Thanks for choosing Smartpay as your payments solution provider. This Agreement sets out the terms and conditions relating to Smartpay’s provision of technical and software support. It applies to customers purchasing an EFTPOS terminal from Smartpay.
1. Definitions and Interpretation
2. Our Obligations to You
3. Your Obligations
4. Price and Payment
5. Termination and Extension
6. Software and Intellectual Property
7. Other Terms and Conditions
8. Exclusion of Liability
9. The Privacy Act 1993
This Agreement is for the provision of Software and Support Services from Smartpay Limited and/or its subsidiaries.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context indicates otherwise:
“Agreement” means these terms and conditions, including the Schedules, as may be updated from time to time;
“Application Form” means the application form on the front page of this Agreement;
“Commencement Date” means the date this Agreement was entered into;
“Customer”, “you” and “your” means the person(s) or legal entity named overleaf. If there is more than one, and/or it means each of you separately and all of you jointly and severally;
“Equipment” means the EFTPOS terminal(s) purchased from Smartpay and listed on the Application Form;
“Fees” means all the sums payable to us by you under this Agreement, as detailed on the Application Form;
“Initial Term” means the period from the Commencement Date and running for 12 months; or as specified in the Application Form;
“Services” means the Support Services and the Software Services (as applicable);
“Smartpay”, “we”, “our” or “us” means Smartpay Limited, its assignees, successors and any subcontractor engaged by, the Company to provide the Services;
“Support Services” means the technical support services relating to the use of the Equipment as set out in Appendix 1;
“Software Services” means support with respect to the executable program and/or application loaded onto your Equipment to allow the acceptance of payments, and any associated services, as set out in Appendix 1;
“Third Party” means any organisation or individual or company who deliverers the Services, or parts of the Services, where these are not in our control;
“Term” means the Initial Term, plus the period after the initial term until this Agreement is terminated.
1.2 In this Agreement, unless the context indicates otherwise:
- a) Any terminology of the singular also includes the plural;
- b) “person” includes any body or entity;
- c) a reference to a party includes that party’s successors, legal personal representatives and assigns;
2. OUR OBLIGATIONS TO YOU
2.1 In consideration for the Fees we will provide the Services to you during the Term.
2.2 Telephone support is generally available 24 hours a day, 7 days a week, 365 days a year.
2.3 On-site support may be provided at Smartpay’s discretion, where the issue could not be resolved via telephone support and is deemed to be a fault with Smartpay’s software.
2.4 We will ensure the payment software on your Equipment remains compliant with the Paymark Network software specifications until at least 30/04/2022.
2.5 Where a new release of software is available that applies to your Equipment, we will make these available to you on request to be updated remotely onto your terminal when it is connected to a sufficient internet connection. We reserve the right to request the Equipment be returned to Smartpay’s premises in order to apply an upgrade if Smartpay deem this as necessary.
3. YOUR OBLIGATIONS
3.1. In entering into this Agreement you acknowledge and agree:
- a) That you accept that Smartpay will be providing a range of Services, in some cases to be delivered and/or operated on the Equipment listed on the Application Form;
- b) You agree to pay the Fees on or before the dates specified in the Application Form for the Term.
- c) You must provide at your cost or purchase from us a suitable power supply and/or telephone connection and internet connection to enable the Equipment and/or Services to operate, unless a mobile SIM and data plan are provided by Smartpay as part of an active support plan;
- d) You will ensure your Equipment is connected to the internet from time to time to enable software updates to download to your Equipment;
- e) To make all reasonable efforts to ensure the ongoing functioning of the Services;
- f) To observe and comply with the provisions of the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and all other applicable laws, regulations and requirements of any government or statutory body, including applicable industry guidelines or codes of conduct;
- g) To make all reasonable efforts to ensure the security of the payment hardware.
4. PRICE AND PAYMENT
4.1 The pricing will be at the rates as quoted on the Application Form. At the end of the Initial Term Smartpay reserves the right to vary the rates from time to time by giving at least 30 days written notice to the Customer. The variation shall take effect from the date nominated in the notice.
4.2 Smartpay may pass on any increase in the cost of the Service or provision of the Service where such increase is caused by:
(i) any act, omission or delay by you or any variation in the Service ordered, requested by you after the date of this Agreement or any material fact not discoverable at the date of this Agreement;
(ii) any Third Party.
4.3 Payments shall be monthly by direct debit from your bank account to Smartpay unless otherwise agreed by us in writing.
4.4 In the event that the Fees are not paid by the due date interest will be charged at a rate of 2% per month on the outstanding balance as from the date of default and shall compound weekly or monthly depending on the payment period.
5. TERMINATION & EXTENSION
5.1 Either party (“First Party”) may terminate this Agreement on notice to the other party in the event that:
- a) the other party breaches any of the terms of this Agreement and such breach is either incapable of remedy, or capable of remedy but not remedied within 14 days of receipt of notice from the First Party identifying the breach and requiring that it be remedied;
- b) An application is made to adjudicate the other party bankrupt or an application or resolution is passed for the other party’s liquidation or winding up, or the other party is dissolved or struck off the NZ Companies office register; or
- c) A receiver, liquidator, administrator or like person is appointed to the other party.
5.2 At the date of termination you shall pay any fees owing which you have not paid to the end of the Term.
5.3 Any fees owing at the date of termination shall be immediately paid and the Services shall cease to be provided at that date.
5.4 Any fees that have been paid at the date of termination shall be deemed to have been fully utilised.
5.5 This Agreement may be automatically extended beyond the Initial Term on a month to month basis at Smartpay’s discretion and will continue thereafter unless you deliver notice of one month that you wish to terminate this Agreement. If Smartpay automatically extends the Agreement, Smartpay will give the Customer notice at least one month prior to the end of the initial term via email.
5.6 Once terminated there is no opportunity for you to start a new Agreement for the Equipment. Following the Term, any additional Services provided by Smartpay may only be provided at Smartpay’s standard rates and for the life of the Equipment.
6. SOFTWARE AND INTELLECTUAL PROPERTY
6.1 Where we provide you with Software to operate on your Equipment, you agree that you have no ownership of this Software and all intellectual property remains with us. Further, should we further develop the Software, with or without your assistance and knowledge, you agree that all rights to such developments remains with us.
6.2 You are not to permit or allow staff or any Third Party any access to the Software and/or files in any way which may facilitate the analysis, copying or reverse engineering of the operating system. We reserve the right to claim compensatory or other relief for breach of this condition.
7. OTHER TERMS AND CONDITIONS
7.1 The person entering into 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.
7.2 This Agreement is not binding on us until accepted and signed by an authorised signatory of Smartpay but it is binding on you once you have signed this Agreement.
7.3 In some instances Services will require specific additional terms and conditions (including terms of Third Parties). If not specifically noted in these terms and conditions, we will provide these to you and those terms and conditions also form part of this Agreement. Further, where those terms and conditions are not consistent with these terms and conditions, then these standard terms and conditions will take precedence.
7.7 This Agreement, and any other specific terms and conditions provided relating to Services, is the whole Agreement between us, and you have not relied on any other statement, document or promise made by a third person introducing you to us, whether before or after this Agreement is executed.
7.8 This Agreement is governed by and shall be construed in accordance with the laws of New Zealand.
7.9 You authorise us to fill out any spaces left blank by you in this Agreement, including but not limited to, the Term or Fees, and to correct any errors relating to any aspect of this Agreement.
7.10 Neither party will be liable to the other party for any breach or failure to perform any of its obligations under this Agreement where such breach or failure is caused by way, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, whether phenomena or other act of God, governmental regulation or direction, or any other cause beyond its reasonable control whether similar to any of the foregoing or not (“Force Majeure Event”).
7.11 You may not assign this agreement without Smartpay’s prior written consent (which may be withheld in Smartpay’s absolute discretion).
8. EXCLUSION OF LIABILITY
8.1 All conditions, warranties and guarantees implied by law are excluded to the maximum extent permissible. We have made no representation or statement and give no condition, warranty or guarantee about the Services provided.
8.2 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 Service is acceptable before entering into this Agreement.
8.3 You acknowledge that the Services supplied are for business purposes only and therefore that the provisions of the Consumer Guarantees Act 1993 do not apply. We are not liable to you or anyone else for any loss, damage, expense or claim, direct, indirect or consequential arising out of the performance or non-performance of the Services.
8.4 In any event, the total liability of Smartpay for any breach will be limited to repayment of all Fees paid up to the date liability is proven.
8.5 We take no responsibility nor accept any liability for the performance of Third Parties in relation to the delivery of Services.
9. THE PRIVACY ACT 1993
9.1 The Customer and directors authorise us to collect, retain and use personal information about you (the “Information”) including directors in the case of a limited liability company or trustees in the case of a trust.
9.2 The Customer and directors authorise us (to provide and request the information to and from any person for assessing the Customers and directors credit worthiness, marketing goods and services provided by us or our related companies and providing information to or requesting information from, Third Parties or credit agencies for the purpose of maintaining effective credit records and assessing the Customers and directors credit worthiness.
9.3 The Customer irrevocably acknowledges:
- a) That the information shall be deemed to be held by Smartpay, Third Parties and by any other person for the purposes described above;
- b) That where the information can be readily retrieved, the Customer shall have access to it, the right to request correction and the right to be notified of action taken in response to any such request, subject to payment of any reasonable charge.
10.1 Both parties must each keep confidential all information about each other which is, in its nature, or is advised by the other party in writing to be, confidential and which comes into our respective possession.
10.2 Neither party is permitted to disclose any confidential information about the other without the prior consent of the other unless:
- a) Public: that information has become publicly available other than by reason of a party’s breach of confidentiality;
- b) Required by Law: disclosure is required by law;
- c) Participating Person: disclosure is to any other person participating, or potentially participating, in the funding, discounting or assignment of the Equipment or this Agreement or any particular Rental Schedule provided that party undertakes to comply with this condition; or
- d) Disclosure is required in order to exercise a right or remedy under this Agreement.
Smartpay will provide technical support services relating to the use of the Equipment, including (without limitation):
” Telephone technical support relating to payment application and any add on Smartpay applications subscribed to on the Equipment;
” Web based user guides and help information.
Smartpay will provide support with respect to the executable program and/or application loaded onto the Equipment to allow the acceptance of payments, including (without limitation):
” Payment application software updates on your Equipment;
” Application software updates to any add on Smartpay services subscribed to on the Equipment;
” Mandatory security updates required for the operating system where Smartpay deems necessary. This may require the Equipment to be returned to Smartpay for the application of the update;
” (in the event that you subscribe for this service) GPRS data plan and SIM card to enable the Equipment to connect to the internet for the purposes of processing payments and downloading software updates.