Legal & PCI
Last Updated: September 2023
1. THE PLATFORM AGREEMENT
1.1 This Platform Agreement (“Platform Agreement”) is a contract between the merchant identified in the Merchant Application (“you”, “yours”, “your” or “Merchant”) and Splitit Australia Pty Ltd (ABN 47 633 648 861) (“we,” “us,” “our” or “Splitit”) (together, “The Parties”).
1.2 This Platform Agreement governs your engagement with Splitit (the “Splitit Services”), whereby we provide you with a proprietary technology solution for instalment payment processing (“Splitit Platform”). The Splitit Platform allows you to enter into a retail instalment sales contract (“Instalment Agreement”) with your shoppers (each a “Customer”), under which you sell goods and services, and the Customer agrees to pay you for such goods and services by instalment payments (“Instalments”) which are processed through your card processor (each such transaction, a “Splitit Transaction”).
1.3 Splitit may make changes to this Platform Agreement from time to time, provided, however, that we will not make any material changes to the Platform Agreement (including any changes that impose additional obligations on you) unless we have given you not less than thirty (30) days prior written notice of such changes. Splitit will inform you via email and/or your merchant portal of any such material changes to the Platform Agreement. BY USING THE SPLITIT SERVICES AND SPLITIT PLATFORM AFTER THE DATE ANY SUCH CHANGES ARE NOTIFIED TO YOU TO BECOME EFFECTIVE YOU AGREE TO ACCEPT SUCH CHANGES TO THIS PLATFORM AGREEMENT INCLUDING ANY ADDITIONAL OBLIGATIONS THEREIN. The current Platform Agreement can be found on our website at www.splitit.com which Merchant should review from time to time.
2. SERVICES WE PROVIDE TO YOU
2.1 Instalment Processing
(a) Splitit Platform. The Splitit Platform allows you to obtain an authorisation for the total remaining outstanding balance of the Splitit Transaction (“Authorization”) using the available credit or available balance on your Customer’s payments card. The payments card must be a type that utilises a card network supported by the Splitit Platform (the “Card Networks”). The Splitit Platform periodically issues new Authorizations on your behalf for the remaining balance, less each paid Instalment. You may also choose to authorize Splitit Transactions without issuing Authorizations and instead collect payments by charging the payment card for the amount of the Instalment on or around each Instalment due date.
(b) Timing of Authorizations. The Splitit Platform will begin obtaining Authorizations on Customer’s cards on your behalf at the time of purchase, unless otherwise agreed with Splitit. Unless you notify us otherwise, we will capture the first Instalment within three days of purchase. Merchant represents and warrants that all goods and services purchased by your Customer using a Splitit Transaction will have been shipped, delivered, or provided within this time frame. If you have reason to believe this may not be the case, you shall notify the Splitit customer success team immediately, via email to [email protected].
2.2 Customer Journey. Splitit shall provide you with customer journey marketing assets, which may change from time to time, in connection with the Splitit Services and provide guidance on the best placement of these assets for maximum impact and conversion with your shoppers. Merchant hereby agrees to reasonably comply with the placement of the customer journey assets and guidelines. We may agree with you from time to time on additional promotional activities, through your website or otherwise. In no circumstance should any marketing assets suggest that Splitit is entering into, or responsible for, the Instalment Agreement with the Customer and it should be made clear to the Customer that Splitit is only operating the Splitit platform to facilitate payment by way of instalment.
2.3 Customer Consent. For each Splitit Transaction, you must ensure that your Customer accepts and approves all Customer Forms (as defined below) related to the Splitit Services including, the Consumer Terms of Service and the payment authorisation (“Customer Forms”). By accepting and approving the Customer Forms, the Customer consents to the Authorization and capture of the full Splitit Transaction amount, the number and schedule of Instalments, the amount captured in each Instalment, and any other terms set forth therein. You will have no right to amend, vary or supplement the terms of the Customer Forms, without prior written consent from Splitit, at any time, as those terms apply to each of your customers in respect of each Splitit Transaction and, in addition to your own standard trading terms for the supply of goods or services, the Customer Forms shall be the only terms between you and the customer in respect of each Splitit Transaction.
2.4 Customer Forms. You understand that the Consumer Terms of Service and other Customer Forms are contracts entered into between the Merchant and the Customer. Merchant is solely responsible for fulfilling any and all obligations of such Customer Forms, and agrees to comply with all applicable laws governing such Customer Forms and the Splitit Transactions to which they pertain. Splitit is not a party to the Customer Forms and disclaims all responsibility for Merchant’s compliance with the Customer Forms.
2.5 Splitit Platform Service and Maintenance. You will promptly notify us of, and assist us in diagnosing, any failure or other impediment to your use of the Splitit Platform, whereupon we will use commercially reasonable efforts to repair the failure or otherwise arrange for the necessary maintenance.
3. FEES AND PAYMENT TERMS
3.1 Customer Fees and Expenses. Splitit does not charge Customers any time-price differential, interest rate on outstanding transaction amounts, fees (including, but not limited to, service fees, late fees, credit card surcharges and convenience fees), or penalties in connection with Splitit Transactions, except as expressly set forth in the Customer Forms.
3.2 Fee Schedule. The Merchant agrees to pay Splitit the fees set forth in the Merchant Application or as otherwise agreed with Splitit (the “Fee Schedule”) in connection with each Splitit Transaction, which is incorporated by reference into this Platform Agreement (the “Fees”). Fees shall be due on the date each Splitit Transaction is created and are payable in accordance with the terms of this Platform Agreement. We reserve the right to modify the Fee Schedule at any time by providing thirty (30) days prior written notice.
3.3 Payment Terms. Merchant hereby authorizes Splitit or its service provider to make regularly scheduled charges from Merchant’s checking account or other accepted payment method identified by the Merchant (“Merchant Account”) for all Fees and other amounts owed to Splitit under this Platform Agreement. Merchant understands that this authorisation will remain in effect until Merchant cancels it in writing, and Merchant agrees to notify Splitit in writing of any changes in the Merchant Account information or termination of this authorisation at least fifteen (15) days prior to the next payment due date. If you terminate this authorisation, Splitit may require you to authorize payments using another Merchant Account.
Fees will be payable monthly in arrears, subject to rights of setoff contained herein, including in connection with chargebacks and refunds. Merchant understands that the payment may be charged to the Merchant Account on each payment date. If any payment date falls on a weekend or holiday, Merchant understands and agrees that payments may be executed on the next business day.
Merchant understands and agrees that Splitit may not provide prior notice of each transaction unless required by law. In the event any Merchant Account payment charge or transaction is rejected for insufficient funds (NSF) or any other reason, Merchant understands that Splitit may, at its discretion, retry the transaction, unless prohibited by law. Merchant agrees that Splitit may charge a $30.00 fee each time a transaction or attempt is returned unpaid, and authorizes Splitit to collect that fee by initiating an additional charge to the Merchant Account for the amount of the fee, on or after the date the fee is incurred.
3.4 Non-Payment of Fees. Any Fees, or other amounts you owe us under this Platform Agreement, which are not paid within thirty (30) days may be subject to interest and late fees as separately agreed or notified in writing, starting as of the date the payment of each such amount was due, until all such Fees are paid in full. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to suspend or cancel your service if any Fees remain unpaid for more than five (5) business days after the payment due date.
3.5 Taxes. Except in relation to GST, it is your responsibility to determine what, if any, taxes apply in connection with your use of the Splitit Services and Splitit Platform, including to withhold or deduct, report and remit the correct tax to the appropriate tax authorities. To the extent that you are required to withhold or deduct an amount in respect of taxes from a payment in respect of this Platform Services Agreement, you are required to pay an additional amount so that, after making the withholding or deduction, Splitit receives (at the time the payment is due) the amount it would have received if no withholding or deduction had been required.
3.6 GST definitions. In Sections to :
(a) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(b) words and phrases which have a defined meaning in the GST Act have the same meaning, unless the contrary intention appears; and
(c) each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies is to be treated as if it were a separate supply.
3.7 GST exclusive amounts. Unless otherwise expressly stated in this Platform Agreement, all consideration provided or to be provided in connection with this this Platform Agreement is exclusive of GST.
3.8 Payment of GST. If GST is payable on a supply made in connection with this Platform Agreement, the party which provides or which is liable to provide the GST-exclusive consideration for the supply agrees to pay to the supplier an additional amount equal to the amount of GST payable on that supply (“GST Amount”).
3.9 Timing of GST payment. Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time as the GST-exclusive consideration for the supply, or the first part of the GST-exclusive consideration for the supply (as the case may be), is payable or is to be provided.
3.10 Adjustment events. If an adjustment event arises for a supply made in connection with this Platform Agreement, the GST Amount must be recalculated to reflect that adjustment. The supplier or the recipient (as the case may be) agrees to make any payments necessary to reflect the adjustment and the supplier agrees to issue an adjustment note.
3.11 GST and payments, indemnities, reimbursements etc. Any payment, indemnity, reimbursement or similar obligation that is required to be made in connection with this Platform Agreement which is calculated by reference to an amount paid or payable by another party must be reduced by the amount of any input tax credits to which the other party is entitled. If the reduced payment is consideration for a taxable supply, Section applies to the reduced payment.
4. REFUNDS; CHARGEBACKS; AND FRAUD
4.1 Refunds. If you agree to issue any Customer a refund, you must notify us immediately and Splitit will cancel the remaining Instalments under the Splitit Transaction and reasonably cooperate with you and your processor, gateway, and acquirer to facilitate such refund. If you notify us of a partial refund, we will update the Authorization in the Splitit Platform accordingly. Notwithstanding anything herein to the contrary, Merchant hereby agrees that Merchant shall be liable to Splitit for any refund initiated by Merchant’s Customers, for any reason, and Merchant shall indemnify and hold Splitit harmless for any damage, loss, cost or liability relating to, or resulting from, any such refund.
4.2 Chargebacks. Although the Splitit Services can be used to obtain Authorizations for the full amount of the Splitit Transaction, this does not guarantee actual payment, and the full Splitit Transaction, or any single Instalment, may be returned or charged back to the Merchant, like any other payment card transaction. In the event of a chargeback, Merchant hereby agrees to promptly resolve the chargeback with Merchant’s processor and notify Splitit within seven (7) days of (i) any chargebacks and (ii) when any chargeback is resolved, including the resolution of such chargeback. Notification may be via the merchant portal, files or webhooks implemented during implementation. If we receive notice of any such chargeback, we will notify you accordingly and reserve the right to terminate the Authorization and the Splitit Transaction. Notwithstanding anything herein to the contrary, you shall be liable to us for any chargeback initiated by your Customers, for any reason, and you shall indemnify and hold Splitit harmless for any damage, loss, cost or liability relating to, or resulting from, any such chargeback.
4.3 Effect of Fraud, Disputes, and Chargebacks. In the event of any fraud, dispute or chargeback Splitit may be unable to maintain Authorizations on the affected Splitit Transactions during the chargeback processing or the Processor or card issuer may cancel or terminate an authorization or block a capture against an Authorization. In each such case, Splitit cannot guarantee processing of the remaining Instalments and Splitit takes no liability for Customer payments in connection with fraud, dispute or chargebacks.
4.4 You shall be responsible for all Fees incurred from the date of the Splitit Transaction, which are non-refundable, and shall be considered fully earned by Splitit on the date of the Splitit Transaction, irrespective of whether such transactions are identified as a refund, chargeback, fraudulent or any other type of transaction.
4.5 Anti-Fraud. Merchant represents that it has employed risk monitoring and fraud detection practices that a reasonable person would employ in e-commerce. Merchant hereby agrees that Merchant bears sole responsibility for any fraudulent activities associated with Splitit Transactions and, for the avoidance of doubt, Splitit has no liability for any such fraudulent activities. Notwithstanding the foregoing, we may, at our discretion, employ fraud detection technologies or other preventive tools in connection with the Splitit Services, which are designed to provide us with increased transaction screening and fraud detection capabilities.
4.6 Outstanding Amounts. Except as otherwise provided herein, in any event in which you are unable to collect an amount owed to you by a Customer, which is the direct result of a failure by the Splitit Platform to issue an Authorization, to issue a new Authorization, or to capture an Instalment against an existing Authorization, we will be responsible for paying you the outstanding Authorization amount; provided however, that (i) each of Merchant and Processor has fully integrated the Splitit Platform in accordance with all written instructions and developers tools provided by Splitit, as may be updated from time to time,(ii) goods and services have been delivered or rendered as agreed between Merchant and Customer, (iii) transaction and shopper is not determined to be fraudulent, in Splitit’s sole discretion, (iv) Merchant, sub-merchant or affiliates are not determined to be fraudulent, in Splitit’s sole discretion, (v) Merchant has reconciled settled amounts from the Processor in accordance with industry best practices and (vi) Merchant has notified Splitit of any failure event within 30 days of the beginning of such failure event.
5. FINANCIAL AND OTHER INFORMATION; PROTECTIVE ACTIONS
5.1 Financial and Other Information
(a) Financial Records. You shall immediately provide Splitit with all financial information reasonably requested by or on behalf of Splitit necessary to process your Application, in connection with a periodic review of your account with us, and to collect any amounts you owe us under this Platform Agreement, including but not limited to, “Know Your Customer” and “Anti-Money Laundering” information.
(b) Books and Records. You agree to maintain all books and records required (i) by your processor, in accordance with the Card Network Rules, (ii) by law or regulatory bodies, and (iii) by Splitit, as requested by us in writing.
(c) Ongoing Review. Splitit reserves the right to reassess your eligibility for use of any of the Splitit Services from time to time. This may include obtaining updated business information or financial records as reasonably required to evaluate your eligibility.
(d) Release and Exchange of Financial Information. You hereby authorize us to release your financial information to your processor or Card Network or other financial/insurance institutions that reasonably request such information in connection with Splitit Transactions. We take no responsibility for how your processor or Card Network treats this information and you will not have any claim against us in connection with this exchange.
5.2 Protective Actions. If Splitit determines, in our sole discretion, that (i) Merchant fails to comply with any of the provisions in Section 5.1, (ii) Merchant’s financial condition has deteriorated, (iii) your account is suspected of fraudulent activity of any kind, or (iv) your account receives or is likely to receive a high number of customer disputes, chargebacks, or similar complaints or claims (collectively “Risk Factors”), we may immediately take any or all of the following actions in connection with your account and use of the Splitit Services:
(a) Refusal of New Splitit Transactions. We may temporarily or permanently cease to provide Splitit Services for future Splitit Transactions. Except with respect to suspected fraudulent transactions, which shall be determined in the sole discretion of Splitit, Splitit will continue to attempt to issue Authorizations and captures with respect to existing Splitit Transactions, until payment of the final Instalment of each such Splitit Transaction. You hereby agree to pay all Splitit Fees during such a period.
(b) Setoff. In the event that you default in payment of the Fees to us, we retain a right of setoff and may apply any of your deposit balances or amounts we owe you toward the payment of amounts you owe us under or in connection with this Platform Agreement. This setoff right does not limit any other rights or remedies we may have under applicable law.
6. INTELLECTUAL PROPERTY
6.1 Grant of Non-Exclusive License. The Splitit Platform is protected by several patents and pending patent applications in the U.S. and several other jurisdictions. Subject to the terms of this Platform Agreement, Splitit hereby grants Merchant a limited, non-exclusive, non-transferable, revocable license to access the Splitit Platform and use the Splitit Services during the Term. Merchant acknowledges that Splitit may change, deprecate or republish APIs for the Splitit Services or feature(s) of the Splitit Services from time to time, and that it is Merchant’s responsibility to ensure that calls or requests Customer makes to the Services are compatible with then-current APIs for the Services.
6.2 License Restrictions. Merchant will not, and will not permit any third party to, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Splitit Platform or Splitit Services; modify, translate, or create derivative works based on the Splitit Platform or Splitit Services; use the Splitit Platform or Splitit Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
6.3 Ownership. Your use of the Splitit Platform does not grant you any right of ownership over any aspect of the Splitit Platform or over any of Splitit’s intellectual property rights, including but not limited to, patents, copyrights, trademarks, trade secrets, and other intellectual property rights (collectively “Intellectual Property Rights”). We retain all ownership rights, title and interest throughout the world in and to all aspects of the Splitit Platform and the Intellectual Property Rights. You may not act in a manner that is inconsistent with, or that in any way challenges, our ownership of the Splitit Platform, our Intellectual Property Rights and associated registrations.
6.4 Use of Splitit Platform. Your right to use the Splitit Platform is limited to the usage rights expressly granted by Splitit, and such right is specifically restricted to the Splitit Services. You may not share your use of the Splitit Platform with anyone or assist a third party in using the Splitit Platform in any way without prior written consent from Splitit.
6.5 Use of Merchant Promotional Materials. You will make your logos, button links, text links and other graphic material available to us for display and use on our website, promotional materials, social media channels, and Australian Stock Exchange reporting materials (the “Promotional Materials”). For the duration of the term of this Platform Agreement, you grant us a non-exclusive, worldwide, royalty-free license to use your intellectual property for the purpose of displaying the Promotional Materials on our website, promotional materials, social media channels, and Australian Stock Exchange reporting materials.
By entering into this Platform Agreement and using the Splitit Services, you acknowledge that we will provide you with certain proprietary and highly sensitive information. For the avoidance of doubt, this provision shall cover all services and information provided to you by Splitit or its affiliates in connection with the Splitit Services and ancillary services and shall supersede any previous confidentiality agreements.
7.1 “Confidential Information” means any information disclosed, provided or made available directly or indirectly by us to you in any form, for the purpose of evaluating, executing, or providing administrative services with respect to a Splitit Transaction, including proprietary information, marketing techniques and know-how, data compilations, analyses, projections, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of Splitit.
7.2 Exclusions. Confidential Information does not include any information that (i) was in the public domain prior to our disclosure to you; (ii) becomes publicly known independent of any action by you; (iii) you can prove was already rightfully in your possession at the time of disclosure; or (iv) was obtained by you from a third party without a breach of such third party’s obligations of confidentiality.
7.3 Intended Use. You will not use any of our Confidential Information for any purpose other than for the purpose of your engagement with Splitit as governed by this Platform Agreement.
7.4 Required Disclosure. In the event that you are required by law, governmental or regulatory authority, or by a court of competent jurisdiction to disclose any Confidential Information, you will inform us immediately so that we may seek an appropriate protective order or waive your compliance obligations with the provisions of this Platform Agreement, in our sole discretion. In cases where we seek a protective order, you will cooperate with us in order to obtain such order. If we fail to obtain a protective order or you do not receive from us a waiver of your confidentiality obligations, and yet you remain, in the opinion of your legal counsel, legally compelled to disclose Confidential Information, you may disclose only that Confidential Information you are legally required to disclose, provided that you use commercially reasonable efforts to obtain assurances that such Confidential Information will be kept confidential and that you notify us in writing of its scope and content.
7.5 Maintaining Confidentiality. You shall protect the confidentiality of the Confidential Information, taking at least the degree of care that you take to protect your own confidential information. You shall only share Confidential Information with employees and representatives who are subject to confidentiality and non-disclosure requirements with respect to you and information you receive from third parties.
7.6 Return of Materials. Upon our written request, you shall return or destroy all documents or media containing or constituting Confidential Information.
7.7 Remedies. You agree that monetary damages may be an insufficient remedy for any breach or threatened breach of this Section 7, and therefore we may be entitled to specific performance and injunctive or other equitable relief in the case of any such breach or threatened breach, and you agree to waive any requirement for the security or posting of any bond in connection with such relief. Such remedy is not the exclusive remedy for breach of this Section 7.7, but is in addition to any other remedy available to us.
8. REPRESENTATIONS AND WARRANTIES
8.1 Merchant. You represent and warrant that:
(a) Valid and Binding. Each Instalment Agreement constitutes legal, valid, and binding obligations of the relevant Customer in accordance with the terms of the Instalment Agreement, subject to equitable principles and the effect of insolvency laws generally.
(b) Lawful business. You are engaged in a lawful business and are licensed to conduct your business under the laws of all jurisdictions in which you conduct business. You further represent and warrant that all your statements in this Platform Agreement and related documents are true, accurate, and complete in all material respects.
(c) Compliance with Applicable Laws. You will comply with all applicable laws, rules and regulations applicable to you and your business, at your own expense, including, where applicable, RISAs, and all laws prohibiting or limiting the imposition of surcharges, late payment or other fees on Customers with respect to Splitit Transactions. You will comply with all material terms of Splitit policies, procedures, and guidelines governing the Splitit Services that have been provided to you in writing, and the terms of all Instalment Agreements. You may not use the Splitit Platform in any way that may cause us to be subject to investigation, prosecution, or legal action. Although Splitit has no obligation to monitor Merchant’s use of the Splitit Services, Splitit may do so and may prohibit any use of the Splitit Services it believes may be in violation of any rule, regulation, or Splitit policy. By acknowledging and agreed to the terms of this Platform Agreement and using the Splitit Services, you confirm that you are and will remain in full compliance with the operating regulations and rules issued by the Card Networks (the “Card Network Rules”). For the avoidance of doubt, Splitit makes no representations or warranties with respect to Merchant’s compliance with Card Network rules.
(d) Reconciliation. Merchants hereby represents and warrants that Merchant will reconcile all amounts settled from the Processor in respect of Splitit Transactions on at least a monthly basis in accordance with industry best practices. Merchant shall immediately report to Splitit if any such amounts have not settled.
(e) Accurate Information. All information you provided in connection with the Application is true and correct in all material respects, and not misleading. You are providing information to Splitit in connection with utilizing the Splitit Services for your own purposes and not for anyone other than yourself or on behalf of another Person. You are solely responsible for all data, information, text, content, reports, and other materials that are uploaded, posted, delivered, or otherwise transmitted or stored by or on behalf of Merchant in connection with the Splitit Transactions or relating to the Splitit Services, including any information provided by a Customer or Processor. Merchant represents and warrants on its behalf and on behalf of its Processor that (a) it has all rights necessary to provide any information, data, or other materials that it provides hereunder, and to permit Splitit to use the same as contemplated hereunder, (b) all information provided to Splitit is accurate and complete in all respects, and (c) none of the information provided (i) will violate, misappropriate or infringe any rights of any third party, (ii) will defame or invade the rights of privacy or publicity any rights of any third party, or (iii) is designed for use in any illegal activity or promote illegal activities, including, without limitation, in a manner that might be malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
(f) Splitit Transactions. In connection with each Splitit Transaction, you represent that it is a bona fide sale to an authorized cardholder by you for the amount shown on the invoice, which accurately describes the goods and services sold and constitutes the binding obligation of the cardholder, free from any demand, setoff or other adverse claim. You will fulfil all of your obligations to the cardholder and resolve any Customer dispute or complaint directly with the cardholder.
(g) Licenses, Registrations, Permits. You represent and warrant that you have obtained all licenses, permits and registrations, if applicable, required to offer or enter into Instalment Agreements in each state where you will conduct business using the Splitit Services, and you covenant that you will maintain such licenses, permits and registrations in good standing, and comply with all applicable laws governing such licenses, permits, and registrations, at all times during the term of this Platform Agreement and the term of any Instalment Agreement you enter into using the Splitit Services.
8.2 Splitit. We represent and warrant that the Splitit Services will substantially conform to all applicable laws and regulations and will be provided in a timely and commercially reasonable manner. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH HEREIN, THE SPLITIT SERVICES ARE PROVIDED “AS-IS”, AND SPLITIT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, TO THE EXTENT IT IS LAWFULLY ABLE TO DO SO. Splitit does not make any warranty as to the results that may be obtained from use of the Splitit Services.
9. DATA SECURITY
9.1 Data Usage
(b) By Splitit. We will collect, hold, use and disclose personal information in accordance with the Privacy Act 1988 (Cth) and we will collect, hold, use and disclose Card Data in accordance with all other applicable laws and regulations relating to privacy or data protection, as amended from time to time, and in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) published by the Payment Card Industry Data Security Standards Council.
9.2 Data Security. Each party agrees to maintain commercially reasonable administrative, technical, and physical procedures to protect Card Data and other non-public personal information about consumers from unauthorized access, accidental loss, modification, or breach. However, no security system is impenetrable and Splitit cannot guarantee that unauthorized parties will never be able to defeat our security measures. Merchant provides Card Data and other information to Splitit with the understanding that any security measures that Splitit provides may not be appropriate or adequate for Merchant’s business, and Merchant agrees to implement security controls that meet Merchant’s specific requirements. In Splitit’s sole discretion, Splitit may take any action, including suspension of Merchant’s company account, to maintain the integrity and security of the Splitit Services, Card Data, other non-public personal information, or otherwise to prevent harm to Merchant, its Customers, Splitit or Splitit’s systems, or others. Merchant waives any right to make a claim against us for losses that Merchant incurs that may result from such actions.
9.3 Accuracy and Retention of Data. You are solely responsible for verifying the accuracy and completeness of all Card Data and any other information submitted to us by Merchant or Processor in connection with the Splitit Transactions. Merchant acknowledges and agrees that Splitit relies on the accuracy of information and any inaccurate information may lead to Merchant losses. Splitit has no obligation to confirm, validate, retain, report or otherwise provide any records of Splitit Transactions or Card Data collected by us. Splitit has no obligation to provide you with any Card Data.
9.4 Data Access. You must provide us with remote access to Card Data and instruct your credit card payment processor(s) to provide us with unrestricted remote access to your credit card payment processing information relating to Splitit Transactions and the Splitit Services. You grant us the right to access your processor on your behalf and to employ other reasonable methods for obtaining the Card Data in connection with the Splitit Services.
9.5 Password Security. We will issue you a password granting you and/or your representatives and agents access to a merchant portal providing a dashboard and information regarding your Splitit Transactions (the “Merchant Portal”). You hereby agree to restrict use and access to your password to your authorized representatives and agents on an as-needed basis and ensure that each representative or agent is aware of, and complies with, the terms of this Platform Agreement. You are solely responsible for maintaining adequate security and control of any passwords and credentials issued to you by Splitit.
9.6 Audit. In a case where either party reasonably believe that a security breach or compromise of Card Data has occurred, the parties agree to (i) notify the non-breached party as soon as possible and (ii) reasonably cooperate with the other non-breached party, at its own expense, to conduct a security audit of systems and facilities.
10. TERM AND TERMINATION
10.1 Term. This Platform Agreement becomes effective upon your first use of the Splitit Platform and remains in effect until terminated as provided below (the “Term”).
10.2 By the Merchant. You may terminate this Platform Agreement at any time upon ninety (90) days’ prior written notice; provided that, if you do not accept any changes made to this Platform Agreement, including to the Fee Schedule, you may terminate this Platform Agreement upon thirty (30) days’ prior written notice.
10.3 By Splitit. Splitit may terminate this Platform Agreement upon any of the following:
(a) Ninety (90) days’ prior written notice, for any reason.
(b) Thirty (30) days’ prior written notice, if there is or may reasonably be an increase in Risk Factors associated with your Splitit account.
(c) Immediately, (i) if you change the basic nature of your business without prior written notice to us, (ii) if you do not comply with the terms of, or if you do not perform any of your obligations under, this Platform Agreement or other agreements entered into with Splitit, (iii) if we are requested to do so by any of the Card Networks or any governmental authority, (iv) if you are not in compliance with any statute, law, rules and regulations applicable to you and your business, or (v) if you become, or are declared to be, subject to any bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors.
10.4 Effect of Termination. Upon termination of this Platform Agreement, you shall remove all Splitit branding assets from your websites and we will stop facilitating new Splitit Transactions through the Splitit Platform. You will not receive a refund for any Fees paid on account of your use of the Splitit Services. We will continue to facilitate processing of any remaining Instalments under existing Splitit Transactions.
10.5 Survival. The following sections of this Platform Agreement shall survive termination: 2.4 – 2.5, 3.1 – 3.11, 4, 5.2, 6.2, 6.3, 6.5, 7, 9.1, 9.2, 10.4, 11.1, 11.2, 11.5 – 11.9, 11.10.
11.1 Limitation of Liability. The Splitit Platform, Splitit Services and all accompanying documentation are provided to you on an “as is” basis, without any express or implied warranties. Nothing in this Platform Agreement limits or excludes either our or your liability for (a) fraud or fraudulent misrepresentation, or (b) any liability that cannot be limited or excluded by applicable law. Notwithstanding anything herein to the contrary, each Party’s total liability to the other Party under this Platform Agreement shall not exceed the aggregate Fees received by Splitit on account of Merchant’s use of the Splitit Services during the thirty (30) days prior to the date of claim.
11.2 No Consequential Damages. Under no circumstances will either party or any of our respective affiliates, vendors, officers, directors, employees, contractors or agents be liable toward the other party for any indirect, incidental, consequential or special damages, including, without limitation, damages for lost revenue, lost profits (real or anticipated), lost business, lost data, injury to business reputation or cost of procurement of substitute services, whether in contract or in tort, including negligence or otherwise, regardless of whether such party has been advised of the possibility of such damages.
11.3 Assignability. This Platform Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that either party may assign its interests in this Platform Agreement to a parent corporation or affiliate now existing or hereinafter formed without prior written consent. In addition, Splitit may assign, transfer or novate this Platform Agreement (or any rights arising out of it) (i) to any successor corporation in the event Splitit is acquired, whether by asset purchase, stock purchase, merger or any other change of control transaction, or (ii) to any financier, lender, third party investor, third party purchaser of receivables or to any special purpose company established by any of the foregoing at any time in its absolute discretion. If you change your name or place of jurisdiction, you shall immediately notify Splitit in writing.
11.4 Notices. Any notices sent in relation to this Platform Agreement will be sent by email and effective upon delivery; if to you, to the email address you provided in connection with this Platform Agreement, and, if to us, to [email protected] and to [email protected]. If you wish to terminate this Platform Agreement, notice must be sent by email to [email protected].
11.5 Waiver. If either party fails to enforce any provision of this Platform Agreement, or to exercise any right or remedy under this Platform Agreement or applicable law to which it is entitled, such failure will not be construed as a waiver of such party’s right to assert or rely upon any such provision, right or remedy. Any waiver by either party of a breach of any provision of this Platform Agreement must be in writing, and no such waiver will be construed as a waiver of any other and/or subsequent breach of such provision or a waiver of the provision itself.
11.6 Indemnification. Except for losses resulting from Splitit’s misconduct, negligence, wilful violation of its applicable law, or reckless disregard for its duties under this Agreement, you agree to indemnify, defend and hold Splitit and its affiliates, subsidiaries, and their respective officers, directors, and employees harmless from any losses, damages, claims, liabilities and expenses, including reasonable attorney’s fees, related to your use of the Splitit Platform or Splitit Services, or any violation by you of this Platform Agreement, and related agreements entered into by you with Splitit, or any Customer, including any Instalment Agreement.
11.7 Governing Law; Arbitration. This Agreement will be governed by the laws of New South Wales. Any dispute, controversy or claim arising out of or in connection with this Platform Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by confidential, binding arbitration in accordance with the Australian Centre for International Commercial Arbitration Rules. The seat of arbitration will be Sydney, Australia. The language of the arbitration will be English. The number of arbitrators will be one.
11.8 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union, and other applicable jurisdictions in providing and using the Splitit Services.
11.9 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment, debtor/creditor relationship, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
11.10 Severability. If any provision of this Platform Agreement or portion thereof is held to be unenforceable, this determination will not affect the remainder of this Platform Agreement.