National Australia Bank Commercial Entity Agreement (Australia)
This Commercial Entity User Agreement for card processing services for cards issued under licence from Visa and Mastercard (“Commercial Entity Agreement” or “CEA”) is provided to all “Commercial Entities” or the equivalent under Association Rules (defined below) and that require a merchant account. (Each such entity or person receiving this document is hereby referred to as “Merchant”). This CEA constitutes Merchant’s separate legally binding contract for card processing between (1) Merchant, as a Commercial Entity; and (2) Member (which is National Australia Bank Limited (NAB), 800 Bourke St, Docklands, Victoria, 3008). Member may terminate its provision of card processing services and enforce or rely on any term or provision of the Merchant’s Braintree Payment Services Agreement (“PSA”) expressed for the benefit of Braintree, all of which are incorporated in this CEA by reference. In this CEA “we”, “us” and “our” refer to Member. Any reference to the PSA shall mean the Braintree Payment Services Agreement made between Merchant and Braintree.
By accepting the Commercial Entity Agreement, Merchant agrees to the terms and conditions of this CEA and any documents incorporated by reference. Merchant further agrees that this CEA forms a legally binding contract between Merchant and Member. Any rights not expressly granted herein are reserved by Member. Descriptions of material amendments to this CEA will be provided as applicable. Any capitalised terms used in this CEA and not otherwise defined shall have the meanings set forth in the PSA.
2. Payment settlement and fees. Merchant authorises and directs Member to pay all settlement funds as directed by Braintree who shall serve as Merchant’s agent for the purpose of providing settlement instructions to Member. Braintree may instruct Member to either settle directly into a bank account held by Merchant, or to settle into an account held by Braintree, or into both accounts for different amounts. This includes an instruction from Braintree to Member to settle into an account held by Braintree for fees and other amounts due to Braintree by Merchant under or in connection with the PSA or for amounts for Braintree to disburse to Merchant. In addition, Merchant authorizes Member to deduct from settlement funds or debit from your nominated account for receipt of settlement funds, all fees and other amounts due to Braintree by Merchant under or in connection with the PSA.
3. Card Associations. Visa Europe Ltd, Visa U.S.A., Inc. and Visa International ("Visa") and Mastercard International Incorporated ("Mastercard") (the "Associations") have developed rules and regulations (the "Association Rules") that govern their member banks and merchants in the procedures, responsibilities and allocation of risk for payments made through the Associations. By accepting this CEA, Merchant is agreeing to comply with all such Association Rules.
4. Merchant’s Refund Policy must be on Merchant’s Website. If Merchant limits refund/exchange terms or other specific conditions for Card sales, Merchant’s POLICY MUST BE CLEARLY PROVIDED TO THE CARDHOLDER PRIOR TO THE SALE AND AS PART OF YOUR SALE CONFIRMATION PROCESS. Merchant is responsible for ensuring that its refund policy complies with applicable consumer protection laws.
5. Chargebacks and other amounts. Merchant shall use all reasonable methods to resolve disputes with Merchant’s customers. Should a chargeback dispute occur, Merchant shall promptly comply with all requests for information from Braintree. Merchant shall not attempt to recharge a customer for an item that has been charged back, unless the customer has authorized such actions. Merchant is liable for all chargebacks that are resolved in favour of the customer, and agrees that the Member may deduct any such chargebacks from Merchant’s settlement funds or debit your nominated account for receipt of settlement funds or any other account that Merchant holds with the Member. Member may also set-off any other liability of Merchant to Member under or in connection with this CEA against the Merchant's settlement funds. Member may also debit your nominated account for receipt of settlement funds or any other account that Merchant holds with the Member for any other liability of Merchant to Member under or in connection with this CEA.
6. Term and Termination. This CEA is effective upon the date Merchant accepts the terms and conditions set out herein and continues so long as Merchant uses the Braintree Service (“Services”) or until terminated by Merchant or Member, provided that those terms which by their nature are intended to survive termination (including without limitation, indemnification and chargeback obligations and limitations of liability) shall so survive termination. This CEA may be terminated by Member at any time based on a breach of any of Merchant’s obligations hereunder or for any other reason that Member or Braintree reasonably deems a credit, regulatory, or brand risk. This CEA will terminate automatically upon any termination of Merchant’s PSA.
This CEA will terminate automatically upon any termination of Merchant’s PSA.
7. Indemnification. Merchant agrees to indemnify, defend, and hold Member harmless from and against all losses, liabilities, damages and expenses (including legal fees and collection costs) which the Member and/or its affiliates or agents may suffer or incur arising from any breach of any warranty, covenant or misrepresentation by Merchant under this CEA, or arising as a result of any tortious conduct by Merchant or Merchant’s employees or agents, in connection with Card transactions or otherwise arising from Merchant’s provision of goods and services to cardholders or from any contravention of any legal requirements.
8. Arbitration. Any dispute with respect to this CEA between Merchant and Member, including a dispute as to the validity or existence of this CEA and/or this clause, shall be resolved by arbitration in Sydney, Australia and conducted in English by a single arbitrator in accordance with the ICC Rules. The parties agree to waive any right of appeal against the arbitration award. In the event of a failure by the parties to agree on the sole arbitrator within 30 days of one party calling upon the other to do so, one shall be appointed by the ICC.
9. Assignment/Amendments. This CEA may not be assigned by Merchant without the prior written consent of Member. Member may assign their rights under this CEA without Merchant’s consent and subject to the Association Rules. This CEA may be amended by Member as provided under the PSA, and otherwise shall not be modified in any respect without the express written agreement of the Member.
10. Warranty disclaimer. This CEA is a service agreement. We disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise of any services or any goods provided incidental to the services provided under this CEA to the extent permitted by law.
11. Logo usage. In using each other’s logos and other trademarks, each agrees to follow the guidelines prescribed by the other, as notified by the parties to each other from time to time.
12. Limitation of Liability. Notwithstanding anything in this CEA to the contrary, in no event shall the parties hereunder, or their affiliates or any of their respective directors, officers, employees, agents or subcontractors, be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this CEA to the contrary, in no event shall we be liable or responsible for any delays or errors in our performance of the services caused by our service providers or other parties or events outside of our reasonable control, including Braintree. Notwithstanding anything in this CEA to the contrary, the parties’ cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this CEA) and regardless of the form of action or legal theory and whether or not arising in contract or tort (excluding negligence and wilful misconduct) shall not exceed the total volume of all transactions, expressed as an Australian dollar amount, processed under this CEA. Nothing in this CEA shall exclude or limit any liability of any party for death or personal injury caused by negligence or fraud, deceit or fraudulent misrepresentation, howsoever caused.
13. Governing Law. Governing law with respect to this CEA shall be the laws of Victoria, Australia. Each party hereby submits to the non-exclusive jurisdiction of the courts of Victoria.
14. Waiver. The failure of a party to assert any of its rights under this CEA, including, but not limited to, the right to terminate this CEA in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this CEA in accordance with its terms.
15. Relationship between the Parties; No Partnership or Agency; Independent Contractors. No agency, partnership, joint venture or employment relationship is created between Merchant and Member by way of this CEA. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Nothing in this CEA will be construed to constitute either party as the agent for the other for any purpose whatsoever. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.
16. No Illegal Use of Services. Merchant will not access and/or utilise the Services for illegal purposes and will not interfere or disrupt networks connected with the Services.
18. Severability. Whenever possible, each provision of this CEA will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof will be prohibited by or determined to be invalid by a court of competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this CEA.
19. Association Disclosure; Member Bank Information: Member, National Australia Bank Limited, may be contacted by mail at: 800 Bourke Street, Docklands, Vic 3008; and by phone at 1300 889 398.
Important Member Bank Responsibilities:
Important Merchant Responsibilities:
20. Multicurrency Acceptance. The following provisions apply where we have agreed to provide you with multicurrency acceptance capability, meaning that transactions initiated using cards denominated in a foreign currency can be processed in that foreign currency.
20.1 Definitions. In this clause 20, the following words have the following meanings:
20.2 Settlement – major currencies. If you send us a transaction in a major currency and if you have nominated a foreign currency account for that major currency, Member will, subject to clause 2 of this CEA, and to this clause, process and settle it to your foreign currency account held in that currency without conversion. If for any reason Member is unable to process a major currency transaction in that currency (eg. due to temporary systems unavailability) then the following will apply. If you have nominated a United States dollar account as your default account for settlement of multi-currency acceptance, then provided Member is able to process the transaction in United States dollars, Member will settle the transaction to your nominated account held in United States dollars. In all other circumstances, Member will convert the transaction to Australian dollars and settle it to your nominated account held in Australian dollars.
20.3 Settlement – minor currencies. If you send us a minor currency transaction the Associations will convert it first to United States dollars. If you have nominated a United States dollar account as your default account for settlement of multi-currency acceptance, then provided Member is able to process the transaction in United States dollars, Member will settle the transaction to your nominated account held in United States dollars. In all other circumstances, the Associations will convert it to United States dollars then into Australian dollars using their standard exchange rates and Member will settle to you in Australian dollars.
20.4 Refunds and chargebacks – major currencies. Refunds of major currency transactions are ordinarily settled to your foreign currency account in the appropriate currency so no conversion is applied. If there are insufficient funds in your foreign currency account or you are otherwise unable to process a refund for any reason and we agree to process it for you then the following will apply. If you have nominated an account held in United States dollars as your default account for multi-currency acceptance, you acknowledge that we will perform the refund in United States dollars, provided we are able to process the transaction in United States dollars and there are sufficient funds in your US dollar currency account. In all other circumstances, you acknowledge that we will perform the refund in Australian dollars.
Any chargebacks will be processed in Australian dollars and debited from your nominated Australian dollar account except that if you have nominated an account held in United States dollars as your default account for multi-currency acceptance chargebacks will be processed in United States dollars and debited from your nominated United States dollar account, provided we are able to process the transaction in United States dollars and there are sufficient funds in your US dollar currency account. Merchant wears the risk of any movement in exchange rates between the time of processing the original transaction and the time of processing the chargeback. Merchant should inform Merchant’s customer that they may incur a foreign currency conversion fee in the event that the chargeback or refund processed by us is subsequently converted from Australian dollars or United States dollars to the cardholder’s domestic currency (eg. by a card scheme or the card issuer).
20.5 Refunds and chargebacks – minor currencies. Minor currency refunds and chargebacks will be processed in Australian dollars, and debited against the nominated AUD settlement account, except that if you have nominated an account held in United States dollars as your default account for multi-currency acceptance, you acknowledge that we will perform the refund or chargeback in United States dollars, provided we are able to process the transaction in United States dollars and there are sufficient funds in your US dollar currency account. Merchant wears the risk of any movement in exchange rates between the time of processing the original transaction and the time of processing the refund or chargeback. Merchant should inform Merchant’s customer that they may incur a foreign currency conversion fee in the event that the chargeback or refund processed by us is subsequently converted from Australian dollars or United States dollars to the cardholder’s domestic currency (eg. by a card scheme or the card issuer).