DPS Terms and Conditions
1. Definitions and Interpretation
In this agreement, unless the context indicates otherwise: "Acquirer" means a bank or any financial institution or a card issuer of financial or non-financial transactions which receives and transmits Transactions via Payment Express Host; "agreement" means this agreement, including these standard terms and conditions, the Schedule and any attachments as amended from time to time; "Business Day" means any day of the week except Saturday, Sunday or a national statutory holiday in New Zealand; "Confidential Information" means in relation to any party any information: (a) relating to the terms of this agreement; (b) relating directly or indirectly to research or development by, accounting for or the marketing of the business of that party or its suppliers or customers; (c) disclosed by that party to the other party on the express basis that such information is confidential; or (d) which might reasonably be expected by the other party to be confidential in nature; "Default Interest Rate" means interest at the rate of 5% above the base lending rate charged by DPS's bankers from time to time; "Documentation" means any user, training or system manuals for Payment Express (whether in printed or electronic form) which describes and provides guidance on Payment Express or any aspect of Payment Express; "DPS Website" is defined in clause 6.5; "GST" means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax; "Initial Term" means the initial term recorded in paragraph 5(b) of the Schedule; "Intellectual Property" means registered and unregistered trademarks (including logos and trade files), domain names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts, rights in computer software, databases and lists, confidential information, software (whether in object code or source code), and all other rights anywhere in the world resulting from intellectual activity; "Payment Express" means the Payment Express solution provided by DPS comprising the Software, access (via the internet) to the Payment Express Host and the Support Services; "Payment Express Host" means the DPS host server known as Payment Express Host to which Customer may be connected using the Software and which is in turn linked to an Acquirer to enable card holder not present transactions to be processed in real time; "Permitted Use" means Customer's right to use Payment Express provided by DPS; "Software" means the software and other related DPS products which forms part of Payment Express, as more fully described in paragraph 1 of the Schedule, including all upgrades, Updates, alterations and modifications and other changes to that software developed by or on behalf of DPS from time to time; "Special Conditions" means the special conditions (if any) recorded in paragraph 7 of the Schedule; "Support Services" means the support services set out in paragraph 3 of the Schedule; "Transaction" means a message pair consisting of a message transmitted by Customer to an Acquirer through Payment Express and a response to that message from the Acquirer to Customer through Payment Express; and "Update(s)" means any modification, attachment or addition (of any kind) to the Software which is provided by DPS to Customer. The singular includes the plural and vice versa. References to clauses, Schedules and attachments are to clauses in, and the schedule and any attachment to, this agreement. The Schedule and each attachment form part of this agreement. Reference to any "party" are references to a party to this agreement (including the successors and permitted assigns of that party). All monetary amounts are stated exclusive of GST and in New Zealand dollars.
2.1 Initial Term: This agreement commences on the Commencement Date and will continue for the Initial Term unless earlier terminated under clause 14.1. 2.2 Renewal: Upon expiry of the Initial Term, this agreement will automatically continue on the same terms and conditions until either party gives the other party 3 months' prior notice in writing of termination of this agreement.
DPS grants to Customer the right to use Payment Express on, and Customer agrees to abide by, the terms and conditions of this agreement.
3. Payment Express
DPS grants to Customer a non-exclusive, non-transferable licence to use the Software for the term of this agreement solely for the purposes of the Permitted Use. Except as and to the extent authorised under the Copyright Act 1994 any other use or dealings with the Software without the prior written consent of DPS will be a material breach of this agreement. Except to the extent specifically authorised under this agreement, Customer must not sub-license, transfer, assign, rent or sell any of the Software or the right to use the Software.
5.1 Adequacy: Customer must satisfy itself as to the adequacy, appropriateness and compatibility of Payment Express for its requirements. Without limiting clause 10.2, Customer acknowledges that it has not relied on any statements or representations on the part of DPS as to performance or functionality, verbal or otherwise, except as expressly recorded in this agreement. 5.2 No right to copy, alter or modify: Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or modify Payment Express or any of the Software or Documentation by any means or in any form without DPS's prior written consent. 5.3 Permitted Use and no use of Software independent of Payment Express: Customer may not: (a) use Payment Express for any purpose other than the Permitted Use; or (b) use the Software independently of the other components of Payment Express unless DPS has given prior written consent to do so. If this agreement is terminated or Customer ceases to use Payment Express for "cardholder not present" transactions, Customer's right to use Payment Express and its licence to use the Software will automatically terminate and Customer must immediately remove all copies of the Software from its system(s). 5.4 Reverse Engineering: Customer must not, and must not permit any other person to, reverse assemble or decompile the whole or any part of the Software. 5.5 No Third Party Use: Customer must not provide, or otherwise make available, Payment Express or any component of Payment Express in any form to any person without the prior written consent of DPS.
7.1 Fees: Customer will pay DPS the fees set out in the pricing Schedule, upon receipt of an invoice for those fees. DPS may alter the fees payable by Customer at any time on giving not less than 2 months' written notice to Customer. Each invoice received by Customer will be payable, without set off or deduction, no later than the 20th day of the month following the date of invoice. 7.2 Taxes: Except to the extent otherwise provided in this clause 7.2, Customer is responsible for all GST and any other taxes, duties and levies (other than DPS's income tax) assessed in connection with its use of Payment Express. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply ("GST Amount") in addition to the fees or consideration (if any) required to be paid under any other provision of this agreement. Each party must ensure that each invoice it presents to the other party under this agreement in respect of any GST Amount is a valid tax invoice in terms of the Goods and Services Tax Act 1985. Each party must pay any GST Amount at the same time and in the same manner as making payment of any consideration on which the GST Amount is calculated. 7.3 Default Interest for Late Payment: Customer must pay DPS interest at the Default Interest Rate on any overdue amounts under this agreement, calculated daily from the due date until the actual day of payment. Customer will pay DPS all reasonable costs (including collection costs and legal costs on a solicitor-client basis) that DPS incurs in attempting to recover any such overdue amounts.
Each party represents and agrees: 8.1 Power and Authority: that it has full power and authority necessary to validly enter into and perform all obligations under this agreement; and 8.2 Requirements: to comply with the other party's reasonable security, confidentiality and operational requirements of which it has been given reasonable notice.
8. Joint Responsibilities
9.1 Suitability: has made and will continue to make its own assessment of the suitability, adequacy, compatibility and appropriateness of Payment Express for its purposes and that Customer has a merchant bank account established with an Acquirer to which Payment Express Host is linked, as notified by DPS to Customer from time to time; 9.2 Comply with Instructions: will comply with DPS's restrictions and instructions in relation to use of Payment Express, including those set out in this agreement; 9.3 Use by Others: will ensure that only authorised persons use Payment Express and ensure that Payment Express is used only for the Permitted Use and as expressly authorised under this agreement; 9.4 Responsibility for Use: will accept all responsibility for reliance on and use of Payment Express by Customer and its permitted employees, contractors, and agents; 9.5 Obtain Equipment etc: will obtain and maintain all equipment, software and services needed to enable it to receive and use Payment Express; 9.6 Provide Sufficient Information: will ensure that sufficient information is given to DPS to enable DPS to comply with its obligations under this agreement and that such information is timely, complete and accurate; 9.7 Notify of Third Party Infringement: will immediately notify DPS upon becoming aware of any third party infringing DPS's Intellectual Property rights in any manner; 9.8 Responsible for Connecting to Payment Express Host: is responsible for all charges and costs associated with connecting to the Payment Express Host to operate Payment Express. DPS will provide Customer with reasonable technical information necessary to enable Customer to connect to the Payment Express Host; and 9.9 Comply with Law Generally: will comply with all relevant laws, including all statutory, regulatory and common laws, in its use of Payment Express and carrying out its obligations under this agreement.
9. Customer Responsibilities Customer
10.1 DPS Warranties: DPS warrants that: (a) DPS has the right and authority to grant to the Customer the licence set out at clause 4, in accordance with the terms of this agreement; and (b) any Support Services provided under this agreement will be of a standard conforming to generally accepted standards and practices in the computer software support industry. 10.2 Limitations on Warranties: To the fullest extent permitted by law, except as expressly set out in this agreement, DPS excludes all warranties, conditions, terms, representations or undertakings whether express, implied, statutory or otherwise, including without limitation any condition or warranty of merchantability or fitness for a particular purpose. DPS does not warrant that Payment Express will meet Customer's requirements, that Payment Express will be uninterrupted or error free, or that all errors will be corrected.
10. DPS's Warranties
All Intellectual Property rights in Payment Express are exclusively owned by DPS (or DPS's licensors). Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of Payment Express or any part of Payment Express to Customer under this agreement.
11. Intellectual Property
12.1 DPS Indemnity: Subject to clause 13, DPS will indemnify Customer against any loss, damage or cost suffered or incurred by Customer arising from any successful third party claim against Customer that Payment Express infringes any patent or copyright of that third party, provided that: (a) the claim has not, in part or full, arisen from misconduct, negligence or breach of this agreement by Customer or any of its personnel or agents; (b) Customer notifies DPS in writing within 5 Business Days of the claim; (c) Customer gives DPS sole control of the defence of the claim and all related settlement negotiations; and (d) Customer gives DPS the assistance, information and authority necessary to defend and/or settle the claim (and any reasonable out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by DPS). 12.2 Customer Indemnity: Customer indemnifies DPS at all times against any loss, damage or cost suffered or incurred by DPS as a direct or indirect result of any negligent act or omission, breach of this agreement by Customer, its personnel or agents.
13.1 Remedy: To the fullest extent permitted by applicable law subject to clauses 13.2 and 13.3, Customer's sole and exclusive remedy for breach of any warranty or of any of DPS's obligations under this agreement is (at DPS's option) the supply or re-supply of Payment Express or refund or waiver of fees for the relevant part of Payment Express which is the subject matter of or directly related to the breach. 13.2 Limitation: To the fullest extent permitted by applicable law in no event will DPS's total liability to Customer under this agreement exceed the amount paid by Customer to DPS under this agreement in the 3 months following execution of this agreement. 13.3 Exclusion: To the fullest extent permitted by applicable law in no event will DPS be liable to Customer whether in contract, tort (including negligence) or otherwise in respect of any: (a) loss of data, lost profits, loss of revenue, loss of goodwill, loss of business or for any indirect, consequential or special loss, damage, cost or expense suffered or incurred by Customer arising out of or in connection with this agreement; (b) loss, damage, cost or expense suffered or incurred by Customer, to the extent to which this results from any act or omission by Customer; or (c) any event described in clause 16. 13.4 Consumer Guarantees Act: It is expressly acknowledged and agreed by Customer that Payment Express is supplied to Customer for business purposes and that the provisions of the Consumer Guarantees Act 1993 do not apply.
14.1 Termination: Either party (the "First Party") may terminate this agreement at any time and with immediate effect by written notice to the other party (the "Second Party") if the Second Party: (a) is in material breach of any of its obligations under this agreement, and has failed to remedy the breach within 20 Business Days of receiving written notice from the First Party to remedy the breach; or (b) goes into liquidation, has a receiver appointed or is unable to pay its debts as they fall due. 14.2 Consequences: Expiry or termination of this agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination.
Each party will maintain as confidential at all times, and will not at any time, directly or indirectly: 15.1 disclose or permit to be disclosed to any person; 15.2 use for itself; or 15.3 use to the detriment of the other party; any Confidential Information of the other party except: 15.4 as, and then only to the extent, required by law; 15.5 to the extent that the information is already or becomes public knowledge, otherwise than as a result of a breach, by the receiving party, of any provision of this agreement; 15.6 to the extent that the information is disclosed to the receiving party without restriction by a third party and without any breach of confidentiality by the third party; 15.7 to the extent that the information is developed independently by the receiving party without reliance on any of the Confidential Information of the other party; 15.8 as authorised in writing by the other party; or 15.9 to the extent reasonably required by this agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information of the other party only to those of its officers, employees or professional advisers, on a "need to know" basis, as is reasonably required for the implementation of this agreement and only after each such person has signed a written undertaking, in favour of the party to which that Confidential Information relates, to maintain confidentiality in respect of that Confidential Information, to the same extent as is required of the party making the disclosure). Without limiting the effect of this clause, Customer will treat information about DPS Intellectual Property as the Confidential Information of DPS.
DPS will not be liable for any act, omission or failure by it under this agreement if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of DPS, provided that: 16.1 whenever DPS becomes aware that such a result has occurred or is likely to occur, DPS will notify Customer by written notice accordingly; 16.2 each party will continue to use its best endeavours to perform its obligations as required under this agreement; and 16.3 neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure.
16. Force Majeure
17.1 Entire Agreement: This agreement records the entire arrangement between the parties relating to all matters dealt with in this agreement and shall supersede all previous arrangements, whether written, oral or both, relating to such matters. 17.2 Disputes: If the parties fail to negotiate a resolution to a dispute within a reasonable time (at most 20 Business Days), either party may require that the dispute be submitted to mediation, such mediation to take place in New Zealand. If the parties fail to agree on a mediator, one will be appointed by the President for the time being of the New Zealand Law Society or its successor. In the event of any submission to mediation: (a) the mediator will not be acting as an expert or as an arbitrator; (b) the mediator will determine the procedure and timetable for the mediation; and (c) the parties will share equally the cost of the mediation. All discussions in mediation will be without prejudice and will not be referred to in any later proceedings. 17.3 Assignment: Customer may not transfer or assign any of its liabilities or rights under this agreement to any other person without the prior written consent of DPS (such consent not to be unreasonably withheld). 17.4 Waiver: No waiver of any breach, or failure to enforce any provision, of this agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this agreement. 17.5 Amendment: No amendment to this agreement will be valid unless recorded in writing and signed by a duly authorised senior representative of each party. 17.6 Governing Law and Jurisdiction: This agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this agreement. 17.7 Non Exclusive: DPS is entitled to provide the same or similar services as it provides to Customer under this agreement to any other person or entity. 17.8 Subcontracting: DPS may appoint subcontractors to perform any of its obligations under this agreement. DPS will at all times remain primarily liable to Customer for all acts or omissions of any subcontractor appointed by DPS. 17.9 Notices: Any notice or other communication to be given under this agreement may be in writing and delivered by hand, registered mail or facsimile to Customer or DPS (as the case may be) at the respective addresses specified in paragraph 6 of the Schedule. Receipt shall be deemed upon delivery by hand, 5 Business Days after posting, or upon receipt of an error free facsimile transmission confirmation (whichever is applicable).
If any Special Conditions have been recorded in the Schedule, in the event of an inconsistency between any such Special Conditions and these standard terms and conditions, the Special Conditions shall prevail to the extent of that inconsistency.