Hardware at one or more Site(s).
    • We hereby grant you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable licence for Licensed Users to use the on-premises components of the myPOS Zero Software on the applicable myPOS Zero Hardware or Other Hardware, specified in the Accepted Quotation, in accordance with the Implementation Plan and the Documentation, to manage your point of sale transactions at the Site(s) and for the other purposes set out in the Documentation (collectively, the Licensed Purposes).
    • If you transfer the whole of Your Business permanently from any Site to another Site, the on-premises components of the myPOS Zero Software may be used at the other Site by Licensed Users, provided that we are informed in writing of the change of Site before use of the on-premises components of the myPOS Zero Software commences at the new Site.
    • If the myPOS Zero Hardware or Other Hardware that the on-premises components of the myPOS Zero Software is installed on becomes inoperable for any reason, the on-premises components of the myPOS Zero Software may be temporarily used (for up to 30 days) on backup equipment at the Site that we approve until the applicable myPOS Zero Hardware or Other Hardware is repaired.
    • You must comply with the Third Party Licences
    • We may treat your breach of any Third Party Licence as a breach of the Agreement.

21. 
    

    Transfer or reproduction of myPOS Zero Software

    • You may make one copy of the on-premises components of the myPOS Zero Software for the purposes of backup and security. You have no right to make, or authorise the making of, any other copies of the on-premises components of the myPOS Zero Software without our prior written consent.
    • We will at all times own all copies of all or any part of the on-premises components of the myPOS Zero Software. For copies recorded on a tangible medium, you will place on each copy of all or any part of the on-premises components of the myPOS Zero Software a clearly visible label indicating that the copy is our property and reproducing our proprietary rights notice. For electronic copies, you will ensure that all proprietary notices contained in the on-premises components of the myPOS Zero Software will be maintained in such copies and will display when the software is run, in the same way as in the case of the on-premises components of the myPOS Zero Software as supplied by us. You will keep all copies of the on-premises components of the myPOS Zero Software in a secure place when not in use and will, at all times, keep all such copies in your possession or control.
    • Nothing in the Agreement gives you any rights to access any Source Code in the on-premises components of the myPOS Zero Software.

22. Software Limits and Restrictions

    • You will not:
      • license, sub-license, rent, lend, assign or transfer in any other way your rights under an Agreement with respect to the on-premises components of the myPOS Zero Software to any person without our prior written consent; and/or
      • give any person access to the on-premises components of the myPOS Zero Software (whether through any network of computers or otherwise) who is not your Licensed User.

23. myPOS Zero SaaS Software (for cloud-based components of the myPOS Zero Software solutions)

    • This clause 23 only applies to the extent a Accepted Quotation specifies that we will make components of the myPOS Zero Software available to you on a “cloud basis” or that is hosted by or on our behalf on a server not at the Site(s).
    • We grant to you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable right for your Licensed Users to access the cloud-hosted components of the myPOS Zero Software from the applicable myPOS Zero Hardware or Other Hardware at the Site(s), specified in the Accepted Quotation, in accordance with the Specifications and the Documentation, for the Licensed Purposes.
    • We undertake to use reasonable endeavours to host or procure the hosting of the cloud-based components of the myPOS Zero Software the subject of the myPOS Zero Licence.
    • If you transfer the whole of Your Business permanently from any Site to another Site, the cloud-based components of the myPOS Zero Software may be used from the applicable myPOS Zero Hardware or Other Hardware, specified in the Accepted Quotation, from the other Site by the Licensed Users, provided that we are informed in writing of the change of Site before use of the cloud-based components of the myPOS Zero Software commences at the other Site.
    • If the myPOS Zero Hardware or Other Hardware that the cloud-based components of the myPOS Zero Software is operated from at a Site becomes inoperable for any reason, the cloud-based components of the myPOS Zero Software may be temporarily used (for up to 30 days) from backup equipment at the Site that we approve until the applicable myPOS Zero Hardware or Other Hardware is repaired.
    • You must comply with the Third Party Licences.
    • We may treat your breach of any Third Party Licence as a breach of the Agreement.
    • Notwithstanding any other provisions of the Agreement, you have no right or licence to download or install the cloud-based components of the myPOS Zero Software on any computer or device.

24. No adaptations, modifications, variations etc. of myPOS Zero Software

    • You may not make adaptations, modifications or variations of the myPOS Zero Software or any part of it without our prior written consent.
    • You may not disassemble, decompile, reverse translate or in any other manner decode, the myPOS Zero Software or any part of it, except as expressly permitted by Applicable Law.
    • You may not use any myPOS Zero Software or any part of it to develop, or in connection with the development of, a competing product.

25. Initial Training

    • We will make Initial Training Services in the myPOS Zero Software available to you either remotely or on Site (as determined by us) on a date specified by us, for no additional charge.
    • Any additional training in the myPOS Zero Software required by you that we agree to provide will be provided by us at our standard rates then in force.

26. Third Party Tools

    • There may be third party software, applications, integrations, feeds, products and platforms that you may use in connection with, or that we supply, to you as part of the myPOS Zero POS Solution, and which are used in connection with the myPOS Zero Software (Third Party Tools).
    • You agree and acknowledge that:
      • the providers of the applicable Third Party Tools, and not us, are the suppliers and publishers of the Third Party Tools;
      • we are not responsible for the accuracy, quality or correctness of any Third Party Tools and/or their providers;
      • your use of Third Party Tools is pursuant to a contract between you and the applicable Third Party Tool provider(s), and not pursuant to a contract between us and you;
      • your use of Third Party Tools is at your sole risk, and not our risk;
      • we do not make any representations or warranties with respect to any Third Party Tools (whether as to their performance, availability, compatibility with the myPOS Zero Software and/or otherwise) and/or with respect to any providers of Third Party Tools;
      • we are not responsible for the practices, and/or terms and/or policies of Third Party Tool providers;
      • you warrant that you have read, understood and consented to all and any third party end user agreements, terms, conditions and policies set out in the Accepted Quotation (Third Party Terms);
      • you will comply with, and ensure that each of your Personnel comply with, the Third Party Terms;
      • you must indemnify us from any loss and/or damage that we may suffer or incur as a result of you or any of your Personnel’s breach of any Third Party Terms, except to the extent that such loss or damage was caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement;
      • you agree that we shall have no obligation to provide any technical support or other assistance in connection with any Third Party Tools and that if we do provide any such technical support or other assistance, you will pay us for all time that we incur in connection therewith at a rate agreed prior to commencement of the technical support or other assistance, to be paid by you into our nominated bank account within thirty (30) days of an invoice that we issue to you for same;
      • you shall be deemed to have irrevocably released us from any claims that you may otherwise have had against us with respect to any non-performance of the myPOS Zero Software, and with respect to any loss, damage or corruption of any of Your Data, caused by Third Party Tools and/or the interfacing of any Third Party Tools with Your Data and/or the myPOS Zero Software;
      • except where we otherwise expressly specify in writing to the contrary, the providers of Third Party Tools are not our partners, co-joint venturers, representatives or agents and any link to any Third Party Tool from the myPOS Zero Software and/or interfacing and/or integration of the myPOS Zero Software with a Third Party Tool does not imply that we are affiliated with or sponsor, endorse or approve the Third Party Tool and/or its provider;
      • we are not responsible for any downtime in the myPOS Zero Software that occurs because a third party who operates software that the myPOS Zero Software connects to, modifies any part of that software; and
      • we are not responsible for any loss and/or damage that may be incurred by you directly as a result of claims that your use of Third Party Tools breaches the Intellectual Property Rights of any third party.

27. Definitions

    • In this Service Schedule, words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service. In addition, the following words have the following meanings:

Account Holder means a person that purchases products and/or services from you using a Payment Method.

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

Approval has the meaning given at clause 2.1.

Audit has the meaning given at clause 14.5.

Authorisation and Authorise means the process whereby Payment Processor on behalf of you requests permission for a Payment Method to be used for a particular purchase.

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

Customer Software means any software identified in the Implementation Plan that is not myPOS Zero Software, Payments Software or Third-Party Software that we supply to you.

Detriment Notice has the meaning given in clause 15.4.

Direct Competitor means any third party engaged in the business of providing point of sale software, payment processing, systems, services or solutions.

Good Working Order means the myPOS Zero Hardware operates in accordance with the applicable Operating Manuals with all known vulnerabilities and errors.

Implementation Coordinator means a person who we nominate to be our project manager for the purposes of the implementation of the myPOS Zero POS Solution at the Site(s).

Implementation Plan means an implementation plan that we prepare for:

• the implementation of the myPOS Zero POS Solution which includes the elements set out in clause 1; or
• the implementation of a new Payment Processing System offered by a New Payment Processor.

Implementation Work means the work and services listed in an Implementation Plan.

Initial Training Services means training in the use of the myPOS Zero Software as set out in the Implementation Plan.

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

Licensed Purposes has the meaning given at clause 20.2.

Licensed User means any of your officers, employees or other persons authorised by you to conduct Your Business at the Site(s), who are not employed, engaged by or affiliated with any of our Direct Competitors and who are not restricted from using the myPOS Zero Software because of any restrictions specified in the Accepted Quotation.

Merchant Application means the Payment Processor’s merchant application that is attached to, referred to, or hyperlinked in, the relevant Accepted Quotation, of if we notify you of a New Payment Processor in accordance with clause 15.1, then the New Payment Processor’s merchant application available at the website URL we notify you of.

Merchant Deposit means the amount of any merchant deposit or retention amount notified to you by the Payment Processor.

Monthly Actual Turnover Amount means, in respect of each full month (not calendar month) during the Term, the aggregate value of Authorised Transactions, excluding Refunds.    

Monthly Qualification Amount means, in respect of each full month (not calendar month) during the Term, the monthly qualification amount specified in the relevant Accepted Quotation.

Monthly Report has the meaning give at clause 14.1.

Monthly Revenue Commission means:

• where Monthly Actual Turnover is greater than the Monthly Qualification Amount, no Monthly Revenue Commission is payable; and
• where the Monthly Qualification Amount is greater than the Monthly Actual Turnover Amount, an amount equal to (the Monthly Qualification Amount – the Monthly Actual Turnover Amount) x 1%.

myPOS Zero Hardware means any hardware that we agree to supply to you under an Agreement, as set out in a Accepted Quotation.

myPOS Zero Licence means the licence granted at clause 20.2 and the right granted under clause 23.2.

myPOS Zero Payments Solution means the Payments Software, Payments Hardware and services to be supplied to you by Payment Processor pursuant to a Payment Processor Agreement in place between you and Payment Processor. 

myPOS Zero POS Solution means the point of sale solution described in the Accepted Quotation comprising the myPOS Zero Software, Customer Software, myPOS Zero Hardware, Other Hardware and the myPOS Zero Payments Solution supplied by the Payment Processor, integrated together.

myPOS Zero Software means any software that we describe in a Accepted Quotation as “myPOS Zero Software”, our software or any myPOS Zero software module that is included by us in a software subscription or a hardware and software subscription, including New Releases and New Versions, but excluding Open-Source Software and Third Party Software.

New Payment Processor has the meaning given in clause 15.1.

New Payment Processor Agreement means a merchant agreement for the supply of a Payment Processing System to you, executed between you and the Payment Processor specified in the most recent New Payment Processor Notice, provided that New Payment Processor Notice was not later withdrawn.

New Payment Processor Notice has the meaning given in clause 15.1.

New Release means an update, upgrade or new release of the myPOS Zero Software that is designed to correct bugs, errors or defects and is not a New Version.

New Version means a new version of the myPOS Zero Software that is marketed or described by us as a new version.

Open-Source Software means any software licensed under any form of open source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php)

Operating Manual means all operating manuals and specifications relating to the myPOS Zero Hardware and/or Payments Hardware that we or the Payment Processor provide to you or notify you of.

Other Hardware means any hardware and equipment set out in the Accepted Quotation and/or Implementation Plan that is not myPOS Zero Hardware or Payments Hardware.

Payment Method means one or more payment methods, specified in a Accepted Quotation.

Payment Processor means:

• the payment processor specified in the Accepted Quotation; or
• the most recent New Payment Processor specified in a New Payment Processor Notice, but only once we have notified you that the myPOS Zero POS Solution that includes the New Payment Processor’s Payment Processing System is Ready for Service.

Payment Processor Agreement means:

• a merchant agreement between you and the Payment Processor specified in the Accepted Quotation; and/or
• each New Payment Processor Agreement that has not expired or been terminated,

for the supply of a Payment Processing System to you.

Payment Processing System means the payment processing platform, functionality and services made available to you by the Payment Processor pursuant to a Payment Processor Agreement in place between you and the Payment Processor.

Payments Hardware means any payments hardware (including terminals) specified in a Accepted Quotation and/or that the Payment Processor agrees, in each case to be supplied to you by the Payment Processor pursuant to a Payment Processor Agreement in place between you and the Payment Processor.

Payments Software means any software supplied to you by the Payment Processor pursuant to a Payment Processor Agreement in place between you and the Payment Processor or otherwise.

Payments Solution Onboarding Requirements means the myPOS Zero Payments Solution onboarding requirements specified to you by the Payment Processor or any New Payment Processor (as applicable) from time to time.  

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register established under the PPSA.

Price means the price for the provision of the Implementation Work and/or the purchase of the myPOS Zero Hardware, set out in the Accepted Quotation.

Project Coordinator means the person who you nominate as your project coordinator for the purposes of the implementation of the myPOS Zero POS Solution at the Site(s).

Ready for Service means the date that we determine that the myPOS Zero POS Solution is ready for use in a live environment.

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

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

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

Site(s) means Your Site(s) identified in a Accepted Quotation for the installation of the myPOS Zero POS Solution.

Target Implementation Completion Date means the target date(s) for completion of all of the Implementation Work at the Site(s), as set out in an Implementation Plan.

Third Party Licences means the standard licence terms and conditions provided by the relevant owners, licensors or distributors of the Third Party Software.

Third-Party Software means any software comprised in the myPOS Zero POS Solution that we notify you is owned by any third party, excluding the Payments Software.

Third Party Terms has the meaning given at clause 26.2(g).

Third Party Tools has the meaning given at clause 26.1.

TPMs have the meaning given in clause 18.13.

Transaction means an Authorisation request of an Account Holder for a payment from the Account Holder to you submitted by you to Payment Processor.

Your Business means your sale of goods and/or services at the Sites.