SECTION A: AGREEMENT AND KEY DETAILS
Refer to your Offer Document via WeChat Client Manager
SECTION B: GENERAL TERMS
1.1 Definitions: In the Agreement, the following terms have the stated meaning:
in relation to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, the entity.
Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms and Schedules).
the device provided by PNZ Gateway to the Merchant for:
|Bank Settlement Account||
the bank settlement account set out in the Key Details.
a day which is not a Saturday, Sunday or observed as a public holiday in both Auckland, New Zealand and People’s Republic of China.
the terms of the Agreement and its existence, and any information (including business, technical, financial, administrative,
and whether disclosed or obtained:
PNZ Gateway’s Confidential Information includes the WeChat IP.
the possession, now or later, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled entity, whether through the ownership of voting securities, by contractual arrangements or otherwise. Without limiting the foregoing sentence, control is deemed when an entity holds or controls voting proxies relating to 50% or more of the outstanding voting securities or other ownership interests of the other entity.
a person who purchases,
a hard or electronic copy of the generally released documentation relating to the WeChat Payment Services, as updated by PNZ Gateway from time to time.
the fees set out in Section A.
an event that is beyond the reasonable control of a party
|Goods and Services||
the Merchant’s goods and services that it makes available for purchase by Customers using the WeChat Payment Services.
goods and services tax value added tax, sales tax or equivalent tax payable under the Goods and Services Tax Act 1985.
the initial set-up and implementation services provided by PNZ Gateway, including (as applicable):
the initial period set out in the Key Details.
|Intellectual Property Rights||
includes copyright (including future copyright) and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning and includes any enhancement, modification, or derivative work of the Intellectual Property.
the Agreement specific details set out in Section A of the Agreement.
the Merchant’s app, through which the Merchant may offer Goods and Services, as set out in the Key Details (if applicable).
the Merchant’s physical places of business, at which the Merchant may offer Goods and Services, as set out in the Key Details (if applicable).
the services (including the Implementation Services and the Support Services) provided by PNZ Gateway to the Merchant under or in connection with the Agreement for the Merchant to offer to Customers the WeChat Payment Services as a method of payment.
the Merchant’s website or websites, through which the Merchant may offer Goods and Services, as set out in the Key Details (if applicable).
the start date set out in the Key Details.
all reasonable efforts to respond to and resolve (including by the provision of a work-around), in accordance with the service levels set out in Schedule 3 (SLA), issues in relation to the Merchant Services and the WeChat Payment Services (taking into account the nature and severity of the issue) where those issues are notified to PNZ Gateway via the PNZ Gateway Merchant portal.
Tenpay Payment Technology Co. Ltd.
has the meaning given in clause 2.4.
a transaction for the purchase of Goods and Services made by a Customer using the WeChat Payment Services.
has the meaning given in clause 9.2.
the logo set out in the Key Details.
|WeChat Payment Services||
the payment services enabled by WeChat and accessed via one or more of the following payment methods:
the underlying software used to provide the WeChat Payment Services.
the Tencent-owned cross-platform communication tool that supports real-time communications services for one or many participants, including services such as sending voice messages, video clips, pictures, texts, or other instant messages.
a 12 month period from the Start Date or the anniversary of that date.
1.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not
affect the interpretation of the Agreement;
b words in the singular include the plural and vice versa;
c reference to:
i a party to the Agreement includes that party’s permitted assigns;
ii personnel includes officers, employees, contractors, and agents, but a reference to PNZ Gateway’s personnel does not include the Merchant and vice versa;
iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
iv including and similar words do not imply any limit;
v $ and dollars is a reference to New Zealand dollars unless stated otherwise;
vi a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
vii a document or further terms includes that document or those further terms as may be amended, modified or supplemented from time to time in accordance with the Agreement.
d no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
e if there is any conflict between:
i Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A; or
ii Section B and any documents or further terms incorporated by reference into the Agreement, Section B prevails unless expressly stated
2 MERCHANT SERVICES
2.1 Provision of the Merchant Services: Subject to the Merchant’s continued compliance with the Agreement, PNZ Gateway will provide to the Merchant in accordance with the terms of the Agreement:
a the Implementation Services, as soon as practical after the Start Date;
b the Support Services, during the term of the Agreement; and
c the remaining Merchant Services, during the term of the Agreement.
2.2 Scope of WeChat Payment Services:
a The scope of the WeChat Payment Services is subject to change on:
i reasonable notice by PNZ Gateway to the Merchant; and/or
ii publication by PNZ Gateway on the website at www.purenzgateway.com of a change to the description of the WeChat Payment Services.
b The particular payment methods that are provided as part of the WeChat Payment Services provided to the Merchant are at the discretion of PNZ Gateway.
2.3 Goods must be registered: The WeChat Payment Services can be used only for Goods and Services that have first been registered with Tenpay in accordance with clause 6.1.
2.4 Trading limit: PNZ Gateway may set a Transaction trading limit for the Merchant (Trading Limit). Each Transaction must be no more than the Trading Limit. PNZ Gateway may adjust the Trading Limit at any time on notice to the Merchant.
2.5 Non-exclusive: The Merchant Services and the WeChat Payment Services are provided to the Merchant on a non-exclusive basis. Nothing in the Agreement applies to limit or restrict PNZ Gateway’s right to provide those services to any other person.
3 MERCHANT OBLIGATIONS
3.1 General: In addition to complying with its other obligations in the Agreement, the Merchant must, in carrying on its business and performing its
obligations under or in connection with the Agreement:
a act with reasonable care and skill;
b comply with:
i all applicable laws, regulations and applicable foreign exchange policies;
ii any reasonable directions of PNZ Gateway in relation to the Merchant Services or the WeChat Payment Services;
c procure all licences, authorisations and consents necessary for the Merchant to exercise its rights and perform its obligations in connection with the Agreement, the Merchant Services or the WeChat Payment Services;
d not use the WeChat Payment Services beyond the scope of any business activity approved by PNZ Gateway;
e not use resources dedicated to, or information in connection with, the WeChat Payment Services (including Customer and Transaction information, the Acquiring Device or marketing materials) for any purpose other than as permitted under the Agreement;
f not cause or permit anything which may damage or endanger any WeChat IP or other Intellectual Property of PNZ Gateway or assist or allow others to do so, including not removing or altering any copyright or proprietary notice from copies of any materials, devices or other items supplied by PNZ Gateway in connection with the Agreement;
g promptly notify PNZ Gateway of any material complaint relating to the WeChat Payment Services that is received by the Merchant, together with all available information relating to the complaint; and
h provide to PNZ Gateway all reasonable assistance required by PNZ Gateway to enable PNZ Gateway to provide the Merchant Services and to perform its other obligations in connection with the Agreement.
3.2 Merchant’s Affiliates: The Merchant may permit its Affiliates who are named in the Key Details to use the Merchant Services. The Merchant must ensure that its Affiliates comply with terms and conditions equivalent to those set out in this Agreement. Any act or omission of an Affiliate of the Merchant is deemed to be an act or omission of the Merchant.
4 ACQUIRING DEVICE AND OTHER SYSTEMS
4.1 Acquiring Device and other systems:
a The Merchant must keep, maintain and use the Acquiring Device:
i in a suitable operating environment, including:
– in a stable and secure position from which it can be easily used; and
– away from direct sunlight, high temperature, damp or strong magnetic fields; and
ii in accordance with all other reasonable instructions that may be provided by PNZ Gateway from time to time.
b The Merchant must:
i not transfer from its place of installation, exchange with another merchant or dispose of, the Acquiring Device without the prior written consent of PNZ Gateway;
ii use the Acquiring Device for its intended purpose only;
iii not sell, transfer, license, sublicense, lease, lend, mortgage, assign or otherwise deal with or grant a security interest in the Merchant Services, the Acquiring Device or any other WeChat IP;
ii not merge all or any part of the the Acquiring Device or any other WeChat IP with any other software or system other than as carried out by PNZ Gateway as part of the Implementation Services;
iii not reproduce, translate, modify, vary, edit, consolidate, adapt, decompile, reverse-engineer, or attempt to derive the source code of, all or any part of the Acquiring Device, any other WeChat IP, or any other software or systems used to provide the Merchant Services or the WeChat Payment Services (or cause or permit any person to do so); and
iv not interfere with the operation of the Acquiring Device or any other WeChat IP in any way, including by altering or interfering
with any data or storage, processing or transmission of data.
c The Merchant must ensure that it has suitable supplies of electricity, broadband and other services required for it to use the Merchant Services and the WeChat Payment Services.
a The Merchant must use all reasonable endeavours to:
i ensure the security of its computer systems;
ii comply with all reasonable instructions relating to security provided by PNZ Gateway from time to time;
iii not disclose any interface technology, security protocols and security certificates relating to the WeChat Payment Services or the Acquiring Device to, or allow the use of those by, any other person; and
iv immediately notify PNZ Gateway in the event of any relevant breach of
b PNZ Gateway may at its discretion appoint a third party to carry out a forensic investigation into any suspected security breach. The Merchant must provide reasonable access to premises and systems reasonably required by the third party relating to that investigation on such terms as the Merchant reasonably requires.
5 DISPLAY OF LOGO AND INFORMATION
a The Merchant must securely display the WeChat Logo in a prominent position on or as near as practical to the Acquiring Device, and/or the Merchant Location, Merchant Website, and/or Merchant App (as applicable).
b The Merchant must not use the WeChat Logo for any purpose other than as set out in clause 5.1a nor use any related names or trade marks for any purpose without the prior written consent of PNZ Gateway.
c As between the parties, all goodwill arising from the Merchant’s use of the WeChat Logo and any other names or trade marks of PNZ Gateway or WeChat accrues to PNZ Gateway.
5.2 Information at premises: The Merchant must display and maintain at least the followinginformation in a readily visible position at its Merchant
Location, Merchant Website, and/or Merchant App (as applicable):
a business name;
b physical address;
c contact details for customer service;
d the price of the Goods and Services; and
e its refund policy.
6 CUSTOMERS AND TRANSACTIONS
6.1 Registration of Goods and Services: PNZ Gateway will register the Goods and Services with Tenpay on behalf of the Merchant.
6.2 Customers and Transactions: The Merchant:
i perform all legal obligations which it owes to Customers arising in connection with any Transaction including the supply of the purchased Goods and Services;
ii take reasonable steps to ensure that information relating to Transactions is complete, accurate, and up-to-date;
iii ensure that it has all licences, authorisations and consents necessary to enable any information relating to Transactions to be used for the purposes of the Agreement, the Merchant Services and the WeChat Payment Services;
iv keep original receipts and all other relevant information relating to Transactions for at least 5 years from the date of the Transaction;
v on request provide PNZ Gateway with satisfactory evidence to prove the existence of a trading relationship between the Merchant and any Customer;
vi take all reasonable precautions to prevent unauthorised Transactions; and
vii promptly report any suspicious activity relating to the use of the WeChat Payment Services, including any activity that would (if carried out) fall under clause 6.2bii; and
b must not:
i provide a lower standard of service to Customers, charge Customers additional fees, or impose a minimum Transaction amount, in relation to the Customer’s use of the WeChat Payment Services;
ii break a Transaction into two or more transactions (which, for the avoidance of doubt, does not restrict the Merchant from dividing a bill for Goods or Services between different Customers who are jointly purchasing those Goods or Services), offer any cash advance using the WeChat Payment Services, or participate in or assist with any skimming, false transaction, money-laundering, fraud or other illegal activity, or any activity that carries a significant risk of one of the foregoing;
iii vary a Transaction in any way for the purpose of circumventing any obligation under the Agreement, including to avoid exceeding the Trading Limit;
iv process Transactions which are:
– for goods and services supplied or to be supplied by or on behalf of any other person;
– for Goods and Services other than those which the Merchant owns or supplies;
– for any person that PNZ Gateway has instructed the Merchant not to process Transactions;
– unable to be completed due to the Customer having insufficient funds in its WeChat account; or
– not permitted under the Agreement; or
v collect,retain or use Customer information except:
– as expressly permitted in the Agreement; or
– as required by law or the rules of any recognised stock exchange; or
– with PNZ Gateway’s prior written consent.
6.3 Resolution of Customer issues
a The Merchant and PNZ Gateway must act promptly to resolve all problems and issues relating to Customer service.
b Without limiting clause 6.5, the Merchant must on request from PNZ Gateway co-operate with and provide all reasonable assistance to:
i PNZ Gateway and/or WeChat to enable resolution of any Customer complaint; and
ii PNZ Gateway to investigate the cause of any claim of loss arising from any person (including any Customer, Tenpay or PNZ Gateway)
in relation to the WeChat Payment Services or the Merchant Services.
c Subject to clause 6.5, PNZ Gateway must on request from the Merchant co-operate with and provide reasonable assistance to the Merchant:
i where that assistance is reasonably required to enable resolution of a Customer complaint; and/or
ii to investigate the cause of any claim of loss arising from any Customer in relation to the WeChat Payment Services or the Merchant Services.
a The Merchant may process refunds for Goods and/or Services (WeChat Refunds) by reversing a Transaction or crediting a Customer’s WeChat account within the first 24 hours of the Transaction (or such other period as reasonably notified to the Merchant by PNZ Gateway) provided that the WeChat Refund is processed in accordance with the applicable standard operating practices notified to the Merchant from time to time. The Merchant must not otherwise process any WeChat Refund by reversing any Transaction or crediting any Customer’s WeChat account.
b The Merchant must not submit a request for a WeChat Refund except for a Transaction that the Merchant is obliged to refund by law or in accordance with its reasonable refund policy.
c The Merchant must have sufficient funds in its Bank Settlement Account to enable PNZ Gateway to complete a WeChat Refund by direct deduction. Where the Merchant has insufficient funds in its Bank Settlement Account, PNZ Gateway will not complete the WeChat Refund until such time as the Merchant has sufficient funds. The Merchant must immediately notify PNZ Gateway when the Bank Settlement Account has sufficient funds and repeat the WeChat Refund request.
d Subject to clause 6.4c, PNZ Gateway will use all reasonable efforts to approve and complete a WeChat Refund within 5 Business Days from receipt of the request. Requests for refunds must be made within 90 days of the Transaction.
e If PNZ Gateway attempts to contact the Merchant in relation to a WeChat Refund using the contact details provided by the Merchant to PNZ Gateway, and no response is received within 3 Business Days of sending that communication, PNZ Gateway may issue a refund directly to the Customer for payment already made by Customer but not yet settled with the Merchant.
6.5 Liability to Customers: The Merchant is liable for all issues arising in connection with any Customer, including any liability arising:
a as a result of the Merchant’s breach of any term of the Agreement or any relevant law, regulation or policy; or
b from any Customer complaints or returns of Goods or Services.
7.1 Settlement of funds:
a PNZ Gateway will deposit funds into the Merchant’s Bank Settlement Account in settlement of each Transaction:
i based on the actual monetary amount of the Transaction less any of the following amounts that are or may be payable by the Merchant to PNZ Gateway under the Agreement, namely:
– the transaction Fees plus GST (if any);
– all taxes, duties, fees or other government charges relating to the Fees; and
– any bank transaction fees or other fees charged by the Merchant’s bank in relation to a Transaction, WeChat Refund or other payment in connection with the Agreement;
ii within 2 Business Days of the Transaction; and
iii only for Transactions:
– permitted under the Agreement; and
– for a genuine supply of Goods and Services to a genuine Customer.
b PNZ Gateway will provide the Merchant with information on a daily basis setting out details of funds settled in the previous day. The Merchant must notify PNZ Gateway as soon as practical if it disputes an amount of any settled funds.
7.2 Fees increases: PNZ Gateway may increase or decrease the Fees at any time on 30 days notice to the Merchant.
7.3 Merchant Services Fees: In addition to the Transaction Fees, the Merchant must pay to PNZ Gateway the Fees in respect of the Merchant Services as set out in Schedule 1 or as otherwise agreed by the parties in writing.
7.4 Invoicing: PNZ Gateway will submit invoices to the Merchant after the end of each calendar month during which the Merchant Services are performed. Each invoice will be a tax invoice in accordance with current New Zealand tax legislation and will state the net amount payable and details of the Merchant Services to which the invoice relates.
7.5 Payment: The Merchant will pay PNZ Gateway’s invoices received under clause 7.4, on or before the 20th day of the month following the date of the invoice for the relevant Merchant Services.
8 RECORDS, REPORTING, AUDITS
8.1 Merchant records: The Merchant must:
a maintain complete, accurate and up-to-date written records of all information relating to the Transactions, and all other information which may be required by law or by PNZ Gateway in connection with the Agreement, including to enable PNZ Gateway or its authorised representative to verify the Merchant’s compliance with the Agreement and any payment made by or to the Merchant in connection with the Agreement; and
b on request, make available those records to PNZ Gateway, including allowing PNZ Gateway to copy those records.
8.2 Review: PNZ Gateway may from time to time review the Merchant’s business activities and suspend or terminate the Merchant Services in the
event that those activities are not in accordance with the Agreement or applicable laws and regulations.
8.3 Change of name: The Merchant must promptly notify PNZ Gateway of any change to its contact details and change to or termination of its business.
9 INTELLECTUAL PROPERTY
9.1 Retained Intellectual Property: The following Intellectual Property remains the property of the current owner:
a Intellectual Property that existed prior to the date of the Agreement; and
b Intellectual Property that was developed independently of the Agreement.
9.2 WeChat IP: PNZ Gateway (and its licensors) owns all rights, title and interest (including Intellectual Property Rights) in all materials, information and other items created or supplied by PNZ Gateway to the Merchant in connection with the Agreement, including:
a the Merchant Services;
b the WeChat Payment Services;
c the Acquiring Devices;
d the WeChat Software;
e the WeChat Logo and any related names or trade marks; and
f the Documentation,
(together, the WeChat IP). The Merchant must not contest or dispute PNZ Gateway’s (or its licensors’) ownership, or the validity, of the WeChat IP.
9.3 Feedback: If the Merchant or any Customer provides PNZ Gateway with ideas, comments or suggestions relating to the WeChat IP (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by PNZ Gateway; and
b PNZ Gateway may use or disclose the feedback for any purpose.
9.4 New Intellectual Property: As between the parties, all new Intellectual Property created by PNZ Gateway in the course of providing the Merchant Services or the WeChat Payment Services is owned solely by PNZ Gateway from the date it is created.
9.5 Assignment: Where ownership of any Intellectual Property Rights does not automatically vest in PNZ Gateway or its licensors in accordance
with the intention of this clause 9, the Merchant assigns those Intellectual Property Rights to PNZ Gateway with effect from the date at which the relevant rights arise so as to give effect to that intention.
10.1 Security: Each party must, unless it has the prior written consent of the other party:
a keep confidential at all times the Confidential Information of the other party;
b effect and maintain adequate security measures to ensure the other party’s Confidential Information is protected from unauthorised access or use;
c disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, the provisions of clauses 10.1a and 10.1b;
d not, and must not permit any other person to, reproduce, disclose or distribute the Confidential Information of the other party in whole or in part to any other person, except as is permitted under clause 10.1c; or
e by PNZ Gateway if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that PNZ Gateway enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
10.2 Permitted disclosure: The obligation of confidentiality in clause 10.1a does not apply to any disclosure or use of Confidential Information of the other party which the recipient can establish to the other party’s reasonable satisfaction was or is:
a for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
b required by law (including under the rules of any stock exchange);
c or becomes publicly available through no fault of the recipient of the Confidential Information or its personnel, as shown by the written records of the recipient; or
d rightfully received from a third party without restriction and without breach of any obligation of confidentiality.
10.3 Disclosure to Tenpay: Despite clause 10.1d, the Merchant acknowledges that PNZ Gateway may disclose Confidential Information of the Merchant to:
a PNZ Gateway’s Affiliates; and
b Tenpay, and Tenpay may further disclose that information to Tenpay’s Affiliates and subcontractors,
on a need to know basis, provided that PNZ Gateway’s Affiliate or Tenpay (as applicable) is aware of, and complies with, the provisions of clauses 10.1a and 10.1b.
11 DATA AND PRIVACY
11.1 Disclosure by Merchant:
a The Merchant may disclose Customer or Transaction information to PNZ Gateway, PNZ Gateway’s Affiliates, Tenpay and Tenpay’s Affiliates.
b The Merchant is liable for any loss suffered by PNZ Gateway or a Customer as a result of the Merchant using or disclosing to any other person any Customer or Transaction information without PNZ Gateway’s written permission.
c The Merchant must not make available (including by way of sale) any Customer or Transaction information to any third party.
11.2 Disclosure by PNZ Gateway: PNZ Gateway may disclose any information, including Customer and Transaction information (and personal information), in connection with the Agreement, the Merchant Services or the WeChat Payment Services to its Affiliates and to Tenpay and its Affiliates in connection with:
a performing its obligations under the Agreement and exercising its rights;
b verifying the Merchant’s compliance with the Agreement; and
c any reasonable purpose in connection with the Agreement, the Merchant Services or the WeChat Payment Services, including to develop and improve the WeChat Payment Services.
11.3 Reporting: Without limiting clause 11.2, either party may disclose any activity that it suspects is in breach of clause 6.2bii or in breach of any relevant law, regulation or policy, to any relevant authority or Tenpay.
12.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on it.
12.2 Merchant Warranties: The Merchant warrants on a continuing basis that:
a it has taken reasonable steps to ensure that information provided to PNZ Gateway by or on behalf of the Merchant under or in connection with the Agreement or the WeChat Payment Services is accurate and complete; and
b it has accurately reproduced any information provided to it by a Customer in relation to a Transaction.
12.3 WeChat Payment Services: The Merchant must not give any warranty or make any representation:
a relating to the WeChat Payment Services; or
b that implies that PNZ Gateway, its Affiliates, Tenpay or Tenpay’s Affiliates endorses the Merchant or any Goods or Services.
12.4 Merchant endorsement: PNZ Gateway must not give any warranty or make any representation:
a relating to the Merchant other than is necessary to provide the Merchant Services in accordance with the Agreement; or
b that implies that the Merchant or its Affiliates endorses PNZ Gateway or Tenpay.
12.5 Exclusions of liability: To the maximum extent permitted by law:
a each party’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees and warranties whether expressed or implied by statute or otherwise are expressly excluded;
b without limiting clause 12.5a, PNZ Gateway makes no representation concerning the quality of the Merchant Services, the WeChat Payment Services or the WeChat IP and does not promise that the WeChat Payment Services, WeChat Software or the Acquiring Device will be error-free, bug-free, meet any particular level of availability, or operate without interruption; and
c where PNZ Gateway is held to be in breach of any condition, guarantee or warranty relating to the supply of the Merchant Services, PNZ Gateway’s sole liability relating to that breach is to supply the relevant Merchant Services again, or to pay the cost of having those services supplied again. This remedy is the Merchant’s sole remedy in relation to a breach of any condition, guarantee or warranty.
12.6 Consumer Guarantees Act: The Merchant agrees and represents that it is entering the Agreement for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of rights to it under the Agreement, or the Agreement.
12.7 Third party warranties: PNZ Gateway will transfer to the Merchant (to the extent transferable) the benefit of all third party manufacturer and supplier warranties in relation to hardware products (if any) supplied to the Merchant under the Agreement (and to the extent it cannot do so, hold those warranties on trust for the benefit of the Merchant).
13.1 Merchant: The Merchant indemnifies PNZ Gateway, Tenpay, and their respective Affiliates, and Customers, (Indemnified Parties) from and against any claim, proceeding, damages, loss, liability, cost and expenses (including reasonable legal costs) suffered or incurred by the Indemnified Party resulting from:
a wilful default, gross negligence, or fraud, by the Merchant or its personnel;
b a breach of PNZ Gateway’s or Tenpay’s Intellectual Property Rights by the Merchant including any misuse of the WeChat IP; or
c or in connection with, any Transaction, including false information, fraud, theft, disguised Transactions, denial of Transactions, chargebacks and unauthorised access or disclosure of information;
d any Customer dispute.
14.1 Maximum liability: The maximum aggregate liability of a party under or in connection with the Agreement, the Merchant Services or the WeChat Payment Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not in any Year exceed an amount equal to the Fees paid by the Merchant under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid to the Merchant from the Start Date to the date of the first event giving rise to liability).
14.2 Unrecoverable Loss: Neither party will be liable to the other under or in connection with the Agreement for any:
a loss of profit, revenue, savings, business, data and/or goodwill; or
b consequential, indirect, incidental or special damage or loss of any kind.
14.3 Unlimited liability:
a Clauses 14.1 and 14.2 do not apply to limit PNZ Gateway’s liability:
i to settle Transactions or provide WeChat Refunds;
ii under or in connection with the Agreement for:
– personal injury or death;
– fraud or wilful misconduct; or
– breach of clause 10.
b Clauses 14.1 and 14.2 do not apply to limit the Merchant’s liability:
i to pay any amounts expressly set out in the Agreement;
ii for those matters referred to in clause 14.3aii; or
iii under the indemnity in clause 13.1.
14.4 No liability for the other party’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations, under the Agreement or otherwise, to the extent the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
14.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
15 TERM, TERMINATION AND SUSPENSION
15.1 Duration: Unless terminated earlier in accordance with its provisions, the Agreement:
a starts on the Start Date and continues for the Initial Term; and then
b continues for successive terms of [12 months] each (Further Term) from the expiry of the Initial Term or Further Term (as applicable) unless a party gives 1 month’s written notice that the Agreement will terminate on the expiry of the Initial Term or the then current Further Term.
15.2 PNZ Gateway’s other termination rights: PNZ Gateway may terminate the Agreement, or suspend any of the Merchant’s rights under the Agreement, immediately on notice to the Merchant:
a if PNZ Gateway’s right to provide the Merchant Services ceases under its agreement with Tenpay;
b under clause 8.2;
c in the event of the Merchant committing any breach of the terms of the Agreement where in the reasonable opinion of PNZ Gateway the breach is material and is not capable of being remedied;
d in the event of the Merchant committing any breach of the terms of the Agreement where the breach is capable of being remedied and the Merchant fails to remedy the breach within 10 Business Days after notice has been given by PNZ Gateway to the Merchant requiring such remedy; or
e if the Merchant becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
15.3 Consequences of termination or expiry:
a Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
b On termination or expiry of the Agreement:
i the Merchant must immediately:
– cease to use the WeChat Payment Services, the WeChat IP and all other PNZ Gateway Confidential Information; and
– return, destroy or erase (at PNZ Gateway’s option) all WeChat IP and other PNZ Gateway Confidential Information in the Merchant’s possession or control
(including the Acquiring Device, the Documentation, and other materials supplied to the Merchant in connection with the Agreement or the WeChat Payment Services), and (if requested by PNZ Gateway) certify in writing its compliance with this clause; and
ii PNZ Gateway must:
– continue to process Transactions submitted prior to termination or expiry, in accordance with the Agreement; and
– return, destroy or erase (at the Merchant’s option) all Merchant Confidential Information in PNZ Gateway’s possession or control, and (if requested by the Merchant) certify in writing its compliance with this clause.
c Unless stated otherwise, no further Fees are payable by the Merchant from the date of termination or expiry.
d No termination compensation is payable by PNZ Gateway to the Merchant as a result of lawful termination of the Agreement for whatever reason.
e No termination compensation is payable by the Merchant to PNZ Gateway as a result of lawful termination of the Agreement for whatever reason.
15.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.2b, 5.1c, 6.2aiv, 6.3b, 6.5, 8.1, 9 to 14, 15.3, 15.4, 16, 17.1, and 17.2, continue in force.
16.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
16.2 Obligations continue: Each party must, to the extent practicable, continue to perform its obligations under the Agreement even if there is a dispute.
16.3 Right to seek relief: This clause 16 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
17.1 Publicity: Neither party may make any public statement or announcement relating to the Agreement or the relationship between the parties without the prior written consent of the other party.
17.2 Further assurance: Both parties must do all further acts, including pass all resolutions and execute all further documents, reasonably required by the other party to give effect to the Agreement.
17.3 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
a immediately notifies the other party and provides full information about the Force Majeure, including information relating to the measures
taken under clause 17.3b;
b promptly takes measures to prevent any potential or further loss arising from the Force Majeure;
c uses best efforts to overcome the Force Majeure; and
d continues to perform its obligations to the extent practicable.
17.4 Rights of third parties: No person other than PNZ Gateway and the Merchant has any right to a benefit under, or to enforce, the Agreement.
17.5 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
17.6 Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address for notices set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
a If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
b If modification under clause 17.7a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
17.8 Variation: Any variation to the Agreement must be in writing and signed by both parties.
17.9 Entire Agreement: The Agreement sets out everything agreed by the parties relating to its subject matter, including the Merchant Services, the WeChat Payment Services, the relationship between the parties and the parties’ obligations to Customers, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree that sections 9, 12A, and 13 of the New Zealand Fair Trading Act 1986 do not apply.
17.10 No assignment:
a The Merchant may not assign, novate, subcontract or transfer any right or obligation under the Agreement, without the prior written consent of PNZ Gateway (that consent not to be unreasonably withheld). The Merchant remains liable for the performance of its obligations under the Agreement despite any approved assignment, subcontracting, or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
b Any change of control of the Merchant is deemed to be an assignment for which PureNZ Gateway’s prior written consent is required under clause 17.10a.
17.11 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with the Agreement.
17.12 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.