Terms & Conditions
The Terms and Conditions described herein constitute a legal agreement (“Agreement” or “ServiceM8 Pay Terms”) between you (if your business is a sole proprietorship) or your business (if you are signing up on behalf of a business or other legal entity) (the “Merchant”, “you” or “your”) and ServiceM8 Pty Ltd (“ServiceM8”, “we”, “us”, or “our”).
The ServiceM8 Pay service (“ServiceM8 Pay” or the “Payments Services”) is a payment account boarding and payment data transmission service that helps you integrate with a payment processor (the “Processor”), as described more fully in this Agreement, and accept card payments using this Processor, via ServiceM8 user interfaces. You hereby appoint us as your agent to deliver information and instructions on your behalf to the Processor.
Under the separate ServiceM8 Terms of Service (the “ServiceM8 Terms”), ServiceM8 Pty Ltd provides you with its job management, staff management, client management, and other services (collectively, the “ServiceM8 Platform Services”). The ServiceM8 Terms are incorporated herein by reference and by accepting this Agreement you are also accepting them.
ServiceM8 Pty Ltd is not a bank, payment institution, or money services business, but is instead, a supplier of the ServiceM8 Services supplied under the ServiceM8 Terms and of the Payments Services under this Agreement.
The Processor is Stripe (including but not limited to Stripe, Inc., Stripe Payments Canada, Ltd., Stripe Payments UK, Ltd., Stripe Payments Australia Pty. Ltd., Stripe New Zealand Limited, Stripe Payments Europe, Ltd.), as incorporated and applicable to you in your region, being a payment processor and technical services provider which may offer the services as an agent of one or more financial institutions (each, a “Financial Services Provider”).
The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the Stripe Services Agreement and the applicable Financial Services Terms, and to the extent you use a payment method that is subject to additional terms, the Payment Terms, PayTo Service Terms and Conditions, and Link Terms (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor.
ServiceM8 is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account, or an additional profile in your pre-existing account, with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail.
The Processor’s role is to accept and process credit card, debit card and other types of payments (collectively “Cards”) with respect to sales of your products and services through ServiceM8-facilitated internet transactions and in-person, point-of-sale transactions, as well as manually entered transactions.
To utilize the Services, you must be a legitimate business and a ServiceM8 customer.
ServiceM8 hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use the Payments Services (the “License”). The License shall be for the term of this Agreement only. Neither the License nor any other provision hereof shall grant any rights in the Payments Services or other intellectual property rights except the limited License of use set out above.
You shall not: (i) permit any third party to access the Payments Services, including, but not limited to, your ServiceM8 user profiles (the “ServiceM8 User Profiles”), except as permitted herein, and to carry out Transactions; (ii) create derivative works based on the Payments Services; (iii) copy, frame or mirror any part of the content of the Payments Services, other than copying or framing for your internal business purposes; (iv) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or trade secrets for any of the Payments Services; or, (v) access the Payments Services in order to build a competitive product or service.
It is your responsibility to obtain your customers’ consent to be billed for each Transaction or, as the case may be, on a recurring basis, in compliance with applicable legal requirements and Visa, MasterCard, American Express and other applicable card networks’ (such networks being, collectively, the “Payment Networks”) payment rules (the “Payment Network Rules”).
You may choose to conduct in-person, point-of-sale transactions as part of your use of the Payment Services, using the ServiceM8 iOS or iPadOS mobile app, which may be downloaded from the Apple App Store. Your use of the ServiceM8 software is subject to the ServiceM8 Terms of Service.
The Payments Services support most Payment Network Cards, including credit and debit cards. You assume sole and exclusive responsibility for the use of the Payments Services. You also assume sole and exclusive responsibility for Transactions under the Processor Terms. You are solely responsible for verifying the identity of customers and of the eligibility of a presented Card used to purchase your products and services, and ServiceM8 does not guarantee or assume any liability for Transactions authorised and completed that may later be reversed or charged back. You are solely responsible for all reversed or charged back transactions regardless of the reason for, or timing of the reversal or chargeback. ServiceM8 or the Processor may add or remove one or more types of Payment Networks or Cards, in their sole discretion, at any time, without prior notice to you.
ServiceM8 will use its commercially reasonable efforts to provide you with customer support to help resolve issues related to the facilitation of the Payment Services within the ServiceM8 software, the connection of your Processor Account to the ServiceM8 software, and fees for the Payment Services.
The Processor retains sole and exclusive responsibility for Payment Processing of Transactions, including the settlement of funds, and you may need to contact the Processor directly concerning issues related to (but not limited to) Payment Processing, your Processor Account, transaction refunds and transaction disputes.
You assume sole and exclusive responsibility for providing customer service or support to your customers for any and all issues related to your products and services, including, but not limited to, issues arising from the processing of Cards through the Payments Services.
You have sole and exclusive responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Payments Services ("Taxes"). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority, whether in customers’ jurisdictions, your jurisdiction or elsewhere. We are not obligated to, nor will we, determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Transaction.
ServiceM8 retains the right, but not the obligation, at its sole discretion, to complete and file tax or related reports with tax authorities regarding Transactions in those jurisdictions where ServiceM8 deems such reporting necessary. You hereby indemnify and hold ServiceM8 harmless from and against any and all liability related to Taxes and filings made by ServiceM8 in respect thereof. You agree that we may send you any tax-related information electronically.
If prohibited by law, you will not impose any fee or surcharge on a customer that seeks to use an eligible Card.
We maintain commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in our servers from unauthorised access, accidental loss, or modification. ServiceM8 cannot, however, guarantee that unauthorised third parties will never be able to defeat those measures or use such personal information for improper purposes.
You assume full responsibility for the security of data within your business or otherwise in your possession or control. You agree to comply with all applicable laws and rules in connection with your collection, security, and dissemination of any personal, financial, Card, or Transaction information (collectively, “Data", and as pertains to your customers, “Cardholder Data”).
You agree that at all times you shall be compliant with applicable Payment Card Industry Data Security Standards (“PCI-DSS”) and, as applicable, the Payment Application Data Security Standards (“PA-DSS”).
You must not store CVV2 data at any time. Information on PCI-DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards and all the Payment Network Rules. We may request additional security measures at any time and reserve the right to adjust these requirements at our discretion.
Your privacy and the protection of your data are very important to us. You acknowledge that you have received, read in full, and agree with the terms of our Privacy Policy and the Processor’s Privacy Policy. Our Privacy Policy is hereby incorporated into this Agreement. ServiceM8’s Privacy Policy and the Processor’s Privacy Policy contain important information about the collection, use, retention, and disclosure of personal information, as well as other important matters, and explains how and for what purposes we and the Processor collect, use, retain, disclose and safeguard the information you provide to us.
You agree that ServiceM8’s Privacy Policy and the Processor’s Privacy Policy may be modified at ServiceM8’s or the Processor’s option, if necessary, and you will check each Privacy Policy on a regular basis. You also acknowledge that the Processor is required to report your business name and the name of your principals to the Member Alert to Control High-Risk merchants list of MasterCard (“MATCH List”) maintained by MasterCard and accessed and updated by American Express, to the VMAS database upheld by Visa Europe, and/or to the Consortium Merchant Negative File maintained by Discover, if applicable, pursuant to the requirements of the Payment Network Rules.
If we process any of your personal data when performing our obligations under this Agreement, we will do so as a data controller consistent with the terms of our Privacy Policy. If we process any Cardholder Data on your behalf, we and you both agree that it is our intention that you shall be the “data controller” and we shall be the “data processor” in relation to that data. We shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you to us from time to time. Additionally, you acknowledge that the Processor acts as a “data controller”, or as otherwise agreed between you and the Processor, with regards to any personal data that they may process under this Agreement and that we are not responsible for how they process such data.
You consent to the exchange of your information between the Processor Account, or additional account profile, you establish through the ServiceM8 Platform Services and the Payments Services established under this Agreement, referred together in this Agreement as the “ServiceM8 Pay Account”.
By using the Payments Services, you consent to our use of third-party service providers and sub-processors, which is described in more detail in our Privacy Policy.
You represent to us that you have obtained all necessary rights and consents under applicable law to allow us and the Processor to collect, use, retain, and disclose any Cardholder Data that you provide to, or authorise us to collect, including information that we may collect directly from you of your customers via cookies or other means and to use that data to provide the Payments Services (e.g. to process Transactions and to screen for fraud or compliance purposes).
Further, you represent that we will not be in breach of any such laws by collecting, receiving, using, and disclosing such information in connection with the Payments Services as described in our Privacy Policy. As between the parties to this Agreement, you are solely responsible for disclosing to your customers that we will collect and process their Cardholder Data in our supply of the Payments Services to you, and that in so doing we may transmit or possess it outside of your or their jurisdiction, and that it may be subject to disclosure as required by applicable law.
If you receive information about others, including cardholders and other customers, through the use of the Payments Services, you must keep such information confidential and only use it in connection with the Payments Services or as otherwise permitted by the subject of such information.
You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the subject thereof to do so. You may not disclose Cardholder Data to any third party other than in connection with processing a Transaction requested by your customer.
You are required to obey all laws, rules, and regulations applicable to your use of the Payments Services (e.g., including those governing financial services, consumer protections, unfair competition, anti-discrimination, or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any Card to provide cash advances to cardholders; (ii) submit any Transaction for processing that does not arise from your sale of goods or service to a customer; (iii) act as a payment intermediary or aggregator or otherwise resell the Payments Services on behalf of any third party; (iv) send what you believe to be potentially fraudulent authorisations or fraudulent Transactions; (v) use the Payments Services or the Payment Processing services in a manner that a Payment Network reasonably believes to be an abuse of the Payment Network or a violation of the Payment Network Rules; or, (vi) work around any of the technical limitations of the Payments Services or the ServiceM8 software, use any tool to enable features or functionalities that are otherwise disabled in the Payments Services, or decompile, disassemble, or otherwise reverse engineer the Payments Services, except to the extent that such restriction is expressly prohibited by law.
You further agree not to permit any third party to do any of the following: (i) access or attempt to access our systems, programs, or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute, in any way, material from us; (iii) permit any third party to use and benefit from the Payments Services via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Payments Services or ServiceM8’s software, use any tool to enable features or functionalities that are otherwise disabled in the Payments Services, or decompile, disassemble, or otherwise reverse engineer the Payments Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Payments Services, prevent access to or use of the Payments Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or, (vii) otherwise use the Payments Services except as expressly allowed under this section.
We reserve the right to not provide the Payments Services in respect of any Transaction you submit that we believe, in our sole discretion, is in violation of this Agreement, any other ServiceM8 or Processor agreement, or exposes you, ServiceM8, the Processor, or any other third party to actual or potential risk or harm, including, but not limited to, fraud and other criminal acts. You are hereby granting us authorisation to share information with law enforcement about you, your Transactions, or your ServiceM8 Pay Account.
The Payment Networks have established guidelines, bylaws, rules, and regulations in the form of the Payment Network Rules. You are required to comply with all applicable Payment Network Rules. The Payment Network Rules for Visa, MasterCard and American Express are available on the Internet at the following links: Visa, MasterCard and American Express. The Payment Networks may amend the Payment Network Rules at any time and without notice to us or to you. Insofar as the terms of this Agreement and/or the Processor Terms are inconsistent with the Payment Network Rules, the Payment Network Rules shall prevail. We reserve the right to amend this Agreement at any time, with notice to you, as may be necessary to comply with the Payment Network Rules.
You agree that ServiceM8 can provide disclosures and notices, including tax forms, that we deem appropriate regarding the Payments Services to you by posting such disclosures and notices in your ServiceM8 account, or emailing them to the email address of the account owner as shown in your ServiceM8 account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within twenty-four (24) hours of the time it is posted to your ServiceM8 account or emailed to you.
We may use automated text messaging and email to provide messages to you about your ServiceM8 Pay Account. You give us permission to send a text message to any telephone number that you have given us or send text messages with information about this Agreement or your account. You agree that we will not be liable to you for any such electronic communications even if information is communicated to an unintended recipient. You understand that when you receive such electronic communications you may incur a charge from the company that provides you with telecommunications, wireless and/or Internet services. You agree that we have no liability for such charges. You agree to immediately notify us if you change telephone numbers or are otherwise no longer the subscriber or customary user of a telephone number or email address you have previously provided to us.
The Payments Services are only made available to persons that operate a legitimate business selling goods and services, and are a ServiceM8 customer. You may not use the Payments Services for non-commercial, personal, family, or household purposes. To use ServiceM8 Pay for your business, you are required to register for a ServiceM8 Pay Account. When you register for a ServiceM8 Pay Account, we and/or the Processor will collect information such as your name (if you are a sole proprietor), your business or trade name, your address, email, phone number, business identification or registration number, and certain other information that we require. We and/or the Processor may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners or principals.
You may register as an individual (sole proprietor) or as a corporation or other legal entity. If you register as a corporation or other legal entity, you must be authorised to act on behalf of such entity, have the authority to bind the entity to this Agreement, and you must agree to this Agreement on behalf of such entity. If you have so agreed, the term "Merchant", “you” or “your” will mean you, the natural person acting as a business, if you are a sole proprietor, or if you have registered as a corporation or other legal entity, it will mean that entity. You understand that by registering for a ServiceM8 Pay Account, you are also registering for a Processor Account under the Processor Terms and that you are simultaneously providing your information to ServiceM8 for the purpose of opening a ServiceM8 Pay Account, and to the Processor for the purpose of establishing your Processor Account.
As part of your registration, you must provide the name under which you do business (which may be the business’ legal name or a "doing business name") (e.g. John’s Plumbing) and a billing descriptor. These two fields and your site URL may appear in your customers’ credit or debit card statements. To avoid customer confusion and Transaction disputes it is important that you enter a description that clearly identifies your business. You hereby agree to indemnify us from any costs, liabilities, losses, or expenses from disputes due to your failure to do so.
To verify your identity, we or the Processor may require additional information, including your company registration number, business number or tax number, and, if applicable, your date of birth. We may also ask for additional information to help verify your identity and assess your business risk.
You authorise us and the Processor to retrieve additional information about you from third parties and other identification services. We and the Processor reserve the right to hold funds in your ServiceM8 Pay Account while awaiting the information requested above. ServiceM8 and the Processor may use your information to apply for card merchant acquiring accounts on your behalf with certain Payment Networks (such as American Express).
By accepting the terms of this Agreement, you are providing us and the Processor with authorisation to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We or the Processor may periodically update this information to determine whether you continue to meet the eligibility requirements for a ServiceM8 Pay Account.
You agree that ServiceM8 and the Processor are permitted to contact and share information about you and your business, your ServiceM8 Pay Account, and the Processor Account with the Processor and other third parties in order to perform the Payments Services. This includes sharing information: (i) about Transactions for regulatory or compliance purposes; (ii) for use in connection with the management and maintenance of the Payments Services; (iii) to create and update our and their customer records about you, and to assist us and them in better serving you; and, (iv) to conduct our and their risk management process.
In registering for a ServiceM8 Pay Account, you are obliged to identify the location from where you are operating the business that will use the Payments Services. By registering for a ServiceM8 Pay Account, you are confirming that you are either a legal resident of the country in which you are operating your business, or you are duly established and, if necessary, registered or licensed as a business entity authorised to conduct business in the country. The Payments Services and ServiceM8 Pay Account may only be used in supported countries. By accepting this Agreement, you confirm that you will satisfy these requirements.
The following categories of businesses and business practices are prohibited from using the Payments Services (“Prohibited Businesses”). Prohibited Business categories may be imposed by law or through the Payment Network Rules, by ServiceM8 or the requirements of the Processor’s Financial Services Providers. The types of businesses listed below are representative but not exhaustive. We may add to or update the Prohibited Business list at any time.
Financial and professional services
IP Infringement, regulated or illegal products and services
Products or services that are otherwise prohibited by law or our financial partners
Unfair, predatory, or deceptive practices
You agree to pay the fees for processing as applicable to you, that are set out in your ServiceM8 account, or published within ServiceM8’s website or help documentation (the "Processing Fees"). Processing Fees shall be collected from you by the Processor on our behalf in accordance with the terms of the Stripe Connected Account Agreement.
Fees for ServiceM8 Platform Services are collected separately by ServiceM8 pursuant to the ServiceM8 Terms of Service (the "ServiceM8 Platform Services Fees"). Processing Fees and ServiceM8 Platform Services Fees shall be referred to herein collectively as the "Fees".
You are obligated to pay all applicable taxes, fees and other charges imposed by any governmental authority, including, without limitation, any value added tax, goods and services tax, harmonised sales tax and/or provincial or territorial sales tax, on the Payments Services provided under this Agreement.
We reserve the right to change the Fees at any time, subject to a thirty (30) day notice period to you. If you continue to use the Payments Services and the Processor Services for such thirty (30) days, then you are deemed to have accepted the change in Fees contemplated by such notice.
In addition to the Fees, you are also responsible for any penalties and fines imposed on you or on us by any bank, money services business, payment network, financial institution, or other financial intermediary resulting from your use of the Payments Services in a manner not permitted by this Agreement or by such financial intermediary’s rules and regulations.
Processing Fees charged for transactions which you choose to refund at a later time will not be refunded.
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by charging the payment method associated with your ServiceM8 account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including, without limitation, legal fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
You hereby explicitly agree that all communication in relation to such matters will be made by email, as provided to ServiceM8 by you. Such communication may be made by ServiceM8 or by anyone on its behalf, including, but not limited to, the Processor or a third-party collection agent.
You may elect to contest chargebacks assessed to your account. ServiceM8 does not assume any liability for any assistance we may or may not provide in contesting chargebacks.
Chargebacks incur a dispute fee, as set out in your ServiceM8 account, or published within ServiceM8’s website or help documentation.
If the cardholder’s issuing bank or the Payment Network does not resolve a dispute in your favor, we may recover the chargeback amount and any associated fees from you as described in this Agreement.
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Payments Services or until terminated by you or by ServiceM8.
You may terminate this Agreement by deactivating the ServiceM8 Pay Add-on within your ServiceM8 account, and deactivating your Processor Account or Processor Account profile linked to your ServiceM8 account.
We may terminate this Agreement and disconnect your Processor Account from ServiceM8 at any time, for any reason, upon notice to you. We or the Processor may suspend your ServiceM8 Pay Account and your access to the Payments Services and any rights in respect of your ServiceM8 Pay Account. We may terminate this Agreement, at any time, for any reason, including if: (i) we determine that you may be ineligible for the Payments Services because of the risk associated with your ServiceM8 Pay Account, including, without limitation, significant credit or fraud risk, or for any other reason; (ii) you do not comply with any of the provisions of this Agreement or the Processor Terms; or, (iii) upon request of the Payment Network, the Processor, or a Card issuer. Termination of the Processor Terms may result in a termination of this Agreement.
Should you cancel your ServiceM8 software subscription for the ServiceM8 Platform Services, you will no longer have access to the Payments Services.
Termination of this Agreement does not terminate the ServiceM8 Terms of Service for the main ServiceM8 Platform Services.
Termination does not relieve you of your obligations as defined in this Agreement, and the Processor may elect to continue to hold any funds deemed necessary, pending resolution of any other terms or obligations defined in this Agreement, including, but not limited to, chargebacks, fees, refunds, or other investigations or proceedings.
Upon termination you agree: (i) to immediately cease your use of the Payments Services; (ii) that the license granted under this Agreement shall end; (iii) that we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Payments Services, or any termination or suspension of the Payments Services, or deletion of your information or account data; and, (iv) that you will still be liable to us for any fees or fines, or other financial obligation incurred by you or through your use of the Payments Services prior to termination.
The Payments Services are licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Payments Services are protected by copyright, trade secret, and other intellectual property laws. This Agreement does not grant you any rights to the trademarks, service marks or intellectual property of ServiceM8 or the Processor.
You may choose to, or we may invite you to submit comments or ideas about the Payments Services, including, without limitation, about how to improve the Payments Services or our products (“Ideas”). By submitting any Idea you agree that your disclosure is gratuitous, unsolicited and without restriction, and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Nothing in this Agreement shall serve to diminish your liability under the Processor Terms or ServiceM8 Platform Terms. You are obliged to fulfil your obligations under this Agreement and those under the Processor Terms and ServiceM8 Platform Terms.
Insofar as ServiceM8 becomes liable to the Processor or any other third party for any penalties, fines, fees, or other liabilities under or in respect of the Processor Terms, the Payments Services, the Payment Processing services, or the Payment Network Rules, you agree to indemnify and hold ServiceM8 harmless from and against any and all such liabilities.
You agree to indemnify and defend ServiceM8, our affiliates, and their respective employees, agents and service providers (each, a “ServiceM8 Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a ServiceM8 Entity, and you agree to fully reimburse the ServiceM8 Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any fees, fines, penalties, disputes, reversals, returns, chargebacks (as such terms are defined in the Processor Terms), or any other liability we incur that results from your use of the Payments Services; (iii) negligent or willful misconduct of your owners, employees, contractors, or agents; (iv) contractual or other relationships between you and your customers; or, (v) third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions, including, but not limited to, indemnification of the Processor or any Payment Network. We will have the final decision-making authority with respect to Claims.
You represent and warrant to us that: (i) if you are a sole proprietor, you are at least eighteen (18) years of age or, if you are a corporation or other entity, that the person entering into this Agreement on your behalf is at least eighteen (18) years of age, is authorised to act on your behalf, and has the authority to bind you to this Agreement; (ii) you are eligible to register and use the Payments Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name identified by you when you registered is your name or business name under which you sell goods and services and the information that you have provided to us is accurate and complete; (iv) you are not a member of an organised crime group, a party who has been a member of an organised crime group in the past five years, a quasi-member of an organised crime group, a corporate racketeer, or other similar party, nor are any of your officers or employees a member of the foregoing; and, (v) you will not carry out, nor use a third party to carry out, any of the following unlawful acts: (a) the act of making violent demands; (b) the act of making unreasonable demands exceeding legal responsibilities; (c) the act of using threatening behaviour or violence in relation to a transaction; (d) the act of spreading rumours, using fraudulent means, or using force to harm the other party’s reputation or obstruct the party’s business; (e) the act of selling products for the purpose of money laundering; (f) the act of using a Card held by you for a sale without reasonable grounds or another act similar to those set forth in (a) through (f).
You hereby covenant to us that: (i) any Transactions submitted by you will represent a bona fide sale by you; (ii) any Transaction submitted by you will accurately describe the goods and/or services sold and delivered to a customer; (iii) you will fulfil all of your obligations to each customer for which you submit a Transaction and will resolve any disputes or complaints directly with your customers; (iv) you and all Transactions initiated by you will comply with all applicable laws, rules, and regulations applicable to your business, including, but not limited to, any applicable tax laws and regulations; (v) except in the ordinary course of business, no Transaction submitted by you through the Payments Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (vi) you will not use the Payments Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Payments Services; and, (vii) any information you provide to us will be accurate and complete.
THE PAYMENTS SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS" AND “AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE PAYMENTS SERVICES IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE PAYMENTS SERVICES OR FROM: (I) SERVICEM8; (II) THE PROCESSOR, SUPPLIERS, LICENSORS OR PARTNERS OF SERVICEM8 OR THE PROCESSOR; OR, (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES" AND INDIVIDUALLY, A “DISCLAIMING ENTITY”), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE PAYMENTS SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORISED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT: (I) THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE PAYMENTS SERVICES IS ACCURATE, RELIABLE OR CORRECT; (II) THE PAYMENTS SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE PAYMENTS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (IV) THE PAYMENTS SERVICES WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (V) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (VI) THE PAYMENTS SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (VII) THE PAYMENTS SERVICES ARE FREE OF ERRORS.
ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PAYMENTS SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PAYMENTS SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER SERVICEM8, THE PROCESSOR, NOR THE FINANCIAL SERVICES PROVIDER WILL BE A PARTY TO, OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR THE PAYMENTS SERVICES, INCLUDING, WITHOUT LIMITATION, THE USE OF, INABILITY TO USE, FAILURE OF OR UNAVAILABILITY OF THE PAYMENTS SERVICES. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORISED ACCESS OR USE OF THE PAYMENTS SERVICES OR YOUR SERVICEM8 PAY ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PAYMENTS SERVICES; (II) ANY UNAUTHORISED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE PAYMENTS SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PAYMENTS SERVICES; (IV) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (V) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PAYMENTS SERVICES; AND/OR (VI) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES, AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID DIRECTLY BY YOU TO SERVICEM8 DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF SERVICEM8 OR THE PROCESSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
We make no representations that the Payments Services are appropriate or available for use in all locations. Those who access or use the Payments Services do so at their own volition and are entirely responsible for compliance with all applicable laws and regulations, including, but not limited to, export and import regulations. You may not use the Payments Services if you are a resident of a sanctioned country embargoed by Australia, the United States, the United Kingdom, New Zealand, Canada, or the European Union, or are a foreign person or entity blocked or denied by the governments of Australia, the United States, the United Kingdom, New Zealand, Canada, or the European Union.
You agree that any disputes arising out of or relating to this Agreement or the Payments Services shall be resolved in accordance with this section.
This Agreement is governed by the laws of Australia. The exclusive venue for any actions or claims arising under or related to this Agreement shall be a court of competent jurisdiction in Australia.
ServiceM8 may, or may direct the Processor to respond to and comply with any subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. The Processor or any applicable Financial Services Provider may deliver or hold any funds or any Data as required under such Legal Process, even if you are receiving funds or Data on behalf of other parties. Where permitted by law, we will make reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. We are not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.
Headings are included for convenience only and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Payments Services or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice in your ServiceM8 account, or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Payments Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
You will include us on the list and matrix of creditors as filed with any bankruptcy, commercial or civil court in connection with any Bankruptcy Proceeding, whether or not a claim may exist at the time of filing. Failure to do so will be cause for immediate termination of this Agreement and shall allow the pursuit of any other action available to us under the applicable Payment Network Rules or law.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition), or any permitted assigns.
You may be offered services, products, and promotions provided by third parties and not by us. If you decide to use these third-party services, you will be responsible for reviewing and understanding the terms and conditions associated with these services. You agree that we are not responsible for the performance of these services. The ServiceM8 website may contain links to third-party websites as a convenience to you. The inclusion of any website link does not imply an approval, endorsement, or recommendation by us. You agree that your access to any such website is at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement. We expressly disclaim any liability for these websites. Please remember that when you use a link to go from our website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website’s own rules and policies.
No party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, non-performance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under sections titled ‘ServiceM8 Pay Fees’ and ‘Your Liability and Indemnification Concerning Liabilities’, including, without limitation, for reversals, chargebacks, claims, fines, fees, refunds or unfulfilled products and services.
These terms and conditions, and all policies and procedures that are incorporated herein by reference, constitute the entire agreement between you and ServiceM8 with respect to the provision of the Payments Services. Except as otherwise set out herein, in the event of a conflict between this Agreement and any other ServiceM8 or Processor agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of ServiceM8 and our vendors and suppliers and sets forth your exclusive remedies with respect to the Payments Services and your access and use of the Payments Services. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel to the extent you consider necessary, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we may have at law or in equity. Rather, each and every right we may have under this Agreement, at law or in equity, is cumulative and concurrent, and in addition to every other right.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Payment Methods; Taxes; Security; Data Security; Privacy; Privacy of Others; Restricted Use; Suspicion of Unauthorised or Illegal Use; Payment Network Rules; Disclosures and Notices; Automatic Reminders; ServiceM8 Pay Fees; Our Collection Rights; Contesting Chargebacks; Term; Termination; Ownership; Your Liability and Indemnification Concerning Liabilities; Your Representations, Warranties and Covenants; No Warranties; Limitation of Liability and Damages; Disputes, Choice of Law, Jurisdiction, Venue and Miscellaneous; Right to Amend; Assignment; Change of Business Circumstances; Parties; Third-Party Services and Links to Other Web Sites; Force Majeure; and Entire Agreement and Remedies.
