Qpay Pty Ltd Terms and Conditions
THE FOLLOWING DESCRIBES THE TERMS ON WHICH QPAY OFFERS YOU ACCESS TO OUR SERVICES.

This User Agreement ("Agreement") is a contract between you and Qpay and applies to your use of the Qpay service and any related products and services available through http://www.myqpay.com/, http://www.myqpay.com.au/, http://www.qpay.com.au  and other Qpay sites (collectively the "Service"). If you do not agree to be bound by the terms and conditions of this Agreement, please do not use or access our Services.

You must read, agree with, and accept all of the terms and conditions contained in this Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of Qpay. We strongly recommend that, as you read this Agreement, you also access and read the Qpay PDS, the Qpay Privacy Statement and the information contained in the other pages and websites referred to in this document, as they may contain further terms and conditions that apply to you as a Qpay user. Please note: underlined words and phrases are links to these pages and websites. By accepting this Agreement, you also agree that your use of other Qpay websites and Services will be governed by the terms and conditions posted on those websites.

We may amend this Agreement at any time by posting the amended terms on our site. Except as stated below, all amended terms shall be effective 30 days after they are initially posted on our site. You can review the current Agreement prior to initiating a transaction at any time at our Terms and Conditions page.

In this Agreement, "you" or "your" means any person or entity using the Service ("Users"). Unless otherwise stated, "Qpay," "we" or "our" will refer collectively to Qpay Pty Ltd. Unless otherwise specified, all references to a "bank" in this Agreement include savings associations and credit unions, and all references to a "credit card" also include Visa- and MasterCard-branded debit cards.

This Policy was last modified on 29th March 2007.
1. Eligibility. To use the Service you must have an Australian mobile service and register for a Qpay account. Our Services are only available to individuals or businesses that can form legally-binding contracts under applicable law. Our Service is not available to persons who are suspended from our Service, or to persons who present an unacceptable level of credit risk.
2. The Legal Relationship between You and Qpay.
2.1 Agency Relationship. Qpay acts as a facilitator to help you accept payments from and make payments to third parties. We act as your agent based upon your direction and your requests to use our Services that require us to perform tasks on your behalf. Qpay will at all times hold your funds separate from its corporate funds, will not use your funds for its operating expenses or any other corporate purposes, and will not voluntarily make funds available to its creditors in the event of bankruptcy or for any other purpose. You acknowledge that (i) Qpay is not a bank and the Service is a payment processing service rather than a banking service, and (ii) Qpay is not acting as a trustee, fiduciary or escrow with respect to your funds, but is acting only as an agent and custodian.

You are not required to keep funds in the Qpay system (i.e., carry a balance in your Qpay agency account) to use the Service. If you do carry a balance in your Qpay account, Qpay will pool your funds together with funds from other Users. Those funds shall be held with an Australian Registered Banking institution.

You agree that you will not receive interest or other earnings on the funds that Qpay handles as your agent. Qpay may receive interest and / or a reduction in fees or expenses charged for banking services by the bank that holds your funds.

By initiating and sending payments through the Service or adding funds to your balance, you appoint Qpay as your agent to obtain the funds on your behalf and to transfer the funds to the recipient that you designate or to a Pooled Account, subject to the terms and restrictions of this Agreement. Qpay will obtain the funds first by debiting your funds in the Pooled Accounts. If this is not sufficient to fund your payment fully, Qpay will not process your request.

By receiving payments through the Service, you appoint Qpay as your agent to cause the funds to be deposited on your behalf in the Pooled Accounts until you give Qpay further instructions about the transmission of your funds. Via SMS instructions from your mobile phone to us, or through the Qpay website or other means as Qpay makes available from time to time, you may provide instructions to withdraw the funds or transfer the funds to a third party, in each case subject to the terms and restrictions of this Agreement. If you receive a notice that a payment has been sent to you through Qpay but you have not registered for the Service, Qpay will not become your agent and you will have no claim to those funds unless and until you register for the Service. By registering for the service, you indicate your acceptance of the payment.

2.2 Qpay is only a Payment Service Provider and SMS marketer. Qpay acts as a payment service provider by creating, hosting, maintaining and providing our Service to you via the Internet and accessible via a mobile phone. We do not have any control over the products or services that are paid for with our Service. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction.

2.3 Identity Authentication. We use many techniques to identify our users when they register on our site. Verification of Users is only an indication of increased likelihood that a User's identity is correct. You authorise Qpay, directly or through third parties, to make any inquiries we consider necessary to validate your registration. This may include ordering a credit report and performing other credit checks or verifying the information you provide against third party databases. However, because user verification on the Internet is difficult, Qpay cannot and does not guarantee any user's identity.

2.4 Release. If you have a dispute with one or more users, you release Qpay (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.

2.5 No Warranty. WE, OUR EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR  EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Qpay shall make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, and credit or debit cards or other funds transfers are processed in a timely manner, but we make no representations or warranties regarding the amount of time needed to complete processing because our Service is largely dependent upon many factors outside of our control, such as delays in the banking system mobile telephone networks or internet. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

2.6 Limitation of Liability. IN NO EVENT SHALL WE, OUR EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEB SITE, OUR SERVICE, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you.

OUR LIABILITY, AND THE LIABILITY OF OUR EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100. IN JURISDICTIONS WHERE IT IS NOT LEGAL TO PLACE A LIMIT ON LIABILITY, OUR LIABILITY WILL NOT EXCEED THE ACTUAL AMOUNT OF DIRECT DAMAGES.

2.7 Indemnification. You agree to indemnify and hold Qpay, its parent, subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand (including legal fees) made or incurred by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party relating to your use of the Service.

2.8 Liability for Violations of the Acceptable Use Policy. If you engage in the following behaviour, Qpay may fine you, as explained below.
i. Using the Qpay service to receive payments for any sexually-oriented or obscene materials or services.
ii. Using the Qpay service to receive payments for any narcotics, other controlled substances, steroids or prescription drugs.
iii. Using the Qpay service to receive payments for illegal wagers, illegal gambling debts or illegal gambling winnings, regardless of the location.
iv. Using the Qpay system to harass other users.
v. Using the Qpay service to launder money.

You and Qpay agree that the damages that Qpay will sustain as a result of the behaviour outlined above will be substantial, including (without limitation) fines and other related expenses from its payment processors and service providers, but may be extremely difficult and impracticable to ascertain. If you engage in such activities, then Qpay may fine you $1,000 and/or Qpay may take legal action against you to recover losses that are in excess of the amount fined. You acknowledge and agree that $1,000 is presently a reasonable minimum estimate of Qpay’s damages, considering all currently existing circumstances, including (without limitation) the relationship of the sum to the range of harm to Qpay that reasonably could be anticipated and the anticipation that proof of actual damages may be impractical or extremely difficult. You agree that Qpay is entitled to deduct such fines directly from any existing balance in the offending account, or any other Qpay account owned by you.

If you use the Qpay service in a manner that violates the Acceptable Use Policy, including but not limited to the five categories described above, your account will be subject to limitation or immediate termination.

You further understand that, if you use the Qpay service in a manner that violates the Acceptable Use Policy, including but not limited to the five categories described above, Qpay may incur substantial liability and/or suffer significant damages, including (without limitation) fines and other related expenses from its payment processors and service providers. By selling goods or services (including access to content) in contravention of the Acceptable Use Policy or the Restricted Activities section of this User Agreement (currently Section 7.2), you acknowledge liability to Qpay for any and all damages suffered by Qpay. Without limiting the foregoing, you agree to reimburse Qpay for any and all costs, expenses, and fines levied on Qpay by its payment processors and/or service providers as a result of your activities.

You agree that, if either you or Qpay commence litigation or arbitration in connection with this paragraph, the party that succeeds is entitled to recover reasonable legal fees and any other costs incurred in such a proceeding in addition to any other relief to which the prevailing party may be entitled.

3. Fees. All user fees are set forth in the Fee Schedule in the Qpay PDS. Your account and all transactions are made and displayed in Australian Dollars.
4. To be eligible for an account, you must be a resident of Australia.
5. Receiving Payments.
5.1 Credit Card / Debit Card Deposit. By accepting a credit card or Visa Debit Card Deposit, you agree that you are responsible for the payment if it is reversed. If such reversal occurs on a credit card-funded deposit made to your account, we will reverse the payment and debit your Qpay account balance to pay for the reversal. If there are insufficient funds in your Qpay balance, you agree to reimburse Qpay through other means.
5.2 Transfers from another user. If another Qpay user transfers funds from their Qpay account to yours, those funds are subject to reversal terms of 5.1 if the original funds came from a Credit Card / Debit Card deposit.

6. Sending Payments and PIN security.
6.1 Sending Payments. Qpay users have a transaction limit of $1,000 per day. This includes sending funds to other people with an Australian mobile phone as well as purchases make via the Qpay service and withdrawals. If you send funds to an Australian registered mobile phone, and the user is not registered with Qpay, we will phone the user as invite them to register. If they do not register within a reasonable time period, we will transfer the funds back to you less a processing fee.

6.2 To validate your account, Qpay will phone you and set up your PIN. If the mobile phone you register at account setup is not available to receive this call, your account will not be activated.

6.3 Refused Payments. When you send a payment to a third party through our Service, the recipient is not required to accept the payment, even if the recipient is already registered with Qpay. The recipient is free to return payments or, in some cases, to use the Qpay systems to refuse payments that you have sent. Any payments sent through Qpay that are denied or unclaimed by a recipient will be returned to you on the earlier of: (a) the first working day after the date of such denial, or (b) 30 days after the date the payment is sent.
6.4 It is your responsibility to keep your Qpay PIN secure. This includes but is not limited to your requirement to delete any reference to the PIN which may save to your phone memory after a transaction.

6.5 Withdrawals. You can withdraw funds by direct deposit to the bank account you have on file with us. There is a withdrawal limit of $1,000 per day. You may only withdraw funds to an Australian Banking Institution.
6.6 Loss and illegal use of your Mobile Phone. If you lose your mobile phone, or if it is stolen, you must phone the Qpay call centre as soon as possible to advise us of the loss. The Qpay operator will provide you a reference number.
7. Your Information and Restricted Activities
7.1 Definition. "Your Information" is defined as any information you provide to us or other users in the registration, payment process, shops or other features of our Service. You are solely responsible for Your Information, as we act as a passive conduit for your online distribution and publication of Your Information.

7.2 Restricted Activities. Your Information and your activities (including your payments and receipt of payments) through our Service shall not: (a) be false, inaccurate or misleading, (b) be fraudulent or involve the sale of counterfeit or stolen items, (c) consist of providing yourself a cash advance from your credit card (or helping others to do so), (d) be related in any way to illegal gambling and/or illegal gaming activities, including but not limited to payment or the acceptance of payments for illegal wagers, gambling debts or illegal gambling winnings, regardless of the location of gambling activity (including illegal online and offline casinos, illegal sports wagering and illegal office pools), (e) violate Qpay's Acceptable Use Policy, (f) infringe any third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy, (g) violate any law, statute, ordinance, contract or regulation (including, but not limited to, those governing financial services, consumer protection, unfair competition, anti-discrimination, or false advertising), (h) be defamatory, trade libellous, unlawfully threatening or unlawfully harassing, (i) be obscene or contain child pornography, (j) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information or (k) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers. If you use, or attempt to use, the Service for purposes other than sending and receiving payments and managing your account, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of the Service, your account will be terminated and you will be subject to damages and other penalties, including criminal prosecution where available.

7.3 Licence. Solely to enable Qpay to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensible (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in your information, in any media now known or not currently known, with respect to your information. Qpay will use and protect Your Information in accordance with our Privacy Policy.

7.4 Trademarks. http://www.myqpay.com/, http://www.myqpay.com.au/, http://www.qpay.com.au, Qpay, Myqpay, and all related logos, products and services described in this website are either trademarks or registered trademarks of Qpay, or its licensors, and (aside from the circumstances described below) may not be copied, imitated or used, in whole or in part, without the prior written permission of Qpay. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Qpay and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Qpay.

Notwithstanding the above, HTML logos provided by Qpay through its Website Payments features may be used without prior written consent for the purpose of directing web traffic to the Service. These Logos must not be altered, modified, or changed in any way, or used in a manner that is disparaging to Qpay or the Service. Logos may not be displayed in any manner that implies sponsorship or endorsement by Qpay. Qpay is a payment service, and no partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
8. Privacy and Security. We do not sell or rent your personal information to third parties. We only use Your Information as described in the Privacy Policy. We view protection of users' privacy as a very important principle. We understand clearly that you and Your Information are one of our most important assets. We store and process Your Information on computers located in the Australia that are protected by physical as well as technological security devices. You should only log in to your Qpay account on a page which begins with https://online.myqpay.com/. All of our pages begin with the Web address  http://www.myqpay.com/, http://www.myqpay.com.au/, or http://www.qpay.com.au  . Do not use any other site that does not begin with that Web address! We use third parties to verify and certify our privacy principles. Our current Privacy Policy is available at http://www.qpay.com.au. If you object to your information being used in alignment with this policy, please do not use our Services.
9. Termination or Closing Your Account. You can close your account at any time by phoning Qpay Customer Service on 1800 MYQPAY (1800 697729). When an account closes, any pending transactions will be cancelled. Any funds that we are holding for you at the time of closure, less any applicable fees, will be paid to you as per your instructions, assuming all withdrawal-related authentication requirements have been fulfilled. You cannot use closure of your account as a means of evading investigation: if an investigation is pending at the time you close your account, Qpay may continue to hold your funds for up to 180 days as appropriate to protect Qpay against the risk of reversals. If you are later determined to be entitled to some or all of the funds in dispute, Qpay will release those funds to you. You will remain liable for all obligations related to your account even after such account is closed. If you do not access your account for a period of three years, it will be terminated. After the date of termination, we will use the information you provided to try to send you any funds that we are holding for you. If that information is not correct, and we are unable to complete the payment to you, your funds will be subject to applicable state laws regarding the escheat (handing over) of unclaimed property.
10. Remedies and Qpay's Right to Collect From You. Without limiting other remedies, we may update inaccurate or incorrect information you provide to us, contact you by means other than electronically, immediately warn our community of your actions, place a hold on funds in your account, limit funding sources and payments, limit access to an account and any or all of the account's functions (including but not limited to the ability to send money or making withdrawals from an the account), limit withdrawals, indefinitely suspend or close your account and refuse to provide our Services to you if: (a) you breach this Agreement or the documents it incorporates by reference, (b) we are unable to verify or authenticate any information you provide to us, (c) we believe that your account or activities pose a significant credit or fraud risk to us, (d) we believe that your actions may cause financial loss or legal liability for you, our users or us or (e) your use of your Qpay account is deemed by Qpay to constitute abuse of the credit card system or a violation of credit card rules, including (without limitation), using the Qpay system to test credit card behaviours. Even if they have been recorded as completed in the Recent Activity or History Transaction Log of your Qpay account, transactions are not considered completed until the funds have been charged to the customer's funding source (for payments) or posted to the customer's bank account (for withdrawals). In addition, Qpay reserves the right to hold funds beyond the normal distribution periods for transactions it considers suspicious or for accounts conducting high transaction volumes to ensure integrity of the funds. If we close your account, we will provide you notice and pay you all of the unrestricted funds held in your Qpay account. Additionally, to secure your performance of this Agreement, you grant to Qpay a lien on and security interest in your account. In addition, you acknowledge that Qpay may off-set against any accounts you own for any obligation you owe Qpay at any time and for any reason allowed by law. These obligations include both secured and unsecured debts and debts you owe individually or together with someone else. Qpay may consider this Agreement as your consent to Qpay's asserting its security interest or exercising its right of setoff should any law require your consent. The rights described in this section are in addition to, and apart from, any other rights.
11. Assignability. You cannot transfer any rights or obligations you may have under this Agreement without the prior written consent of Qpay. Qpay reserves the right to transfer this Agreement or any right or obligation under this Agreement without your consent.
12. Legal Compliance. You shall comply with all applicable Australian and other international laws, statutes, ordinances, regulations, contracts and applicable licences regarding your use of our Services.
13. Notices.
13.1 Electronic Communications. You agree that this Agreement constitutes "a writing signed by You" under any applicable law or regulation. To the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding your account and/or your use of the Service ("Communications"), may be provided to you electronically and you agree to receive all Communications from Qpay in electronic form. Electronic Communications may be posted on the pages within the Qpay website and/or delivered to your email address. You can print a copy of any Communications and retain it for your records. All Communications in either electronic or paper format will be considered to be in "writing," and to have been received no later than five (5) working days after posting or dissemination, whether or not you have received or retrieved the Communication. Qpay reserves the right to provide Communications in paper format, but assumes no obligation to do so.

13.2 Credit Report. You agree that Qpay can order and review your credit report with the sole purpose of assessing your fitness to hold a Qpay account and/or your ability to use the Service or features thereof.

13.3 Procedure. Except as explicitly stated otherwise, any notices shall be given by postal mail to Qpay Pty Ltd, Attn: Legal Department, 3/2 Pittwin Street North, Capalaba, Qld 4157 (in the case of Qpay) or to our online message centre or the email address you provide to Qpay during the registration process (in your case). Notice shall be deemed as given 24 hours after posted or email is sent, unless the sending party is aware that the electronic communication was not received. Alternatively, we may give you notice by mail to the address provided to Qpay during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

14. Legal Disputes. If a dispute arises between you and Qpay, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Qpay agree that any controversy or claim at law or equity that arises out of this Agreement or Qpay's services ("Claims") shall be resolved in accordance with one of the subsections below, or as otherwise mutually agreed upon in writing by you and Qpay. Before resorting to these alternatives, Qpay strongly encourages users first to contact Qpay directly to seek a resolution. Qpay will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
14.1 Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00, you or Qpay may elect to resolve the dispute through binding arbitration conducted by telephone, online, and/or based solely upon written submissions where no in-person appearance is required. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

14.2 Court. Alternatively, a court of competent jurisdiction located in Brisbane, Australia may adjudicate any claim. You and Qpay agree to submit to the personal jurisdiction of the courts located within the state of Queensland, Australia.

14.3 Alternative Dispute Resolution. Qpay will consider use of other alternative forms of dispute resolution, such as binding arbitration or another location mutually agreed upon by the parties.

14.4 Violations of Section 15. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the party who is first to assert a Claim, either through starting a court case or by starting arbitration. Should either party file an action contrary to this Section 14, the other party may recover legal fees and costs up to $1,000.00, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.

15. General. This Agreement is governed by and interpreted under the laws of Queensland, Australia as such laws are applied to agreements entered into and to be performed entirely within Queensland by Queensland residents. Notwithstanding the previous sentence, applicable Australian Commonwealth law, and all of its rules and procedures, shall govern Section 16 of this Agreement. We do not guarantee continuous, uninterrupted or secure access to our service, and operation of our site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be deleted and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Qpay, in our sole discretion, to a third party in the event of a merger or acquisition. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement and the documents it incorporates detail the entire understanding between us concerning its subject matter. Sections (3) Fees, (2.4) Release, (2.6) Limitation of Liability, (2.7) Indemnity, and (14) Legal Disputes shall survive any termination or expiry of this Agreement.
16. Disclosures. The Services are offered by Qpay Pty Ltd 3/2 Pittwin Street North, Capalaba Qld 4157. You can have this agreement emailed to you by sending a letter to the address above with your email address and a request for this information.

Disputes between you and Qpay about our Services can be reported to Customer Support online at any time, or by calling 1800 456 289 from 8:30 AM to 5.00 PM AEST Monday to Friday. Additionally, if you are not satisfied with Qpay’s resolution or handling of your dispute you may wish to contact the Banking and Financial Services Ombudsman at 1300 780 808.