PayItLater Merchant Terms and Conditions

PayItLater is the owner of trademarks, patents, trade secrets, copyrights, processes, know how, registered designs or other Intellectual Property and provides Pay by Instalments Gateway services to Australian online merchants.

PayItLater has agreed to grant You access to the Site, the Services, and use of certain Intellectual Property and Confidential Information as set out in this Agreement.

All products of PayItLater or an affiliate including the PayItLater website, payment processing pages and online documentation (the “Services”) are subject to the Terms and Conditions stated below.

By the use of the Site or the Services You agree to be bound by this Agreement. If You do not agree to the Terms and Conditions set out below You must not use the Site or the Services.

TERMS AND CONDITIONS OF USE

Interpretation
In these Terms and Conditions, the following terms have the following meanings:

“Account” means Your user name and identifying particulars supplied to PayItLater at the commencement of this Agreement.

“Anniversary Date” means an anniversary of the Commencement Date.

“Agreement” means this agreement as amended from time to time including schedules and terms included by reference.

“Business” means all activities associated with PayItLater transactions including purchases and refunds and includes development of the Site, the Services and Intellectual Property.

“Cardholder” means the person acquiring goods or services from You and payment for the goods or services is processed through use of the Services.

“Cardholder Data” means information supplied to PayItLater about the Cardholder, including but not limited to the Cardholder’s name, credit card details, address and contact details.

“Commencement Date” means the first day of the month in which you register on the Site.

“Confidential Information” means all information acquired created or commissioned by PayItLater during the course of or in connection with the Business by PayItLater, including information about PayItLater, the Business, processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its Customers, Third Party Service Providers, or anyone associated with it or them, unless that information is readily available to the public.

“Customer” means You and all users of the Site and the Services.
“PayItLater” refers to Code Workshop Pty Ltd ABN 86 601 942 358 and its related bodies.

“Fees” means the fees charged by PayItLater:

as set out in the Fee Schedule; or

“Fee Schedule” is a schedule of fees set by PayItLater at its sole discretion for use of the Site and the Services. The Fee Schedule can be found at https://www.payitlater.com.au/merchant-fee-schedule

“GST” means any tax in the nature of a tax on or on the supply of goods, real property, services, or other things (or similar tax) levied, imposed or assessed by the Commonwealth of Australia or any State or Territory of Australia, which may operate at any time during the currency of this Agreement, other than any interest, fine, penalty, fee or other payment imposed on or in respect of such tax.

“Processes” include technologies, products, devices, processes or techniques.

“Services” means gateways to process on-line transactions through the Site, and also access to merchant dashboard on the PayItLater website, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via PayItLater. PayItLater provides a gateway which will accept or reject your customer in real time, process payment from your customer, create an instalment plan and then pass the customer back to Your website. PayItLater also provides online reports of completed transactions, and support via email.

“Site” means PayItLater’s web properties https://app.payitlater.com.au and https://www.payitlater.com.au

“Terms and Conditions” means these terms and conditions as amended from time to time, and other terms incorporated by reference.

“Third Party Service Providers” mean those third parties engaged by PayItLater to provide services to PayItLater or You.

“Trade Marks” means the existing or future trade marks owned, used or developed by PayItLater during the term of this Agreement

“You” and “Your” includes all persons entering this Agreement with PayItLater and where the context allows includes your partners, employees and agents.

 

Formation of contract

You agree and acknowledge that You have entered into a legally binding and enforceable contract with PayItLater by transacting with PayItLater.

In consideration of PayItLater agreeing to Your use of the Site and/or the Services, You agree to comply with this Agreement.

You agree to be bound by any additional terms and conditions (“additional terms and conditions”) that you have accepted in subscribing for Third Party Services, and that such additional terms and conditions are incorporated by reference into this Agreement.

Commencement and Term

This Agreement will automatically renew each month, until either party gives the other one months’ prior written notice of termination.

Acceptance of Terms

Before using the Site, You should read this Agreement and any additional terms and conditions carefully and related agreements carefully and ensure that You understand ALL of the Terms and Conditions. If You do not agree to ALL Terms and Conditions, then You must not use the Site or the Services.

This Agreement and any terms incorporated by reference in this Agreement override any terms or conditions previously published by PayItLater.

Each time a transaction is processed on the Live gateway, through Your Account, whether the transaction result is successful or not, You are agreeing to the Terms and Conditions.

Amendment

This Agreement, and any terms and conditions incorporated by reference may be amended from time to time by PayItLater posting the amended document on the Site or placing a Notice on the Site that the Terms and Conditions have been amended. The amended Terms and Conditions shall automatically be effective from the earlier of:

  • 7 days after they are initially posted on the Site; and
  • 7 days of Notice being given to You.

Your continued use of the Site or the Services will mean that You accept unconditionally any amendments made. These Terms and Conditions were last updated on 15 August 2016.

Access

PayItLater, the developer of the Site and the Services, grants You non-exclusive access to the Site and the Services via an account upon these Terms and Conditions. The Site and the Services, including any upgrades thereof and any code, program or software given to You to enable Your use of the Site or Services, shall remain the property of PayItLater.

Restricted Use

You will not use the Intellectual Property or Confidential Information to manufacture, have made, use or market a similar site or similar services in any location nor will You use the Intellectual Property or Confidential Information for any purpose other than expressly permitted by PayItLater in writing. Where PayItLater has indicated to You that the whole or any part or parts of the Intellectual Property comprises Confidential Information You will not at any time during this Agreement or after its termination or expiry disclose such Confidential Information to any person without obtaining PayItLaters’ express prior written consent.

You may not and warrant that You will not:

copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site, the Services, Intellectual Property or Confidential Information;

transfer or attempt to transfer any part of the Site, the Services, Intellectual Property or Confidential Information or Your right to access them or otherwise make them available to any other person;

attempt to discover PayItLater’s source code;

sublicense, rent or lease any portion of the Site, the Services, Intellectual Property or Confidential Information;

reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Site or Services, or create derivative works from the Site, the Services, Intellectual Property or Confidential Information, except so far as such actions are permitted by applicable law notwithstanding this limitation or are approved in writing by PayItLater;

use the Site, the Services, Intellectual Property or Confidential Information for any illegal purpose;

allow Your Account to be used for any illegal purpose; or

allow Your Account to be used by another person for any purpose.

Fees

During the term of this Agreement You must pay to PayItLater the Fees.

Where applicable, you warrant that You understand and agree to the fee structure as outlined in the Fee Schedule. You warrant that You understand and agree that all transaction sent to the LIVE PayItLater gateway, if approved, will be charged the Fees.

PayItLater in its sole, absolute and unfettered discretion reserves the right to change any Fees charged for the Services or use of the Site at any time. In the event of an increase in a Fee that amended Fee will become payable at the earlier of:

  • 7 days after a Notice in respect of the fee is posted on this Site; or
  • 7 days after notice is given to You.

Unless otherwise stated Fees are inclusive of GST and quoted in Australian dollars.

You authorise PayItLater to charge all monies payable to PayItLater under this Agreement to Your Account.

At its sole discretion, PayItLater may set off any transaction funds payable to You against any fees payable to PayItLater by You.

PayItLater will pay any monies payable to You by such method as PayItLater may reasonably choose.

Infringement

If You learn of:

any infringement or threatened infringement of the Intellectual Property or Confidential Information; or

any common law passing-off which may cause deception or confusion to the public by a third party,

You must immediately notify PayItLater in writing giving particulars of the infringement or threatened infringement

PayItLater will at its sole discretion institute and prosecute an action in respect of the infringement.

Costs for Breach

If PayItLater is required by You or by an order sought by You to participate in any litigation in which You are involved whether under subpoena or order of a court of competent jurisdiction, including complying with any order for discovery or attending court to give evidence, You shall bear all costs incurred by PayItLater in connection with the provision of such participation including PayItLater’s costs for taking legal or other professional advice or representation on a full indemnity basis.

Further, You agree and acknowledge that where You take any action including legal action against or involving PayItLater You will provide security for such costs to PayItLater upon written demand.

Termination

Any fraudulent or damaging activities or attempts to compromise the PayItLater Site or Services will give PayItLater a right to immediately terminate this Agreement and Your use of the Site and Services.

PayItLater shall have the right to terminate this Agreement immediately by written notice to You if:
You become insolvent or unable to pay Your debts in the ordinary course of business.

In the case of an individual, if a petition for bankruptcy is presented or in the case of a company, if a receiver or administrator is appointed.

In the case of a company, You permit an order to be made or a resolution to be passed for the winding up of the company.

You permit or propose a compromise or arrangement to be made between You and any of Your creditors.

You assign all or part of Your assets for the benefit of any creditor.

You or any of Your Directors are convicted of a criminal offence which in the case of an individual could carry a term of imprisonment or in the opinion of PayItLater has or has the potential to cause damage or injury to the reputation and standing of PayItLater.

You purport or attempt to transfer, assign or deal with this Agreement or the Site or Services without the written consent of PayItLater.

In PayItLater’s reasonable opinion, the processing of Your transactions exposes PayItLater to an unacceptable level of risk

PayItLater shall have the right to terminate this Agreement by notice in writing if:

You fail to pay monies payable to PayItLater on the due date or breach another term of this Agreement.

You purport to or use the Site, the Services, Intellectual Property or Confidential Information in a manner not approved by PayItLater.

You (or Your directors or anyone or more of them) do or neglect to do anything which in PayItLater’s opinion is likely to bring disrepute upon PayItLater.

You have not remedied a breach (if it is capable of remedy):
i     in the case of any obligation to comply with any statutory law or regulatory obligation relating to the Business the use of the Site or Services, within 7 days of written notice from PayItLater; or
ii    in the case of any other obligation, within 14 days of written notice from PayItLater.

Termination of this Agreement no matter how arising shall be without prejudice to the rights and obligations of the parties existing up to and including the date of expiry or termination including the right of the party terminating to seek and obtain damages for any breach of this Agreement by the other party or the other party’s servants or agents.

Termination on instructions from Our Payment Partners

Without prejudice to any other right of PayItLater under this Agreement, if Our Payment Partners request that PayItLater terminate Your use of the Site and/or the Services or this Agreement for any reason PayItLater may do so immediately without Notice being given.

In the event of termination on instructions from Our Payment Partners You indemnify PayItLater and hold PayItLater harmless in respect of any loss or damage arising from such termination no matter how such loss or damage arises.

Rights of Parties on Termination or Expiry
On and from termination or expiry of this Agreement:

You shall immediately discontinue the use of the Site and the Services and cease to use the Intellectual Property, Confidential Information, and any other signs, displays or advertising material which contains reference to PayItLater.

You shall not represent or advertise that You were formerly using PayItLater.

All fees previously paid remain the property of PayItLater and You agree to make no claim in respect of such Fees. You must further pay to PayItLater any fees that have accrued but are unpaid as at the date of the termination or expiration.

You shall immediately pay to PayItLater without any deduction or right of set off all sums of money which may be due or payable by You to PayItLater.

PayItLater shall retain title and ownership of, and is under no obligation to provide You with any payment data or Cardholder Data, in any form.

The Cardholder Data will be retained by PayItLater and held and stored by PayItLater in accordance with its obligations.

Limit of PayItLater liability

PayItLater accepts no responsibility for the delivery of the transactions to the PayItLater server.

You release and indemnify PayItLater from any and all loss or damage arising out of any loss of data or corruption of data during the transfer of such data to PayItLater.

To the extent permitted by law, PayItLater excludes all representations and warranties, express or implied, other than those contained in this Agreement. Where PayItLater is found to be liable for breach of any warranty guarantee or condition implied by statute and which PayItLater cannot lawfully exclude, PayItLater ‘s liability is limited (to the extent permitted by law) at the option of PayItLater to the following:
in the case of any programming or software supplied or offered by PayItLater:

  1. to the supply of those programs or software or programs or software of similar functioning again; or
    ii. to the payment of the cost of having those programs or software supplied again; or

in the case of Services supplied or offered by PayItLater:
i. to the supply of the services again; or
ii. to the payment of the cost of having services supplied again.

PayItLater, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:

Your use of or inability to use the Site or Services;

any virus or other harmful, or potentially harmful, code which may be transmitted in connection with Your use of the Site or Services;

PayItLater ‘s negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, providers or agents arising from or related to this Agreement, the Site and the Services.

Your provision of incorrect information.

Your loss of information or data.

PayItLater’s liability for any loss or damage under this Agreement or any statute is reduced by the extent that You have caused or contributed to such loss or damage.

PayItLater warranty

PayItLater warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the Site or Services does not result in the infringement of third party intellectual property rights.

PayItLater indemnifies You against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with any claim made against You by a third party on the grounds that by virtue of rights to which such third party lays claim, under letters patent or copyright (whether registered as a design or not) or any other similar right or claim, such third party is entitled to prevent or interfere with Your use of any or all of the Intellectual Property pursuant to this Agreement.

The Site is provided by PayItLater on an “as-is” basis and the only obligations on PayItLater are set out in this Agreement. PayItLater gives no warranty or condition, express or implied other than those expressly set out herein. PayItLater does not warrant that the functions contained in the Site and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that the Site, or PayItLater’s hardware or computer systems are free of viruses or other harmful components or programs. PayItLater does not warrant or make any representations regarding the accessibility or the use or the results of the use of the Site or the Services. You hereby acknowledge that You have relied on Your own enquiries and inspection in relation to the Site and the Services including our free to use Test Gateway before entering into this Agreement and using the Site or the Services.

PayItLater does not give a warranty of completion of transactions. PayItLater does not warrant that any Merchant Bank or financial institution will complete a transaction. PayItLater accepts no liability associated with such risks. You agree that You accept these risks and indemnify and hold harmless PayItLater in respect of such risks.

Your Indemnity

In this clause “PayItLater” includes parent companies, subsidiaries, officers, directors, employees and agents of Code Workshop Pty Ltd. You indemnify and hold harmless PayItLater against any claim, loss, liability, cost or expense, including legal costs on a full indemnity basis, made against or incurred by PayItLater in relation to:-

personal injury or death;
property damage;
economic loss;
civil or criminal penalty;
consequential loss;
arising out of:

any breach by You of this Agreement; or

any negligent or criminal act or omission by You.

Your provision of data, including Cardholder Data, to PayItLater in order for PayItLater to perform the Services.

Your indemnity includes all claims, demands, proceedings, damages (actual, special or consequential) of every kind and nature, known and unknown, including but not limited to demands, proceedings, damages (actual, special and consequential) of every kind and nature taken by any third party due to or arising out of Your breach of this Agreement or by Your violation or breach of any law or any rights of a third party.

You agree and acknowledge that You and not PayItLater are liable for all loss and damage no matter how arising which is caused or contributed to by Your use or misuse of the Site or the Services.

You indemnify and hold PayItLater harmless in respect of any loss or damage sustained by You as a result of PayItLater’s refusal to renew or enter into an agreement with You and agree and acknowledge that PayItLater’s refusal does not amount in any way to a restraint of trade.

You indemnify PayItLater in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Site or the Services from any terminals or access points within Your control, custody or power.

Authorisation for Corrections
You authorise PayItLater to correct any errors on Your account. You acknowledge that such correction does not create any obligation on the part of PayItLater to ensure the ongoing accuracy (or to warrant the previous accuracy) of the information on Your account.

Marketing
PayItLater reserves the right to use Your company or trading name in any promotional or marketing material it deems fit. This may be in the of form print, TV, radio or Multimedia (including Web). Example uses may include promotional flyers, or website case studies.

Confidentiality

You acknowledge and undertake to PayItLater that:

all information, documents, data and any other material which is provided by PayItLater to You or Your directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by You or Your directors, officers, employees and agents or a third-party is and remains the property of PayItLater;

You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement;

You will only disclose the Confidential Information to such of Your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the Site and the Services ;

You will not, and will ensure that Your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;

You will take all steps necessary to prevent or stop, and comply with all reasonable directions of PayItLater in respect of, suspected or actual breaches of, or defaults under this clause;

You will promptly notify PayItLater if You suspect, or become aware of, any unauthorised access, use or disclosure of any of the Confidential Information and will give PayItLater (at Your cost if the unauthorised access, use or disclosure is as a result of a breach of, or default under, this Agreement) all reasonable assistance in connection with any action which PayItLater may take, or proceedings which PayItLater may institute, in respect of the unauthorised access, use or disclosure; and

You will, and will procure that Your employees, officers, agents and advisers will, return to PayItLater all Confidential Information and delete all electronic copies upon termination or expiry of this Agreement.

You agree that You will not during the term of the Agreement, or at any time after the termination of the Agreement (howsoever this may occur) disclose to any other person (without the previous consent in writing by PayItLater) either directly or indirectly, any Confidential Information relating to PayItLater of which You became possessed whilst subject to this Agreement, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to PayItLater howsoever arising.

You must treat as confidential all information gained during the term of this Agreement that relates to Customers of PayItLater and utilise Your best efforts to ensure that any employees or agents under Your supervision or control comply with the terms of this clause 20.

Intellectual Property

This Agreement does not grant You any proprietary rights in the Intellectual Property.

You will not at any time during or after the expiry or termination of this Agreement, contest or challenge in any legal proceedings or otherwise the proprietorship of PayItLater in the Intellectual Property.

You shall not in any manner represent that You have any proprietary rights in the Intellectual Property.

In so far as the Intellectual Property or any components of the Intellectual Property are the subject of registrations or applications for registrations under applicable statutes, You shall do nothing to challenge, oppose, dispute or impugn the validity of such applications or registrations and shall take all necessary steps as may be required by PayItLater to assist in maintaining or obtaining such registrations.

If You become aware of any claims against or infringements of any rights associated with the Intellectual Property, then You shall immediately notify PayItLater and PayItLater at its sole discretion may elect to defend or prosecute any action relating to the Intellectual Property. In relation to any proceedings or claims to protect or defend the Intellectual Property, You, if required by PayItLater, shall render all assistance including if necessary, providing evidence and being named as a party to any legal proceedings.

At the expiry or termination of this Agreement, all of Your rights to use the Intellectual Property shall cease.

PayItLater may change the Intellectual Property which You are permitted to utilise at any time for any reason.

You may not use the Intellectual Property in a manner which may, as determined by PayItLater, place the Intellectual Property at risk of loss or loss of value to PayItLater.

Cardholder Data

PayItLater will hold and store the Cardholder Data in accordance with the requirements of the Privacy Act 1988 (Cth) (“Privacy Act”), the Australian Privacy Principles (“APPs”) and applicable industry standards, including but not limited to, the Payment Card Industry Data Security Standard (“PCI”) and PayItLater’s data retention policy.

You acknowledge and agree that:

you have no right to the Cardholder Data or to access the Cardholder Data; and

PayItLater has no obligation to provide you with the Cardholder Data or access to the Cardholder Data.

Privacy

In this clause, “Personal information” has the same meaning as it has in the Privacy Act.

PayItLater agrees, in relation to Personal Information which You disclose to PayItLater pursuant to these Terms and Conditions:

not to do an act, or engage in a practice, that would breach an APP contained in the Privacy Act; and

not to authorise any subcontractor to do an act, or engage in a practice, that would breach an APP.

You agree that an act done or a practice engaged in by PayItLater, or by a subcontractor, for the purposes of meeting (directly or indirectly) an obligation under these terms and conditions is authorised by this clause for the purposes of sub-sections 6A(2) and 6B(2) of the Privacy Act, even if the act or practice is inconsistent with an APP contained in the Privacy Act or an approved privacy code that applies to PayItLater or a subcontractor.

You warrant that all Personal Information which You disclose to PayItLater is up-to-date, complete and relevant to the purpose for which it was disclosed to PayItLater, and that the disclosure of the Personal Information by You is not a breach of an APP contained in the Privacy Act.

Prior Agreements
This Agreement supersedes any prior agreement between the parties whether written or oral. Any such prior agreements are cancelled but without prejudice to any rights which have already accrued to either of the parties under those agreements.

Rights Cumulative
All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any right granted by this Agreement or otherwise available to it.

Costs
You shall pay Your own costs of entering into and complying with this Agreement.

Set Off
PayItLater shall have the right to set-off against any payment due by PayItLater to You against any amount owed to PayItLater by You. Upon termination or expiration of this Agreement for any reason, You shall pay any amount due to PayItLater immediately with no right to set-off.

Waiver
The failure by PayItLater to enforce at any time or for any period any one or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall constitute any waiver of PayItLater’s rights.

Force Majeure

Neither party shall be considered in breach of this Agreement where performance of its obligations under the Agreement is by any cause beyond the reasonable control of the parties rendered impossible or delayed.

If the reason for the inability to perform or delay in performance referred to in clause 28.1 continues for a continuous period of 30 days, either party may by written notice to the other terminate this Agreement without penalty.

Severability

Any provision of this Agreement, which is or becomes unenforceable for any reason will be ineffective or severable to the extent only of such unenforceability or invalidity and will not invalidate the remaining provisions.

Performance
Each party must take all steps, execute all documents and do everything reasonably required by any other party to give effect to the transactions contemplated by this agreement.

Notices

All notices must be in writing and be given by any one or the following means:-

By delivering it to the address of the party specified in this Agreement.

By sending it to the address of the party by pre-paid mail.

By emailing it to the address of the party.

By sending it by facsimile transmission to the facsimile number of the party.

A notice is deemed to have been given the next business day after sending or transmission.

Governing Law and Jurisdiction

This Agreement is subject to the laws of New South Wales.

Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.