Last Updated: July 10, 2024

1. Definitions:

• 3D Secure: means that process We supply to allow the cardholder to verify their card payment.
• Agreement:  means this document and the associated terms and conditions.
• Beneficial Owners: means an individual or in the case of a business that individual that owns 25% or greater of the Payee.
• Card Scheme: means Visa or MasterCard or any other Card Scheme with whose Card Scheme rules We are obliged to comply with.
• Card Scheme Rules: means the rules and regulations which regulate participants in the Card Schemes.
• Chargebacks:  means those card payments disputed by a cardholder to their card issuer and notified to You by Us.
• KYC Validation:  means the process by which We validate that the identities of the Beneficial Owners of the Payee to ensure We are compliant to relevant Anti-Money Laundering and Counter Terrorism Financing (AML/CTF) requirements of Our Payment Facilities Provider and regulators within the countries We operate within.
• Merchant Application: means that document completed by You either in paper form or online applying for the Service.
• Nominated Account:  means that card nominated by You for processing of Adjustments.
• Nominated Settlement Date:  means that date when the funds are either cleared, the goods and services are deemed to be supplied or as agreed by Us based upon Your conditions of supply.
• Payee: means those individuals or businesses that provide goods and services to a Payer and have an agreement with Us to use Our Services to assist in the collection of their fees and charges on their behalf.
• Payer: means those individuals or businesses that have an agreement with Us to use Our Services to pay a Payee for their goods or services.
• Payment Card Industry Data Security Standards (‘PCI DSS’): means that standard mandated by the Card Schemes for the protection of Cardholder details, Transaction information, and any additional or replacement standards of which We advise You from time to time.
• Payment Facilities Provider:  means those organisations, including banks, that supply the underlying payments facilities purchased by Us and used to supply Our payments Services to You.
• Payment Request:  Your authorisation for Us to direct debit Your nominated Scheme Card or bank account.
• Reseller: means that organisation that supplies to You the operational business software used to embed the payment Service where that organisation has an arrangement with Us to promote the Service.
• Service:  means the card payments processing and settlement facilities supplied by Us used by You to collect fees and charges due to You from the Payer.
• Service Fee:  means the fees charged to You to use the Service provided by Us.  The Service Fee is not the fees and charges charged by You to the Payer.
• Settlement Account:  means that bank account nominated by You within the Merchant Application for the receipt of cleared payment settlements.
• You/Your:  means the individual or company identified in this Agreement and or the Merchant Application completed by You .  It is also the Payee.
• Us/We/Our: means Kovena which operates in the following countries:
  1. Kovena Pty Ltd (ABN 641 432 313) – Australia
  2. Kovena Ltd (NZBN 9429049947137) – New Zealand
  3. Kovena LLC (Company Number 8243606) – USA
  4. Kovena Vietnam Ltd (Company Number 0317484085) – Vietnam

2. Contractual relationship

This Agreement sets out the terms and conditions on which We provide the Service to You. By signing or indicating acceptance of the Merchant Application or otherwise accessing or using the Service You agree to accept this Agreement and its associated terms and conditions.  

You acknowledge this Service is provided by Us and it is optional.  The Service is not intended to restrict a Payer from making payments to You via other methods.

You acknowledge that this Service allows You to only receive payments from those Payers that have accepted Our Payer Terms and Conditions at point of payment.

If You are registered and/or located in Costa Rica, Guatemala, or Panama, You also agree to the terms and conditions listed at: https://connect.tilopay.com/terminos-y-condiciones/

For those Merchants using the USD currency Service, You also agree to the terms and conditions listed at: https://www.airwallex.com/us/terms/kovena

3. Commencement of Agreement

You agree to be bound by the terms and conditions of this Agreement once You have been advised in writing that Your Merchant Application to be a Payee has been approved.  

4. Variations and amendments to the terms and conditions

We may vary these terms and conditions inclusive of the Service Fees with 14 days notice by email to the contact details supplied by You in the Merchant Agreement.  The updated terms and conditions will be displayed on Our website (www.kovena.com).  You shall be deemed to have accepted any variations or amendments unless You inform us in writing at support@kovena.com of Your refusal to accept the variation or amendment within 14 day of its publication.  If You refuse to accept the variation or amendment We will terminate this Agreement and may at Our sole discretion enter into a new Agreement with You.

5. Your General Obligations to Us

You must Immediately notify Us of:

• any change to Your financial position which may affect Your ability to perform Your obligations under this agreement.
• any change in business address, business name, ownership or substantially change the type of goods and services You sell.

Unless approved by Us:

• only use the Service for payments where You are the seller and supplier of goods and or services.
• not use Our Service on behalf of a third party unless You have an agreement to resell, distribute or retail their products or services.
• Allow Our employees, contractors, sub-contractors or agents or those of Our Payment Facilities Provider or any Card Scheme to enter Your premises during normal business hours to check Your compliance with this agreement or the Card Scheme rules.
• Provide Us with all information and assistance We reasonably require to perform Our obligations and to deal with any queries in relation to Our provision of Our Service.
• Comply with all relevant Laws and contractual requirements in carrying on Your business

6. Payment Processing Services

We make available to You the ability to receive payment for goods and services (supplied by You to Your Payers).  

The payments types We support are as follows:

• Credit Card (Visa and MasterCard)
• Debit Card (Visa and MasterCard)
• Charge Card (Amex) in the US and Latin America only.

The transaction types We support are as follows:

• Purchase
• Pre-authorisation/capture
• Refund
• Void
• Tokenisation / Registration
• 3D Secure

We facilitate (at Our sole discretion), the processing of Your payments, via whichever of Our business entities, in whichever country, that is best suited to clear Your payments.

The features and functionality may change and You will be advised of any changes relevant to Your Service. 

7. Settlements 

We facilitate the settlement of the payment to You (net of Our Service Fees or any refunds or adjustments) utilising the details registered by You within the completed Merchant Application.  

We will allow You to process payments as soon as You have completed the Merchant Application and it has been approved, but settlements will not occur until You have completed Our KYC Validation processes.  See Clause 11.

Settlements will be credited to Your nominated Settlement Account within 1-3 days of Your Nominated Settlement Date.

8. Adjustments

We may from time to time debit or credit You any adjustments in respect of payment transactions made due to:

• Errors or omissions
• Payments initiated without a valid Payer authorisation or payments that are later dishonoured, invalid or unauthorised.
• Fees, charges or fines, (inclusive of legal costs), incurred  by Us (directly or indirectly) as a result of Your conduct which in turn results in payments being made that are illegal, brand damaging or cause Us to be not PCI DSS Compliant.

The adjustments will either be processed by offsetting against Your settlement or by debiting Your Nominated Account.

9. Dishonoured or declined payments

From time to time payments from a Payee will be declined or dishonoured by their card issuer.  These payments will be notified to You by Us.  

You may need to initiate a catch up payment with Your Payer once they have resolved the reason for the dishonor or decline.  Catch up payments can be initiated via the Resellers website or operational software or by contacting Your Payer.

If in the rare instance a dishonoured payment has been notified to Us after it has been credited to Your nominated Settlement Account We will notify You of the dishonour by email and reverse the payment the following banking day either offsetting from Your settlement or debiting from Your Nominated Account.

10. Voided, stopped, deferred, reversed and refunded payments

Card payments can not be stopped or voided once processed and settled, they can only be refunded.  Refunds can take upto 5 days to be received by the Payer depending on the card issuer.  Payments that have not yet been settled can be voided.  Any scheduled payments can be voided, stopped or deferred before processing by accessing the Reseller website or their operating business software.

Once the service has been supplied and You have received the settlement for the payment, You will only be able to issue a refund to the cardholder by contacting Us directly at support@kovena.com. 

11. Verification of Payee

Once the agreement has been accepted and/or signed by You, You will be able to start processing transactions from Payers. We will only disburse the funds once You have completed Our KYC Verification process. If You have not supplied the documentation necessary to complete this KYC Verification within 21 days of the agreement being signed, or if Your account accumulates AUD$50,000 in value, We will temporarily suspend Your Service until Your KYC Verification is complete. In the event that You fail Our KYC Verification We will refund all charges back to the cardholder.  It will then be Your responsibility to collect the funds from the Payer.

12. Verification of Payer

Our Service electronically captures, verifies and validates the Payer’s payment details and their authority to pay You against standard card issuer verification databases.

Although We follow stringent authorisation processes on a Payer’s payment We do not guarantee:

• The Payer’s identity
• The Payer will pay or are authorised to pay
• The Payer will not attempt to or commit fraud against You

It is Your responsibility to ensure that the capture, verification, validation and authorisation processes We undertake are sufficient for You to supply Your goods and services.  In some cases You may be required to undertake additional verification and authorisation steps to meet Your commercial, legal or regulatory requirements of supply.

Where We supply 3D Secure capabilities and You use these to verify the Payer You will not be liable for any unauthorised payments made against the card via Our Service.

13. Disputes and Chargebacks

Payments processed and settled into Your Settlement Account is on the basis that You have provided goods and services as agreed with the Payer.

If there is a dispute by the Payer that You either:

• Did not supply the goods and services as agreed
• Supplied goods and services that were faulty or of poor quality
• Charged for goods and services that were not authorised by the cardholder
• The transaction was invalid (see section 15)

We will request and You will supply within 2 business days proof of supply and authorisation.  Proof may include, but not limited to:

• Proof that the cardholder purchased Your goods or services, i.e. made an online booking or signed a contract
• Proof that the cardholder accepted the terms and conditions of the goods and services You supply inclusive of any cancellation, refunds and damage policies You may have
• Proof that the cardholder used or received the goods or services You supplied, i.e. proof of delivery, checking in and checking out (inclusive of any signatures and or identification documents supplied)

Upon notification of a Chargeback by Our Payment Facilities Provider We will notify You immediately and hold those funds under dispute until the resolution process is completed. 

This proof will be supplied by Us to Our Payments Facility Providers.  If this proof is rejected by Our Payments Facilities Providers as not acceptable We will notify You of the failed dispute by email and either net the Chargeback and associated Chargeback fees from Your next settlement or debit the Chargeback and fees from Your Nominated Account.  You will need to recover the payment from Your Payer via other means.  

Chargebacks can occur up to 180 days from the date of supply.  It is therefore necessary to keep and record proof and authorisation for at least 180 days from supply.

If Your goods and service are regularly disputed We will officially inform You of the need to rectify the issues causing these disputes.  If these issues are not rectified We may at Our sole discretion suspend or terminate Your agreement with Us.

We reserve the right to hold settlement funds in cases We are awaiting the result of ongoing chargeback claims, or if we have reason to believe there are upcoming chargebacks going to be filed against You. 

Where We supply 3D Secure capabilities and You use these to verify the Payer You will not be liable for any unauthorised payments made against the card via Our Service.

14. Supply of Goods and Services

We are a facilitator of the transfer of value from the Payer to You, the Payee, under the Payers authorisation.  We do not guarantee the Payer will pay and We will not be liable for the costs associated with the recovery of any debt incurred including:

• Legal costs to recover fees and charges for good or services supplied
• Legal costs, fees or fines charged to You due to the non-supply or poor condition of any goods or services supplied

15. Invalid Payments

A payment is Invalid if:

• It is illegal
• The card details that were used are not valid at the time of the payment
• The card is used without the authority of the cardholder
• The signature/acceptance on the Merchant Application is forged or unauthorised
• The Merchant Application is incomplete, inaccurate or illegible

16. Payment Card Industry Data Security Standard (PCI DSS)

Although Our Services removes a portion of Your PCI DSS compliance efforts You acknowledge and agree that:

• You have processes and procedures in place, where relevant, to be PCI DSS compliant in Your own right.
• You agree to complete any verification documents or questionnaires sent by Us to You within 2 weeks confirming You are PCI DSS compliant.
• We are obliged to report all card data breach events to the Card Schemes, law enforcement agencies and or regulators.  You grant consent for the release of details of any such card data breach.
• You will advise Us immediately if You become aware of any card data breach, whether suspected, potential, anticipated, attempted or actual, relating to Cardholder data held by You or on Your behalf
• If We become aware of, or suspect, any such card data breach, We may, in Our sole discretion, appoint an investigator to complete a forensic investigation to identify the source and scope of such card data breach
• You will provide full access to Your systems, databases and premises and will arrange for access to any third party systems, databases and premises that You use in the provision of Your goods and or services to Us and Our data breach investigators
• You will be liable for all costs incurred by Us in relation to such investigation and remediation of any data breach confirmed by Us or Our investigator
• Where any breach is confirmed by Us or Our investigator, then in order to continue processing Card Transactions, You must undergo a full Payment Card Industry Data Security Standard (PCI DSS) accreditation by an approved Qualified Security Assessor (QSA). All costs of this accreditation exercise must be paid by You.
• If You fail to comply with clauses 15 (a) through to (h), or if there is any breach relating to Cardholder data held by You, We may terminate the Merchant Service and You are liable for any fines, fees or charges (inclusive of legal costs) or other costs imposed upon Us by the Payment Facilitator or Card Schemes.

17. Your Obligations to Cardholders

Subject to the provisions of this agreement, You:

• Must perform all obligations (including, without limitation, supplying or agreeing to supply all goods and or services) to the cardholder in connection with a sale before processing a payment.
• Must not sell, purchase, provide or exchange any cardholder data with any person other than Us, the Payment Facilitator, the Card Issuer or as required by Law.
• When a document is used to hold cardholder card data and is no longer required to be retained, it must be destroyed in a manner which makes the cardholder card data unreadable.
• Must take reasonable steps to ensure that cardholder data is protected from misuse and loss and from unauthorised access, modification or disclosure (see clause 15).
• Must not indicate or imply that We or any Card Scheme endorse any goods or services.
• Must not accept a card or a payment transaction which is of a type We have previously advised You is not acceptable to Us.
• Must provide sufficient training to Your employees, contractors and other personnel to ensure You meet Your obligations under this agreement.
• Must prominently and unequivocally inform the cardholder of Your identity (inclusive of but not limited to business name, company number, registered address, trading name, trading address and contact details) at all points of cardholder interaction (including without limitation on any relevant website, promotional material, invoice or receipt) so that the cardholder can readily distinguish You from any other supplier of goods or services.
• Must prominently and unequivocally inform the cardholder that We are providing the payment processing Service.
• Must provide, when selling, a complete description of the goods and services available for purchase (inclusive of price, terms and conditions, refunds, cancellation and return policies) and provide the Payer an opportunity to indicate acceptance.
• Must provide the Payer a receipt that confirms their payment for goods and services and includes but is not limited to Your business details, Your trading details, any costs, fees or charges incurred, the payment method used and any authorisation details supplied by the Service to You.  In the case of online payments the receipt should be supplied immediately upon completion of the payment.

18. Ending an Agreement

Either You or We may end this agreement by giving the other 30 days written notice. The notice does not need to state the reason for ending this agreement.

The ending of this agreement does not affect any of Your or Our rights and obligations that arose before it ended

We may end this agreement immediately with or without notice if:

• You breach any of the conditions of this agreement
• You become bankrupt or insolvent, or have an official manager, receiver or manager appointed and there are proceedings to wind You up
• You go into liquidation
• You enter into an arrangement or composition with Your creditors
• You cease business

19. VAT/GST

The provisions of this clause applies only where a supply under this Agreement constitutes a taxable supply under the appropriate VAT/GST regulations in the country where the payments were processed.  Except as otherwise provided by this clause, all consideration payable under this Agreement in relation to any supply is exclusive of VAT/GST.

To the extent that any supply under this Agreement constitutes a taxable supply, the consideration payable by You to Us will be increased by the applicable amount of VAT/GST, which shall be calculated by multiplying the amount upon which VAT/GST is payable by the prevailing rate of VAT/GST.

We must provide to You a valid Tax Invoice at or prior to the time of payment of any VAT/GST Amount.

To the extent that any adjustment occurs in relation to a Taxable Supply, We must issue an Adjustment Note to You within 7 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.

20. Privacy

We will:

• Only use personal information collected from or about You or any of Your Payers for the purpose for which it was collected;
• Comply with all legislation, principles, industry codes and policies by which We are bound relating to the collection, use, disclosure, storage or granting of access rights to Your or Your Payer information including but not limited to the country specific Privacy Act.
• Obtain all necessary consents from You or Your Payers in order to comply with Our privacy obligations; and
• Not do anything with Your or Your Payers information that will cause You to breach Your obligations under any law.

We indemnify You and agree to keep You indemnified, against any losses that You may suffer or incur (either directly or indirectly) which arise out of a breach by Us of any of its obligations under this privacy obligation. 

Full details of Our privacy policy can be found at https://kovena.com/privacy-policy/.

21. Liability

Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether expressed, implied, statutory or otherwise, relating in any way to the Services or to this Agreement are excluded. 

Without limiting the generality of the preceding sentence, We shall not be under any liability to You in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the failure or omission of Us to comply with its obligations under this Agreement.

Where any Act of Parliament implies in this Agreement any term, condition or warranty that the Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. However, the liability of Us for any breach of such term, condition or warranty shall be limited, at Our option, to:

• The supplying of the Services again;
• The payment of the cost of having the Services supplied again; or
• The refunding to You of any payment received in relation to any defective Services.

You warrant that You have not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of Us which has not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Us.

22. Governing Law

This Agreement will be governed by and construed according to the laws of Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts and tribunals of Australia and waive any right to object to proceedings being brought in those courts or tribunals.

23. Service Request Drawings

Fees, charges, adjustments, Chargebacks and invalid payments will be either netted off Your settlements or debited from the Nominated Account.  

Drawing arrangements

The drawings under this Payee Service Request will occur:

• When a payment that has been credited to Your nominated Settlement Account but subsequently dishonoured, deemed to be invalid or unauthorised and were not able to be recovered from Your settlement
• When You specifically authorise Us to

We will give You 14 days notice in writing of any changes to the initial drawing arrangements.  

If You wish to discuss or dispute the notified changes with Us then email support@kovena.com and We will get back to You within 48 hours.

Your rights as a Payee

Changes to the arrangement

If You want to make changes to the drawing arrangement email Us on support@kovena.com with a request for change.  Changes may include:

• Deferring the arrangement
• Altering the arrangement
• Stopping a single drawing
• Suspending the arrangement for a period of time
• Cancelling the arrangement completely

We will reply to Your email request within 48 hours.

Enquiries

If You have any payment or drawings specific enquiries You can either:

• Go to the Help section of our website at www.kovena.com
• Email Us on support@kovena.com

We will reply to any email enquiry within 48 hours.

All communications should include:

• Your business name
• Your contact details – name, email and mobile
• Your enquiry

Disputes

If You believe that a drawing has been initiated incorrectly, We encourage You to take the matter up directly with Us first by emailing Us on support@kovena.com 

We will reply to any email enquiry within 48 hours.

If You do not receive a satisfactory response from Us within 14 days, contact the organisation that supplied your Nominated Account  who will respond to You with an answer to Your claim.

You will receive a refund of the drawing amount if We can not substantiate the reason for the drawing.

Note: Your Nominated Account supplier will ask You to contact Us to resolve Your disputed drawing prior to involving them.

Your commitment to Us

It is Your responsibility to ensure that:

• Your Nominated Account can accept these payments (Your Nominated Account supplier can confirm this)
• On the drawing date there is sufficient cleared funds in the Nominated Account
• You advise Us if the Nominated Account is transferred, closed or expired

If Your drawing is dishonoured by Your Nominated Account supplier then:

• You may be charged a fee and/or interest by Your Nominated Account supplier
• You will be emailed by Us informing You of the decline and that We Will represent the drawing in seven (7) days
• If the second drawing is declined again then You will receive a second email from Us informing You of the second decline and that We will represent the drawing for the final time in seven (7) days.
• Should the final drawing decline again then:
  • Your Service may be terminated
  • Your debt may be sold to a debt recovery agency
  • We may notify credit agencies of Your default
  • We may charge You for any cost of collecting this debt.

24. Fee schedule

The standard fees for the Service are non refundable.  The fees can be absorbed by You or can be partially or fully on-charged to Your Payer at time of payment.  

Unless otherwise stated, the retail fees associated with your account are as follows:

Australian based merchants:

• 1.8% for domestic cards
• 3.9% for international cards

New Zealand based merchants:

• 2.4% for domestic cards
• 3.9% for international cards

USA based merchants:

• 2.9% for domestic cards
• 3.9% for international cards

All other merchants:

• 3.5% for all cards
• plus any FX fees incurred during the time of payout if not receiving funds in AUD.

Your fees are detailed within the Merchant Application and also communicated via email to You after acceptance. an4