AFTERPAY MERCHANT AGREEMENT (NEW ZEALAND)
AFTERPAY MERCHANT AGREEMENT (NEW
ZEALAND)
NEW VERTICALS – ADDITIONAL TERMS – ADULT
These Additional Terms will only apply in your new
Merchant Agreement if these are relevant to Your business and you are approved
by Afterpay to sell Goods in this category.
These
additional terms apply to Your business and expressly form part of Your Agreement
with Afterpay. By signing this Agreement (i.e. by clicking accept at the bottom
of this page), You agree to be bound by these additional terms, together with
the General Terms displayed below (and any applicable Schedules). For the
avoidance of doubt, to the extent these additional terms do not replace any
terms set out in the General Terms, the General Terms will continue to apply.
A Subject to clause 4(c) of the General Terms, the timing of
the launch of the provision of the Services on Your Website will be mutually
agreed by the parties.
B You must not use any Afterpay branding without the prior
written consent of Afterpay. For more information about use of Intellectual
Property, see clause 5.3 of the General Terms.
C Notwithstanding
clause 5.1(l) of the General Terms, in accordance with Afterpay’s approval
(communicated to You separately in writing or otherwise), You are permitted to
use the Services for the sale of adult merchandise, including (without
limitation) sex toys and sexual enhancement products as could reasonably be
expected to be offered by You in Your ordinary course of business, but
excluding any pornographic materials, experiences and content.
D Except as expressly provided in this Agreement, You agree
not to promote the Afterpay Service via Your marketing channels or publicly
disclose the partnership (including through press announcement or media
release) without Afterpay’s prior written approval. You also agree to adhere to
any brand or marketing guidelines provided by Afterpay from time to time.
E Clause 5.3(b) of the General Terms shall be replaced with
the following:
We hereby grant to you a
limited, fully-paid, non-exclusive, non-transferable, non-sublicensable,
revocable limited license, during the Term, to use the Afterpay Marks, Afterpay
Gateway, Merchant Portal, and Afterpay Software, in each case, solely in
connection with your use of the Services as defined herein and otherwise
carrying out your rights and privileges hereunder. Afterpay’s
Intellectual Property must be used in accordance with any use or brand
guidelines notified to You from time to time.
You must submit each proposed application or use of Afterpay
Intellectual Property to Us for written approval prior to use, except to the
extent that such use is expressly permitted under this Agreement or otherwise
expressly agreed in writing by Afterpay. You must not
copy, modify, alter, amend, supply to any third party or use for any other
purpose any Afterpay Intellectual Property without our express prior written
consent. Subject to clauses 7.1(d) and 11.3(a) of these General Terms, on termination of the Agreement, you must:
(i) permanently delete all copies of the Afterpay Software in your possession
or control, (ii) as soon as reasonably practicable discontinue the use or
display of any Afterpay Intellectual Property, and (iii) dispose of any works
embodying any Afterpay Intellectual Property. Without limiting this clause, if
these General Terms are amended to remove your right to offer the Afterpay
Gateway online or in-Store, you must immediately discontinue the use or display
of any Afterpay Intellectual Property associated with the discontinued right.
F In addition to Our rights under this Agreement, You agree
that Afterpay may terminate this Agreement immediately upon written notice to
You if the provision of the Services on Your Website or in-Store causes
reputational harm or brand damage to it.
G You agree that clause 11.2(a) of the General Terms is
replaced with the following:
Termination for convenience
11.2(a) Either You or We
may terminate this Agreement for any reason by giving at least 2 days prior
written notice.
AFTERPAY MERCHANT AGREEMENT (NEW
ZEALAND)
NEW VERTICALS – ADDITIONAL TERMS – HEALTH
These Additional Terms will only apply in your new
Merchant Agreement if these are relevant to Your business and you are approved
by Afterpay to sell Goods in this category.
These
additional terms apply to Your business and expressly form part of Your
Agreement with Afterpay. By signing this Agreement (i.e. by clicking accept at
the bottom of this page), You agree to be bound by these additional terms,
together with the General Terms displayed below (and any applicable Schedules).
For the avoidance of doubt, to the extent these additional terms do not replace
any terms set out in the General Terms, the General Terms will continue to
apply.
A Notwithstanding clause 5.1(l) of the General Terms, in accordance
with Afterpay’s approval (communicated to You separately in writing or
otherwise), You are permitted to use the Services for the sale of one or more
of the following health sub-verticals as could reasonably be expected to be
offered by You in Your ordinary course of business (Health Sub-Verticals):
(i) Dental;
(ii) Optometry;
(iii) Radiology;
(iv) Medical;
(v) Veterinary;
(vi) Day Hospital –
completed within a single day (not requiring an overnight stay);
(vii) Allied Health –
includes general podiatry, general physiotherapy, limb and upper limb
rehabilitation and associated products;
(viii) Pharmacy; and
(ix) Other health sub-verticals approved by Afterpay from time to time
(and communicated to You).
For the avoidance of doubt,
the Health Sub-Verticals include:
(i)
prescription medicines that are available for purchase at Your
Stores but only where a medical practitioner has provided a properly authorised
medical prescription to provide such medicines to the Customer in connection
with the relevant Health Sub-Vertical; and
(ii)
the provision of injectables and fillers (including vaccines,
Botox or Dermal Fillers), whether cosmetic or non-cosmetic, for uses approved
by the New Zealand Medicines and Medical Device Safety Authority to treat the
Customer in connection with the relevant Health Sub-Vertical.
B To the extent that You disclose any personal or sensitive
information about Customers to Afterpay You must provide any notice or obtain
any consents required to do so.
C In addition to the warranties under clause 12.1 of the General
Terms, You warrant and represent to us that all practitioners operating at Your
Stores are registered with the appropriate health practitioner responsible
authority established under the Health
Practitioner Competence Assurance Act 2003 and You will be responsible at
all times for ensuring such registration is current and validly issued.
D The definition of “Sale Price” shall be replaced with the
following:
Sale Price means the purchase price of the Goods supplied by You
(including GST) that would otherwise be payable by the Customer to You, but
does not include any amount discounted by You or reimbursed or reimbursable to
the Customer by publicly funded healthcare services or on account of the
Customer’s private health insurance.
E The parties agree that the display of Afterpay
Promotional Materials on Your Website or in-Store shall be subject to any
Relevant Laws regulating the form or content of Promotional Materials that You
publish or use to promote Your business and services. You are responsible for ensuring
compliance with such Relevant Laws in relation to the display of the
Promotional Materials.
F Where
you are using Afterpay Services for prescription or pharmacy only medicine
online, Afterpay is the merchant of record and is acting on Your behalf in
relation to those Afterpay Purchases and Afterpay will comply with the Scheme
Rules in relation to those Afterpay Purchases. You must provide us with all
reasonable assistance we require to comply with the Scheme Rules. In this
clause, Scheme Rules means all card schemes accepted by Afterpay and
their published rules for Your Merchant Category Code that apply to
prescription or pharmacy-only medicine sold online.
AFTERPAY MERCHANT AGREEMENT (NEW ZEALAND)
NEW VERTICALS – ADDITIONAL TERMS – MARKETPLACES
These additional terms (‘Additional Terms’) will only
apply in Your new Merchant Agreement if these are relevant to Your business and
You are approved by Afterpay to sell Goods in this category.
These Additional
Terms apply to Your business and expressly form part of Your Agreement with
Afterpay. By signing this Agreement (i.e. by clicking accept at the bottom of
this page), You agree to be bound by these Additional Terms, together with the General
Terms displayed below (and any applicable Schedules). For the avoidance of
doubt, to the extent these additional terms do not replace any terms set out in
the General Terms, the General Terms will continue to apply.
A Notwithstanding
clause 5.1(l) of the General Terms, in accordance with Afterpay’s approval
(communicated to You separately in writing or otherwise), You are permitted to
use the Services to allow for the sale of Goods by Marketplace Sellers on Your
Website.
B You
control Your Website, which allows Customers to purchase Goods from Marketplace
Sellers. The parties acknowledge and agree that: (i) by making a purchase on
Your Website, a Customer agrees to pay the Sale Price associated with the Goods
as specified by the Marketplace Seller and the Customer enters into a sale
agreement with the Marketplace Seller; (ii) where an Afterpay Purchase is
rejected by a Marketplace Seller, You will process the Refund for the Customer
as soon as the rejection is notified in accordance with clause 7.1 of the
General Terms; (iii) the timing for Delivery of Goods must be communicated
clearly to the Customer by the Marketplace Seller at the point of purchase; and
(iv) once an Afterpay Purchase has been made by a Customer, You are responsible
for settlement of the Sale Price (and any other applicable delivery and other
fees) with the associated Marketplace Seller, provided that any such settlement
process does not breach the terms of Your Agreement.
C You
agree to comply with any reasonable direction given by us to provide product
information to Afterpay (such as SKU-level data and cart information).
D You
must continue to allow Customers to make Afterpay Purchases from all
Marketplace Sellers on Your Website as permitted under and in accordance with
Your Agreement.
E You
will obtain any information We require from any Marketplace Seller (including
shipping information) to demonstrate that the Goods were Delivered to the
address specified by the Customer when making an Afterpay Purchase.
F If a
Customer: (i) disputes that the Marketplace Seller has Delivered the Goods;
disputes that the Goods have been Delivered to an acceptable standard, or
disputes any policies imposed by You or Marketplace Sellers, and (ii) is unable
to reach a resolution directly with the Marketplace Seller, You will use
commercially reasonable efforts to mediate a resolution between the Customer
and the Marketplace Seller. If the Customer and the Marketplace Seller are not
able to come to a resolution following any mediation facilitated in accordance
with this clause, You will make a final determination about whether or not the
Customer is entitled to a Refund in accordance with Your standard business
practices.
G You are authorised to and will ensure
compliance with the terms of this Agreement by all Marketplace Sellers in
relation to Afterpay Purchases through Your Website, including but not limited
to, obligations set out in clause 5.2(d) and 7.1(a) of the General Terms.
H The
parties will collaborate to reduce risk and fraud via the Services across their
respective fraud teams. This will include: (i) You providing any agreed risk
metrics via the Afterpay Gateway/Admin Portal which will include at a minimum -
Marketplace Seller name or identification details, basket details and, if
Afterpay has approved services for Your Website, the date of future bookings
(including but not limited to, expected date of service delivery); (ii) where a
party detects any fraud on Your Website, that party promptly notifying the
other party of the details of the alleged fraud, and the parties will, as soon
as reasonably practicable, collaborate to determine the appropriate steps to
reduce the risk of fraud; and (iii) Afterpay monitoring Customer non-payments,
fraud and other losses in relation to the Afterpay Purchases (“Loss Rates”). If
Afterpay determines that the Loss Rates are too high, Afterpay shall discuss
means to limit the Loss Rates and You shall assist with any reasonable and
commercially practical solution to mitigate the Loss Rates.
I The
terms of Your Agreement, including the Fee, do not extend to any of Your Affiliates
or related bodies corporate, nor any website owned and operated by any
individual Marketplace Seller outside of Your Website.
J Notwithstanding
any terms in Your Agreement, Afterpay retains the right to withhold reserves or
otherwise hold any amount of the Settlement Amount if Afterpay determines, in
its sole discretion, that there are any material concerns with the performance
of Your obligations under this Agreement.
K Afterpay
may also exercise its rights to terminate Your Agreement under clause
11.1(b)(ii) of the General Terms where a Marketplace Seller changes its
policies in any way that affects the ability of any Customer to Return any Goods
in the manner intended under Your Agreement.
L You
confirm that You make the representations and warranties set out in clauses
12.1(a)(iii), (iv) and (v) of the General Terms on Your behalf and on behalf of
each Marketplace Seller.
M You acknowledge and agree that any
reference to You or Your in the indemnity in clause 12.3(a) of the General
Terms also includes a reference to Marketplace Sellers and their personnel.
N In
these terms, “Marketplace Seller” means a person or business registered
as a seller on Your Website who offers their Goods and/or Services to Customers
on Your Website.
(a)
These Afterpay Merchant General Terms of Service (these “General Terms”), together with the
Afterpay Merchant Supplementary Terms (the “Supplementary Terms”), which by this reference are incorporated
herein (together, the “Agreement”)
are entered into between the merchant entity set out under Part A of the
Supplementary Terms (“Merchant”, “you”, or “your”) and Afterpay NZ Limited (NZ company number: 6340314) (“we”,
“us”, “our” or “Afterpay”)
(each individually a “Party”, and
collectively, the “Parties”) as of
the date that the Supplementary Terms are accepted to by you, or as of the date
these General Terms are provided to you under clause 1(e) of these General
Terms, as applicable (the “Effective
Date”). Except as otherwise expressly provided by us in writing, the
Parties agree that this Agreement supersedes any and all prior executed
merchant agreements between the Parties with respect to Afterpay Services. In
the event of any inconsistency or conflict between the terms and provisions of
these General Terms and the Supplementary Terms, the terms and provisions of
the Supplementary Terms shall control. All schedules to these General Terms are
expressly made part of the Agreement.
(b)
By signing this Agreement (i.e. by clicking to accept its terms),
You agree to be bound by its terms. By electronically indicating Your
acceptance of this Agreement and signing up for an Afterpay merchant account,
You agree that Your electronic consent will have the same legal effect as a
physical signature. If You have not accepted this Agreement prior to using
Afterpay’s Services, Your use of Afterpay’s Services shall constitute
acceptance of this Agreement.
(c)
If You are using the Services on behalf of a business, You
represent to Us that You have the power and full legal authority to bind that
business to the terms of this Agreement and You accept these terms as an
authorised representative on behalf of that business.
(d)
By signing this Agreement or using the Services, You also agree to
any additional terms specific to Your use of the Services (if applicable, such
additional terms will display above these terms), which become part of Your
agreement with us. Please ensure You read this Agreement, the Afterpay policies
and any other agreements that apply to You carefully.
(e)
We may revise this Agreement and our policies at any time. We will
give you not less than 30 days’ written notice of any material change to the Agreement
and our policies unless a shorter notice period is required for compliance with
any law or regulator policy applicable to us, to address a material business
risk, or for the purposes of ensuring the security or integrity of any data, IT
system or business process. By
continuing to use the Services without objecting to any amendments or new
versions of this Agreement, You agree to and accept all terms and conditions of
any amended Agreements, including any new or changed terms or conditions. If
you do not wish to continue receiving the Services as a result of any change
notified to You by Afterpay, You may terminate this Agreement in accordance
with clause 11.2(b).
(f)
You acknowledge and agree that some or all of Afterpay’s
obligations under this Agreement may be performed by a related company (as that
term is defined in the Companies Act 1993) of Afterpay from time to time.
2
Term
The Term of the Agreement is set out under
Part B of the Supplementary Terms.
(a)
Our Services allow Customers to pay for goods or services offered
by You. Afterpay may permit You to use Our Services online and/or in-Store (as
applicable), as may be set out under Part C of the Supplementary Terms. When Your Customers make an authorised
Afterpay Purchase, we will pay You on behalf of that Customer in accordance
with the terms of this Agreement, in exchange for the Customer agreeing to
repay the amounts to us in accordance with our User Agreement with the
Customer.
(b)
We will assume all risk in collecting payments from Customers that
make Afterpay Purchases, except where liability transfers to You in accordance
with this Agreement.
(c)
You must complete and return to us Your direct debit details and
AML Documentation so that we can Verify these details. We may suspend Our
Services or suspend the Payment Date until such details have been Verified.
Afterpay may terminate this Agreement immediately if this documentation can’t
be Verified. By providing us with Your bank details, executing this Agreement
and electronically completing a Direct Debit Request Authority, You authorise
Us to withdraw monies from Your Account in accordance with the terms of this
Agreement and the Direct Debit Request Authority. You will not provide Us with any
information in connection with this Agreement that is false, inaccurate, or
misleading.
(d)
You warrant that all information You provide to us in connection
with this Agreement (including any information contained in documents we
request from You), is complete, current and correct.
(e)
Cross Border Trade. Afterpay may, in its sole discretion, activate Cross Border Trade.
The Cross Border Trade Terms set out in Schedule 2 of these General Terms apply
to any Cross Border Transactions processed by You under this Agreement. Notwithstanding this, to the extent this Agreement
permits You to offer our Services in-Store, if Afterpay is able to offer You
its Services in respect of Cross Border Transactions at Your Stores at a later
date and the Parties agree in good faith to offer this capability to customers,
this Agreement and Schedule 2 of these General Terms will also apply to Your
Stores.
(a)
Technical Integration of
Afterpay Gateway. You agree to comply with any reasonable direction given by us in
respect of the integration of the Afterpay Gateway on Your Website and/or
in-Store (as applicable). If the Afterpay express checkout functionality is
made available for technical integration (Express
Checkout), You agree to integrate Express Checkout on Your Website(s) where
relevant and technically possible. If You have implemented the Afterpay Gateway
other than in accordance with the materials that Afterpay has provided to You,
You must obtain written approval from an Afterpay representative before You
allow Customers to make Afterpay Purchases. You must obtain written approval
from Afterpay if Your implementation of the Afterpay Gateway deviates from the
Brand Management Materials provided by Afterpay.
(b)
Availability. You must make Afterpay available
for use by Customers on Your Website and/or in-Store (as applicable) as soon as
reasonably practicable or as otherwise agreed by Afterpay in writing, acting
reasonably. You must continue to allow Customers to make Afterpay Purchases as
permitted under this Agreement as long as this Agreement remains on foot,
except: (i) during any period of suspension imposed by us in accordance with
the terms of this Agreement; or (ii) as otherwise notified by us.
(c)
Merchant Portal. You agree that the email
address provided to Afterpay as part of the merchant onboarding process will be
automatically added and granted access to Afterpay’s merchant portal. You may
elect to nominate other individuals to be granted access to the merchant portal
upon written notification to Afterpay. Afterpay may require You to assign a
role to each user nominated by You. You acknowledge You are wholly responsible
for the actions of any person to whom access is granted, including any person
who abuses his/her rights. If You would like us to amend or remove a person’s
rights, You must submit a written request to Afterpay.
(d)
Afterpay Assistance. If you grant Afterpay,
including any employee or agent of Afterpay, access to Your system, website,
platform, code base or other technology, for any purpose related to the
Services including, but not limited to, integration of computer code, other
technology, content, images or marketing materials, you acknowledge and
expressly agree that Afterpay will have no liability for any damage,
interruption, errors or other loss related to your system, website platform,
code base or other technology that may be caused by the acts or omissions of
Afterpay.
(e)
Control of Website. You agree that You control and
will continue to control the content of Your Website. You must not provide
Customers with any information about Afterpay, the Afterpay Gateway or our
Services that is false, misleading or inaccurate. Without limiting this clause 5.1(e),
You must not make any warranty, representation or statement to any Customer
relating to Afterpay, the Afterpay Gateway or our Services, other than those
contained in Afterpay’s User Agreement, included on our website, or included in
materials provided by us, as may be updated from time to time, or as otherwise
expressly permitted by Afterpay in writing. You must not use any technology
(device, software or hardware) to damage, intercept or interfere with our
Services, or any software or technology that we use to provide the Services.
(f)
Display of Afterpay Materials on
Your Website.
Without limiting clause 5.1(g), You agree to:
(i)
include on Your Website and/or in-Store (as applicable) a
description of the Afterpay Gateway in such terms as may be otherwise provided
or approved by us in writing;
(ii)
(where relevant and technically possible) present such description
as a 'lightbox' on Your Website as may be provided or approved by us in writing
from time to time;
(iii)
comply with any reasonable directions we give about how any
description of the Afterpay Gateway is to be displayed on Your Website and/or
in-Store (as applicable);
(iv)
as soon as practicable and, at the latest, within 7 Business Days,
comply with any reasonable direction we give You to modify, replace or remove
any description of the Afterpay Gateway displayed on Your Website and/or
in-Store; and
(v)
not provide any description of the Afterpay Gateway which does not
comply with this clause 5.1(f), or has not otherwise been approved by us in
writing.
(g)
Modification or Deletion of
Afterpay Materials. If we are concerned that any content or materials displayed on
Your Website or Store does not comply with clause 5.1(f) of these General Terms,
we may request that You modify or delete the relevant content or materials, or
remove them from display. You must
comply with any request made under this clause as soon as practicable and, at
the latest, within 7 Business Days of the request, unless You can otherwise
establish to our reasonable satisfaction within this time frame that the
content or materials comply with the requirements of this Agreement. We have the right under clause 10 of these
General Terms to suspend Your access to the Afterpay Gateway if you breach
these requirements, or if we reasonably suspect that You have breached them.
(h)
Reimbursement. You must reimburse us any chargeback amounts (including associated
chargeback fees or other costs incurred) and/or any part of the Sale Price and
associated Shipping Costs that we cannot or do not recover from a Customer in
connection with that Afterpay Purchase to the extent that we reasonably
determine, based on evidence, the chargeback or Customer non-payment is because
of:
(i)
any conduct (including false or misleading representations),
contract, representation or warranty by you, your officers, directors,
employees or sellers, relating to the Afterpay Services or an Afterpay
Purchase;
(ii)
the Goods which are the subject of the relevant Afterpay Purchase
(including, without limitation, any product liability or warranty claim
relating to those Goods);
(iii)
the non-delivery of any Goods, late delivery of Goods, or damage
to Goods caused during delivery, or a breach of your obligations under clauses
5.2(a), 5.2(b) and 5.2(c) of these
General Terms; or
(iv)
a breach of your representation and warranties under clause 12.1
of these General Terms.
Any
reimbursement under this clause shall be limited to the Settlement Amount (plus
any chargeback costs, if applicable) of any applicable Afterpay Purchase(s)
impacted by the breach. You authorise us to collect such reimbursement via your
Direct Debit Request and set-off rights pursuant to clause 6.1(e) of these
General Terms, including against any Settlement Amounts we hold in suspension
under clause 6.1(h) of these General Terms or any Reserve amounts we hold under
clause 6.1(d) of these General Terms.
(i)
Customer Disputes. You must co-operate with us to
promptly resolve all disputes with Customers (including where necessary, taking
any action reasonably directed by us and as required to protect our legitimate
interests). You agree to respond to any correspondence received from Afterpay
in relation to customer disputes promptly and at the latest within 2 Business
Days. You must also ensure the contact details You provide to Afterpay are
up-to-date, complete and accurate.
(j)
Compliance with Law. You must comply with all
Relevant Laws in fulfilling Your obligations under this Agreement including in
relation to each Afterpay Purchase, and in relation to the Goods. You must
assist us to comply with our obligations under any Relevant Laws as reasonably
directed by us. You also agree to comply with all Data Protection Laws and to
not do anything that would cause Afterpay to breach such laws. Without
limitation, You must:
(k)
Misleading information. You must not provide us with any
information that is false or misleading.
(l)
Restricted and Prohibited Goods.
You acknowledge
that Afterpay may not permit its Services to be offered on all Goods. You must
not:
(i)
allow the Services to be used to purchase any of the following
categories of Prohibited Goods or Services at any time; and
(ii)
allow the Services to be used to purchase any of the following
categories of Restricted Goods or Services without successfully complying with
any additional underwriting, due diligence and/or conditional approval
requirements (communicated to You separately in writing or otherwise by
Afterpay).
If You are allowing the Services to be used
to purchase any goods or services which Afterpay considers, in its reasonable
discretion, to be dangerous, inappropriate or high risk, Afterpay reserves the
right to prohibit the use of the Services to purchase such goods or request
removal of such goods from Your Website or Store. You agree that we may
immediately terminate this Agreement if You are allowing the Services to be
used to purchase any Prohibited Goods or Services and/or You are unable to or
refuse to comply with any request by us relating to Restricted Goods or
Services.
|
Prohibited Goods or Services |
Restricted Goods or Services |
|
· goods
or services that infringe third party Intellectual Property, including
(without limitation) counterfeit goods and pirated content; · dangerous
goods, being goods that cause damage, harm or injury, including (without
limitation), recreational drugs (chemical or herbal), psychoactive
substances, equipment to facilitate drug use, weapons, weaponised knives,
self-defence products, ammunition, explosive materials and fireworks,
instructions for making explosives or other harmful products, tobacco
products, e-cigarettes or vaping products, weaponised hunting equipment, militarised
products or armoured goods and clothing; · gang
or hate group affiliated products; · multi-level
marketing or pyramid structure businesses; · jamming
and/or interference devices; · financial
services or products; · business
to business sales; · utilities; · pre-orders
or regular subscriptions · gambling or gambling-related content (including lottery,
games of chance, and raffles); · Selective
Androgen Receptor Modulators or Peptides; · products
that enable dishonest behaviour, including (without limitation) hacking
software or instructions, fake documents, essay mills and academic cheating
products; ·
prescription
drugs, regulated products, illegal drugs and testosterone boosters or sexual
enhancement products; · beauty
or cosmetic treatments that are physically invasive with a high risk of
infection not approved by the New Zealand Medicines and Medical Devices
Safety Authority; · cannabis
products (prescription or otherwise); Without limiting the above, any goods or services
which are required by law to be sold to Customers over 18 years of age. |
Categories
of Goods sold: ●
gift cards, open
loop cards or reloadable debit cards, calling cards, payment cards that can
be used at any location that accepts cards authorised by the payment card’s
network, cash, or cash equivalents; ●
adult goods
(including pornographic materials, experiences and content), online streaming
services and other content formats deemed offensive or of a sexual nature; ●
alcoholic
beverages; ●
services, in the
following categories: Pay-to-remove services; No-value-added services;
“Experiences”; Financial services; Ticketing services; Software services;
Health services; Auto services; Cleaning services and Other personal
services; Without limiting the above, any goods or services
which are required by law to be sold to Customers over 18 years of age. |
(a)
Approval Confirmation. When a Customer makes an
Afterpay Purchase, Afterpay's systems will promptly issue or withhold Approval
Confirmation to You. Afterpay exercises sole discretion regarding the decision
to issue or withhold Approval Confirmation.
You must only Deliver or provide Goods to a Customer after you have
received Approval Confirmation. Afterpay will not be liable to You for Goods
Delivered or provided without Approval Confirmation.
(b)
Delivery of Goods. Where a Customer makes an
online Afterpay Purchase, You are responsible for ensuring that all Goods are
Delivered to the Customer promptly, and within the expected Delivery period as
represented to the Customer at the point of sale, and for Goods other than Extended Delivery Goods, up to a maximum of: (i) fourteen (14) days in respect of
Goods that are goods; and (ii) ninety (90) days in respect of Goods that are
services. Except where You have received specific written approval from
Afterpay to the contrary, Goods must be available to be shipped to the Customer
at the time of the Afterpay Purchase. Where a Customer makes an Afterpay Purchase
in-Store, the Goods must be Delivered (or provided) to the Customer immediately
after Approval Confirmation, unless You expressly agree an alternative Delivery
time with the Customer.
(c)
Extended Delivery Goods. If we have authorised you to allow Customers to make an
Afterpay Purchase on Extended Delivery Goods:
We will have no
liability to you for any Extended Delivery Goods that you Deliver to the
Customer after the Extended Delivery Period. For any Afterpay Purchases that
are Extended Delivery Goods, we reserve the right to: (1) extend the Payment
Date to up to seven (7) Business Days, (2) create a Reserve pursuant to clause
6.1(d) of these General Terms; and (3) in the event that Extended Delivery
Goods are Delivered after the Extended Delivery Period, seek a refund from you
on any Settlement Amounts we have paid you as well as reimbursement of any
chargeback fees that we incur in connection with the relevant Afterpay
Purchase. We reserve the right to remove the availability of the Services for
Extended Delivery Goods where we determine in our sole but reasonable
discretion that doing so is necessary to comply with Relevant Laws or to avoid
a higher than acceptable level of risk to Afterpay.
(d)
Non-Delivery of Goods. If we suspect Goods have not
been delivered or a Customer refuses to pay us or issues a chargeback request
on the basis that Goods have not been Delivered, we may ask You to provide us
with proof of Delivery. If we make such a request, You agree to provide us with
any information reasonably requested by us (by email or via the Merchant
Portal) to prove Delivery including but not limited to the shipping carrier
name, tracking number and confirmation that the Goods were delivered to the
address specified by the Customer when making the Afterpay Purchase (or for
permitted services, provide proof of supply of the services).
If You do not provide this
information, or otherwise demonstrate to our reasonable satisfaction that Goods
have been Delivered to the Customer, within two (2) Business Days of our
request, then you agree to Refund to us any Settlement Amount we have paid you
and reimburse us any chargeback fees we incur in connection with the relevant
Afterpay Purchase. We may elect to be paid such amounts in accordance with clause
6.1(e) of these General Terms. We will, subject to any accepted chargebacks,
refund to the Customer any amounts paid by the Customer to us in connection
with the Afterpay Purchase upon our receipt of the Settlement Amount from You.
You agree that Afterpay also reserves the right in its sole discretion to
withhold any Settlement Amounts owed to You until we are satisfied that Goods
have been delivered to the Customer. You also agree that if Afterpay is
required to refund a Customer due to a breach by You of this clause, it is
entitled to recover from You any monies owed to us and may elect to recover
those funds in accordance with clause 6.1 of these General Terms.
(e)
Surcharges. You must not impose a surcharge
on the Customer or discriminate against the Customer in any way for using
Afterpay as a payment mechanism. A surcharge includes any charge or increase in
the sale price, shipping costs or any other Customer fees and charges that are
applied because the Customer has elected to use Afterpay as their method of
payment. For example, You must not charge the Customer a fee in addition to the
Sale Price (and any applicable Shipping Costs) on the basis that the Customer
has elected Afterpay as their chosen payment method. Similarly, You are not
permitted to charge a fee (i.e. a restocking fee) to the Customer where you
accept a Return for a Refund on the basis that the Customer’s chosen payment
method was Afterpay.
(f)
Damaged Goods. You are responsible for ensuring
that appropriate insurance policies are in place for Your Delivery of the Goods
to Customers. Afterpay will not be
responsible for any damage caused to Goods during Delivery, or any loss or
damage caused in connection with the supply of Goods that are services.
(g)
Exclusivity. The exclusivity clause set out
under Part E of the Supplementary Terms will apply.
(a)
Except as expressly provided herein, nothing in the Agreement
shall confer to either Party or any of its Affiliates any right of ownership in
any of the Intellectual Property of the other Party.
(b)
We hereby grant to you a limited, fully-paid, non-exclusive,
non-transferable, non-sublicensable, revocable limited license, during the
Term, to use the Afterpay Marks, Afterpay Gateway, Merchant Portal, and
Afterpay Software, in each case, solely in connection with your use of the
Services as defined herein and otherwise carrying out your rights and
privileges hereunder. You must not copy, modify, alter, amend, supply to any
third party or use for any other purpose any Afterpay Intellectual Property
without our express prior written consent. Subject to clauses 7.1(d) and
11.3(a) of these General Terms, on termination of the Agreement, you must:
(i) permanently delete all copies of the Afterpay Software in your
possession or control, (ii) as soon as reasonably practicable discontinue the
use or display of any Afterpay Intellectual Property, and (iii) dispose of any
works embodying any Afterpay Intellectual Property. Without limiting this
clause, if these General Terms are amended to remove your right to offer the
Afterpay Gateway online or in-Store, you must immediately discontinue the use
or display of any Afterpay Intellectual Property associated with the
discontinued right.
(c)
You shall use the Afterpay Trade Marks only in accordance with the
design, description and/or appearance of the Afterpay Trade Marks as presently
used by us. You may not change or modify the Afterpay Trade Marks. You agree to
abide by any reasonable guidelines provided by us from time to time in
connection with the use of the Afterpay Trade Marks. You further agree that any
products or services promoted in association with the Afterpay Trade Marks meet
or surpass the standards set by us and conveyed to you from time to time for
the character and quality of such products and services. The initial standard
for such products and services is the nature, standard and quality of the same
or equivalent products and/or services provided by us up to and including the
date hereof in association with the Afterpay Trade Marks. At our request, you
shall provide to us for our review, comment and approval, samples of such
products and sample copies of materials associated with such products or used
to advertise/promote the products on which the Afterpay Trade Marks appear and
the services promoted and provided in association with the Afterpay Trade
Marks.
(d)
You hereby grant Afterpay a fully-paid, non-exclusive,
non-transferable limited license, during the Term, to use your legal name or
trade name in the user flow associated with the Afterpay Services. You shall
retain all Intellectual Property rights in such name. Other than the foregoing
license rights, Afterpay shall not obtain any right, title, or other interest
in or to your name by virtue of the Agreement. Upon the earlier of the
expiration or termination of the Agreement, all license rights conveyed by you
to Afterpay shall cease, and all such rights shall revert to you.
(e)
You grant Afterpay and its Affiliates during the Term a
non-exclusive, non-transferable, revocable and royalty free licence to use your
name, logo, and details of your Website in our marketing materials and
channels, including, without limitation: in directory listings of Afterpay's
merchants; product listings; email marketing; social media marketing; and
affiliate network marketing. You also
grant Afterpay and its Affiliates during the Term a non-exclusive,
non-transferable, revocable and royalty free licence to
use one or more image(s) of our choosing from your Website in our marketing
materials and channels. You agree to obtain on our behalf any third-party
consents or licenses required to enable us to use any such image as
contemplated by the Agreement, without attribution and without charge to us. If
you notify us that you would like your name, logo, and/or details of your
Website removed from this marketing material, or would prefer us to use a
different image, we will do so as soon as reasonably practicable.
(a)
All payments made under this Agreement must be made in New Zealand
dollars.
(b)
We will pay the Settlement Amounts associated with each Afterpay
Purchase to You on the Payment Date for such Afterpay Purchase, as a single
transaction, netting the aggregate Settlement Amounts for all Afterpay
Purchases due to You on the Payment Date against all amounts then due to Us
under this Agreement, as described in this clause and by direct transfer to
Your Account nominated and communicated by You to Afterpay in writing. We
cannot guarantee against any delays of receipt of Settlement Amounts caused by
the banking system or other external factors.
(c)
You must pay Afterpay the Fee for each Afterpay Purchase as
outlined under Part D of the Supplementary Terms on the Payment Date.
The Fee is not refundable unless
paid incorrectly.
(d)
Afterpay reserves the right to seek a certain amount of funds from
You to set aside as a reserve, or withhold amounts from the Settlement Amounts
that may be payable to You for the purposes of setting aside a reserve (“Reserves”).
We reserve this right in order to secure the performance of Your obligations
under this Agreement. We may set aside a Reserve if we determine in our sole
but reasonable discretion that there may be a higher than acceptable level of
risk associated with You, Your business model, or Your performance under this
Agreement, including:
(i)
if Your
average expected Delivery period exceeds fourteen (14) days in respect of Goods
that are goods or ninety (90) days in respect of Goods that are services;
(ii)
if Your
average expected Delivery period for Extended Delivery Goods exceeds any
authorised Extended Delivery Period;
(iii)
if we
reasonably consider that Your business model or industry has a higher than
acceptable rate of chargebacks or disputes;
(iv)
if You
materially change Your business model;
(v)
if
there are issues relating to excessive disputes or refunds;
(vi)
if we
reasonably consider that other activity associated with Your use of our
Services is in breach of any law;
(vii)
if You
are subject to, or we reasonably consider that You may be at a higher than
acceptable risk of becoming subject to, an Insolvency Event; or
(viii)
if
required by law, court order or regulatory body.
If we require a Reserve under
this Agreement, we will use reasonable efforts to provide You with 14
days’ written notice. However, there may be circumstances where we need to take
immediate action to comply with any law or regulator policy applicable to us or
to address a material business or security risk, and we will communicate
the terms of the Reserve to You, including the general reason for the Reserve
and the conditions upon which the funds in the Reserve will be released to
You.
You grant us a set-off right
against any and all funds held in any Reserves and also authorise us to make
any withdrawals or debits from the Reserves without prior notice to You using
Your Direct Debit Request, to collect amounts that You owe us under this
Agreement.
We may, acting reasonably,
change or condition the terms of the Reserve based on our continuous assessment
and understanding of the risks associated with You, Your business model, or the
performance of Your obligations under this Agreement and we will communicate
this to You.
Afterpay’s rights under this
clause 6.1(d) shall continue in effect for up to one hundred and twenty (120)
days after termination of this Agreement for any reason.
(e)
Afterpay may: (i) set off against any amounts We owe You under
this Agreement all amounts You owe Us under this Agreement (including, without
limitation, the Fees, any Refund Amounts, and Customer Payments); or (ii) debit
Your Account for the amounts owed to Us under this Agreement and in accordance
with the terms of the Direct Debit Request Authority, in each case, including
(for the avoidance of doubt) from funds that we may hold in Reserves. Any
amounts that we offset or debit against payments owing to us shall nonetheless
be treated as a payment from you to us for all tax, accounting, invoicing, and
other relevant purposes.
(i)
We will only arrange for funds to be debited from Your account for
the amount(s) payable to us in accordance with this Agreement and which is
notified to You. The debit will be made no earlier than the date on which such
amount is required to be paid to us under this Agreement.
(ii)
It is Your responsibility to ensure that there are sufficient
clear funds available in Your account to allow a debit payment to be made in
accordance with the debit arrangements. You will be liable for any fees
incurred by Afterpay as a result of failed direct debits.
(iii)
If You change the debit arrangements or the authorisation given
under the Direct Debit Request Authority, You will still be liable to us for
the payment(s) owing to us under this Agreement and You will be required to pay
us through alternative means by the due date(s) for such payment(s).
(f)
You must not accept payments or ongoing repayments for any Goods
on Our behalf.
(g)
If, for any reason, You receive any part of a payment relating to
an Afterpay Purchase directly from a Customer ("Customer Payment"): (i) You will promptly notify us of the
details of the Customer Payment, including the identity of the Customer, the
Goods to which the Customer Payment relates, and the amount of the Customer
Payment; and (ii) You authorise us to set off any Customer Payment against
amounts We owe to You under this Agreement in accordance with this clause.
(h)
Afterpay reserves the right to suspend, extend or delay the
Payment Date or otherwise suspend, extend or delay the payment of Settlement
Amounts to Your Account until Your details have been Verified under clause 4(c)
of these General Terms. For the avoidance of doubt, where payments of the
Settlement Amounts to Your Account are suspended, extended or delayed, Afterpay
reserves the right to deduct from the suspended Settlement Amounts any amounts
You owe Afterpay under this Agreement, including Your liability to Afterpay
arising from a breach of Your representations and warranties under clause 12.1
of these General Terms. If we suspend, extend or delay the Payment Date for any
reason under this clause, we will communicate to You: (a) the general reason
for the suspension, extension or delay, (b) any reasonable information we may
require to assist Us with progressing the release of funds, and (c) a timeline
for releasing the funds, if applicable.
(a)
Taxes on Underlying Afterpay Purchases. You agree and
acknowledge that Afterpay shall not be responsible for determining, or
calculating, paying or remitting to the applicable Tax Authority any Taxes that
may be assessed, incurred, or required to be collected, paid, reported, or
withheld for any reason with respect to transactions or payments initiated by
any Customer or otherwise in connection with Your use of the Services or any
Afterpay Purchase. In the event that a Tax Authority assesses additional Tax on
any underlying transaction to Afterpay, You shall fully indemnify, defend, and
hold Afterpay harmless against such Taxes and any other related expenses or
costs. For the avoidance of doubt, Afterpay shall not be liable to You for any
Taxes (or any charges similar to a Tax) assessed on or upon any Afterpay Purchase.
Such limitation of liability shall cover assessments by any Tax Authority as
well as any other indemnification claim.
(b)
Taxes on Fees and Services. The Fees
payable by You to Afterpay as set forth in this Agreement are exclusive of any
Taxes. You agree to pay any Taxes (other than any income Taxes of Afterpay)
imposed in connection with the Fees or otherwise in respect of the Services,
unless You provide Afterpay with documentation satisfying the requirements
under applicable law to establish that the otherwise applicable Taxes are not
required to be charged. In the event that such Taxes are applicable, such Taxes
shall be calculated by Afterpay, and presented to You as required under
applicable Tax law, for payment to Afterpay. In addition, You agree to fully
indemnify, defend and hold Afterpay harmless against any Tax imposed by a Tax
Authority for failure to apply correct Taxes if such failure is a result of
Your failure to provide Afterpay with the correct evidence to support your
exemption from such Taxes.
(c)
Withholding Taxes. If
applicable, Afterpay shall be entitled to deduct from any payments to You the
amount of any applicable withholding Taxes with respect to amounts payable, or
any other Taxes, in each case required to be withheld by Afterpay to the extent
that Afterpay remits to the appropriate Tax Authority on behalf of You such
Taxes. Any amounts so deducted or withheld shall be treated as having been paid
for all purposes of this Agreement and Afterpay will not be obliged to increase
or gross-up any payment on account of any withholding of Tax. If Afterpay
eliminates or reduces withholding Tax in accordance with any treaty or other
Tax claim by You and a relevant Tax Authority determines a higher withholding
Tax amount should have been paid than that which was withheld by Afterpay, then
You agree to fully indemnify and hold Afterpay harmless for the full amount of
such underwithholding as well as any related penalties, interest and other
costs.
(d)
Tax Information Reporting. Afterpay may
be obligated under applicable law to report certain information to Tax
Authorities (“Tax Information”) and/or to You with respect to amounts
payable to You under this Agreement. Prior to payment, You shall provide
Afterpay with the necessary Tax forms, Tax identification details and other Tax
documentation to complete any applicable Tax Information reporting and
recertify such documentation from time to time, as may be required by
applicable law. You acknowledge and agree that Afterpay will report to the applicable
Tax Authority the required Tax Information. Afterpay also may, but is not
obligated to, send to You the Tax Information reported.
(e)
No Tax Advice. You acknowledge that
Afterpay is not providing any Tax advice and nothing Afterpay says or provides
to you should be interpreted as such. For any Tax-related inquiries in
connection with the Services or this Agreement, you should consult your own Tax
or legal advisor.
(a)
Your policies and agreements (including Your refund policy) with a
Customer must comply with Relevant Laws. You must consider any Customer's
request for Return in good faith and in accordance with your policies and
Relevant Law. You will be responsible for processing any Returns in accordance
with your policies.
(b)
Subject to clause 7.1(d) if Goods are Accepted for Refund (in
whole or in part), by You then any Refund Amount due in relation to the Return
is owed to Afterpay and not the Customer. You must promptly upon receipt of the
returned Goods (and, at the latest, within 3 Business Days of such receipt),
inform Us of the Return and enter the Refund Amount via the Merchant Portal or
the associated API. All Afterpay Purchases that are Accepted for Refund (in
whole or in part) must, subject to clause 7.1(d), be refunded via the Afterpay
tender type. If a refund for such Goods is processed using another payment
method, We reserve the right to hold you liable for the Settlement Amount
associated with the Goods Accepted for Refund via another tender type.
(c)
When You agree to provide a Customer with a Refund, You will be
liable to Us for the Refund Amount on the applicable Payment Date, and We may
recover those sums in accordance with clause 6 of these General Terms (or,
where we have not yet paid the Settlement Amount to You, by deducting the
Refund Amount from the Settlement Amount relating to those Goods). Afterpay
will cancel any future payments due by the Customer to Afterpay and/or refund
to the Customer any amounts paid by the Customer to Afterpay.
(d)
For Returns processed more than 120 days after the date on
which Approval Confirmation was provided or for Returns processed more than 60
days after the termination of this Agreement (to the extent Afterpay, in its
sole discretion, permits any Returns after the termination of this Agreement),
the terms of this clause 7 shall not apply, and Afterpay shall have no
liability to You with respect to such Returns. You must deal directly with the
Customer with respect to such returns and the associated refund and process
such refund via another tender type. Without limiting this clause 7.1(d), any
assistance We may provide to You to effect payments to Customers for any
Refunds for such Goods shall be at Our sole and absolute discretion.
(e)
Nothing in this clause will prevent any Customer from exercising
any other rights in respect of the Return of any Goods (including for the
exchange or repair of the Goods) or store credit for the Goods.
(a)
Except
as permitted or required by this Agreement, each Party must not use or disclose
any of the other Party's Confidential Information.
(b)
Each
Party may disclose the Confidential Information of the other Party:
(i)
when
required to do so by Relevant Law or any regulatory authority of competent
jurisdiction (provided that the first Party provides the other Party with
reasonable prior written notice of such disclosure, if legally permitted, to
allow such Party adequate opportunity to seek a protective order preventing or
limiting the disclosure) or registered stock exchange offering either Party’s
securities;
(ii)
to a
director, officer, employee, agent, contractor, professional adviser, investor
or financing source (or potential investor or financing source) of the first
party whose duties reasonably require such disclosure, provided such person has
agreed to keep the information confidential;
(iii)
with
respect to Your Confidential Information provided in connection with a specific
Afterpay Purchase, Afterpay may use such information to process transactions
and service Customer accounts; and
(iv)
when
reasonably necessary for the purposes of any legal or arbitral proceedings
involving the first party or any of its related bodies corporate or Affiliates.
(c)
Each
Party may use the Confidential Information of the other Party to fulfil its
obligations under this Agreement and, with respect to Confidential Information
provided in connection with a specific Afterpay Purchase, Afterpay may use such
Confidential Information to process such specific transaction or as otherwise
provided under its privacy policy.
(d)
Each Party
must take all reasonable steps to ensure that no Confidential Information of
the other Party is used, directly or indirectly, in any way that is detrimental
or adverse to the other Party and that each person to whom any Confidential
Information of the other Party must be or has been disclosed does not use or
disclose such Confidential Information except as is consistent with these
confidentiality commitments.
(e)
Each
Party must take steps no less rigorous than those which it takes in respect of
its own information to prevent any unauthorised use, disclosure or loss of, or
unauthorised access or damage to, the Confidential Information of the other Party
under its possession or control.
(f)
Any and all Confidential Information disclosed by one
Party and received by the other Party prior to the Effective Date will be
subject to the obligations set out in this clause 8.
(a)
If any dispute arises between the Parties under this Agreement,
both Parties agree to make a good faith effort to resolve the dispute within
thirty (30) days’ written notice of such dispute. No claim, arbitration,
litigation, or other proceeding may be commenced (other than for undisputed
amounts) before the Parties have attempted to resolve the dispute pursuant to
this provision, unless immediate injunctive relief is being sought. If the
Parties are unable to resolve the dispute (including after conducting good
faith negotiations), the Parties may pursue their respective rights under
Relevant Law with respect to the dispute.
(b)
We may request additional documentation from You to assist us in
resolving any complaints or disputes (including Customer complaints and
disputes), and You must provide all reasonable assistance to us to facilitate
us in resolving any complaints or disputes (including Customer complaints and
disputes).
(a)
In addition to Our rights in this Agreement, we may suspend Your
access to the Services, including the ability to process Refunds and, in the
event of non-delivery of Goods, suspected fraud or malicious activity,
withholding of Settlement Amounts, by giving You written notice if:
(i)
You have breached (including repeatedly), or we reasonably suspect
that You have breached, any provision of this Agreement;
(ii)
You undergo a change of ownership or control and We are unable to
verify your new ownership or We are prohibited from doing business with You
under Relevant Law;
(iii)
It is necessary to protect Our systems or the Services against
harm, including but not limited to fraud or malicious activity;
(iv)
You are subject to an Insolvency Event;
(v)
Afterpay is unsuccessful in debiting Your account pursuant to the
Direct Debit Request Authority;
(vi)
We reasonably believe that continuing to process transactions is
in breach of Relevant Laws; or
(vii)
Acting reasonably, we consider that Your behaviour is in breach of
any law or our internal policies and procedures.
(b)
This suspension will remain in place until the reason for the
suspension has been remedied.
(c)
Without limiting Your other obligations under the Agreement, while
any suspension is on foot, You must promptly comply with all reasonable
directions that We give regarding Your advertisement and offer of the Afterpay
Gateway, including Your use of Afterpay Intellectual Property.
(a)
Either Party may terminate this Agreement immediately (or from
such other date as it may nominate) by giving the other Party written notice of
termination if:
(i)
the other Party breaches any provision of this Agreement, and
either: (A) such breach is incapable of remedy; or (B) the other Party has
failed to remedy such breach within 14 days of the date of a written notice
issued to it by the Party requiring remedy of the breach;
(ii)
the other Party engages in any fraudulent activity or conduct;
(iii)
the other Party is unable to perform its obligations as a result
of a Force Majeure event, and such event continues for a period of 30 days; or
(iv)
the other Party experiences an Insolvency Event.
(b)
In addition, We may terminate this Agreement by giving You written
notice of termination if:
(i)
We are unable to Verify Your direct debit details and/or AML
Documentation under clause 4(c) of these General Terms;
(ii)
we reasonably believe that Your consumer agreements with Customers
do not reflect the original basis of our contracted agreement (including,
without limitation, where You change Your policies in any way that affects the
ability of any Customer to Return any Goods in the manner intended under this
Agreement);
(iii)
we reasonably believe that You have breached any of Your
representations and the warranties in clause 12.1 on a repeated basis;
(iv)
the Monthly Default Rate is 4% or higher for 2 or more consecutive
months;
(v)
You are offering for sale or selling Prohibited Goods or Services
and/or Restricted Goods or Services through Your Website or in-Store;
(vi)
Without our consent (which will not be unreasonably withheld) You
become subject to the control of a person who does not control You at the time
this agreement is made or you have a new beneficial owner who directly or
indirectly owns 25 per cent or more of You;
(vii)
Afterpay ceases providing the Services; or
(viii)
We are unsuccessful in debiting Your account pursuant to the
Direct Debit Request Authority and any such default remains uncured for more
than two (2) Business Days.
(a)
Either You or We may terminate this Agreement for any reason by
giving at least 14 days’ prior written notice. To the extent that Part B of the Supplementary Terms
includes an “Initial Term”, this clause 11.2(a) will noy apply during such
Initial Term.
(b)
Despite clause 11.2(a), if we provide You with written notice of a
proposed change in accordance with clause 1(e), at any time before the
effective date of the proposed change,
You may terminate this Agreement in response to the proposed change by
giving us written notice expiring on or after the effective date of the
proposed change.
(a)
Termination of this Agreement does not affect any right or
obligation which arose under this Agreement before such termination and is
without prejudice to the Parties' other rights and remedies. Afterpay, in its
sole discretion, may permit or require Returns processed within 60 days
following the termination of this Agreement to be processed via the Afterpay
tender type in accordance with clause 7.1. For the avoidance of doubt,
Afterpay's rights under clause 6.1(c), 6.1(d) and 6.1(e) of these General Terms
continue in relation to Customer Payments received by You, and Refunds approved
by You, after termination.
(b)
Upon termination of this Agreement for any reason all rights and
licences granted under this Agreement will terminate immediately, except as
expressly provided in this Agreement, and You must immediately cease using all
Afterpay Intellectual Property, including by removing all references to
Afterpay from Your Website and in-Store.
(c)
Any amounts owing to You under this Agreement which are due to be
paid to You after the date of termination may be withheld until we are
satisfied that the obligations in clause 11.3(b) have been met.
(d)
Without limiting the other provisions of this Agreement, clauses 5,
6, 7, 8, 11.3 and 12 of these General Terms, and all other terms which by their
nature are required to survive termination of this Agreement, will survive
termination of the Agreement.
(a)
You make the following representations and warranties to us in
relation to each Afterpay Purchase:
(i)
You do not know of or have any reason to suspect any fraud or suspicious
activity relating to the Afterpay Purchase, and neither You nor Your employees
or agents have concealed or otherwise failed to disclose to us any information
of which You or Your employees or agents have become aware is contrary to any
of the statements made in the Afterpay Purchase or in any other information or
documentation provided by You to us, or otherwise engaged in any fraudulent or
misleading conduct in connection with the Afterpay Purchase;
(ii)
each
Afterpay Purchase will represent a bona fide sale of the Goods by You in the
ordinary course of Your business, and You will provide Us with complete and
accurate purchase information with respect to each Afterpay Purchase;
(iii)
You have all the licences, approvals and consents necessary to
supply the Goods (including services) offered by You;
(iv)
You will maintain in full force and effect at all times during the
operation of this Agreement appropriate insurance policies to cover You and
Your respective employees, officers, contractors and agents for their
respective rights, interests and liabilities to third parties for loss or
damage to any property and injury (including death) to any person arising from
or in connection with the provision of any services offered by You;
(v)
any services offered by You will only be performed by personnel of
Your Store with the appropriate level of certification and training required to
perform such services;
(vi)
You have Delivered or have arranged for Delivery of, all the Goods
involved in the Afterpay Purchase;
(vii)
in relation to Goods that are goods: (A) the Customer has, or will
have, title to the Goods listed and clear of all encumbrances, liens and
claims; (B) the Goods, at the time they were Delivered to the Customer, were of
merchantable and acceptable quality; (C) the Goods match any sample or
demonstration model shown to the Customer; (D) the Goods, at the time they were
Delivered to the Customer, were fit for any particular purpose which the
Customer made known to You or Your agents or employees; and, in relation to
Goods that are services; and (E) the Goods have been, or will be, provided with
due care and skill within the agreed time frame, or within a reasonable time
frame if no time has been agreed for provision of the services, in each case up
to a maximum time frame of ninety (90) days from the date of the Afterpay
Purchase;
(viii)
You will not: (A) allow the Services to be used to purchase
Prohibited Goods or Services, and (B) without prior written permission from
Afterpay, allow the Services to be used to purchase Restricted Goods or
Services;
(ix)
You have not sought or obtained, and will not seek or obtain, any
special arrangement or condition from, nor discriminated in any way against,
the Customer with respect to the terms of the Afterpay Purchase; and
(x)
You will not do anything to prevent any amounts owing to Us in
connection with an Afterpay Purchase from being valid and enforceable against
the relevant Customer.
(a)
To the extent not prohibited by law, under no circumstances shall
We, Our subsidiaries, partners, or Affiliates, be liable to You for personal
injury or any indirect, incidental, consequential, special or exemplary
damages, loss of profits, loss of revenue, loss of sales or business, loss of
agreements or contracts, loss or damage to goodwill, loss of use or corruption
of software, data or information arising from or relating to this Agreement,
the use of or inability to use the Services, the Afterpay Gateway or the
Merchant Portal, or Our or Your liabilities to third parties arising from any
source.
(b)
To the full extent permitted by law, and subject to clause
12.2(e), the aggregate liability of Us and Our Affiliates and suppliers to You
for all claims arising out of or related to this Agreement or Your use or
inability to use the Afterpay Gateway or the Merchant Portal will not exceed
$5,000. These limitations will apply even if the above stated remedy fails of
its essential purpose. For the avoidance of doubt, this does not limit
Afterpay's obligations to pay You any Settlement Amount due to You under the Agreement.
(c)
To the extent permitted by Relevant Laws, Afterpay limits its
liability in connection with the Non-Excludable Rights (including its liability
for breach of any implied condition or warranty) to, at our option:
(i)
in the case of services: (A) the re-supply of the relevant
services; or (B) the payment of the cost of having the relevant services
supplied again; and
(ii)
in the case of goods: (A) the replacement of the goods or the
supply of equivalent goods; (B) the repair of the goods; (C) the payment of the
cost of replacing the goods or of acquiring equivalent goods; or (D) the
payment of the cost of having the goods repaired.
(d)
ALL SERVICES PROVIDED BY OR ON BEHALF OF AFTERPAY HEREUNDER AND
ALL LICENSES TO AFTERPAY TRADE MARKS, AFTERPAY GATEWAY, MERCHANT PORTAL,
AFTERPAY SOFTWARE, AND AFTERPAY INTELLECTUAL PROPERTY ARE PROVIDED OR LICENSED,
AS APPLICABLE, ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN. SUBJECT TO CLAUSE 12.2(E) BELOW, AFTERPAY AND ITS
AFFILIATES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY
DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO
OR ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE CONTINUED,
UNINTERRUPTED AVAILABILITY OR SUITABILITY OF THE SERVICES GENERALLY OR TO
CUSTOMERS IN ANY PARTICULAR GEOGRAPHIC AREA OR SECURE ACCESS TO OUR
SERVICES, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE MAKE NO
REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE
PROCESSING OF PAYMENT TRANSACTIONS.
(e)
Certain legislation, including consumer protection legislation,
may imply warranties or conditions into this Agreement, or otherwise impose
obligations on us, which cannot be excluded, restricted or modified, except to
a limited extent (referred to in this Agreement as Non-Excludable Rights).
For example, consumer protection legislation may imply non- excludable
warranties that financial services will be provided with due care and skill,
and that the Services and any materials supplied in connection with them will
be fit for any specified purpose. This Agreement must be read subject to such
laws, and nothing in this Agreement is intended to restrict the effect of any
Non-Excludable Rights, except to the extent that the relevant laws allow.
(f)
To the extent permitted by law, a Party's liability to the other Party
under or in connection with this Agreement is reduced to the extent, if any, to
which the other Party's acts or omissions (including as a result of negligence,
wilful misconduct or a breach of this Agreement) cause or contribute to its own
loss or damage.
(g)
The Parties must take all reasonable steps to mitigate any loss
incurred by them under this Agreement.
(a)
You agree to release, indemnify and hold Us harmless, and You
release, indemnify and hold harmless our Affiliates, and their respective
officers, directors, employees and agents from and against all claims, actions,
losses, offsets, liabilities, damages, Taxes, judgments, amounts paid in
settlement, costs and expenses (including reasonable legal fees and
disbursements and collection fees) resulting from or arising in connection
with:
(i)
any transaction, contract, understanding, promise, representation,
warranty or other relationship, actual, asserted or alleged, between You and
any Customer relating to the Afterpay Purchase or the Goods (including, for
example, without limitation, any claim that a Customer was not advised of the
risks associated with the supply of services by You or was not otherwise
provided with the appropriate waiver forms to undergo such services);
(ii)
any Goods (including, without limitation, any product liability or
warranty claim relating to those Goods, any claim that the supply of the Goods
breaches a statutory guarantee, and any claim by the Customer relating to the
quality or sufficiency of the Goods). For the avoidance of doubt, this clause
includes any services performed by You or Your personnel (including any claim
relating to the supply of those services, such as any claim that the services
were not performed by personnel with the appropriate certification and
training);
(iii)
any false or misleading representation or fraudulent conduct by
You or Your officers, directors, employees or agents in connection with an
Afterpay Purchase or any related Goods, the Services, or any related matter;
and
(iv)
any inaccuracy in any Tax Information provided hereunder.
(b)
This indemnity is a continuing obligation, independent of Your
other obligations under this agreement and continues after this Agreement ends.
It is not necessary for us to incur expense or make payment before enforcing a
right of indemnity under this Agreement. However, we will not exercise the
right of indemnity under this clause where it relates to a particular
Customer's Afterpay Purchase until after we have raised the relevant issue with
You for discussion, and You have had a reasonable time to respond or to remedy
the issue with that Customer to our reasonable satisfaction.
(c)
To the extent that the indemnity in clause 12.3(a) is in favour of
a person other than Afterpay, we contract as trustee of the rights under the
indemnity.
(a)
Unless otherwise specified in this Agreement, any notices to be
given hereunder to any other Party, including any notice of a change of
address, shall be in writing and shall be deemed validly given if sent by electronic
mail, as follows:
(i)
If to Afterpay: [email protected] (or an email address
otherwise notified to You by Afterpay)
(ii)
If to You, to the address You provide through the Merchant Portal.
Afterpay
does not: (a) enter into a partnership, joint venture, agency or employment
relationship with You; (b) guarantee the identity of any Customer who may place
an order to buy goods or services from You or assume any other responsibility
for that Customer other than as set out in this Agreement; or (c) determine if
You are liable for any Taxes, or collect or pay any Taxes that may arise from
Your use of our Services.
(a)
This Agreement is governed by the law in force in New Zealand.
Each Party irrevocably submits to the non-exclusive jurisdiction of the courts
exercising jurisdiction in New Zealand.
(b)
The arrangements for the sale and purchase of any Goods is a
separate consumer contract between You and the relevant Customer and that the
Customer’s rights and remedies as a consumer in respect of that sale and
purchase (including any Return of those Goods) are as between You and the
Customer, to the exclusion of Afterpay (to the maximum extent permitted by
law).
Entire Agreement. This Agreement, including these General Terms, together with
the Supplementary Terms, and all Schedules, Exhibits or Addenda hereto, constitute and contain the entire agreement between You and
us with respect to the subject matter hereof and supersedes any prior or
contemporaneous oral or written agreements. You and we acknowledge and agree
that the other has not made any representations, warranties or agreements of
any kind, except as expressly set forth herein.
No Waiver. A failure to exercise or a delay in exercising any right, power or
remedy under this Agreement does not operate as a waiver. A single or partial
exercise or waiver of the exercise of any right, power or remedy does not
preclude any other or further exercise of that or any other right, power or
remedy. A waiver is not valid or binding on the Party granting that wavier
unless made in writing.
Headings Not
Controlling. The
headings of the clauses of this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement.
If
any provision of this Agreement (or any portion thereof) is determined to be
invalid or unenforceable, the remaining provisions of this Agreement shall not
be affected thereby and shall be binding upon the Parties and shall be
enforceable, as though said invalid or unenforceable provision (or portion
thereof) were not contained in this Agreement.
(a)
You may not transfer or assign any rights You may have under this
Agreement without our prior written consent, not to be unreasonably withheld.
(b)
We may transfer or assign this Agreement, and any right under this
Agreement, to a third party or
an Afterpay Affiliate, and we will notify You in
advance of such a transfer or assignment.
Terms
in these General Terms which are capitalised but not otherwise defined above or
in the Supplementary Terms have the following meanings:
Accepted for Refund means, in respect of any Goods that are Returned to You,
Your acceptance of those Goods for Refund.
Account means Your bank account held at Your financial institution from
which Afterpay is authorised to arrange for funds to be debited as detailed in
the Direct Debit Request Authority.
Affiliate means a person or entity that directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with the respective Party. For the purposes of this
agreement, control shall mean ownership (directly or indirectly) of at least
50% either (i) of the voting shares or similar voting instruments or the
combined voting power in an entity or association or the power to direct or
cause the direction of the general management or policies of an entity or (ii)
the total value of all stock, capital interest, or profits interest in such
entity or association.
Afterpay Gateway means the Afterpay electronic payment gateway system, which
allows participating merchants to offer Customers the ability to pay for
Afterpay Purchases in instalments, on a "buy now, pay later" basis.
Afterpay Intellectual Property means all Intellectual Property owned or
licensed by Afterpay, including the Promotional Materials and Afterpay Trade
Marks, but excluding Your Intellectual Property.
Afterpay Purchase means a purchase by a Customer of any Goods via Your Website
or in- Store up to the value permitted by Afterpay for supply in-Store or
Delivery to a location in New Zealand, using Afterpay as a payment method and
for which Afterpay has provided Approval Confirmation to You.
Afterpay Software means the software provided by Afterpay to you pursuant to
the Agreement.
Afterpay
Trade Marks means all Trade
Marks owned or licensed by Afterpay, excluding Your Trade Marks.
AML/CTF
Act means the Anti-Money Laundering and Countering
Financing of Terrorism Act 2009.
AML
Documentation means the
documentation which we are required to obtain from You and Verify under the
AML/CTF Act, which will be provided to You or made available on our
website.
Approval Confirmation means electronic notice from us to You that
an Afterpay Purchase has been approved by us.
Brand Management Materials mean the Afterpay brand, logo,
website integration, marketing guidance and Promotional Materials that Afterpay
provides to Merchants from time to time.
Business Day means a day other than a Saturday, Sunday or national public
holiday in Australia or New Zealand.
Confidential Information means the terms of this Agreement, trade
secrets or proprietary business information, and any information (of whatever
form and nature) disclosed by a party to the other party, but Confidential
Information does not include information which: (i) at the time of the first
disclosure to a party, was already in the lawful possession of the party; (ii)
is in or comes into the public domain otherwise than by disclosure in breach of
this Agreement; (iii) becomes available to a party legitimately from any other
third party source that is legally entitled to that information; or (iv) was
independently developed by employees or agents of the receiving Party who had
no access to any Confidential Information.
Cross
Border Trade means functionality
to allow Afterpay merchants to use the Services for transactions relating to
certain Customers located outside of New Zealand which allows those Customers
to use their Afterpay Affiliate account to purchase Goods offered on merchant
websites for delivery outside of New Zealand.
Cross Border Transaction means an Afterpay Purchase
between You and a Customer residing, and with their principal place of
residence in an overseas jurisdiction permitted by Afterpay.
Customer means a person who buys Goods from You via Your Website or
in-Store using Afterpay in New Zealand or, in relation to a Cross Border
Transaction, a person who is customer of an Afterpay Affiliate who uses a
product or service similar to Afterpay's to buy Goods via Your Website or
in-Store.
Customer
Payment has the meaning
given to it by clause 6.1(g) of these General Terms.
Data means data, information and Personal
Information about Customers that is collected by You, directly or indirectly,
from Afterpay and handled by You in connection with this Agreement.
Data Protection Laws means all applicable laws and regulations,
including without limitation the Privacy Act and any spam or do not call laws
relating to privacy and processing Data (each as modified, amended, extended,
consolidated, re-enacted and/or replaced from time to time).
Delivered means: (a) in the case of Goods that are
goods, delivered; and (b) in the case of Goods that are services, supplied; and
Delivery and Deliver have corresponding meanings.
Direct Debit
Request Authority means the direct debit request and direct debit request authority
You provided to Us via the Merchant Portal, as confirmed by Us to You via
email, which authorises us to withdraw monies from Your Account in accordance
with its terms and this Agreement.
Effective Date has the meaning given in clause 1 of these General
Terms.
Fee means the fee set out in Part D
of the Supplementary Terms.
Goods means the item(s) or service(s) supplied by You to a Customer
under an Afterpay Purchase.
GST means a goods and services tax imposed under the Goods and Services
Tax Act 1985 and any regulations made pursuant to this Act, or any other
like Tax imposed in New Zealand.
Insolvency Event means an event where a receiver, administrator, liquidator,
other controller or similar official is appointed over any of the assets or
undertaking of a Party, or where a Party suspends payment of its debts
generally or becomes insolvent, or where a Party enters into any arrangement,
composition or compromise with, or assignment for the benefit of its creditors
or any class of them; or where a Party ceases to carry on business.
Intellectual Property means all (i) Trade Marks,
service marks, and other indications of origin, and all goodwill associated
therewith and all applications, registrations and renewals associated with the
foregoing; (ii) inventions, discoveries and ideas (whether patentable or
unpatentable and whether or not reduced to practice), and all patents, patent
rights, applications for patents (including, without limitation, divisions,
continuations, continuations-in-part and renewal applications), and any
renewals, extensions or reissues thereof; (iii) trade secrets, know-how,
Confidential Information, and other proprietary rights and information; (iv)
copyrights and works, including works of authorship, whether copyrightable or
not and all applications, registrations, renewals and extensions in connection
therewith (whether presently available or subsequently available as a result of
intervening legislation); (v) designs, industrial designs and design patents
and applications and registrations thereof; (vi) domain names; (vii) databases;
and (viii) all other intellectual property and other proprietary rights.
Merchant Portal means the online interface provided to You by Us which is
accessible via Our website.
Monthly Default Rate means the total amount of payments by Customers in relation
to Afterpay Purchases that are more than thirty (30) days overdue divided by
the total amount of payments by Customers in a particular month, calculated
thirty (30) days after the end of that particular month.
New Zealand dollars, $ and cents refers to the lawful currency of New Zealand.
Party or Parties has the meaning given in clause
1 of these General Terms.
Payment
Date means, as the context
requires:
For
Settlement Amounts and Fees, up
to Five Business Days immediately following the date of the Afterpay Purchase.
For Refund Amounts: The Business Day following the day on which the Goods are
Accepted for Refund and You enter the refund of the Goods via the Merchant
Portal.
Personal Information has the same meaning as in the Privacy Act.
Privacy Act means the Privacy Act 2020,
together with any related or ancillary legislation, codes of conduct,
recommendations, directives or orders made or issued under any such
legislation.
Promotional Materials means electronic banners and logos,
lightboxes, point of sale materials, and any other marketing, advertising and
promotional materials relating to Afterpay and provided by Us to You from time
to time.
Refund means a partial or whole refund of the Sale Price for any Goods
Accepted for Return and/or of any related Shipping Costs.
Refund Amount means, the amount that You agree to Refund
to a Customer for Goods Accepted for Return according to Your policies, or
other amount that You agree to refund to a Customer.
Relevant
Law means any law,
regulation, code, ordinance, rule or other legislative instrument, or any
guideline issued by any regulator or statutory authority or any relevant
industry codes including, without limitation, the Fair Trading Act 1986, Consumer Guarantees Act 1993, Anti-Money
Laundering and Countering Financing of Terrorism Act 2009, Privacy Act 2020 and Unsolicited Electronic Messages Act 2007.
Return means the return of any Goods to You by a Customer in connection
with an Afterpay Purchase (and other than a return of goods by the Customer for
the purposes of an exchange, the grant of store credit or for repair) initiated
by the Customer.
Sale Price means the purchase price of the Goods supplied by You (including
GST).
Services means our provision of deferred payment services to You for the
use of Your Customers in New Zealand (and other jurisdictions as may be
permitted by Afterpay from time to time) as contemplated by this Agreement,
including but not limited to access to the Afterpay Gateway and the Merchant
Portal.
Settlement Amount means, in respect of each Afterpay Purchase, the relevant
Sale Price plus any Shipping Costs.
Shipping Costs means any fees, costs or expenses charged by You to a Customer for
the Delivery of Goods purchased through
the Services to the address specified by the Customer when making the Afterpay
Purchase.
Store means any physical location in New Zealand at or from which You
supply the Goods, or conduct transactions for the supply of the Goods.
Tax means any taxes, including sales, use, value added, consumption, GST,
harmonized sales or other similar taxes, withholding taxes (including backup
withholding), income, gross receipts, ad valorem, property, unclaimed property,
escheat, franchise, transfer, stamp, or any other duties, levies, fees, excises
or tariffs imposed by any federal, state, foreign, provincial or local
governmental taxing authority, whether disputed or not, and including any
penalties, interest, fine, surcharge or additions to tax.
Tax Authority means any taxing, revenue or other authority
(in any jurisdiction) competent or responsible for imposing, administering or
collecting any Tax.
Term has the meaning given to it under Part B of
the Supplementary Terms.
Trade Marks means signs, trade marks, service marks, brand names, rights in
get up or trade dress, logos, slogans, stylizations, devices and similar
rights, whether registered or unregistered and whether within or outside New
Zealand.
User Agreement means the agreement
between Afterpay and Customers, as
made available via our website (https://www.afterpay.com/en-NZ/terms-of-service) and as amended from time
to time.
Website means any electronic retail sales facility (including any website
and mobile or tablet sites or applications) owned and operated by You,
including the website(s) listed under Part C of the Supplementary Terms.
Verification means:
(a)
with respect to the AML Documentation, verification of that
documentation by or on behalf of Afterpay in accordance with the requirements
of the AML/CTF Act; and
(b)
with respect to the direct debit details, verification that the
details provided in that form are complete and sufficient to enable Afterpay to
process direct debit transactions in accordance with this Agreement,
and Verify and Verified
have corresponding meanings.
1.
Introduction
a.
This Afterpay Card Services Addendum (the “Addendum”)
amends the Afterpay Merchant Agreement (the “Agreement”) between You
and Afterpay.
b.
Afterpay will provide You with the Services for use in-Store
or for use on Your Websites for Customers using a digital wallet (the “Afterpay
Card Services”) in accordance with this Addendum.
c.
All other provisions of the Agreement shall remain in full
force and effect, provided that, in the event of a conflict between any
provision of this Addendum and any provision of the Agreement, the provisions
of this Addendum shall take precedence.
Capitalised terms used but not defined in this Addendum shall have the
meanings set out in the Agreement.
2.
Description of the Afterpay
Card Services
a.
Afterpay Card Services The Afterpay
Card Services allow Customers to pay for Goods or Services using a virtual card
(Afterpay
Card), which will be processed via Your payment
service provider (PSP) and card acquirer (Acquirer).
b.
Approval Confirmation for Afterpay Card Services The successful
authorisation of a transaction using the Afterpay Card through the card network
constitutes Approval Confirmation to You. You must only Deliver or provide
Goods to a Customer after You have received Approval
Confirmation. Afterpay will not be liable to You for Goods Delivered or
provided without Approval Confirmation.
c.
Authorising the Afterpay Card By authorising the Afterpay Card at
Your terminal, You communicate to Afterpay that a Customer is making an
Afterpay Purchase, and the Goods have been or will be Delivered to the Customer
with a total Sale Price, plus any applicable Shipping Costs, equal to the
amount of the authorisation (the “Authorisation Amount”).
d.
Capture from Afterpay Card You will have up to 14 days from the
date of the Afterpay Purchase to capture any portion of the Authorisation
Amount, based on the dollar value of Goods Delivered, or for Delivery, to the
Customer (the aggregate amount of such Authorisation Amount so captured “Purchase
Amount”). If You do not capture the full Authorisation Amount within 14
days of the Afterpay Purchase (i.e., if the Purchase Amount for a given
Afterpay Purchase is less than the Authorisation Amount for that Afterpay
Purchase 14 days or more after the Afterpay Purchase), we reserve the right to
void and refund to the Customer the difference between the Authorisation Amount
and the Purchase Amount as of the end of the 14th day after the date
on which the Customer makes a purchase. Afterpay may hold You liable for: (1)
amounts captured more than 14 days after the Afterpay Purchase; (2) amounts
captured that exceed the Authorisation Amount; and (3) amounts captured which
are not tied to the associated Authorisation Amount (collectively, the “Unauthorised
Capture Amounts”). We will recover any Unauthorised Capture Amounts and
any associated fees in accordance with clause 3 below.
e.
Transmission of Purchase Amounts Your PSP will pay You for each
Afterpay Purchase made through the Afterpay Card Services. You acknowledge that
Your PSP will deduct from the Purchase Amount any amount payable by You to the
PSP in connection with the relevant Afterpay Purchase in respect of fees,
including interchange fees, acquiring fees and other relevant scheme fees
related to Your receipt of the Purchase Amount via Your PSP (collectively “Processing
Fees”).
The manner in which You receive the Purchase Amounts, the total Processing Fees
payable, and the timing of settlement will depend on Your arrangements with
Your PSP. We cannot guarantee and make
no warranties regarding delays in receipt of Purchase Amounts caused by
external financial systems, Your PSP, or other external factors.
f.
Provision of Transaction Data You must provide Afterpay with
accurate business and transaction data for the purpose of facilitating Afterpay
Purchases and Refunds made using the Afterpay Card Services, including merchant
category code, acquiring ID, merchant ID, terminal ID and such other
information required by Afterpay.
3.
Afterpay Card Services Fees
and Invoicing
a.
Afterpay Card Fees and Invoicing The Fee for each Afterpay Card
Service is set out in Part D of the Supplementary Terms. Afterpay will invoice
You on a daily basis for any Fees, Unauthorised Capture Amounts, Non-Card
Refunds, Unauthorised Refunds, Refunds incorrectly processed to the Afterpay
Card, and amounts due under clause 3(b) (an “Invoice”).
b.
Afterpay will receive interchange fees on Afterpay Purchases
at the prevailing rate of interchange payable for Afterpay Purchases via the
Afterpay Card Service in New Zealand (as reflected at
https://www.visa.co.nz/about-visa/interchange.html#3 or an equivalent source)
(the “Afterpay Interchange Fees”). Afterpay will also invoice You for
any Afterpay Interchange Fees which are returned to You via Your PSP for
Afterpay Purchases which are subsequently Accepted for Refund.
c.
Afterpay will direct debit Your Account for amounts due to us
under an Invoice on the second day following the Invoice date. Where the second
day following the Invoice date is a weekend or public holiday, Afterpay will
direct debit Your Account on the next Business Day.
d.
If Afterpay is unable to debit Your Account for amounts owed
to Us in accordance with this clause 3 we reserve the right to immediately
suspend Your Afterpay Account without notice to You until such amounts have
been paid, or, at our option, set off the Fee against aggregate Settlement
Amounts due from online purchases. If such amounts remain unpaid for more than
10 Business Days after the date on which they are due we may immediately
terminate the Agreement by notice to You and issue You an invoice for any
outstanding amounts.
e.
The total fees due to Afterpay for each Afterpay Purchase is
the total of the Fee and the Afterpay Interchange Fees as set out in clauses
3(a) and 3(b). If there are changes to the rate of the Afterpay Interchange
Fees Your Fee will be adjusted by an
equal and opposite amount. By way of example, if the Afterpay Interchange Fees
decrease by 1% then Your Fee will be increased by 1%, so that the total fees
received by Afterpay will not change. Afterpay will provide You with as much
notice as reasonably practicable of any changes that are made to the Afterpay
Interchange Fees.
4.
Display and Use of Afterpay
Name and Materials
a.
Marketing
Collateral Afterpay may
provide You, at its cost, with marketing collateral and other promotional
material for use in-store to market the availability of the Afterpay Card
Services. If Afterpay provides such collateral at its cost You must implement
and display such collateral in-store in accordance with Your obligations in the
Afterpay Agreement, or as otherwise instructed by Afterpay, acting reasonably.
5.
Refunds for Purchases using
Afterpay Card Services
a.
Refunds With respect to Refunds for Purchases made
using the Afterpay Card Services: (i) If Goods are Accepted for Refund (in
whole or in part) by You then any Refund Amount due in relation to the Return
is owed by You to Afterpay (via the Afterpay Card) and not the Customer. You
must promptly upon receipt of the returned Goods (and, at the latest, within 3
Business Days of such receipt), process a refund to the Afterpay Card of the
associated Afterpay Purchase(s). All Afterpay Purchases made using the Afterpay
Card Services that are Accepted for Refund (in whole or in part) must be
refunded via the Afterpay Card. Unless Afterpay directs You to do so, Afterpay
will not accept or process a Refund Amount processed via the Afterpay Merchant
Portal or the Afterpay API for Afterpay Card Afterpay Purchases. We reserve the
right to hold You liable for the Refund Amounts associated with the Goods
Accepted for Refund if they are refunded via any payment method or processed
via any method except for the Afterpay Card (“Non-Card Refunds”); and
(ii) When You agree to provide a Customer with a Refund, You will be liable to
Us for the Refund Amount. Afterpay will then cancel any future payments due by
the Customer to Afterpay and/or refund to the Customer any amounts paid to
Afterpay. If You process a refund amount to the Afterpay Card that has no
associated Afterpay Purchase, we reserve the right to hold You liable for any
disputed amounts raised by the Customers in relation to such Refund (each an “Unauthorised
Refund”).
6.
Changes to Agreement for
Afterpay Card Services
a.
Card Services Changes This Addendum amends the Agreement
solely with respect to the Afterpay Card Services. All other provisions of the
Agreement will continue in effect with respect to such Services provided to You
on Your Website(s) via the Afterpay Gateway without alteration.
Schedule 2
Afterpay
Services Cross Border Trade Terms
(a)
In
accordance with clause 4(e) of the General Terms, this Schedule 2 applies and
will form part of your obligations under the Agreement for any Cross Border
Transactions processed by You.
(b)
In this
Schedule 2:
(i)
all
references in this Agreement to “Afterpay Purchase” shall also include Cross
Border Transactions and apply as they would in relation to any Afterpay
Purchase;
(ii)
the
limitations on the purchase of Goods from, and the delivery of Goods to,
locations outside of New Zealand do not apply in respect of Cross Border
Transactions but shall only apply to locations outside of New Zealand
authorised by Afterpay;
(iii)
subject
to clause 5.2(c) of the General Terms, and in accordance with clause 5.2(b) of
the General Terms, You must ensure that all Goods are Delivered to the Customer
promptly, and within the expected Delivery period as represented to the
Customer at the point of sale, and in the case of Goods that are goods, up to a
maximum of twenty-one (21) days (where shipping must occur within ten (10)
days), or in the case of Goods that are services, up to a maximum of ninety
(90) days, if it is a Cross Border Transaction;
(iv)
You are
responsible for arranging Delivery in respect of all Cross Border Transactions
and for any and all additional costs and charges (including without limitation
any applicable Taxes, duties, delivery charges and other applicable amounts)
associated with any Cross Border Transaction;
(v)
You
must ensure that any and all additional costs and charges associated with a
Cross Border Transaction (including without limitation any applicable Taxes,
duties, delivery charges and other applicable amounts) charged by You to the
Customer in respect of a Cross Border Transaction are included in the Sale
Price and Shipping Costs (as applicable) or are otherwise clearly represented
to the Customer prior to the point of purchase;
(vi)
To
allow for foreign exchange settlement, the Payment Date for Settlement Amounts
and Fees and for Refund Amounts for a Cross Border Transaction may be extended
in each case by three (3) additional Business Days (to the Business Day
timeframes included in this Agreement);
(vii)
In
accordance with clause 6 of the General Terms, Afterpay will make all payments
to You in respect of a Cross Border Transaction. These payments will be made in
New Zealand dollars;
(viii)
In
addition to any Fee payable by you for each Afterpay Purchase for each Cross
Border Transaction, a “Cross Border Transaction Fee“ will be payable by
you to Afterpay for each Afterpay Purchase as set out under Part D of the
Supplementary Terms.
(x)
The
terms of clause 6 of the General Terms apply to the Cross Border Transaction
Fee in the same way as they apply to the Fee (including that the Cross Border
Transaction Fee is not refundable unless paid incorrectly). For the avoidance
of doubt, the Cross Border Transaction Fee will not be refunded or repaid to
You in respect of Goods that are returned to You by Customers; and
(xi)
You and
we will, when performing obligations in relation to Cross Border Transactions
for Customers located outside of New Zealand, each comply with the Cross Border
Privacy Terms available here: https://www.afterpay.com/attachment/409/download/XBPrivacy.
For
the avoidance of doubt, Afterpay is not performing any cross-border business
and is not acting as agent for any Afterpay Affiliate in relation to the Cross
Border Transactions.
(c)
In
addition to the other rights of termination under this Agreement, Afterpay may
terminate the provision of Cross Border Trade to You for any reason immediately
by written notice to You (including without limitation where Afterpay ceases to
offer Cross Border Transaction capability in connection with its Services). If
Afterpay terminates Cross Border Trade, this Schedule 2 shall not apply but the
remaining provisions of this Agreement shall not be affected and the Agreement
shall remain in full force and effect and shall continue to be legally binding
on the Parties. For the avoidance of doubt, if either Party terminates this
Agreement pursuant to clause 11 of the General Terms, if applicable, this shall
also terminate Your provision of the Services to customers located outside of
New Zealand such that the Cross Border Trade offering shall also terminate.
(d)
Additional definitions solely for use in this Schedule 2:
(i)
“Cross Border
Transaction” means an Afterpay Purchase between you and a Customer who is
located in, and resides outside of New Zealand, where Delivery of the Goods
takes place outside of New Zealand;
(ii)
“Customer” means a
Customer of an Afterpay Affiliate who uses Afterpay Affiliate's services where
it is offered outside of New Zealand; and
(iii)
“we” includes an
Afterpay Affiliate, where applicable.
Afterpay Merchant
Supplementary Terms
These are the Afterpay Merchant Supplementary Terms
(these “Supplementary Terms”) which,
together with the Afterpay Merchant General Terms of Service (the “General Terms”), a current version of
which can be found at https://get.afterpay.com/merchant-agreement-nz-static.html, comprise the terms of the agreement
between us pursuant to which we provide the Services to you. The Supplementary
Terms and the General Terms, together, referred to as the “Agreement”. In the event of any inconsistency or conflict between
the terms and provisions of the General Terms and these Supplementary Terms,
the terms and provisions of these Supplementary Terms shall control. All
capitalised terms not otherwise defined in these Supplementary Terms will have
the meanings given to them in the General Terms.
Merchant entity
entering into this Agreement:
Merchant (Full legal name of business) : ________________________________________________________
This
Agreement will become effective on the date these Supplementary Terms are
agreed by you and will continue until the date that the Agreement is terminated
in accordance with its terms (the “Term”).
D. FEE
AFTERPAY E-COMMERCE (ONLINE) FEE
(i) The
Fee for each Afterpay Purchase made on your Website(s) = Fee =___%
x Settlement Amount + $0.30.
AFTERPAY CARD SERVICES
(IN-STORE) FEE
(ii) The Fee
for each Afterpay Purchase made using the Afterpay Card Services =_ ___% x Purchase Amount + $0.30.
AFTERPAY CROSS BORDER
TRANSACTIONS
(iii) The Cross
Border Transaction Fee for each Afterpay Purchase = _ ___% x Settlement
Amount.
This means, for example, if the applicable Fee payable in
the E-COMMERCE (ONLINE) FEE portion of Section D (Fee) above is _ ___% x
Settlement Amount + $0.30, the amount payable by you for each Cross Border
Transaction shall be: _ ___% x Settlement
Amount + $0.30.
E. EXCLUSIVITY
For the purposes of
this Section E,
“Competing
Payment Service” means any “buy now, pay later” or “pay
by instalments” electronic payment system, or other short-term consumer finance
service, excluding any such systems or services offered by Visa, Mastercard or
American Express.
“Preferred
Placement” means that our logo is displayed in comparable size to or larger
than, above (when featured top-to-bottom), or to the left of (when featured
left-to-right) that of any Competing Payment Service.
AFTERPAY ECOMMERCE
(ONLINE) EXCLUSIVITY
The
option marked with an "X" below shall apply to you:
You must not, during the Term, allow Customers to purchase Goods from
your Website using any Competing Payment Service.
Not applicable
AFTERPAY CARD SERVICES
(IN-STORE) EXCLUSIVITY
The
option marked with an "X" below shall apply to you:
You must not, during the Term, allow Customers to purchase Goods from
your Store using any Competing Payment Service.
Not applicable