Effective Date: 29 August 2019
These Terms & Conditions apply to WEX Motorpass, WEX trade card and WEX Accident Assist, as applicable.
1. Definitions
1.1 In this Agreement:
Account means a Customer WEX Motorpass account, trade card account or WEX Accident Assist account, as the context requires.
Accountholder means a Customer (or a person authorised by the Customer) with whom we have agreed to issue an Account evidenced by:
(a) 1 or more Cards to enable Cardholders to purchase goods or services on a Card;
(b) an account number to enable Accountholders to purchase the Repairs or other goods or services contemplated under this Agreement.
Agreement means these terms and conditions, the Application Form and the Merchant Operating Guide.
Application Form means the application form completed and signed by you when you applied to become one of our Merchants.
Approved Account means the account specified by you in the Application Form or notified to us in accordance with clause 15.
Card means a physical or virtual card bearing the WEX trademark and issued by us to an Accountholder which includes a company name and may include a signature panel, vehicle registration or product restrictions.
Cardholder means a person to whom a Card has been issued and who is authorised by us to use that Card.
Claim includes any claim, demand or legal proceedings;
Commencement Date means the later of:
(a) the date specified as the commencement date in the Application Form; or
(b) the date your application is approved by us.
Consequential Loss means the type of loss described in what is commonly referred to as the "second limb" of Hadley v Baxendale (1854) 9 Exch 341, and does not have the meaning given in the decision in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26 (or any similar line of authority in Australia).
Customer means a person or entity who is, was or may be a customer of WEX from time to time.
Data Receipt Date means, in relation to a Sale:
(a) if the Payment Period is one day, the business day on which the details of the Sale have been received and processed by us; and
(b) if the Payment Period is 7, 9, 23 or 37 days, the Wednesday on which, or following the day on which, the details of the Sale have been received and processed by us or, if that Wednesday is not a business day, the previous business day. If details of a Sale are received by us after 7 am on a day, they will be deemed to have been received by us on the following business day.
Date of Termination means the date this Agreement was terminated in accordance with clause 10.2.
EFTPOS means electronic funds transfer at the point of sale.
EFTPOS Receipt means a receipt printed by a Terminal that records a Sale.
EFTPOS Terminal Hire Agreement means an agreement under which you agree to hire a Terminal from us.
EFTPOS Terminal Purchase Agreement means an agreement under which you agree to purchase a Terminal from us.
File Number means the file number associated with a WEX Accident Assist Sale, that is provided by WEX to the Customer, and verified in the Merchant Portal.
Floor Limit means the maximum dollar value of any Sale that you may make to a Cardholder using a Card without our specific authority. The initial Floor Limit is specified in the Application Form.
Force Majeure Event means an event or circumstance beyond the reasonable control of the Party affected by the event, and which could not be avoided by the exercise of due care by that Party, which makes it impossible or illegal to perform, or prevents or delays compliance with, or the performance of, a Party’s obligations under this Agreement, including:
(a) fire, flood, earthquake, elements of nature or acts of God;
(b) war, revolution, or any other unlawful act against public order or authority;
(c) an industrial dispute; or
(d) a governmental restraint;
GST has the meaning given in section 195-1 of the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hot Card List means a flag or notice listing Cards or Accounts that are no longer valid for use that we give you in writing or by electronic means on a monthly, interim or special basis or otherwise.
Intellectual Property Rights means any copyright, trade mark, design, format, logo, know-how or other intellectual property right owned by us, whether registered or unregistered, and provided by us to you.
Insolvency Event means:
(a) a receiver, manager, receiver and manager, trustee, administrator, or similar officer is appointed in respect of a person or any asset of a person (and that appointment is not withdrawn or dismissed within 7 days);
(b) a liquidator or provisional liquidator is appointed in respect of a corporation (and that appointment is not withdrawn or dismissed within 7 days);
(c) any application (not being an application withdrawn or dismissed within 7 days) is made to a Court for an order, or an order is made, or a meeting is convened, or a resolution is passed, for the purpose of:
(i) appointing a person referred to in paragraphs (a) or (b);
(ii) winding up a corporation; or
(iii) proposing or implementing a creditors' scheme of arrangement;
(d) a moratorium of any debts of a person, or an official assignment, or a composition, or an arrangement (formal or informal) with a persons' creditors, or any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of that person’s creditors or a trustee, is ordered, declared, or agreed to, or is applied for and the application is not withdrawn or dismissed within seven days; or
(e) a person becomes, or admits in writing that it is, is declared to be, or is deemed under any applicable law to be, insolvent or unable to pay its debts.
Licence Fee means, in relation to the use of any Software, a monthly fee at the rate determined by us from time to time which you must pay us for using the Software if you have not entered into an EFTPOS Terminal Hire Agreement or an EFTPOS Terminal Purchase Agreement with us.
Liabilities means all liabilities, whether actual or contingent, present or future, quantified or unquantified.
Marketing Material means brochures and other promotional material relating to Services or to Cards including documents, Card application forms, Card order forms, direct debit forms, Card design and artwork, and statements issued to Cardholders or Customers.
Merchant means you and your related bodies corporate (as that term is defined under section 50 of the Corporations Act 2001 (Cth)) to the extent you provide goods or services pursuant to this Agreement and includes your employees, agents, contractors and sub-contractors.
Merchant Copy means an EFTPOS Receipt or copy of a Sales Voucher or WEXPAY Sales Voucher that you are required to keep in accordance with the Merchant Operating Guide.
Merchant Operating Guide means the document entitled "Merchant Operating Guide" and any other document that explains our procedures for processing Sales and payments to you and other operating procedures relating to the Services or the use of Cards (including procedures relating to the use of the Merchant Portal, Sales Vouchers or WEXPAY Sales Vouchers) issued by us to you from time to time, those documents forming part of this Agreement.
Merchant Portal means the online portal developed and hosted by WEX, and accessed by you to record, track and process WEX Accident Assist Sales and other Sales as advised by us to you from time to time.
Merchant Service Fee means the fee advised to you by us that you must note on the Application Form, and charged to you when:
(a) a Cardholder uses the Card at a Merchant Site; or
(b) an Accountholder provides you with their Payment Code in relation a WEX Accident Assist Sale.
Merchant Summary means any form we provide to you to summarise Sales using Sales Vouchers or WEXPAY Sales Vouchers.
Party means a party to this Agreement.
Payment Code means the code provided to the Customer by WEX in order to effect payment to you as part of a WEX Accident Assist Sale, and as authorised in accordance with clause 3.2(a).
Payment Period means, in relation to a Sale, the number of days specified in the Application Form (in the section headed "Proposed Payment Plan") after the relevant Data Receipt Date within which we must make payment to you for that Sale.
Personal Information means all information about a person that is "personal information" as defined in the Privacy Act 1988 (Cth).
PIN means Personal Identification Number.
Quote means the total quote for Repairs as described in clause 4.1(a) provided in writing that sets out accurate and all necessary details of the Repairs including the breakdown of all costs (including, but not limited to, materials, labour, consumables and taxes).
Repairs means the repair work and parts listed in the quote provided by you in relation to a WEX Accident Assist Sale, as they relate to the relevant Customer vehicle and any ancillary work or costs associated with the repair work. For example, vehicle storage or towage costs.
Sale(s) means for all Products except WEX Accident Assist, a sale or supply of goods or services by you to a Cardholder using a Card.
Sales Voucher means stationery supplied by us to you to record manually the details of a Sale and which must be signed by the Cardholder and bear an imprint of the Cardholder’s Card.
Service means the services provided by us under this Agreement and which may be provided at Sites or otherwise.
Site means a site, workshop branch or outlet at which you carry on business as specified in the schedule to the Application Form or as notified by you to us during the Term.
Site Establishment Fee means the Site Establishment Fee specified in the Application Form that is payable by you to us for each new Site at which Accounts are accepted in accordance with the terms of this Agreement.
Software means any software in which we own the copyright that is required to enable you to process Sales using the Terminal, the WEXPAY system or the Merchant Portal.
Taxes means all stamp duty, financial institutions duty and any other duties or taxes including a goods and services tax, consumption tax or similar tax.
Terminal means the point of sale EFTPOS terminal that we provide to you under either an EFTPOS Terminal Hire Agreement or EFTPOS Terminal Purchase Agreement.
Terminal Establishment Fee means the Terminal Establishment Fee specified in the Application Form that is payable by you to us each time we provide you with an EFTPOS Terminal for hire at a Site under an EFTPOS Terminal Hire Agreement.
Term means the duration of this Agreement, from the Commencement Date until Termination in accordance with clause 10.2.
Termination means the termination of this Agreement in accordance with clause 10.2
us or we means WEX Australia Pty Ltd ACN 005 970 570 or WEX Fuel Cards Australia Pty Ltd ACN 008 962 132.
WEX Accident Assist means the accident repair management and payment service known as "WEX Accident Assist" provided by us (including any third parties we have engaged with to provide all or any parts of WEX Accident Assist) to WEX Customers.
WEX Accident Assist Sale(s) means for a supply of Repairs by you to an Accountholder providing the File Number or Payment Code.
WEXPAY means the online payment processing functionality that we may make available for use by you to process Sales;
WEXPAY Sales Voucher means the WEXPAY customer invoice which has been signed by the Cardholder.
You and your means the person named as the "Merchant" in your Application Form.
2. Interpretation
2.1 In these Terms and Conditions:
(a) words denoting the singular include the plural and vice versa;
(b) business day means a day on which we are open for business in Melbourne;
(c) a reference to a person includes an individual, company, other body corporate, association, partnership, firm, joint venture, trust or government agency;
(d) a reference to a clause is a reference to a clause of these Terms and Conditions;
(e) a gender includes all genders; and
(f) a reference to a party to this Agreement or another agreement or document includes the party’s successors and permitted substitutes or assigns.
3. Your obligations
3.1 You must:
(a) at all times comply with your obligations under this Agreement;
(b) where the sale is a WEX Accident Assist Sale comply with the obligations under clause 4;
(c) where the sale is a Sale other than a WEX Accident Assist Sale:
(i) accept all valid Cards presented by Cardholders;
(ii) supply goods and services to a Cardholder at the prices at which you would supply the goods and services to the Cardholder for cash;
(iii) use only authorised Sales Vouchers and WEXPAY Sales Vouchers, imprinters and equipment provided or approved by us and correctly record the information on them as required by the Merchant Operating Guide;
(iv) not advance cash to a Cardholder;
(v) establish a fair policy for the exchange or return of goods or services and give credit upon each return, not in cash but by means of a Sales Voucher and WEXPAY Sales Vouchers, as specified in the Merchant Operating Guide;
(vi) you must have in place a process for the investigation and resolution of disputes raised by a Cardholder in relation to the goods or services you have supplied;
(vii) obtain prior authorisation from us for any Sale which, together with all other Sales over the last 24 hour period, would be in excess of the Floor Limit applicable in respect of a particular Card and not split Sales which would otherwise be in excess of the Floor Limit;
(viii) send the Sales Voucher or WEXPAY Sales Voucher and a Merchant Summary including details of the Sale to us within 7 business days after the sale, if a Sale is made using a Sales Voucher or WEXPAY Sales Voucher;
(ix) settle recorded Sales with us every day you are open for business in accordance with the Merchant Operating Guide, if a Sale is made using a Terminal;
(x) process a Sale in accordance with the procedures for Terminals if your Terminal is operating, using Sales Vouchers if your Terminal or WEXPAY is not operating, or if you are using WEXPAY in accordance with the procedures for WEXPAY Sales Vouchers;
(xi) send all Sale refund information with Credit and Refunds Paper Vouchers and Sales Vouchers and WEXPAY Sales Vouchers, to us within 7 business days after the refund or Sale; and
(xii) if less than the full purchase price of a Sale is paid using a Card, obtain payment in full for the Sale using other payment methods;
(d) at all times act in good faith when processing a Sale or WEX Accident Assist Sale and making representations about us, a Card, an Account or the Services provided by us;
(e) not reveal to any Accountholder any other restriction on your authority to process Sales or WEX Accident Assist Sales advised to you by WEX;
(f) not split Sales or WEX Accident Assist Sales or take such other action which seeks to avoid application of a WEX restriction on Sale or WEX Accident Assist Sale charges to a Sale or WEX Accident Assist Sale as set out in clause 3.1(e);
(g) perform all obligations to an Accountholder in connection with a Sale or WEX Accident Assist Sale prior to processing the Sale or WEX Accident Assist Sale;
(h) not process, or attempt to process, any Sale or WEX Accident Assist Sale pursuant to this Agreement in any currency other than Australian dollars;
(i) not sell, purchase, provide or exchange Accountholder account number information in the form of Sales Vouchers or WEXPAY Sales Vouchers, carbon copies of Sales Vouchers or WEXPAY Sales Vouchers, mailing lists, tapes or any other media obtained by reason of a Sale. However, you are not prohibited from providing account number information in the form of Sales Vouchers or WEXPAY Sales Vouchers or any other media to your agent solely for the purpose of facilitating the processing of Sales to us on your behalf;
(j) pay us:
(i) such charges and fees (including, where applicable to you, the Merchant Service Fee, Site Establishment Fee and the Terminal Establishment Fee) as specified in the Application Form or set by us from time to time and notified to you 28 days after the end of the month in which charges were incurred;
(ii) the full amount of all Sales or WEX Accident Assist Sales refunds processed by you pursuant to this Agreement, less any charges referred to in clause 3.1(j)(i) already paid to us by you in respect of the relevant Sales or WEX Accident Assist Sales;
(iii) any overpayments made by us in respect of Sales or WEX Accident Assist Sales due to errors or omissions;
(iv) any credits made to you by us in respect of Sales or WEX Accident Assist Sales that are not valid;
(v) any amount we are entitled to charge back to you under clause 6.2;
(vi) where applicable to you, the Licence Fee; and
(vii) any other moneys due and payable by you to us under this Agreement, an EFTPOS Terminal Purchase Agreement or an EFTPOS Terminal Hire Agreement;
(k) not make any warranty or representation that may bind us or misrepresent any of the Services provided by us to Accountholders or our responsibilities;
(l) use reasonable care in each Sale or WEX Accident Assist Sale to detect forged or unauthorised signatures or the unauthorised use of a Card or Account;
(m) permit us to inspect and examine your books of account and records relating to any Sales and WEX Accident Assist Sales;
(n) securely keep copies of all records of Sales and WEX Accident Assist Sales (including Merchant copies), costs incurred, charges to a Card, and other sales under this Agreement for 7 years from the date of the relevant Sale, WEX Accident Sale or other sale or charge;
(o) if we request copies of the records described in clause 3.1(n):
(i) you must present all records requested to us within 7 days of the request being made; and
(ii) if you are not able to provide us with the requested records in accordance with clause 3.1(o)(i), and without limiting our rights in any way, we may seek to recover any amount of loss we incur from your delay or inability in providing those records including where our request was made pursuant to a Customer complaint or dispute;
(p) in relation to any property provided to you by us:
(i) obtain and maintain for the duration of this Agreement insurance for its replacement value;
(ii) notify us immediately of damage to, or loss of, any of this property; and
(iii) maintain the property at all times in a good state of repair (fair wear and tear excepted); and
(q) notify us immediately of loss of computer or processing equipment required to access WEXPAY or the Merchant Portal in order for us to decommission access. You will be liable for Sales and WEX Accident Assist Sales processed on your computer equipment via WEXPAY or the Merchant Portal up until the date at which you notify us that it has been lost or stolen.
3.2 You must only accept:
(a) in relation to WEX Accident Assist Sales, those Payment Codes presented by Accountholders (or a person authorised by an Accountholder) that correspond to a File Number authorised via the Merchant Portal and in respect of which we have not subsequently notified you that we have withdrawn your authority to accept;
(b) in relation to all other Sales, those types of Cards specified in the Application Form or which we notify you that you are authorised to accept and in respect of which we have not subsequently notified you that we have withdrawn your authority to accept.
3.3 You must:
(a) provide us with such assistance as we may reasonably require relating to our promotional and marketing activities;
(b) not use any Marketing Material in relation to Cards or Accounts, except as authorised by us;
(c) not refer to the Cards or Accounts in information or statements relating to the eligibility for, or the availability of, any goods or services supplied by you;
(d) advertise in a prominent place at each Site, and in a manner no less conspicuous than the manner in which you advertise other charge or credit cards, acceptance of the Card or affiliation with the Account; and
(e) place in a prominent position at each Site Marketing Material (including, where applicable, the Card decal insignia) and merchandise provided by us to you from time to time.
3.4 You acknowledge that you have no right, title or interest in the Intellectual Property Rights other than the right to use the Intellectual Property Rights as authorised by us in writing from time to time and the right to use the Merchant Portal or Software for the purpose of processing Sales during the Term of this Agreement for a Licence Fee (where applicable).
3.5 You indemnify us from and against all losses, damages, Liabilities, costs and expenses that we may suffer or incur as a result of or in connection with:
(a) your negligence;
(b) any damage to property supplied to you by us;
(c) any failure by you to perform any of your obligations under this Agreement;
(d) your damage to any Accountholder property including, for the avoidance of doubt, any Accountholder vehicle(s) in the course of a WEX Accident Assist Sale;
(e) any damage to any Accountholder property by a third party engaged by you to provide any goods or services under this Agreement;
(f) any dispute between you and any Accountholder including, without limitation, a dispute about the supply, timeliness, use, suitability, warranty or quality of any Repairs or any additional repairs, or any goods or services provided by you;
(g) any claim by an Accountholder against you or us for damages to recover an amount from you or us for misrepresentation, breach of contract or failure of consideration relating to goods or services bought from or provided by you;
(h) Taxes now or in the future assessed, levied, imposed or collected by any governmental, semi-governmental, administrative, fiscal or judicial body, department or authority in respect of the use of an Account to buy goods or services from you or any charge or any Sale under, or contemplated by, this Agreement;
(i) outages, failures or delays in any of your computer systems or any infrastructure or systems connected to your computer systems;
(j) any corruption of data caused by, or in any way attributable to, the use by an Accountholder of an Account; or
(k) any act or omission by you that results in any of the circumstances listed in clauses 3.5(a) to 3.5(j).
3.6 Clauses 3.5, 6, 22 and 23 survive rescission or Termination of the Agreement.
3.7 You will promptly and carefully examine the statement issued pursuant to clause 5.1(e) of this Agreement to ensure that all Sales have been properly and correctly recorded. You will notify us within 30 days of the date payment is due of any errors or discrepancies. If you do not notify us within that 30 day period, you accept that the statement is valid and correct.
4. WEX Accident Assist
4.1 Where the sale is a WEX Accident Assist Sale you must:
(a) provide us with an exact and total Quote for the Repairs you propose to provide to the Accountholder, prior to commencing the Repairs. The form of the Quote must be in writing and must contain accurate and all necessary details of the Repairs including the breakdown of all costs (including, but not limited to, materials, labour, consumables and taxes) to enable the Accountholder to make a properly informed decision about whether to approve the Quote. You must not commence any of the Repairs in any manner until you’re advised by WEX that the Quote is approved by the Accountholder;
(b) where, for whatever reason, you are unable to provide us with an exact Quote under clause 4.1(a), (whether that Quote relates to all or part of the Repairs) provide us with a written price range for the Repairs including the reason for being unable to provide an exact Quote, that the Accountholder can review and approve. You must not commence any of the Repairs until this approval has been provided. For the avoidance of doubt, this clause also applies in the event you propose to change the scope or extent of the Repairs prior to finalising the WEX Accident Assis Sale;
(c) supply Repairs to an Accountholder in accordance with the Quote as advised by WEX as pre-approved by the Accountholder;
(d) not charge or attempt to charge the Accountholder any additional amount (whether or not those costs relate to Repairs or additional repairs, goods or services provided by you) after WEX has confirmed the approved Quote under clause 4.1(a);
(e) accept and use all valid Payment Codes presented by Accountholders. If you suspect a Payment Code that is presented to you by the Accountholder is invalid or unauthorised you must contact WEX immediately;
(f) process a WEX Accident Assist Sale using the Merchant Portal in accordance with the procedures advised to you by WEX. Where the Merchant Portal is unavailable (for any reason) you must process a WEX Accident Assist Sale using the manual processing procedures advised to you by WEX;
(g) you must have in place a process for the investigation and resolution of disputes raised by a Customer in relation to the Repairs or any additional goods or services (including additional repairs) you have supplied;
(h) follow the dispute resolution procedure advised to you by WEX in relation to any complaints or disputes lodged directly with WEX by the Customer, including providing all assistance and copies of all documents reasonably requested by WEX in order to resolve any complaints;
(i) settle all WEX Accident Assist Sales with us every day you are open for business in accordance with the Merchant Operating Guide;
(j) where requested by WEX promptly provide documentation in relation to particular WEX Accident Assist Sale; and
(k) if for any reason the Payment Code is unable to be processed, not obtain payment for the WEX Accident Assist Sale using any other payment methods;
4.2 WEX are not responsible in anyway whatsoever for Repairs, or any goods or services (including additional repairs) provided or conducted (in whole or in part) by you as part of a WEX Accident Assist Sale. You acknowledge and agree that we assume no liability for any Claim made against you or any loss incurred by you in relation to any Repairs, or any goods or services (including additional repairs) provided or conducted (in whole or in part) by you as part of WEX Accident Assist.
4.3 We are not responsible for the Accountholder vehicle at any time, including from the time the vehicle is delivered to you for Repairs.
4.4 You must ensure the Accountholder vehicle is picked up from your Site by the Accountholder or a person authorised to pick up the vehicle on behalf of the Customer. This may include, for example, identifying the person picking up the vehicle as being the person duly authorised to do so. If you suspect the person picking up the vehicle is not the person authorised to do so, or is acting in any way without authority, you must contact us immediately.
4.5 You will be solely responsible and liable for the Customer vehicle whilst in your possession including in the event the Customer vehicle:
(a) is picked up by an unauthorised person and you ought reasonably to have known that person was unauthorised; or
(b) is stolen, damaged or misused in any way by you or any of your employees, agents or contractors (including sub-contractors).
5. Our obligations
5.1 We will:
(a) for WEX Accident Assist Sales, accept all valid WEX Accident Assist Sales and WEX Accident Assist Sales refunds evidenced by copies of manual receipts and any other documents processed by you under this Agreement;
(b) for all other Sales, accept all valid Sales and Sales refunds evidenced by a "Credit and Refund Paper Voucher" processed by you under this Agreement;
(c) subject to this Agreement, credit your Approved Account within the Payment Period the full amount of all valid Sales or WEX Accident Assist Sales processed by us, less:
(i) an amount equal to the Merchant Service Fee calculated in respect of such Sales or WEX Accident Assist Sales processed; and
(ii) any amount you are required to pay us under clause 3.1(j) that has not been paid;
(d) if required, supply you with Sales Vouchers, WEXPAY Sales Vouchers, equipment, Marketing Material and other items that we agree to supply you from time to time;
(e) send you each calendar month a statement showing the amount of all Sales, WEX Accident Assist Sales, refunds, credits, charges and fees processed by us under this Agreement during the previous month; and
(f) use reasonable endeavours to process Sales and WEX Accident Assist Sales data received from you in a timely manner.
6. Invalid Sales
6.1 For the purposes of this Agreement, a Sale or a WEX Accident Assist Sale is not valid if:
(a) it is illegal;
(b) it is made using a Card that has a signature panel and the panel has not been signed by the Cardholder;
(c) you accept a Sale or WEX Accident Assist Sale made by a person other than the Accountholder and:
(i) you failed to take reasonable steps to confirm that person is authorised by the Accountholder to use the Account; or
(ii) you have been previously notified that the person is not authorised to use the Account on behalf of the Accountholder;
(d) it is made using a Card that has a signature panel and the Sales Voucher recording the Sale is not signed or the Sale is not authorised by the Cardholder entering their PIN, if a PIN entry is required;
(e) in the case of payments processed using WEXPAY, if the WEXPAY Sales Voucher is not signed by the Cardholder, regardless of whether the Card has a signature panel or not;
(f) it is made using a Card that has a signature panel and the signature on the Sales Voucher or EFTPOS Receipt recording the Sale is forged or unauthorised and you should have known or could reasonably have detected that the signature was forged or unauthorised;
(g) the particulars inserted in the Sales Voucher or EFTPOS Receipt recording the Sale are not identical with the particulars inserted in the copy given to the Cardholder;
(h) the Card used for the Sale is not current at the time of the Sale;
(i) the Card used for the Sale is listed on any Hot Card List at the time of the Sale;
(j) for a WEX Accident Assist Sale, the price advised to WEX as chargeable to an Accountholder is in excess of the Quote advised by WEX as pre-approved by the Accountholder unless you obtained prior authorisation from us to charge this price;
(k) for WEX Accident Assist Sales, any amount advised to WEX as chargeable to the Accountholder for Repairs, goods and services provided after a vehicle has been collected by the Accountholder;
(l) for all other Sales, the price charged to the Cardholder for any goods or services purchased is in excess of the price at which you would supply the item to the Cardholder for cash;
(m) the amount of the Sale, when added to the amount of other Sales made by you in any 24 hour period and charged to a particular Card, was in excess of the Floor Limit applicable to that Card, unless:
(i) you obtained authorisation from us and an authorisation number given by us for that Sale has been noted on the Sales Voucher; or
(ii) you could not reasonably be expected to be aware that the Floor Limit has been breached;
(n) the Sales Voucher, WEXPAY Sales Voucher or EFTPOS Receipt used to record the Sale is incomplete or illegible;
(o) you failed to observe this Agreement in relation to the Sale or WEX Accident Assist Sale;
(p) the Card or Account used for the Sale or Payment Code used for the or WEX Accident Assist Sale was used without the authority of the Accountholder and the unauthorised use could reasonably have been detected by you;
(q) the Sales Voucher, WEXPAY Sales Voucher or other record of the Sale or WEX Accident Assist Sale (including where lodged via the Merchant Portal) is received by us more than 30 days after the Sale or WEX Accident Assist Sale took place;
(r) unless the Sale was authorised by the Cardholder entering their PIN if a PIN is required, you are not able to provide to us the Merchant Copy recording the Sale within 7 days if we ask for it;
(s) the Card used for the Sale has a designated vehicle registration number printed or embossed on the Card and the goods or services purchased are not for the designated vehicle;
(t) the Card used for the Sale has restrictions on the type of goods or service which may be purchased using the Card or other restrictions printed or embossed on it and the Sale contravenes those restrictions;
(u) it is processed using a Terminal and the Card number or truncated Card number appearing on the EFTPOS Receipt is not consistent with the Card number of the Card which is produced;
(v) the Card or Account used for the Sale or WEX Accident Assist Sale belongs to you;
(w) the Cardholder or Accountholder refuses to pay all or any amount charged for the Sale or WEX Accident Assist Sale because the goods and services were defective, returned, not delivered or provided, or not as promised, or for any other reason;
(x) a payment we receive from a Cardholder or Accountholder in respect of the Sale or WEX Accident Assist Sale is wholly or partly avoided, or a claim is made to avoid it and that claim is upheld, conceded or compromised under any law (including any law relating to bankruptcy or liquidation);
(y) the Cardholder or Accountholder asserts a claim of set-off or a counterclaim against you or us in connection with the amount charged for the Sale or WEX Accident Assist Sale; or
(z) it is otherwise treated as an invalid Sale or invalid WEX Accident Assist Sale under this Agreement.
6.2 We may refuse to accept or, having accepted, may charge back any Sale or WEX Accident Assist Sale if the Sale or WEX Accident Assist Sale is not a valid Sale or valid WEX Accident Assist Sale.
6.3 A Sale or WEX Accident Assist Sale can be an invalid Sale or WEX Accident Assist Sale even if it has been authorised by us or if we have paid you an amount in respect of the Sale or WEX Accident Assist Sale.
6.4 If we ask you anything about a Sale or WEX Accident Assist Sale (including asking you to provide copies of any document), you must promptly help us with our enquiry and provide the information requested to us as soon as reasonably possible. If you do not answer our enquiry to our satisfaction within 7 days of the date of the enquiry the Sale or WEX Accident Assist Sale to which the enquiry relates, it will be treated as an invalid Sale or invalid WEX Accident Assist Sale.
7. Warranties
7.1 Each time you process a Sale or WEX Accident Assist Sale, or you provide us with a Sales Voucher, WEXPAY Sales Voucher, Merchant Portal or other record of a Sale or WEX Accident Assist Sale (including via the Merchant Portal), you warrant that:
(a) all statements of fact and/or data recorded in the Sales Voucher, WEXPAY Sales Voucher or other record of a Sale or WEX Accident Sale are true;
(b) the Sale or WEX Accident Sale is valid; and
(c) the Sale or WEX Accident Sale is not subject to any dispute, set-off or counterclaim.
7.2 In relation to any Repairs to a vehicle, or any other goods and services provided by you as part of a WEX Accident Assist Sale you warrant that all Repairs are fit for purpose and comply with all applicable laws and regulations.
7.3 You hold and will continue to hold all relevant licenses, approvals and insurances necessary in order for you to provide the Repairs or Services for the entire term of this Agreement.
8. Indemnity
8.1 You indemnify WEX from against any and all losses, damage, costs, expenses or liabilities that we may suffer or incur as a result of a Claim by a third party (including, without limitation, a Customer):
(a) in relation to any of the warranties made under clause 7;
(b) in relation to any Repairs provided by you (in whole or in part), or any additional repairs, goods or services provided by you (in whole or in part) as part of a WEX Accident Assist Sale;
except to the extent that any such loss, damage, cost, expense or liability was caused by or contributed to by the misconduct or negligent act or omission of WEX or a breach of this Agreement by WEX.
9. Retention
9.1 We are entitled to retain any moneys that are otherwise payable by us to you in any of the following circumstances:
(a) where moneys are payable to you with respect to a Sale or WEX Accident Assist Sale or series of Sales or WEX Accident Assist Sales where we suspect upon reasonable grounds:
(i) that the Accountholder, Cardholder and/or you have acted fraudulently; or
(ii) that the Sales or WEX Accident Assist Sales are not bona fide.
9.2 We may in our discretion retain the whole or any part of those moneys described in clause 7.1 for a period reasonably necessary to enable the Sales or WEX Accident Assist Sale in question to be properly investigated by us.
9.3 Where moneys are payable to you in respect of a period in which the volume of Sales or WEX Accident Assist Sales is considered by us to be exceptional, having regard to the volume of Sales or WEX Accident Assist Sales that we would reasonably have expected based on Sale or WEX Accident Assist Sale history for the period in question, we may in our discretion retain in a retention account such proportion of those moneys (not exceeding the excess) as we think fit for a period of not more than 60 days.
9.4 On Termination of this Agreement, we may retain an amount equal to 20% of the average monthly amount of valid Sales or WEX Accident Assist Sales over the 6 complete calendar months prior to the Date of Termination or such other sum as we may reasonably consider necessary to be retained by us in order to meet:
(a) Sales or WEX Accident Assist Sales which may be disputed by Accountholders or any of our referral partners; or
(b) amounts that we reasonably believe you may become liable to pay to us under the terms of this Agreement (whether by way of indemnity or otherwise) after the Date of Termination.
Without prejudice to any of our rights under this Agreement, we may only retain amounts retained under this clause 9.4 for 90 days from the date of Termination of this Agreement.
10. Term and Termination
10.1 This Agreement starts on the Commencement Date and continues unless terminated in accordance with clause 10.2.
10.2 This Agreement may be terminated:
(a) by either Party with 60 days' written notice;
(b) immediately by notice in writing to the other Party if an Insolvency Event occurs in relation to the other Party and the Party purporting to terminate is not restricted from doing so by law;
(c) by either Party with immediate effect by written notice to the other Party, in the case of a breach of any term of this Agreement by the Party that is not remedied within 14 days of being given notice by the other Party specifying the breach and asking the Party to remedy it;
(d) immediately by us by notice in writing to you if regulatory requirements concerning the Services are changed;
(e) immediately by us by notice in writing to you if:
(i) you cease providing the goods and services contemplated by this Agreement; or
(ii) you become ineligible to provide the goods and services contemplated by this Agreement;
(f) by written notice to a Party if that Party receives significant negative media attention in the Australian media and continuation of this Agreement would cause the other Party serious and imminent risk to the reputation of its business, as determined by the other Party.
10.3 Termination of this Agreement will not affect obligations incurred prior to Termination including, without limitation, where you have commenced providing Repairs, goods or services under this Agreement but such Repairs, goods or services are incomplete. We will not be obliged to accept any Sales or WEX Accident Assist Sales or Sales refunds or WEX Accident Assist Sales refunds processed by you after notice has been given by you or us under clause 10.2 other than where notice is given under clause 10.2(a).
10.4 You must promptly return to us any equipment, Sales Vouchers, WEXPAY Sales Vouchers, Card decals, Marketing Material or other items supplied by us upon Termination of this Agreement.
11. Liability
11.1 Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified. Except as expressly set out in this Agreement or otherwise as required by law, you acknowledge and agree that we make no warranty or representation in respect of the Services.
11.2 The limitations on our liability contained in this Agreement are made to the full extent permitted by law. Nothing in this Agreement restricts the effect of warranties or conditions which may be implied by law or any other rights or remedies which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which we are entitled to do so, our liability under such implied conditions or warranties or other rights or remedies, shall be limited at its option to:
(a) in the case of goods, any one or more of the following:
(i) the replacement or repair of the goods or the supply of equivalent goods; or
(ii) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or
(b) in the case of services, any one or more of the following:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.3 To the fullest extent permitted by law, we have limited liability to Merchants arising from loss or damaged suffered by the use of WEXPAY, Sales Vouchers or the Merchant Portal, including with respect to loss or damage arising from the loss of data. Your ability to recover is limited to the equivalent of 12 months' worth of Merchant Service Fees payable by you prior to your claim for loss or damage being made.
11.4 The limitations of liability in clause 11.2 do not apply to either Party's liability for loss due to fraud, personal injury, or death.
11.5 To the fullest extent permitted by law but subject always to any limitation of liability for implied warranties under the Australian Consumer Law, under no circumstances are we liable to you on account of any Claim (whether based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity, the failure of any limited remedy to achieve its essential purpose, or otherwise) for any Consequential Loss including, but not limited to, any indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss of or interruption to your business, or for any damages or sums paid by you to third parties, even if we have been advised of the possibility of such damages.
12. Financial worthiness
12.1 To the extent that any representation or assurance concerning the financial worthiness of an Accountholder may be inferred from the issue of an Account to an Accountholder, you waive those rights (if any) which you may have against us by reason of the representation or assurance.
13. GST Law
13.1 Except as otherwise provided by this clause, all moneys payable under this Agreement in relation to any Supply is exclusive of GST.
13.2 To the extent that any Supply by us under this Agreement constitutes a Taxable Supply, the amount payable by you to us will be increased by the applicable amount of GST (GST Amount), which will be calculated by multiplying the amount upon which GST is payable by the prevailing rate of GST.
13.3 Any GST Amount must be paid by you to us at the same time and in the same manner as the relevant amount is paid or given under this Agreement, without any right of set-off or deduction (unless otherwise provided in this Agreement).
13.4 If this Agreement requires you to pay, reimburse or contribute to any expense, loss or outgoing suffered or incurred by us (Relevant Expense), the amount that you must pay, reimburse or contribute will be the amount net of any Input Tax Credits to which we are entitled in respect of the Relevant Expense.
13.5 We must provide a valid Tax Invoice to you at or prior to the time of payment of any GST Amount.
13.6 To the extent that any Adjustment occurs in relation to a Taxable Supply by us, we must issue an Adjustment Note to you within 28 days of becoming aware of the Adjustment and any payment necessary to give effect to such Adjustment must be made within 7 days after the date of receipt of the Adjustment Note.
13.7 In this clause 13, Adjustment Event, Adjustment Note, Consideration, Supply, Taxable Supply and Tax Invoice have the meanings given to those terms in section 195-1 of the GST Law.
14. Recipient Created Tax Invoice Agreement
14.1 You may make Taxable Supplies to us in accordance with this Agreement.
14.2 We may issue Recipient Created Tax Invoices in respect of such supplies (RCTI).
14.3 You must not issue Tax Invoices in respect of such supplies.
14.4 You acknowledge that you are registered for GST when you enter into this Agreement. You must immediately notify us if you cease to be registered.
14.5 We acknowledge that we are registered for GST when we enter into this Agreement. We must immediately notify you if we cease to be registered.
14.6 We will issue a copy of an RCTI to you within 28 days of you making any Taxable Supply under this Agreement.
14.7 We will not issue a document that would otherwise be a RCTI on or after a date when we or you have failed to comply with any of the requirements of A New Tax System (Goods and Services Tax) Act 1999 Classes of Recipient Created Tax Invoice Determination (No.1) 2000 (the Determination).
14.8 You must immediately notify us if you fail to comply with any requirement of the Determination.
14.9 To the extent that any Adjustment occurs in relation to a Taxable Supply by you, we must issue an Adjustment Note to you within 28 days of becoming aware of the Adjustment and any payment necessary to give effect to such Adjustment must be made within 7 days after the date of receipt of the Adjustment Note.
14.10 In this clause 14, Adjustment, Adjustment Note, Recipient Created Tax Invoice, Taxable Supply and Tax Invoice have the meanings given to those terms in section 195-1 of the GST Law.
15. Your Approved Account
15.1 If you change your Approved Account, you must give us at least 7 days' prior written notice of the change and the details of your new account. We are not liable for any loss, Liability, cost or expense you incur or are required to pay as a result of us transferring funds to an Approved Account that is no longer current.
15.2 If we ask you to do so, you must complete, sign and promptly return to us a direct debit authority in the form provided to you by us authorising us to:
(a) debit your Approved Account to correct any error relating to any payment that we make to your Approved Account; and
(b) debit from your Approved Account an amount equal to the amount of any invalid Sale or WEX Accident Assist Sale.
16. You must notify us of certain matters
16.1 You must immediately notify us in writing if:
(a) you stop carrying on business at a Site or start carrying on business other than at a Site;
(b) you cease to carry on business or transfer your business to another person;
(c) if you cease to provide any of the goods and services contemplated in your Application Form and under this Agreement;
(d) where applicable, if you cease to hold a license to provide any of the Repairs, goods or services contemplated in your Application Form or under this Agreement;
(e) you restructure your business (for example, change of owner(s) or director) or register your business under a new ABN;
(f) (if you are a company) an administrator, receiver, receiver and manager, liquidator or similar officer is appointed or an order is made for your administration, winding-up or dissolution or steps are taken towards this (for example, a resolution is passed or an application is made to a court);
(g) (if you are a natural person) you commit an act of bankruptcy or enter into an assignment, arrangement or composition with any creditors.
17. Dispute resolution
17.1 If there is a dispute between the Parties concerning compliance with this Agreement (Dispute), then a Party must not start court proceedings in respect of the Dispute unless it has complied with clauses 17.2, 17.3 and 17.4.
17.2 Nothing prevents a Party from commencing proceedings against another Party in respect of urgent interlocutory relief in a court of competent jurisdiction in relation to any matter.
17.3 A Party claiming that a Dispute has arisen must notify the other Party in writing, giving details of the Dispute.
17.4 During the 28 day period after a notice is given under clause 17.3 (or such longer period as may be agreed in writing by the relevant Parties), the relevant Parties will use their best efforts to resolve the Dispute.
17.5 Any communication made for the purposes of this clause 17 must be kept confidential and may not be used except to attempt to resolve the Dispute.
17.6 During any dispute resolution process in relation to a Dispute, the pre-Dispute status quo will continue. Accordingly, each Party will comply with its obligations and may exercise its rights under this Agreement. The fact that a Party ceases to do anything in Dispute will not be taken to be an admission by that Party that it had breached, or had been in breach of, this Agreement.
18. Customer disputes – WEX Accident Assist
18.1 Where a Customer raises a complaint or dispute with you directly in relation to Repairs, you must use all best endeavours to resolve the complaint or dispute within a timely manner and to the Customer's satisfaction.
18.2 You must provide us with all reasonable assistance as required by us in relation to WEX Accident Assist Customer dispute. This includes, where necessary, promptly providing us with copies of any documentation (including quotes, receipts or warranties) as required by us.
18.3 As part of any dispute with a Customer in relation to a WEX Accident Assist Sale, WEX may, at our sole discretion, appoint an independent assessor to review the Repairs in order to assess and/or investigate a Customer complaint or the dispute. You agree that any decision reached by us on the basis of the independent assessor review is final and binding. You may request a copy of the independent assessor report from us.
19. Notices
19.1 Any notice under this Agreement must be legible and may be posted, faxed or sent by email.
19.2 A notice is treated as given to you:
(a) (if faxed to you at the fax number set out in the Application Form or the fax number last notified by you to us) on receipt by us of confirmation of successful transmission of the notice;
(b) (if posted in a prepaid envelope addressed to you at your address specified in the Application Form or the address last notified by you to us) 3 business days after the date it is posted; or
(c) (if sent by email to you at the email address set out in the Application Form or the email address last notified by you to us) when sent to your computer system or your email account, but if delivery or receipt is on a day which is not a business day or is after 5 pm (AEST), it is treated as given to you at 9 am on the next business day.
19.3 A notice is treated as given to us:
(a) (if faxed to us at the fax number set out below or the fax number last notified by us to you) on receipt by you of confirmation of successful transmission of the notice;
(b) (if posted in a prepaid envelope addressed to us at our address set out below or the address last notified by us to you) 3 business days after the date it is posted; or
(c) (if sent by email to us at our email address set out below or the email address last notified to you by us) when received by us, but if delivery or receipt is on a day which is not a business day or is after 5 pm (AEST), it is treated as given to us at 9 am on the next business day.
Our contact details are:
Post: GPO Box 5342, Melbourne, VIC 3001
Email: merchants@wexaustralia.com
Phone: 1300 130 113
20. Assignment and subcontracting
20.1 You may not assign or transfer any of your rights or obligations under this Agreement without our prior written consent.
20.2 You must not sub-contract the performance, or appoint an agent to perform, all or any of your obligations under this Agreement without our prior written consent.
20.3 You will remain fully responsible for the performance of all your obligations under this Agreement and all costs incurred in relation to any sub-contractor or agent you engage.
20.4 We may assign or transfer this Agreement by providing 30 days’ notice to you.
20.5 We may sub-contract all or any part of our obligations under this Agreement at any time and at our absolute discretion.
21. Force Majeure
21.1 Neither Party will be liable to the other for any delay in the performance of its obligations under this Agreement if the delay in performance is a result of a Force Majeure Event.
21.2 To the extent a Party is affected by a Force Majeure Event, that Party undertakes to use all reasonable endeavours to remove the cause of the delay as quickly as possible.
22. Confidentiality
22.1 This Agreement and all information provided to you by us under this Agreement (Confidential Information) are confidential and you must keep all Confidential Information confidential and must not disclose the Confidential Information to any person other than:
(a) to an employee whose duties require such disclosure;
(b) if required by law, judicial order or in accordance with the rules of any relevant stock exchange; or
(c) to a potential assignee of you who has entered into a deed in favour of the other Party undertaking to keep the Confidential Information confidential on terms no less onerous than the terms of this clause 22.
22.2 Without limiting the generality of clause 22.1, you must keep the Merchant Service Fee confidential and must ensure that the Merchant Service Fee is not disclosed to any person other than an employee whose duties require such disclosure and who undertakes to keep the Confidential Information confidential on terms no less onerous than the terms of this clause 22.2.
23. Privacy and Personal Information
23.1 If any information provided by us to you under this Agreement includes any Personal Information, you must:
(a) comply with all applicable privacy laws and/or data protection laws as may be in force from time to time which regulate the storage, use and disclosure of information;
(b) immediately notify us of any complaint or investigation under, or relating to, any of the laws referred to in clause 23.1(a); and
(c) co-operate with us and provide us with all assistance reasonably necessary for the resolution of any such complaint or investigation.
23.2 You agree that you will comply with any request made by us in relation to Personal Information of Customers that you may store. This includes the provision of full and complete records of Customer information in, for example, the case of an allegation of fraud in relation to a Card or the use of an Account.
23.3 You agree that any of your Personal Information (including Personal Information of your directors, employees and contractors) collected as part of your Application may be used by us for verification purposes, including, where necessary, by verifying that information with third parties.
24. Electronic communication and e-signatures
24.1 You agree that, to the extent you provide us with any documentation or other communication by electronic transmission we are entitled to rely upon and accept that documentation or communication as an original document or communication to the extent necessary.
24.2 You acknowledge and agree that your Application Form (including your agreement to these terms and conditions) and any other documentation required to be signed by you in relation to this Agreement or under these terms and conditions, may be executed by electronic signature, which is considered as an original signature for all purposes and has the same force and effect as an original 'wet-ink' signature. You agree that an "electronic signature" includes, without limitation, faxed or electronically scanned and transmitted versions of an original signature or the use of an e- signature software that uses a digital identifier.
25. Joint and several liability
Where you consist of 2 or more persons, your obligations under this Agreement are joint and several.
26. Variation
We may vary the terms of this Agreement at any time by giving you written notice. You must not unreasonably withhold consent.
27. Governing law
This Agreement is governed by and must be construed in accordance with the laws of Victoria. The parties agree to submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
28. Our certificate is conclusive
Any statement or certificate specifying the amount you owe us under this Agreement signed by one of our employees is conclusive evidence of the amount of your liability to us at the date of the statement or certificate, unless there is an obvious error.
29. Severability of provisions
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. Such prohibition or unenforceability does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
30. Set-off
We may, without notice to you, set-off and apply the whole or any part of any fees payable by us to you and any money owing by you to us towards satisfaction of any amount owing in any agreement between you and us. This is irrespective of whether the: account is subject to notice, the amount is due, or the currency of the Account or the amount owing. This right of set-off is in addition to any general or banker's lien or other right to which you are entitled.
31. No waiver
No failure to exercise or delay in exercising any right under this Agreement by either Party will operate as a waiver of that right, nor will any single or partial exercise of any right prevent any other or future exercise of that or any other right.
WEX Australia Pty Ltd ACN 005 970 570
WEX Fuel Cards Australia Limited ACN 008 962 132
GPO Box 5342, Melbourne, VIC 3001
Tel: 1300 130 113