Service Agreement

 

Service Agreement

A.    Zip Co NZ has agreed to provide Credit Services to Customers of the Retailer in accordance with the Customer Terms & Conditions.

B.    The Retailer has agreed to supply the Goods to the Customer.

C.    Zip Co NZ has agreed to provide access to the Zip Co NZ Platform and its instalment payment services to Customers to finance the amounts payable by the Customer to the Retailer for the supply of the Goods, for the benefit of the Retailer in promoting and increasing sales to Customers.

Terms and Conditions

1.         Definitions

In this Agreement, unless the context otherwise requires:

“Affiliate” means any person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, another person.

“Agreement” means this entire agreement.

“API” means application programming interface.

“Business Day” means any day other than a Saturday or Sunday on which registered banks are open for ordinary banking business in Auckland, New Zealand.

“CGA” means the Consumer Guarantees Act 1993.

“Confidential Information” has the meaning given to that term in clause 10.1.

“Customer” means the individuals purchasing from the Retailer Site and accessing the Zip Co NZ Platform, whether such Customers are approved for the Credit Services or not.

“Customer Purchase” means a Customer’s purchase of Goods from a Retailer using the Zip Co NZ Platform.

“Customer Terms and Conditions” means the terms and conditions which govern the relationship between the Customer and Zip Co NZ as set out on the Zip Co NZ website at the time an Instalment Plan is entered

“Fee” means the Retailer Fee and the Processing Fee payable with respect to the provision of the Guarantee Services, both of which apply to each Transaction.

“Credit Services” means the provision of credit, at Zip Co NZ’s discretion, to Customers of the Retailer in order to facilitate the purchase of Goods from the Retailer.

“GST” means goods and services tax chargeable under the Goods and Services Tax Act 1985.

“Goods” means the goods or services a Customer purchases from the Retailer Site, which is financed by Zip Co NZ pursuant to the Credit Services and any Instalment Plan.

“Insolvency Event” occurs when:

a)    a party becomes insolvent or unable to pay its debts in the ordinary course of its business;

b)    an order is made or resolution passed or purported to be passed for the liquidation of a party, or a liquidator, a receiver, statutory manager, or similar official, is otherwise appointed to that party;

c)     a party suspends or threatens to suspend payment of its debts;

d)    a party ceases to trade or carry on the whole or a substantial part of its business;

e)    any security is enforced against the whole or a material part of a party’s assets or undertaking; or

f)      any other insolvency event or proceedings analogous to any of the foregoing occurring in relation to a party in any foreign jurisdiction.

 

“Instalment Plan” means the weekly or fortnightly payment plan, showing the amounts due by the Customer and the date on which such amounts are due and described on the Zip Co NZ Platform as the Zip Co NZ Payment Schedule.

“Instalment Payment” means a specified payment contained in an Instalment Plan.

“Intellectual Property” has the meaning given to that term in clause 11.1.

“Zip Co NZ Advertising” means the advertising assets to be located on the Retailer Site, subject to the approval of the Retailer.

“Zip Co NZ Platform” means the proprietary technology platform developed by Zip Co NZ and which manages the Services.

“PCI Data Security Standards” means the policies and standards as released by the Payment Card Industry Security Standards Council from time to time.

“Privacy Policy” means the privacy policy as set out on the Zip Co NZ website at the time an Instalment Plan is entered into.

“Refund” means any return of money to the Customer as authorised by the Retailer.

“Retailer Fee” means agreed % of the Transaction Value.

“Retailer Site” means the e-commerce site of the Retailer.

“Sale Metrics” means any data showing percentage improvement or otherwise of sales, conversion rates, increased basket sizes attributable to the Credit Services.

“Start Date” means the date the Zip Co NZ platform is integrated with the Retailer Site and able to accept Customers.

“Processing Fee” means any agreed fee per transaction.

“Services” means making Credit Services and Instalment Plans available to Customers via the Zip Co NZ Platform for the benefit of the Retailer in promoting and increasing sales to Customers, together with the ancillary services for the benefit of the Retailer as further described in this Agreement.

“Settlement Date” means no later than two Business Days after the completion of the Transaction.

“Transaction Details” means the relevant details of each Transaction, including the date and time the Transaction was made, the Fee and the Settlement Date.

“Transaction” means the completed sale and purchase of the Goods via the Retailer Site, where the Retailer has agreed to sell and the Customer has agreed to buy the Goods, with the Customer using the Credit Services.

“Transaction Value” means the full amount (inclusive of GST) of any purchase of Goods by a Customer, including any delivery costs.

2.         Term – No Tie ins and No Exclusivity

2.1.       This agreement begins on the Start Date and continues until terminated in accordance with clause 15.

2.2.       Zip Co NZ acknowledges it does not have the exclusive right to perform any payment service for the Retailer.

3.         Services

3.1.       In return for Zip Co NZ assisting the sale under the Transaction (and providing any other ancillary Services), the Retailer agrees to pay Zip Co NZ the Fee.  The Retailer has no obligation to pay the Fee or any other amounts where a Customer has not been approved by Zip Co NZ and no Instalment Plan has been entered.

3.2.       Zip Co NZ will provide the API and all reasonable assistance to the Retailer to enable the Zip Co NZ Platform to be integrated with the Retailer Site.

3.3.       Zip Co NZ will provide the Zip Co NZ Advertising to the Retailer for approval, such approval not to be unreasonably withheld, and integration.

3.4.       Where a Customer elects to utilise the Credit Services at the Retailer Site checkout, Zip Co NZ shall perform identity verification and credit assessment on the Customer.  Zip Co NZ reserves the right to refuse a Customer’s use of the Zip Co NZ Platform, in which case Zip Co NZ is under no obligation to provide the Credit Services to the Customer or the Guarantee Services in order to facilitate the purchase of Goods from the Retailer.

4.         Settlement and Fees

4.1.       Zip Co NZ shall pay Retailer the Transaction Value for any Customer Purchase less the Fee on the Settlement Date.

4.2.       Zip Co NZ shall provide remittance confirmation on the Settlement Date. The Retailer acknowledges and agrees that the receipt of cleared funds into their bank account will be dependent on bank processing.

4.3.       Following each Transaction, Zip Co NZ shall email the Retailer the Transaction Details.

5.         Retailer Obligations

Retailer will:

a)    Provide reasonable assistance as requested by Zip Co NZ with respect to the integration of the Zip Co NZ Platform;

b)    Confirm as soon as practicable the Zip Co NZ Advertising in accordance with clause 3.3;

c)     Arrange for the delivery of the Goods to the Customer (if applicable);

d)    Deal with any Refund in accordance with clause 7 and ensure Customers are aware of this process;

e)    Provide reasonable information to Zip Co NZ to assess Sale Metrics.  Any such Sale Metrics shall be subject to the confidentiality provisions of this Agreement;

f)      Not implement any surcharge, fee or other pricing increase to the cost of any Goods to be applied in any Transaction which is attributable in whole or part to the Services or the Fee;

g)    Be responsible for and comply with the CGA in relation to all Customer claims and enquiries in relation to the Goods.

h)    To the extent consistent with the Retailer’s privacy policies and where such data is reasonably accessible, provide Customer historical data, including previous sales and account history, transaction frequency, average transaction value and membership of any Retailer mailing list or customer club, to Zip Co NZ solely for the purposes of assisting Zip Co NZ assess Customer credit.

 

6.         Zip Co NZ Obligations

Zip Co NZ will:

a)    Maintain adequate security measures appropriate for the protection of Retailer’s and Customer’s data including the PCI Data Security Standards;

b)    Act in accordance with the Privacy Policy and Customer Terms and Conditions;

c)     Perform the Services in accordance with the Agreement and all legal requirements (including the requirements of authorities having jurisdiction in connection with the Financial Service);

d)    at its cost, hold and maintain in good standing all necessary licences, registrations, permits, authorisations, consents and approvals required to provide the Services;

e)    Deal with all Customer claims and enquiries under the CGA in relation to the Services, and for clarity, the Retailer acknowledges that it is responsible for all Customer claims under the CGA in relation to the Goods.

 

7.         Refund Arrangements

7.1.       Retailer may arrange for a Refund to be processed if:
a)         required under the CGA;
b)         any order cannot be fulfilled for any reason; or
c)         Retailer and the Customer agree to any post-Transaction discount, exchange or variation for any reason.

7.2        Zip Co NZ shall immediately refer any queries or inquiries with respect to refunds or the merchantability of the Goods direct to the Retailer and shall not initiate any Refund without written confirmation from Retailer.

7.3,       If Retailer agrees to issue a Refund, the Retailer must confirm to Zip Co NZ in writing the Customer Name, Transaction number, the Goods returned, and the amount to be refunded (a “Refund Request”).

7.4.       Upon receipt of a Refund Request, Zip Co NZ will process the Refund, adjust any outstanding instalment payments accordingly and advise Customer.  Retailer shall be responsible for the creation and issuing of any credit note to the Customer.

7.5.       Following confirmation of a Refund from the Retailer, Zip Co NZ is entitled to receive via direct debit from the Retailer:
a)         the relevant amount paid across to the Retailer relating to the Refund;
b)         100% of the Processing Fee applied to the Transaction;
c)         50% of the Retailer Fee applied to the relevant value of the Refund, where the Refund is within the first 10 Business Days of the Transaction Date and thereafter, 100% of the Retailer Fee.

8.         Exchange Arrangements

8.1.       If a Customer exchanges an item for another item either instore or by returning the item, and such an exchange involves a partial refund of cash, then the processing of the relevant Refund shall be dealt with in accordance with clause 7 above.

9.         Goods and Services Tax and Invoice Requirements

9.1.       The Fees are plus GST, but are inclusive of all other taxes, duties, imposts or levies.

9.2.       Retailer shall remain responsible for the payment of GST to Inland Revenue in respect of the Transaction and the Retailer shall issue a tax invoice to the Customer.

10.        Confidential Information

10.1.     All information that is disclosed by each party to the other under this Agreement or in the course of negotiating this Agreement, including any information relating to the Intellectual Property, Sale Metrics, source code,  the integration of the Zip Co NZ Platform and providing the Services, shall be treated as confidential information (“Confidential Information”).

10.2.     Confidential Information shall not include any information that is public knowledge or that is rightfully received by either party from a third party who is itself not under an obligation of confidence.

10.3.     Each party shall hold the Confidential Information in strict confidence and shall not use the Confidential Information for any purpose other than for the performance of this Agreement and the Services, nor disclose the Confidential Information to any person except as required to be disclosed by law for a period of 2 years from the date of termination of this Agreement.

10.4.     The Retailer acknowledges that monetary damages alone may be an inadequate remedy for breach of its obligations under this Agreement.  In addition to any other remedy which may be available in law or equity, Zip Co NZ may be entitled to interlocutory injunctive relief to prevent a breach of this Agreement and to compel specific performance of this Agreement.

10.5.     This clause 10 shall survive termination and expiry of this Agreement.

11.        Intellectual Property Ownership

11.1.     The Retailer acknowledges and agrees that ownership of all products, systems, know-how, methods, processes, data, designs, computer programs and object or source code, relating to the Zip Co NZ Platform and the Services is owned by Zip Co NZ whether existing before this Agreement or created during the Term of this Agreement (“Intellectual Property”).

11.2.     The Retailer acknowledges and agrees that it shall have no claim over the Intellectual Property, nor any license or other right to use such Intellectual Property except as expressly provided for under this Agreement.

12.        Warranty and CGA Disclaimer

12.1.     Zip Co NZ does not represent or warrant that the Services will be uninterrupted, error-free, without delay or without compromise of Retailer’s security systems or that all errors will be corrected.

12.2.     In entering into this Agreement, Zip Co NZ and Retailer both confirm, acknowledge and agree that:
a)         both parties are ‘in trade’;
b)         the Services are provided to and acquired by Retailer in trade and for a business purpose; and
c)         the statutory guarantees and implied terms, covenants and conditions contained in the CGA are excluded to the fullest extent permitted at law, and do not apply as between Zip Co NZ and Retailer.

13.        Liability and Indemnity

13.1.     Retailer shall indemnify, and shall keep
indemnified, Zip Co NZ and its Affiliates against any liability, loss, damage, cost and expense that Zip Co NZ or any of its Affiliates may suffer, due to the Retailer’s negligence, or breach of any term of this Agreement or any breach of relevant law relating to the Goods or their merchantability.

13.2.     Zip Co NZ’s total cumulative liability under or in any way connected with this Agreement or the provision of the Services is limited to the total Fees paid by Retailer to Zip Co NZ in the six month period preceding the event giving rise to the claim.

13.3.     Neither party is liable to the other for any consequential loss or loss of use, production, profit, income, business, contract or anticipated saving, data or corruption of data, financing cost or increase in operating cost, or any other economic loss, or for any special, punitive,  indirect or consequential loss or damage.

14.        Dispute Resolution

14.1.     A party must, as soon as reasonably practicable, give the other party notice of any dispute arising in respect of, or in connection with, this Agreement (“Dispute”).

14.2.     The parties shall endeavour to resolve the Dispute in good faith within 5 Business Days of receipt of notice of the Dispute.

14.3.     If the parties fail to resolve the Dispute within 5 Business Days of receipt of notice of the Dispute, the parties may take such action, including the commencement of legal proceedings, as is deemed appropriate or necessary to resolve or determine the Dispute.

14.4.     Notwithstanding anything in this Agreement, a party may commence court proceedings in relation to any dispute at any time where that party seeks urgent interlocutory relief.

15.        Termination

15.1.     This Agreement may be terminated by either party without cause by giving 20 Business Days’ written notice.

15.2.     Zip Co NZ may terminate this Agreement immediately by notice in writing if:
a)         Retailer is in breach of a material term of this Agreement and such breach is not capable of remedy; or
b)         Retailer is in breach of a material term of this Agreement and (if such breach is capable of remedy) it is not remedied within 20 Business Days of Retailer receiving notice from Zip Co NZ of the breach; or
c)         Retailer becomes subject to an Insolvency Event.

15.3.     In the event of any termination of this Agreement:
a)         Zip Co NZ shall continue to manage any outstanding Instalment Plans from Customers and the Retailer shall continue to manage Returns in accordance with this Agreement;
b)         Retailer must remove the Zip Co NZ Platform integration from the Retailer Site immediately on the date of termination of this Agreement;
c)         Zip Co NZ is entitled to retain any Sale Metrics.

16.        General

16.1.     The Retailer shall not assign, attempt to assign or otherwise transfer or sub-contract any of its rights or obligations under this Agreement without obtaining Zip Co NZ’s prior written consent, which Zip Co NZ may refuse to provide at its discretion.

16.2.     Zip Co NZ may assign or transfer any of its rights under this Agreement, or delegate any of its obligations under this Agreement, to any third party without the consent of Retailer.

16.3.     Without limiting any other right or remedy Zip Co NZ may have, any amount due and owing from the Retailer to Zip Co NZ in connection with the Agreement may be deducted by Zip Co NZ from any other moneys otherwise payable to the Retailer in connection with the Agreement.

16.4.     This Agreement is binding upon and enforceable by each party’s permitted successors and assignees.

16.5.     Nothing in this Agreement shall create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties.  A party shall not have the authority to act for, or to incur any obligation on behalf of, any other party, except as expressly provided for in this Agreement.

16.6.     No written waiver of any breach of this Agreement shall be deemed to be a waiver of any other, or any subsequent, breach.   No failure or delay by any party in exercising any rights, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.

16.7.     This Agreement constitutes the entire agreement between Zip Co NZ and the Retailer and shall supersede all previous negotiations, commitments, understandings and agreements between the parties in relation to its subject matter.

16.8.     Any modification to or variation of this Agreement must be in writing and signed by each party.

16.9.     If any provision of this Agreement is held to be invalid, illegal or unenforceable, it will be severed and the remainder of the Agreement will remain in full force and effect.

16.10.   Neither party shall be liable for any delay in meeting, or failure to meet, its obligations under this agreement to the extent that such delay or failure is caused by any event outside its reasonable control (including, without limitation, any delay or failure caused by any act or omission of the other party) (“Force Majeure Event”).  If a party is prevented from meeting its obligations under this agreement due to a Force Majeure Event it shall notify the other party of the circumstances and that other party shall grant a reasonable extension of time for the performance of the obligation.

16.11.   Clauses 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive termination of this Agreement, together with any other clauses that by their nature are intended to survive termination or expiry.

16.12.   This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand.  The parties irrevocably agree that the courts of New Zealand shall have non-exclusive jurisdiction.

16.13.   This Agreement may be executed in any number of counterparts (including facsimile copies) and provided that every party has executed a counterpart, the counterparts together shall constitute a binding and enforceable agreement between the parties.