1.      Purpose

The purpose of this document is to record the general terms and conditions of our relationship, for selling Product to you. 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 14). This is to ensure certainty of meaning whenever that word or phrase appears.

2.      What We Are Selling

2.1. We will sell the Products to you on the basis of the terms and conditions recorded below. This includes hardware and operating software, in accordance with the Schedule.

2.2. We may also agree to provide Services. 

3.      Price and Payment Terms

3.1. The Purchase Price for the Product is set out in the Schedule. Unless otherwise stated the Purchase Price excludes GST, which must be paid in addition.

3.2. The Purchase Price, and any GST must be paid in full (without deduction or set off) on the date of delivery, or as otherwise specified in the Schedule.

3.3. If any payment is not made by you on due date then, in addition to any other rights we have, you agree that if we demand payment of Penalty Interest you will immediately pay that also (at the rate prescribed in the Schedule).

3.4. You will also pay us (on a full indemnity basis) any costs we incur to enforce our rights if you do not meet any obligation.

3.5. If you default in payment of the Purchase Price prior to delivery we may, by notice to you, cancel this Agreement and forfeit any deposit or pre-payments made (on account of our costs and losses from your failure), and we will then have no further obligations to you.

4.      Risk and Title/Security Interest

4.1. Risk in the Product passes to you as soon as it is delivered. You will need to arrange insurance cover as from the time and date of delivery.

4.2. Title in the Product will not pass to you until you have fully paid us all amounts owing to us under this Agreement

4.3. To protect our interest as unpaid seller of the Product you grant us a “purchase money security interest” over all the Product (as this term is defined in the Personal Property Securities Act 1999). We are entitled to all rights of a secured party under that Act. You will (at our cost) sign and do all things we need to register our security interest on the Personal Property Securities Register (which is defined in that Act). We are entitled to enter any premises where we believe Product is located to inspect and/or retake possession of it.

5.      Hardware

The Product we supply is EFTPOS and point of sale Product described in product catalogues which we publish from time. We will ensure that all Product supplied to you meets 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. 

6.      Software

The Product 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 and attached as “Annexure B”. It is essential that all users of the Product 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 Product 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 Product sold. You must ensure that any users of the Product sold to you are aware of the terms of the Software Licence (including in particular the possibility we may Deactivate the Product) and you must not on sell the Product 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.

7.      Support Services

Together with the supply of Product we may agree to provide additional Services to support them (in addition to Operating Software upgrades). A description of Services we have agreed to provide is set out in the Schedule. The cost of these Services may be additional to the Purchase Price or the monthly service fee unless set out in the Schedule.

8.      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. 

9.      Warranties/Faulty Product

9.1. We warrant that the Product will function in the manner we have agreed with you. Attached as “Annexure C” 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 Product meets your needs. If any Product sold to you is faulty, we will repair or replace the Product with the same or an equivalent solution.

9.2. 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 Product 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.

10.      Intellectual Property Rights

Intellectual Property Rights owned by a manufacturer software supplier, or by us, do not transfer to you when we sell Product to you. If you become aware of any third-party misuse of Intellectual Property Rights you will advise us so that we can attempt to protect them.

11.   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 we must otherwise meet our agreed obligations.

12.   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.

13.   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.

14.   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. “Product”).

The following are defined terms:

“Activate” means to initiate Operating Software. 

“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.

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

“Default” means a failure to perform an obligation.

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

“Hardware Warranty” means our standard warranty for Product, attached hereto as Annexure C.

“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.

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

“Parties” means you and us – the parties to this Agreement. Party refers to either of us.

“Product” or “Terminals” refers to the EFTPOS terminal/s or other apparatus of similar function which we have agreed to sell to you (detailed in the Schedule).

“Purchase Price” means the full price to be paid for the Product, as set out in the Schedule.

“Schedule” means the schedule to this Agreement.

“Services” means services (related to Products) which we may agree to provide to you in connection with the Product, as set out in the Schedule.

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

15.   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 14 aabove 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 B – Software Licence

SOFTWARE LICENCE, TERMS AND CONDITIONS OF USE – SKYZER PAYMENTS LIMITED (“The Licensor”) The below terms and conditions are attached to use of Software installed into EFTPOS terminals provided by the Licensor.

WARNING, please read these terms and conditions carefully as use of any Skyzer EFTPOS terminal is subject to the Software user licence described below.

BACKGROUND

  1. The Licensor has developed and owns the software described below (“Software”).
  2. The Licensor has installed the Software into EFTPOS terminals or related equipment (“Terminals”).
  3. This document records the terms and conditions upon which any owner or User of Terminals may use the Software.
  4. By using the Software, in conjunction with Terminals, Users agree to and are bound by the terms and conditions below.

AGREEMENT

1.   Definitions

Definitions – In this document, the following words will have these meanings:

Commencement Date means the date of first use of the Software by the User.

Deactivate and Deactivation means disengaging the Software, so that it ceases to function for affected Users.

Intellectual Property or IP means all confidential information and other “know-how”, trademarks and patents and all other intellectual property rights (whether registered or not) relating to the Software.

Licence means the software licence granted by the Licensor to use the Software in connection with a Terminal, the terms and conditions for which are recorded in this document.

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

Parties means the Licensor and the User, and Party refers to either one of them.

Software means the Licensor’s proprietary software known as “Skyzer Payment Software” together with associated applications agreed to be licensed under this document, consisting of a set of instructions or statements in object code or machine-readable medium together with any associated materials and includes software upgrades.

Upgrade means any modification or enhancement to the Software which may be introduced by the Licensor to respond to technological updates and/or to adapt or improve functionality.

User means the person or entity who or which uses the Software in connection with a Terminal.

2.   Termination

2.1. The Licensor may terminate the Licence if:

     2.1.1. the User is wound up, placed in receivership or administration or steps are taken that may lead to such event; or files a voluntary winding up petition or a liquidator is appointed.

     2.1.2. the User ceases to use the Terminal on which the Software is installed in accordance with usual or recommended modes of operation, or otherwise uses the Software or the Terminal in a way that compromises their integrity.

     2.1.3. the User the ceases to have possession or control of the Terminal.

     2.1.4. the Monthly Service Fee is on any occasion not paid when due (time being of the essence).

2.2. In the case of sub-clauses 2.1.1 to 2.1.3 inclusive no prior notice is required for termination. In the case of sub-clause 2.1.4 not less than 7 days prior notice is required.

    3.   Deactivation for Default

    If the preconditions to termination apply the Licensor may as an alternative to termination but following not lessthan 7 days prior notice to the User, Deactivate Software in respect of any Terminal. Deactivation, at the Licensor’sdiscretion, may be temporary (until such conditions cease to exist) or permanent.

    4.   Effect of Termination

    4.1. On the termination of this Licence:

         4.1.1. all use rights of the User to use the Software will cease.

         4.1.2. the Licensor may at its discretion Deactivate the Software.

         4.1.3. the Licensor may repossess the Terminal.

    5.   Assignment

    The benefit of the Licence is not capable of being dealt with in any way by the User (whether by assignment, mortgage or otherwise). The Licensor may assign the benefit of this License in the case of a business or asset sale or financing or in connection with a corporate reorganisation.

    6.   No Waiver

    No right under this document will be deemed waived except by notice in writing to the other Party. A waiver in any instance will not prejudice other rights in respect of any subsequent breach.

    7.   Governing Law

    These terms and conditions are governed by the laws of New Zealand and any dispute in connection with them will be determined in a Court in New Zealand.

     

     

    Annexure C – Hardware Warranty

    Skyzer grants the User a non-assignable warranty that the components in the Product will be free from defects in materials and workmanship and will operate in the manner represented by Skyzer.

    This warranty excludes:

         1.   Any Product that has been removed, altered, repaired, or opened or has had its warranty seal broken by the User or any third party.

         2.   Product that has had its serial number altered, defaced, or removed.

         3.   Product that has been subjected to unusual physical, environmental, or electrical stress, including but not limited to:

               3.1. Power surges or lightning strikes;

               3.1. Fire;

               3.1. Pest infestations;

               3.1. Liquid spills or ingress; or

               3.1. Physical impact.

         4.   Any external and removable power supplies and/or mains cables included with or connected to the Product.

         5.   The cost of any operating supplies; and

         6.   The cost of refinishing or cleaning the Product or supplying materials for those purposes.

      Where Product is returned to Skyzer and no fault is found, Skyzer may charge its standard service fee in respect of each of such Product.

       

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