Merchant Services Agreement

These Terms apply to the Merchant’s use of the Pinch Service. They are a binding agreement between Zootive Pty Ltd (ABN 64 612 280 225) (trading as Pinch Payments) (Pinch) and the Merchant, being any individual person or legal entity whose representative click the “I Agree to the Terms” checkbox within the Merchant application.

This Agreement was updated on the 2nd of March 2026.

1. PINCH

a. Pinch Services enable Merchants to set up and receive secure payments from debit/credit cards and direct from Australian bank accounts via BECS Direct Debit from their end Customer over the internet. Pinch also allows Merchants to monitor the payments that Merchants receive through Pinch.

b. This document sets out the terms and conditions of the Agreement between the Merchant and Pinch for the Services provided by Pinch. This Agreement is available on Pinch’s website and the Merchant may ask for a copy of it at any time while the Merchant has an account with Pinch.

1.1 Networks

a. Pinch will provide the Merchant with Services for Visa®, Mastercard® and American Express (Networks) and BECS Direct Debit.

b. The Merchant will comply with all rules, requirements and standards or each of the Networks, any regulations, requirements and standards issued by a government authority or industry body and any conditions, requirements. Under Payment Scheme / Card Scheme Rules, the Merchant does not own the Card account, Cardholder, personal or other payment transaction information generated when a payment transaction is processed using the Pinch Services. The Merchant will not use, retain, disclose, sell or disseminate any Card or Cardholder information (including names, addresses and Card account numbers) obtained in connection with payment transactions except for (1) authorising, processing and settling transactions; or (2) chargebacks, retrieval requests or similar issues related to its transactions.

c. The Merchant will not reproduce electronically captured Cardholder signatures except as requested by Pinch or the Networks.

d. Substantial portions of Payment Scheme / Card Scheme Rules agreements are available at their respective websites:

1. Visa: https://usa.visa.com/support/consumer/visa-rules.html.

2. Mastercard: https://www.mastercard.com/us/en/business/support/rules.html.

3. American Express: https://www.americanexpress.com/en-au/business/merchant/help-support.html?inav=au_menu_business_merch_contact.

1.2 Merchant Obligations

a. The Merchant warrants and agree that the Merchant Pinch Account is only for a commercial or business purpose and not for personal, domestic, or household use. Pinch does not provide a service that enables the Merchant to accept payments for non-commercial purposes.

b. The Merchant acknowledges and agrees that:

1. The Merchant eligible to set up a Pinch Account to use the Pinch Services and have the authority to execute and perform the obligations required by this Agreement and to be bound by the Agreement;

2. In order to set up a Pinch Account, the Merchant must satisfy Pinch’s know-your-customer and anti-money laundering requirements and any other checks Pinch deem necessary, as further detailed in this Agreement;

3. The Merchant shall provide reasonable information and assistance to Pinch in order to set up the Pinch Account including the Account Information, and warrant that any information the Merchant provides to Pinch about the Merchant’s business, products, or services is accurate and complete;

4. The Merchant 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;

5. Other than upon termination of this Agreement, Pinch cannot initiate refunds of payment made to the Merchant Pinch Account on behalf of a Customer, and can only process them when requested to do so by the Merchant. If a Customer cancels its Payment Scheme Mandate or any Payment Order, the Merchant must seek a new agreement or payment direct from the Customer for any goods or services supplied;

6. The Merchant 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, the Merchant must not refund an amount greater than that paid by any Customer;

7. The Merchant will not use the Pinch Services, directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Pinch Services;

8. The Merchant will ensure that the Merchant prominently and unequivocally inform a Cardholder of the Merchant’s identity at all points of interaction so that the Cardholder can readily distinguish the Merchant from any other third party, such as a supplier of products or services to the Merchant, and will ensure that the Merchant’s website:

(a) Prominently displays the Merchant’s name;

(b) Prominently identifies the Merchant’s name as displayed on the Merchant’s website as both the Merchant’s name and the name that will appear on the Cardholder statement; and

(c) Displays the Merchant’s name and information as prominently as any other information depicted on the Merchant’s website, other than the images of the goods or services being offered by the Merchant.

9. By setting up a Pinch Account, the Merchant consents to Pinch providing the Pinch Services and processing Payment Orders and cancellations or Chargebacks in relation to Customer payments; and

10. The Merchant will comply with all relevant Laws applicable to the Merchant.

c. The use of the Pinch Account and the supply of the Pinch Services will not create any liability on the part of Pinch in respect of the supply of goods or services by the Merchant to the Merchant’s Customer and the Merchant will remain directly liable in relation to such supply. Therefore, the Merchant is also solely responsible for providing support and related services to the Merchant’s Customers for all issues related to that supply of goods or services.

1.3 Verification of the Merchant Pinch Account

a. Before the Merchant may begin to initiate any Transactions via Pinch, Pinch must verify the Merchant’s identity, the Merchant’s business and the Merchant’s Nominated Account(s), to Pinch’s satisfaction (Verification).

b. Pinch’s determination as to whether or not to provide the Merchant with the Pinch Services is final and Pinch are not obligated to provide the Merchant with the Pinch Services.

c. Pinch is required to identify and verify its Merchants and Customers to comply with regulatory obligations. Merchants must complete the required verification steps within 30 days and if verification is not completed, Pinch will close the Pinch Account and terminate the Agreement with five (5) days’ notice.

d. Pinch 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 Pinch’s Verification processes, and the Pinch Services generally.

e. Without limiting the types of information, the Merchant will provide to Pinch under this Agreement, the Merchant must provide all information to Pinch which Pinch reasonably requires in to:

1. Manage any anti-money laundering, counter terrorism financing risk, including in relation to ongoing due diligence; or

2. Comply with any relevant Laws, regulations or prohibitions that may be applicable to Pinch.

f. Before providing the Merchant with the Pinch Service, Pinch may 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, Pinch will get in touch with the Merchant.

g. The Merchant is prohibited from:

1. Selling or transferring the Merchant Pinch Account;

2. Allowing third parties other than the Authorised Users to access the Merchant’s Account Details;

3. Using the Merchant Pinch Account to collect Personal Information relating to a Customer without first obtaining the Customer’s express permission;

4. Using the Merchant Pinch Account in any way which is unlawful;

5. Collecting, accessing or storing any of the Customer’s card or bank details unless authorised to do so by the Customer; and

6. Using or permitting the use of the Merchant Pinch Account to carry out any Restricted Activity.

h. The Merchant will be solely responsible for all acts and omissions of the Authorised Users in relation to the Pinch Service.

1.4 Locations

a. The Merchant must be domiciled in Australia as required by applicable Laws and Payment Scheme / Card Scheme Rules to submit Transactions to Pinch. Pinch will perform the Pinch Services for payment Transactions submitted from all the Merchant’s locations in Australia.

1.5 Submitting Transactions

a. The Merchant is responsible for:

1. Ensuring the Merchant does not impose any minimum or maximum Transaction value;

2. Properly transmitting the Transaction data (including all Transaction detail/s required by the Networks) to Pinch’s systems using the format and specifications provided by Pinch (the Merchant will maintain and update the systems that is uses to accommodate changing Network requirements and industry requirements as specified by Pinch);

3. All payment Transactions submitted for processing including, without limitation, all returns, refunds or chargebacks, whether charged back by Cardholders or Card issuers;

4. Preventing its employees and others from submitting returns or refunds that do not reflect valid returns or refunds corresponding to prior Transactions; and

5. Retaining Transaction records according to the timelines required by the Payment Scheme / Card Scheme Rules or applicable Laws.

1.6 Transaction Acceptance

a. The Merchant will only accept and submit Transactions where:

1. The Transaction represents a genuine sale of the Merchant’s goods or services to the Cardholder;

2. The Transaction is not materially different than the Transactions the Merchant has described to Pinch with regard to the products or services sold, the procedures for payments acceptance or the fulfilment or obligations to the Cardholder;

3. The Transaction complies with all requirements of the applicable Payment Scheme / Card Scheme Rules, the Laws of all relevant jurisdictions, and all other requirements of this Agreement;

4. The Transaction is not a duplicate of any other Transaction;

5. The Transaction is authorised by the rightful Cardholder for the amount of the Transaction in satisfaction of the Cardholder’s obligation to the Merchant;

6. The Transaction is in payment of goods or services provided simultaneously with the payment Transaction (except for delayed delivery, advance deposit or other partial Transactions specifically allowed under the Payment Scheme / Card Scheme Rules and explicitly authorised by Pinch in writing);

7. The Transaction is not a refinancing of an existing obligation;

8. The Transaction is not split into two or more Transactions;

9. The Transaction, if processed, will not give a Cardholder cash, unless expressly agreed otherwise by Pinch and the Merchant Acquirer;

10. The Transaction does not use a Card issued in the Merchant’s name, or related to the bank account of a partner in, or director or other officer of the Merchant’s business, or of the spouse or any member of the immediate family or household of any such person;

11. The Merchant has conducted proper checks to ensure that there is valid and legal use of the card being used and Merchant has no wilful knowledge of any suspicious, improper or illegal circumstances surrounding the Card and the Transaction;

12. The Transaction is valid, collectible and is not subject to any dispute, set-off or counterclaim; and

13. In the case of a refund, the Transaction is submitted to reimburse the Cardholder for a sale Transaction that was previously submitted.

1.7 Tripartite Agreement

a. If a Merchant has been approved to accept Visa® and Mastercard® transactions, and has annual Transactions totalling equal to or greater than $1,500,000.00 with either or both of those respective Networks, a Tripartite Agreement must be entered into with the following parties:

1. The Merchant;

2. Pinch; and

3. First Data Merchant Solutions Australia Pty Ltd (ABN 51 115 245 531).

1.8 MATCH Reporting

a. Under some circumstances, Pinch may be required to report the Merchant to the Member Alert to Control High Risk (MATCH) listing or similar listings maintained by the Networks. The Merchant agrees that Pinch will not be liable for any losses, damages or liabilities that may result from that reporting.

1.9 Mark License; Network Decals

a. For the duration of this Agreement, Pinch grants the Merchant a revocable, royalty free, non-exclusive limited license that cannot be assigned, transferred or further sublicensed to use the Networks’ trademarks and service marks (together, Protected Marks) in Australia according to the applicable Payment Scheme / Card Scheme Rules. This license may be revoked at any time and without notice by any of the Networks and does not grant the Merchant any other intellectual property right, title, interest or claim (express or implied, by estoppel or otherwise) to the Protected Marks. The Merchant will not take any action that impairs an owner’s intellectual property rights in its Protected Marks.

b. The Merchant will discontinue use of the Networks’ decals, promotional or other materials after the termination of this Agreement. The Merchant will not indicate that its product or services are endorsed by any of the Networks.

c. Save for the limited license granted under clause 1.9.a, nothing in this Agreement shall be interpreted as granting to the Merchant a license to use Pinch’s intellectual property. The Merchant shall promptly notify Pinch of any infringement or threatened infringement or of any challenges to the validity or ownership of any of Pinch’s intellectual property, and the Merchant will provide reasonable assistance to Pinch, at Pinch’s reasonable expense, in connection with Pinch’s defence to such challenges.

d. Pinch may include the Merchant’s name, description, and hyperlinks to the Merchant’s website, on Pinch’s website and other marketing material.

2. PINCH SERVICE

2.1 The API

a. Pinch will provide the Merchant with access to the API and the Documentation.

b. The Merchant 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 Pinch may ask the Merchant to install or update certain software in order to ensure the proper functioning of the API.

2.2 Processing Payments

a. Pinch will use reasonable endeavours to:

1. Set up Payment Scheme Mandates and Payment Order; and

2. Transfer payments to and from the Pinch Client Account and the Nominated Account(s);

in each case no later than the time periods set out in the Payment Scheme Timings to the extent that such actions are within its control.

b. 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 the Merchant’s money;

2. Allocated to the Merchant’s Nominated Account and paid out to the Merchant; and

3. Subject to Pinch first deducting Authorised Deductions and any other amounts Pinch is authorised to deduct in accordance with the terms of this Agreement, and subject to all Verifications being complete, transferred to the Nominated Account in accordance with the time periods set out in the Payment Scheme Timing.

c. Pinch may suspend payouts to the Merchant’s Nominated Account(s) or otherwise amend the Payment Scheme Timings applicable to the Merchant’s payouts where there has been suspected fraud, criminal use, or otherwise suspicious activity of the Pinch Account.

d. Pinch will notify the Merchant of such suspension unless to do so would be unlawful or Pinch have grounds to suspect fraudulent or any other form of criminal use of the Merchant Pinch Account.

e. The Merchant acknowledge that the Merchant is not due and will not be entitled to receive any interest on funds that are held by Pinch on the Merchant’s behalf, unless otherwise stated in this Agreement.

2.3 Cancellations

a. If, for any reason, the Merchant wishes to cancel a Payment Order or Payment Scheme Mandate, the Merchant should cancel any pre-approvals in place and consider refunding the appropriate Customers.

b. Customers can cancel a Payment Order, Payment Scheme Mandate, Direct Debit Request (DDR), or pre-approval by contacting the Merchant, Pinch or their bank / card provider. If Pinch received a request for DDR cancellation, Pinch must and will stop taking further payments from the Customer’s account.

c. If a Customer cancels their Payment Scheme Mandate or Payment Orders in accordance with the relevant Payment Scheme or via a cancellation of their pre-approval, Pinch will have no obligation to pay the Merchant in respect of such cancelled Payment Order and no liability to the Merchant in respect of such cancellation.

d. Pinch will inform the Merchant as soon as reasonably practicable of any Payment Orders cancelled by the Customer by displaying information via the Merchant Pinch Account or through the API.

e. If a Customer cancels any order or contract to which a Payment Order relates directly with the Merchant, the Merchant must:

1. Cancel any pre-approvals in place; or

2. Inform Pinch as soon as reasonably practicable (in which case Pinch will not process the Payment Order if Payment Scheme Timings allow); or

3. Process a refund to the Customer from the Merchant Pinch Account.

f. If a Customer is wrongly charged after a cancelled Payment Order of DDR, the Merchant must immediately initiate a refund from the Merchant Pinch Account.

g. If Pinch received written notice from the Merchant that a Customer Payment Order has been cancelled, Pinch may notify the Merchant of such cancellation.

2.4 Maintenance and Outages

a. Maintenance:

1. Pinch will use reasonable commercial endeavours to undertake maintenance of the Pinch Services so as to not cause disruption to the Pinch Services.

2. The Merchant may sign up for notifications of both Scheduled Maintenance and Emergency Maintenance via Pinch’s online reporting tool.

b. Scheduled Outages:

1. The Pinch system will be available for 99.5% of all hours of each day of the calendar year.

2. However, scheduled maintenance is required and Pinch will ensure there are no more than 5 scheduled outages per annum unless a planned outage is deemed necessary to meet stipulated service levels. Pinch will provide the Merchant with as much prior notice of scheduled outages as possible but in any event no less than 5 Business Days prior to notice thereof.

c. Unscheduled Outages:

1. Unscheduled outages are defined as unplanned time frames when the system becomes unavailable due to a Pinch infrastructure fault. Unscheduled outages are classified by severity level as follows.

(a) Priority 1 – Critical fault defined as a total inability to perform one or more critical business functions e.g. all transactions failing, CRM unavailable, security issue etc.

(b) Priority 2 – Serious fault defined as severe restriction on the use of the system or one of its modules e.g. many transactions failing, transaction history unavailable etc.

(c) Priority 3 – Important to business but not vital that it be rectified immediately e.g. bug report etc.

3. RESTRICTED ACTIVITIES

a. The undertaking of any of these activities will be in breach of the Merchant’s Agreement with Pinch. Using or attempting to use Pinch in any way or in connection with any activity which:

1. Is fraudulent or unlawful;

2. Misrepresents the Merchant’s identity or gives the impression that the Merchant is associated or affiliated with a third party if this is not the case;

3. Breaches any applicable Law;

4. Could reasonably be considered harmful, false, misleading, unlawful, obscene, defamatory, libelous, threatening, harassing or hateful;

5. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

6. Promotes violence, illegal drugs or any other illegal activity;

7. Infringes any third party’s intellectual property or other proprietary rights under any jurisdiction;

8. Breaches an obligation or duty of confidentiality;

9. Involved gambling, betting tips, prize draws or any form of lottery;

10. Invades any Person’s privacy;

11. Knowingly or negligently transmits or attempts to transmit any data or material that contains viruses, Trojan horses, adware, spyware, worms, or other malicious code or program designed to adversely affect the operation of software or hardware;

12. Collect, or has the purpose to collect, transmit Personal Information about any Person without their consent;

13. Transmits, send or uploads any unsolicited or unauthorised advertising or promotional material;

14. Could reasonably be expected to damage, disable, overburden, or impair it, including, without limitation, using the Pinch Service in an automated manner other than as permitted by the Pinch API and the relevant documentation;

15. Results in the completion of Direct Debit Mandate on behalf of another;

16. Accesses or attempts to access any software underlying the Pinch Service; or

17. Relates to the control of an account that is linked to another account, the users of which have engaged in any of the foregoing activities.

b. The activities listed within clause 3.a. are collectively referred to as Restricted Activities.

4. FINANCIAL INFORMATION; AUDIT

The Merchant will, within five (5) Business Days of being requested by Pinch, provide any financial or other information reasonably requested by Pinch to perform credit risk, security and qualification, regulatory and Network compliance tasks and other reviews related to the provision of the Pinch Services, Transactions submitted, fulfilment of obligations to Pinch or Cardholders or the financial condition of the Merchant. The Merchant authorises Pinch to obtain information from third parties when performing credit risk, security, qualification and other reviews. Pinch may perform a reasonable audit of the Merchant’s records related to its performance under this Agreement within five (5) days’ advance written notice to the Merchant, during the Merchant’s normal business hours, and at Pinch’s expense.

5. NOTICE OF MATERIAL CHANGES; THIRD PARTIES

a. The Merchant will promptly provide Pinch with reasonable advance notice of any material change in the nature of the Merchant’s business (including any Change of Control or merger, any liquidation, any transfer or sale of substantially all of its assets or any change to the Merchant’s operations that would materially affect the products or services sold, the procedures for payments acceptance or the fulfilment of obligations to a Cardholder).

b. The Merchant will provide Pinch with written disclosure identifying the third parties, system, and services the Merchant uses to receive, transmit, process or otherwise manage information or its information technology systems (for example, gateways, encryption or firewall providers) related to the Transaction information or payment data processed in connection with this Agreement (these third parties must be registered providers with the Networks).

6. THE MERCHANT'S PAYMENT OBLIGATIONS

6.1 Payment Obligations

The Merchant will pay for Pinch for:

a. All Fees and charges for the Services;

b. All Transactions that are charged back by Cardholders, Card issuers or the Networks;

c. All refunds submitted in connection with the Merchant’s Transactions; and

d. All costs, liabilities or other obligations imposed on Pinch by the Networks or other third parties as a result of Transactions submitted by the Merchant or the actions taken (or not taken) by the Merchant or its third-party service providers.

6.2 Unauthorised Payments

a. The Merchant must notify Pinch within 48 hours of becoming aware of any Unauthorised Payment Order by notifying Pinch by email to support@getpinch.com.au.

b. Subject to the Merchant’s compliance with this Agreement, Pinch will attempt to repay the amount of any Unauthorised Payment Order but will have no further liability to the Merchant.

c. Subject to clause 6.2.d, the Merchant will be liable to Pinch for all losses, costs and expenses suffered or incurred by Pinch as a result of any Unauthorised Payment Order in circumstances where:

1. The Merchant used the Pinch Service in an unlawful manner or in breach of any Laws;

2. The Account Details have been lost or stolen;

3. The Merchant has failed to secure the Merchant’s Account Details; or

4. The Merchant has failed to comply with any obligations under this Agreement.

d. The Merchant will have no liability to Pinch in relation to any Unauthorised Payment Order where:

1. The Unauthorised Payment Order occurs after the Merchant notified Pinch that the Merchant’s Account Details have been lost, stolen or misappropriated; or

2. Pinch has failed to provide the Merchant with the means to notify Pinch of the loss, theft or misappropriation of the Merchant’s Account Details (except where such failure arises wholly or mainly due to factors outside Pinch’s reasonable control or Pinch’s compliance with relevant Laws).

6.3 Incorrectly Executed Payments

a. The Merchant is solely responsible for reconciling the Merchant Transactions and Payment Orders with the Merchant’s accounts and actual bank transactions.

b. The Merchant must notify Pinch as soon as reasonably practicable upon becoming aware of any Incorrectly Executed Payment Order by notifying Pinch by email to support@getpinch.com.au.

c. Pinch will be liable to the Merchant 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. The relevant action will be taken to rectify the Incorrectly Executed Payment Order, which may include a refund or issuing additional payment orders as appropriate; or

2. 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 provide 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.

6.4 Fees account

The Merchant will keep a bank account (Fees Account) and authorises Pinch to debit the Fees Account in respect of any of the Merchant’s payment obligations. The Fees Account can be the same as the Merchant’s Nominated Account. The Merchant will execute a direct debit authority and be debited by Pinch for relevant charges.

6.5 GST Consideration

Fees and charges are quoted inclusive of goods and services tax (GST). Fees and charges will be automatically adjusted to reflect any changes to the applicable GST rate, should any changes occur.

6.6 Adjustment

Pinch may adjust the Fees and charges for the Pinch Services upon 30 days’ advance written notice.

7. TAXES

7.1 General

Pinch and the Merchant will pay their own taxes.

7.2 Reimbursement

Where one party (Payer) is liable to reimburse another party (Payee) for any expenditure incurred by the Payee (Expenditure), the amount reimbursed by the Payer will be the GST exclusive Expenditure plus any GST payable to the Payee by the Payer.

7.3 Withholding Tax

All payment to be made by the Merchant shall be made free and clear of any without deduction of any taxes unless the Merchant is required to make such a payment subject to the deduction or withholding of tax, in which case the sum payable by the Merchant (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that Pinch received a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.

8. RESERVE, SECURITY AND SET-OFF

8.1 Reserve

Pinch may require the Merchant to fund a cash reserve (Reserve) in an amount that reflects Pinch’s assessment of risk, as it may determine in its discretion from time-to-time. The Reserve is a payment obligation of Pinch, established by holding back Transaction proceeds or debiting the Merchant’s Nominated Account in order to potentially offset any obligations that the Merchant may have to Pinch. The Reserve is not a segregated fund that the Merchant may claim to own and is not held by Pinch on trust for the Merchant. Pinch is obligated to pay to the Merchant any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Merchant’s payment Transactions have expired (as provided for under the Payment Scheme / Card Scheme Rules or this Agreement).

a. The obligations due to the Merchant from the Reserve will not accrue interest.

b. Pinch may establish a Reserve or modify the amount of an existing Reserve, with immediate effect, with or without prior notice.

c. Pinch may set-off any obligations that the Merchant owes to Pinch from the Reserve.

d. Although the Merchant acknowledges that the Reserve is a general obligation of Pinch, and not a specifically identifiable fund, if any entity claims that the Reserve is an asset of the Merchant that is held by Pinch, the Merchant grants and acknowledges that Pinch has a security interest in the Reserve and, at Pinch’s request, will provide documentation to reflect this security interest and cooperate with Pinch to perfect the security interest.

8.2 Set-off and Priority

All funds that Pinch owes to the Merchant under this Agreement are subject to the Merchant’s payment obligations under this Agreement. Pinch may set-off amounts the Merchant owes to Pinch against any funds that Pinch owes to the Merchant.

8.3 Security and Security Interest

Pinch may from time-to-time request security from the Merchant or a guarantor to secure performance of the Merchant’s obligations under this Agreement. Pinch may determine that this Agreement, a Transaction or any security provided creates a security interest for purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). The Merchant will do anything necessary to provide documentation to reflect any security or perfect any security interest.

9. STATEMENTS, REPORTING

Pinch will provide the Merchant with statements of electronic reports (Statements) reflecting the fees, settlement amounts, and other information related to the Services. The Merchant and Pinch will work together to resolve issues or disputes that arise in connection with the Statements, or the funds credited or debited to the Merchant’s Nominated Account.

10. PRIVACY AND CONFIDENTIAL INFORMATION

10.1 Privacy

Each party will comply with the Privacy Act 1988 (Cth) and will treat Personal Information collected from individuals in Australia, used, and disclosed in accordance with the Australian Privacy Principles.

10.2 Confidentiality

Neither party will disclose non-public information about the other party’s business (including the terms of this Agreement, technical specifications, customer lists or information relating to a party’s operational, strategy or financial matters) (together, Confidential Information). Confidential Information does not include information that:

a. Is or subsequently becomes available (through no fault of the recipient);

b. The recipient lawfully possesses before its disclosure;

c. Is independently developed without reliance on the discloser’s Confidential Information; or

d. Is received from a third-party that is not obligated to keep it confidential.

Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information.

10.3 Disclosure

The recipient may disclose the other party’s Confidential Information:

a. To its directors, officers, personnel and representatives (including those of its affiliates, subcontractors or vendors) that need to know it in connection with the recipient’s performance under this Agreement, and are bound by confidentiality obligations materially similar to those required under this Agreement; and

b. In response to a subpoena, court order, request from a regulator or as required under applicable Laws or Payment Scheme / Card Scheme Rules.

10.4 Publicity

Pinch and the Merchant may publicly indicate they have entered into a contract with each other.

11. DATA SECURITY

11.1 Unauthorised Access

a. The Merchant is responsible for any unauthorised access to any Transaction data from the Merchant or from third parties retained by or on behalf of the Merchant.

b. Pinch is responsible for any unauthorised access to the Merchant’s Transaction data on Pinch’s systems.

11.2 Compliance with Standards

a. The Merchant must comply with Payment Card Industry Data Security Standards (PCI DSS) and obtain timely certification of its systems and processes (which must be maintained during the Term) as required under the Payment Scheme / Card Scheme Rules. The Merchant must also comply with all additional standards that the Networks may require. The Merchant will allow the Networks or Pinch to audit its data security compliance, including PCI DSS, and information technology systems related to the Service provided under this Agreement. The Merchant is responsible for its service providers’ compliance with the same requirements.

b. Pinch must comply with all PCI DSS requirements and the Payment Scheme / Card Scheme Rules that apply to its performance under this Agreement.

11.3 Security Incident

a. If the Merchant becomes aware that there has been unauthorised access to Transaction data (a Security Incident), it will immediately notify Pinch. If requested by Pinch, the Merchant will retain a reputable firm that is certified and approved by the Networks that provides forensic information security services and risk assessments in order to:

1. Assess the nature and scope of the Security Incident; and

2. Identify the access controls or Transaction data involved in the Security Incident.

b. The Merchant will take appropriate steps to contain, control, stop and remediate any Security Incident.

c. The Merchant will provide reasonable details regarding the Security Incident to, and cooperate with, Pinch, any Networks, government authorities or industry bodies and the forensics firms that are involved in the investigation and remediation of a Security Incident. The Merchant will take all actions that the Networks, governmental authorities, industry bodies or Pinch require in connection with the investigation and remediation of a Security Incident.

d. The Merchant will reimburse Pinch for all fines, fees, penalties, assessments or other obligations of any kind imposed by a Network on Pinch due to a Security Incident caused by the Merchant or its third-party service providers (together, Network Security Fees).

11.4 Data Use

Pinch may use Transaction data obtained from providing the Services to the Merchant to fulfil performance obligations under this Agreement and investigate fraud or suspected fraud, related to the Merchant’s Transactions. Pinch may also use Transaction data obtained from providing the Services under this Agreement in aggregated and anonymised form (as required by applicable Laws) for research and development or to provide services generally.

12. TERM AND TERMINATION

12.1 Term

a. This Agreement commences at the earlier of:

1. The date on which the Merchant clicks the “I Agree to the Terms” checkbox within the Merchant application;

2. The Merchant signs up for a Pinch account; or

3. The Merchant starts using the Pinch Service;

as appropriate (that date, the Effective Date) and will continue unless otherwise agreed between the parties or terminated as allowed under this Agreement.

12.2 Breach Termination

Either the Merchant or Pinch may terminate this Agreement by giving 30 days’ written notice if the other materially breaches this Agreement and fails to remedy the breach within 30 days of receiving notice of it. A party must exercise this right within 60 days of becoming aware of a material breach.

12.3 Risk Termination

Pinch may immediately suspend or terminate this Agreement, in its discretion, upon notice if the Merchant:

a. Engages in a Restricted Activity;

b. Suffers an Insolvency Event;

c. Engages in fraud, misrepresentation or intentional misconduct related to its performance under this Agreement;

d. Experiences excessive chargebacks, irregular or fraudulent payment Transactions (based on Network thresholds) or engages in business practices creating excessive risk for Cardholders of Pinch;

e. Experiences a material adverse change in its financial condition (including the failure to pay any of its debts or if the Merchant’s accountants fail to deliver an unqualified audit opinion with respect to the Merchant’s and its consolidated subsidiaries’ annual financial statements when requested by Pinch);

f. Fails to provide notice of a material change in the nature of its business;

g. Fails to disclose the third-parties or systems it uses in connection with the Transaction information or payment data processed under this Agreement;

h. Fails to fund a Reserve when required under this Agreement;

i. Experiences a Security Incident or fails to comply with PCI DSS or a material Network requirement;

j. Materially changes its website content, operations, products, services or procedures for payment acceptance;

k. Fails to satisfy a review or audit conducted under this Agreement;

l. Seels substantially all of its assets, undergoes a change in ownership or control, merges or effects an assignment without obtaining the prior consent of Pinch; or

m. A Network or governmental authority, instructs Pinch to limit, suspend its performance under or terminate this Agreement (in which case the Early Termination Fee will not apply).

Together, the events described in this clause are Default Events.

12.4 Termination for Inactivity

Pinch will have the right to deactivate the Pinch Services upon notice to the Merchant (Deactivation Notice) if no Transaction has been submitted for a period of 6 months or more. Pinch will have the right to disable the Pinch Services and terminate this agreement immediately if no Transaction has been submitted for a period of 3 months or more after the Deactivation Notice.

12.5 Survival of Termination

The following clauses shall survive termination of this Agreement for any reason whatsoever:

a. Clause 1.9;

b. Clause 2;

c. Clause 6;

d. Clause 8;

e. Clause 10;

f. Clause 11;

g. Clause 12.3;

h. Clause 12.5;

i. Clause 13;

j. Clause 14;

k. Clause 15;

l. Clauses that by their nature are intended to survive termination or suspension; and

m. Clauses that allocate risk, or limit or exclude a party’s liability, to the extent necessary to ensure that a party’s potential liability for acts and omissions that occur in relation to this Agreement remain unchanged after this Agreement terminates.

13. INDEMNITY AND LIABILITY

13.1 Indemnity

The Merchant will indemnify Pinch and its Merchant Acquirer (including their respective affiliates, directors, officer, managers and employees) for losses, damages, costs or expenses (together, Losses) due to third-party claims that result from the Merchant’s negligence, wilful misconduct or breach of this Agreement. Pinch will indemnify the Merchant (including its respective affiliates, directors, officers, managers and employees) for Losses due to third-party claims that result from Pinch’s gross negligence, wilful misconduct or breach of this Agreement.

13.2 Process

The indemnified party will promptly notify the indemnifying party of any third-party of any third-party claim that is subject to indemnification under this Agreement. The indemnifying party will have the opportunity to defend these claims using counsel it selects and will have the authority to enter into settlement for monetary damages provided that it pays such amounts. The parties will cooperate with regard to any other conditions of settlement as well as in providing records, access to personnel or other information reasonably necessary to defend and indemnified claims. The indemnifies party shall take reasonable steps to mitigate the liability, loss or damage giving rise to the claim and shall not make any admission or other statement to the third-party which may be directly or indirectly prejudicial to the defence of the claim (including the issue of liability) unless agreed with the indemnifying party.

13.3 Exclusion of Damages

Pinch and the Merchant will not be liable to each other for lost profits, revenues or business opportunities, expected savings, opportunity costs, loss of goodwill, image or reputation, (whether direct or indirect losses) nor any exemplary, punitive, special, indirect, incidental or consequential damages under this Agreement; regardless of whether these damages were foreseeable or a party was advised they were possible. Network Security Fees and other amounts for which a party is liable under this Agreement (including, without limitation, amounts imposed by a regulatory authority that are specifically due to a party’s failure to perform its obligations under this Agreement) are not excluded by this clause.

14. COMPLAINTS AND DISPUTE RESOLUTION

Should the Merchant have any concerns about the Pinch Service the Merchant may contact Pinch at disputes@getpinch.com.au and each Party commits to working with the other in good faith towards a swift resolution. A party will not commence court or arbitration proceedings over a dispute (except for proceedings for interlocutory relief) until it has attempted to resolve the dispute in accordance with this Agreement. Nothing in this clause 14 prevents a party from exercising its termination rights under this Agreement or otherwise

14.1 Process for Resolution of Dispute

a. A party claiming a dispute exists must notify the other party of the nature of the dispute (Dispute Notice).

b. Within 10 Business Days of receipt of the Dispute Notice, the parties will:

1. Attempt to resolve the dispute by direct negotiation, including by referring the matter to persons or people who may have authority to intervene and resolve the dispute; and

2. Agree to submit the dispute for mediation or some other form of alternative dispute resolution procedure.

c. If there is no resolution or agreement, or the dispute is submitted to mediation or some other form of alternative dispute resolution procedure and there is no resolution within 60 Business Days of the submission (or such extended time as the parties may agree in writing before the expiration of the 60 Business Days), then either party may commence legal proceedings.

14.2 Continued Performance

Despite the existence of a dispute, the parties must continue to perform their obligations under this Agreement.

14.3 Use of Information

Any information or documents disclosed by a disputant in following the procedure outlined under this clause 14 must be kept confidential and may not be used except to attempt to resolve the dispute.

15. GENERAL

15.1 Notices

Written notices (other than normal operations) required under this Agreement must be provided via email to support@getpinch.com.au.

15.2 Providers

The Merchant is responsible for the performance of any third parties it uses in connection with the Services, and their compliance with the terms of this Agreement.

15.3 Waivers

A party’s waiver of a breach of this Agreement will not be considered a waiver of a subsequent breach. A party’s delay or failure to exercise any of its rights under this Agreement will not be a waiver of those rights unless otherwise expressly provided for under this Agreement.

15.4 Compliance with Law, Choice of Law

The parties will comply with all laws, rules (including Payment Scheme / Card Scheme Rules) and regulations (together Laws), that are applicable to their respective obligations under this Agreement. This Agreement will be governed by the laws of New South Wales. The courts of New South Wales will be the proper avenue for legal proceedings brought in connection with this Agreement.

15.5 Introducers

The Merchant acknowledges that Pinch may pay amounts to other parties for referring the Merchant to Pinch, that Pinch may be required to share information, including Confidential Information, with the introducer and the Merchant authorises Pinch to share the required information with the introducer.

15.6 Entire Agreement, Counterparts

The defined term Agreement includes its schedules, addenda and any amendments. This Agreement is the entire agreement between the parties and replaces any prior agreements or understandings (written or oral) with respect to its subject matter. Schedules, amendments or any other modifications to this Agreement related to Services need only be executed by the Merchant. This Agreement and amendments may be executed electronically and in counterparts, each of which constitutes one agreement when taken together.

15.7 Amendments

Pinch may, by written notice to the Merchant and/or by posting the amended terms on its website, amend this Agreement and Merchant hereby consents to such future amendments.

15.8 Severance

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.

15.9 No Partnership and Referring to Our Relationship

a. 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 the Merchant nor Pinch will suggest or claim any sponsorship, endorsement or affiliation between us, unless such a relationship is governed by a separate agreement.

b. The Merchant agrees that during the term of this Agreement, Pinch may refer to the Merchant publicly as a merchant of Pinch.

15.10 Assignment, Novation

The Merchant may not assign rights under this Agreement or novate this Agreement without Pinch’s written consent. Pinch may assign, novate or transfer its rights or obligations under this Agreement to another financial or other institution that is a member of the Networks. The Merchant agrees:

a. To a novation by written notice to the Merchant where the new contract is on the same terms and conditions as the existing agreement, the new party assumes the rights and obligations of the outgoing party and the outgoing party is released from those rights and obligations; and

b. To enter into such documents as Pinch may reasonably require in order to effect such assignment, novation or transfer.

This Agreement will be enforceable against a party’s permitted successors or assignees.

15.11 Force Majeure

No party shall be liable to the other for any delay in the performance or inability to perform any of its obligations under this Agreement to the extend that such delay or inability is caused by an event beyond its control.

16. DEFINITIONS