Merchant Agreement
This Merchant Agreement (June 2022 version) is between DefSys Connect Pty Ltd ABN 39 156 550 202 (DefSys) and the purchaser of the Service subscription specified in the Order (Merchant).
1. Service
1.1 Access and use
DefSys grants Merchant a non-exclusive and non-transferable right to access and use the Service to integrate, and transmit Transaction Data from, Square Payment Services to the Loyalty Program during the Subscription Term, subject to compliance with the terms of the Agreement.
1.2 Service Restrictions
Merchant must:
(a) not access, use, upload data to, or otherwise exploit the Service, except as permitted under clause 1.1;
(b) not reverse engineer, decompile or disassemble the Service, view or gain access to the source code to the Service, or use the Service to provide any product or service that is an alternative, substitute or competitor to the Service;
(c) not copy, develop any modification, enhancement, derivative work or other development of the Service or incorporate any Merchant or third party material into the Service (except as permitted under clause 1.1);
(d) not upload to the Service any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
(e) not remove any product identification, proprietary, trade mark, copyright or other notice applied to or contained in the Service;
(f) not use the Service by any unauthorised means, including using any bot, script, spider, crawler, scraper, API or automated device;
(g) ensure that no person other than Merchant, and its Customers, accesses or uses the Service under Merchant’s account; and
(h) promptly notify DefSys in writing if Merchant wishes to permit a person other than Merchant, or its Customers, to access and use the Service.
1.3 Support Services
The Service includes the provision of the Support Services for the duration of the Subscription Term. Merchant must provide all information and assistance reasonably required by DefSys to perform the Support Services.
1.4 Professional Services
If Merchant wishes to purchase Professional Services from DefSys, the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.
1.5 Beta and evaluation use
If DefSys permits Merchant to beta test or evaluate the Service prior to purchasing a subscription:
(a) the right in clause 1.1 is limited to access and use of the Service for the period specified by DefSys (Trial Period) solely for Merchant’s internal beta testing or evaluation of the Service (without any right to use the Service for commercial, external or any other purpose);
(b) DefSys provides the Service “as is” and excludes all warranties, indemnities, obligations (including Support Services) and liabilities under the Agreement for the duration of the Trial Period; and
(c) upon expiry of the Trial Period, Merchant must immediately cease using the Service unless Merchant purchases a subscription to the Service, in which case all terms of the Agreement apply from commencement of the paid Subscription Term.
2. Merchant responsibilities
2.1 Usage responsibilities
Merchant uses the Service at its own risk and is solely responsible for:
(a) obtaining and maintaining all hardware, software, services and network connectivity necessary to access and use the Service, including all necessary to Square Payment Services;
(b) entering into, and complying with, its own agreements with SquareUp, Yotpo and other providers of technologies used by Merchant to access and use the Service;
(c) all dealings with Customers, including all payments processed using Square Payment Services and dealings related to the Loyalty Programs;
(d) ensuring that the Service is accessed and used strictly in accordance with the Agreement. Merchant is responsible for each act and omission of any person who uses Merchant’s subscription as though it were an act or omission of Merchant;
(e) ensuring that Merchant’s use of the Service, and all data (including Transaction Data) uploaded to and processed by the Service, complies with all applicable laws, regulations and contractual obligations;
(f) obtaining all consents, licences and approvals necessary to lawfully collect, upload, store, process and disclose all data (including Transaction Data) uploaded to the Service;
(g) implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Merchant; and
(h) providing all support and maintenance required by its Customers other than the Support Services.
2.2 Acknowledgements
Merchant acknowledges and agrees that Square Payment Services and the Loyalty Programs are:
(a) separate services provided directly to Merchant or its Customers, do not form part of the Service and are not governed by the Agreement;
(b) used or supplied by Merchant at its own risk and (as between Merchant and DefSys) Merchant is solely responsible for all costs, Claims and Losses relating to the provision or receipt of Square Payment Services and the Loyalty Programs; and
(c) subject to change, suspension, termination or discontinuation by SquareUp, Yotpo and other providers at any time and without notice (and that this may cause the Service to cease to be compatible with them).
3 Fees, invoicing and payment
3.1 Fees
The Fees are payable in consideration of DefSys’s supply of the Service and any Professional Services. DefSys may increase its Fees at any time, unless agreed otherwise with Merchant in an Order.
3.2 Invoicing and payment
DefSys must issue invoices for the Fees to Merchant at the times specified in the Order or applicable SOW. Merchant must pay all Fees invoiced by DefSys, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by DefSys are non-cancellable and non-refundable.
3.3 Late Payment
If Merchant fails to pay any Fees (that are not disputed in good faith) by the due date for payment, DefSys may:
(a) suspend Merchant’s right to access and use the Service; and
(b) charge a US$50 administration fee and interest at a rate of 8 percent per annum (accruing daily), in each case, from the due date for payment until the date that payment is made by Merchant.
3.4 Verification
DefSys may on 14 days’ notice conduct an audit of Merchant’s use of the Service and compliance with the Agreement from time to time during the Subscription Term. Merchant must provide all access to Transaction Data, records, premises and personnel reasonably requested by DefSys in connection with any such audit. DefSys must bear the costs of any such audit unless the audit reveals that Merchant has used, or permitted the use of, the Service in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Merchant must immediately:
(a) pay to DefSys all additional Fees payable in respect of any excess use (at DefSys’s then current list prices) in addition to DefSys’s reasonable audit costs; and
(b) take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.
3.5 Taxes
The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).
4 Intellectual Property Rights
4.1 Ownership
All Intellectual Property Rights in and to the Service and output of the Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Service developed by or on behalf of Merchant, vests or remain vested in DefSys or its licensors. If any such Intellectual Property Right vests in Merchant despite this clause, Merchant hereby assigns that Intellectual Property Right to DefSys with immediate effect. Merchant must take all further steps (including execution of documents) necessary to give effect to this clause.
4.2 No other rights
Merchant receives no right, title or interest in or to the Service other than the right to access and use it pursuant to clause 1.1.
4.3 Notice of infringement
Merchant must immediately notify DefSys in writing upon becoming aware of any:
(a) infringement or unauthorised use of the Service by any person, including any Customer; or
(b) Claim by a third party that use of the Service by Merchant in accordance with the Agreement infringes any copyright or patent owned by that person in Australia or United States of America (IP Claim).
4.4 If the Service is the subject of an IP Claim, DefSys may (at its cost and option) either:
(a) procure the right for Merchant to continue using the Service;
(b) modify the Service such that it no longer infringes the relevant Intellectual Property Rights; or
(c) terminate the Agreement and provide Merchant with a pro-rata refund of any Fees paid in advance for use of the Service.
5 Transaction Data, Usage data and Analyses
5.1 Rights
As between DefSys and Merchant, all rights in and to the Transaction Data vest or remain vested in Merchant at all times.
5.2 Licence
Merchant:
(a) grants DefSys, its sub-processors and their respective personnel the right to Process the Transaction Data; and
(b) warrants that it has obtained all consents, licences and approvals from individuals, Customers, SquareUp, Yotpo and/or other third parties necessary to enable DefSys, its sub-processors and their respective personnel to Process the Transaction Data, in each case, solely as contemplated by the Agreement.
5.3 Usage data and analyses
DefSys may:
(a) use data relating to Merchant’s and Customer’s use of the Service for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Service; and
(b) freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Service and the Transaction Data in anonymised and/or aggregated form such that neither Merchant nor Customers are identifiable.
6 Privacy and data protection
Privacy
Each party must comply with all Privacy Laws applicable to that party (whether as controller or processor) in Processing any Personal Data comprised in the Transaction Data. Merchant acknowledges that Personal Data, other than that comprised in the Transaction Data, will be Processed in accordance with DefSys’s privacy policy.
6.1 Data Security
DefSys must implement reasonable technical and organisational security controls to protect the Transaction Data against loss, unauthorised access, modification and disclosure (Data Breach) in accordance with applicable Privacy Laws, including:
(a) not disclosing the Transaction Data except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and
(b) maintaining appropriate business continuity and disaster recovery measures for the Service.
6.2 Data Breaches
If either party becomes aware of any actual or suspected Data Breach affecting the Transaction Data:
(a) that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;
(b) DefSys must provide Merchant (at its cost) with information and assistance reasonably required by Merchant to investigate and assess the actual or suspected Data Breach;
(c) Merchant is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.2(e);
(d) Merchant must not reference DefSys in any notification or communication relating to the actual or suspected Data Breach without DefSys’s prior written approval as to the form and content of the reference; and
(e) DefSys may make a notification or communication about the Data Breach if Merchant fails to do so and DefSys is required to do so under applicable Privacy Laws.
7 Confidentiality
7.1 Obligation of confidence
Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 7.
7.2 Permitted use
The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.
7.3 Permitted disclosures
The Recipient may disclose Confidential Information of the Discloser:
(a) to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
(b) to the extent required by law; and
(c) with the prior written consent of the Discloser.
To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party’s name and logo, without being in breach of this clause.
Warranties and indemnities
8.1 Warranties
DefSys warrants that:
(a) the Service will operate substantially in accordance with its published specifications during the Subscription Term; and
(b) it will provide the Service and any Professional Services with due care and skill.
DefSys must, as Merchant’s sole and exclusive remedy resupply any part of the Service or Professional Services which does not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance.
8.2 No other terms
To the extent permitted by law, DefSys excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, DefSys does not warrant that the Service or any Professional Service will be:
(a) continuous, free from errors, omissions, defects, security risks or vulnerabilities;
(b) fit for any purpose or meet the requirements of Merchant or any Customer;
(c) capable of interfacing, integrating or interoperating with Square Payment Services or Loyalty Programs which are changed, suspended, discontinued or terminated without reasonable notice.
8.3 Non-excludable terms
8.4 Merchant indemnities
Merchant indemnifies DefSys and its Affiliates against and must pay on demand all Losses suffered or incurred by any of them arising out of or in connection with:
(a) any Claim relating to Merchant’s access to, or use of, the Service, including any Claim made by a third party; and
(b) any Claim relating to the Square Payment Services, Loyalty Programs or use of the Service by Merchant, including any Claim made by a Customer;
(c) any breach of clause 1.2, 2.1, 5.2, 6 or 7 by Merchant,
in each case, except to the extent that the Claim or breach is caused or contributed to by DefSys.
9 Liability
9.1 Exclusion of Indirect Loss
9.2 Third parties
The Service may contain, integrate with, receive, or provide links to third party products, services or content (including the Square Payment Services and Loyalty Programs). Merchant acknowledges and agrees that DefSys:
(a) has no oversight nor control over such third party products, services or content; and
(b) excludes any and all liability for Claims and Losses arising out of or in connection with such third party products, services or content.
9.3 Limitation of liability
The liability of each party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Merchant under the Agreement in that Subscription Year, subject to clause 9.4.
9.4 Unlimited liability
The limitations of liability in clauses 9.1 and 9.3 do not apply to the liability of:
(a) Merchant under the indemnities in clause 8.4;
(b) Merchant to pay Fees due and payable; or
(c) a party for any matter in respect of which liability may not be limited at law.
9.5 Injunctive relief
10 Term, suspension and termination
10.1 Subscription Term
The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 10.
10.2 Suspension
DefSys may (without any liability) suspend the rights granted pursuant to clause 1.1:
(a) during any period in which Merchant is in breach of the Agreement (subject to clause 3.3(a) in the case of late payment);
(b) to prevent or mitigate actual or suspected illegal activity, damage to DefSys’s systems, or threat to the integrity of the Service;
(c) to conduct scheduled or emergency maintenance of the Service; or
(d) if the Square Payment Services or Loyalty Programs cease to be compatible with the Service for any reason outside DefSys control.
10.3 Termination for cause
A party may terminate the Agreement with immediate effect on written notice if the other party:
(a) commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Merchant of clauses 1.1, 1.2, 2.1, 3.2, 5, or 7 is a material breach for the purposes of this clause;
(b) becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.
10.4 Consequences of termination or expiry
(a) all rights to the Service granted under the Agreement cease immediately and Merchant must immediately cease using the Service;
(b) Merchant must immediately pay DefSys all Fees due and payable as at the date of termination or expiry and, if DefSys terminates pursuant to clause 10.3, all Fees payable for the remainder of the Subscription Term; and
(c) Merchant is only entitled to a refund of Fees paid in respect of the period after termination where Merchant terminates pursuant to clause 10.3(a).
11 Miscellaneous
11.1 Entire agreement
11.2 Amendment
DefSys may amend this Merchant Agreement at any time by posting the amended version of this Merchant Agreement at www.defsysmulticonnect.com. Any amended version of this Merchant Agreement will only apply to Orders entered into following the date of the amendment to this Merchant Agreement.
11.3 Force Majeure Events
DefSys is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.
11.4 Severance
If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.
11.5 Transfer
Merchant must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of DefSys.
11.6 Waiver
A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
11.7 Third party rights
No person other than DefSys and Merchant has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.
11.8 Relationship of the parties
The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.
11.9 Governing Law
The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.
12 Definitions
Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party.
Agreement means the agreement consisting of this Merchant Agreement, the Order and any SOW.
Claim means any demand, claim, action or proceeding, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:
(a) including the terms of the Agreement and, in the case of DefSys, all source code to, DefSys Data comprised in, and pricing for the Service; but
(b) excluding any such information that is in the public domain (other than as a result of a breach of confidence).
Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:
(a) direct or indirect ownership of more than 50% of the voting rights of such person; or
(b) the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.
Customer means a customer of Merchant who both:
(a) makes a transaction with Merchant using Square Payment Services; and
(b) is enrolled in the Loyalty Program.
DefSys Data means data, information or material comprised in, or relating to, the Service (including usage data and analyses created under clause 5.3), excluding Transaction Data.
Fees means the fees, costs and expenses for the supply of the Service specified in the Order and any Professional Services specified in the applicable SOW.
Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.
Indirect Loss means:
(a) loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and
(b) any Loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.
Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.
IP Claim is defined in clause 4.3(b).
Loss means loss, damage, liability, cost (including all legal and other professional costs on a full indemnity basis), charge, expense, outgoing, fine or payment of any nature or kind.
Loyalty Program means a loyalty or rewards program offered by Merchant using:
(a) ‘Yotpo’ eCommerence Marketing Platform offered by, or on behalf of, Yotpo; or
(b) other e-commerce or customer experience technology software which is integrated with the Service and approved by DefSys in writing from time to time.
Order means an order form setting out the details of Merchant’s purchased subscription to the Service as specified in any:
(a) DefSys Order Form in respect of the Service executed by the parties; or
(b) online order form completed by Merchant and logged in DefSys’s databases,
including details of the applicable Fees and Subscription Term.
Personal Data means information about an identified individual or an individual who is reasonably identifiable, including ‘personal information’ and ‘personal data’ as defined in applicable Privacy Law.
Privacy Law means any applicable law governing the Processing of Personal Data, including (to the extent applicable) the Privacy Act 1988 (Cth) and California Consumer Privacy Act (2018).
Process means to collect, store, use, copy, disclose, create derivations, or perform any other set of operations on.
Professional Services means any support, implementation, training, data migration or other service not forming part of the Service.
Service means the DefSys MultiConnect software which integrates Square Payment Services with Loyalty Programs and which is delivered via the internet as a service, including any Updates.
SOW means a statement of work setting out the details of the Professional Services to be provided by DefSys, including the agreed scope and fees for the Professional Services.
SquareUp means Block Inc and SquareUp Pte Ltd.
Square Payment Services means the compatible payment technology and processing services for merchants made available by, or on behalf of, SquareUp from time to time.
Subscription Term means:
(a) the initial term of Merchant’s subscription to the Service specified in the Order, including any Trial Period; and
(b) successive 12 month renewal terms thereafter, unless Merchant provides notice of non-renewal at least 60 days’ prior to the expiry of initial term or renewal term (as applicable).
Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.
Support Services means:
(a) online, email or telephone support for Service defects that require access or changes to the source code for the Service; and
(b) making Updates available from time to time,
in each case, in accordance with the DefSys Support Services Policy. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.
Transaction Data means the following data Processed through the Service by Merchant:
(a) Customer details including name, email address and other Personal Data;
(b) Square Payment Services transaction identifiers;
(c) the date, time, amount, payment method and other details of the transactions made by Customers with Merchant using Square Payment Services.
Trial Period is defined in clause 1.5(a).
Updates means any new version, release, update, patch, fix, configuration or other modification of the Service made available by DefSys to its customers generally during the Subscription Term.
Yotpo means Yotpo Limited.