Skyzer's General Terms & Conditions

  1. Purpose
  2. Defined Terms
  3. What we are selling:
    • We will sell the Equipment to you on the basis of the terms and conditions recorded below. This includes hardware and operating software, in accordance with clauses 6 and 7 and the Schedule.
    • We may also agree to provide Services. (Refer to clause 8 and the Schedule).
  4. Price and Payment terms:
    • The Purchase Price for the Equipment is set out in the Schedule. Unless otherwise stated the Purchase Price excludes GST, which must be paid in addition.
    • 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.
    • 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).
    • 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.
    • 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.
  5. Risk and Title/ Security Interest.
    • Risk in the Equipment passes to you as soon as it is delivered. You will need to arrange insurance cover as from the time and date of delivery.
    • Title in the Equipment will not pass to you until you have fully paid us all amounts owing to us under this Agreement
    • To protect our interest as unpaid seller of the Equipment you grant us a “purchase money security interest” over all the Equipment (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 Equipment is located to inspect and/or retake possession of it.
  6. Hardware
    • The Equipment we supply is EFTPOS and point of sale equipment described in product catalogues which we publish from time. We will ensure that all Equipment supplied to you meets our advertised standards and functionality.
  7. Software
    • 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.
  8. Support Services
    • Together with the supply of Equipment 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.
  9. Warranties/ Faulty Equipment
    • 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.
  10. Intellectual Property Rights
    • Intellectual Property Rights owned by a manufacturer software supplier, or by us, do not transfer to you when we sell Equipment 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. 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:
  15. Counterpart Signing
    • To make it easier for us to sign this Agreement it can be signed in counterpart copies. This is to avoid the need for all Parties to sign it in one place. When each Party has signed a copy of this Agreement (all copies being identical) there will be a binding agreement, however it is a condition that Party sends a copy of the signed document to the others (this can be a scanned copy by email or by fax).
  16. 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. “Equipment”).

The following are defined terms:

“Active” 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 Equipment sold to you.

“Default” means a failure to perform an obligation.

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

“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.

“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. Party refers to either of us.

“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.

“Purchase Price” means the full price to be paid for the Equipment, 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 Equipment, 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 A”.

  1. 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.

Annexure A – Software Licence

Annexure B – Hardware Warranty