The Terms and Conditions described herein constitute a legal agreement (“Agreement”) among the sole proprietor, individual or business, partnership, LLC, or corporation listed as the “Merchant” in the Wireless Synergy service registration page, (the “Merchant” on the registration page, sometimes referred to as “you”, “your”, “user”), Wireless Synergy Pty Ltd (“Wireless Synergy”) and its third-party payment processor (“Payment Gateway”) (collectively with Wireless Synergy referred to as “we”, “our” or “us”).
By at any time clicking “I AGREE” or such other button, link or click-through when creating an account for the Service (an “Account”), or, in relation to a specific Application, when purchasing such Application to a specific Store, the User is deemed to have accepted to be bound by these Terms of Service. If Wireless Synergy has, e.g. as part of a marketing campaign or similar, provided an Application free of charge to certain Users, such Users shall be deemed to have accepted to be bound by these Terms of Service in relation to such Application at the time of receipt of such Application.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “user” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Wireless Synergy finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Wireless Synergy shall not be liable for any loss or damage resulting from Wireless Synergy’s reliance on any instruction, notice, document or communication reasonably believed by Wireless Synergy to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Wireless Synergy reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
The Wireless Synergy e-commerce Mobile and Online Stores Service (the “Service”)
1. Our Role
The Wireless Synergy service (“Wireless Synergy” or the “Service”) is an e-commerce retail platform that helps you customize a mobile or online store, offer retail merchandise for sale to end users, manage inventory, fulfil customer orders and accept and process credit card, debit card and other types of online payment methods (collectively “payments”) from your customers in exchange for your products and services for internet-based transactions (“Card Not Present Transactions” or “CNP Transactions”). The Payment Gateway provides the payment services to you on behalf of Wireless Synergy. Neither Wireless Synergy nor the designated Payment Gateway is a bank or a money services business (“MSB”) nor do they offer banking or MSB services. In addition, we do not assume any liability for the products or services purchased by and sold to customers using our Service. You will be required to register for an Account to use the Service. This account allows you to review card transactions that are in the process of settling from Payment Networks (as defined below) and us to your designated settlement bank account.
2. Our Services
Payment Gateway and Wireless Synergy provide the e-commerce tools to enable you to use the Service. We reserve the right to require you to install or update any and all software updates to continue using the Service. The foregoing offering is separate and distinct from the Wireless Synergy e-commerce and other services that are provided by Wireless Synergy under separate terms and conditions, which are independent of this Agreement. Our Service may also include tools to help you manage recurring and subscription billing charges for your products and services. It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”) and MasterCard International Incorporated (“MasterCard”), Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
3. Authorization for Handling of Funds
By accepting this Agreement, you authorize the Payment Gateway to obtain from each participating consumer or business the required ACH and necessary credit card information in proper form authorizing automatic debits to such consumer or business bank account to transfer payment amounts to User’s bank deposit account. User warrants that they will properly warehouse all authorizations obtained from consumers or businesses and will provide such authorizations for inspection upon request by Payment Gateway or any regulatory body governing these types of transactions. User hereby authorizes Payment Gateway to instruct direct deposit of payments from consumer or business bank accounts and to debit User for fees and other charges owed to Payment Gateway as set forth herein.
4. Payment Methods
The Payment Gateway processing service supports most popular payments cards with a Payment Network logo, including credit, debit, pre-paid, and PayPal and Apple Pay for mobile platform. Payment Gateway will only process card transactions that have been authorized by the applicable Payment Network, card issuer or Payment Gateway. You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase your products and services, and Wireless Synergy does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (See Chargeback’s section below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. Wireless Synergy or the Payment Gateway may add or remove one or more types of payments as a supported payment card any time without prior notice to you.
5. Customer Service
Payment Gateway and Wireless Synergy will provide you with customer service to resolve any issues relating to your Account, your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You and you solely, are responsible for providing service 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 customers’ payments through the Service.
6. Taxes and Reporting
It is your 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 Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. 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. Wireless Synergy may provide access to third party tools for calculating sales tax. Wireless Synergy is shall not be responsible for the accuracy or the failure of such tools in assessing and collecting applicable sales tax.
Wireless Synergy and Payment Gateway 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 unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
8. Data Security
You are fully responsible for the security of data, whether customer or otherwise, in your possession. You agree to comply with all applicable state, federal and international laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as “Data”) on your store WEB page. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”), as applicable. If applicable, you also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Card Data, defined as a cardholder’s account number, expiration date, and / or CVV2. You must not store CVV2 data at any time. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. Information on PCI-DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
Your privacy and the protection of your data are very important to us. Wireless Synergy works with Payment Gateway to provide the service, and both may collect or receive certain personal data about you and your customers. For more information about Wireless Synergy’s privacy practices, please review https://wirelesssynergy.com.au/privacy-policy/.
10. Privacy of Others
If you receive information about others, including Cardholders, through the use of the Service, you must keep such information confidential and only use it in connection with the Service.
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 user to do so.
11. Restricted Use
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, 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 card transaction for processing that does not arise from your sale of goods or service to a buyer customer, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use your Account or the Service in a manner that Visa, MasterCard, American Express, Discover or any other Payment Network reasonably believes to be an abuse of the Payment Network or a violation of Payment Network rules.
You further agree not to, nor 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 Service 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 Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, 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 Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
12. Suspicion of Unauthorized or Illegal Use
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other Wireless Synergy or Payment Gateway agreement, or exposes you, other Wireless Synergy users, our processors or Wireless Synergy or Payment Gateway to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your Account if we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose.
13. Payment Network Rules
The Payment Networks have established guidelines, bylaws, rules, and regulations (“Payment Network Rules”). You are required to comply with all Payment Network Rules that are applicable to users. You can review portions of the Payment Network rules at Visa and MasterCard. The Payment Networks reserve the right to amend the Payment Network Rules. Payment Gateway, acting on behalf of Wireless Synergy, reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
Registering an Account
1. Account Registration
The Service is only made available to persons that operate a business selling goods and services, and the Service is not made available to persons to accept card payments for personal, family or household purposes. To use Wireless Synergy’s products for your business, you will first have to register for an Wireless Synergy Account (“Account”). When you register for an Account, we will collect basic information including your name, company name, location, address, personal information, banking information, email address, tax identification number and phone number.
The User agrees to provide accurate and complete information (“Registration Data”) when registering with Wireless Synergy, and update such Registration Data to keep it accurate and complete. The User agrees that Wireless Synergy may store and use the Registration Data it provides for use in maintaining and charging fees to the Account.
The User is solely responsible for maintaining the confidentiality and security of its Account, and for all activities that occur on or through its Account, and the User agrees to immediately notify Wireless Synergy of any security breach of its Account. Wireless Synergy shall not be responsible for any losses arising out of the unauthorized use of the User’s Account.
You may choose to register as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term “you” will mean you, the natural person, as well as the business you represent. You understand that by registering for an Account, you are also registering for a Payment Gateway Account, and that you are simultaneously providing your information to Wireless Synergy for the purpose of opening an Account and to Payment Gateway for the purpose of establishing your Payment Gateway Account.
- You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
- You must provide your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process.
- You acknowledge that Wireless Synergy will use the email address you provide as the primary method for communication.
- You are responsible for keeping your password secure. Wireless Synergy cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.
- You are responsible for all activity and content such as data, graphics, photos and links that is uploaded under your Wireless Synergy account (“Store Content”). You must not transmit any worms or viruses or any code of a destructive nature.
- A breach or violation of any term in the Terms of Service as determined in the sole discretion of Wireless Synergy will result in an immediate termination of your services.
2. Company Descriptions and Site URL
As part of your registration, you must provide the name under which you do business (which may be the business’s legal name or a “doing business name”). To avoid customer confusion and transaction disputes, you may be required to you enter a description that clearly identifies your business, including a billing descriptor. You agree to indemnify us from any costs from disputes due to your failure to do so.
3. Verification and Underwriting
To verify your identity, we will require additional information including your business ABN or Tax ID, social security number, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, a driver’s license or other government issued identification, or a business license. We may ask you for financial statements. We may request to audit your books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your.
After we have collected and verified all your information, Wireless Synergy or Payment Gateway will review your account and determine if you are eligible to use the Service. Wireless Synergy or Payment Gateway will contact you upon determination regarding your eligibility. We will notify you once your account has been either approved or deemed ineligible for use of the Service.
By accepting the terms of this Agreement, you are providing us with authorization 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 may periodically update this information to determine whether you continue to meet the eligibility requirements for an Account.
You agree that Wireless Synergy is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Account with the payment processor, including Payment Gateway. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct risk management process pertaining to your Account.
Processing Card Transactions and Receiving Your Funds
1. Processing Card Transactions
You agree that you will honour all eligible payments presented for payment by your customers for your goods and services in accordance with the Payment Network rules, this Agreement and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Payment Network(s) for each card transaction, as required under the Payment Network rules. You acknowledge that the existence of an affirmative authorization from us or the Payment Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal or Claim at a later date.
You will not impose any fee or surcharge on a customer that seeks to use an eligible payment card. You will use our Service provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Payment Network rules and applicable law.
You will display all Payment Network marks in accordance with the rules and procedures of the Payment Networks, and will use such marks only to indicate that you accept their payments for payment.
2. Payouts and Transaction History
We will pay out funds settling from the Payment Networks to your designated bank settlement account in the amounts actually received (less our Fees as defined below) for card transactions submitted to our Service. The payouts will be made to the bank account (“Bank Account”) you provide for your Account. The Bank Account must be an account located in the territory in which you are operating and held in the name of the business. You are responsible for the accuracy and correctness of information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Payment Networks and when we or our processing financial institutions have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined below.
Notwithstanding the foregoing, you acknowledge that all credits for funds provided to you are provisional and subject to reversal including without limitation if there are adjustments for inaccuracies and errors (including rejects) and Chargeback’s, Reversals or Claims in accordance with this Agreement and the Card Network payment rules, whether or not a transaction is charged back by the issuer of the Card or the Cardholder. Accordingly, you authorize us to initiate reversal or adjustment (debit or credit) entries to the Bank Account and to initiate or suspend such entries in accordance with this Agreement as may be necessary to grant or reverse provisional credit for any transaction.
After each payout of card settlement funds to your Bank Account, we will update information in your Account to reflect settlement. Information regarding your card transactions processed and settled with the Services (“Transaction History”) will be available to you when you login to our website using your Account. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Account, your Transaction History and your use of the Service.
3. Payout Schedule
Payout schedule refers to the time it takes for us to initiate a transfer to your Bank Account of settlement funds arising from card transactions processed through the Service (“Payout Schedule”). Once your bank account information has been reviewed, the Payment Gateway, on behalf of Wireless Synergy, or Wireless Synergy itself will initiate transfer of settlement funds (net Fees, chargeback’s, and other funds owed to us for any reason) in accordance with the Payout Schedule. The settlement funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account. You can contact Wireless Synergy to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for Wireless Synergy to review your Payout Schedule.
Payment Gateway, on behalf of Wireless Synergy, and Wireless Synergy reserve the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargeback’s or refunds, or other suspicious activity associated with your use of the Service or if required by law or court order.
4. Reconciliations and Errors
Your Transaction History will be available to you when you login to our website using your Account. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Account as appropriate. Wireless Synergy will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
5. Refunds and Returns
By accepting these terms of service, you agree to submit any and all refunds and adjustments for returns of your products and services through the Service to the Cardholder’s card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed though the Service must be submitted within sixty (60) days of the original transaction but in all cases, within three (3) days of approving the Cardholder refund.
For processed refunds, we will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from the processing of other card transactions, or (ii) funds in any Reserve Account (as defined below). If these funds are not sufficient, you authorize us, to initiate an ACH debit entry to your Bank Account in the amount necessary to complete the refund transaction to the Cardholder’s card. In the event we cannot access your Bank Account by means of ACH debit entry, you agree to pay all funds owed to us upon demand. You are solely responsible for accepting and processing returns of your products and services; we have no responsibility or obligation for processing such returns.
A Chargeback (defined below in Section D (6)) is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed Chargeback’s for: (i) customer disputes, (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Payment Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Network, our processor or acquiring bank, or the Cardholder’s card issuing financial institution.
When a Chargeback is issued, you are immediately liable to Wireless Synergy or Payment Gateway for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses or penalties (including those assessed by the Payment Networks or our payment processors). You agree that we may recover these amounts by means of ACH debit of your Bank Account associated with your Account, debiting your Reserve Account, or setting off any amounts owed to you by us. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargeback’s unpaid by you.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
7. Contesting your Chargebacks
You or Wireless Synergy or Payment Gateway may elect to contest Chargeback’s assessed to your account. Wireless Synergy or Payment Gateway may provide you with assistance including notifications and software to help contest your Chargeback’s. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the Cardholder, the Cardholder’s financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
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.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
8. Excessive Chargebacks
At any point, Wireless Synergy, Payment Gateway, the Payment Networks, or our payment processor(s) may determine that you are incurring excessive Chargeback’s. Excessive Chargeback’s may result in additional fees, penalties, or fines. Excessive Chargeback may also result in additional controls and restrictions to your use of the Service, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your Account and the Service. The Networks may also place additional controls or restrictions as part of their own monitoring programs for users with excessive Chargeback’s.
9. Wireless Synergy Fees
You agree to pay the Fees (“Fees”) assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to a Fee Schedule incorporated into the Payment Gateway Pricing located on https://www.braintreepayments.com/pricing
We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Network or financial institution as a result of your activities.
Funds held in reserves are amounts of money set aside to cover Chargeback’s, refunds, Fees, or other payment obligations under this agreement (a “Reserve Account”). We, in our discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our payment processors.
We may require you to fund the Reserve Account by means of: (i) any funds payouts made or due to you for card transactions submitted to the Service, or, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iv) other sources of funds associated with your Account, including credit card; or (iv) requesting that you provide funds to us for deposit to the Reserve Account.
You agree that you are not entitled to any interest or other compensation associated with the funds held in the Reserve Account, that you have no right to direct that account, that you have no legal interest in those funds or that account and that you may not assign any interest in those funds or that account.
11. Security Interest
You grant us a lien and security interest in the Reserve Account, all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest.
Termination and Other General Legal Terms
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by Wireless Synergy or Payment Gateway.
You may terminate this Agreement by closing your Account at any time by following the instructions on our website in your account profile or Account. We may terminate this Agreement and close your account at any time for any reason effective upon providing you notice in accordance with this Agreement. We may suspend your Account and your access to the Service and any funds in your Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Service because of the risk associated with your Account, including without limitation significant credit or fraud risk, or for any other reason; or (ii) you do not comply with any of the provisions of this Agreement, (iii) upon request of an Organization or the a card issuer. Termination of your Account does not terminate your separate account with Payment Gateway or the Wireless Synergy Agreement.
3. Effects of Termination
Upon termination and closing of your Account, we will immediately discontinue your access to the Service. You agree to complete all pending transactions, immediately remove all logos for Payments, and stop accepting new transactions through the Service. You will not be refunded the remainder of any Fees that you have paid for the Service if your access to or use of the Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
Termination does not relieve you of your obligations as defined in this Agreement and we 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 Chargeback’s, Fees, Refunds, or other investigations or proceedings.
Termination of this Agreement will not necessarily terminate your Wireless Synergy Agreement unless Wireless Synergy informs you otherwise.
Upon termination you agree: (i) to immediately cease your use of the Service outlined in this Agreement (ii) to discontinue use of any Wireless Synergy or Payment Gateway trademarks and to immediately remove any Wireless Synergy or Payment Gateway references and logos from your Site (iii) that the license granted under this Agreement shall end, (iv) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (v) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data.
4. Your License
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. The Service includes our website, documentation, tools, internet-based services, components, and any updates (including Site or Application maintenance, service information, help content, or other releases) thereto provided to you by us. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when we make these updates available.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Suggested Enhancements”). By submitting any Suggested Enhancement, 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 may implement the Suggested Enhancement without any additional compensation to you, and/or to disclose the Suggested Enhancement on a non-confidential basis. 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.
The User agrees to hold Wireless Synergy, Wireless Synergy’s affiliates, subsidiaries, partners, agents, officers, directors, employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the User’s breach of these Terms of Service, or the User’s violation of any law or the rights of a third party.
7. Your Liability
You are responsible for all Reversals, Chargeback’s, Claims, fines, fees, penalties and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Service. You agree to reimburse your customer, Wireless Synergy or Payment Gateway and any third party designated by Wireless Synergy, or Payment Gateway for any and all such liability. “Chargeback” means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. “Claim” means a challenge to a payment that you or a buyer customer files directly with Wireless Synergy. “Reversal” means Wireless Synergy reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer, (b) the settlement funds were sent to you in error by (i) Wireless Synergy, Payment Gateway or Payment Gateway; (ii) the processors, suppliers or licensors of Wireless Synergy, Payment Gateway or Payment Gateway; or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have the authorization to send the payment (for example: the customer used a card that the customer was not authorized to use), (d) you received the payment for activities that violated this Agreement or any other Wireless Synergy or Payment Gateway agreement, or (e) we decided a Claim against you.
We will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with us by you or your customers. You will be required to reimburse us for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases, you may not receive the item back). You will not receive a refund of any fees paid to us.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Wireless Synergy, and Payment Gateway and their respective employees and agents (collectively “Disclaiming Entities”) from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of the Service, including without limitation any Reversals, Chargeback’s, Claims, fines, fees, penalties and attorneys’ fees; (iii) your, or your employee’s or agent’s, negligence or wilful misconduct; or (iv) third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Payment Network or Issuer).
If you are liable for any amounts owed to us, we may immediately remove such amounts from your Reserve Account and deduct the amounts owed to us from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add additional funds to your Reserve Account to cover funds owed to us. If you do not do so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
8. No Warranties
THE SERVICE 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, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE, INCLUDING THOSE PROVIDED BY WIRELESS SYNERGY OR PAYMENT GATEWAY, IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) WIRELESS SYNERGY OR PAYMENT GATEWAY; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF WIRELESS SYNERGY OR PAYMENT GATEWAY; 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 SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO AT THE TIME OF THE TRANSACTION.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE 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 SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER WIRELESS SYNERGYNOR PAYMENT GATEWAY WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9. Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, 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 SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE FOR ANY PURPOSE; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (E) 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 SERVICE; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, 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 BY YOU TO WIRELESS SYNERGYDURING THE NINTY (90) DAY 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, OR STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF WIRELESS SYNERGY, PAYMENT GATEWAY OR PAYMENT GATEWAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10. Right to Amend
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 Service or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our Site (http://www.wirelesssynergy.com.au/terms.htm) or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement.
11. Force Majeure
Wireless Synergy shall not be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of Wireless Synergy, and Wireless Synergy shall be entitled to a reasonable extension of time for the performance of such obligations.
12. Entire Agreement; Remedies
These terms and conditions and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you, Wireless Synergy and the Payment Gateway with respect to the provision of the Service. In the event of a conflict between this Agreement and any other Wireless Synergy or Payment Gateway 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 Wireless Synergy and Payment Gateway and our vendors and suppliers (including processors) and sets forth your exclusive remedies with respect to the Service and your access and use of the Service. 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.
13. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of Australia and shall be subject to the non-exclusive jurisdiction of the courts of Australia.