Terms of Use

Release 1.0, Version 2.0

Publication date: 15 October 2008

1 About the Service

1. This website is owned and operated by Only Web Limited trading as Enform under the domain names www.paymex.co.nz ("Paymex Website"). Paymex's principal place of business is 552 Cameron Road, Tauranga, New Zealand.

2. All use of the products and services offered on the Paymex Website ("Paymex Services") and any information or other content on the Paymex Website is governed by these Terms of Use and the associated Privacy Policy.

3. By using the Paymex Website you agree to be bound by these Terms of Use and the Privacy Policy.

2 Access to the Paymex Website

1. It is your responsibility to make necessary arrangements to access and use the Paymex Website and Paymex Services. You must also pay for and provide all equipment associated with connecting to the Paymex Website.

2. You must take your own precautions to ensure that the process which you employ for accessing the Paymex Website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. Paymex does not accept responsibility for any interference or damage to your computer system which may arise in connection with your use of the Paymex Website or the Paymex Services.

3. As electronic services are subject to interruption or breakdown, access to the Paymex Website is offered on an "as is" and "as available" basis only.

4. It is your responsibility to ensure that you have contingency plans in place to enable you to make transactions by other means should the Paymex Website be unavailable for any period of time.

5. Paymex may, acting entirely at its own discretion, impose limits or restrictions on the use you may make of the Paymex Website and the Paymex Services, which may include without limitation and without notice or liability:

a) limiting any transactions to within certain dollar amounts:

b) immediately suspending or terminating your access to the Paymex Website and your right to use the Paymex Services is Paymex suspects you:

i) are guilty of fraud or the breach of these Terms of Use; or

ii) may not be able to comply with the Terms of Use or meet any payments required in relation to the use of the Paymex Website and the Paymex Services: and

c) requiring you to provide as a condition of your use of the Paymex Website or the Paymex Services such assurances or security as Paymex deems sufficient.

3 Eligible users

1. In order to be eligible to use the Paymex Services, you must:

a) be an individual at least 18 years of age or a legal body corporate, and able to form legally binding contracts in your own name under New Zealand law;

b) have a valid and active email address; and

c) have a verifiable phone number, physical and postal address.

4 Opening an Account

1. To become a registered user of Paymex ("Paymex User") you must register with Paymex on the Paymex Website by opening an account in order to make and receive payments via Paymex.

2. When registering with Paymex, you must provide us with certain details, including, but not limited to:

a) your full name;

b) your contact phone number;

c) a valid and active email address for you;

d) your mailing address (and billing address if different)

e) the type of account you wish to establish with Paymex ("Paymex Account")

3. If you are intending on using Paymex in the course of any business you are running you may also be required to provide us with certain other details, including but not limited to:

a) the type of entity you are conducting your business through (e.g sole trader, partnership, limited liability company);

b) the type of business you are involved in;

c) the size of your business; and

d) the lenght of time you have been in business.

4. If you are registering for a Paymex Account other than as an individual then Paymex will require you to specifiy someone who agrees to personally guarantee all liability incurred through the use of the Paymex Account and such person will be required to enter into such further documentation in respect of the personal guarantee to be supplied to Paymex as Paymex may require from time to time.

5. As a Paymex User, you will be required to enter your email address and password each time you use the Paymex Services or access certain sections of the Paymex Website.

6. You may not transfer your Paymex Account or any rights you may have in your Paymex Account to any other person or entity.

7. Paymex will not be required to accept your registration request to become a Paymex User or for a Paymex Account until it has satisfied itself that all information you have provided to Paymex is true and accurate and appliciable personal guarantees required have also been appropriately documented to Paymex's satisfaction. In the event that Paymex does not accept your registration request to become a Paymex User and provides you with a Paymex Account prior to this and until such time time as Paymex can undertake such verification and obtains all the documentation it requires relating to any appliciable personal guarantee:

a) the total value of transaction that can be processed through your Paymex Account in any calendar month will be limited to a maximum value of $5000; and

b) no single transaction which is worth more than $500 will be able to be processed.

8. Paymex reserves the right, acting at its sole discretion and without liability, to cancel or suspend your registration as a Paymex User and access to your Paymex Account at any point, if it believes you have breached these Terms of Use, the Privacy Policy or any other agreements you may have with Paymex, or if you have become the subject of a Charge Back (as defined in caluse 7.3). In such event you agree that Paymex will not be required to provide you with prior notice or explanation in respect of such cancellation or suspension. Notwithstanding the suspension or cancellation of access to your Paymex Account, you agree you will remain fully liable for any ourstanding liability owed to Paymex or for any third party obligations in respect of your Paymex Account. In the event that your Paymex Account is cancelled, after satisfying any outstanding liabilites to Paymex or any third party obligations in respect of your Paymex Account, Paymex will arrange for the repayment to you of any surplus amounts in your Paymex Account.

9. Without in any way limiting the affect in clasue 4.7 or any other provision of these Terms of Use, in the event that you become the subject of a Charge Back, Paymex acting entirely at its sole discretion may allow you to continue trading through your Paymex Account on such terms as Paymex deems appropriate, provided however that until the reason for such Charge Back occuring is explained to Paymex's satisfaction or until Paymex decides to take any further action in respect of the Charge Back, you may be prevented from withdrawing any funds from your Paymex Account.

10. Following each Paymex transaction you participate in Paymex may contact you by email requiring feedback on the transaction and also the conduct of any other Paymex User involved in such transaction.

5 Paymex Fees

1. Paymex Users (both individuals and businesses) will be charged the applicable amounts set out on the fees page (and ammended from time to time by Paymex in its sole discretion in accordance with clause 16.2) ("Fees") for use of the Paymex Services.

2. All Fees as well as any prices quoted by Paymex include GST.

3. You are liable for any fees or charges imposed by your bank, credit card or other financial services provider for debits and credits made to your Paymex Account by Paymex.

6 Depositing, Transferring and Withdrawing funds

1. To deposit funds into a Paymex Account, you must provide certain information including, but not limited to:

a) the amount of the payment; and

b) details of the nominated credit card from which the funds will be drawn ("Nominated Card")

2. to transfer funds from one Paymex Account to another:

a. the holder of the Paymex Account to whom the money is being transferred to ("Recipient") must have a valid and active email address: and

b. the holder of the Paymex Account from which the transfer is being made ("Sender") is responsible for ensuring that the payment to be made has been addressed to the correct Recipient. The Sender should carefully check the email address of the Recipient as an error could lead to the money being credited to the wrong person. Paymex accepts no liability whasoever for Payments directed to the wrong person.

3. To withdraw funds from a Paymex Account you:

a) must hold a bank account which you have specified as the account into which the funds can be deposited ("Nominated Deposit Account") or

b) may request such funds to be paid to you by cheque (provided that it may take 5 - 10 workings days for such cheque to be issued to you).

4. In respect of clause 6.1(b) above, it is your responsibility to have adequate funds available on your Nominated Card in order for the transaction to be processed. If you do not, then Paymex may recover from you, without exception, any processing fees it incurs from any bank or other financial institution. Paymex may deduct these amounts from any of your accounts, the details of which you have provided to Paymex, without any notice to you.

5. Paymex reserves the right to introduce, acting at its sole discretion, minimum and maximum payment amounts per transaction.

7 Receiving funds using Paymex

1. In order to receive a payment with Paymex you must be Paymex User.

2. By accepting a payment, you as the Recipient accept liability of any nature in relation to that payment, including without limitation liability for incorrect, negligent or unlawful payments.

3. If any payment is reversed or credited back to the sender by the sender’s bank or provider, or if you are involved in any sort of fraudulent conduct, Paymex has the absolute right and discretion to deduct from your Nominated Card, Nominated Deposit Account, or any other account the details of which you have provided to Paymex, without notice to you, any payment previously credited to you plus the cost of any bank fees or charges (including interest charges) or collection costs or other costs or losses suffered by Paymex ("Charge Back"). This right of Paymex to deduct or perform a Charge Back survives termination or expiry of these Terms of Use or any other agreement you have with Paymex.

4. In the event of a Charge Back where there are insufficient funds available on your Nominated Card, in your Nominated Deposit Account, or in any other account the details of which you have provided to Paymex, to meet your obligations to Paymex as provided in clause 7.3, you agree that to the greatest extent permitted by law Paymex may take such further action against you as Paymex deems appropriate which may include without limitation instructing debt collectors or issuing legal proceedings to facilitate the recovery of all monies owed to you by Paymex.

8 Deregistering from Paymex

1. You may request to be deregistered as a Paymex User, by advising Paymex Client Services of such by email to clientservices@paymex.co.nz.

2. Deregistration does not affect Paymex's right to access your Nominated Card, Nominated Deposit Account, or any other account the details of which you have provided to Paymex for the purposes of a Charge Back.

9 Disputes

1. Paymex takes no responsibility nor liability for any payment you may make or receive whilst using the Paymex Services.

2. Paymex is not the supplier of any third party goods or services paid for through the Paymex Services, therefore should you have a complaint relating to your purchase of any third party goods or services, direct this to the supplier of those particular goods or services.

3. If you have a valid complaint in respect of Paymex or the Paymex Services, or feel that there have been unauthorised transactions in your Paymex Account, or suspect any fraudulent activities have taken place, please contact us as soon as possible through one of the following means: a) send an email to Paymex Client Services at clientservices@paymex.co.nz; b) write to Client Services Manager, Enform, PO Box 15-380, Tauranga 3110, New Zealand; or c) call Paymex on 0900 555 44 within New Zealand.

4. Paymex will endeavour to investigate your concerns in a timely manner and find a resolution and get back to you with our results and reasons, within a reasonable amount of time. If we feel that the investigation will take longer than a reasonable amount of time we will advise you of this.

5. In the event that a mutually acceptable resolution can’t be reached having followed the procedure provided for in clause 9.4, any remaining dispute may then be submitted to mediation by a mediator agreed to by the parties, or failing agreement, appointed by the Arbitrators and Mediators Institute of New Zealand at the request of either party. If the matter is not resolved by mediation within fourteen (14) days from there, the matter will be submitted for arbitration in accordance with Schedules 1 and 2 of the Arbitration Act 1996, by a single arbitrator to be appointed by the parties or, failing agreement, appointed by the Arbitrators and Mediators Institute of New Zealand at the request of either party. Any such mediation or arbitration shall take place in Tauranga, New Zealand at such venue as the parties shall agree or, failing agreement on a venue, by such means (including without limitation teleconference or videoconference) as the parties shall agree or, failing agreement, by such means as may be determined by the applicable mediator or arbitrator. All costs in relation to the staging of such proceedings (excluding for the avoidance of doubt any awards which may be made) shall be borne equally by the parties unless explicitly stipulated otherwise by the arbitrator or agreed otherwise by the parties. The preceding provisions of this paragraph will not apply to a dispute arising in connection with any attempted re-negotiation of these Terms of Use.

6. For the avoidance of doubt nothing in this clause 9 or any other provision of these Terms of Use will preclude either party from taking immediate steps to seek urgent injunctive or other equitable relief before an appropriate court.

10 Instructions to Paymex are binding

1. If you, or anyone using your Paymex Account, issue instructions to Paymex via the Paymex Website (“Electronic Instructions”) then we will not need further consent from you to act on any such Electronic Instructions.

2. If any Electronic Instructions are not received by Paymex for whatever reason, Paymex is not liable to you in any way for any loss or damage at all however caused, arising directly or indirectly in connection with such Electronic Instructions or the non-receipt of such Electronic Instructions.

11 Your other obligations

1. You represent and warrant that all information you provide to Paymex will be complete, correct and accurate. If you provide incorrect or inaccurate information, your ability to use the Paymex Services and the Paymex Website may be suspended or terminated without notice or liability at Paymex’s sole discretion.

2. You agree and warrant that you will not use the Paymex Website or the Paymex Services for anything illegal or in connection with any activity that Paymex acting entirely at its own discretion decides may bring Paymex into disrepute. If you do not comply with these requirements, your ability to use the Paymex Services and the Paymex Website may be suspended or terminated without notice or liability at Paymex’s sole discretion.

3. If you are a Paymex User, Paymex identifies you via your email address and password. You agree to not disclose your password to any other person, and you also agree not to use any other person's log in details. You will be solely responsible for all activities undertaken and/or costs incurred under the use of your password and login. You must take all reasonable steps to keep your password confidential and secure. If you breach this clause, Paymex will not be held liable for any loss or costs of any nature whatsoever that you may suffer and you agree to indemnify Paymex on demand in respect of any loss or costs of any nature whatsoever suffered by Paymex as a result of your breach of this clause.

4. If your password is lost, stolen or security is compromised in any way, or you suspect this to be the case, then you must notify Paymex immediately.

5. You agree not to levy a surcharge on a cardholder for credit card transactions by that cardholder. Such conduct is prohibited under Credit Card International Operating Regulations.

12 Risk

While Paymex has endeavoured to take all reasonable and appropriate care in the preparation of the content of the Paymex Website and has no reason to believe that any information contained on the Paymex Website is inaccurate, Paymex does not warrant the accuracy, adequacy, or completeness of such information or that such information is error free. Paymex does not undertake to keep the Paymex Website updated. The use of any material or information on the Paymex Website is entirely at your own risk. To the greatest extent permitted at law Paymex does not accept liability for any loss or damage which may result either directly or indirectly from reliance by you upon the accuracy or currency of information contained on the Paymex Website including without limitation where such loss or damage is a result of or contributed to by the negligence of Paymex.

13 Limitation of Liability

1. To the greatest extent permitted by law, in relation to your access and use of the Paymex Website and the Paymex Services, any condition or warranty either express or which would otherwise be implied by law is hereby excluded. If you are accessing and using the Paymex Website and the Paymex Services for the purposes of a business then you agree that the provisions of the Consumer Guarantees Act 1993 will not apply to your access and use of the Paymex Website or the Paymex Services.

2. To the greatest extent permitted by law, under no circumstances will Paymex, its employees, contractors or agents be liable to you in contract, tort, equity, statute, regulation or otherwise for any loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by you or by any third party, whether direct or consequential (including without limitation any economic loss or other loss of turnover, profits, business or goodwill) arising out of any dispute or contractual, tortious or other claims or proceedings made by or bought against you which relate in any way to the Paymex Website or the Paymex Services or in respect of any failure or omission on the part of Paymex to comply with its obligations as set out in these Terms of Use or the Privacy Policy.

3. To the greatest extent permitted by law, in the event that any limitation or provision contained in these Terms of Use is held to be invalid or unenforceable for any reason and Paymex becomes liable for any loss or damage that would otherwise have been excluded, Paymex’s maximum liability in contract, tort, equity, statute, regulation or otherwise for any loss, damage or injury directly or indirectly arising in respect of the Paymex Website or the Paymex Services is to be limited to $50.

14 Indemnity

You indemnify Paymex, its employees, contractors or agents in respect of any liability incurred by Paymex, its employees, contractors or agents for any loss or damage, howsoever caused or suffered by Paymex as a result of your breach of these Terms of Use, or your use of the Paymex Website or the Paymex Services.

15 Copyright and Trademarks

Unless otherwise stated, Paymex is the owner or licensee of all copyright, trademarks and other intellectual property rights relating to the Paymex Website and its contents. This includes without limitation all intellectual property rights in respect of all text, graphics, logos, images and software that are included in the Paymex Website.

Except as required for the use of the Paymex Website or the Paymex Services in accordance with these Terms of Use, no material or information on the Paymex Website may be reproduced, stored in an electronic or other retrieval system, altered, uploaded to a third party location, framed, performed in public or transmitted in any form by any process whatsoever without the express written consent of Paymex.

16 Acceptance and changes to these Terms of Use

1. You acknowledge and accept that your use of the Paymex Website indicates your acceptance of these Terms of Use and the Privacy Policy.

2. If Paymex varies the Terms of Use by introducing or increasing any Fees, we will publish the updated information on the Paymex Website at least 7 days before the change takes effect . If Paymex varies the Terms of Use in any other way (e.g. to correct a typographical error or to reduce the amount of a Fee), Paymex will publish the updated information on the Paymex Website no later than the day on which the change takes effect. You accept that by doing this, Paymex has provided you with sufficient notice of the variation. Paymex is under no obligation to specifically notify you of any variation to these Terms of Use other than as set out in this clause. By your use of the Paymex Website after any variation has taken effect, you are taken to have accepted the new Terms of Use.

17 General

1. All references to Currency are in New Zealand Dollars (NZ$) unless otherwise specified.

2. The laws applicable to the Paymex Website and to disputes arising out of the Paymex Website are the laws of New Zealand.

3. These Terms of Use are governed by the laws of New Zealand. You agree to submit to the exclusive jurisdiction of the New Zealand courts provided however that Paymex shall have the right to sue to recover any amounts owing to it in any jurisdiction in which you are operating or have assets.

4. If any part of these Terms of Use becomes void or invalid for any reason, then the remainder of the Terms of Use remain in full effect.

5. You are responsible for keeping a record of your own transaction history for financial planning, taxation or other purposes.

6. If Paymex waives any rights available to it under these Terms of Use on one occasion, this does not mean that those rights will automatically be waived on any other occasion.

7. In the event of any conflict between these Terms of Use and the Privacy Policy, to the greatest extent permitted at law, these Terms of Use will take precedence.

8. You may not assign, transfer, sublicense or in any other manner make over to any third party the rights or obligations provided by these Terms of Use without Paymex’s prior written consent.

9. These Terms of Use constitute the entire agreement between you and Paymex in respect of their subject matter and supersede any previous understandings or agreements on that subject matter.

18 Links

1. Please contact Paymex if you would like to link to any part of the Paymex Website. In the event that you are granted permission by Paymex to link to or otherwise use the Paymex Website or any portion of it or its content other than as provided for in these Terms of Use, subject to any contrary agreement you reach with Paymex, you must ensure that all applicable copyright, trademark and other proprietary notices are included. If you are granted permission by Paymex to link to the Paymex Website you agree that you will not use any Paymex logo, trademark or other proprietary graphic as part of such link without the express prior approval of Paymex.

2. The Paymex Website may contain links to other websites (“linked websites”). Those links are provided for convenience only and may not remain current or be maintained. Paymex is not responsible for the content or privacy practices associated with linked websites. Our links with linked websites should not be regarded as approval or as an endorsement, of those linked websites, their operators or owners, or of any information, graphics, materials, products or services referred to or contained on those linked websites including further links contained on those linked websites, unless and to the extent stipulated to the contrary on the Paymex Website.

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