Merchant Facility Terms

AGREEMENT IN BRIEF

Smartpay provides Merchant Services Facilities to businesses in New Zealand.
The parties have entered into this Agreement to record the terms and conditions upon which Smartpay agrees to provide to the Merchant, and the Merchant agrees to acquire, the Services from Smartpay, on the terms and subject to the conditions set out in this Agreement.

The parties agree that:

Smartpay will provide to the Merchant the Services for use within the Merchant’s business in accordance with this Agreement.
The Merchant will use the Services within its business on the conditions set out in this Agreement.
The Merchant will pay Smartpay all Fees when due and otherwise on the terms set out in this Agreement.
This Agreement is comprised of the Application form, Service Schedules, Privacy Policy, and this document, which comprises of:
1. Schedule 1 (Key Details);
2. Schedule 2 (Dictionary);
3. Schedule 3 (General Terms & Privacy; and
4. Schedule 4 (Smartpay Merchant Service Facility Terms).
5. Schedule 5 (Worldline Terms & Conditions)

SCHEDULE 1 – KEY DETAILS

Item 1	Smartpay (we)	Name: Smartpay Limited NZBN: 9429032012644 Address: 205 Wairau Road, Wairau Valley, Auckland, 0627, New Zealand Email: merchantassist@smartpay.co.nz Contact person: Merchant Services Call: 0800 476 278
Item 2	Merchant (you)	The party that has submitted the Application Form to Smartpay requesting access to the Smartpay Merchant Service Facility.
Item 3	Commencement Date	The first to occur of: (a) the date on which we open the Smartpay Customer Account; (b) the date on which we process the first Transaction for you; and (c) the date that is 7 (seven) days after your Equipment is first shipped to the Delivery Address.
Item 4	Term and renewal	Initial Term: Means the Initial Term as set out in the Application Form. Renewal Term: This Agreement will automatically renew for successive periods of 12 (twelve) months from the expiry of the Initial Term (or then current Renewal Term) unless terminated 30 (thirty) days prior to the end of the then-current term.
Item 5	Termination Notice	30 (thirty) days subject to Clause 16 (Termination) of Schedule 3 and no Initial Term being specified.
Item 6	Fees	As outlined in Schedule 3 Clause 6.3 Ongoing Fees: As set out in the ‘Merchant Service Fee Schedule’ and ‘Other Fees and Charges’ sections in the Application Form. Clause 6.10 Minimum Monthly Fee: Means the fee stated as such in the Application Form, being the minimum amount of Merchant Services Fees (MSF) payable per month regardless of transactions processed. Clause 16.5 Early Termination Fee will be calculated as follows: Smartpay may charge a early termination fee based on a number of circumstances. This Fee may be payable if the entire Agreement or individual Service access are terminated during the Initial Term or a Renewal Term in the Application Form. Clause 6.3 Kit Recovery Fee: As set out in the Application Form.
Item 7	Services	Your Merchant Services Facility from Smartpay includes the following services as required by you and agreed by Smartpay (a) Processing, clearing and settlement of the transactions that Smartpay supports. (b) Providing the related technology to enable processing of these transactions. (c) Monthly billing of the transactions Smartpay has processed on your behalf. (d) The Smartpay HUB a merchant portal to view these transactions and settlements.. (e) Customer support and helpdesk for when enquiries arise. (f) Any other associated activities that are mutually agreed upon.

SCHEDULE 2 – DICTIONARY

1. DICTIONARY

1.1 Definitions. In this Agreement:

Accessory Fee means the fees, if any, payable by you to us, for or in relation to consumables and/or accessories for use with or in relation to any Equipment and any related costs (including postage/courier fees), as such fees are set out in our then current price list.

Application Form means the application form submitted by you to us pursuant to Clause 4.1 (Must have a Smartpay Customer Account) of Schedule 3 for access to the Smartpay Merchant Services Facility.

Associate in relation to a party means the employees, officers, directors, contractors and agents of that party.

Authorised Signatory has the meaning given in clause 5.1 (Authorised Signatories’ authority) of Schedule 3.

Business means the ordinary business conducted by you as described in the Application Form or notified to us from time to time in accordance with this Agreement.

Business Day means a day other than a Saturday, Sunday or day which is a bank holiday or public holiday in Auckland, New Zealand.

Card(s) means a:

credit, debit, charge, purchase or other valid payment card issued by a member or affiliate of a Scheme on which the Scheme’s Marks appear;
a valid payment card capable of acceptance under the New Zealand EFTPOS system issued by a New Zealand bank or financial institution;
any valid payment card issued under any loyalty program;
any other valid payment card issued by another entity which the Device is enabled to accept; or
any electronic derivation of any of the above.

Card Not Present Transaction means a purchase made remotely without processing a physical Card via a card reader or Device.

Cardholder means the person to whom a Card has been issued or a person who is authorised to use a Card.

CGA means the Consumer Guarantees Act 1993.

Chargeback refers to a transaction that is debited to the Settlement Account as a result of any of the circumstances set out in Clause 8.1 (Chargebacks) of Schedule 4.

Commencement Date means the date as determined in accordance with Item 3 (Commencement Date) of Schedule 1.

Communications Service means all facilities, devices and network connections that allow for the capture and switching of Transactions via the Payment Network by use of digital mobile telecommunication service, broadband internet, WiFi service or similar telecommunication services.

Consumer has the meaning given to that term in the CGA.

Consumer Law means the CGA, the Fair Trading Act 1986 and Part 3 of the Contract and Commercial Law Act 2017.

Credit Card means an instrument that can be used for purchasing goods or services on credit in New Zealand (irrespective of whether the instrument is issued in or outside New Zealand) and includes instruments issued by Visa, Mastercard, American Express, Diners Club, JCB and China Union Pay.

Customer Support means our customer support team who can be contacted via the methods set out on our website at www.smartpay.co.nz/contact-support/ .

Delivery Address means the address specified in the Application Form to which Equipment is to be supplied by us pursuant to this Agreement.

Device(s) means the electronic terminal or other certified hardware supplied by us through which instructions may be given for the transfer of funds using the Payment Network.

Direct Debit Dishonor Fee means the fee specified as such in the Application Form, and as may be varied from time to time in accordance with this Agreement.

Direct Debit Request means the direct debit request set out in the Application Form and any other relevant form (if applicable) and signed by you, as amended from time to time.

Early Termination Fee means the fee payable under clause 16.5.

Equipment means the Device, any related equipment, accessories and any Software, and any replacement equipment and parts provided by us from time to time.

Fee means any fee payable by you to us and as may be varied from time to time in accordance with this Agreement.

Fee Account has the meaning given in clause 7.1 (You must maintain a Linked Bank Account) of Schedule 3.

Financial Institution has the meaning given in clause 8.3 (When we will debit your account) of Schedule 3.

GST means any tax on the supply of any goods, services, real or personal property or any similar tax imposed under the GST Law.

GST Law means the Goods and Services Tax Act 1985 and all regulations passed under that Act.

Initial Term has the meaning given in clause 2.1 (Term and renewal) of Schedule 3.

Intellectual Property Rights means patents, rights in inventions, works of authorship, data, designs, databases, know-how, trade secrets, confidential information, trademarks, trade, business and domain names, logos, get-up and goodwill, along with copyrights, moral rights and any other intellectual property and proprietary rights, in each case whether registered or unregistered in any jurisdiction.

Invalid Transaction has the meaning given in Clause 6.7 (Invalid Transactions) of Schedule 4.

Kit Recovery Fee means the fee payable by you to us charged to replace any lost, stolen or damaged Equipment and may be varied from time to time in accordance with this Agreement.

Lane means one individual access point for processing transactions that has its own unique identification code.

Linked Bank Account has the meaning given in clause 7.1 (You must maintain a Linked Bank Account) of Schedule 3 and includes any Fee Account and Settlement Account.

Mark(s) means trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations owned, licensed or used.

Merchant Service Fee (MSF) means the fees payable by you to us for receipt of the applicable Smartpay Merchant Service Facility in the Application Form, and as may be varied from time to time in accordance with this Agreement.

Minimum Monthly Fee (MMF) means the minimum amount in any month payable by you to us in that month if you haven’t reached the MSF required as stated in the Application Form.

MOTO stands for “mail order or telephone order” and means an order for goods or services received by mail, telephone, facsimile or internet and the governing the use of the MOTO service as set out at clause 16 of Schedule 4 (Card Not Present Transactions) and can amended from time to time.

Network Connection Fee means the fee that is payable to Smartpay by you for the connection to a card processing switch, as set out in the Application Form and as may be varied from time to time in accordance with this Agreement.

Payment Network means the process whereby, pursuant to instructions transmitted through a certified Device, an electronic funds transfer takes place between a Cardholder’s bank account and your Linked Bank Account:

in relation to goods or services supplied or cash made available by you to the Cardholder; or
in relation to a refund in respect of goods and services supplied by you to the Cardholder.

Payments NZ means Payments NZ Limited (NZBN 9429031370257).

PPSA means the Personal Property Securities Act 1999.

PPSR means the register of personal property securities established under the PPSA.

Privacy Policy means our privacy policy which can be accessed at www.smartpay.co.nz/privacy-policy/.

Receipt means a receipt including the following information about a Transaction:

amount;
date;
type of Transaction;
facility or facilities being debited or credited;
information to enable us to identify you and the Transaction (but no information that identifies the Cardholder’s name or address);
time;
Device ID and Merchant ID; and
reference number.

Referral Partner means any third party (such as a financial institution or point of sale software providers but excluding our other merchant customers), who, from time to time, refers merchants to us pursuant to a written agreement.

Refund means the refunding of a previously processed Transaction back onto the previously processed Card.

Renewal Term has the meaning given in clause 2.1 (Term and renewal) of Schedule 3.

Scheme means the Visa, Mastercard, American Express, Diners Club, JCB and China Union Pay card schemes and any other similar schemes provided that we are a member of or facilitate transactions in relation to that scheme.

Security Interest has the meaning given to it in section 17 of the PPSA.

Settlement Account has the meaning given in clause 7.1 (You must maintain a Linked Bank Account) of Schedule 3.

Services or Smartpay Services means the merchant acquiring and processing services and Equipment that Smartpay will provide to you pursuant to this Agreement, as referred to in Item 7 (Services) of Schedule 1.

Seven Day Settlement means settlement of transactions seven (7) days per week, excluding public holidays as outlined in clause 6 of Scheudle 4.

Smartpay Customer Account has the meaning given in clause 4.1 (Must have a Smartpay Customer Account) of Schedule 3.

Smartpay HUB means the online portal where Merchants can view transactional and settlement data for their Merchant Facility and governed by the End User Licence Agreement clause 17 of Schedule 4, which may be amended from time to time.

Smartpay Merchant Services Facility or Merchant Services Facility means the facility under which we provide you with merchant acquiring and transaction processing services in accordance with this Agreement.

Software means all software developed by or for Smartpay which is used to provide the services under this agreement and any enhancement, modification, update or new release of that software or part thereof.

Surcharge has the meaning given in clause 9.1 (Surcharge) of Schedule 4.

Swap Out has the meaning given in clause 15.3 (Swap Outs) of Schedule 4.

Term means the Initial Term and any Renewal Term.

Terminal ID (TID) is a unique code we assign to each one of our payment devices.

Transaction means an electronic funds transfer initiated in connection with a Cardholder using a Card or information from a Card.

Transaction Value Report means a periodic report containing the total number of Transactions and total value of Transactions accepted under your Merchant Services Facility.

Updates means all corrections for defects, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Software from time to time.

User Guide means the procedures and user guide(s) that set out (amongst other things) instructions on how to set up the Equipment, connect to the Payment Network, change the terminal network, charge the Equipment, load paper rolls, perform automatic settlements, use MOTO, process refunds, and manage receipts, as provided and updated by us from time to time.

Valid Transaction is any transaction that is not an Invalid Transaction and is approved by us.

Website means the internet site at the URL www.smartpay.co.nz or any other site operated by the us or our related bodies corporate from time to time.

Worldline Terms and Conditions means the terms and conditions governing EFTPOS transactions which are facilitated by Paymark Limited T/A Worldline NZ and are included in Schedule 5 of this Agreement (as such terms may be updated from time to time).

1.2 Interpretation. In this Agreement, unless the context requires otherwise:

a reference to a clause, schedule or exhibit is to a clause, schedule or exhibit of or to this Agreement, which form part of this Agreement;
a reference to any gender includes all genders;
in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period;
the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply;
a reference to this Agreement or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them;
where an expression is defined anywhere in this Agreement, it has the same meaning throughout;
headings and sub-headings are for convenience of reference only and do not affect interpretation;
the phrase include, includes or including, or similar phrase does not limit what else might be included;
a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision;
a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgements, New Zealand generally accepted accounting principles and industry-wide non-statutory rules or obligations in force from time to time;
a reference to dollars or $ is to an amount in New Zealand currency;
the singular includes the plural and vice versa;
a reference to any party to this Agreement or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns; and
a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, government, or government or quasi-government body, and vice versa.

SCHEDULE 3 – GENERAL TERMS

1. STRUCTURE

1.1 Structure of this Agreement. This Agreement consists of the following parts:

Application Form (including Personal Information Collection Statement);
Schedule 1 (Key Details)
Schedule 2 (Dictionary)
Schedule 3 (General Terms) & (Privacy Policy)
Schedule 4 (Smartpay Merchant Service Facility Terms);
Schedule 5 (Worldline Terms and Conditions).

1.2 Precedence of documents. If there is an inconsistency between the documents set out in clause 1.1 (Structure of this Agreement) above, the document listed first in that clause will prevail to the extent of the inconsistency such that the inconsistent provision in the document lower in the order of priority will be read down or, if necessary, severed to the extent necessary to resolve the inconsistency. Where 2 (two) documents have the same priority in that clause, then priority will be given to the document that is later in time.

2. TERM

2.1 Term and renewal. This Agreement will start on the date that we confirm (usually by email) to you that your Application Form has been received and is accepted by us and will continue for the initial term (if any) set out in the Application Form (“Initial Term”), unless earlier terminated in accordance with this Agreement. If an Initial Term is specified in the Application Form, then this Agreement is for a fixed period from the start date to the expiry of the Initial Term. This Agreement will automatically renew for successive periods equal to the period set out in Item 4 (Term and renewal) of Schedule 1 (each a “Renewal Term”) unless either, a party terminates this Agreement by notice in writing to the other party no less than 30 (thirty) days prior to the expiry of the Initial Term or the then-current Renewal Term (as applicable), or a party otherwise terminates this Agreement in accordance with its terms. If no Initial Term is stated on the Application Form, then this Agreement can be terminated by either party on 30 days notice in writing to the other at any time.

2.2 Commencement of Services. Notwithstanding clause 2.1 (Term and renewal) above, we will start providing the Services to you on the Commencement Date as determined in accordance with Item 3 (Commencement Date) of Schedule 1.

3. SERVICES

3.1 Smartpay to provide Services to you. In consideration of the payment of the Fees, Smartpay agrees to provide to you the Services on the terms and subject to the conditions set out in this Agreement.

3.2 Right to reject certain Transactions.

You acknowledge and agree that Smartpay is subject to laws (such as relevant anti-money laundering laws), which may prohibit Smartpay from entering into or concluding Transactions involving certain persons. You agree that Smartpay may decline to enter into or conclude Transactions involving such persons in compliance with such laws, and will incur no liability from any action Smartpay takes where Smartpay reasonably believes that such action is required to comply with such laws. Further, you agree that Smartpay may delay, block or refuse to make or process a payment or Transaction if Smartpay believes on reasonable grounds that making that payment or Transaction may breach any law in any other country, and Smartpay will have no liability in taking such action. Smartpay will, as soon as reasonably practicable and at all times subject to the requirements of the relevant laws, notify you of this action.
You declare and undertake that the payment of monies by Smartpay in accordance with any instructions given by you will not breach any laws.

3.3 Services. Smartpay will use best endeavours to provide the Services selected by you on the Application Form.

3.4 MOTO. Where you have applied, and have been approved, to use the MOTO services, you acknowledge you have read and understood the conditions set out in Clause 16 of Schedule 4 (Card Not Present Transactions) and as amended from time to time.

3.5 Worldline. Where you accept payment by EFTPOS using the Device(s) provided to you, you acknowledge that you have read the Worldline Terms and Conditions as set out in Schedule 5 and agree to be bound by them.

4. YOUR SMARTPAY CUSTOMER ACCOUNT

4.1 Must have a Smartpay Customer Account. In order to use the Smartpay Services you must have an account with us (your “Smartpay Customer Account”). You must provide us with any information we reasonably require to open the account and to set up the Smartpay Merchant Services Facility for you, including the information requested on the Application Form.

4.2 We may refuse to open an account. When you submit an Application Form to us, you make an offer to us for us to set up a Smartpay Customer Account for you to enable you to access and operate the Smartpay Merchant Services Facility. Subject to law, we may in our sole and absolute discretion agree or refuse to open a Smartpay Customer Account and we may agree or refuse to provide the Smartpay Merchant Service Facility to you, and in each case, we are not required to provide reasons for doing so.

4.3 Assumption that information is current and correct. We are entitled to assume that all of the details that you have provided to us pursuant to the Application Form and otherwise pursuant to this Agreement are current and correct. If there are any changes to your details, you must notify us of those changes in accordance with clause 9 (Changes to your details) of Schedule 3. We will not be liable for any loss or damage suffered by you or any other party as a result of any such information being out-of-date or incorrect.

5. SMARTPAY CUSTOMER ACCOUNT – AUTHORISED SIGNATORIES

5.1 Authorised Signatories’ authority. You must nominate at least one individual (“Authorised Signatory”) to be your key contact person and who is authorised to access, use and control your Smartpay Customer Account. You acknowledge and agree that:

the Authorised Signatories nominated by you from time to time are authorised by you to access and control your Smartpay Customer Account; and
we are hereby permitted to discuss the details of your Smartpay Customer Account and disclose information about your account with your Authorised Signatories.

5.2 Initial and subsequent Authorised Signatories. The initial Authorised Signatories are the individuals nominated as such on and who sign the Application Form. Subject to clause 5.4 (Accessing your Smartpay Customer Account) below, you may add or remove an Authorised Signatory by notifying us in writing in such form as required by us from time to time. You must have at least one Authorised Signatory at all times.

5.3 You are responsible for Authorised Signatories. You must ensure that all Authorised Signatories comply with this Agreement, and you acknowledge and agree that you are responsible for all acts of Authorised Signatories and users of the Merchant Services Facility and of the Equipment and all acts and omissions and breaches by any such persons will be deemed to be your act, omission or breach (as the case requires).

5.4 Accessing your Smartpay Customer Account. If you have indicated on the Application Form that the “Administration Authority” is:

“any to sign”, then each Authorised Signatory is separately entitled to exercise your rights under this Agreement, in accordance with this Agreement.
“any two to sign”, then any combination of 2 (two) Authorised Signatories are jointly entitled to exercise your rights under this Agreement, in accordance with this Agreement.

Notwithstanding the foregoing, if you have nominated more than one Authorised Signatory at any time, then 2 (two) Authorised Signatories are required to authorise the following:

any addition or removal of an Authorised Signatory;
the closure of the Smartpay Merchant Service Facility; or
any change to your Smartpay Customer Account.

5.5 We can remove Authorised Signatories. We will remove an individual as an Authorised Signatory if we have been notified or we reasonably believe that they are deceased or mentally incapacitated, or that the individual is no longer authorised to act as an Authorised Signatory. We will not be liable to you or any other person as a result of such removal.

6. FEES

6.1 The Fees payable by you are included in your Application Form and in Item 6 (Fees) of Schedule 1 of this Agreement.

6.2 Fees will be debited. All Fees that are payable by or owed to you will be recorded in your Smartpay Customer Account and debited or credited (as required) to your applicable Linked Bank Account(s). See Schedule 4 (Smartpay Merchant Service Facility Terms) for more information about your funding requirements for your Linked Bank Accounts.

6.3 Fees. The following Fees apply subject to the conditions (if any) set out in Item 6 (Fees) of Schedule 1:

Merchant Service Fee. Merchant Service Fees, in consideration of your use of the Smartpay Merchant Service Facility. You acknowledge and agree that you have received a copy of our Fees with or within the Application Form. The Merchant Service Fee is calculated as a percentage or other value determined by Smartpay on the value of the Transactions. The relevant rates for each Transaction type and includes any Minimum Monthly Fee in clause 6.10 of Schedule 3 as set out in the Application Form We process and collect any Surcharge and we credit it against the Merchant Service Fees that we charge to you.
Equipment Fee. Equipment Fees, in consideration of your use of the Equipment.
Network Fee. Network Fees, in consideration for access to the Payment Network.
Early Termination Fee. Early Termination Fee in clause 16.5 of Schedule 3 for early termination of this Agreement.
Accessory Fee. Accessory Fee, in consideration of any consumables and/or accessories acquired by you for use with or in relation to any Equipment and any related costs (including postage/courier fees).
Kit Recovery Fee. A fee charged to replace any lost, stolen or damaged Equipment – as contemplated in clause 16.6(d) (Obligations on termination) of Schedule 3 and clauses 13.2 (Risk in Equipment) and 15.3(b) (Swap Outs) of Schedule 4.
Cost of Repairs As set out on our website https://www.smartpay.co.nz/repair-schedule/
Direct Debit Dishonor and Chargeback Fee. A fee for a direct debit failure or a chargeback for an invalid Transaction as set out in the Application From.

6.4 Changes to Fees. We may change our Fees (including introducing new Fees) from time to time by giving you at least 30 (thirty) days written notice and such change will become effective on the date set out in the notice. There is no maximum limit for the amount of Fees we may impose, however, we will only change our Fees to the extent permitted by, and subject to, any requirements of the law. If we change our Fees and you do not agree to the changes, then you may terminate this Agreement pursuant to clause 16.3 (Termination for cause by you) of Schedule 3. If you continue to use the Smartpay Merchant Service Facility or any other Services to which the Fee applies after the effective date of the change, then you will be deemed to have accepted the new Fee, and the right to terminate this Agreement under clause 16.3 (Termination for cause by you) of Schedule 3 will fall away in connection with the relevant increase in the Fees that was notified to you.

6.5 Repricing: We may change the Fees payable by you if any of the following occur:

the number of Card Present Transactions processed by you is less than 10% over the total number of estimated transactions stated in your Application Form that you process in any three months;
the percentage of International Cards you process by dollar value of Transactions exceeds 5% of the total dollar value of Transactions that you process in any three months;
your overall Card Not Present (MOTO) Transactions exceed more than 30% of total Transactions in any month, or
we consider it, in our sole discretion, or necessary following a general review of your overall Smartpay Merchant Facility or initial application.

If we determine to change the Fees payable in accordance with this clause 6.4, we will provide you with not less than thirty (30) days prior written notice of the new Fees commencing. If we change the Fees and you do not agree to the changes, then you may terminate this Agreement pursuant to clause 16.3 (Termination for cause by you) of Schedule 3. If you continue to use the Smartpay Merchant Facility or any other Services after the effective date of the change, then you will be deemed to have accepted the new Fees (and the right to terminate this Agreement under clause 16.3 of Schedule 3 will fall away in connection with the relevant increase in the Fees that was notified to you).

6.6 GST. Amounts in this agreement have the following applications of GST:

Merchant Service Fee -GST at 0%
Early Termination Fee – GST at 0%
Equipment Fee – Subject to GST at 15%
Accessory Fee – Subject to GST at 15%
Kit Recovery Fee – Subject to GST at 15%

6.7 Fee waiver and discretion to determine category. We may in our absolute discretion waive any or all Fees from time to time. In addition, we may in our absolute discretion (exercised reasonably) determine what category a Transaction falls within and we may amend the categories from time to time, which may affect the Fee applicable to a Transaction.

6.8 Government taxes and charges. For clarity, any government taxes or charges imposed on your Linked Bank Account or a Cardholder’s account (including amounts imposed on credits or debits to the account) are payable by you or the Cardholder respectively.

6.9 No set-off. You must pay all Fees (including GST where applicable) on the due date without set-off, deduction or counterclaim of any kind.

6.10 Minimum Monthly Fee. You must pay us the Minimum Monthly Fee (MMF) in any month in which the aggregate amount of the Merchant Service Fees payable by you to us in that month are less than the Minimum Monthly Fee. For the avoidance of doubt, if the aggregate Merchant Service Fees payable by you to us in any month are less than the Minimum Monthly Fee, then the Minimum Monthly Fee will be payable by you in lieu of the Merchant Service Fees that would otherwise be payable for that month. Minimum Monthly Fee will be charged as follows:

Either the full amount as stated in the Application Form; or
As a partial amount which has been discounted against Merchant Service Fees already collected for that month.

7. LINKED BANK ACCOUNT(S)

7.1 You must maintain a Linked Bank Account. For the Term plus at least 180 (one hundred and eighty) days after the expiry or termination of this Agreement, you must maintain at least 1 (one) verified and operational New Zealand bank account to which we can debit and credit funds due or owed by or to you pursuant to this Agreement (“Linked Bank Account”). This is an essential term of this Agreement and failure by you to maintain a Linked Bank Account in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 16.2 (Termination for cause by Smartpay) of Schedule 3. The name of the account holder of the Linked Bank Account must be identical to your name as Merchant. You may wish to have a separate Linked Bank Account for the debit/credit of Fees (the “Fee Account”) and a separate Linked Bank Account for the debit/credit of settlement sums (“Settlement Account”).

7.2 Initial Linked Bank Account and changing accounts. Your initial Linked Bank Account is the account nominated on the Application Form. You can change your Linked Bank Account by providing us with no less than 14 (fourteen) days’ notice in writing in such form as required by us from time to time.

7.3 Withhold payments for disputes. We may withhold or suspend payment of any amounts that would otherwise be payable to you until we have concluded reasonable investigations into any claimed Chargebacks or into the validity of any Transactions.

7.4 Must ensure sufficient funds in Linked Bank Account. You must ensure that, at all times, you have sufficient funds in the Linked Bank Account (or the Fee Account, if you choose to maintain a separate account for this purpose) to pay any Fees due on your Smartpay Customer Account and any other amounts payable to us under this Agreement. Notwithstanding the foregoing, you authorise us to debit your Linked Bank Account or the Fee Account (if applicable) for Fees and any other amounts owing to us under this Agreement even where such a debit would cause the Linked Bank Account to have a debt balance and to exceed any overdraft limit that may be in place.

7.5 Effect of insufficient funds in Linked Bank Account. Without prejudice to any other rights or remedies that we may have, if you do not have sufficient funds in your Linked Bank Account or Fee Account, as applicable, to pay the Fees (or any other amounts owing to us under this Agreement) at any time, we may immediately suspend the Smartpay Merchant Service Facility and interest at a rate equal to the Reserve Bank of New Zealand’s official cash rate plus 5% will accrue on a daily basis until the relevant funds (and any interest accrued under this clause) are able to be debited from your Linked Bank Account or Fee Account, if applicable, in full. In addition, you will indemnify us for any sums reasonably incurred by us (including legal costs) in respect of the collection of outstanding sums.

8. DIRECT DEBIT REQUEST SERVICE AGREEMENT

8.1 Direct Debit Request Service Agreement. This clause 8 (Direct Debit Request Service Agreement) constitutes your Direct Debit Service Agreement with Smartpay, with User ID and NZBN as provided in the Application Form, from time to time. By signing and submitting to us the Direct Debit Request, you authorise and direct us to debit funds from your Linked Bank Accounts. You must at all times maintain a valid Direct Debit Request for your Linked Bank Accounts. This is an essential term of this Agreement and failure by you to maintain a valid and current Direct Debit Request in accordance with this clause will give us the right to terminate this Agreement pursuant to clause 16.2 (Termination for cause by Smartpay) of Schedule 3.

8.2 Direct debit authority. You authorise and direct us to debit funds from your Linked Bank Accounts as follows:

all Fees payable by you under this Agreement (including those set out in clause 6.3 (Fees) and 6.9 (Minimum Monthly Fee) of Schedule 3);
in the circumstances referred to in clauses 6.5 (Counterparty does not pay us), 13.2 (Risk in Equipment) and 15.3 (Swap Outs) Schedule 4 (Smartpay Merchant Service Facility Terms);
any Scheme fines or penalties payable as a result of your breach of this Agreement or which we incur because of or contributed to by your acts or omissions;
Refunds presented by you;
any overpayments made by us;
amounts paid by us for Transactions where we are investigating the validity of the Transaction or a claimed Chargeback of the Transaction;
duties and taxes payable by you;
any deficiency in a payment disclosed in an audit or check by us;
Early Termination Fee as stated in clause 16.5 (Early Termination Fee);
Kit Recovery Fee as stated in clause 16.6 (Obligations on termination);
Network Connection Fee; and
any other amounts payable or owing by you to us under this Agreement.

8.3 When we will debit your account. Unless we agree otherwise (for example, in the case of a legitimately disputed invoice), we will debit your Linked Bank Account on the date that a payment is due or, if the due date is not a Business Day, we will debit your account on the next Business Day. The date that the charge will appear in your account will depend on the financial institution with which your account is held (“the Financial Institution”); you should contact the Financial Institution to confirm the exact date when the debit will appear in your account.

8.4 Changes to Direct Debit by us. You acknowledge and agree that we may vary the amount and frequency of debits made pursuant to the Direct Debit Request. We will provide you with written notice of any such variations by placing a notice on your monthly statement as soon as practicable and no less than 14 (fourteen) days before the changes have been implemented.

8.5 Your responsibilities. It is your responsibility to ensure that:

the Linked Bank Account details that you provide to us are accurate and correct and you should check the details against a recent statement from the Financial Institution;
if you have queries in connection with the Direct Debit Request, you should contact the Financial Institution before completing it;
the Linked Bank Accounts that you have nominated can accept direct debit payments (as direct debit may not be available on all accounts offered by financial institutions);
the Linked Bank Accounts have sufficient cleared funds available to enable the direct debits authorised by the Direct Debit Request to be made from time to time; and
the authority given to us pursuant to the Direct Debit Request is consistent with the account authority or signing instructions held by the Financial Institution in relation to the applicable account.

8.6 Failure of direct debit. If a direct debit fails or is rejected due to a problem for which you are responsible (for example, insufficient funds or incorrect account information):

we will attempt to repeat the direct debit transaction up to 3 (three) times in the following 2 (two) weeks and for each dishonour, we may charge you a Direct Debit Dishonor Fee and we may pass on any charges we incur as a result of a failed or rejected direct debit;
you may be charged a fee and/or interest by the Financial Institution and you are responsible for paying that fee and/or interest; and
if payment continues to be unsuccessful, you must make the payment by another method acceptable to us.

8.7 Privacy and disclosure. Our privacy policy and personal information handling practices (as set out in more detail in clause 10 (Information Collection and Disclosure) of Schedule 3) applies to all information that we collect about you pursuant to this Direct Debit Request Service Agreement and we will not disclose any details of your Direct Debit Request unless:

the disclosure is to a financial institution and is necessary to enable us to perform or otherwise exercise our rights and obligations pursuant to this Agreement; or
we are required or permitted by law to do so.

8.8 Errors and disputes. If you believe that there has been an error in the debiting of your Account, you should contact us as soon as possible calling us on 0800 476 278 or emailing us at merchantassist@smartpay.co.nz and we will investigate your request. If we conclude that your Account has been:

incorrectly debited, we will arrange for the relevant Financial Institution to adjust the relevant Account and we will notify you of the amount of the adjustment;
correctly debited, we will notify you accordingly together with our reasons and any evidence supporting our conclusion.

8.9 Cancellation or suspension of direct debit or Direct Debit Request by you. You may request us to stop a direct debit charge by giving us 14 (fourteen) days’ notice by calling us on 0800 476 278 or emailing us at merchantassist@smartpay.co.nz. You may defer, change, cancel or suspend a direct debit authority at any time by calling us on 0800 476 278 or emailing us at merchantassist@smartpay.co.nz If you cancel or suspend a direct debit authority you must at the same time nominate a new Linked Bank Account and execute a Direct Debit Request with respect to the new Linked Bank Account. You may also stop a direct debit charge or cancel a Direct Debit Request by contacting your Financial Institution.

8.10 Authorisation after termination. Subject to clause 8.9 (Cancellation or suspension of Direct Debit Request by you) above, you agree that despite any expiry or termination of this Agreement, the authority you give to us pursuant to clause 8.2 (Direct debit authority) above continues to the extent of (and the authority continues to apply in respect of) any monies that you still owe to us at or after the expiry or termination of this Agreement (including, for example, the Kit Recovery Fee of any Devices not returned to us in accordance with clause 16.6 (Obligations on Termination) of Schedule 3).

9. CHANGES TO YOUR DETAILS

9.1 You must notify us of changes. You must immediately notify us in writing of changes to any of the following:

any of your contact details (including email, phone number, registered address and trading address) set out in Schedule 1 or the Application Form;
your business or company name;
your Authorised Signatories;
your Linked Bank Account(s);
the nature of your Business; or
any other circumstances that may affect your ability to meet your liabilities or obligations under this Agreement as and when they fall due, together with any evidence that we request to support the change that you have requested. We may, in our sole and absolute discretion, reassess your Smartpay Customer Account and your access to and use of the Smartpay Merchant Service Facility and the Services as a result of any such changes and we may make such changes to your Smartpay Customer Account and/or your access to and use of the Smartpay Merchant Service Facility and Services as we consider necessary.

9.2 Notice of change of control. You must give us at least 5 (five) Business Days’ notice prior to the effective date of any change in the ownership, shareholding or control or your business.

9.3 Notice of change of residency. You must notify us of any change (from that notified to us at the time of completing the Application Form) to the residency of any controlling person/more than 25% beneficial owner on your Smartpay Customer Account within 30 (thirty) days of the effective date of the change.

9.4 Notification of changes to you. We may notify you of any changes processed by us pursuant to this clause 9 and we reserve the right to suspend or discontinue providing you with such notifications at any time at our discretion.

9.5 When changes come into effect. If you request us to make changes to your Smartpay Customer Account pursuant to this clause 9, then, other than a change in ownership and changes related to your Linked Bank Account, such changes will become effective 72 (seventy-two) hours after we are notified of the change. A change that relates to your Linked Bank Account will become effective on the later of:

(a) 72 (seventy-two) hours after we are notified of the change: and

(b) the date on which you execute and submit to us a new Direct Debit Request (if applicable).

10. INFORMATION COLLECTION AND DISCLOSURE

10.1 Privacy Policy. We will collect, use, maintain and disclose personal information about you and your Authorised Signatories in accordance with our Privacy Policy from time to time. Our Privacy Policy is incorporated by reference into this Agreement and you confirm that you have received and have read our privacy policy. You also confirm that you have read and agree to the Personal Information Collection Statement set out in the Application Form. More information is available at https://www.smartpay.co.nz/privacy-policy/

10.2 We may collect information about you. Without limiting clause 10.1 (Privacy Policy) above, you acknowledge and agree that we may obtain from any Card issuer, operator of a Scheme, Scheme member or credit checking agency, information about you for any purpose relating to the operation of the Scheme or otherwise in relation to your access and use of the Smartpay Merchant Service Facility or the Services.

10.3 You authorise us to collect information. Without limiting clause 10.1 (Privacy Policy) above, you hereby authorise us to obtain from any Scheme and credit checking agency, information relating to facilities you obtained or are obtaining from other suppliers and any other information (including financial information) applicable to you and your access and use of the Smartpay Merchant Service Facility and Services. We use this information including personal information and information about you collected from third parties, for the following purposes:

to assess and process your application for Services that we supply under this Agreement;
to administer and manage the Services that we supply under this Agreement; and
to facilitate our internal business operations, including fulfilling any legal or commercial requirements and systems maintenance and testing.

10.4 We may disclose information about you. Without limiting clause 10.1 (Privacy Policy) above, you acknowledge and agree that we may disclose information about you that we collect from the Application Form or in the course of the conduct of the Smartpay Merchant Service Facility to:

any person who is a Card issuer, Scheme operator, Scheme member or credit checking agency, or any public servants responsible for maintaining order, enforcing laws, investigating crimes, and protecting the public or for any purpose relating to the operation of those Schemes; and
preferred providers who we work with to provide the Services including, without limitation, Paymark Limited and Cuscal Payments NZ Limited.

This information may include information about terminating facilities made available to you and the reasons for that termination. Another service provider may use this information (amongst other things) to determine whether or not to make their facilities available to you.

11. PERSONAL PROPERTY SECURITIES REGISTER

11.1 The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.

11.2 The Merchant hereby acknowledges and agrees:

that this Agreement is a Security Agreement for the purposes of the PPSA;
that to secure the payment of the Fees and the return of the Equipment under this Agreement the Merchant charges in favour of Smartpay (as a Secured Party) all its right title and interest in, to, under or derived from (“Security Interest”) all of the collateral (“Collateral”), being the Equipment and all other equipment, parts, fittings and Accessories provided by Smartpay to the Merchant from time to time under or in connection with this Agreement, and all Proceeds therefrom, until such time as the Merchant has discharged its obligations in respect of the Fees and Equipment, under this Agreement, in full;
that the Merchant has not agreed that the Security Interest will attach at a later time;
Smartpay will continue to hold a Security Interest in the Collateral in accordance with and subject to the PPSA, notwithstanding that the Collateral may be processed, commingled or become an accession with other goods;
any Smartpay Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all other registered or unregistered Security Interests;
in addition to any other rights under these terms and conditions or otherwise arising, if the Merchant is in default of any of the payments owing under this Agreement, Smartpay may exercise any and all remedies afforded to it as a Secured Party, including where applicable, without limitation, entry into any building or premises owned, occupied or used by you, to search for and seize, repossess, dispose of or retain the Collateral in order to satisfy any outstanding liability owed by the Merchant, even if Smartpay does not have priority over other persons having security interest in the goods. Smartpay will not be responsible for any costs or losses arising from this; and
Smartpay has the power to appropriate payments to such goods and accounts as it thinks fit notwithstanding any appropriation by the Merchant to the contrary.

11.3 The Merchant must:

sign all documents and provide such information which Smartpay may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR and to ensure that the Security Interest constitutes a perfected first ranking security interest in the Collateral under the PPSA;
indemnify and upon demand reimburse Smartpay for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Security Interests;
not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Smartpay;
not permit anything or any act which may adversely affect Smartpay’s Security Interest
not do any of the following without the prior express written consent of Smartpay (which will not be unreasonably withheld):
1. change its name, address, principal place of business, contact numbers, business practice or such other change in the Merchant’s details registered on the PPSR;
2. deal in any way with this Security Agreement, or allow any interest in it to arise or be varied;
3. sell, assign, part with possession of, or otherwise dispose of the Collateral or move any of the Collateral outside New Zealand;
4. give control of the Collateral to another person;
5. allow a set-off or combination of accounts;
6. change the nature of the Collateral;
7. abandon, settle, compromise, or discontinue or become nonsuited in respect of any proceedings against any person in respect of any of Smartpay’s rights in connection with the Collateral;
8. exercise or waive any of Smartpay‘s rights or release any person from its obligations in connection with the Collateral;
9. allow any personal property to become an accession to, or commingled with, any property that is not Collateral; and
10. sell or part with its business or substantially alter the nature of its business from that which is carried on as at the date the Collateral was supplied.
the parties agree that sections 114(1)(a) and 133 of the PPSA will not apply to the Security Agreement created under this Agreement;
the Merchant hereby waives its rights under sections s116, 119, 120(2), 121, 125, 126, 127, 128, 129 and 131 of the PPSA;
unless otherwise agreed in writing by Smartpay, the Merchant waives its right to receive a verification statement in accordance with section 148 of the PPSA; and
the Merchant shall unconditionally ratify any actions taken by Smartpay pursuant to this clause 11.

11.4 This clause 11 will apply to the maximum extent as allowed and permitted by applicable law. Where Smartpay has rights in addition to those set out in Part 9 of the PPSA, those rights will continue to apply.

12. REPRESENTATIONS AND WARRANTIES

12.1 No warranty. The Services are provided on an “as is” basis. Some or all of the Services may be provided by third party providers. To the maximum extent permitted by law, Smartpay makes no warranty that the Services (or any part of them) will be error-free or will run without interruption, or any other warranty regarding the performance of the Services.

12.2 Mutual representations and warranties. Each party represents and warrants to the other that:

it has the right and capacity to enter into this Agreement;
the person who enters into this Agreement on the party’s behalf is properly authorised to do so; and
this Agreement will be legally binding on it.

Should the person(s) signing this Agreement (or the Application Form) on behalf of the Merchant not be authorised to do so then they agree to accept full responsibility for all of the Merchant’s obligations under this Agreement on a personal basis.

13. DISPUTE RESOLUTION

13.1 Step 1: notice of concern or dispute. If you have any concern or a dispute (including in relation to billing) in connection with the Smartpay Merchant Service Facility or otherwise in connection with this Agreement, please contact us at merchantassist@smartpay.co.nz and provide us with the details of your concern or dispute. We will attempt to resolve your concern or dispute as soon as possible in accordance with this clause 13 (Dispute Resolution) of Schedule 3. Note that this procedure does not apply in relation to reporting unauthorised transactions on your Account.

13.2 Step 2: mediation. We will use our best endeavours to resolve your concern or dispute. We will notify you in writing of the outcome of our investigations, including how we propose to resolve your concern or dispute. However, if you are not satisfied with how we handled your concern or dispute, you may, by notice in writing to us, elect to have your dispute mediated. The mediator will be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the Chair of the Resolution Institute New Zealand. The parties will abide by the mediation rules of the Resolution Institute (New Zealand) in seeking to resolve the dispute by mediation.

13.3 Step 3: arbitration. If the dispute is not resolved within 4 (four) weeks (or such other period as the parties agree) of the appointment of the mediator or if either party does not wish to have the dispute mediated, then either party may refer the dispute to the Chair of the Resolution Institute (New Zealand) for the appointment of a graded arbitrator who will arbitrate the matter in accordance with the Arbitration Act 1996. Unless the parties agree otherwise, the place of arbitration will be Auckland, New Zealand. The outcome of the arbitration will bind the parties.

14. LIABILITY AND INDEMNITY

14.1 You are not a Consumer. You acknowledge and agree (and it is an essential condition of this Agreement the breach of which will give us the right to terminate this Agreement pursuant to clause 16.2 (Termination for cause by Smartpay) of Schedule 3) that you are in trade, are not a consumer (as defined in the CGA) and are acquiring the Equipment and the Smartpay Merchant Service Facility for business purposes only. You agree that the CGA will not apply to this Agreement or the Services, Equipment or Merchant Service Facility provided by Smartpay and the CGA is expressly contracted out of. You agree that this is fair and reasonable.

14.2 Your liability and indemnity. Except to the extent caused or contributed to by us, you agree to indemnify and keep indemnified, Smartpay from and against any liability, actions, claims, demands, damages, costs and expenses incurred or suffered by Smartpay arising from:

a breach of this Agreement by you (including your Authorised Signatories, directors, officers and employees);
any fraud or negligence by you (including your Authorised Signatories, directors, officers, employees and any other person who accesses the Devices or uses the Services); and
any claims made by a third party (including any customer of yours) in connection with the Merchant Service Facility.

14.3 Disclaimer and exclusions. To the maximum extent permitted by law:

Smartpay gives no condition, warranty or representation as to ownership, description, condition, merchantability, suitability or fitness (for a particular or any purpose) of the Equipment, the Software or of the Smartpay Merchant Service Facility and no such term, condition or warranty will be implied. It is up to you to satisfy yourself that the Equipment and the Smartpay Services are suitable for your needs;
all terms (whether express, implied, oral or otherwise) not expressly stated in this Agreement are excluded;
all protections and rights afforded to you under the Consumer Law are expressly contracted out of and excluded to the maximum extent that they can be contracted out of and excluded in connection with this Agreement and the provision of the Equipment, the Software and the Smartpay Services;
Smartpay will not be liable to you for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation or goodwill or any indirect or consequential loss arising in connection with this Agreement; and
Smartpay will not be liable to you for any act or omission of any operator or member of any Scheme or any other third-party service provider (such as Paymark Limited and Cuscal Payments NZ Limited) involved in the performance of the Services. For the avoidance of doubt, nothing in this clause limits Smartpay’s liability for any act or omission of any person to whom Smartpay subcontracts performance of any part of the Services.

14.4 Limitation of liability. To the maximum extent permitted by law, any liability of Smartpay to you with respect to the Equipment, the Software, the Smartpay Services and otherwise in connection with this Agreement shall arise in accordance with this Agreement only and shall be limited to the lower of:

$1,000 (one thousand dollars); or
the replacement of the Equipment, resupply of the Software or service, payment of the cost of the supply of replacement Equipment or acquiring equivalent equipment, or cost of having services supplied again, at the sole and absolute discretion of Smartpay and otherwise in accordance with this Agreement. Without limiting the foregoing, where Equipment has been purchased, Smartpay offers a limited warranty, as set out in the additional warranty terms supplied with the Equipment and you acknowledge that you have received and have read those warranty terms.

14.5 Limitations are subject to law. Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any law, including the Consumer Law (to the extent that the same cannot be excluded, restricted or modified). Limitations and exclusions are made only to the extent that Smartpay may legally do so.

15. SUSPENSION AND AUDITS

15.1 We may suspend the Smartpay Merchant Service Facility or any part of it without notice if we consider (in our reasonable opinion) that we or another party could suffer a loss or be subject to fraud if we continue to supply the Merchant Service Facility or the Services. We may also suspend the Smartpay Merchant Service Facility (or any part thereof) if requested to do so by any third party involved in the performance of the Services such as a Scheme operator or member, Paymark Limited or Cuscal Payments NZ Limited. We will inform you as soon as practicable after suspension is effected. During any suspension, you must not submit Transactions for processing and we will not process any Transactions that you submit. We will not be liable for any loss or damage suffered by you or any other party as a result of a suspension effected under this clause.

15.2 If any Scheme operator or member or any bank requires an assurance audit to be conducted or otherwise wishes to investigate any fraud or other compromise event, then you must fully co-operate with any such audit or investigation.

16. TERMINATION

16.1 Termination of a Service or Agreement. If no Initial Term is stated in the Application Form, either party may terminate a Service or this Agreement at any time by giving the other the amount of notice set out in Item 5 (Termination Notice) of Schedule 1. If a Service is terminated, this Agreement ceases to apply in relation to the terminated Service. If an Initial Term is stated in the Application Form then this Agreement can only be terminated under clauses 16.2 to 16.4 below or pursuant to any other express right of termination set out in this Agreement.

16.2 Termination for cause by Smartpay. We may terminate this Agreement immediately by notice in writing if:

you breach clause 7.1 (You must maintain a Linked Bank Account) of Schedule 3, clause 8.1 (Direct Debit Request Service Agreement) of Schedule 3 or clause 3.2(b)(ii) (What you must do) of Schedule 4, and you fail to remedy the breach within 7 (seven) days of written notice from us;
you breach clause 14.1 (You are not a Consumer) of Schedule 3;
we discover a false statement or omission made by you in this Agreement or the Application Form; or
we are directed to terminate this Agreement by the principal acquirer from whom we may acquire some of the Services, a Scheme operator, Scheme member or Paymark Limited. This may occur, for example, where excessive multiple Chargebacks are processed to your account; you change your business and the industry category into which your business resides; multiple fraudulent transactions are processed to your account or any other matter that may put us, the principal acquirer, a Scheme operator or a Scheme member or Paymark Limited into disrepute, breach of contract, breach of Scheme rules, or may cause us or them to suffer loss.

16.3 Termination for cause by you. You may terminate this Agreement by 30 (thirty) days written notice to us if we change the Fees pursuant to clause 6.4 (Changes to Fees) or pursuant to clause 6.5 (Repricing) of Schedule 3. If you terminate this Agreement under this clause 16.5 the Early Termination Fee will not be payable.

16.4 Termination for cause by either party. In addition to and without prejudice to or limiting any other rights and remedies available to a party at law or in equity, either party may, by written notice to the other party, terminate this Agreement with immediate effect:

Fraud. If the party reasonably believes that any person is committing fraud in connection with this Agreement or any of the Services;
Breach of Agreement. If the other party is in breach of a clause of this Agreement and such breach is incapable of remedy, or has not been remedied within 7 (seven) days of receipt by that other party of written notice specifying the breach and requiring that it be remedied; or
Insolvency and other similar events. If the other party is declared insolvent; makes, or attempts to make, any arrangement for the benefit of creditors; is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of a solvent amalgamation or reconstruction); a receiver or manager of the other party is appointed, or an order is made or resolution passed for the liquidation of the other party (other than for the purposes of a solvent amalgamation or reconstruction), or in the event any similar action or proceeding is instituted relating to any of the foregoing and the same is not dismissed within fourteen (14) calendar days.

16.5 Early Termination Fee. If this Agreement has a fixed term and during the Initial Term or during any Renewal Term we terminate this Agreement pursuant to clause 16.2 (Termination for cause by Smartpay) or clause 16.4 (Termination for cause by either party) above, then

Smartpay may charge an early termination fee based on the following criteria:

amount up to $500 (five hundred dollars) for termination under 18 (eighteen) months remaining on the Agreement per Terminal ID; or
amount up to $1000 (one thousand dollars) for termination greater than 18 (eighteen) months remaining on the Agreement per Terminal ID.

16.6 Obligations on termination. Upon termination of this Agreement:

your right to use the Merchant Service Facility immediately ceases and the licences granted under this Agreement terminate;
you must return to us all Devices and all guides, stationary and promotional material supplied to you by us;
all monies owed to us must be paid in accordance with the terms of this Agreement; and
without limiting paragraph (c), if the Equipment is not returned to us undamaged within 30 (thirty) days of the effective date of termination, we will debit the Kit Recovery Fee from your Linked Bank Account. Smartpay may collect that amount as either a one-off amount or in multiple payments until that amount is recovered.

16.7 No effect on other duties. Except as otherwise provided herein, termination of this Agreement for any reason shall not relieve or discharge either party from any duty, obligation or liability hereunder which was accrued as of the date of termination and shall not limit either party’s other rights at law in connection with any breach of this Agreement (except to the extent that those rights are excluded under this Agreement).

17. FORCE MAJEURE

17.1 Neither party will be liable to the other for any failure or delay to perform its obligations under this Agreement where such failure or delay is caused by events beyond its reasonable control, including pandemics, epidemics, quarantine, biological contamination, entry and exit restrictions, industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, failure of third party services providers (including the acquirer on record with respect to the Services) (“Force Majeure”). However, the foregoing does not apply if the Force Majeure event is caused by a breach of this Agreement by the non-performing party.

18. NOTICES

18.1 Notice to be in writing. Every notice, statement or other communication required or permitted to be served (“Notice”) by any party (“Sender”) on another party (“Recipient”) pursuant to this Agreement must be in writing.

18.2 When notices are effective. Subject to clause 18.1 above, a Notice will be deemed to have been effectively served:

if sent by prepaid post to the Recipient at the address of the Recipient as set out at the beginning of this Agreement or on the Application Form, on the fourth Business Day following the date of postage by the Sender;
if hand delivered, on the date of delivery to the Recipient’s address as set out at the beginning of this Agreement or on the Application Form unless such delivery occurs after 5.00pm (New Zealand time) or at any time on a day which is not a Business Day, in which case the Notice will be deemed to have been effectively served on the next Business Day; or
if transmitted by email to a party’s email address as set out at the beginning of this Agreement or on the Application Form and a correct and complete transmission report is received by the Sender, on the day of transmission if a Business Day, or otherwise on the next Business Day (but only if no intimation has been received by the Sender that the notice has not been received, whether that intimation comes from the party to whom the notice is addressed or from the operation of an email system or otherwise).

18.3 Changes to details. A party may change its details for notices by written notice to the other party.

19. GENERAL

19.1 Entire agreement. This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

19.2 Severability. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under any applicable law, that term or provision will be severed from this Agreement, and the remaining terms and conditions will be unaffected.

19.3 Survival. Clauses 10 (Information Collection and Disclosure) of Schedule 3, 12 (Representations and Warranties) of Schedule 3, 14 (Liability and Indemnity) of Schedule 3 and clause 16 (Software and Intellectual Property) of Schedule 4, together with any other clauses which contemplate that a party has any rights or obligations after the end of this Agreement, survive the expiry or termination of this Agreement.

19.4 Set-off. We may from time to time set-off any amount due for payment by you to us against any amount due for payment by us to you.

19.5 Assignment. You may not assign any of your rights under this Agreement (except to a related body corporate as part of a corporate restructure provided that prior written notice is given to Smartpay of such assignment) without our prior written consent. If we grant such consent we may charge a reasonable administrative fee for the assignment. We may at any time assign or otherwise transfer to any party all or any part of our rights and obligations under this Agreement and in that event the assignee or transferee will have the same rights against you as it would have had if it had been a party to this Agreement. We may disclose to a potential assignee or to any person who may otherwise enter into contractual relations with us in relation to this Agreement, such information about you (and your directors and owners) as may reasonably be required by such third party in connection with the proposed assignment or the provision of the services.

19.6 Rights not prejudiced. The rights and obligations expressed in this Agreement shall not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession to you or any other person whomsoever by us or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any of our rights or by any omission or neglect or any other dealing matter or thing which but for this clause could or might operate to abrogate, prejudice or affect our rights or your obligations under this Agreement.

19.7 Counterparts and electronic execution. This Agreement may be executed in multiple counterparts, each of which shall have the effect of an original and all of those counterparts taken together constitute one and the same instrument. To facilitate execution, the Parties agree that this Agreement may be executed through the use of email transmission in portable document format (PDF) or other electronic mechanism, and a counterpart of this Agreement that contains the electronic signature of a Party, which counterpart has been transmitted by email or other electronic transmission to the other Party, shall constitute an executed counterpart of this Agreement.

19.8 Confidentiality. This Agreement is confidential and all information in relation to it, including the Device, Smartpay Merchant Service Facility, pricing and other commercially sensitive information, is strictly private and confidential. You will not divulge any such information (including after termination or expiry is this Agreement) to any third party or use any such information for your own advantage, unless:

the information becomes public knowledge otherwise than by breach of this Agreement by you;
you are required by law to make the disclosure; or
we have consented in writing to the disclosure.

19.9 Changes to this Agreement. Smartpay may immediately vary this Agreement if required by, or in order to comply with, any law, or in connection with, or as a result of, any changes to any laws, provided that Smartpay provides you with written notice of such variations as soon as is reasonably practicable after making the variation. Notwithstanding the foregoing, we may (subject to law) change the terms of this Agreement at our absolute discretion by giving you written notice in accordance with this Agreement. We will provide you with at least 30 (thirty) days’ notice if we introduce or increase a Fee (other than a government charge or fee payable to a Scheme) and your continued use of the Smartpay Merchant Service Facility will be deemed to be your acceptance of such changes. For any other changes (including changes in interest rates and standard fees and charges) we will notify you as soon as reasonably practicable. Where required by law, we will notify you about any new or changes to a government charge in accordance with the applicable law. You will be deemed to be bound by any updates or variations to this Agreement once the same have been notified to you.

19.10 Governing law and jurisdiction. This Agreement is governed by, shall be and construed in accordance with the laws of New Zealand. Subject to, and without limiting, clause 13 (Dispute Resolution) of Schedule 3, the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

SCHEDULE 4 – SMARTPAY MERCHANT SERVICE FACILITY TERMS

1. IMPORTANT INFORMATION

1.1 In addition to the terms of this Agreement, you must comply with:

the User Guide;
any requirements that a Scheme, Cuscal Payments NZ Limited or Paymark Limited imposes on us that relate to the Smartpay Merchant Service Facility and that we notify you of;
any reasonable directions given by us; and
all applicable laws.

2. SERVICE WARRANTY

2.1 Service Warranty. We warrant that:

Smartpay Services provided to you will be performed with reasonable care and skill. To the maximum extent permitted by law, we provide no other warranties in relation to the Equipment, the Software or the Smartpay Merchant Service Facilty and we are not liable for any:
1. damage to the Equipment due to a dysfunction of any network on which the Equipment is used that is out of our reasonable control (including any failure on the part of the principal acquirer from whom we may obtain some or all of the Services from time to time) or the Communications Service; or
2. delay in the installation or provision of the Merchant Service Facility, or any loss you incur if the Merchant Service Facility is not working or you are unable to process Transactions.
at the date of delivery, the Equipment is of merchantable quality and is fit for the purpose for which it is supplied.

3. TRANSACTIONS

3.1 Use of the Smartpay Merchant Service Facility. You must only process Transactions and use the Smartpay Merchant Service Facility in furtherance of the Business activities specified in your Application Form. You must obtain our prior written consent before processing Transactions for or using your Smartpay Merchant Service Facility for any other business or for any non-business activities.

3.2 What you must do. You must:

not make any warranty or representation to a Cardholder regarding us or on our behalf;
if you are passing on a surcharge to end customers:
1. clearly and prominently display that a surcharge applies at the point of sale in a manner that enables the Cardholder to choose whether or not to proceed with the Transaction; and
2. only charge a surcharge that reasonably reflects your cost of accepting Transactions (as that concept is defined under surcharging laws and regulations) and not cross-subsidise across Schemes. This is an essential term of this Agreement.
subject to the balance available in your Smartpay Customer Account on a particular day, when processing a Refund also refund any surcharge charged to the Cardholder in the original Transaction. In the case of a partial Refund, refund a pro-rated part of the surcharge;
establish and maintain a fair policy for giving refunds or exchanging goods or services which complies with all applicable laws and to give refunds by means of a Refund and not cash;
not process any Transaction using your own Card or any Card of your Associates;
process refunds only on purchase transactions that have occurred. If you process a refund not on the actual purchase transaction, we reserve the right to cancel your Smartpay Customer Account;
not accept payments on behalf of another person or business;
not hold a Cardholder’s PIN or passcode;
comply with any monetary limits or limits on the number of daily Transactions imposed on a Cardholder by a Card issuer.

3.3 Participation in Schemes. The Devices will be programmed to accept all Card Transactions which they are able to accept. If you do not wish to participate in any particular Scheme you must contact us and complete and return any forms we request to enable us to disable the functionality for those Schemes.

3.4 Separate agreement with Schemes. You may be required to have a separate agreement with some Scheme operators and Paymark Limited T/A Worldline NZ. In such cases, our only obligation in relation to a Transaction is to transmit the particulars of the Transaction to the Scheme operator or Paymark Limited T/A Worldline NZ. We have no liability to any person in relation to the operation or effectiveness of those Schemes or of Paymark Limited T/A Worldline NZ.

3.5 Your merchant number. Upon request, you must inform us of your merchant number for all Schemes in which you participate.

3.6 You accept Cards at your risk. We make no representations and give no assurances whatsoever in relation to the credit worthiness of any person presenting a Card or whether a Card has sufficient funds. To the maximum extent permitted by law, you waive any right which you may have against us by reason of any inferred representation or assurance from us processing a Transaction. You accept a Card and you process the Card at your sole risk.

3.7 Transaction data is conclusive. The Transaction data produced by the Device is correct and conclusive except in the case of manifest error. We are not liable for any error, delay, malfunction or failure caused or contributed to or initiated by your integrated point-of-sale software.

3.8 You must notify us of malfunctions. You must promptly notify us of any malfunction or error in connection with the Merchant Service Facility, the Payment Network or the Communications Service.

3.9 Your representations and warranties. You represent and warrant to us that in respect of each Transaction that you process or that is processed on your behalf:

all information given to us in respect of that Transaction is true and correct;
the Transaction is valid; and
the sale in respect of the Transaction is not subject to any dispute, set-off or counterclaim.

3.10 Transaction Value Reports. If a Referral Partner has referred you to us, you acknowledge and agree that we may disclose Transaction Value Reports to that Referral Partner for the purposes of confirming the value of the referral. You acknowledge and agree that, while we will have an agreement that obliges the Referral Partner to only use the Transaction Value Reports for this purpose, we are not responsible in any way for how the Referral Partner uses the Transaction Value Reports.

4. SECURITY

4.1 Your obligations. You must:

not disclose (except to us or as required by law) or obtain a Cardholder’s name or Card details to or from any person, except where that information has been lawfully collected by you in the course of processing a Transaction;
comply with the User Guide and other security requirements published on the Smartpay Website or otherwise notified by us to you from time to time;
comply with the prevailing Payment Card Industry Data Security Standards (for more information see www.pcisecuritystandards.org) or any Scheme security requirements from time to time;
permit us or our nominee reasonable access to inspect your computer systems (including POS systems) to conduct an investigation on whether there has been a security breach and/or data compromise;
use reasonable care to detect forged or unauthorised signatures or the unauthorised use of a Card; and
use reasonable care to prevent the use of a Card as an instrument in money laundering or other criminal activities.

4.2 PCI Security, Your obligations. You must:

Comply with the Payment Card Industry Data Security Standard (PCI DSS) or any Card Scheme security requirements from time to time;
Provide, on request by us, evidence to our satisfaction of your compliance with PCI DSS and any other information that we may reasonably request in connection with this Agreement;
Not collect or store any Cardholder Data or any sensitive account information without our consent;
Keep all systems and media containing transaction information (physical or otherwise, including but not limited to Card imprints and sales vouchers) in a secure manner in line with industry best practice, PCI DSS and Card Scheme data security program or requirements in order to prevent access by or disclosure to anyone other than as permitted. You must destroy all such media if it is no longer necessary or, as appropriate store the same in a manner that will render the data unreadable;
Not sell, purchase, provide or exchange any Cardholder information obtained because of a transaction to any third party;
Permit us or our nominee, the Card Schemes or any relevant provider of switching services in connection with the Transactions, or any of their respective employees, contractors or agents, access to your premises at any time during normal trading hours to audit compliance with this Agreement. We will provide at least 2 (two) business days’ notice before accessing your premises, unless we consider it appropriate in our sole discretion not to provide notice in the circumstances. If we require you to make changes to comply with PCI DSS or the requirements of the Card Schemes or any switching provider, any such changes will be at your expense;
Complete relevant annual reporting, including (where appropriate) a Report on Compliance, Self-Assessment Questionnaire and/or an Attestation of Compliance with PCI DSS;
Continue to comply with the PCI DSS following termination or cancellation of this Agreement in respect of any Cardholder Data held by you;

4.3 Responsibility for Account Data. You acknowledge that you are responsible for the security of Account Data (as defined under PCI DSS) that you possess or otherwise store, process, or transmit on behalf of us, and if you fail to comply with your obligations under the PCI DSS, this could impact the security of our system and data environment and place us in breach of our obligations (including under PCI DSS).

4.4 Indemnity. Without limiting any other rights that we have in this Agreement, you are liable for (and indemnify us for) any loss, damages, fees or other costs whatsoever suffered by us as a result of unauthorised access to Cardholder Data or for any breach of clauses 4.1 (Your obligations) or 4.2 (PCI Security, Your obligations) above by you.

5. RECORDS AND STATEMENTS

5.1 What you must do. You must:

keep all Receipts produced by the Device, your books of account and records of all Transactions (both sales Transactions and Refunds) as required by law;
provide us with all Receipts and other records in connection with Transactions as requested by us; and
permit us or our nominee to inspect Receipts, your books of account and records of all Transactions (both sales Transactions and Refunds) on request.

5.2 Statements. We will make available to you each month a statement showing the amount of all Transactions processed by us for you and your cost of acceptance (being the fees that we charge to you) during the previous month. It is your obligation to check the statement to ensure the accuracy of the Surcharge and the payments made to the Settlement Account and from the Fee Account. You may dispute a Transaction by following the procedure set out in clause 13 (Dispute Resolution) of Schedule 3.

6. SETTLEMENT

6.1 Settlement to Linked Bank Account. Subject to this Agreement, we will credit settlement sums to your applicable Linked Bank Account.

6.2 Timing of settlement. Subject to the remainder of this clause 6, we will:

accept all Valid Transactions made by you; and
credit your applicable Linked Bank Account with the proceeds of all Valid Transactions, within the following timeframes:
1. no later than 2 (two) Business Days; 3 (three) in the case of international Card Transactions (or, in each case, such other timeframe as may be required from time to time) following the date the Transaction is processed by a Device as long as settlement of all your Devices has taken place either by a manual settlement initiated by you, or an automated settlement initiated by our systems, prior to 5.00am (New Zealand time); or
2. as soon as practicable in any other case.

6.3 Availability of funds in your Linked Bank Account. Notwithstanding when we credit your Linked Bank Account, the Financial Institution with whom your Linked Bank Account is held will determine when it makes the payment available as disposable funds in your Linked Bank Account. This may vary from institution to institution.

6.4 Delay by counterparties. If there is any delay by our counterparties in respect of the processing of a Transaction, we may delay settlement to you until that counterparty fulfils its obligations. We reserve the right to delay the payment instruction in respect of any Transaction until we receive payment in respect of that Transaction.

6.5 Counterparty does not pay us. If our counterparty in respect of a Transaction fails to make a payment to us and we have already credited the Linked Bank Account, you must immediately repay to us the amount so credited. Without limiting any other recourse we may have, you authorise us to debit the relevant amount from your Linked Bank Account.

6.6 Processed Transactions may be disputed and charged back. You acknowledge and agree that the authorisation, processing and settlement of a Transaction by us is not a representation by us that the Transaction is a Valid Transaction. The Transaction may be subject to dispute or a Chargeback.

6.7 Invalid Transactions. Without limitation, a Transaction will not be valid and will therefore not be processed (“Invalid Transaction”) if:

it or the circumstances giving rise to it are illegal under New Zealand or international laws or Scheme rules or requirements;
the authority provided in respect of the Transaction is forged; the rightful Cardholder did not authorise the Transaction or the use of the Card, or the Transaction is not signed where a signature is required;
the Card is not current at the time of the Transaction (including, for example, where the Card has been lost, stolen or is otherwise rejected);
the Transaction is not in connection with the provision of goods or services between you and the Cardholder;
the Transaction is not in connection with the provision of goods or services to a genuine customer as part of your Business;
it represents a transfer solely of funds rather than the supply of goods or services (e.g. a remittance of funds with no exchange of goods or services);
it is a Refund and no corresponding sales Transaction exists for the Card on which the Refund is made or purported to be made;
it is made in payment of wages or salary;
a sales transaction is split into 2 (two) or more Transactions;
you do not comply with your obligations under this Agreement, the User Guide or any other direction by us in relation to the Transaction; or
we otherwise reasonably believe that the Transaction should not be processed.

7. REFUNDS

7.1 Ensure sufficient account funds. You must ensure you have sufficient funds in your Smartpay Customer Account (i.e. your Linked Bank Accounts) to meet your Refund obligations for all Refunds that you process.

7.2 Limit on Refunds. We may, in our sole and absolute discretion, limit the number of Refunds processed to the periodic aggregate funds that are processed by you through your Smartpay Customer Account.

7.3 Refund password. Each Merchant Service Facility comes with a refund password as a security measure. You are responsible for maintaining the confidentiality of the password and you must not share the password with any other party. You are responsible for all activities that occur under the password. You must immediately notify us at merchantassist@smartpay.co.nz of any unauthorised use of your password.

8. CHARGEBACKS

8.1 Chargebacks. We may refuse to accept, or having accepted, may charge back (a “Chargeback”), any Transaction if:

we, in our sole and absolute discretion, consider that the Transaction is an Invalid Transaction;
we reasonably believe that you have not performed all obligations to a Cardholder (including providing any goods or services) in respect of the applicable Transaction;
the Transaction is illegal;
the Cardholder disputes all or any part of its liability for any reason; or
the Card was not valid at the time of the Transaction.

9. MERCHANT SURCHARGES

9.1 Surcharge. If you have enabled surcharging, then in respect of all Transactions processed by you, an amount equal to the surcharge will be charged in addition to the price of the goods and services. This amount is referred to as a “Surcharge”. We process and collect the Surcharge and we credit it against the fees that we charge to you. The amount of all surcharges will form part of your total revenue and you must account for the same accordingly.

10. PROMOTIONAL MATERIAL

10.1 We will supply promotional material. We will supply you with decals and insignias for the Cards that are accepted by the Smartpay Merchant Service Facility. We may supply you with other promotional material at our discretion. You may not use or display our Marks except in such manner as we may approve.

10.2 What you must do. You agree to:

prominently display, wherever reasonably directed by us, decals and other signs advertising the Smartpay Merchant Service Facility and Cards;
not use any advertising or promotional material relating to Cards or the Merchant Service Facility except as authorised by us;
in all your marketing and communications (including on your websites, marketing materials, advertising and other customer communications) give all payment methods equal or substantially similar logo placement and treatment in terms of payment flow, terms, conditions, restrictions or fees;
not influence or inhibit, or attempt to do so, a Cardholder’s decision in relation to the use of any payment method or encourage a Cardholder to use a particular payment method; and
not mischaracterise, misrepresent or disparage any payment method or exhibit a preference for one or more payment methods.

10.3 Authority to use your name and Marks. You hereby authorise us and any third party with whom we provide integrated services to use your logo, name, address, phone number and merchant category in any directory of merchants to whom we provided services or who are participating in the relevant integrated services and you hereby grant us and such parties a non-transferable and non-exclusive licence to use your Marks for the purpose of identifying you as a merchant of ours or a merchant that accepts the relevant form of integrated payment and for offers or promotions by that third party.

11. CARD NOT PRESENT TRANSACTIONS (MOTO)

11.1 Additional Services. You must comply with any additional requirements we have in relation to all Card Not Present Transaction types that you process, including:

PAN Entry;
mail order;
telephone order; and
in other electronic mediums where cards are not present, transactions can occur.

11.2 You acknowledge and agree that:

by electing to process Card Not Present Transactions, you accept the increased risk that a Cardholder’s identity or authority may be questioned later when processing transactions, where there is no physical Card present;
you accept all risks associated with processing a Card Not Present Transaction, including all costs, losses, or liabilities incurred by you or any other person as a consequence of the processing of that Transaction;
you accept all liability for the value of any Card Not Present Transaction where the Cardholder denies any knowledge or involvement with such transactions;
where a Card Not Present Transaction has not been validly authorised by the Cardholder (including where the Cardholder denies any knowledge or involvement with such Transaction) or is in some other way invalid, the value of the Transaction will be charged back to your account in accordance with clause 8 (Chargebacks) of Schedule 4;
you will seek authorisation of all Card Not Present Transactions before processing each such Transaction;
you will perform all obligations to Cardholders concerning a Card Not Present Transaction immediately after any such Transaction has been successfully completed, including the dispatch or fulfilment of goods or services agreed to be supplied;.
you will not use any other means to process a Card Not Present Transaction if, in response to an Authorisation request made by you in relation to that Transaction, that Transaction is declined;
you are authorised to process Card Not Present Transactions, and you undertake to display the brand marks for all relevant Card Schemes on all advertising and other promotional material associated with its Card Not Present business. The brand marks are to be located in close proximity to wherever payment options are presented;
you will not use the Card Not Present Transaction facility to process Transactions in circumstances where the Cardholder and the Card are present but the Device cannot read the magnetic stripe or microchip on or in the Card; and
you will comply with all PCI Security Standard as described in clause 4.2 (PCI Security, Your obligations) of Schedule 4 above, and
you are subject to the provisions as set out in clause 6.5 (Repricing) Schedule 2.

12. THE EQUIPMENT

12.1 Bailment. The Equipment is provided to you on bailment for the purposes (and subject to the terms of) this Agreement.

12.2 Use of Equipment. You must ensure that the Equipment is:

used in accordance with the User Guide at all times and solely for the purpose for which it was designed and provided by us in connection with the Smartpay Services;
not moved from the Delivery Address without our prior written consent (save that this sub-clause does not apply to mobile Equipment);
not modified, altered or tampered with in any way; and
not moved or otherwise transferred out of your control.

12.3 Your general responsibilities. It is your responsibility to:

determine the specific location for installation of the Equipment (within the Delivery Address) and to prepare the location in accordance with the specification set out in the User Guide;
ensure that you have appropriate communications access, internet access and supported and regularly upgraded operating systems;
ensure you have sufficient electrical surge protection;
exercise reasonable care in the use, operation, protection, and security of the Equipment at all times;
ensure that your use of the Equipment and the Smartpay Services is in accordance with all applicable laws and not for any illegal purpose, any purpose which infringes any copyright or intellectual property rights of us or any third party, or any purpose which is otherwise objectionable;
maintain the Equipment in the same good working order and repair as it was in when we provided it to you (subject to fair wear and tear);
ensure that the Equipment is stored safely and protected from theft, loss or damage;
immediately notify us if the Equipment is lost, damaged or destroyed (regardless of cause);
insure the Equipment against any loss or damage to the Equipment arising from theft, vandalism, fire, flood, earthquake, misuse, neglect, or as otherwise required by us and notify us immediately upon the happening of an insured event in relation to the Equipment; and
regularly check for evidence of tampering including skimming devices and confirm the identification number on the Equipment is correct. You must contact us immediately if you discover any evidence of or suspect that Equipment has been tampered with.

13. TITLE AND RISK IN EQUIPMENT

13.1 Smartpay owns the Equipment. The Equipment remains the property of Smartpay and/or its related bodies corporate at all times and nothing in this Agreement passes legal or beneficial title in the Equipment to you or any other party. You must not lease, transfer, dispose of, grant a security interest over, permit a security interest to be registered over or otherwise deal with any rights or interest in the Equipment.

13.2 Risk in Equipment. Risk in the Equipment passes to you upon delivery of the Equipment to the Delivery Address. Accordingly, upon delivery, you are liable for any loss or damage to the Equipment and all costs incurred in respect of the Equipment including the cost of repairing or replacing the Equipment at the Kit Recovery Fee, subject to the terms of this Agreement. If Equipment is damaged after it has been delivered to you at the Delivery Address, you hereby authorise us to debit the repair cost or the Kit Recovery Fee from your Smartpay Customer Account. We may choose whether to repair or replace Equipment at our discretion.

13.3 Access to Premises. You must allow us to enter any premises where we believe that the Equipment is located for the purposes of exercising any of our rights (including retaking possession) of the Equipment in accordance with this Agreement.

14. DELIVERY AND INSTALLATION

14.1 Delivery of Equipment to you. We will deliver to the Delivery Address the number of items of Equipment ordered by you as set out in the Application Form. We may in our absolute discretion charge you delivery and freight charges and we will pay any insurance in respect of the delivery of Equipment to the Delivery Address.

14.2 Accepting deliveries. Within 48 (forty-eight) hours after receipt of a delivery you must notify us in writing of any shortages, defects or damage in respect of the delivered Equipment. You must return such Equipment to us at our expense. To the maximum extent permitted by law, failure by you to give such notice to us will be deemed an acceptance in full of all Equipment delivered.

14.3 Installation. You must ensure that the Equipment is installed in accordance with our guides and procedures for installation. We will provide you with reasonable assistance over the telephone or electronic or other means by explaining how to install software required to connect the Equipment to point-of-sale software that we support. We are not otherwise responsible for the installation of the Equipment and you must do so at your own cost.

14.4 Insurance. You must insure the Equipment (as per clause 12.3(i) (Your general responsibilities) of Schedule 4) with a reputable insurer with Smartpay noted as an interested party and you must, upon request, provide Smartpay with the certificate of currency for such insurance.

15. SERVICE, REPAIR AND UPGRADES

15.1 No third party repairers. You must not allow any third party to service or repair the Equipment, unless we advise you in writing otherwise.

15.2 No use of Equipment with other acquirers. You must not use the Equipment with any other acquirer. If you purchase the Equipment and you use the Equipment with another acquirer, then you do so at your own risk and to the maximum extent permitted by law, the warranty with respect to the Equipment terminates and we will have no liability to you whatsoever.

15.3 Swap Outs. From time to time we may supply you with new, upgraded or repaired Equipment (“Swap Out”) to replace your existing Equipment. If this occurs, you must return the existing Equipment within 14 (fourteen) days after receiving the Swap Out. If we do not receive the existing Equipment back within this time the Kit Recovery Fee will be charged in respect of that Equipment. The Kit Recovery Fee will constitute a debt due by you to us and you hereby authorise us to debit such amount from the Fee Account without notice to you. Costs and more information can be found here www.smartpay.co.nz/repair-schedule/

16. SOFTWARE AND INTELLECTUAL PROPERTY

16.1 Ownership and licence of Software and Intellectual Property Rights. All right, title and interest in the Software (including Intellectual Property Rights in the Software) remains with Smartpay at all times. We hereby grant you a non-exclusive, non-transferable licence to use the Software solely in connection with the Smartpay Services in connection with your Business.

16.2 What you must not do. You must not:

attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any part of the Software. This includes “phishing”, “mining” or attempting to trigger remote code for the purpose of accessing data or material you would not otherwise have access to; and
circumvent, disable or otherwise interfere with security-related features of the Software, the Equipment or the Smartpay Merchant Service Facility.

16.3 Updates. We may provide Updates of the Software from time to time, but we are under no obligation to do so.

17. THE HUB (MERCHANT PORTAL) END USER LICENSE AGREEMENT

1.1 Licence to Use Service: Our licence to you. In consideration of your agreement to comply with this Agreement, We hereby grant you a non-exclusive, non-transferable licence to use the Service, unless we suspend or terminate your account or the Service in accordance with this Agreement.

1.2 Nature of the Service. You acknowledge and agree that: (a) we may, at any time acting reasonably and with prior written notice to you, where possible alter, amend, interrupt, reschedule or modify all or any part of the Service; and (b) the Service may not operate on a continuous basis, and may be unavailable from time to time (including for scheduled and emergency maintenance purposes).

1.3 You must implement Updates. We may provide Updates of the Smartpay HUB from time to time, but we are under no obligation to provide updates. If we do release Updates of the Smartpay HUB, We will, where practicable, notify you and you must implement the updates as soon as practicable.

1.4 Old versions not supported. For the remainder of the term, we may, in our absolute discretion, continue to support the superseded version of the Smartpay HUB, but we are not obliged to do so.

2. Your Responsibilities 2.1 Registration. In order to Use the Service you must have an account with us. When registering for an account, you must use your correct and current name and information. You must not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or employ misleading email addresses or falsify information in any part of any communication transmitted through the Service. We will handle all personal information we collect in accordance with our Privacy Policy as set out in clause 10.1 of Schedule 3.

3. Your password and login. You are responsible for maintaining the confidentiality of your password and login and you must not share your password or login with any other party. You are responsible for all activities that occur under your password and login. You must not use or attempt to use another party’s password or login to access any part of the Service. You must immediately notify us at merchantassist@smartpay.co.nz of any unauthorised use of your password or login or any other breach or suspected breach of security in respect of the Service.

4. Master Users and Users. You must nominate in the Applicaiton form one Master User you wish to appoint to your account and any changes to the Master User must be notified to us in writing. You acknowledge and agree that: (a) The Master User will be responsible for determining who is a User and what level of access that User has;

The Master User controls each User’s level of access and can revoke or change a User’s access, or level of access, at any time, for any reason; and
Notwithstanding anything else in this Agreement, you are responsible for the Master User and users’ use of the Services as if such use is use by you.

5. Responsible for all Users. Any reference to an obligation owed, or a liability borne, by you under this Agreement is deemed to mean an obligation owed, and a liability borne, by (as applicable) any and all users. You agree to procure that all users comply with such obligations and liabilities. Notwithstanding the foregoing, you will at all times remain liable for any breach by a user as if it were a breach by you.

6. No warranty of information provided by Us. All information and content provided or otherwise accessed through the Service is made available purely for general informational purposes only and on an “as is” basis. We take no responsibility and we have no liability in relation to the accuracy or completeness of such information. The transaction data produced by the terminal is correct and conclusive except in the case of manifest error. We are not liable for any error, delay, malfunction or failure caused or contributed to or initiated by your integrated point-of-sale software.

7. What You must do. You must:

Standards of performance. Act in an honest, faithful, diligent, competent and professional manner in the performance of your obligations under this Agreement;
Supply own Connections and equipment. Supply (at your cost) all connections, tools, equipment and materials necessary to access and use the Service;
No Improper Use. Not Improperly use the Service; must take all steps necessary to prevent others from Improperly using the Service, and must use best endeavours to assist us to identify and prevent the improper use of the service; and
Comply with Laws. Comply with all applicable laws including applicable data protection, privacy and export laws.

8. What You must not do. In using the Service, You must not:

reproduce, make available online or transmit (electronically or otherwise), publish, adapt, create derivative works from, distribute or redistribute, transfer, broadcast, display, sell, license, perform, link, display or exploit in any other way and in any medium any part of the Service except through the functionality offered by the Service;
alter or modify any part of the Service;
breach any laws and regulations, or use the Service for any purpose that is unlawful or in breach of this Agreement;
collect or store personally identifying information about other users other than through functionality provided through the Service nor use the communication systems provided by the Service (e.g. comments) for commercial or unlawful purposes;
upload, post, email, otherwise transmit, or post links to any advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any software deployed in connection with the Service. This includes “phishing”, “mining”, accessing “hidden” URLs, attempting to trigger remote code for the purpose of accessing data or material You would not otherwise have access to;
knowingly transmit any virus, corrupt files or any other software or function that may damage the operation of the Service or other disabling feature to the Service, or is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of any part of the Service;
use or launch any automated system, including “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to Our servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content;
access content through any technology or means or other functionality of the Service from time to time;
interfere with or inhibit other users from enjoying or using the Service;
Unless expressly agreed with us, use the Service for any commercial purposes including selling access to the Service, selling any content, selling advertising, sponsorships, or promotions placed on or within the Service or content.

9. Take Your own precautions. You must take your own precautions to ensure that you process for accessing the Service does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system.

10. You are responsible for costs. You are responsible for all costs, fees and expenses incurred directly or indirectly from using the Service. This may include internet connection and usage fees and mobile telephone connection and usage fees.

11. Intellectual Property 11.1 Intellectual property owned by Us .You acknowledge that (a) the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including copyright, and (b) we and/or third parties own all right, title and interest in and to the Service and software provided through or in conjunction with the Service, including without limitation all Intellectual Property Rights contained in the Service and such software.

11.2 Your responsibilities regarding intellectual property. You agree that you will not, and will not allow any third party to, (i) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Service, (ii) use the Service to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iii) remove, obscure, or alter our or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. Any reproduction or redistribution of any part of the Service is prohibited and may result in civil and criminal penalties. In addition, you must not copy the content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.

11.3 Possible Infringement. You must:

notify us immediately upon becoming aware of any direct or indirect infringement of any of our intellectual property rights or claims by a third party that use of any of the intellectual property contained within the Service infringes the rights of a third party, and
do all things reasonably necessary, at our cost, to assist us to prevent any prohibited or otherwise unauthorised access to or use of our intellectual property rights.

11.4 Your name and marks. You authorises us to use and reproduce your name and marks for publicity and marketing purposes.

12. Suspension and termination of User Accounts 12.1 Our reserved rights to determine access. We reserve the right, in our sole discretion, to decide whether user activity or behaviour within

the Service violates this Agreement (including copyright).

12.2 Suspension or termination of Your access or account. We may at any time, without prior notice suspend or terminate your (or a User’s) access and/or use of all or any part of the Service, and we may suspend or terminate your user account, if, in our sole discretion, we believe that:

You have breached this Agreement in any way;
Your access or use of any part of the Service may be directly or indirectly harmful to others or may otherwise violate any laws or regulations;
We cease to operate the Service or
for any other reason.

12.3 In addition, if we deem it appropriate, we may also report your activity or behaviour to the relevant authorities as outlined in clause 10.4 of Schedule 3.

12.4 What happens if We suspend or terminate your access. If we suspend or terminate your access or use of the Service, or your user account, you are prohibited from continuing to access and use any part of the Service regardless of whether you are able to continue to do so. In addition, you are not permitted to create, and you must not create, any other accounts for access to the Service.

12.5 Inactive accounts. We may also suspend and/or terminate your user account for all or any part of the Service because of your inactivity within 12 months of non-use.

13. Termination 13.1 Termination with notice. As per provisions in Clause 16 (Termination) Schedule 3.

13.2 Termination without notice. (a) Breach of Agreement. If its Associates or a User commits a serious or persistent breach of any term of this Agreement and, in the case of you for making Improper Use of the Service

13.3 If you fail to rectify the breach (where rectification is possible) to our reasonable satisfaction within 10 (ten) Business Days of the date of a notice setting out details of the breach;

Detrimental acts. Or its Associates commits any act or series of acts materially detrimental to the interests of the other Party including conduct which may injure the reputation of the terminating Party’s business;
Cessation of business. Ceases to carry on its business in the usual manner or ceases to hold a travel agent’s or other required statutory licences; or
Insolvency Event. Suffers an Insolvency Event.

13.4 What happens on termination. Upon termination of this Agreement:

Stop use of Service and Confidential Information. You must immediately stop using the Service and Confidential Information;
Return or destroy Confidential Information. You must return or destroy in accordance with our instructions all of our confidential information and provide us with written certification confirming such return or destruction.

13.5 Removal of Content. If Your account is terminated, all Content associated with Your Smartpay Hub account will be deleted, subject to any retention required by law

SCHEDULE 5 – WORLDLINE TERMS AND CONDITIONS

WORLDLINE MERCHANT AGREEMENT

This Worldline Merchant Agreement and the following Terms and Conditions (together the “Agreement”) is a contract between you (the “Merchant”) and Paymark Limited (“Worldline”), a duly incorporated company having its registered office at Level 18, 88 Shortland Street, Auckland 1010, and applies to your use of the Worldline System. In this Agreement, “you” or “your” means any Merchant using the Services and/or the Worldline System. “Worldline” “we” or “our” refer to Paymark Limited.

Worldline has an arrangement with Smartpay Limited (“Smartpay”) which enables Smartpay Devices to connect to the Worldline System (the “Worldline Smartpay Aggregation Agreement”). Access to the Worldline System is subject to you entering into:

An agreement with Smartpay related to Smartpay Devices that access the Worldline System (the “EFTPOS Services Agreement”); and
An agreement with a New Zealand bank that provides you with a Merchant Account (the “Bank Merchant Agreement”).

By accessing and using the Worldline System, you acknowledge that you have read, understood and agree to be bound by the terms and conditions of this Agreement. If you do not agree to these terms and conditions, you must immediately cease your use of the Worldline System and the Services.

Worldline may amend this Agreement at any time by sending you an updated version. The revised version will be effective at the date it is sent. If the revised version includes a material change, we will provide you with 30 days’ prior notice.

Key terms:

Commencement Date	The earlier of the date that the Merchant confirms acceptance of this Agreement and the first date that Worldline provides the Service to the Merchant.
Service	The service to be provided by Worldline under this Agreement, excluding any settlement or clearing services.
Term	This Agreement will begin on the Commencement Date and will continue in force until Worldline gives at least 3 months’ written notice of termination to the Merchant, in accordance with clause 9.1, or at law.

TERMS AND CONDITIONS

1 INTERPRETATION

1.1 Definitions

In this Agreement, the following words have the following meanings, unless the context requires otherwise:

Acquirer means a bank or other financial institution which obtains Transactions from the Merchant and makes settlement payments to the Merchant for these Transactions.

Agreement means this Agreement as amended from time to time.

Approved Card means a Payment Instrument which has been approved by Worldline for use within the Worldline System and which is able to be processed by Smartpay Devices.

Authorisation means the process that occurs during a Point of Sale Transaction by which:

the Worldline System electronically verifies the Approved Card and the dollar amount of the Transaction to establish that the Card Issuer or Acquirer accepts the Transaction as a liability owed to the Merchant; and
if a PIN is offered by the Cardholder, the Worldline System electronically verifies the PIN which is applicable to the Payment Instrument; and
if Cardholder signature verification is undertaken in accordance with clause 3.8, the Merchant has verified the Cardholder’s identity in accordance with clause 3.8.

Bank means the bank that the Merchant has entered into a “Bank Merchant Agreement”, and includes its successors and assigns.

Business Day means a day on which the Bank is open for normal banking business in Wellington and Auckland.

Cardholder means a person who has been issued with an Approved Card and, in the event that a Point of Sale Transaction is authorised in accordance with the procedures set out in this Agreement, includes the person presenting the Payment Instrument for use in that Transaction.

Cardholder’s Nominated Account means an account of the Cardholder.

Charge Card means a Payment Instrument used to charge payments to the charging facility provided to the Cardholder by the Payment Instrument Issuer.

Communication Channels means the telecommunication networks approved by Worldline from time to time for linking Smartpay Devices through to the processing centres from which Authorisations are provided.

Credit Card means a Payment Instrument used to charge payments to the credit facility provided to the Cardholder by the Payment Instrument Issuer.

Debit Card means a Payment Instrument used to access, and immediately debit funds from, a Cardholder’s bank account.

EFTPOS means electronic funds transfer at point of sale.

Merchant means the legal entity identified in the EFTPOS Services Agreement and includes its successors.

Merchant Account means the bank account in New Zealand nominated by the Merchant from time to time for the settlement of Transactions pursuant to the Bank Merchant Agreement.

Merchant Premises and Premises means the premises of the Merchant recorded in Worldline’s files.

Merchant Refund means a refund by a Merchant through the Worldline System to a Cardholder of all or some of the money received by that Merchant from that Cardholder for payment of goods or services which has previously been effected by virtue of a Valid Transaction.

Person includes any individual, company, partnership, incorporated society, association or other legal entity.

Payment Instrument means a plastic card (whether a Credit Card or a Charge Card or a Debit Card), issued to facilitate payment for goods or services.

Payment Instrument Issuer means the bank, financial institution, retailer or other person which is the issuer of a particular Payment Instrument.

PIN means the personal identification number of the Cardholder issued in relation to an Approved Card.

Point of Sale Transaction and Transaction means the process by which a Smartpay Device is used by the Merchant and a Cardholder to authorise the electronic transfer of funds between the Cardholder’s Nominated Account and the Merchant Account to effect payment by a Cardholder for goods or services and/or a cash withdrawal by a Cardholder or a Merchant Refund and, where this service is available on the Worldline System, a Cardholder balance enquiry, and, unless the context otherwise specifically requires, includes an Off-Line Transaction.

Service means the service to be provided by Worldline under this Agreement, excluding any settlement or clearing services.

Smartpay means Smartpay Limited;

Smartpay Device means an EFTPOS software application within a physical device, in each case operated by the Merchant and connected with the Worldline System and that is sold or leased to the Merchant by Smartpay and is not developed to the Worldline specification;

Valid Transaction means a Transaction that the Bank has deemed to be valid in accordance with the Bank Merchant Agreement.

Worldline means Paymark Limited, and includes its successors and assigns.

Worldline System means the electronic delivery system owned and operated by Worldline to facilitate Point of Sale Transactions.

1.2 General Interpretation

In this Agreement:

1.2.1 unless otherwise stated, a reference to Section or a clause is a reference to section or a clause of or to this Agreement;

1.2.2 words in the plural include the singular and vice versa; and

1.2.3 headings are inserted for convenience only and must be ignored in construing this Agreement.

1.3 Merchant’s Liability

Where the Merchant consists of two or more persons, their liability under this Agreement will be joint and several.

1.4 Governing Law

This Agreement will be construed and take effect in accordance with New Zealand law.

2 SMARTPAY DEVICES

For the avoidance of doubt, under this Agreement the Merchant may only use Smartpay Devices in the Worldline System. Nothing in this Agreement shall prevent the Merchant from using other types of acceptance devices in the Worldline System under another agreement with Worldline.

3 SERVICES AND PROCEDURES

3.1 Provision of Service

During the term of this Agreement, Worldline will:

3.1.1 provide the Merchant with access to and use of the Worldline System, on the terms contained in this Agreement;

3.1.2 take all reasonable steps practicable to maintain the Worldline System in proper working condition to provide a continuous and accurate service to the Merchant; and

3.1.4 monitor the telecommunications components of the Worldline System to support delivery of the Service.

3.3 Merchant Accounts

Worldline shall be entitled to facilitate the depositing of Transaction settlement proceeds.

3.4 Acceptance of Approved Cards

The Merchant may use the Worldline System to accept an Approved Card to effect a Point of Sale Transaction where either:

3.4.1 the Merchant has a separate agreement with the relevant Acquirer governing the use of that Approved Card, and the Merchant has elected to effect the Point of Sale Transaction using that Approved Card; or

3.4.2 the Approved Card is a Debit Card.

3.5 Transaction Record

The Merchant must offer the Cardholder a Transaction record in respect of the relevant Transaction.

3.6 Confidentiality

The Merchant will not do anything which might jeopardise the confidentiality of a Transaction or of a Cardholder’s details. This includes the Merchant ensuring that the pinpad device used for entry of PINs is able to be used in such a manner that no other person (including the Merchant and its employees) is able to see or detect the PIN or other details entered by the Cardholder.

3.7 Settlement

Worldline will ensure that the process necessary to deposit value for Valid Transactions to the Merchant Account is initiated. However, the Merchant acknowledges that:

3.7.1 in the case of Transactions effected using Smartpay Devices which have the capability to store Transactions, those Transactions will only be forwarded for processing once the Merchant activates the function to transmit those Transactions to Worldline; and

3.7.2 in the case of Transactions which are stored as Off-Line Transactions due to technical malfunction at the central processors or failure of the telecommunications links, those Transactions will only be forwarded for processing when the Smartpay Device is capable of doing so and establishes connection to the Worldline System, once the malfunction or failure is remedied, and, unless those Transactions are so forwarded promptly, Worldline will not be able to process them through the Worldline System and Worldline shall not be liable for their settlement through the Worldline System.

3.8 Wrongful Use

The Merchant will take all reasonable care to prevent wrongful use of an Approved Card for a Point of Sale Transaction at the Merchant Premises.

3.9 Verification of Cardholder Identity

3.9.1 The Merchant will not effect a Transaction with a Cardholder unless:

that Cardholder’s identity is verified in accordance with clause 3.8.2 below; or
the Transaction is effected using a Payment Instrument which can interact with the energy field of a contactless reader on the Terminal and the value of the Transaction is less than the limit mandated by the relevant Acquirer as requiring verification by PIN or signature.

3.9.2 The Cardholder’s identity can be verified by:

the correct entry of the Cardholder’s PIN into the Smartpay Device, followed by the verification of the PIN within the Worldline System, and the Worldline System response “ACCEPTED” at the Smartpay Device; or
where the Transaction is made using a Credit Card, verification of the Cardholder’s signature, whereby the Merchant must take all reasonable steps to ensure that the signature on the relevant Transaction record is not forged or unauthorised and that it corresponds with the signature on the relevant card.

3.10 Communications

The Merchant agrees that Worldline may contact the Merchant by post, email or other forms of commercial electronic message for the purposes of:

providing EFTPOS services and EFTPOS related services including but not limited to account administration and technical support;
providing further information about Worldline, or other goods or services offered by Worldline;
providing news, reports or information that Worldline considers may be of interest; and
marketing, promotional and publicity purposes (including direct marketing), market research and surveys.

The Merchant acknowledges that it will have the option to unsubscribe from any contact list for electronic messages that is not essential to the provision of the Service at any time using the “unsubscribe” link contained within any electronic message.

4 SETTLEMENT PAYMENTS DUE TO MERCHANT

The Merchant acknowledges that the obligation to settle Transactions with the Merchant is an obligation of the relevant Payment Instrument Issuer or Acquirer or of the Bank. It is not an obligation of Worldline. Worldline will not be liable to the Merchant in any way for any amount payable to, or receivable by, the Merchant arising out of any Transaction. In addition, the Merchant acknowledges that settlement of Transactions effected using an Smartpay Device which has the capability to store Transactions is limited by the circumstances described in clause 3.7.2.

5 RECORDS AND INSPECTION

5.1 Retention of Records

The Merchant will maintain complete and accurate records of all Point of Sale Transactions and will preserve all signed Transaction records, Transaction records which are generated electronically, tally rolls and other records (“Records”), relating to each Transaction for not less than 12 months from the date on which that Transaction took place. If, within 120 calendar days of the date of any Transaction initiated by a Cardholder, the relevant Cardholder asks the Merchant for a receipt for the Transaction (whether the Transaction was accepted or declined), the Merchant will give the Cardholder the Transaction receipt as soon as practicable after the request.

5.2 Inspection of Records

The Merchant will permit Worldline and their authorised agents, at all reasonable times, to inspect and copy the Records of the Merchant relating to any Point of Sale Transaction.

5.3 Worldline to Maintain Records

Worldline will maintain records of each Transaction recorded through the Worldline System for at least 12 months after the date of the Transaction.

5.4 Ownership of Intellectual Property

Nothing in this Agreement shall confer upon the Merchant any intellectual property rights (whether registered or unregistered, including trade marks, patents, copyright, registered designs, symbols, logos, database rights or any application to register the same) in relation to the Worldline System, the Service and any Transaction, or any interest in such rights.

6 NON EXCLUSIVITY

No franchise in favour of the Merchant is created by this Agreement and Worldline is free to enter into agreements with other merchants to allow them use of the Worldline System.

7 LIABILITY AND INDEMNITY

7.1 Service Provided by Worldline

The service to which Worldline is contractually able to commit is as described in clause 3, and the Merchant acknowledges that Worldline cannot guarantee continuous fault-free access to the Worldline System. However, Worldline and the Merchant recognise that should Worldline be unable to provide part of the Service or should the Worldline System be unavailable for any reason:

7.1.1 the Merchant will, subject to the provisions of this Agreement and the terms of any separate agreements governing the use of Cards, nevertheless be able to process Transactions as Off-Line Transactions in accordance those agreements; and

7.1.2 in any event, any loss or damage that the Merchant may suffer may be disproportionate to the level of service to which Worldline is contractually able to commit under this Agreement, and accordingly it is reasonable that Worldline’s liability under this Agreement be limited in the manner described below.

7.2 Exclusion of Worldline’s Liability

Except as provided in clause 7.3, Worldline is not liable to compensate the Merchant for any loss, cost, injury or damage arising directly or indirectly from:

7.2.1 any act, omission, error, default or delay of Worldline or its officers, employees or agents; or

7.2.2 any failure (including telecommunications failure), breakdown or malfunction of the Worldline System or of any equipment, Smartpay Device, Communication Channels, or Payment Instrument; or

7.2.3 any cause beyond the reasonable control of Worldline; or

7.2.4 any act or omission of the Bank, Smartpay or any other third party.

7.3 Liability of Worldline for Negligence and Wilful Default

If Worldline is negligent, or wilfully defaults, in the performance of its obligations to the Merchant under this Agreement, then Worldline will be liable to the Merchant (but not any other person) for the direct loss or damage sustained by the Merchant itself as a result of such negligence or wilful default.

7.4 Indemnity by Merchant

The Merchant will indemnify Worldline against all liabilities, losses and costs which Worldline may incur, directly or indirectly, as a result of:

7.4.1 any breach by the Merchant of this Agreement; or

7.4.2 any fraud or negligence of the Merchant or its employees or agents in using, or any misuse or unauthorised act or act causing damage by any of them in relation to the Worldline System, an Smartpay Device, Communication Channels, or any Payment Instrument; or

7.4.3 in the case of Worldline, Worldline being liable to any supplier to Worldline of telecommunications services which, directly or indirectly, results from any claim made by the Merchant against that supplier relating to the telecommunications service provided to or for the benefit of Worldline.

7.5 Limitation of Liability

Notwithstanding any other provision of this Agreement, none of Worldline or the Merchant will be liable to each other or to any other person:

7.5.1 in contract, tort (including negligence) or otherwise for any loss of revenue, profits, business, goodwill or anticipated savings or any consequential or indirect loss or damage; or

7.5.2 for any claims, demands, actions or proceedings by third parties, and any costs or expenses in connection therewith, that are not already excluded under this clause 7.

7.6 Maximum Liability of Worldline

Notwithstanding any other provision of this Agreement, in no event shall Worldline’s liability to the Merchant under this Agreement ever exceed $100.

7.7 Each Limitation Separate

Each provision of this clause 7 is to be construed as a separate limitation, exclusion or protection applying and surviving even if for any reason any of the other provisions of this clause 7 is held inapplicable or invalid in any circumstances.

8 TERMINATION

8.1 Automatic Termination

This Agreement will automatically terminate if any of the following agreements are terminated:

8.1.1 the EFTPOS Services Agreement;

8.1.2 the Worldline Smartpay Aggregation Agreement; and

8.1.3 the Bank Merchant Agreement, unless Merchant enters into a new agreement for a Merchant Account with another New Zealand bank.

8.2 Termination by Notice

Worldline may terminate by written notice to the Merchant if:

8.2.1 the Merchant has materially breached this Agreement and has not remedied that breach within 10 Business Days of receipt of written notice from Worldline, as the case may be, requesting the breach to be remedied; and

8.2.2 without further notice to the Merchant if Worldline has already given written notice to the Merchant indicating that the Merchant has materially breached this Agreement such that the security or integrity of the System may be jeopardised and requiring the Merchant to remedy that breach immediately, and the Merchant has not done so; or

8.2.3 Smartpay fails to notify Worldline of a Merchant’s change of ownership and/or control in accordance with the terms of the Worldline Smartpay Aggregation Agreement.

8.3 Suspension or Redirection of Settlement Proceeds

Without affecting their rights under clause 8, Worldline may, at its discretion:

8.3.1 suspend availability of the Service to the Merchant under this Agreement in the event of a material breach of this Agreement by the Merchant which has not been remedied within 10 Business Days of receipt of written notice of breach from Worldline, as the case may be; or

8.3.2 in the event Worldline considers on reasonable grounds that the Merchant or any of its officers or employees may have been using, or may be likely to use, the Worldline System fraudulently or where the security or integrity of the Worldline System has been, or is likely to be, jeopardised by the Merchant or any other person, either immediately and without notice suspend availability of the Service to the Merchant under this Agreement, or redirect any Transaction settlement proceeds due to the Merchant into a suspense account until such time as Worldline has resolved that such fraudulent use or threat to the Worldline System’s security or integrity has not occurred or is not likely to occur.

8.4 Pre Existing Rights and Obligations

If this Agreement is terminated pursuant to clauses 8.1 and 8.2, all rights and obligations that have arisen under this Agreement before the termination will continue and will not be affected in any way.

9 WARRANTIES AND REPRESENTATIONS

9.1 No Warranty by Merchant

The Merchant will not, without the prior written consent of Worldline, make any warranty or representation:

9.1.1 on behalf of Worldline in relation to the Worldline System or the Service; and/or

9.1.2 that Worldline or any other participant in the Worldline System recommends any goods or services provided by the Merchant.

9.2 No Warranty as to Cardholders or Payment Instrument Issuers

The Merchant acknowledges that no representation, warranty or assurance concerning the credit worthiness of a Cardholder or Payment Instrument Issuer or Acquirer may be inferred from the issue of a Payment Instrument to that Cardholder or from the use of that Payment Instrument in the Worldline System or from the approval of any Payment Instrument for use in the Worldline System.

10 NOTICES

10.1 Notices in Writing

Any notice to be given by a party under this Agreement must be in writing and may be delivered or mailed by pre-paid post or sent by email to the recipient at its address or email address stated on the first page or alternatively, in the case of a party which is a company, at its registered office.

10.2 Effective Receipt of Notice

A notice which is mailed in a correctly addressed pre-paid envelope will be deemed to have been given on the second Business Day after the day on which it is mailed. A notice which is sent by email will:

10.2.1 in the case of an email sent to Worldline, be deemed to have been given upon receipt of a return email from Worldline (as the case may be) acknowledging receipt of such email (for the avoidance of doubt, an automatic or Worldline System generated acknowledgement from Worldline will not be considered a return email for the purposes of acknowledgement of receipt notice); and

10.2.2 in the case of an email sent to the Merchant, be deemed to have been given at the time specified in the email as the time at which it was sent.

11 GENERAL

11.1 Disputes between Merchant and Cardholder

Any dispute between a Merchant and a Cardholder about goods and services supplied will be entirely between the Merchant and that Cardholder. Worldline may be requested to provide confirmation of transactional information only.

11.2 Waiver

Any additional time given to the Merchant by Worldline, or any failure or delay by Worldline in exercising their rights under this Agreement, will not be construed as a waiver of Worldline’s rights or remedies and will not prejudice Worldline’s ability to exercise such rights or remedies at any subsequent time.

11.3 Assignment

11.3.1 The Merchant may not assign or transfer its rights or obligations under this Agreement to any other person.

11.3.2 Worldline may assign or transfer their respective rights and obligations under this Agreement to any other person so long as notice of the proposed assignment is given to the Merchant.

11.4 Entire Agreement

11.4.1 Without affecting clause 11.4.2, this Agreement constitutes the entire agreement between the parties. The Merchant acknowledges that there are no oral or written understandings, representations or commitments of any kind, express or implied, with respect to the matters covered by this Agreement.

11.4.2 Nothing in this Agreement limits any provision of any other agreement existing between the Merchant and the Bank or the Merchant and any Acquirer.

11.5 Privacy and Information Sharing

11.5.1 If the Merchant is an individual, the personal information in this Agreement and any other personal information which the Merchant may provide to Worldline, Smartpay or the Bank at any time, whether in writing, by telephone, electronically or any other means, may be used by Worldline, Smartpay or the Bank for the purposes of providing EFTPOS services to the Merchant. The intended recipients of the personal information are Worldline, Smartpay and Bank staff who need to receive the information for the purpose of providing EFTPOS services to the Merchant. The Merchant has the right to access their personal information, or to request an update or correction of the personal information held by Worldline.

11.5.2 The Merchant consents to Worldline sharing information related to a Merchant, Smartpay, the Bank, and to selected third party service providers who hold or process information on behalf of Worldline to help Worldline provide EFTPOS services, associated services or operate the Worldline website. Third party service providers are subject to contractual restrictions to ensure that information held or processed on behalf of Worldline is protected.

11.5.3 The Merchant consents to Worldline sharing information related to a Merchant and its Terminals that are connected to the Worldline System, to an accredited service provider of that Merchant, as identified using Worldline’s keyset database.

11.6 Consumer Guarantees Act

The Merchant confirms that it has entered into this Agreement solely for business purposes and agrees that nothing in the Consumer Guarantees Act 1993 shall apply in respect of the provision of the Service or the operation of the Worldline System.

11.7 Dispute Resolution

In the event of any dispute between the parties, the parties shall first attempt to resolve the dispute by good faith negotiations. Only if those negotiations are unsuccessful, either party may then refer the dispute to arbitration in accordance with the Arbitration Act 1996, except that the arbitrator shall be a person agreed by the parties or, in the absence of agreement, shall be appointed (at the request of either party) by the President for the time being of the New Zealand Law Society.

11.8 Severance

If any provision of this Agreement shall be invalid, void, illegal or unenforceable, this will not affect the remaining provisions of this Agreement.