Updated May 2023

Parties to this Agreement:

 Skyzer Payments Limited

(In this Agreement referred to as “we” and “us”)

and

You

(in this Agreement referred to as “you”)

BACKGROUND

1. We are proposing to supply Products and Services to you.
2. We wish to enter into this Agreement to record the terms and conditions of supply.

 

A. THIS AGREEMENT

1. Structure

This Agreement is set out into parts each dealing with distinct aspects of our relationship. Where a word or phrase appears in this document commencing in uppercase (e.g “Products”) that signifies that this is a defined term and its intended meaning is recorded in the Definitions and Interpretation section (Clause 21). This is to ensure certainty of meaning whenever that word or phrase appears.

2. Commencement

This Agreement commences on the date where you have signed it or (if earlier) when we accept an order for the supply of Products to you. From that date you and we are both bound by its terms.

3. Term

This Agreement continues until it is cancelled. It may be cancelled by agreement between us. It may also be cancelled by us if you fail to perform an agreed obligation or if you cease trading or are in receivership or administration or bankrupted. If this Agreement is cancelled we will no longer be in a customer/supplier relationship but we will each remain liable to perform obligations which arose prior to cancellation.

4. Review

From time we may review and/or vary the terms of this Agreement by notice in writing to you. Any variation to the cost or terms of supply will only apply to orders made or Services provided after we have sent you the notice of the variation.

5. Other Terms

We may agree with you terms or conditions that are different to those described in this document. If we do so that must be agreed by us both in writing. More specific terms of service delivery may be recorded in a “Service Level Agreement”. This Agreement may also prescribe protocols for ordering Products and Services. Otherwise (except however is provided in Clause 4) this Agreement covers all agreements and understandings between us about the supply of Products and Services.

B. THE DEALERSHIP

This section covers our relationship of supplier and reseller/dealer/customer. It records our respective contractual rights and obligations with each other.

6. What we do:

6.1. We will supply Products and Services to you on the basis of our standard terms and conditions of supply applying on the date of order and as recorded below.

6.2. Supply will be made in accordance with delivery undertakings in any Service Level Agreement (refer to clause 5). We will do all we reasonably can to meet all orders but are not liable for any delay if we do not do so.

6.3. We will allow Goods or Services to be supplied on credit (i.e. other than COD terms) if you qualify for credit and meet our credit conditions.

6.4. We will replace or repair Products where damage has occurred whilst they were in your custody of control i.e. before risk has passed to you. We will also arrange repair under a manufacturer’s warranty claim or otherwise subject to payment for the cost of repairs in accordance with clause 12.

6.5. We will ensure that when we sell Products to you, you will get full legal ownership of them.

6.6. Provided the Monthly Service Fee (refer clause 7.1.3) is paid we will ensure the Operating Software for any Products is kept up to date and is compliant with current legal requirements.

7. What you will do:

7.1. You will pay:

7.1.1. the purchase price plus any agreed freight or other charges and GST due on any Products we supply you with;

7.1.2. the cost of any Services agreed to be provided to you except when we agree there is no charge;

7.1.3. the Monthly Service Fee we charge on a per unit basis in respect of any Products sold to you and which have been Activated;

7.1.4. Penalty Interest on any overdue payments or where you are in default (refer clause 13); and

7.1.5. any costs we incur in recovering any amount due to us or enforcing our rights.

7.2. You will ensure that Products are on sold, leased out or otherwise dealt with only in a way that best protects the integrity of our brand, the manufacturers brand and is fair to your customers. You will in doing so ensure any standard onsale terms we prescribe are included in your sale or lease documentation.

7.3. You will comply with your legal obligations in this respect including those under the Fair Trading Act and the Consumer Guarantees Act. Whenever your customer is not a “consumer” for the purposes of this legislation or is buying as a consumer for the purposes of their business you must ensure that to the fullest extent permitted by law your sale terms contract out of this legislation and also any other warranties implied by law. If you do not do this you will indemnify us for any claims losses or costs we suffer or incur as a result.

7.4. You will ensure that all your customers are made aware of user or operating instructions for the Equipment and acknowledge that use of Operating Software is subject to the terms of its user licence (which will be supplied with the Equipment and must be drawn to the attention of your customer when you install or deliver it). To best ensure the location and use of Products which have been on sold is appropriate and compliance for confirmed upgrade of Operating Software you agree not to on sell Products through Trade Me or other online auction sites. You agree to keep a record of the location of all Products onsold or leased by you and will supply this information to us if required. You will obtain from your customers all authorities required for these purposes under relevant privacy laws.

7.5. Additionally, to ensure that the objectives in clauses 7.4 and 7.5 are met in the event that you finance the onsale or leasing of Products in a manner whereby the financier may become entitled to take possession of them (in default or otherwise), you must, before entering into any arrangement with a financier for this purpose, have the financier enter into an acknowledgement in the form attached. Whenever you engage a financier (new or replacement) you must supply contact their details to us.

7.6. You will insure all Products (with a recognised insurer), which are held by you but still owned by us (in accordance with clauses 8.1 8.3.1 and 8.7) for their full replacement value for all usual risks and in a way that our interest as unpaid seller is noted.

7.7. You will order and pay for Products and Services in accordance with the protocols detailed in any Service Level Agreement. Prices are subject to change at any time from notification by us. We are not obliged to meet any order of delivery terms you request and may deliver in instalments (in which event each instalment will be treated as a separate order).

 

8. Title and Risk in Products

8.1. You will take legal title to Products when we have been paid in full for those Products but provided also that at such time you have also paid us any other money you owe us.

8.2. Risk in Products supplied passes to you when you receive them from us, or where you have arranged to collect them, when they leave our premises. This means that you must insure them from this time and if they are then damaged or lost we are not responsible for repair or replacement. If you wish to make a claim that Products have been damaged in transit, we may reimburse you or credit your account for Products returned, but only if we are satisfied they were damaged whilst they were at our risk and only if you notify us of the damage within 48 hours of delivery, first giving us adequate opportunity to inspect them.

8.3. Payment Protection

We are protected in two ways:

8.3.1. Firstly for payment of the purchase price of any Products or Services supplied by a security interest over Products supplied to secure all moneys from time to time owed. This security interest will permit you to on sell the Products but on the condition that you do so in the ordinary course of your business. Products may become part of or combined into other goods. In either case we have a right to trace our ownership into the proceeds of on sale of the Products or Mixed Goods (as the case may be) and we also have a right to enter any premises where we believe these Products are stored to inspect and/or collect them. This is a “security interest” as defined in the Personal Property Securities Act and we are entitled to all rights of a secured party under that Act. You will sign and do all things we need to register our security interest on the Personal Property Securities Register and indemnify or reimburse us for any losses or costs we suffer or incur in enforcing or attempting to enforce our rights as a secured party

8.3.2. We are protected for payment of the Monthly Service Fees by a right to Deactivate the Operating Software (refer clause 10).

8.4. Credit Terms

We may agree to supply Products on credit terms but only if you first satisfy us that you are a safe credit risk (otherwise payment is due in exchange for delivery – COD). Credit terms will be as agreed by us and may change for any order. If we do not specifically agree to the terms of payment for sales on credit then payment is due by the 20th day of the month following delivery. We may withdraw credit terms if at any time we are not satisfied that you are a safe credit risk. If you provide us with personal information for the purpose of assessing your credit-worthiness you acknowledge that unless you provide information requested your right to credit may be withdrawn or denied. You also authorise us to seek information from other agencies to assess creditworthiness.

8.5. Sale of Your Business

If (but subject to approval under clause 13) you sell or otherwise dispose of your business or any part of your it that affects Products you must first notify us of the sale you must provide any information we may require about the Purchaser and ensure that the sale terms require the purchaser to sign a Reseller Agreement like this one. The Purchaser of your business must agree to continue paying Monthly Service Fees for all products sold or disposed of by you. In this clause the words “sell or otherwise dispose of” includes giving a security interest over any of your assets to a lender or financier.

8.6. Products Returned for Credit

When we have sold Products to you we have no obligation to take them back if you no longer want them. If we agree to do so this will be on any terms we stipulate (which may require that you pay a re-stocking fee, that you pay all freight and related charges). We will not credit you for any returned Products if we do not receive any them in original undamaged condition (including the undamaged packaging) together with the relevant packing slip and invoice and all relevant manuals, cables and accessories. Products supplied to you in this way will remain in our ownership until they are paid for. And we will have a security interest to protect us – refer clause 8.3.1.

8.7. Demo/Loan Products

We may from time to time agree to supply Products on loan or “on approval”. If we agree to do this we may stipulate the terms of supply. In such event the Products will still be invoiced to you. They must be returned (in the same conditions as described in clause 8.6) on or before the end of the agreed loan period, or otherwise on demand. If Products supplied in this way are not returned as required then they must then be purchased and paid for without delay, in accordance with the invoice.

C. PRODUCTS AND SERVICES

This section refers to the nature of the Products and Services we supply.

9. Hardware

We supply EFTPOS and point of sale equipment described in product catalogues which we publish from time. We will do our best to ensure that all Products supplied meet our advertised standards and functionality. We may change Products from time to time and we cannot guarantee that at any time you make an order an advertised Product will be available for immediate delivery but we will do our best to meet your order.

10. Software

In connection with Products sold we also supply Operating Software. Because compliance requirements are increasing, as well as through a need to keep up with technological updates, we upgrade Operating Software on an ongoing basis. We will do so for all Products supplied by us so long as the Monthly Service Fee has been paid for the item of Product concerned and are satisfied that it is operated appropriately. If the Monthly Service Fee is at any time unpaid or we have concerns about the way a Product is being operated we have a right (subject to not less than 7 days prior notice) to Deactivate the Operating Software, and in doing this we have no obligations to the owner or user. This is why you must ensure your customers are aware of these conditions. You will indemnify us for any liability or losses/costs we suffer or incur as a consequence of Deactivation.

The Equipment runs on Operating Software, the terms of use for which are recorded in a Software Licence. A copy of the Software Licence current at the date of this Agreement is attached as “Annexure A”. It is essential that all users of the Equipment understand that failure to comply with the terms of the Software Licence entitles us to Deactivate the Operating Software (either temporarily or permanently depending on the nature of the breach). If we do this the Equipment will not function. To ensure ongoing compliance requirements are met and to keep up with technological updates, we need to upgrade Operating Software from time to time. To meet the costs of our doing so there is, unless set out in the Schedule, under the Software Licence a monthly service fee levied against any item of Equipment sold. You must ensure that any users of the Equipment sold to you are aware of the terms of the Software Licence (including in particular the possibility we may Deactivate the Equipment) and you must not on sell the Equipment without disclosing these terms to the purchaser (and requiring them only to on sell on the same basis). You will indemnify us for any liability or losses or costs we suffer or incur on any occasion that we exercise this right.

11. Repairs

If we agree to carry out repairs on Products supplied (not being a repair by manufacturer under warranty), we may do so at a cost to be agreed once we have been able to assess the work required. The cost of repair must be paid for on agreed trading terms, or if we do not grant credit for the cost then payment must be made in exchange for delivery. We will have a “lien” over the equipment repaired in accordance with the Wages Protection and Contractors Liens Repeal Act. This means that we can hold the Product concerned until the repair cost is paid and if it is not paid within 2 months it may be sold by us to cover our costs.

D. PRODUCTS AND SERVICES

This section deals with the various general matters typically found in commercial contracts and sometimes known as “boiler plate” clauses.

12. Assignment

From time to time you may wish to assign contracts, or parts of your business either in connection with a business sale or financing reasons. This is permitted but only if we agree to it, however if we do agree that will not affect our prior business dealings. We can give consent subject to conditions. Where this is done for financing reasons we may require your financier to enter into a document that protects our rights. If your business is sold we will require a new agreement with the purchaser for ongoing business. If you area company or other incorporated entity a change of a controlling interest in the shares or ownership is considered an assignment for those purposes.

We may sell our business (in whole or in part). If we do that all our rights and interests in this Agreement and contracts entered into in connection with our business relationship may be assigned to the purchaser.

13. Default

If you are in Default in making a payment to us we can require you to pay Penalty Interest on the outstanding amount until it is paid to us in full. Additionally, if you are otherwise in Default we can require you to pay Penalty Interest until that Default is remedied. If we incur any loss or expense in taking advice or enforcing our rights (or attempting to do so) you will reimburse us for those costs. Our other remedies if you Default are to pursue our legal rights – including to cancel, sue for damages or to seek an injunction if urgent action is required.

14. Limited Warranties

We warrant that Products sold to you will perform according to their specification. We do not give any other warranties. To the fullest extent permitted by law we contract out of the Fair Trading Act, the Consumer Guarantees Act, and all other warranties implied by law. If any Products we supply are faulty we will do what we reasonably can to find a solution for you and will repair them under warranty. We cannot be required to expend or pay you more than you have paid us for the faulty Products. We are not liable for any consequential loss (such as the loss of a contract or income or costs you incur, or anything else which is not the actual cost of repairing a faulty Product). If any Product has been tampered with used in a way that is not recommended by the manufacturer, or for any purpose that it was not designed for then there is no obligation of repair. Faulty Products must be returned to us in the packaging in which they were delivered to you, together with a full description of the fault.

We warrant that the Equipment will function in the manner we have agreed with you. Attached as “Annexure B” is our standard Hardware Warranty which provides a further warranty. These are the only warranties we give. As we are not providing any other warranties you must ensure that the Equipment meets your needs. If any Equipment sold to you is faulty, we will repair or replace the Equipment with the same or an equivalent solution.

For the avoidance of doubt, to the fullest extent permitted we do not give any warranties or guarantees implied by law, including those under the Sale of Goods Act 1908, the Fair-Trading Act 1986 or the Consumer Guarantees Act 1993. If you on sell the Equipment you must include these exclusions in your on sale agreement (to the extent that implied warranties affect us) and you will indemnify us if you fail to do so.

15. Intellectual Property Rights

Intellectual Property Rights in Products or Operating Software owned by a manufacturer or by us do not transfer to you when you buy a Product. If you become aware of any third party misuse of intellectual property rights you will advise us so that we can try to protect them for their owner.

16. Force Majeure

If a Force Majeure event prevents or restricts us from meeting any commitments under this Agreement then we are excused from that commitment, but only to that extent and we otherwise have to meet out agreed obligations.

17. Severability/Modification

If any wording, term or condition of this Agreement is found by a court of law to be illegal or unenforceable then that wording, term or condition will be disregarded, or modified, to the extent required to ensure that this Agreement is otherwise fully enforceable as it is intended to be.

18. Jurisdiction/New Zealand Law Applies

If there is a dispute or legal action in connection with this Agreement it must be heard in a New Zealand Court, and New Zealand laws apply to it.

19. Notices

If any notice is required to be served in respect of this Agreement it will be considered properly served if has have been delivered as follows:

To Us:

Skyzer Payments Limited

269 Mount Smart Road

Onehunga, Auckland 1061

To You:

 

 

 

20. Counterpart Signing

To make it easier for us to sign this Agreement, rather than all Parties needing to be in one place to sign it, it can be signed in counterpart copies.

This means that so long as each Party has signed a copy of this Agreement (both copies being identical) then there will be a binding agreement, on the basis that each Party then sends a copy of the signed document to the other (which can be a scanned copy by email or by fax).

21. Definitions and Interpretation

In this Agreement some words or phrases are “defined terms”. They are recognisable because when they are used they start in upper case (e.g. “Products”).

The following are defined terms:

“Activate” means any terminal that has had the Skyzer software activated by Skyzer upon its issue to You or merchant. For the avoidance of doubt, an active status does not relate to terminal activity on the Worldline or any other payment network. A terminal is deemed active until You or a merchant has requested Skyzer to deactivate the software on the terminal, or Skyzer deactivates the software as detailed in Annexure A. The software on a terminal cannot be reactivated after a request to deactivate has been made except at Skyzer’s discretion and any reactivation will be subject to a reactivation fee of NZ$250 per terminal.

“Agreement” means this document or any binding variation of it that is recorded in writing.

“Confidential Information” means all information which is identified as confidential by a party, or which is of such nature that a reasonable person would consider it to be confidential, including trade secrets, know-how, techniques, forecasts, information about a party’s business, finances, customers, plans and products and all other commercially valuable information of a party, the terms of this Agreement, any negotiations between the parties, and any notes and other records of any such information, including copies of it. Confidential Information does not include any information which is part of the public domain through no breach by a receiving party of any confidentiality obligation, information received from a third party through no breach by the third party of any confidentiality obligation, information which is known to a party prior to the date of its disclosure, or information which is required to be disclosed by law, a government agency or a recognised stock exchange (in which case clause 18 applies).

“Deactivate” means to disengage Operating Software operation for any item of Product.

“Default” means a failure to perform an obligation.

“Equipment” means an EFTPOS terminal or other apparatus of similar function.

“Force Majeure” means an “act of God” or other event beyond a Party’s control.

“Hardware Warranty” means our standard warranty for equipment, attached hereto as Annexure B.

“Intellectual Property Rights” means all kinds of rights to intellectual property, which it is registered or formally recognised and includes copyright patents trademarks registered designs and goodwill and other rights in these things.

“Mixed Goods” means goods that have been created incorporating Products (refer clause 8.3.1).

“Monthly Service Fees” means the monthly servicing fees for compliance and updating of Operating Software for Products.

“Operating Software” means the unique software system devised by us for the Equipment to function effectively.

“Parties” means you and us- the parties to this Agreement.

“Penalty Interest” is the charge (calculated at a rate which is 2% above our overdraft rate from time to time) which is payable when you are in Default.

“Products” means Equipment and other goods sold by us to you (including EFTPOS terminals and related hardware).

“Services” means services (related to Products) which we may agree to provide to you from time to time.

“Service Level Agreement” means an agreement of the kind contemplated by clause 5.

“Software Licence” means the document recording the terms by which the Operating Software may be used, a copy of which is attached as “Annexure A”.

With regard to the interpretation of this Agreement:

Words or phrases will have their usual meaning;

A reference to the singular is also a reference to the plural;

A reference to any gender is also intended to describe any other gender; A reference to currency is to New Zealand currency;

A reference to any law is to a New Zealand Law. When an Act of Parliament is referred to it is to be read as referring to the currently applying Act described.

22. Confidentiality

This agreement is confidential. Each party must:

keep any Confidential Information disclosed to it secret and confidential, and not disclose it to any third party;

use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement;

on demand from the disclosing party, immediately return to the disclosing party, or destroy, the Confidential Information or any part of it;

immediately notify the other party in writing of any disclosure of Confidential Information required by law, a government agency or a recognised stock exchange, and follow the disclosing party’s reasonable directions in relation to such required disclosure; and

ensure that Confidential Information is disclosed on a need-to-know basis amongst its respective personnel.

The parties further acknowledge that damages alone may be an inadequate remedy for breach of the confidentiality obligation in this clause, and that a disclosing party is entitled to remedies such as injunctive relief and/or specific performance to prevent a breach.

23. Special Conditions

Recorded below are any special conditions that apply to this Agreement. They negate replace or modify the general conditions recorded in clauses 1 to 22 above and apply only for this Agreement. Unless we agree otherwise these special conditions do not apply to any other agreement we enter into with you or with any other person.

Annexure A – Software Licence

Annexure B – Hardware Warranty