Terms and Conditions
End User License Agreement for Centrapay Platform
IMPORTANT: Please read the terms and conditions of this license agreement carefully. By using all or any portion of the software installed by this setup utility (“software”) you accept all the terms and conditions set out in this agreement. You agree that this agreement is enforceable like any written negotiated agreement signed by you. This agreement is enforceable against you and any legal entity that obtained the software and on whose behalf it is used. If you do not agree, do not use this software.
Definitions
“Centrapay” means Centrapay Limited; a New Zealand registered Limited Liability Company.
“Software” or “Centrapay” or “Centrapay Platform” means (a) all of the contents of the files, distribution media or other media with which this license agreement is provided, including but not limited to (i) Centrapay or third party computer information or software; and (ii) related explanatory written materials or files (“Documentation”); and (b) any upgrades, modified versions, updates, additions, and copies of the software, if any, licensed to you by Centrapay (collectively known as “Updates”).
“Equipment” means any physical equipment provided by Centrapay for use with, or to assist the use of, the Software.
“Use” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with both the documentation and the terms and conditions in this agreement.
“You” or “Customer” means (a) the person, company or other legal entity that will be using the software; and (b) any person, company or other legal entity who will be using the Software on behalf of (a) in accordance with normal business operations and the terms and conditions of this license agreement (this “Agreement”).
Additional License Agreements
At its sole discretion, Centrapay may provide you with a separate customised written license agreement. In such a case, if any of the terms and conditions in the written agreement conflict with the terms and conditions in this agreement, the terms in the written agreement take precedence.
Grant of License
As long as you agree with the terms and conditions in this license agreement (this “Agreement”), Centrapay grants to you 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 Centrapay 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.
TERMS OF USE
Permitted Use and No Use of Software Independent of Centrapay
Customer may not:
(a) Use Centrapay for any purpose other than the Permitted Use; or
(b) Use the Software independently of the other components of Centrapay unless Centrapay has given prior written consent to do so.
If this agreement is terminated, Customer’s right to use Centrapay and its licence to use the Software will automatically terminate and Customer must immediately remove all copies of the Software from its system(s).
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.
Bureau Service
Customer must not, and must not permit any other person to, use Centrapay to operate a bureau service or otherwise process Transactions for the benefit of any person other than Customer.
No Third Party Use
Customer must not provide, or otherwise make available, Centrapay or any component of Centrapay in any form to any person without the prior written consent of Centrapay.
Backup Copies
Customer may make a reasonable number of copies of the Software for backup and disaster recovery purposes only.
Alterations to Software
Centrapay may, at its sole discretion, alter, upgrade, update or change the Software at any time during the term of this agreement. Where Centrapay believes that such alteration, upgrade, update or change to the Software will, or is likely to, materially affect Customer’s use of the Software or Centrapay, Centrapay will endeavour to notify Customer of this in advance. Customer acknowledges and agrees that, if Customer fails to promptly install (or where this forms part of the Centrapay Support Services, fails to allow Centrapay to promptly install) all Updates supplied by Centrapay in connection with this agreement, Customer may be unable to process Transactions and that:
(a) Centrapay will not be liable to Customer under this agreement in respect of such inability; and
(b) Centrapay will be released from any obligation to supply the Centrapay Support Services during any period which Customer has failed to install (or, where applicable, failed to allow Centrapay to install) any Update.
Defect in Software
Centrapay will correct any defect in the Software which is notified to Centrapay within 90 days of supply of the Software to Customer, provided that Customer has complied with all of Centrapay’ recommendations and instructions relating to installation and use of the Software. This obligation will not apply if any defect in the Software or any failure of the Software results from accident, abuse or misuse of the Software by Customer.
Intellectual Property
All Intellectual Property rights in Centrapay and the Equipment, and any work or thing developed or created by Centrapay under or in connection with this agreement (such work or thing being “Developed Works”), are exclusively owned by Centrapay (or Centrapay’ licensors or suppliers). Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of:
(a) Centrapay or any part of Centrapay; or
(b) any Developed Works; or
(c) any software, firmware or other Intellectual Property forming part of, or supplied with, the Equipment,
to Customer under this agreement and Customer will not dispute Centrapay’ ownership of the property.
CENTRAPAY WARRANTIES
Limitations on Warranties
To the fullest extent permitted by law, except as expressly set out in this agreement, Centrapay 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. Centrapay does not warrant that:
(a) Centrapay or the Equipment will meet Customer’s requirements; or
(b) Centrapay will be uninterrupted or error free, or that all errors will be corrected; or
(c) that the Equipment will be free of defects in design, materials or workmanship or will comply with any applicable equipment manufacturer’s or software developer’s specifications.
Centrapay Indemnity
Subject to this agreement, Centrapay will indemnify Customer against any loss, damage or cost suffered or incurred by Customer arising from any successful third party claim against Customer that Centrapay 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 Centrapay in writing within 5 Business Days of the claim;
(c) Customer gives Centrapay sole control of the defence of the claim and all related settlement negotiations; and
(d) Customer gives Centrapay 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 Centrapay); and
(e) Customer has not made any admission of liability in respect of the claim.
Mutual Indemnities
Subject to this agreement, each party (“First Party”) indemnifies the other party at all times against any loss, damage or cost (including all reasonable legal expenses on a solicitor and client basis) suffered or incurred by the other party as a direct or indirect result of any negligent act or omission, breach of this agreement by the First Party, its personnel or agents.
LIABILITY
Limitation
To the fullest extent permitted by applicable law, in no event will Centrapay’ total liability to Customer under this agreement exceed the amount paid by Customer to Centrapay under this agreement in the 3 (three) months following execution of this agreement.
Exclusion
To the fullest extent permitted by applicable law, in no event will Centrapay 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.
Consumer Guarantees Act
It is expressly acknowledged and agreed by Customer that Centrapay and the Equipment is supplied to Customer for business purposes and that the provisions of the Consumer Guarantees Act 1993 do not apply.
TERMINATION
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 where that breach is reasonably capable of remedy, 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) is in material breach of any of its obligations under this agreement which breach is not reasonably capable of remedy; or
(c) goes into liquidation, has a receiver appointed or is unable to pay its debts as they fall due.
Breach of Licence Terms
Any use of the Software by Customer for any purpose other than the Permitted Use, or any breach by Customer of the provisions of terms of use will, without limitation, be deemed to be a material breach of this agreement.
Consequences
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, together with those clauses which are incidental to, and required in order to give effect to, those clauses. For the avoidance of doubt, all Addenda will terminate on termination of this agreement.
General
Disputes
If the parties fail to negotiate a resolution to a dispute within a reasonable time (and 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 (if any).
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.
Assignment
Customer may not transfer or assign any of its liabilities or rights under this agreement to any other person, company or legal entity without the prior written consent of Centrapay (such consent not to be unreasonably withheld).
Amendment
Except as expressly provided for in this agreement, no amendment to this agreement will be valid unless recorded in writing and signed by a duly authorised senior representative of each party.
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.
Remedies
The rights, powers and remedies provided in this agreement are cumulative and not exclusive of any rights, powers or remedies provided by law.
Non Exclusive
Centrapay is entitled to provide the same or similar services or equipment as it provides to Customer under this agreement to any other person, company or legal entity.
Subcontracting
Centrapay may appoint subcontractors to perform any of its obligations under this agreement. Centrapay will, at all times, remain primarily liable to Customer for all acts or omissions of any subcontractor appointed by Centrapay.
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 Centrapay. 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).
Address for notices
Centrapay
Level 6, 48 Emily Place
Auckland
New Zealand