Supplier Terms & Conditions

1. This Agreement

(a) How this Agreement works

(i) This Agreement is a contract between You and Luca Pay Pty Ltd (ACN 647 749 004) (we / us / our).

(ii) You agree to be bound by the terms of this Agreement by either:

(A) signing this Agreement in wet ink or electronically (including by clicking to accept its terms), or

(B) by using Luca Pay’s Services.

(iii) If You do not accept the terms of this Agreement, You must not use Our Services.

(iv) Schedule/s to this Agreement form part of the Agreement.

(v) Capitalised terms have special meanings and are defined at the end of this Agreement, or throughout the Agreement.

(b) Luca Pay’s Services

(i) Our Services allow Customers to pay for goods or services offered by You. Luca Pay may permit You to use Our Services online and/or in-store. When Your Customers make an authorised Luca Pay Purchase, we will pay You on behalf of that Customer in accordance with the terms of this Agreement, in exchange for the Customer agreeing to repay the amounts to us in accordance with our agreement with the Customer.

(ii) We will assume all risk in collecting payments from Customers that make Luca Pay Purchases, except where liability transfers to You in accordance with clauses 2(b)(v), 2(b)(vii) and 5(a)(ii) of this Agreement.

(iii) We have no obligation to supply our Services, and You may not permit Customers to make Luca Pay Purchases, until You have completed and returned to us upon request if applicable:

(A) the AML Documentation; and

(B) a direct debit request, (collectively, the Required Documentation), and we have verified the Required Documentation.

(iv) You agree to provide all information and do all other things reasonably required by us in order to enable us to verify the Required Documentation promptly.

(c) Luca Pay policies

(i) We will provide the Services in accordance with Luca Pay’s Privacy Policy, which can be found on Luca Pay’s website.

(ii) To the extent of any inconsistency between this Agreement and Luca Pay’s Privacy Policy, this Agreement will prevail.

(iii) Luca Pay may update Luca Pay’s Privacy Policy from time to time and Luca Pay’s Privacy Policy will be available on Luca Pay’s website.

(iv) We may require access to data, including personal information, held by you. You must provide access to the data if reasonably requested.

(d) Changes to this Agreement

Luca Pay may amend this Agreement by giving You no less than 30 days’ written notice prior to the effective date of the proposed change. If You do not want to continue receiving the Services as a result of any such change You may terminate this Agreement in accordance with clause 9(b). You will be deemed to have accepted any change notified to You on the earlier of:

(i) Your written acceptance of the change; or

(ii) the effective date of the change (provided this Agreement has not been terminated before the effective date of the change).

2. Your Obligations

(a) General obligations

(i) You agree to comply with any reasonable direction given by us in respect of the integration of the Service on Your Website and/or in-store (as applicable).

(ii) If You have implemented the Service other than in accordance with the materials that Luca Pay has provided to You, You must obtain written approval from a Luca Pay representative before You allow Customers to make Luca Pay Purchases.

(iii) Once the Required Documentation has been verified, You must make Luca Pay available for use by Customers on Your Website and/or in-store (as applicable) as soon as reasonably practicable or as otherwise agreed by Luca Pay in writing, acting reasonably.

(iv) You must continue to allow Customers to make Luca Pay Purchases as permitted under this Agreement as long as this Agreement remains on foot, except:

(A) during any period of suspension imposed by us in accordance with the terms of this Agreement; or

(B) as otherwise agreed by us in writing, acting reasonably.

(v) You must not provide Customers with any information about Luca Pay, the Service or our Services that is false, misleading or inaccurate. Without limiting this clause, You must not make any warranty, representation or statement to any Customer relating to Luca Pay, the Service or our Services (including that the Service is available for the purchase of any Goods to be Delivered to a location outside of Australia), other than those:

(A) contained in this Agreement;

(B) included on Luca Pay’s website; or

(C) included in materials provided to You by Luca Pay, as these may be updated from time to time, or as otherwise expressly permitted by Luca Pay in writing.

(vi) You agree to comply with any reasonable directions given by Luca Pay to display promotional materials on Your Website and/or in-store (as applicable) and any reasonable directions given by Luca Pay to remove such promotional materials from display, or to change the manner in which they are displayed. Any such materials may be provided by or on behalf of Luca Pay.

(vii) Without limiting clause 2(a)(vi), You must:

(A) include on Your Website and/or in-store (as applicable) a description of the Service in such terms as may be otherwise provided or approved by us in writing;

(B) (where relevant and technically possible) present such description and option on Your Website as may be provided or approved by us in writing from time to time;

(C) comply with any reasonable directions we give about how any description of the Service is to be displayed on Your Website and/or in-store (as applicable);

(D) promptly comply with any reasonable direction we give You to modify, replace or remove any description of the Service displayed on Your and/or in-store; and

(E) not provide any description of the Service which does not comply with this clause 2(a)(vii), or has not otherwise been approved by us in writing.

(viii) If we are concerned that any content or materials displayed on Your Website or in-store does not comply with clause 2(a)(v) or 2(a)(vii) above, we may request that You modify or delete the relevant content or materials, or remove them from display. You must comply with any request made under this clause as soon as practicable and, at the latest, within 7 Business Days of the request.

(ix) You must cooperate with us to promptly resolve all disputes with Customers (including where necessary, taking any action reasonably directed by us).

(x) You must comply with all Relevant Laws in fulfilling Your obligations under this Agreement in relation to each Luca Pay Purchase, and in relation to the Goods or Services. You must assist us to comply with our obligations under any Relevant Laws as reasonably directed by us. We may suspend our performance of the Services to You, if we reasonably believe that making a payment or processing the Luca Pay Purchase in connection with this Agreement may breach any Relevant Law.

(xi) You must not provide us with any information that is false, inaccurate or misleading.

(xii) You must not use any technology (device, software or hardware) to damage, intercept or interfere with our Services, or any software or technology that we use to provide the Services.

(xiii) You must notify us of any intention to commence advertising or offering Restricted Goods or Services for sale.

(xiv) You must not allow Customers to purchase gift cards (or cash or cash equivalents) via Your Website or in-store using Luca Pay.

(b) Obligations in respect of Luca Pay Purchases

(i) When a Customer makes a Luca Pay Purchase, Luca Pay's systems will promptly issue or withhold Approval Confirmation.

(ii) For online Luca Pay Purchases Approval Confirmation will be issued directly to You.

(iii) For in-store Luca Pay Purchases the Customer will be issued with a barcode or payment link via email which they will present to You in-store. You must scan the QRcode for Approval Confirmation, after which you may Deliver the Customer's Goods. Only one barcode may be accepted per in-store Luca Pay Purchase.

(iv) Subject to clauses 2(b)(v) and 2(b)(vii), where a Customer makes an online Luca Pay Purchase, You must use best endeavours to ensure that all Goods or Services are Delivered to the Customer promptly, and within the expected Delivery period as represented to the Customer at the point of sale (up to a maximum of 14 days). Where a Customer makes a Luca Pay Purchase in- Store, the Goods must be Delivered (or provided) to the Customer immediately after Approval Confirmation, unless You expressly agree an alternative Delivery time with the Customer.

(v) You must only Deliver or provide Goods or Services to a Customer after you have received Approval Confirmation. Luca Pay will not be liable to You for Goods Delivered or provided without Approval Confirmation.

(vi) Despite 2(b)(v)), if You receive Approval Confirmation after Goods have been Delivered then this Agreement will apply in accordance with its terms in respect of that Luca Pay Purchase (including clauses 4(b) and 5(a)).

(vii) If a Customer refuses to pay us on the basis that Goods have not been Delivered, we may ask You to provide us with proof of Delivery. If we make such a request, You must:

(A) for Goods that are goods: notify us via the phone or by email of the shipping carrier name, tracking number and confirmation that the Goods were Delivered to the address specified by the Customer when making the Luca Pay Purchase; and

(B) for Goods that are services: provide proof of supply of the services.

(viii) If You do not provide us with the above information, or otherwise demonstrate to our reasonable satisfaction that the Goods have been Delivered to the Customer, within two (2) Business Days of our request, then:

(A) You must refund to us any Settlement Amount we have paid You, and reimburse us any chargeback fees we may incur, in connection with the relevant Luca Pay Purchase, and we may elect to be paid such amounts in accordance with clause 4(a)(iii);

(B) we will refund to the Customer any amounts paid by the Customer to us in connection with the Luca Pay Purchase;

(C) the entire right, title and interest in respect of, or in connection with, the Payment Rights relating to the Goods will be re-assigned to You upon our receipt of the Settlement Amount from You; and

(D) we will have no further liability to You in connection with the Luca Pay Purchase.

(ix) You must not increase the Sale Price or Shipping Costs, or otherwise charge a Customer any other fees or increase the overall cost to the Customer because the Customer has elected to use Luca Pay as their method for payment. You are responsible for ensuring that appropriate insurance policies are in place for Your Delivery of the Goods to Customers. Luca Pay will not be responsible for any damage caused to Goods that are goods during Delivery, or any loss or damage caused in connection with the supply of Goods that are services.

(x) You must not accept payments or ongoing repayments for any Goods on our behalf. Any sums received by You shall be managed in accordance with clause 4(b)(ii).

(c) Transfers or assignments

(i) You may not transfer or assign any rights You may have under this Agreement without our prior written consent, not to be unreasonably withheld.

(ii) We may transfer or assign this Agreement, and any right under this Agreement, to a third party, and we will notify You in advance of such a transfer or assignment.

(d) Intellectual Property

(i) Except as expressly provided in this Agreement, neither party will acquire any rights in respect of the Intellectual Property of the other. Neither party may use the Intellectual Property of the other party in any way except:

(A) with the prior written approval of the other (such approval not to be unreasonably withheld), and in accordance with the terms of any such approval; or

(B) as specifically authorised in this Agreement (including this clause 2(d)).

(ii) We grant You a non-exclusive, non-transferable, revocable and royalty free licence to use and reproduce:

(A) the Luca Pay Trade Marks; and

(B) any other Luca Pay Intellectual Property provided to You in connection with this Agreement, solely in connection with Your performance of Your obligations under this Agreement, and as permitted under this Agreement or any other written directions we may give You, including any use guidelines that we may notify to You from time to time. We confirm that Luca Pay will not revoke this licence in a manner inconsistent with Your rights and obligations under this Agreement.

(iii) You must submit each proposed application or use of Luca Pay Intellectual Property to us for written approval prior to use, except to the extent that such use is expressly permitted under this Agreement or otherwise expressly agreed in writing by Luca Pay. For the avoidance of doubt, you may use content provided by us which incorporates Luca Pay Intellectual Property (including any approved description of the Service provided by us and any promotional materials) without our consent, provided You use such content solely for the purposes of this Agreement, and in accordance with this Agreement.

(iv) You must immediately discontinue the use or display of any Luca Pay Intellectual Property, or change the manner in which the Luca Pay Intellectual Property is used or displayed whenever we reasonably request that You do so. Without limiting this clause 2(d)(iv), if this Agreement is amended to remove Your right to offer the Service online or in- Store, you must immediately discontinue the use or display of any Luca Pay Intellectual Property associated with the discontinued right, and must return any associated:

(A) promotional materials; or

(B) other content or materials incorporating Luca Pay Intellectual Property, to Luca Pay, unless otherwise agreed in writing by Luca Pay.

(v) Except as expressly provided in this Agreement, You may not do any of the acts and will not have any of the powers referred to in section 26 of the Trade Marks Act 1995 (Cth).

(vi) You permit Luca Pay to use Your name, logo and details of Your Website in any of Luca Pay’s marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn, Wechat and Instagram), and in directory listings of Luca Pay’s Merchants. You also agree that we may use one image from Your Website in our directory listings of Luca Pay merchants. You agree to obtain on our behalf any third party consents or licences required to enable us to use such an image as contemplated by this Agreement, without attribution, and without charge to us. If You notify us that You would like Your name, logo and/or details of Your Website removed from this marketing material, or would prefer us to use a different image in our directory listings, we will do so as soon as reasonably possible.

(vii) You further agree that we may share, re-post and otherwise use any images and other content You include on Your social media accounts or pages on our websites, social media accounts and pages, without Your consent, and without any payment to You, provided we:

(A) credit You as the source of such image or content, or include any other statement of attribution that You reasonably require; and

(B) promptly remove or alter such image or content at Your written request.

3. Software licence

(i) We grant You a non-exclusive, non-transferable, royalty-free licence (without any right to sublicense) for the term of this Agreement to use in Australia all software provided by us under this Agreement solely to the extent required for the performance of Your obligations and Your receipt of the Services under this Agreement.

(ii) To the maximum extent permitted by law, and subject to clause 10(b)(i):

(A) any software that we provide to You is provided on an ‘as is’ basis; and

(B) we exclude all representations and warranties, whether express or implied, regarding the software, and give no undertaking or assurance in respect of, the performance of the software or its reliability, accuracy, adequacy or completeness (including whether it is error free and will provide continuous, uninterrupted or secure access to the Services).

(iii) You must not copy, modify, alter or amend or use for any other purpose any such software without our express prior written consent, and must not supply that software to any third party without our prior written consent.

(iv) On termination of this Agreement, You must permanently delete all copies of the software in Your possession or control.

4. Fees, billing and payments

(a) Fees, billing and payments

(i) All payments made under this Agreement must be made in Australian dollars.

(ii) You must pay Luca Pay the Fee for each Luca Pay Purchase if applicable, which will be calculated as follows:

Not applicable

(iii) Luca Pay may, at its sole discretion:

(A) debit Your nominated Account in accordance with your direct debit request, or

(B) set off against any amounts we are obliged to pay to You under this Agreement, all amounts owed by You to us under this Agreement (including, without limitation, any Fees, Refund Amounts and Customer Payments which You are liable to pay us under this Agreement).

(iv) You authorise us to debit Your Account for the amounts set out in clause 4(a).

(v) The Fee is not refundable unless paid incorrectly or a refund of the Fee is otherwise required by law.

(b) Payments from us to You

(i) We will pay You the Settlement Amount relating to Luca Pay Purchases in accordance with this clause 4(b) and clause 4(a)(iii)(B).

(ii) If, for any reason, You receive any part of a payment relating to an Luca Pay Purchase directly from a Customer (Customer Payment):

(A) You will promptly notify us of the details of the Customer Payment, including the identity of the Customer, the Goods or Services to which the Customer Payment relates, and the amount of the Customer Payment; and

(B) If we have effected a payment to You in respect of that Luca Pay Purchase, You will hold the full amount of the Customer Payment for our benefit until the Customer Payment is paid to Luca Pay by You. Luca Pay may elect to be paid the Customer Payment in accordance with clause 4(a)(iii).

(iii) Payments of the Settlement Amounts will be made by us on or before the payment due date. These payments will be made daily, per every single transaction of the Settlement Amounts for each Luca Pay Purchases so due, and paid on a net settlement basis and by direct transfer of immediately available funds to Your nominated Account.

(iv) If, despite clause 1(b)(iii) You permit Customers to make Luca Pay Purchases before Verification has been completed, we may withhold payment of any Settlement Amount due to You until Verification has been completed.

(c) GST

(i) All amounts specified in this Agreement are exclusive of GST.

(ii) If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this Agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply (GST Amount) in addition to the Fees or other due consideration (if any) required to be paid under any other provision of this Agreement.

(iii) Despite any other provision of this Agreement, if either party is required to reimburse or indemnify the other party for any costs, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it (or a representative member of that party's GST group).

(iv) Each party must ensure that each invoice it presents to the other party under this Agreement in respect of any GST Amount is a valid tax invoice. Despite any other provision of this Agreement, each party's obligation to pay an invoice presented under this Agreement is conditional upon the other party's compliance with this clause 4(c) in respect of that invoice.

(v) Terms used in this clause 4(c) (including ‘supply’, ‘consideration’, ‘representative member’, ‘tax invoice’ and ‘GST group’) have the same meaning as defined in the GST Law.

5. Payment, returns and refunds by Customers

(a) Obligations in respect of returns, refunds and chargebacks

(i) Your policies and agreements (including Your refund policy) with a Customer must comply with Relevant Laws and You must consider any Customer's request for Return in good faith and in accordance with Your policies and the Relevant Law. You will be responsible for processing any Returns in accordance with Your policies.

(ii) Subject to clause 5(a)(v), if Goods are Accepted for Refund (in whole or in part), by You then any Refund Amount due in relation to the Return is owed to Luca Pay and not the Customer. You must promptly upon receipt of the returned Goods (and, at the latest, within 3 Business Days of such receipt), inform us via phone or email. For the avoidance of doubt, all Luca Pay Purchases that are Accepted for Refund (in whole or in part) must, subject to clause 5(a)(v), be refunded via the Luca Pay tender type. If a refund for such Goods is processed using another payment method, You will be liable for any Customer payments owed for the Goods or Services which are more than 14 days overdue.

(iii) You will be liable to us for the sums to be refunded to the Customer if You Accept for Refund (in whole or in part) any returned Goods. We may recover those sums in accordance with clause 4(a)(iii).

(iv) If You agree with a Customer that You will provide them with a Discount, or agree to Refund any part of the Sale Price for any reason, in respect of any Goods:

(A) if we have effected a payment to You in respect of those Goods, You will be liable to us for the amount of that Discount or Refund on the applicable payment date and we may recover those sums in accordance with clause 4(a)(iii), or set-off those sums against any future payment we make to you; or

(B) if we have not effected a payment to You in respect of those Goods, the amount of the Discount or Refund will be deducted from the Settlement Amount relating to those Goods payable by us to You;

(I) cancel any future payments due by the Customer to Luca Pay; and/or

(II) refund to the Customer any amounts paid by the Customer to Luca Pay, as required in order to ensure that the Customer receives the agreed Discount or Refund. Any refund due to the Customer will be issued in accordance with our agreement with the Customer.

(v) If Your policies permit Returns to be made later than 120 days after purchase, the terms of this clause 5 shall not apply and Luca Pay shall have no liability to You in respect of Returns made later than 120 days after purchase. You must deal directly with the Customer with respect to such Returns and the associated Refund. Any assistance we may provide to You to effect payments to Customers for any Refunds or Discounts for such Goods (despite this clause 5(a)(v)) shall be at our discretion.

(vi) Any dispute between You and Luca Pay in relation to the acceptance for Refund of any returned Goods and the payment of the unaccepted Refund Amount will be resolved in accordance with clause 7.

(vii) If a Customer raises a dispute with You in relation to a Luca Pay Purchase, we may withhold payment of any disputed amounts (or, in the absence of a liquidated figure, such amount as Luca Pay reasonably considers may be disputed) until the dispute is resolved.

(viii) Nothing in this clause will prevent any Customer from exercising any other rights in respect of the Return of any Goods (including for the exchange or repair of the Goods) or store credit for the Goods.

(b) Assignment of Payment Rights

(i) In respect of each Luca Pay Purchase made by a Customer, at the time the Luca Pay Purchase is made, You absolutely and unconditionally assign to us, and we immediately acquire, Your entire right, title and interest in respect of, or in connection with, any present or future payment obligation of the Customer to pay the Sale Price and any Shipping Costs under, or in connection with, Your contract for the sale of the relevant Goods with the Customer (including all of your rights, powers and remedies, and all proceeds or damages to be paid, collected, received or recovered, in respect of any such payment obligation) (Payment Rights).

(ii) We may, at or after the time we acquire the Payment Rights, take any step to perfect or protect our right, title and interest in such Payment Rights, (including without limitation, executing any assignment instrument or other document and performing any act, matter or thing, giving notice to any Customer of the assignment by You to us of the Payment Rights and/or that they should make all payments in respect of the relevant Luca Pay Purchase to the account or in the manner specified to them by us, and/or giving notice of our interest in and title to any Payment Rights to the relevant Customer or any other interested person) and You irrevocably and for valuable consideration appoint us and each of our authorised representatives severally as Your attorney to do so, and You agree to do anything we reasonably ask You to do (such as signing documents, including notices to Customers or other interest persons) to assist us exercise our rights, powers and remedies under this clause.

(iii) Terms used in this clause that are not otherwise defined have the meanings given in the Personal Property Securities Act 2009 (Cth) (PPSA). You agree that we may register a security interest in respect of the Payment Rights acquired by us under this Agreement in one or more of the following collateral classes:

(A) chattel paper; and

(B) account, and we will, if required by You, provide You with a letter confirming that we have no interest pursuant to this Agreement in any of Your assets not forming part of the Payment Rights and consent to the disclosure of this Agreement, at Your discretion, to verify this. You irrevocably and unconditionally waive Your right to receive any notice from us that is required by any provision of the PPSA, including a notice of a verification statement.

(iv) If any Goods are Accepted for Refund by You, the entire right, title and interest in respect of, or in connection with the Sale Price component of the Payment Rights relating to those Goods will be re-assigned to You at the time You accept Return of those Goods. Upon payment to us of the Refund Amount, our respective obligations in respect of the Sale Price will be discharged in full (including that we will be released in full from any relationship with You in respect of the Sale Price component of the Payment Rights relating to those Goods).

6. Confidentiality

(i) Except as expressly permitted or required by this Agreement, each party must not use any of the other party's Confidential Information.

(ii) Except as expressly permitted or required by this Agreement, each party must not disclose to any other person any of the other party's Confidential Information.

(iii) Each party may disclose the Confidential Information of the other party:

(A) when required to do so by Relevant Law or any regulatory authority or registered stock exchange;

(B) to a director, officer, employee, agent or contractor of the first party whose duties reasonably require such disclosure, provided such person has agreed to keep the information confidential;

(C) to its professional advisers, investors or financiers (or potential investors or financiers), who have agreed to keep the information confidential; and

(D) when reasonably necessary for the purposes of any legal or arbitral proceedings involving the first party or any of its related bodies corporate.

(iv) Each party must take all reasonable steps to ensure that no Confidential Information of the other party is used, directly or indirectly, in any way that is detrimental or adverse to the other party and that each person to whom any Confidential Information of the other party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments.

(v) Each party must take steps no less rigorous than those which it takes in respect of its own information to prevent any unauthorised use, disclosure or loss of, or unauthorised access or damage to, the Confidential Information of the other party under its possession or control.

7. Disputes

(i) We will use reasonable endeavours to:

(A) Acknowledge receipt of all complaints by You within 2 Business Days.

(B) Resolve all complaints by You as quickly as practicable and, in any event, within 15 Business Days. This may not be possible in all circumstances.

(ii) If You wish to raise a dispute or submit a complaint to us, You must contact us using the details listed below, or any alternative contact details we provide to You for this purpose from time to time. Such disputes must be raised with us as soon as is practicable and not later than 14 days after You become aware of the grounds for dispute.

Email: disputes@lucapay.com

Mail: Luca Pay, 121 King Street, Melbourne VIC 3000

(iii) We may request additional documentation from You to assist us in resolving any complaints or disputes (including Customer complaints and disputes), and You must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes (including Customer complaints and disputes).

(iv) Where we cannot resolve a dispute with You within 15 Business Days, we will notify You of the reason for the delay as well as an indication of whether we believe that:

(A) we are able to resolve the dispute and, if so, an indication of the further time that we estimate this will take; or

(B) we will not be able to resolve the dispute, in which case You may pursue Your rights under Relevant Law with respect to the dispute.

8. Suspension

(i) In addition to our rights in this Agreement, we may suspend Your access to the Services immediately (or from such other date as we may nominate) by giving You written notice if:

(A) You have breached, or we reasonably suspect that You have breached, any provision of this Agreement;

(B) You undergo a change of ownership or control and we are unable to verify Your new ownership; or

(ii) This suspension will remain in place until:

(A) in relation to clause 8(i)(A), You have rectified the breach to our reasonable satisfaction or You have proven, to our reasonable satisfaction, that You did not breach the Agreement;

(B) in relation to clause 8(i)(B), we are able to verify Your new ownership;

(C) in relation to clause 8(i)(C), You have, to our reasonable satisfaction, provided an explanation for any suspicious behaviour; or

(D) this Agreement is terminated in accordance with clause 9.

(iii) Without limiting Your other obligations under the Agreement, while any suspension is on foot, You must promptly comply with all reasonable directions that we give regarding Your advertisement and offer of the Service, including Your use of Luca Pay Intellectual Property.

9. Termination

(a) Termination for cause

(i) Either party may terminate this Agreement immediately (or from such other date as it may nominate) by giving the other party written notice of termination if:

(A) the other party breaches any provision of this Agreement, and:

(I) such breach is incapable of remedy; or

(II) the other party has failed to remedy such breach within 14 days of the date of a written notice issued to it by the first party requiring rectification of the breach;

(B) the other party engages in any fraudulent activity or conduct;

(D) the other party is unable to perform its obligations as a result of a force majeure event, and such event continues for a period of 30 days; or

(E) the other party is the subject of an Insolvency Event.

(ii) In addition, we may terminate this Agreement immediately (or from such other date as we may nominate) by giving You written notice of termination if:

(A) we reasonably believe that Your consumer agreements with Customers do not reflect the original basis of our contracted agreement (including, without limitation, where You change Your policies in any way that affects the ability of any Customer to Return any Goods in the manner intended under this Agreement);

(B) we reasonably believe that You have breached any of the warranties in clause 10(a)(ii) on a repeated basis;

(D) You undergo a change of ownership or control.

(b) Termination for convenience with notice

Either You or Luca Pay may terminate this Agreement for any reason by giving at least 14 days’ prior written notice.

(c) Termination or suspension without notice

We may terminate or suspend this Agreement at any time without notice if we consider it reasonably necessary to avoid loss to you or us, to comply with a regulatory or legal requirement, or to protect the integrity of our systems, including if we suspect fraudulent activity.

(d) Consequences of termination

(i) Termination of this Agreement does not affect any right or obligation which arose under this Agreement before such termination or which arises in respect of any Goods that are returned after such termination, and is without prejudice to the parties' other rights and remedies. For the avoidance of doubt, Luca Pay's rights under clause 4(a)(iii) and 4(a)(iv) continue in relation to Customer Payments received by You, and Refunds approved by You, after termination.

(ii) Upon termination of this Agreement for any reason:

(A) each party must promptly return to the other any Confidential Information or property of the other in the first party's possession or control;

(B) all rights and licences granted under this Agreement will terminate immediately, except as expressly provided in this Agreement, and You must:

(I) immediately cease using all Luca Pay Intellectual Property, including by removing all references to Luca Pay from Your Website and in-store; and

(II) comply with Your obligation in clause 3(iv).

(iii) Any amounts owing to You under this Agreement which are due to be paid to You after the date of termination may be withheld until we are satisfied that the obligations in clause 9(d)(ii)(B) have been met.

(iv) Without limiting the other provisions of this Agreement, clauses 4(a)(iii) and 4(a)(iv), 4(b)(ii), 5(a), 6, 9(d), 10 and 11 of this Agreement, and all other terms which by their nature are required to survive termination of this Agreement, will survive termination of the Agreement.

10. Warranties, Liability and Indemnity

(a) Your representations and warranties

(i) You warrant and represent to us that:

(A) the assignment of the Payment Rights to us under this Agreement will constitute a true sale of those Payment Rights to us by way of an absolute assignment, and is valid and binding on You and is enforceable against You and all other third parties;

(B) You have not done and will not do anything to prevent any amounts owing to us in connection with a Luca Pay Purchase from being valid and enforceable against the relevant Customer;

(D) all information You provide in the Required Documentation, or otherwise provide to us in connection with this Agreement, is complete, current and correct; and

(E) the person who:

(I) completed the Required Documentation; and

(II) entered into this Agreement on Your behalf, was duly authorised to do so and to bind You.

(ii) In addition, You make the following representations and warranties to us in relation to each Luca Pay Purchase:

(A) You do not know of or have any reason to suspect any fraud or suspicious activity relating to the Luca Pay Purchase, and neither You nor Your employees or agents have concealed or otherwise failed to disclose to us any information of which You or Your employees or agents have become aware is contrary to any of the statements made in the Luca Pay Purchase or in any other information or documentation provided by You to us, or otherwise engaged in any fraudulent conduct in connection with the Luca Pay Purchase;

(B) the Luca Pay Purchase represents a bona fide sale of the Goods by You in the ordinary course of Your business, the information You provide lists all Goods involved in the Luca Pay Purchase, and only Goods sold by You are the subject of the Luca Pay Purchase;

(D) the Goods, at the time they were Delivered to the Customer, were fit for any particular purpose which the Customer made known to You or Your agents or employees;

(E) in relation to Goods that are goods:

(I) the Customer has, or will have, title to the Goods listed and clear of all encumbrances, liens and claims;

(II) the Goods, at the time they were Delivered to the Customer, were of merchantable and acceptable quality; and

(III) the Goods match any sample or demonstration model shown to the Customer; and

(F) in relation to Goods that are services:

(I) the Goods have been, or will be, provided with due care and skill; and

(II) the Goods will be Delivered within the agreed time frame, or within a reasonable time frame if no time has been agreed for provision of the Goods; and

(G) You have not sought or obtained, and will not seek or obtain, any special arrangement or condition from, nor discriminated in any way against, the Customer with respect to the terms of the Luca Pay Purchase.

(b) Limitation of Liability

(i) The limitations on Luca Pay's liability contained in this Agreement are made to the extent permitted by law, and subject to clause 10(b)(i). For the avoidance of doubt, nothing in this Agreement is intended to limit our liability or impose liability on You in a manner which would be considered unfair under the relevant consumer protection laws.

(ii) Subject to clause 10(b)(iii) below, and to the extent that the Relevant Laws permit us to do so, Luca Pay limits its liability in connection with the Non-Excludable Rights (including its liability for breach of any implied condition or warranty) to, at our option:

(A) in the case of services:

(I) the re-supply of the relevant services; or

(II) the payment of the cost of having the relevant services supplied again; and

(B) in the case of goods:

(I) the replacement of the goods or the supply of equivalent goods;

(II) the repair of the goods;

(III) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(IV) the payment of the cost of having the goods repaired.

(iii) To the full extent permitted by law, and subject to clauses 10(b)(i) and 10(b)(ii):

(A) Luca Pay will not be liable for any loss or damage which You may incur as a result of our Services being unavailable, except where such loss or damage arises as a result of our negligence, wilful misconduct or breach of this Agreement;

(B) Luca Pay's liability for all claims no matter how arising, whether in contract, tort (including negligence), or otherwise, will not exceed $5,000. For the avoidance of doubt, this does not limit Luca Pay's obligations to pay You any Settlement Amount due to You under the Agreement, or Luca Pay's liability to You under clause 10(b)(ii); and

(C) Luca Pay and its related bodies corporate, or any third party providing services on behalf of Luca Pay, will not be liable to You for any Consequential Loss.

(iv) To the extent permitted by law, a party's liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party's acts or omissions cause or contribute to its own loss or damage.

(v) The parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.

(c) Indemnification

(i) You indemnify and hold harmless Luca Pay and our related bodies corporate and their respective officers, directors, employees and agents from and against all claims, actions, losses, offsets, liabilities, damages, judgments, amounts paid in settlement, costs and expenses (including reasonable legal fees and disbursements and collection fees) resulting from or arising in connection with:

(A) any transaction, contract, understanding, promise, representation, warranty or other relationship, actual, asserted or alleged, between You and any Customer relating to the Luca Pay Purchase or the Goods or Services;

(B) any Goods or Services (including, without limitation, any product liability or warranty claim relating to those Goods, any claim that the supply of the Goods breaches a statutory guarantee, and any claim by the Customer relating to the quality or sufficiency of the Goods); and

(C) any false or misleading representation or fraudulent conduct by You or Your officers, directors, employees or agents in connection with a Luca Pay Purchase or any related Goods, the Services, or any related matter.

(ii) This indemnity is a continuing obligation, independent of Your other obligations under this Agreement and continues after this Agreement ends. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this Agreement. However, we will not exercise the right of indemnity under clause 10(c) where it relates to a particular Customer's Luca Pay Purchase until after we have raised the relevant issue with You for discussion, and You have had a reasonable time to respond or to remedy the issue with that Customer to our reasonable satisfaction.

(iii) To the extent that the indemnity in clause 10((c) is in favour of a person other than Luca Pay, we contract as trustee of the rights under the indemnity.

11. General

(a) Notices

Any notice given or served under this Agreement must be sent to the recipient at the email address specified by the recipient from time to time.

(b) Relationship of the parties

Luca Pay does not:

(i) enter into a partnership, joint venture, agency or employment relationship with You;

(ii) guarantee the identity of any Customer who may place an order to buy goods or services from You or assume any other responsibility for that Customer other than as set out in this Agreement; or

(iii) determine if You are liable for any taxes, or collect or pay any taxes that may arise from Your use of our Services.

(c) Trust

If You enter into this Agreement as a trustee of a trust, You:

(i) represent and warrant that You enter into this Agreement for a proper purpose of the trust;

(ii) have power and authority under the trust to enter into and perform Your obligations under this Agreement;

(iii) have the right to be indemnified fully out of the trust property before the trust’s beneficiaries for all liabilities You incur under or in connection with this Agreement; and

(iv) must not (without our prior written consent) distribute any capital of the trust, retire as trustee or be replaced as trustee, re-settle the trust, amend the trust deed of the trust or otherwise vary the terms of the trust, grant a security interest over any of the assets of the trust, or breach any terms of the trust; and

(v) You must provide immediate written notice to us if any of the events in this clause occurs.

(d) Governing Law and Jurisdiction

(i) This Agreement is governed by the law in force in Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia.

(ii) The arrangements for the sale and purchase of any Goods is a separate consumer contract between You and the relevant Customer and that the Customer’s rights and remedies as a consumer in respect of that sale and purchase (including any Return of those Goods or Discount You may offer) are as between You and the Customer, to the exclusion of Luca Pay (to the maximum extent permitted by law).

(e) Entire Agreement

This Agreement replaces any and all previous executed contracts in place between the parties relating to its subject matter.

(f) Waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

(g) Severability

If any provision of this Agreement is found to be invalid or unenforceable:

(i) the remainder will remain effective and enforceable to the fullest extent permitted by law; and

(ii) the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible, in order to enable the transactions contemplated in this Agreement to be fulfilled to the fullest extent possible.

Definitions

Agreement means this agreement and any Schedule/s to this agreement, together with any policies and documents incorporated by reference.

AML Documentation means any documentation we request from you from time to time, to conduct anti-money laundering and counter-terrorism financing checks.

Business Days means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in Victoria.

Confidential Information means any information in respect of a parties business and affairs other than information which has come into the public domain.

Consequential Loss means any loss, damage or costs incurred that is:

(i) indirect or consequential; and

(ii) any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity.

Customer means a person or entity that purchases Goods from You using Our Services.

Delivered means physical delivery of the Goods from the Supplier to the Customer

Discount means a deduction from the usual cost of the services or products provided.

Fee means any fees charged by us, as described in this Agreement.

Goods means goods and / or services supplied by You.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means the happening of any of the following events:

(a) a person is unable to pay its debts as they fall due, or is unable to certify that it is able to pay its debts as they fall due;

(b) a person commits an act of bankruptcy;

(d) an application is made to a court for an order, or an order is made, appointing a liquidator, provisional liquidator in respect of a person (or proceedings are commenced or a resolution passed or proposed in a notice of meeting for any of those things);

(e) proceedings are initiated with a view to obtaining an order for a person’s winding up or similar process, an order is made or any effective resolution is passed for a person’s winding up, or a person is deregistered or dissolved;

(f) except to reconstruct or amalgamate while solvent on terms approved by us, a person enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement, or composition with, or assignment for the benefit of, all or any class of its creditors, or a person proposes a reorganisation, moratorium or other administration involving any class of its creditors;

(g) a controller is appointed to take over, or takes possession of, any of a person’s assets or undertaking;

(h) a person takes any step to obtain protection, or is granted protection, from its creditors under any applicable legislation, or an administrator is appointed to a person; or

(i) anything analogous or having a substantially similar effect to any of the events specified above happens in respect of a person under the law of any applicable jurisdiction.

Intellectual Property means in relation to a party, that party's trade marks, logos, business names, analysis, business methods, compilations, data, structures, trade secrets, operations and affairs, processes, management systems, systems used in the generation of business, organisational structure and reasons therefore, whether in printed, magnetic or electronic form, or on film.

Luca Pay means Luca Pay Pty Ltd (ACN 647 749 004).

Luca Pay Purchases means purchases made by Customers to purchase Goods from you which are wholly or partly financed by our Services.

Luca Pay Trade Marks means Luca Pay logos registered with IP Australia.

Non-Excludable Rights means any condition, warranty, right, or guarantee, the exclusion of which would cause part or all of the Agreement to be void.

Refund Amount means the transacted amount returned to its original party.

Relevant Laws means any relevant law, regulation, code, ordinance, rule or other legislative instrument, or guideline issued by a regulator or statutory authority, or relevant industry codes.

Restricted Goods means Goods that we inform you from time to time are restricted.

Return means the return of Goods.

Sale Price means the price of Goods supplied by You to the Customer.

Services means Luca Pay's services that allow Customers to pay for goods or services offered by You.

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Last updated 1 year ago