Terms and Conditions
- eWAY is the owner of trademarks, patents, trade secrets, copyrights, processes, know how, registered desig
o the supply of those programs or software or programs or software of similar functioning again; or
ns or other Intellectual Property and provides payment gateway services to online merchants.
to the payment of the cost of having those programs or software supplied again; or
- eWAY has agreed to grant You with access to the Site, the Services, and use of certain Intellectual Property and Confidential Information as set out in this Agreement.
- All products of eWAY or an affiliate including the eWAY website, payment processing pages and online documentation (collectively, the "Services") are subject to the Terms and Conditions stated below.
- By the use of the Site or the Services You agree to be bound by this Agreement. If You do not agree to the Terms and Conditions set out below You must not use the Site or the Services.
Terms and Conditions of Use
In these Terms and Conditions, the following terms have the following meanings:
- "Account" means Your user name and identifying particulars supplied to eWAY at the commencement of this Agreement.
- “Anniversary Date” means an anniversary of the Commencement Date.
- "Agreement" means this agreement as amended from time to time including schedules and terms included by reference.
- "Business" means all activities associated with on-line gateway transactions including purchases and refunds and includes development of the Site, the Services and Intellectual Property.
- “Cardholder” means the person acquiring goods or services from You and payment for the goods or services is processed through use of the Services.
- “Cardholder Data” means information supplied by You to eWAY about the Cardholder, including but not limited to the Cardholder’s name, credit card details, address and contact details.
- "Commencement Date” means
the first day of the month in which you register on the Site.
- "Confidential Information" means all information acquired created or commissioned by eWAY during the course of or in connection with the Business by eWAY, including information about eWAY, the Business, processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its Customers, Third Party Service Providers, or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) eWAY's principles, policies, procedures, Intellectual Property and other documents, or material which eWAY may direct You to treat as Confidential Information.
- "Copyright Material" means any work or other subject-matter in which copyright subsists or is capable of subsisting under the Copyright Act 1968 (Cth) or equivalent legislation.
- "Customer" means You and all users of the Site and the Services.
- "Customer Information" means all customer information about customers including name, address, contact details, use of Services, their arrangements with eWAY and their Internet Merchant Facility details.
- "eWAY" refers to Web Active Corporation Pty Ltd ABN 32 086 209 403 and its related bodies corporate.
- “Fees” means the fees charged by eWAY:
- as set out in the Fee Schedule; or
- as set out in any custom quote provided by eWAY.
- "Fee Schedule" is a schedule of fees set by eWAY at its sole discretion for use of the Site and the Services. The Fee Schedule can be found at http://www.eway.com.au/plans-pricing.
- "GST" means any tax in the nature of a tax on or on the supply of goods, real property, services, or other things (or similar tax) levied, imposed or assessed by the Commonwealth of Australia or any State or Territory of Australia, which may operate at any time during the currency of this Agreement, other than any interest, fine, penalty, fee or other payment imposed on or in respect of such tax.
- "Intellectual Property" means all intellectual property rights of eWAY whether in relation to the Site or Services or otherwise and includes all or any of the following:
- the Trade Marks of eWAY whether in relation to the Site or Services or otherwise;
- the Trade Name or any other trade name under which eWAY sells, provides or distributes its Services;
- any present or future patents of eWAY which relate to the eWAY Site or Services or their manufacture or assembly and applications for the grant of any such patents;
- the technical and other information or expertise devised, developed or acquired by eWAY or its employees or others applied in the development, servicing and sale of the Site or Services and in the management and operation of the Business;
- copyright of eWAY in any written material, plans, designs, logos, slogans, labels, insignia or other work relating to the manufacture, merchandising, displaying, promotion and selling of the Site or Services; and
- the designs, whether or not registered or protected by copyright devised or acquired by eWAY and applied to the Business, the Site or Services.
- "Live Gateway" a functioning gateway linked to Your Merchant Bank that allows processing of transactions.
- "Merchant Bank" a financial institution that provides internet merchant facilities for the use of processing credit card transactions via the Internet.
- "Processes" include technologies, products, devices, processes or techniques.
- "Services" means credit card gateways to process on-line transactions through the Site, and also access to an administration area on the eWAY website, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via eWAY. eWAY provides a gateway which will connect to Your Merchant Bank, allowing You to process credit card transactions online, through Your website. This operates by You posting specific data to the Live Gateway, which then connects to Your Merchant Bank via various connections that eWAY has in place. eWAY then receives the result of the transaction, be it successful or failed, which is then passed back to Your website. eWAY also provides online reports of completed transactions, and support via either phone or email.
- "Site" means eWAY’s web site www.eway.com.au
- "Terms and Conditions" means these terms and conditions as amended from time to time, and other terms incorporated by reference.
- "Test Gateway" a gateway that allows You to test the functionality of the Services, without processing transactions to Your Merchant Bank.
- “Third Party Service Providers” mean those third parties engaged by eWAY to provide services to eWAY or You.
- “Third Party Services” means those services provided by Third Party Service Providers which You may subscribe to, in accordance with this Agreement.
- "Trade Name" means eWAY or other trading name of Web Active Corporation Pty Ltd.
- "Trial Period" a period of thirty (30) days after the date you register on the Site.
- "Trade Marks" means the existing or future trade marks owned, used or developed by eWAY during the term of this Agreement
- "You" and "Your" includes all persons entering this Agreement with eWAY and where the context allows includes your partners, employees and agents.
In this Agreement:
- References to any "party" means a party to this Agreement and includes the successors, executors, administrators and permitted assignees (as the case may be) of that party.
- where a party consists of more than one person the liability of those persons in respect of the terms of this Agreement is joint and several.
- References to any document include references to that document as modified, novated, supplemented, varied or replaced from time to time.
- References to a month or a year are references to a calendar month or calendar year.
- All references to legislation include any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation.
- Where the context permits, references to a "person" include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority.
- A reference to a time of day means the time in the Australian Capital Territory.
- Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- Formation of contract
- You agree and acknowledge that You have entered into a legally binding and enforceable contract with eWAY by transacting with eWAY.
- In consideration of eWAY agreeing to Your use of the Site and/or the Services, You agree to comply with this Agreement.
- You agree to be bound by any additional terms and conditions (“additional terms and conditions”) that you have accepted in subscribing for Third Party Services, and that such additional terms and conditions are incorporated by reference into this Agreement.
- Commencement and Term
- Where You have requested the Services be provided on an annual basis, this Agreement:
- is for a minimum term expiring 12 months after the Commencement Date (unless otherwise agreed in writing);
- shall be automatically renewed on the Anniversary Date; and
- will continue for successive 12 month periods unless either party gives the other written notice of termination at least 30 days before the expiry of the relevant term.
- Where You have requested the Services be provided on a monthly basis, this Agreement will automatically renew each month, until either party gives the other one months’ prior written notice of termination.
- Acceptance of Terms
- Before using the Site, You should read this Agreement and any additional terms and conditions carefully and related agreements carefully and ensure that You understand ALL of the Terms and Conditions. If You do not agree to ALL Terms and Conditions, then You must not use the Site or the Services.
- This Agreement and any terms incorporated by reference in this Agreement override any terms or conditions previously published by eWAY.
- Each time a transaction is processed on the Live Gateway, through Your Account, whether the transaction result is successful or not, You are agreeing to the Terms and Conditions.
- This Agreement, and any terms and conditions incorporated by reference may be amended from time to time by eWAY posting the amended document on the Site or placing a Notice on the Site that the Terms and Conditions have been amended. The amended Terms and Conditions shall automatically be effective from the earlier of:
- 7 days after they are initially posted on the Site; and
- 7 days of Notice being given to You.
- Your continued use of the Site or the Services will mean that You accept unconditionally any amendments made. These Terms and Conditions were last updated on [17 May 2016].
- eWAY, the developer of the Site and the Services, grants You non-exclusive access to the Site and the Services via an account upon these Terms and Conditions. The Site and the Services, including any upgrades thereof and any code, program or software given to You to enable Your use of the Site or Services, shall remain the property of eWAY.
- Restricted Use
- You will not use the Intellectual Property or Confidential Information to manufacture, have made, use or market a similar site or similar services in any location nor will You use the Intellectual Property or Confidential Information for any purpose other than expressly permitted by eWAY in writing. Where eWAY has indicated to You that the whole or any part or parts of the Intellectual Property comprises Confidential Information You will not at any time during this Agreement or after its termination or expiry disclose such Confidential Information to any person without obtaining eWAYs' express prior written consent. You will take such steps as may be necessary to ensure that any of Your servants or agents do not disclose such Confidential Information including any Intellectual Property.
- You may not and warrant that You will not:
- copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site, the Services, Intellectual Property or Confidential Information;
- transfer or attempt to transfer any part of the Site, the Services, Intellectual Property or Confidential Information or Your right to access them or otherwise make them available to any other person;
- attempt to discover eWAY's source code;
- sublicense, rent or lease any portion of the Site, the Services, Intellectual Property or Confidential Information;
- reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Site or Services, or create derivative works from the Site, the Services, Intellectual Property or Confidential Information, except so far as such actions are permitted by applicable law notwithstanding this limitation or are approved in writing by eWAY;
- use the Site, the Services, Intellectual Property or Confidential Information for any illegal purpose;
- allow Your Account to be used for any illegal purpose; or
- allow Your Account to be used by another person for any purpose.
- Password Policy
- Your password for access to MYeWAY must:
- Be changed every 90 days.
- Not be the same as one of Your last 4 passwords.
- Limited Trial
- Upon entering into this Agreement eWAY grants You a Trial Period during which eWAY warrants that no termination fees will be payable if You terminate this Agreement in writing and cease all use of the Site and Services.
- You must notify eWAY at least seven (7) days prior to the end of the Trial Period if you wish to terminate this Agreement at the end of the Trial Period.
- eWAY may refund the payment of the upfront annual fee and transaction fees paid by You if this Agreement is terminated in accordance with clause 9.2.
- During the term of this Agreement You must pay to eWAY the Fees.
- Where applicable, you warrant that You understand and agree to the fee structure as outlined in the Fee Schedule . You warrant that You understand and agree that all transactions sent to the eWAY Test Gateways are FREE of charge, and that any transaction sent to the LIVE eWAY Gateways, whether successful or unsuccessful, purchase or refund, will be charged the Fees.
- eWAY in its sole, absolute and unfettered discretion reserves the right to change any Fees charged for the Services or use of the Site at any time. In the event of an increase in a Fee that amended Fee will become payable at the earlier of:
- 7 days after a Notice in respect of the fee is posted on this Site; or
- 7 days after notice is given to You.
- If eWAY introduces a new Service, any Fees for the use of that Service are applicable from the commencement of the new Service unless otherwise stated and by using that Service You warrant that You agree to the Fees applicable to that Service as set out at http://www.eway.com.au/plans-pricing.
- Unless otherwise stated Fees are inclusive of GST and quoted in Australian dollars.
- No refund of fees is offered after the conclusion of the Trial Period.
- You must pay to eWAY on the due date by way of credit card or direct deposit payment:
- all charges specified in this Agreement.
- any amount payable by You arising from Your use of the Site or Services.
- any amount for which You are liable to eWAY under this Agreement in respect of any breach of the Agreement or otherwise.
- You authorise eWAY to charge all monies payable to eWAY under this Agreement to Your Account.
- At its sole discretion, eWAY may set off any transaction funds payable to You against any fees payable to eWAY by You.
- eWAY will pay any monies payable to You by such method as eWAY may reasonably choose.
- If You learn of:
You must immediately notify eWAY in writing giving particulars of the infringement or threatened infringement
- any infringement or threatened infringement of the Intellectual Property or Confidential Information; or
- any common law passing-off which may cause deception or confusion to the public by a third party,
- eWAY will at its sole discretion institute and prosecute an action in respect of the infringement.
- Costs for Breach
- If eWAY is required by You or by an order sought by You to participate in any litigation in which You are involved whether under subpoena or order of a court of competent jurisdiction, including complying with any order for discovery or attending court to give evidence, You shall bear all costs incurred by eWAY in connection with the provision of such participation including eWAY's costs for taking legal or other professional advice or representation on a full indemnity basis.
- Further, You agree and acknowledge that where You take any action including legal action against or involving eWAY You will provide security for such costs to eWAY upon written demand.
- Any fraudulent or damaging activities or attempts to compromise the eWAY Site or Services will give eWAY a right to immediately terminate this Agreement and Your use of the Site and Services.
- eWAY shall have the right to terminate this Agreement immediately by written notice to You if:
- You become insolvent or unable to pay Your debts in the ordinary course of business.
- In the case of an individual, if a petition for bankruptcy is presented or in the case of a company, if a receiver or administrator is appointed.
- In the case of a company, You permit an order to be made or a resolution to be passed for the winding up of the company.
- You permit or propose a compromise or arrangement to be made between You and any of Your creditors.
- You assign all or part of Your assets for the benefit of any creditor.
- You or any of Your Directors are convicted of a criminal offence which in the case of an individual could carry a term of imprisonment or in the opinion of eWAY has or has the potential to cause damage or injury to the reputation and standing of eWAY.
- You purport or attempt to transfer, assign or deal with this Agreement or the Site or Services without the written consent of eWAY.
- In eWAY’s reasonable opinion, the processing of Your transactions exposes eWAY to an unacceptable level of risk
- eWAY shall have the right to terminate this Agreement by notice in writing if:
- You fail to pay monies payable to eWAY on the due date or breach another term of this Agreement.
- You purport to or use the Site, the Services, Intellectual Property or Confidential Information in a manner not approved by eWAY.
- You (or Your directors or anyone or more of them) do or neglect to do anything which in eWAY's opinion is likely to bring disrepute upon eWAY.
- You engage a competitor of eWAY to provide similar services to those provided by eWAY.
- You have not remedied a breach (if it is capable of remedy):
i in the case of any obligation to comply with any statutory law or regulatory obligation relating to the Business the use of the Site or Services, within 7 days of written notice from eWAY; or
ii in the case of any other obligation, within 14 days of written notice from eWAY.
- Notwithstanding clause 13.3, if You have been guilty of any breach, non-observance or non-performance of the same obligation twice in any one year period, or if eWAY has given notice on not less than two occasions in any 12 month period, eWAY may terminate this Agreement immediately by written notice to You without prior warning or notice if a third or subsequent breach, non-observance or non-performance occurs within a period of 6 calendar months from the second or last of such occurrences.
- If You breach this Agreement:
- eWAY shall be entitled to recover damages from You for breach. Such entitlement shall be in addition to any other right or remedy which eWAY may have. The acceptance by eWAY of arrears of monies shall not constitute a waiver of Your continuing obligation to pay monies on the due date.
- in circumstances where eWAY considers damages are not a sufficient remedy eWAY may seek injunctive relief against You and You will not oppose applications seeking injunctive relief as may be brought by eWAY in respect of Your use or proposed use of the Site or the Services.
- Termination of this Agreement no matter how arising shall be without prejudice to the rights and obligations of the parties existing up to and including the date of expiry or termination including the right of the party terminating to seek and obtain damages for any breach of this Agreement by the other party or the other party's servants or agents.
- Termination on instructions from Your Merchant Bank
- Without prejudice to any other right of eWAY under this Agreement, if Your Merchant Bank requests that eWAY terminate Your use of the Site and/or the Services or this Agreement for any reason eWAY may do so immediately without Notice being given.
- In the event of termination on instructions from Your Merchant Bank You indemnify eWAY and hold eWAY harmless in respect of any loss or damage arising from such termination no matter how such loss or damage arises.
- Rights of Parties on Termination or Expiry
On and from termination or expiry of this Agreement:
You shall immediately discontinue the use of the Site and the Services and cease to use the Intellectual Property, Confidential Information, and any other signs, displays or advertising material which contains reference to eWAY.
- You shall not represent or advertise that You were formally using eWAY.
- All fees previously paid remain the property of eWAY and You agree to make no claim in respect of such Fees. You must further pay to eWAY any fees that have accrued but are unpaid as at the date of the termination or expiration.
- You shall immediately pay to eWAY without any deduction or right of set off all sums of money which may be due or payable by You to eWAY.
- You shall deliver up to eWAY or its nominated representative all stationery, literature and materials which refer to eWAY or any Intellectual Property, or Confidential Information.
- You will ensure that all references to eWAY are removed within 7 days of termination, from all websites, telephone and other directories, directory assistance records, membership rosters and from any other publication.
- You shall immediately remove, paint out or cover all notices, display and advertising material which refers to or may be associated with eWAY. If You fail to carry out Your obligations within 7 days of termination, then eWAY shall have the power (without incurring any liability to You) and without Your consent save the authority hereby given by You to remove such references at Your expense which expense You shall pay upon demand.
- You shall immediately return to eWAY or its nominated agent all items which may have been loaned to You by eWAY.
- eWAY shall retain title and ownership of, and is under no obligation to provide You with any payment data or Cardholder Data, in any form.
- The Cardholder Data will be retained by eWAY and held and stored by eWAY in accordance with its obligations as set out in clause 22.1.
- Limit of eWAY liability
- The Site and Services are designed to merely clear transactions or data to Your selected Australian bank using the existing EFTPOS network. eWAY accepts no responsibility for the delivery of the transactions to the eWAY server. These transactions may come from a variety of sources (e.g. Web, phone operator, database etc). It is Your responsibility to ensure that these details are correct (e.g. correct card number, amount) and securely passed to the eWAY server.
- You release and indemnify eWAY from any and all loss or damage arising out of any loss of data or corruption of data during the transfer of such data to eWAY.
- To the extent permitted by law, eWAY excludes all representations and warranties, express or implied, other than those contained in this Agreement. Where eWAY is found to be liable for breach of any warranty guarantee or condition implied by statute and which eWAY cannot lawfully exclude, eWAY 's liability is limited (to the extent permitted by law) at the option of eWAY to the following:
- in the case of any programming or software supplied or offered by eWAY:
i. to the supply of those programs or software or programs or software of similar functioning again; or
ii. to the payment of the cost of having those programs or software supplied again; or
- in the case of Services supplied or offered by eWAY:
i. to the supply of the services again; or
ii. to the payment of the cost of having services supplied again.
- eWAY, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
- Your use of or inability to use the Site or Services;
- any virus or other harmful, or potentially harmful, code which may be transmitted in connection with Your use of the Site or Services;
- eWAY 's negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, providers or agents arising from or related to this Agreement, the Site and the Services.
- Your provision of incorrect information.
- Your loss of information or data.
- eWAY's liability for any loss or damage under this Agreement or any statute is reduced by the extent that You have caused or contributed to such loss or damage.
- eWAY warranty
- eWAY warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the Site or Services does not result in the infringement of third party intellectual property rights.
- eWAY indemnifies You against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with any claim made against You by a third party on the grounds that by virtue of rights to which such third party lays claim, under letters patent or copyright (whether registered as a design or not) or any other similar right or claim, such third party is entitled to prevent or interfere with Your use of any or all of the Intellectual Property pursuant to this Agreement.
- The Site is provided by eWAY on an "as-is" basis and the only obligations on eWAY are set out in this Agreement. eWAY gives no warranty or condition, express or implied other than those expressly set out herein. eWAY does not warrant that the functions contained in the Site and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that the Site, or eWAY's hardware or computer systems are free of viruses or other harmful components or programs. eWAY does not warrant or make any representations regarding the accessibility or the use or the results of the use of the Site or the Services. You hereby acknowledge that You have relied on Your own enquiries and inspection in relation to the Site and the Services including "Test Gateway" transactions and the use of the Site and Services during the Trial Period before entering into this Agreement and using the Site or the Services.
- eWAY does not give a warranty of completion of transactions. eWAY does not warrant that any Merchant Bank or financial institution will complete a transaction. eWAY accepts no liability associated with such risks. You agree that You accept these risks and indemnify and hold harmless eWAY in respect of such risks.
- Your Indemnity
- In this clause "eWAY" includes parent companies, subsidiaries, officers, directors, employees and agents of Web Active Corporation PTY LTD. You indemnify and hold harmless eWAY against any claim, loss, liability, cost or expense, including legal costs on a full indemnity basis, made against or incurred by eWAY in relation to:-
- personal injury or death;
- property damage;
- economic loss;
- civil or criminal penalty;
- consequential loss;
- arising out of:
- any breach by You of this Agreement; or
- any negligent or criminal act or omission by You.
- Your provision of data, including Cardholder Data, to eWAY in order for eWAY to perform the Services.
- Your indemnity includes all claims, demands, proceedings, damages (actual, special or consequential) of every kind and nature, known and unknown, including but not limited to demands, proceedings, damages (actual, special and consequential) of every kind and nature taken by any third party due to or arising out of Your breach of this Agreement or by Your violation or breach of any law or any rights of a third party.
- You agree and acknowledge that You and not eWAY are liable for all loss and damage no matter how arising which is caused or contributed to by Your use or misuse of the Site or the Services.
- You indemnify and hold eWAY harmless in respect of any loss or damage sustained by You as a result of eWAY's refusal to renew or enter into an agreement with You and agree and acknowledge that eWAY's refusal does not amount in anyway to a restraint of trade.
- You indemnify eWAY in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Site or the Services from any terminals or access points within Your control, custody or power.
- Authorisation for Corrections
You authorise eWAY to correct any errors on Your account. You acknowledge that such correction does not create any obligation on the part of eWAY to ensure the ongoing accuracy (or to warrant the previous accuracy) of the information on Your account.
eWAY reserves the right to use Your company or trading name in any promotional or marketing material it deems fit. This may be in the of form print, TV, radio or Multimedia (including Web). Example uses may include promotional flyers, or website case studies.
- You acknowledge and undertake to eWAY that:
- all information, documents, data and any other material which is provided by eWAY to You or Your directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by You or Your directors, officers, employees and agents or a third-party is and remains the property of eWAY;
- You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement;
- You will only disclose the Confidential Information to such of Your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the Site and the Services ;
- You will not, and will ensure that Your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;
- You will take all steps necessary to prevent or stop, and comply with all reasonable directions of eWAY in respect of, suspected or actual breaches of, or defaults under this clause;
- You will promptly notify eWAY if You suspect, or become aware of, any unauthorised access, use or disclosure of any of the Confidential Information and will give eWAY (at Your cost if the unauthorised access, use or disclosure is as a result of a breach of, or default under, this Agreement) all reasonable assistance in connection with any action which eWAY may take, or proceedings which eWAY may institute, in respect of the unauthorised access, use or disclosure; and
- You will, and will procure that Your employees, officers, agents and advisers will, return to eWAY all Confidential Information and delete all electronic copies upon termination or expiry of this Agreement.
- You agree that You will not during the term of the Agreement, or at any time after the termination of the Agreement (howsoever this may occur) disclose to any other person (without the previous consent in writing by eWAY) either directly or indirectly, any Confidential Information relating to eWAY of which You became possessed whilst subject to this Agreement, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to eWAY howsoever arising.
- You must treat as confidential all information gained during the term of this Agreement that relates to Customers of eWAY and utilise Your best efforts to ensure that any employees or agents under Your supervision or control comply with the terms of this clause 20.
- Intellectual Property
- This Agreement does not grant You any proprietary rights in the Intellectual Property.
- You will not at any time during or after the expiry or termination of this Agreement, contest or challenge in any legal proceedings or otherwise the proprietorship of eWAY in the Intellectual Property.
- You shall not in any manner represent that You have any proprietary rights in the Intellectual Property.
- In so far as the Intellectual Property or any components of the Intellectual Property are the subject of registrations or applications for registrations under applicable statutes, You shall do nothing to challenge, oppose, dispute or impugn the validity of such applications or registrations and shall take all necessary steps as may be required by eWAY to assist in maintaining or obtaining such registrations.
- If You become aware of any claims against or infringements of any rights associated with the Intellectual Property, then You shall immediately notify eWAY and eWAY at its sole discretion may elect to defend or prosecute any action relating to the Intellectual Property. In relation to any proceedings or claims to protect or defend the Intellectual Property, You, if required by eWAY, shall render all assistance including if necessary, providing evidence and being named as a party to any legal proceedings.
- At the expiry or termination of this Agreement, all of Your rights to use the Intellectual Property shall cease.
- eWAY may change the Intellectual Property which You are permitted to utilise at any time for any reason.
- You may not use the Intellectual Property in a manner which may, as determined by eWAY, place the Intellectual Property at risk of loss or loss of value to eWAY.
- Cardholder Data
- eWAY will hold and store the Cardholder Data in accordance with the requirements of the Privacy Act 1988 (Cth) (“Privacy Act”), the Australian Privacy Principles (“APPs”) and applicable industry standards, including but not limited to, the Payment Card Industry Data Security Standard (“PCI”) and eWAY’s data retention policy.
- You acknowledge and agree that:
- you have no right to the Cardholder Data or to access the Cardholder Data; and
- eWAY has no obligation to provide you with the Cardholder Data or access to the Cardholder Data.
- In this clause, "Personal information" has the same meaning as it has in the Privacy Act.
- eWAY agrees, in relation to Personal Information which You disclose to eWAY pursuant to these Terms and Conditions:
- not to do an act, or engage in a practice, that would breach an APP contained in the Privacy Act; and
- not to authorise any subcontractor to do an act, or engage in a practice, that would breach an APP.
- You agree that an act done or a practice engaged in by eWAY, or by a subcontractor, for the purposes of meeting (directly or indirectly) an obligation under these terms and conditions is authorised by this clause for the purposes of sub-sections 6A(2) and 6B(2) of the Privacy Act, even if the act or practice is inconsistent with an APP contained in the Privacy Act or an approved privacy code that applies to eWAY or a subcontractor.
- You warrant that all Personal Information which You disclose to eWAY is up-to-date, complete and relevant to the purpose for which it was disclosed to eWAY, and that the disclosure of the Personal Information by You is not a breach of an APP contained in the Privacy Act.
- Prior Agreements
This Agreement supersedes any prior agreement between the parties whether written or oral. Any such prior agreements are cancelled but without prejudice to any rights which have already accrued to either of the parties under those agreements.
- Rights Cumulative
All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any right granted by this Agreement or otherwise available to it.
You shall pay Your own costs of entering into and complying with this Agreement.
- Set Off
eWAY shall have the right to set-off against any payment due by eWAY to You against any amount owed to eWAY by You. Upon termination or expiration of this Agreement for any reason, You shall pay any amount due to eWAY immediately with no right to set-off.
The failure by eWAY to enforce at any time or for any period any one or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall constitute any waiver of eWAY's rights.
- Force Majeure
- Neither party shall be considered in breach of this Agreement where performance of its obligations under the Agreement is by any cause beyond the reasonable control of the parties rendered impossible or delayed.
- If the reason for the inability to perform or delay in performance referred to in clause 28.1 continues for a continuous period of 30 days, either party may by written notice to the other terminate this Agreement without penalty.
- Bank Referrer
eWAY acts as a referrer for StGeorge/BankSA, Commonwealth Bank of Australia, ANZ and other Financial Institutions. As a referrer eWAY may receive a referral fee from these parties.
- Any provision of this Agreement, which is or becomes unenforceable for any reason will be ineffective or severable to the extent only of such unenforceability or invalidity and will not invalidate the remaining provisions.
Each party must take all steps, execute all documents and do everything reasonably required by any other party to give effect to the transactions contemplated by this agreement.
- All notices must be in writing and be given by any one or the following means:-
- By delivering it to the address of the party specified in this Agreement.
- By sending it to the address of the party by pre-paid mail.
- By emailing it to the address of the party.
- By sending it by facsimile transmission to the facsimile number of the party.
- A notice is deemed to have been given
- If given in accordance with 33.1 (a) the next business day after the day of delivery.
- If given in accordance with 33.1 (b) 3 business days after the date of posting.
- If given in accordance with 33.1 (c) or (d) the next business day after sending or transmission.
- Governing Law and Jurisdiction
- This Agreement is subject to the laws of the Australian Capital Territory.
- Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.
Last Updated: 25 May 2015
Collection of Information
In order to use the eWAY Payment Gateway (eWAY), we require certain personal and corporate information relating primarily to Your internet merchant facility (including Your merchant number, terminal ID and/or settlement account, depending on Your Merchant Bank).
We collect corporate information, including your company name, website, email address, type of business and ABN.
We collect personal information such as your name, email address, telephone number, address, credit card information and date of birth.
The information we collect (whether personal or corporate) is collected in one or more of these ways:
- through disclosure of such information by you through eWAY’s website;
- over the phone to an eWAY representative; or
- from a third party engaged by you (such as a web developer).
Where information is provided to us by a third party engaged by you, we are typically only provided with your name, phone number and/or email address.
We collect personal and corporate information for the purpose of providing you with eWAY’s payment gateway product and a high level of customer service.
Any communication with us (regardless of mode) is recorded and stored in order to provide service references, ensure compliance with our service standards and to assist in our staff training and development initiatives.
In order to use this Website, you must first complete the registration form and create a username and password. During registration you must provide us with certain personal information (such as name and Email address). We use this information to contact you about the services on our site in which you have expressed interest.
You have the option to provide company demographic information (such as industry type and business size) to us; we encourage you to submit this information so we can provide you with a more personalised experience on our site. eWAY is the sole owner of the information collected on www.eway.com.au. eWAY collects personal information from our users at several different points on our Website.
Use of Collected Information
When we collect your personal or corporate information, we use that information to:
- establish an eWAY account and a merchant account at a financial institution – this may include us providing your personal and corporate information with a financial institution;
- manage an existing payment gateway and merchant relationship;
- engage in direct marketing to you (in any medium);
- testimonials and client/ partner listings on our website and within marketing materials; and
- inform third parties other than financial institutions who provide us services – we do not however provide personal information to such third parties, without your prior consent.
Where we disclose your personal or corporate information to third parties, it is solely for the purpose of such third parties establishing your merchant account and processing payments, unless otherwise stated.
If you purchase a product or service from us, we request certain personal information from you on our order form. You must provide contact information (such as name, Email, and postal address) and financial information (such as credit card number, expiration date).
We use this information for billing purposes and to fill your orders. If we have trouble processing an order, we will use this information to contact you.
If you reject cookies, you may still use our site, but your ability to use some areas of our site, such as our administration area, may be limited.
eWAY uses your personal information for essential communications, such as confirmation Emails, accounts information, and critical service details. We may also use this information for other purposes, including direct marketing. If at any time you wish not to receive such correspondence, you may request to be removed from any mailing lists by emailing us at email@example.com.
We use third parties to provide the essential links between the merchants, the banks and ourselves in order to provide credit card payment gateway services on our site. When you sign up for eWAY, we will share your Internet Merchant Account details as necessary for the third party to provide that service.
These third parties are prohibited from using your personally identifiable information for any other purpose.
eWAY does not share any information with third parties for any unknown or unrelated uses.
Clear Gifs (Web Beacons /Web Bugs)
Our third party advertising partner, such as Google Adwords and third party tracking utility partners may employ a software technology called clear gifs (a.k.a. Web Beacons/Web Bugs), that help us better manage content on our site by informing us what content is effective. Clear gifs are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of Web users. In contrast to cookies, which are stored on a user's computer hard drive, clear gifs are embedded invisibly on Web pages and are about the size of the period at the end of this sentence. We do not tie the information gathered by clear gifs to our customers' personally identifiable information.
To learn more about our advertising company's use of clear gifs, please go to https://adwords.google.com
If you use the eWAY forum on this site, you should be aware that any personal information you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages. We are not responsible for the personal information you choose to submit in these forums.
We reserve the right to disclose your personal information as required or permitted by law (including Privacy Law) and when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process.
We may post customer testimonials on our website which may contain personal information such as the customer's name. We will obtain your consent to use your personal information prior to posting the testimonial. If at any time you no longer wish to have any testimonial you have provided posted on the website you may request for it to be removed by emailing us at firstname.lastname@example.org.
eWAY provides free-of-charge a directory for associated partners to join. eWAY associated partners generally include third party applications that contribute to the functionality of the Gateway Services. The process of registering for the partner directory is initiated and completed entirely by the partner, with all information submitted by the partner. If at any time the partner feels that they no longer wish to be a part of this directory they can request to be removed by e-mailing us at email@example.com.
Links and other eWAY sites
There are many external links on the eWAY site. The terms and conditions set out in this privacy statement only cover sites operated by eWAY, which include www.eway.com.au, au.myeway.com and quote.eway.com.au .
Storage of Collected Information
The security of your personal information is important to us. When you enter sensitive information (such as credit card number and/or social security number) on our registration or order forms, we encrypt that information using secure socket layer technology (SSL).
We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security.
If you have any questions about security on our Website, you can email us at firstname.lastname@example.org.
Access to Collected Information
If your personally identifiable information changes, or if you no longer desire our service, you may correct, update, delete or deactivate it by making the change on the Your Profile page in the eWAY Administration Area or by emailing our Customer Support at email@example.com or by contacting us by telephone or postal mail at the contact information listed below.
We will contact you to acknowledge your complaint as soon as possible after receiving your complaint. We will investigate your complaint and provide you with a written response. If we are unable to resolve your concern, you may request an independent person to investigate your complaint, such as the Privacy Commissioner.
Web Active Corporation
Level 1, 2 Shea Street,
eWAY believes that the privacy of its users is of the utmost importance, and all efforts are made to ensure that any communications from eWAY are carried out to benefit our valued merchants.
eWAY uses third-party tools for all mass email campaigns, allowing users to unsubscribe should they wish to no longer receive emails from us. These tools allow us to manage our email lists and ensure that once a user has unsubscribed they can no longer be contacted. These tools abide by anti-spam laws and make all efforts to ensure that any email communication is carried out to benefit recipients.
eWAY adheres to the Australian Spam Act 2003 and regularly updates this policy in response to changes set by ACMA (Australian Communications and Media Authority)
Should you receive any communications from eWAY and no longer wish to do so, please unsubscribe by sending an email to firstname.lastname@example.org.
Merchant Services Agreement
This Merchant Agreement applies when You, the Customer, as defined in the above Terms and Conditions have your merchant account provided by eWAY, and do not have a direct merchant relationship with an acquirer for use of the Services.
This Merchant Agreement should be read independently to the above Terms and Conditions.
Download the eWAY Merchant Services Agreement.
Beagle Alerts Additional Terms and Conditions
in the case of any programming or software supplied or offered by eWAY:
- By subscribing to Beagle Alerts, you are subscribing to the Third Party Services provided by Retail Decisions (Australia) (“ReD”), You acknowledge and accept that:
- The ReD Third Party Services contains copyright and proprietary materials licensed from ReD;
- Other than in certain specific instances, ReD disclaims any warranty of any kind directly to You, including warranties of title, performance, merchantability, fitness for a particular purpose and non-infringement;
- ReD’s liability is limited to specific instances;
- You are required to maintain properly functioning systems and circuits to use the current release or prior release of the Third Party Services, it being understood that a properly functioning interface is requisite for the integrity of the Red Third Party Services. ReD will provide specifications for the interface between eWAY and You. You are required to upgrade Your systems to a new release within one year of its publication;
- You are to comply with all applicable data protection laws, consumer and other laws and regulations with respect to Your (i) provision, use and disclosure of data; (ii) dealings with the Cardholders providing Cardholder Data; and (iii) use of the ReD Third Party Service;
- Your ability to benefit from the ReD Third Party Service depends on the existence of a current agreement between ReD and eWAY; and
- eWAY may terminate these additional terms and conditions in accordance with clause 13 of the Agreement.
- You must:
- perform all activities reasonably required for the installation and issuance of a certificate of installation, in accordance with instructions provided by ReD or eWAY;
- deliver orders to ReD via the realtime client interface or via the interface software;
- deliver back-end data to ReD via the back-end interface;
- maintain and ensure property functioning systems and circuits necessary to use the ReD Third Party Services at all times, it being understood that a properly functioning interface is requisite for the integrity of the ReD Third Party Services;
- maintain technical and operating resources at all times to facilitate the effective delivery of the ReD Third Party Services;
- refrain from deploying any risk management techniques of which ReD is unaware, such deployment being detrimental to ReD Third Party Services; and
- ensure that Cardholder consent is obtained at the time and point of the Cardholder request for ReD to use the Cardholder Data that is sought by eWAY or You and provided by the Cardholder during the Cardholder requests, for delivery of the ReD Third Party Services.
in the case of Services supplied or offered by eWAY:
- to the supply of those programs or software or programs or software of similar functioning again; or
- to the payment of the cost of having those programs or software supplied again; or