This Agreement is made between IP Payments (New Zealand) Limited Company Number 1526587 of Level 27, 188 Quay Street, Auckland and the party identified in the Business Details section of this document.
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Definitions
“Account” means the bank account or credit card nominated by you for acceptance of debit entries under this Agreement and for related purposes.
“Agreement” means these terms and conditions, the Direct Debit Service Agreement, the Fees and Charges Schedule and all other attached schedules.
“Confidential Information” means information that is marked “Confidential” or “Proprietary” or that a reasonable person would treat as such.
“DDR” means Direct Debit Request.
“Merchant Service Fee” means the percentage fee charged per transaction for the operation of the credit card facility. “Person” includes a company or corporation.
“Rules” means the card scheme rules set by MasterCard, Visa and Bankcard from time to time.
“Service(s)” means the Payments Processing Service defined in this document under the heading of Service Description. “Transaction” means a line item that appears in our transaction history database.
“Users” mean your customers.”
“We”, “Us”, “Our” means IP Payments Pty Ltd (ABN 86 095 635 680).
“You”, “Your” means the business identified in the Business Details section of this document.
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Contractual Relationships
By signing this Agreement for the Payments Processing Service You agree to accept these Terms and Conditions and all attached schedules associated with the provision of the Services.
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Payments Processing Service
Provided that You and / or the Users are able to connect to the Service, We make available to You the Services described in this document under the heading of Service Description.
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Service Levels
We provide a highly available, reliable and comprehensive Payments Processing Service. The standard service levels are:
• Service Availability: 24 hrs/day; 7 days/week; 365 days/year. • Help Desk Support: 9am to 5pm NZST.
• After hours, online, automated or onsite support: Available via additional arrangement.
• Uptime: 99%
6 Declines
From time to time transactions will be declined. Declined transaction will be reported to You as an exception. Declines are to be followed up by You with the payer directly.
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Reporting Errors
We are not responsible for any communication errors, including without limitation errors in reporting authorisations or declines, arising from or related to errors by the Bank or Charge Card Company and are communicated by Us to You. To the fullest extent permitted by law, all liability by Us for such errors is expressly excluded. Any claims with respect to such errors shall be raised directly with the Bank or Charge Card Company by You or the User.
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Password Security
You must ensure that Your Service user name and password are kept secure and not disclosed to anyone. If You suspect that the security of Your user name and password has been breached then You must ensure that:
• Your password is changed on the IP Payments website. • We are promptly notified of the suspected breach.
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Variations and Amendment of Terms and Conditions
We may propose variations and/or amendments to any of the provisions of this Agreement (including any operating reference or user guide). The proposed variation or amendment shall be published on Our web site www.ippayments.com.au/crmand You will also be informed of any such proposal by email.
You shall be deemed to have accepted any proposed variation or amendment notified to You unless You provide Us with written notice, within 10 days of the transmission of the email informing You of the proposed amendment or variation, that You do not accept the variation or amendment. If You choose not to accept the proposed variation or amendment, this Agreement will be deemed terminated by mutual consent with effect 14 days from the date of publication on Our website notice of the proposed amendment or variation.
10 Termination
10.1 A party may terminate this Agreement immediately by notice in writing to the other party in the event that the other party: 10.1.1 fails to observe, discharge or perform any provision of
this Agreement (Default) and then fails to remedy that Default within twenty-one (21) days after written notice specifying the particulars of the Default has been given to it;
10.1.2 commits any act of insolvency;
10.1.3 is presented with a creditors’ petition, or a resolution is passed by its shareholders or directors, for the winding up of that other party; or
10.1.4 it enters into a compromise or arrangement with creditors or a receiver, administrator or official manager is appointed in respect of its business or assets.
10.2 A party may terminate this Agreement with effect from the end of the initial term (or with effect from the end of any extended term) by giving the other party not less than one hundred and eighty (180) days notice in writing prior to the end of the initial term (or prior to the end of any extended term, as the case may be).
10.3 The termination or expiry of this Agreement (howsoever caused or arising) does not affect any of Your or Our rights, remedies and obligations that arose on or before it terminated or expired (as the case may be).
10.4 If a notice of termination is given to You pursuant to clause 10.1, We may, in addition to terminating this Agreement:
10.4.1 retain any moneys paid (apart from monies due to Users as a result of selling a product or service);
10.4.2 charge a reasonable sum for work performed in respect of work for which no such amount has been previously charged;
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10.4.3 retake possession of all Our property in Your possession; 10.4.4 be regarded as discharged from any further obligations
under this Agreement; and
10.4.5 pursue any additional or alternative remedies provided by law.
11 Charges and Payment
You must pay any additional fees under the terms specified in this Agreement.
If You request additional services or a variation to the existing Service (other than ‘bug fixes), then You agree to pay Us at Our standard rate of $1500 per day (plus agreed expenses and GST) for the provision of the additional service. You must pay the fees within 7 days after the date of Our invoice.
We will invoice you for all development work. Invoices will be electronically presented. Payments of invoices are to be via DDR, EFT or company cheque.
If fees remain unpaid for a period of 14 days We have the right to withdraw the service.
Where We have engaged an agent to collect overdue fees We have the right to also collect interest on over due fees and recover all costs incurred collecting these fees.
Your and Your Users bank fees and charges remain the responsibility of You and the User.
12 GST
The provisions of this clause apply only where a supply under this Agreement constitutes a taxable supply under the GST Act. Except as otherwise provided by this clause, all consideration payable under this Agreement in relation to any supply is exclusive of 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 GST (GST Amount), which shall be calculated by multiplying the amount upon which GST is payable by the prevailing rate of GST.
We must provide to You a valid tax invoice at or prior to the time of payment of any GST Amount.
To the extent that any adjustment occurs in relation to a taxable supply, We must issue an Adjustment Note to the 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.
15 Intellectual Property
You agree that all Intellectual Property Rights in any
specifications, works, items, software, materials or information of whatever nature produced or developed by Us or under Our direction pursuant to or in the course of providing the Service shall remain Our sole and complete property.
You grant to us a licence for the limited use of Your logos and trademarks as contemplated by this Agreement for the purpose of building a branded service.
13 Exclusivity
Unless otherwise agreed, you will not for the duration of this agreement, process payments via a product or service which is or could be an alternative to or competitive with the Services.
14 Confidentiality
Both parties must keep confidential, maintain proper and secure custody of and not use or reproduce in any form the Confidential Information unless with the other party’s prior written consent or as required by law.
Each party must immediately in accordance with the other party’s request deliver to the requesting party or destroy all Confidential Information and all changes to, reproductions of, extracts from and notes regarding the Confidential Information, in any form.
15 Exclusion of Implied Terms
Subject to clause 19.1, the parties intend and agree that all conditions, warranties, representations, indemnities and guarantees with respect to the Services (or any other goods or services that may be supplied or performed by Us under this Agreement), that but for this clause would otherwise be implied by statute, law, equity, trade custom, prior dealings between the parties or otherwise are not included in this Agreement and are hereby expressly excluded.
16 Exclusion of Liability
16.1 Nothing contained in this Agreement excludes, restricts, limits or modifies any:
16.1.1 condition, warranty, guarantee or obligation in relation to the Services where pursuant to an applicable law to do so is unlawful or void; or
16.1.2 right, or the exercise of any right, conferred by an applicable law where pursuant to that law to do so is unlawful or void; or
16.1.3 liability for an act or omission (including fraud or deceit) where pursuant to applicable law to do so is unlawful or void; or
16.1.4 liability for death or personal injury.
16.2 Subject to clause 16.1, We hereby exclude any liability to You or to any User or to any third party under or in connection with this Agreement or in respect of the performance, part-performance or non-performance of the Services for:
16.2.1 any loss, damage, cost or expense that is caused directly or indirectly by:
16.2.1.1 any third party;
16.2.1.2 acts or omissions that were expressly or impliedly authorised by You or by Your employees or agents; 16.2.1.3 products (including any hardware or software) not
licensed or supplied by Us;
16.2.1.4 acts of God or acts outside Our control; or 16.2.1.5 any breach of Your obligations or responsibilities
set out in this Agreement;
16.2.2 loss of earnings, revenue, profit or income;
16.2.3 loss of or failure to accrue an expected benefit, including anticipated savings;
16.2.4 loss of business opportunities; 16.2.5 business interruption costs or expenses; 16.2.6 loss of or damage to goodwill or reputation; 16.2.7 reliance costs or expenses suffered or incurred; 16.2.8 liability to any third party; or
16.2.9 Incidental, consequential, special, exemplary or punitive damages of any nature.
17 Limitation of Liability
Except to the extent otherwise excluded, limited or provided for elsewhere in this Agreement, Our sole liability to You for any and all breaches of any term or terms of this Agreement, whether express or implied, shall be limited to:
IP Payments (New Zealand) Limited – Payments Processing Service Terms & Conditions
17.1 the supplying of the Services again; or
The payment of the cost of having the Services supplied again, as we may elect.
18 No representation or reliance
18.1 Each party acknowledges and confirms that no other party (nor any person acting on a party's behalf) has made any representation or other inducement to it to enter into this Agreement, except for representations or inducements expressly set out in this Agreement.
18.2 Each party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation or other inducement by or on behalf of any other party, except for representations or inducements expressly set out in this Agreement.
18.3 Without limiting the generality of clauses 18.1 and 18.2, You acknowledge that:
18.3.1 no promise, representation, warranty or undertaking has been made or given by Us or any person on Our behalf in relation to the capacity, uses or benefits to be derived from, or any other consequences of or benefits to be obtained from the Services, or any other goods or services provided under this Agreement, except as expressly set out in this Agreement; and
18.3.2 You relied on your own skill and judgement when you decided to procure the Services from us and to enter into this Agreement.
19 Force Majeure
In the event that either party shall be prevented from performing any of its obligations due under the terms of this agreement by an act of God, by acts of war, terrorism, riot, or civil commotion, by an act of the government, by strikes, fire, flood, or by the occurrence of any other event beyond the control of the Parties hereto, that party shall be excused from any further performance of the obligations and undertakings set forth under the terms of this agreement.