Merchant service agreement

The merchant service agreement outlines the responsibilities of merchants processing payments via Pinch, as well as Pinch Payments itself. When you sign up for an account, this forms part of our agreement.

This Agreement was updated on 21st May 2018.

Applicability of this Agreement

If your business is a Micro-Enterprise, then all of the provisions of this Agreement will apply to you.

If your business is not a Micro-Enterprise, or at any time ceases to be a Micro-Enterprise, then the following clauses will not apply in this Agreement:

37 – which relates to the revision of Fees;
42 – which relates to a cap on your liability under clause 41; and
94 – which relates to the period of notice Pinch is required to give you if it changes or adds to the terms of this Agreement.

Setting up a Pinch Account

1. Pinch Payments (referred to as ‘Pinch’, ‘we’ or ‘us’) provides a service that enables suppliers (that’s ‘you’, also referred to as the ‘Merchant’) to set up and receive secure direct debit payments from their end customers (a ‘Customer’), over the internet. We also allow you to monitor the payments that you receive through Pinch. We do not provide a service that enables you to accept payment for non-commercial purposes.
2. This document sets out the terms and conditions of the agreement (‘Agreement’) between you and Pinch for the payment services provided by Pinch. These terms and conditions are available on our website and you may ask for a copy of them at any time while you have an account with us.
3. Subject to the remainder of this Agreement, Pinch will provide you with a Pinch Account.
4. You acknowledge and agree that:
   1. in order to set up a Pinch Account, you must satisfy Pinch’s know-your-customer and anti-money laundering requirements and any other checks we deem necessary, as further detailed in this Agreement;
   2. you shall provide reasonable information and assistance to Pinch in order to set up the Pinch Account including the Account Information;
   3. you may sign up as an individual (sole trader) or as a business entity such as a limited company or partnership, in which case any individual who signs up on behalf of the limited company or partnership must be authorised to act on behalf of it;
   4. other than upon termination of this Agreement, Pinch cannot initiate refunds of payments made to your Pinch Account on behalf of a Customer, and can only process them when requested to do so by you and, if a Customer cancels its Payment Scheme Mandate or any Payment Order you must seek payment direct from the Customer for any goods or services supplied;
   5. you must not utilise any refund capability of the Pinch Service for anything other than bona fide refunds requested by or appropriate to a particular Customer in relation to a specific Transaction. For example, you must not refund an amount greater than that paid by any Customer;
   6. by setting up a Pinch Account, you consent to Pinch providing the Pinch Service and processing Payment Orders and cancellations or Chargebacks in relation to Customer payments;
   7. the use of the Pinch Account and the supply of the Pinch Service will not create any liability on the part of Pinch in respect of the supply of goods or services by you to a Customer and you will remain directly liable in relation to such supply;
   8. therefore, you are also solely responsible for providing support and related services to your Customers for all issues related to that supply of goods or services, including (but not limited to) all issues arising from processing Customer payments through the Pinch Service; and
   9. Pinch may apply limits from time to time to the value of the Payment Orders that can be made in relation to your Pinch Account.

Verification of your Pinch Account

5. Before we can pay out any amounts to you, we must verify your identity (and that of individuals related to the running of any legal business entity), your business and your Nominated Account(s), to our satisfaction (“Verification”). If you initiate any Transactions prior to completion of Verification, this is entirely at your own risk and you acknowledge that those Transactions may be cancelled or reversed if Verification cannot be completed to our satisfaction.
6. To complete Verification, we will require you to provide certain information including, for example and without limitation:
   1. Your company registration number and address, and other company information such as information on directors or proof of incorporation;
   2. Personal details including date of birth, name and residential address, of you and any directors or other members of your company;
   3. Officially issued documentation such as a driving licence, government ID card, passport or similar, and/or proof of address such as a utility bill;
   4. Documentation such as bank statements, financial accounts and statements, and other information relating to the viability, business model and operating history of your business;
   5. We may ask you to transfer to us or receive a small payment so that we can check you have control of the Nominated Account.
7. In addition, you must inform us which Nominated Account(s) you would like us to settle funds to in respect of Transactions processed under a Payment Scheme. Each Nominated Account must:
   1. be located in the same country as the source of the Transaction funds;
   2. accept deposits in the same currency as the relevant Transactions; and
   3. be held in the name of your business
8. Our determination as to whether or not to provide you with the Pinch Service is final and we are not obligated to provide you with the Pinch Service.
9. In the event that we cannot complete Verification within a time period determined by and acceptable to us, we may immediately close your Pinch Account and terminate this Agreement upon notice to you. Upon such termination, we may, at our complete discretion, reverse or cancel or advise your Customers to reverse or cancel any Transactions.
10. We will not always provide specific detail regarding any failed Verification when providing notice of termination in order to protect, amongst other things, the details of our Verification processes, and the Pinch Service generally.
11. You acknowledge and authorise us to pass information, and obtain additional information about you and all those related parties for whom you provide information in relation to Verification, to and from certain third parties including identification, credit referencing and monitoring agencies. Information shared may include personal details such as your name, email address, date of birth, address, credit history and other information. Any such passing of information will be done always in accordance with Pinch’s Privacy Policy. We may update information about you and related parties from time to time to inform our decision as to whether to continue providing the Pinch Service to you.
12. Before providing you with the Pinch Service, we may, at our absolute discretion, require a personal guarantee from a director or other principal of a business, or from another entity, for Fees, Authorised Deductions and all other funds owed under this Agreement. If this is the case, we’ll get in touch with you.

Use of your Pinch Account

13. You are prohibited from:
    1. selling or transferring your Pinch Account;
    2. allowing third parties other than the Authorised Users to access your Account Details;
    3. using your Pinch Account to collect Personal Information relating to a Customer without first obtaining the Customer’s express permission;
    4. using your Pinch Account in any way which is unlawful;
    5. collecting, accessing or storing any of the customer’s bank details unless authorised to do so by the Customer; and
    6. using or permitting the use of your Pinch Account to carry out any Restricted Activity; if you’re unsure as to whether your use might constitute a Restricted Activity, please contact us.
14. You will be responsible for all acts and omissions of the Authorised Users in relation to the Pinch Service and acknowledge that Pinch cannot monitor which individual is using the Pinch Account and as such cannot restrict access on a per-user basis.

Keeping your Pinch Account secure

15. You must take reasonable steps to keep your Account Details safe and to prevent fraudulent use of your Pinch Account and must ensure that the Authorised Users of the Account Details take the same reasonable steps.
16. The reasonable steps referred to in clause 15 will include but not be limited to:
    1. keeping Account Details and any paperwork relating to the Pinch Account in a secure location;
    2. not writing and keeping the Account Details down together;
    3. updating passwords for the Pinch Account on a regular basis and in any case at least once every 6 months;
    4. ensuring that passwords for the Pinch Account are sufficiently strong, by using a combination of words, numbers, symbols and upper and lower case letters (providing such password is not the same as the username);
    5. taking reasonable care to ensure that third parties do not oversee or overhear the use of the Account Details;
    6. immediately terminating the use of the Account Details of any third party who is no longer an Authorised User; and
    7. informing Pinch without undue delay on becoming aware of the loss, theft, misappropriation or unauthorised use of the Account Details, at which point you must immediately change all passwords for the Account Details.
17. You agree that Pinch is entitled to assume that any party using the Account Details to access the Pinch Account is an Authorised User, unless you inform Pinch that the security of the Account Details have been breached as required by clause 16.g.

The API

18. Pinch will provide you with access to the API and the Documentation.
19. You must not use the API in any way which breaches the requirements and restrictions contained in the Documentation, or which constitutes a Restricted Activity, and we may ask you to install or update certain software in order to ensure the proper functioning of the API.

Our Trade Marks and Intellectual Property

20. We may make certain logos, trade marks and similar devices owned by Pinch or its affiliates available for use by you on a temporary basis (the “Pinch Marks”). If so, you agree to only use the Pinch Marks in accordance with the guidelines found at https://getpinch.com.au/brand, as may be updated from time to time. As and when any new Pinch Marks are released, you must ensure you are using the latest versions.
21. You may only use the Pinch Service in a manner consistent with this Agreement. All intellectual property in the Pinch Service including that protected by, without limitation, copyright, design right, patents, trade secret and other laws, is and remains the property of Pinch. Should you make or suggest improvements or changes to the Pinch Service, you agree that any intellectual property in such suggestion is the property of Pinch and that Pinch may exploit such intellectual property as it sees fit.

Processing Payments

22. Subject to the requirements and conditions in this Agreement Pinch will provide you with the Pinch Service.
23. Upon receipt of a Customer’s Payment Order, Pinch will transmit the Payment Order to the Customer’s bank in accordance with Good Industry Practice.
24. Pinch will use reasonable endeavours to:
    1. set up Payment Scheme Mandates and Payment Orders; and
    2. transfer payments to and from the Pinch Client Account and the Nominated Account(s),
    3. in each case by no later than the time periods set out in the Payment Scheme Timings to the extent such actions are within its control.
25. Funds received by Pinch from the Customer’s bank in satisfaction of a Payment Order will be:
    1. held in the Pinch Client Account in order to safeguard your money;
    2. allocated to your Pinch Account before being paid out to you; and
    3. subject to Pinch first deducting all Authorised Deductions and any other amounts Pinch is authorised to deduct in accordance with the terms of this Agreement, and subject to all Verification being complete, transferred to the Nominated Account in accordance with and by no later than the time periods set out in the Payment Scheme Timing, as adjusted by any Monitoring Programme requirement.
26. We may suspend payouts to your Nominated Account(s) or otherwise amend the Payment Scheme Timings applicable to your payouts if, in our opinion, we think such suspension or amendment is required, for example, as a result of excessive or anticipated excessive Chargebacks and/or refunds, pending disputes, other suspected fraudulent or otherwise suspicious activity related to your Pinch Account. We will notify you of such suspension unless to do so would be unlawful or we have grounds to suspect fraudulent or any other form of criminal use of your Pinch Account.
27. You acknowledge that you are not due and will not be entitled to receive any interest on funds that are held by Pinch on your behalf.

Cancellations and Refunds

28. If, for any reason, you wish to cancel a Payment Order or Payment Scheme Mandate, you must notify Pinch in accordance with the relevant Payment Scheme Timing. Notice for these purposes can be given by email to hello@getpinch.com.au or using the contact details on the Pinch Site.
29. If a Customer cancels their Payment Scheme Mandate or Payment Orders in accordance with the relevant Payment Scheme Timing, Pinch will have no obligation to pay you in respect of such cancelled Payment Order and no liability to you in respect of such cancellation.
30. Pinch will inform you as soon as reasonably practicable of any Payment Orders cancelled by the Customer by displaying information via your Pinch Account or through the API.
31. If a Customer cancels any order or contract to which a Payment Order relates directly with you, you must:
    1. inform Pinch as soon as reasonably practicable (in which case Pinch will not process the Payment Order if Payment Scheme Timings allow); or
    2. refund directly to the Customer the sums received by you in connection with the Payment Order; or
    3. ask Pinch to process a refund to the Customer from your Pinch Account.
32. If Pinch receives written notice from you that a Customer Payment Order has been cancelled, we may notify the Customer of such cancellation.
33. You acknowledge that Pinch is not able to recover or challenge any Chargeback that relates to a Payment Order that has, from an administrative standpoint and in relation to the Payment Scheme, been submitted correctly. For example, if a Customer initiates a Chargeback that results in that Customer being in breach of their contract with you, Pinch cannot challenge the Chargeback or recover the funds to which that Chargeback relates.
34. You shall indemnify Pinch against any losses, costs, claims, damages and expenses suffered or incurred by Pinch as a result of or in connection with any failure by you to obtain all consents and authorisations from Customers, or to provide them with any information necessary for the lawful processing of Payment Orders.
35. You shall indemnify Pinch in respect of any amounts and costs incurred as a result of any Chargeback, claim or refund (fraudulent or otherwise) initiated by a Customer and that Pinch is obliged to make under the relevant Payment Scheme Rules. For the avoidance of doubt, Pinch may not claim under this indemnity where any amounts or costs incurred arise as a result of Pinch’s negligence, default, mismanagement or mistake.

Deductions, Payments and Invoicing

36. You authorise Pinch to deduct (a) the Authorised Deductions from any sums payable by Pinch to you under the terms of this Agreement at all times, and (b) the Fees.
37. We reserve the right to revise our Fees at any time, upon no less than two months’ written notice to you. If you do not notify us to the contrary before the date on which the proposed changes will enter force, we will deem you to have accepted that revision of our Fees. You will have the right to terminate this Agreement immediately and without charge during the period in which we have given you such notice up until the date on which those changes will come into force.

38. If the amount of any Authorised Deductions and/or Fees (including, without limitation, following the termination of this Agreement) exceeds the amount of any sums payable by Pinch to you, Pinch may invoice you for the difference. The amounts set out in any such invoice are due and payable immediately.

Unauthorised Payments

39. You must notify Pinch as soon as reasonably practicable (and in any event within 13 months of the relevant Payment Order) upon becoming aware of any Unauthorised Payment Order by notifying Pinch by email to hello@getpinch.com.au or by phone using the contact details provided on the Pinch Site.
40. Subject to your compliance with clause 39 and subject to clause 41, Pinch will repay the amount of any Unauthorised Payment Order and any related interest and charges but will have no further liability to you.
41. Notwithstanding clause 40 and subject to clause 42 and 43 you will be liable to Pinch for any losses, costs and expenses suffered or incurred by Pinch as a result of any Unauthorised Payment Order in circumstances where:
    1. the Account Details have been lost or stolen; or
    2. you have failed to comply with your obligations under this Agreement in relation to the security of the Account Details.
42. Your liability under clause 41 will be limited in relation to each Unauthorised Payment Order to $100.00AUD unless the Unauthorised Payment Order results wholly or mainly from:
    1. your fraud; or
    2. your failure to comply with your obligations under this Agreement in relation to the security of the Account Details.

43. You will have no liability to Pinch in relation to any Unauthorised Payment order where:
    1. the Unauthorised Payment Order occurs after you have notified Pinch that your Account Details have been lost, stolen or misappropriated; or
    2. Pinch has failed to provide you with the means to notify us of the loss, theft or misappropriation of the Account Details (except where such failure arises wholly or mainly due to factors outside Pinch’s reasonable control or our compliance with relevant law).

Incorrectly Executed Payments

44. You are solely responsible for reconciling your Transactions and Payment Orders with your accounts and actual bank transactions.
45. You must notify Pinch as soon as reasonably practicable (and in any event within 13 months of the relevant Payment Order) upon becoming aware of any Incorrectly Executed Payment Order by notifying Pinch by email to hello@getpinch.com.au or by phone using the contact details provided on the Pinch Site.
46. If you inform Pinch that there has been an Incorrectly Executed Payment Order, Pinch will make reasonable efforts to trace the relevant funds and notify you of the outcome.
47. Pinch will be liable to you in respect of any Incorrectly Executed Payment Order which results from Pinch’s failure to comply with its obligations under this Agreement in which case Pinch will as soon as reasonably practicable:
    1. refund the amount of the Incorrectly Executed Payment Order and restore the debited payment account to the state in which it would have been had Incorrectly Executed Payment Orders not taken place;
    2. or if the Incorrectly Executed Payment Order has not been executed at all, re-transmit the Payment Order in each case, unless and to the extent that Pinch can prove that the payee’s payment service provider has received the funds in accordance with the Payment Order, in which case the payee’s payment service provider must make those funds available to the payee and Pinch will have no further liability in respect of the Incorrectly Executed Payment Order.

Suspected Fraud

48. You must notify Pinch as soon as reasonably practicable if you become aware of any fraudulent or other illegal activity on the part of a Customer (including, without limitation, money laundering or terrorist financing) by emailing Pinch at hello@getpinch.com.au or by phone using the contact details provided on the Pinch Site.
49. If we suspect that any Transaction is fraudulent, is in violation of this Agreement, law or regulation, or the relevant Payment Scheme, or is likely to expose either Pinch, or any other party to harm, we reserve the right not to process that Transaction, and if the Transaction has already been processed, to reverse it if possible to do so, and/or to advise your Customer to claim such funds back resulting in a Chargeback that you would be liable for. In addition, you grant us permission to provide any law enforcement, government or similar agency or body with information about you, your Transactions and any other information we hold about you if we suspect that your account has been used or is likely to be used in the manner set out above. We may do all of these things even following termination of your Pinch Account and this Agreement.

Law enforcement and other demands

50. Pinch respects your privacy and your role as a Entity. However, we reserve the right to respond to any demand, order, request or legal instrument from any government, law enforcement or similar agency that we believe is valid (a “Legal Process Request”). We are in no way liable to you or any other party, whether for indirect or direct losses or otherwise, as a result of our compliance or non-compliance with any Legal Process Request.
51. We may deliver funds relating to or deriving from your use of the Pinch Service and/or information where required to do so by or in connection with a Legal Process Request. Where we are permitted to do so, and unless to do so would, in our sole and absolute discretion, put the security of the Pinch Service or any individual at risk, we will use reasonable endeavours to provide you with notice of any such Legal Process Request.

Warranties

52. Pinch does not warrant that the Pinch Service will be uninterrupted or error free, but will use reasonable commercial endeavours to provide the Pinch Service.
53. You warrant that:
    1. you will comply with your obligations under this Agreement;
    2. you will comply with the rules of each relevant Payment Scheme and all applicable law;
    3. you will obtain all consents and authorisations necessary for the lawful processing of Payment Orders;
    4. the name provided when registering to use the Pinch Service, and in relation to Verification, is the full legal name of your business under which you sell goods and services;
    5. you will ensure that all obligations to your Customers are fulfilled, and that you will resolve all complaints or disputes directly with your Customers;
    6. you will not undertake any Restricted Activity; and
    7. you will comply with all applicable legal and regulatory requirements in relation to your use of the Pinch Service.

Liability

54. All conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Pinch Service are excluded to the extent permitted by law.
55. Subject to clause 56, the entire liability of Pinch arising out of or in connection with the supply, non-supply or delay in supplying the Pinch Service or otherwise in connection with this Agreement, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, is limited in respect of each event or series of connected events to the amount of the Fees due to Pinch in the three (3) calendar months preceding the date on which the first such event or events occurred.
56. Nothing in this Agreement shall operate to exclude or restrict either Party’s (or that Party’s employees’ or agents’) liability for:
    1. any matter which cannot be limited or excluded by law;
    2. death or personal injury resulting from negligence; or
    3. fraud, deceit or fraudulent misrepresentation.

Third party services

57. You may utilise third party services that connect directly to your Pinch Account via the API or other mechanisms. Pinch is not responsible for any aspect of such service, including security, availability, support or functionality. You use such services at your own risk, and are responsible for all Transactions initiated or otherwise affected by such service.

Suspension of your Account and the Services

58. Pinch will be entitled to suspend or withdraw your right to use the Pinch Service and the API where:
    1. you are in breach of any of your obligations under this Agreement;
    2. you have breached your obligations in respect of the security of your Pinch Account or Pinch has reasonable grounds to suspect such breach;
    3. you have used the Pinch Service or the API to carry out any Restricted Activities;
    4. you suffer an Insolvency Event or Pinch reasonably suspects that you will do so;
    5. you fail to pay to Pinch when due any sum payable to us under this Agreement;
    6. you have used the Pinch Service or the API in a manner which is unlawful;
    7. there has been unauthorised or fraudulent use of your Account Details or Pinch has reasonable grounds to suspect such fraudulent or unauthorised use;
    8. while Pinch is conducting anti-money laundering or similar checks on you, until those checks are resolved to Pinch’s satisfaction; or
    9. it is required to do so by law or regulation.
59. Where any of the factors for suspension referred to above cease to exist then, unless Pinch exercises its rights to terminate this Agreement in light of such factors, Pinch will, as soon as reasonably practicable, reinstate your access to the Pinch Service and the API but may require you to change the Account Details.

Monitoring Programme

60. Pinch monitors the status of Your Pinch Account in order to ensure, amongst other things, that your use of the Pinch Service does not result in a level of Chargebacks that is unacceptable to Pinch.
61. Where either Claim Percentage is greater than or equal to 1%, and both Claim Percentages are less than 3%, you will be placed in to “Level 1” of the Monitoring Programme, which will have the following effects and requirements:
    1. You will receive one email notification indicating your being placed in to Level 1 of the Monitoring Programme;
    2. You will be required to achieve the Acceptable Claim Percentage by no later than the date falling 1 month from the date of the email notification referred to at clause 61.a, and shall maintain the Acceptable Claim Percentage for a further 2 months; and
    3. Should you fail to achieve the Acceptable Claim Percentage in the period set out at clause 61.b, Pinch may terminate this Agreement with 2 months’ written notice to you.
62. Where either Claim Percentage is greater than or equal to 3%, and both Claim Percentages are less than 5%, you will be placed in to “Level 2” of the Monitoring Programme, which will have the following effects and requirements:
    1. All requirements listed for Level 1 of the Monitoring Programme, and in addition;
    2. You will be required to, as soon as practicable, attend a phone call with the Pinch fraud team to discuss the Claim Percentages; and
    3. Transfers to your Nominated Account, as referred to in clause 25.c will be transferred to the Nominated Account within 30 days of the relevant Payment Scheme Timing.
63. Where either Claim Percentage is greater than or equal to 5%, and both Claim Percentages are less than 7%, you will be placed in to “Level 3” of the Monitoring Programme, which will have the following effects and requirements:
    1. All requirements listed for Level 1 and Level 2 of the Monitoring Programme, other than those listed at clauses 61.c and 62.c, and in addition;
    2. Should you fail to achieve the Acceptable Claim Percentage in the period set out at clause 61.b, Pinch may terminate this Agreement immediately upon written notice to you; and
    3. Transfers to your Nominated Account, as referred to in clause 25.c will be transferred to the Nominated Account within 60 days of the relevant Payment Scheme Timing.
64. Where either Claim Percentage is greater than or equal to 7%, Pinch may terminate this Agreement immediately upon written notice to you, and may initiate Chargebacks and/or refunds to all Customers.
65. Where you are already in one Level of the Monitoring Programme, should you increase Levels, no time period for achieving the Acceptable Claim Percentage will be reset.
66. It is not possible for you to reduce the Level of the Monitoring Programme applicable to you until the Acceptable Claim Percentage has been met as detailed above.

Termination

67. You will be deemed to have accepted the terms of this Agreement as soon as you sign up for a Pinch account, or start using the Pinch service, as appropriate.
68. You may terminate this Agreement on one months’ written notice to Pinch.
69. Either Party may terminate this Agreement with immediate effect by giving notice to the other Party if the other Party commits a material breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within 28 days of that Party being notified of the breach.
70. Pinch may terminate this Agreement:
    1. with two months written notice to you;
    2. with immediate effect if you suffer an Insolvency Event;
    3. with immediate effect if we determine, in our absolute and sole discretion, that you are not eligible to use the Pinch Service because of the risk presented to Pinch (including, but not limited to, fraud, Chargeback or other risk, or if you are unable to successfully complete Verification);
    4. in accordance with the terms of the Monitoring Programme; and
    5. with immediate effect, if you have undertaken a Restricted Activity or Pinch has reasonable grounds to suspect Restricted Activities have taken place.
71. For the purpose of this Agreement, a Party suffers an “Insolvency Event” if:
    1. it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
    2. it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that other Party;
    3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that other Party;
    4. that Party (being an individual) is the subject of a bankruptcy petition or order;
    5. a creditor or encumbrancer of that Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
    6. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over that Party (being a company);
    7. a floating charge holder over the assets of that Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
    8. a person becomes entitled to appoint a receiver over the assets of that Party or a receiver is appointed over the assets of the other Party;
    9. any event occurs or proceeding is taken with respect to that Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 71.a through 71.h inclusive; or
    10. it suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
72. Where this Agreement is terminated in accordance with this clause 71 Pinch will use reasonable endeavours to assist you in promptly moving to another direct debit supplier, which assistance shall include but not be limited to the following actions where to do so would not be a breach of law, regulation or applicable Payment Scheme Rules:
    1. providing you with a machine-readable list of each of your Customers and their Payment Scheme Mandate details; and
    2. entering in to a bulk change deed, or similar document required by the relevant Payment Scheme in order to facilitate a bulk transfer to another direct debit supplier.

Consequences of Termination

73. On termination of this Agreement for any reason:
    1. in the event that Pinch is unable or unwilling to make payments to you as a result of concerns relating to fraud, insolvency, anti-money laundering or other regulatory or legal requirements, Pinch may refund or otherwise return, or recommend that Customers Chargeback amounts that have been collected from Customers by Pinch but not paid out to you;
    2. you will not be able to initiate any further Transactions and, at Pinch’s sole discretion, may be unable to access the Pinch Service;
    3. any licence relating to intellectual property granted to you will cease, and use of any Pinch Marks by you must cease;
    4. we reserve the right to delete all of your information and data stored by us or our sub-processors and sub-contractors, but we are under no obligation to do so and we will not be in any way liable to you for any compensation, reimbursement or damages in relation to the deletion of your information or account data;
    5. Pinch shall be entitled to invoice you for any amounts due to Pinch by way of Authorised Deductions together with any outstanding Fees, and such invoice will be due and payable immediately;
    6. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry; and
    7. clauses which expressly or by implication have effect after termination shall continue in full force and effect.

Law

74. This Agreement and all disputes or claims arising out of or in connection with in (including any non-contractual) disputes, and any obligation arising out of or in connection with it, shall be governed by and construed in accordance with the laws of Australia.
75. The Parties agree that Australian courts shall have exclusive jurisdiction over any disputes relating or connected to it.

Disputes and complaints

76. Should you have any concerns or complaints about the Pinch Service you must contact Pinch using the contact information set out on the Pinch Site, and each Party commits to working with the other in good faith towards a swift resolution.
77. More information about how Pinch handles complaints is available on the Pinch Site and can be provided to you on request.
78. If Pinch is unable to resolve a complaint to your satisfaction, you may be able to refer the complaint to the Financial Ombudsman Service. The Financial Ombudsman Service is a free and independent service which seeks to settle disputes between certain parties. You can find more information about the Financial Ombudsman Service on its website: fos.org.au.

Data Protection

79. For the purposes of this Agreement, “Personal Information”, “Entity”, “collector”, and “holds” shall have the meaning given by the Privacy Act 1988.
80. If either Party to this Agreement holds as an Entity any Personal Information on behalf of the other Party (the other Party being the collector of that Personal Information) it will:
    1. implement adequate technical and organisational measures to protect against the unauthorised loss, disclosure or destruction of or damage to such Personal Information; and
    2. hold such Personal Information solely in accordance with the other Party’s instructions.
81. You represent and warrant that you have provided appropriate notice to, and obtained consent from, any Customer whose Personal Information you supply to Pinch, in accordance with the Privacy Act 1988. Pinch is not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals or for you providing outdated, incomplete, or inaccurate information.
82. You agree that Pinch may appoint sub-processors to hold Personal Information on your behalf, provided that:
    1. the appointment is in compliance with the Privacy Act 1988; and
    2. such processors are bound by terms that are substantially the same as those set out in this clause.
83. If necessary for the purposes of any transfer of Personal Information outside Australia, for example to the USA, including to sub-processors, you authorise Pinch to enter into Australian standard contractual clauses in respect of any such transfer.
84. If one of your Customers requests access to their Personal Information, that we hold on your behalf, we will refer that person to you wherever possible, and provide you with reasonable assistance for you to respond to such request or complaint.
85. You may utilise third party services that connect directly to your Pinch Account, either by providing them with your account details, via the API or other mechanisms. When you provide your account details to those third parties, you remain liable for all activity under your Pinch Account, and take full responsibility for ensuring that you have appropriate agreements in place with that third party in relation to transfer of data including Personal Information.

Maintenance

86. Pinch will use reasonable commercial endeavours to undertake maintenance of the Pinch Service so as not to cause disruption to the Pinch Service.
87. You may sign up for notifications of both Scheduled Maintenance and Emergency Maintenance via the online reporting tool made available by Pinch.

Force Majeure/Acts of God

88. For the purposes of this Agreement, “Force Majeure Event” means an event beyond the reasonable control of the affected Party, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of that Party or any other Party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
89. Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.

Assignment and subcontractors

90. Pinch may assign its rights under this Agreement or subcontract its obligations under it to a third party. You shall not assign this Agreement or any rights under this Agreement without Pinch’s prior written consent, and you shall not grant any security over this contract. Should Pinch agree to any assignment of this Agreement by you, any assignee must first satisfy Pinch’s know-your-customer, anti-money laundering requirements and Verification; and shall provide reasonable information and assistance to Pinch in order to set up the Pinch Account, including the Account Information.

Getting in touch

91. Any notice or other communication required to be given to a Party under or in connection with this Agreement may either be sent by e-mail or communicated by phone or by post to an address or number used for such communications by that Party. Pinch may also provide you with communications, disclosures or notices relating to the Pinch Service and relating to this Agreement using the Pinch Site or posting such notices to your mailing address. Electronic notices have the same meaning and effect as a paper copy.
92. Any notice or other communication shall be deemed to have been duly received the next Business Day following the notice being communicated.

General

93. This Agreement is in English and all correspondence will be in
94. Pinch may change or add to the terms of this Agreement and may change, remove, or insert conditions on the use of any feature or element of the Pinch Service with two months’ prior notice. Such notice may be given on our website or any other website we own or maintain and through which we provide services related to this Agreement. By continuing to use the Pinch Services, and unless you notify us otherwise before the date of any proposed change, you will be deemed to have accepted any such changes. If you do object to any change, you may terminate this Agreement immediately and without penalty before the date the relevant change is implemented.

95. Each Party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement, except in the case of fraudulent misrepresentation. No Party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

Waiver

96. A waiver of any right under this Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
97. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

Severance

98. If a court or any other competent authority finds that any provision of this Agreement (or part of any provision) to be invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

No Partnership and referring to our relationship

99. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way. Neither you nor Pinch will suggest or claim any sponsorship, endorsement or affiliation between us, unless such a relationship is governed by a separate agreement.
100. You agree that during the term of this Agreement, we may refer to you publicly as a customer of Pinch.

Third Party Rights

101. A person who is not a Party to this Agreement has no right to enforce any term of it but this does not affect any right or remedy of a third party which exists or is available under Australian law.

Change of circumstances

102. You will give Pinch at least 30 days’ notice of any proposed change of business, product or service type, trade name or other significant change in business practices or solvency.
103. You will also inform Pinch immediately of any Insolvency Event and include Pinch as a creditor in relation to any insolvency proceedings.
104. Should you undergo a change of Control, you must immediately notify Pinch of that change of Control and provide the details of the new party with Control.
105. Following a change of control:
     1. Pinch will be required to run anti-money laundering checks on you, taking into account the new party with Control, for which you agree to provide all information reasonably requested by Pinch; and
     2. should you, following the change of control, not be able to meet Pinch’s anti-money laundering or other legal or regulatory requirements, Pinch may immediately terminate this Agreement.

Definitions

Acceptable Claim Percentage means each of the Claim Frequency Percentage and Claim Value Percentage being less than 1%.

Account Details means the passwords, email addresses and other details used by you to access your Pinch Account and/or the API.

API means the application programming interface via which the Pinch Service may be integrated into your Website(s).

Account Information the information required by Pinch from time to time to verify your identity (including for anti-money laundering checks) and your creditworthiness, as notified to you.

Additional Costs means (a) any costs or charges incurred by Pinch in respect of any Unauthorised Payment Orders or Incorrectly Executed Payment Orders; and (b) any costs incurred or fees refunded by Pinch in relation to the cancellation of any Payment Orders, in each case other than as a result of fault or failure of Pinch.

Authorised Deductions means (a) any refunds to a Customer processed by Pinch at your request; and (b) any Chargebacks and/or indemnity claims made by a Customer under a Payment Scheme guarantee or otherwise.

Authorised Users means such of your employees, officers, consultants and other personnel who use your Pinch Account on your behalf.

Business Day means a day other than Saturday, Sunday or a day on which banks are authorised to close in Sydney for general banking business.

Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company, and the expression

change of control shall be construed accordingly.

Chargeback means any claim by a Customer having the effect, or substantially the same effect, of a Transaction being reversed such that funds are deducted from the Pinch Client Account in relation to that Transaction, including via any means prescribed by the relevant Payment Scheme, including the direct debit guarantee.

Claim Frequency Percentage means the percentage given by dividing (a) the total number of Chargebacks by (b) the total number of all Transactions, in each case in relation to the 30 day period (or, where the Pinch Service has been provided for a shorter period, such shorter period) immediately prior to such calculation being performed.

Claim Percentages means both the Claim Frequency Percentage and the Claim Value Percentage.

Claim Value Percentage means the percentage given by dividing (a) the total value of Chargebacks, by (b) the total value of all Transactions, in each case in relation to the 30 day period (or, where the Pinch Service has been provided for a shorter period, such shorter period) immediately prior to such calculation being performed.

Customer means a customer of yours.

Documentation means, in relation to the API, Pinch’s integration and user guides and software development kit.

Fees means the fees relating to the Pinch Service plan which you have selected from the options as set out at https://getpinch.com.au/pricing, and all related fees as set out on that page, and its replacement from time to time or such other fees may be agreed in writing between you and Pinch. If you signed up to the Pinch Service under the Standard plan prior to 10 May 2017 and have not since changed plans, and have not agreed any other fees in writing with Pinch, then the minimum fee of $0.50AUD per Transaction will not apply to you.

Pinch Account means an online account provided by Pinch to you, from which Payment Orders can be arranged.

Pinch Client Account means a bank account held and operated by Pinch with a reputable bank, where funds are held on trust for Merchants and separate from Pinch’ operating funds.

Pinch Service means the service provided by Pinch in relation to the provision of the Pinch Account and the processing of Payment Orders, relating to the Pinch Service plan which you have selected from the options as set out at https://getpinch.com.au/pricing, and its replacement from time to time.

Pinch Site means Pinch’ website at https://getpinch.com.au or such replacement website as may be notified to you from time to time.

Good Industry Practice means, in relation to the Pinch Service, the standards and practices which a reasonably prudent and experienced supplier of similar services would reasonably be expected to adopt.

Incorrectly Executed Payment Order means any Payment Order made or attempted via your Pinch Account which has not been executed or has not been correctly executed.

Micro-Enterprise means a business that employs less than 10 people and has annual turnover and/or an annual balance sheet which does not exceed $3 million AUD.

Monitoring Programme means the monitoring of Merchant’s Pinch Account by Pinch, together with resultant effects and requirements, as set out from clause 60 to 66.

Nominated Account means the bank account to which you have requested Pinch to pay sums held by Pinch on your behalf for the relevant Payment Scheme, being an account denominated in the relevant currency for that Payment Scheme.

Party means each of Pinch and you, and

Parties means both of us.

Payment Date means, in relation to a Payment Order, the date on which you have requested payment to be taken from the Customer.

Payment Notifications means the notifications to be sent to a Customer prior to or following a Payment Order or the establishment of a Payment Scheme Mandate or other action, as required by the relevant Payment Scheme.

Payment Order means a request made by you via your Pinch Account for payment to be made either, as the context admits or requires, from you to a named payee or from a Customer to you, in each case in a specified amount on a specified date.

Payment Scheme means, in relation to a particular Payment Scheme Mandate, Payment Order or Transaction, the underlying direct debit or direct-debit like system, being one of those identified on the Payment Scheme Timings Page, and Payment Schemes means all of them.

Payment Scheme Mandate means the authority provided by the Customer which authorises you to take payment from the Customer’s bank account and pursuant to which you will make Payment Orders, in accordance with the rules of the relevant Payment Scheme.

Payment Scheme Timings means the timings set out at the Payment Scheme Timings Page, which are applicable where no administrative error is present or occurs as a result of information provided or actions taken by you or a Customer.

Payment Scheme Timings Page means the webpage located at https://getpinch.com.au/legal/paymenttimings and its replacement from time to time.

Personal Information has the meaning given to that term in clause 79.

Restricted Activities means the restricted activities set out at https://getpinch.com.au/legal/restrictedactivities or such replacement page from time to time.

Transaction means the receipt by you of a payment from a Customer, pursuant to a Payment Order.

Unauthorised Payment Order means any Payment Order made or attempted in relation to a payment via your Pinch Account which was not authorised by you.