This Agreement is for the provision of Long Term Terminal & Service Rental from Smartpay Limited.
“Abuse” means any damage to the Equipment that is not caused by fair wear and tear and includes, but is not limited to, damage caused by liquid, electricity, impact, or use outside normal operating conditions.
“Accessories” mean the additional supplies that can be purchased from us to support the Equipment available here https://store.smartpay.co.nz/
“Agreement” means this agreement specifically relating to the various Equipment and/or Terminal Services provided, and all other documents forming part of this Agreement (including the Application Form).
“Application Form” means the Long Term Terminal and Service Rental application form.
“Authorised Signatory” means the key contact person who is authorised to approve, access, use, control, and discuss this Agreement and is responsible for all acts, omissions, and breaches under the Agreement (being the person who signs the Application Form on behalf of the Customer, or such other person as notified to the Company in writing from time to time).
“Business” means the ordinary business conducted by you as described in the Application Form or notified to us in writing from time to time in accordance with this Agreement.
“Company”, “we”, “our” or “us” means Smartpay Limited, its assignees, successors and any subcontractor engaged by, the Company to provide the Services;
“Components” or “Parts” means any component part or complete unit of the Equipment;
“Business Day” means a day other than a Saturday, Sunday, or a day which is a bank holiday or public holiday in Auckland, New Zealand.
“Business Hours” are the hours during the day when business is commonly conducted.
“Cancellation Fee” is an amount equal to the Terminal Services Fee multiplied by the outstanding months in the Initial Term or, if the Initial Term has ended, multiplied by three months.
“CGA” means the Consumer Guarantees Act 1993.
Company, “we”, “our” or “us” means Smartpay Limited (NZBN: 9429035854821), its assignees, successors and, where applicable, any third party engaged by the Company to provide the Terminal Services.
“Components or Parts” means any part or complete unit of the Equipment.
“Consumer Law” means the CGA, the Fair Trading Act 1986, and Part 3 of the Contract and Commercial Law Act 2017.
Customer, “you” and “your” mean the person(s) or legal entity named as such on the Application Form. If there is more than one, it means each of you separately and all of you jointly and severally.
“Customer Support” means our customer support team, who can be contacted via our website at www.smartpay.co.nz/contact-support/
“Direct Debit Authority” means the Direct Debit Authority set out in the Application Form and any other relevant form (if applicable) and signed by you, as amended from time to time.
“Direct Debit Dishonour Fee” means a fee of $30.00 (plus GST if any) per failed direct debit.
“Equipment” means all equipment, terminals, software, and accessories provided by us to you (if any), and includes all equipment supplied in addition to or in substitution of the equipment detailed in your Application Form.
“Fees” mean all the sums payable to us by you under this Agreement, over the Term, including the Terminal Services Fee, Kit Recovery Fee, Repair Fees, Cancellation Fee, and any one-off Fees and charges.
“First Payment Date” means the date of your first instalment of Terminal Service Fees payable under this Agreement (as set out in the Application Form).
“Initial Term” means the period of the initial term as stated in your Application Form.
“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.
“Kit Recovery Fee” means a fee of $500.00 (plus GST, if any) payable by you to us for the replacement of any lost, stolen, or damaged unit of Equipment.
“Nominated Bank Account” means your bank account, which is subject to the Direct Debit Authority.
“Payout Amount” is the accumulation of all Fees associated with the cancellation of this Agreement as set out in clause 7.6.
“Privacy Policy” means our privacy policy, which can be accessed at https://www.smartpay.co.nz/terms-and-conditions/privacy-policy/
“Registered Address” or “Location” means the address specified in the Application Form to which the Equipment is to be supplied by us under this Agreement.
“Repairs” mean any repairs or maintenance carried out on the Equipment, with costs outlined here https://www.smartpay.co.nz/terms-and-conditions/repair-schedule/ (Repair Fees).
“Service Level” means the service levels by our Customer Support team, which can be found here https://www.smartpay.co.nz/terms-and-conditions/support-terms/
“Software” means the executable program and/or application loaded into the Equipment or such other software item to allow the delivery of the Terminal Services.
“Swap Out” means the supply by us to you of new, upgraded, or repaired Equipment to replace your existing Equipment.
“Term” means the term of this Agreement, being the period from the date of signing or acceptance of the Application Form by us until Termination of this Agreement.
“Terminal Services Fee” means the Terminal Services Fee as stated in the Application Form, being the fee you will pay to us each month for the Terminal Services (as such fee may be changed under the terms of this Agreement).
“Termination” means the date on which this Agreement is terminated under clauses 7.2 to 7.5 or under any other express right of termination under this Agreement.
“Terminal Service(s)” means the provision of the Equipment, including all operating Software to enable the processing of the customer’s transactions and all other accessories provided with such Equipment.
“Third Party Contractor” means any organisation, individual, or company that we contract to deliver the Terminal Services, or any part of the Terminal Services.
In this Agreement, unless the context requires otherwise:
This Agreement is governed by and shall be construed by the laws of New Zealand.
1.1. The Equipment remains our property at all times (unless purchased outright by you). You only have the right to use the Equipment during the Term. You must protect and make clear to others our interest in the Equipment. You must not give another person an interest in, or security over the Equipment.
1.2. You have acted solely in your own judgment in taking the Equipment and accepting the Terminal Services under this Agreement.
1.3. You have not relied on any representation about the Equipment or Terminal Services by or on behalf of the Company, including as to their suitability for any particular purpose, unless such representation has been made to you in writing by us (including on our website).
1.4. You must not part with possession of or alter the Equipment in any way unless agreed by us in writing.
1.5. We may act in your name or on your behalf to take any reasonable steps to protect our interest in the Equipment.
1.6. We have the right to enter your premises at all reasonable times to exercise our rights under this Agreement, including the removal of the Equipment.
1.7. We may engage Third Party Contractors to provide, install, maintain and /or restore all or any of the Equipment and/or the Terminal Services. We will remain liable under this Agreement for any actions of such Third Party Contractors.
1.8. You must not move the Equipment to any location other than the Location without our permission.
1.9. You must use the Equipment for the purpose for which it was designed and according to the manufacturer’s instructions. Opening or tampering with the Equipment will be considered Abuse.
1.10. Replaced components become part of the Equipment once they have been exchanged by us for any reason.
1.11. If additional or different Equipment is provided to you, it will be on the same terms and conditions as contained in this Agreement, and you must pay all reasonable additional Fees in connection with the same.
1.12. Unless otherwise directed by us in writing, only the Company and its authorised Third Party Contractors shall be permitted to carry out any installation or removal of the Equipment, which may be completed at the Customer’s cost.
1.13. You must not allow any unauthorised third party to service or repair the Equipment, unless we advise you otherwise.
1.14. From time to time, we may supply you with new, upgraded, or repaired Equipment (“Swap Out”) to replace your existing Equipment (“Replaced Equipment”). If this occurs, you must return the Replaced Equipment to us within thirty (30) days of the Swap Out being provided to you, or you will incur Terminal Services Fees for both the Replaced Equipment and the Swap Out Equipment. If you do not return the Replaced Equipment to us within 90 days of the Swap Out Equipment being provided to you, then we reserve the right to charge a Kit Recovery Fee for the Replaced Equipment.
2.1. You agree to display documentation, marketing material, price lists, collateral, or other information about the Terminal Services as reasonably required by us.
2.2. You must observe and comply with the provisions of the Fair Trading Act 1986, the CGA, and all other applicable laws, regulations, and requirements of any government or statutory body, including applicable industry guidelines and codes of conduct.
2.3. You agree that you will not use the Terminal Services (including the Equipment) for any unlawful purpose, including any actions that may be construed as being an infringement of any copyright or intellectual property rights, or which is otherwise objectionable, or which impacts another person in going about their lawful duties, and/or constitutes a criminal offence.
3.1. You accept that the Company will provide you with the Terminal Services, including the Equipment listed in the Application Form.
3.2. You agree to pay the Fees on or before the dates specified in this Agreement for the Term.
3.3. You must provide at your cost a suitable power supply and internet connection to enable the Equipment and/or Terminal Services to operate.
3.4. You must ensure that your staff are trained in and available for the operation and delivery of the Equipment and Terminal Services and, from time to time, available to carry out minor checks and adjustments to the Equipment (where permitted under this Agreement).
3.5. You must immediately call Customer Support on 0800 476 278 to log any defect, fault, or failure of the Equipment.
3.6. You must immediately notify us via our Contact Centre on 0800 476 278 of any issues, errors, loss, damage, or destruction to the Equipment, no matter how it occurred.
3.7. You must allow us to have immediate access to the Location during Business Hours to install, inspect, test, repair, replace, or upgrade the Equipment.
3.8. You must not commit (or allow) any Abuse of the Equipment, including attempting to modify or alter the Equipment without our consent.
3.9. You must pay for the Repairs or Replacement (Kit Recovery Fee) of the Equipment if Abuse occurs, whether or not such Abuse is your fault or caused by you (except where the same results from any act or omission of the Company).
3.10. You must keep the Equipment in the same good working condition as at the commencement of this Agreement, excluding fair wear and tear.
3.11. You must not represent that we or any third party will pay for any repair or maintenance work done by others.
3.12. You must obtain and maintain any appropriate consents (such as building or landlord) as may be necessary to install and use the Equipment and the Terminal Services.
3.13. You must first obtain written consent from us and comply with our directions or any Third Party relating to the use of our or the Third Party’s marks, logos, or advertising materials.
3.14. You must ensure that the Equipment is used carefully and properly and solely for the purpose intended by its manufacturer and in accordance with the manufacturer’s instructions.
3.15. You must keep the Equipment in your possession and under your control at the Location or such other place approved by the Company.
3.16. The Equipment must be used solely for and incidental to your Business and not used in contravention of any policy of insurance.
3.17. You must ensure that every user and/or operator of the Equipment complies with all laws affecting the Equipment and the use and possession of the Equipment.
3.18. You must ensure that no user and/or operator interferes with any identification marks, labels, logos, or notices on the Equipment.
3.19. You must not allow the Equipment to be used or permit anything to happen to the Equipment whereby the warranties relating to the Equipment (to the extent made known to you) may become inoperative or be prejudicially affected.
3.20. The Equipment is at your risk from the date on which it is delivered to you at the Location or is otherwise provided to you. The Equipment remains the property of the Company 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.
3.21. You must keep the Equipment insured with a reputable insurer during the Term. Such insurance must:
(a) Be for such risk and such amount or amount(s) and on such terms as are set out in this Agreement or such other reasonable amounts as are notified to you by us;
(b) Provide that all insurance monies paid out under such insurance policy with respect to the Equipment are payable to us (with any such monies received by us being set off against Fees owing by you under this Agreement).
You must immediately notify both us and the insurer of the occurrence of any insured event regarding the Equipment.
4.1. Phone support is available via our Contact Centre 24/7, 365 days per year, by calling 0800 476 278. We will provide the Service Level to you during the Term of this Agreement.
4.2. We will use all reasonable endeavours to respond to service calls in accordance with the Service Level; however, we make no guarantee as to the period for such a response.
4.3. We are not obliged to provide the Service Level if prevented from doing so by circumstances beyond our reasonable control or the control of any Third Party Contractor that provides the Service Level.
4.4. If you have received the Equipment and a replacement part is required, then we may use either new or refurbished parts.
5.1. The monthly Terminal Services Fee is payable in respect of the Terminal Services provided and will be at the rates as stated in the Application Form. The Company reserves the right to vary the Terminal Services Fees or other amounts payable under this Agreement from time to time by giving at least 30 days written notice to the Customer.
5.2. Any variation to the Terminal Services Fee shall take effect from the date nominated in the notice given under clause 5.1. If we change the Terminal Services Fees (excluding the Kit Recovery Fee, any Repair Fees, Direct Debit Dishonour Fee, or the prices charged for Accessories) payable by you, and you do not agree to the change(s), then, subject to clause 5.3, you may terminate this Agreement under clause 7.3.
5.3. If you continue to use the Terminal Services to which the increased Terminal Services Fee(s) applies after the effective date of the change, then you will be deemed to have accepted the new Terminal Services Fee, and the right to terminate this Agreement under clause 7.3 will cease in connection with the relevant increase in the Terminal Services Fees that were notified to you.
5.4. The Company may pass on any increase in the cost of the Terminal Services, and/or the installation or provision of the Terminal Services, to the extent that such increase is caused by any act, omission, or delay by you or any variation in the Equipment requested by you after the date of this Agreement, or any material fact not reasonably discoverable by us at the date of this Agreement.
5.5. A Kit Recovery Fee will be payable by you for each item of Equipment which is not returned to us within three months following the termination of this Agreement.
5.6. A Repair Fee will be charged in respect of damaged Equipment returned to the Company either at the termination of this Agreement or throughout the Term. If the Company determines (acting reasonably) that any Equipment is damaged beyond economic repair, then a Kit Recovery Fee will be payable by you for that item of Equipment.
6.1. You agree to pay all Fees (including any GST) on the due date, whether or not the Equipment is, for any reason (other than on account of any act or omission of ours), not usable.
6.2. Payments shall be made by direct debit from your bank account to the Company on the due date unless otherwise agreed by us in writing.
6.3. You agree to pay all costs that we incur by your breach of this Agreement, including enforcement.
6.4. Payment is not deemed to have been made until it has been cleared in the Company’s bank account.
6.5. Any Fees not paid by the due date will accrue interest at the rate of 5% per annum above the then commercial overdraft interest rate charged by the Company’s primary bankers. Interest shall accrue daily from the date of default until payment is made in full and shall compound monthly. Such interest will be payable by you on demand.
7.1. This Agreement will remain in force for the Term. This Agreement can only be terminated in accordance with one of the express termination rights in this clause 7 or under any other express right of termination set out in this Agreement.
7.2. Either party may terminate this Agreement by giving not less than three months’ notice in writing to the other party, provided that such notice may not be given before the date falling three months prior to the expiry of the Initial Term (so that the earliest date on which this Agreement will terminate under this clause 7.2 is the date on which the Initial Term ends).
7.3. You may terminate this Agreement by 30 (thirty) days’ written notice to us if we change the Terminal Services Fees under clause 5.1 (provided that such notice of termination is given before the relevant change to the Terminal Services Fee(s) takes effect). This right of termination does not apply if there are any changes to the Kit Recovery Fee, Repair Fees, Direct Debit Dishonour Fees, or Accessories Fees.
7.4. This Agreement shall be automatically extended beyond the Initial Term for further successive periods of twelve (12) months (each a “Renewal Term”) and may be cancelled with three (3) months’ notice.
7.5. We may terminate this Agreement immediately by notice in writing if:
(a) You breach any of the terms of the insurance policy with respect to the Equipment, or any such insurance is refused or cancelled; or
(b) You are in breach of clause 10.4.
7.6. 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:
(a) If the party reasonably believes that the other party is committing fraud in connection with this Agreement, the Equipment, or any of the Terminal Services;
(b) If the other party is in breach of any provision of this Agreement and such breach is incapable of remedy, or, if capable of remedy, 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;
(c) 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 a solvent amalgamation or reconstruction); a receiver, administrator or manager of the other party is appointed to it or any of its assets, or an order is made or resolution passed for the liquidation of the other party (other than for 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; or;
(d) If the other party ceases to carry on business or repudiates this Agreement, or the other party’s conduct indicates that it no longer intends to be bound by this Agreement.
7.7. On termination of this Agreement, you shall pay us the following cumulative amount, “Payout Amount”:
(a) Any Fees owing to the date of termination that you have not paid, including any costs incurred by us, including those incurred in obtaining or attempting to obtain possession of the Equipment and the removal, storage, and sale of the Equipment;
(b) Any Repair Fees for any Equipment that is returned damaged or is otherwise not in good working order (fair wear and tear accepted);
(c) Any unpaid Fees for Accessories ordered and supplied before the date of termination; and
(d) If this Agreement is terminated by us under clause 7.4 or 7.5, any Cancellation Fee.
7.8 Upon termination of this Agreement:
(a) Your right to use the Equipment and the Terminal Services immediately ceases;
(b) You must return to us all Equipment in good working order (fair wear and tear accepted) and all guides, stationery, and promotional material supplied to you by us;
(c) The Payout Amount and all other monies owing to us under this Agreement must be paid in full.
7.9. If the Equipment is not returned to us undamaged and in good working order (fair wear and tear accepted) within 30 (thirty) days of the effective date of termination, a Kit Recovery Fee will be payable by you for each item of Equipment not so returned.
7.10. 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).
7.11. Upon termination of this Agreement, we may issue an invoice to you for any Payout Amount owing and we may direct debit your bank account for the same as per your Direct Debit Authority.
8.1. If the Equipment is not returned to us undamaged and in good working order (fair wear and tear accepted) within 30 (thirty) days of the termination of this Agreement, we may enter the Location and remove all Equipment. We will not be liable for any damage caused as a result of such removal. Each item of Equipment which is not returned to us undamaged and in good working order (fair wear and tear accepted) within 30 (thirty) days of the termination of this Agreement will incur a Kit Recovery Fee, which will be payable by you on demand.
8.2. The Kit Recovery Fee payable is determined based on the average replacement cost of the Equipment. The Terminal Services Fee will continue to be payable until the Equipment is returned to the Company undamaged and in good working order (fair wear and tear accepted) or the Kit Recovery Fee is paid in full.
9.1. By signing and submitting to us the Direct Debit Authority, you authorise and direct us to debit funds from your Nominated Bank Account in payment of Fees and other amounts owing by you to us under this Agreement.
9.2. Unless we agree otherwise (for example, in the case of a legitimately disputed invoice), we will debit your Nominated 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.
9.3. You acknowledge and agree that we may vary the amount and frequency of debits made pursuant to the Direct Debit Authority. 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.
9.4. It is your responsibility to ensure that:
(a) the Nominated Bank Account details that you provide to us are accurate and correct;
(b) the Nominated Bank Account can accept direct debit payments;
(c) the Nominated Bank Account has sufficient cleared funds available to enable the direct debits authorised by the Direct Debit Authority to be made from time to time; and
(d) the authority given to us pursuant to the Direct Debit Authority is consistent with the account authority or signing instructions held by your bank in relation to the Nominated Bank Account.
9.5. 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):
(a) 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 Dishonour Fee and we may pass on any charges we incur as a result of a failed or rejected direct debit;
(b) you may be charged a fee and/or interest by your bank and you are responsible for paying that fee and/or interest; and
(c) if payment continues to be unsuccessful, you must make the payment by another method acceptable to us.
9.6. You may request us to stop a direct debit charge by giving us 14 (fourteen) days’ notice by calling Customer Support on 0800 476 278 or via www.smartpay.co.nz/contact/. You may defer, change, cancel, or suspend a direct debit authority at any time by calling us on 0800 476 278 or contact us via www.smartpay.co.nz/contact/
If you cancel or suspend a direct debit authority, you must at the same time nominate a new bank account from which direct debits can be made and execute a Direct Debit Request concerning that new bank account. You may also stop a direct debit charge or cancel a Direct Debit Request by contacting your bank.
9.7. Subject to clause 9.6 above, you agree that despite any expiry or termination of this Agreement, the Direct Debit Authority continues to the extent of (and the Direct Debit Authority continues to apply in respect of) any Fees and other monies that you still owe to us at or after the expiry or termination of this Agreement.
10.1. We warrant that:
(a) The Terminal Services provided to you will be performed with reasonable care and skill;
(b) The Equipment will be of merchantable quality and fit for the purpose for which it is supplied; and
(c) Subject to Abuse not having occurred and the Equipment having been used in accordance with the manufacturer’s instructions, and subject to fair wear and tear, the Equipment will remain of merchantable quality and fit for purpose for the Term.
10.2. To the maximum extent permitted by law, we provide no other warranties about the Equipment or the Terminal Services, and we are not liable for any:
(a) Damage to the Equipment due to a dysfunction of any network on which the Equipment is used that is out of our reasonable control; or
(b) Delay in the installation or provision of the Equipment, or any loss you incur if the Equipment is not working, or you are unable to process transactions.
10.3. We do not guarantee that the Equipment will work at all sites and in all instances. It is up to you to ensure that the Equipment meets your needs and the Terminal Services are acceptable to you and meet your requirements before signing this Agreement.
10.4. 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 under clause 7.4(b) that you are in trade, are not a consumer (as defined in the CGA) and are acquiring the Equipment and the Terminal Services for business purposes only. You agree that the CGA will not apply to this Agreement, and the CGA is expressly contracted out of, and you agree that this is fair and reasonable.
10.5. To the maximum extent permitted by law:
(a) All terms (whether express, implied, oral, or otherwise) not expressly stated in this Agreement are excluded.
(b) 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 and the Terminal Services.
10.6. Neither party will be liable for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation, or damage to or loss of goodwill, or any indirect or consequential loss arising under or in connection with this Agreement.
(10.7.) In any event, the total liability of the Company for any breach of this Agreement will be limited, at the option of the Company, to any one or more of:
(a) The replacement of the same or equivalent Equipment or Terminal Services;
(b) The repair or payment for the Repair of the Equipment;
(c) Repayment of all Terminal Services Fees paid under this Agreement up to the date of breach if liability is proven.
10.8. We take no responsibility and accept no liability for the performance of third parties regarding the delivery of Terminal Services, except where such third parties are Third Party Contractors.
10.9. 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 (in each case to the extent that the same cannot be excluded, restricted or modified). Limitations and exclusions are made only to the extent that the Company may legally do so.
11.1. 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.
11.2. Without limiting clause 11.1 above, you acknowledge and agree that we may obtain from any credit checking agency, information about you for any purpose relating to this Agreement (or our decision to enter into the same).
11.3. Without limiting clause 11.1 above, you hereby authorise us to obtain from any 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 Terminal Services. We use this information, including personal information and information about you collected from third parties, for the following purposes:
(a) to assess and process your application for Terminal Services;
(b) to administer and manage the Terminal Services that we supply under this Agreement; and
(c) to facilitate our internal business operations, including fulfilling any legal or commercial requirements and systems maintenance and testing.
11.4. Without limiting clause 11.1 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 this Agreement to:
(a) any credit checking agency; and
(b) Third Party Contractors.
11.5. This information may include information about terminating this Agreement and the reasons for that termination. Another service provider may use this information (amongst other things) to determine whether or not to make their services or products available to you.
12.1. The person signing this Agreement confirms that they are properly and duly authorised to sign on behalf of the Customer. Should they not be authorised, then they agree to accept full responsibility for all aspects of this Agreement on a personal basis.
12.2. This Agreement is not binding on us until accepted and signed (or assented to) by an authorised signatory of the Company, but it is binding on you once you have signed this Agreement (or otherwise consented to be bound by this Agreement by electronic means).
12.3. The terms of this Agreement cannot be varied or waived by you without our written consent.
12.4. Any provisions that are invalid in law will be ineffective, but will not make any other provisions invalid.
12.5. You authorise us to fill out any spaces left blank by you in this Agreement (after consultation with you), including but not limited to the Initial Term or Fees, and to correct any minor errors relating to any aspect of this Agreement.
12.6. This Agreement is confidential, and all information about it, including any Terminal Services, pricing, and other commercially sensitive information, is strictly private and confidential. You will not divulge any such information to any third party or use it in any way for your advantage, unless:
(a) The information becomes public knowledge.
(b) You are required by law to make the disclosure.
(c) We have consented in writing to the disclosure.
This clause survives termination or expiry of this Agreement.
12.7. As the registered user of the Equipment and the Terminal Services, you are responsible for any misuse of the Equipment and the Terminal Services, even if the misuse was committed by a friend, family member, or guest with access to the Equipment or the Terminal Services.
13.1. Every notice, statement, or other communication required or permitted to be served (“Notice”) by any party (“Sender”) on another party (“Recipient”) under this Agreement must be in writing. Subject to the foregoing, a Notice will be deemed to have been effectively served:
(a) If sent by prepaid post to the Recipient at the address of the Recipient as set out in the Application Form, on the fourth Business Day following the date of postage by the Sender.
(b) If hand delivered, on the date of delivery to the Recipient’s address as set out in Application Form unless such delivery occurs after 5.00 pm (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 at 9.00am on the next Business Day.
(c) If transmitted by email or SMS to a party’s email address or mobile number as set out in the Application Form on the day of transmission if transmitted after 9,00am or before 5.00pm on a Business Day, or otherwise at 9.00am on the next Business Day.
13.2. It is your responsibility to ensure all contact details (including contact name, trading name, trading address, email, mobile number, and any other contact details) remain up to date.
If they change, you must notify us as soon as practicable by calling Customer Support on 0800 476 278 or via www.smartpay.co.nz/contact/
14.1. Where we provide you with Software to operate on your hardware (as supplied by you), or Equipment supplied by us to provide the Terminal Services, you agree that you have no ownership of this Software and that the Software and all Intellectual Property Rights in the Software remain with us. Further, should we develop the Software, with or without your assistance and knowledge, you agree that all rights to such developments remain with us.
14.2. We hereby grant you a non-exclusive, non-transferable licence to use the Software solely in connection with the Equipment and the Terminal Services in your Business for the Term of this Agreement.
15.1. If at any time any provision of this Agreement becomes illegal, invalid, or unenforceable in any respect, then that provision shall be severed from this Agreement, and the legality, validity, or enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
15.2. 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 the Customer or any other person whomsoever by the Company or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any of the rights of the Company 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 the rights of the Company or the obligations of the Customer.
15.3.Time shall be of the essence in this Agreement, but no failure or delay on the part of either party in exercising any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise thereof or the exercise of any other right or remedy.
15.4. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law (except to the extent expressly provided otherwise in this Agreement).
15.5. Clauses 10 (Exclusion of Liability), 14 (Software and Intellectual Property), 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.
15.6. 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 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 (including using any recognised method of online signing), and a counterpart of this Agreement that contains the electronic signature (or confirmation of agreement) of a Party, which counterpart has been transmitted by email or other electronic transmission (including using any recognised method of online signing) to the other Party, shall constitute an executed counterpart of this Agreement.
15.7. We may immediately vary this Agreement if required by, or to comply with, any law, or in connection with, or as a result of, any changes to any laws, provided that we provide you with written notice of such variations as soon as is reasonably practicable after making the variation.
15.8. Without limitation to clause 15.7 above, we may (subject to law) change the terms of this Agreement at our absolute discretion by giving you not less than 30 (thirty) days’ written notice under this Agreement. If any change to the terms of this Agreement relates to any matter other than an increase in Fees (which is addressed in clause 7.3) and the change unduly and/or unreasonably adversely impacts your rights or obligations under this Agreement then you may terminate this Agreement with immediate effect on notice in writing to us given at any time before the change takes effect. Your continued use of the Equipment or Terminal Services after the change(s) take effect will be deemed to be your acceptance of such changes, and your right to terminate this Agreement on account of such change(s) will fall away.
15.9. 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 (“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. Nothing in this clause applies concerning the payment of Fees.
16.1. The Customer may not assign or transfer all or any of its rights, benefits, and obligations under this Agreement without the prior written consent of the Company (such consent not to be unreasonably withheld). If you wish to assign your rights under this Agreement, you can apply to do so by calling our Customer Support team. Assignment of the Agreement by you is subject to our acceptance (acting reasonably) of the creditworthiness of the Assignee. Any proposed assignee must meet all of our requirements for being accepted as a Customer of Smartpay. A reasonable fee is payable, in advance, to cover the administrative costs of assigning the Agreement by you.
16.2. The Company may at any time assign or otherwise transfer to any party all or any part of its rights and obligations under this Agreement, and in that event, the assignee or transferee shall have the same rights and obligations against the Customer as it would have had if it had been a party to this Agreement in place of the Company.
16.3. The Company may assign this Agreement (either absolutely or by way of security) to a financier of the Company at its sole discretion. Where such an assignment occurs, the Customer agrees and acknowledges that the financier shall take assignment of all rights of the Company under this Agreement, but shall not take an assignment of any of the Company’s obligations under this Agreement or at law.
16.4. The Customer agrees that the Company may disclose to a potential assignee or to any person who may otherwise enter into contractual relations with it about this Agreement, such information about the Customer as the Company considers reasonably appropriate.
