Legal

Terms and Conditions

eWAY New Zealand Limited Terms and Conditions
Recitals
A.	eWAY is the owner of trade marks, patents, trade secrets, copyrights, processes, know how, registered designs or other Intellectual Property and provides payment gateway services to online merchants.
B.	eWAY has agreed to grant You with access to the Site, the Services, and use of certain Intellectual Property and Confidential Information as set out in this Agreement. 
C.	All products of eWAY or an affiliate including the eWAY website, payment processing pages and online documentation (collectively, the "Services") are subject to the Terms and Conditions stated below.
D.	By the use of the Site or the Services You agree to be bound by this Agreement.  If You do not agree to the Terms and Conditions set out below You agree that You will not use the Site or the Services. 

Terms and Conditions of Use

1. Interpretation
In these Terms and Conditions, the following terms have the following meanings
(a)	"Account" means your user name and identifying particulars supplied to eWAY at the commencement of this Agreement.
(b)	"Agreement" means this agreement as amended from time to time including schedules and terms included by reference.
(c)	"Business" means all activities associated with on-line gateway transactions including purchases and refunds and includes development of the Site, the Services and Intellectual Property.
(d)	"Confidential Information" means all information acquired or created by eWAY during the course of or in connection with the Business by eWAY, including information about eWAY, the Business, processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its clients or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) eWAY's principles, policies, procedures, Intellectual Property and other documents, or material which eWAY may direct you to treat as Confidential Information.
(e)	"Copyright Material" means any work or other subject-matter in which copyright subsists or is capable of subsisting under the New Zealand Copyright Act 1994 or equivalent legislation;
(f)	"Customer" means you and all users of the Site and the Services.
(g)	"Customer Information" means all customer information about customers including name, address, contact details, use of Services, their arrangements with eWAY and their Internet Merchant Facility details.
(h)	"eWAY" refers to eWAY New Zealand Limited and its related bodies corporate.  eWAY is a business owned and managed by eWAY New Zealand Limited
(i)	"Fee Schedule" is a schedule of fees set by eWAY at its sole discretion for use of the Site and the Services.  The Fee Schedule can be found at http://www.eway.co.nz/Business/Pricing.aspx.
(j)	"GST" means any tax in the nature of a tax on or on the supply of goods, real property, services, or other things (or similar tax) levied, imposed or assessed by the New Zealand Inland Revenue Department pursuant to the New Zealand Goods and Services Act 1985, which may operate at any time during the currency of this Agreement, other than any interest, fine, penalty , fee or other payment imposed on or in respect of such tax.
(k)	"Intellectual Property" means all intellectual property rights of eWAY whether in relation to the Site or Services or otherwise and includes all or any of the following:
(a)	the Trade Marks of eWAY whether in relation to the Site or Services or otherwise;
(b)	the Trade Name or any other trade name under which eWAY sells or distributes its Services or the provision of eWAY Services;
(c)	any present or future patents of eWAY which relate to the eWAY Site or Services or their manufacture or assembly and application for the grant of any such patents;
(d)	the technical and other information or expertise devised, developed or acquired by eWAY or its employees or other applied in the development, servicing and sale of the Site or Services and in the management and operation of the Business;
(e)	copyright of eWAY in any written material, plans, designs, logos, slogans, labels, insignia or other work relating to the manufacture, merchandising, displaying, promotion and selling of the Site or Services;
(f)	designs, whether or not registered or protected by copyright devised or acquired by eWAY and applied to the Business, the Site or Services.
(l)	"Live Gateway" a functioning gateway linked to your bank that allows processing of transactions.
(m)	"Merchant Bank" a financial institution that provides Internet Merchant Facilities for the use of processing credit card transactions via the Internet.
(n)	"Notice" means any notice given pursuant to clause 29 hereof.
(o)	"Processes" include technologies, products, devices, processes or techniques.
(p)	 "Services" means credit card gateways to process on-line transactions through the site, and also access to an administration area on the eWAY website, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via eWAY. eWAY provides a gateway which will connect to Your Merchant bank, allowing You to process credit card transactions online, through Your website. This operates by You posting specific data to the Live Gateway, which then connects to your bank via various connections that eWAY has in place. eWAY then receives the result of the transaction, be it successful or failed, which is then passed back to your website. eWAY also provides online reports of completed transactions, and support via either phone or email.
(q)	"Site" means eWAY web site http://www.eway.co.nz
(r)	"Terms and Conditions" means that terms and conditions set out in this Agreement whether expressly or by reference and includes amendments made to the Agreement.
(s)	"Test Gateway" a gateway that allows you to test the functionality of eWAY, without processing transactions to your Merchant Bank.
(t)	"Trade Name" means eWAY or other trading name of eWAY New Zealand Limited
(u)	"Trial Period" a period of (30) days after the date of joining eWAY, ("the Trial Period").
(v)	"Trade Marks" means the existing or future trade marks owned, used or developed by eWAY during the term of this Agreement 
(w)	"You" includes all persons entering this Agreement with eWAY and where the context allows includes your partners, employees and agents.

In this Agreement:

(i)	All monetary amounts are stated exclusive of GST and are payable in New Zealand dollars, unless provided otherwise.
(ii)	Where the context permits, the singular includes the plural and vice versa.
(iii)	References to any "party" means a party to this Agreement and includes the successors, executors, administrators and permitted assignees (as the case may be) of that party.
(iv)	where a party consists of more than one person the liability of those persons in respect of the terms of this Agreement  is joint and several.
(v)	References to clauses, schedules and attachments are to clauses in, and the schedules and attachments to, this Agreement (unless stated otherwise). Each such schedule and attachment forms part of this Agreement.
(vi)	References in the schedules and attachments to "the Agreement" are references to this Agreement.
(vii)	References to any document (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time.
(viii)	References to a month or a year are references to a calendar month or calendar year.
(ix)	All references to legislation are (unless stated otherwise) references to New Zealand legislation and include all subordinate legislation, any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation.
(x)	Where the context permits, references to a "person" include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority.
(xi)	A reference to a time of day means the time in New Zealand.
(xii)	Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. 

2.	Formation of contract
2.1.	You represent and warrant that you are able to enter into a legally binding and enforceable contract with other persons and eWAY. You agree and acknowledge that you have entered into a legally binding and enforceable contract with eWAY by clicking the " Yes, I/we agree the Terms and Conditions set out by eWAY. " checkbox during the registration process.  

2.2.	In consideration of eWAY agreeing to Your use of the Site and/or the Services, You agree to comply with this Agreement and Your obligations and undertakings under the Agreement.

3.	Commencement and Term
3.1.	The term of this Agreement is 12 months commencing on the date of this Agreement and unless otherwise agreed in writing, shall be automatically renewed on the anniversary of you entering this Agreement and continue for successive 12 month periods unless either party gives the other written notice of termination in accordance with this Agreement. 

3.2.	Before using the Site, you should read this Agreement  carefully and ensure that you understand ALL of the Terms and Conditions. If you do not agree to ALL Terms and Conditions and accept them, then you must not use the Site or the Services. If you agree to the Terms and Conditions unconditionally and without reservation you will be given the opportunity to click the "Yes, I/we agree the Terms and Conditions set out by eWAY." checkbox during the registration process. Once you have accepted these Terms and Conditions  you will be able to use the Site and/or, the Services.

3.3.	eWAY in its sole, absolute and unfettered discretion reserves and has the right to refuse, suspend or cancel your use of the Site and/or the Services in accordance with this Agreement without prior notice and to take such further action against the You as may be appropriate.  You agree and acknowledge that You will take no action in respect of any damage or loss You sustain  no matter how arising from eWAY's cancellation or suspension of Your use of the Site or the Services in accordance with this Agreement. 

3.4.	You also agree that in circumstances where eWAY considers damages are not a sufficient remedy eWAY may seek injunctive relief against You and that You will not oppose applications seeking injunctive relief as may be brought by eWAY in respect of your use or proposed use of the Site or the Services.

3.5.	This Agreement and any terms incorporated by reference in the Agreement shall override any contrary terms or conditions previously published by eWAY. 

3.6.	When you process a transaction on the Live Gateway, whether the tranasaction result is successful or not, you are agreeing to the Terms and Conditions.

4.	Amendment
4.1.	The terms of this Agreement may be amended by written agreement between the parties.

4.2.	These Terms and Conditions may be amended from time to time by eWAY by posting the amended Terms and Conditions on the Site or placing a Notice on the Site that the Terms and Conditions have been amended.  The amended Terms and Conditions shall automatically be effective from the earlier of ;-
(i)	7 days after they are initially posted on the Site,
(ii)	Your entry to a new Agreement or the renewal of a term; and
(iii)	7 days of Notice being given to you. 

4.3.	You should ensure that you make yourself aware of any amendments that may be made to this Agreement.  You acknowledge and agree that your continued use of the Site or the Services following the posting of any amendments will mean that You accept unconditionally any amendments made. This Agreement was last updated on 9th July 2009.

5.	Access.
5.1.	eWAY, the developer of the Site and the Services, grants you non-exclusive access to the Site and the Services via an account upon the terms set forth herein. The Site and the Services, including any upgrades thereof and any code, program or software given to You to enable Your use of the Site or Services, shall remain the property of eWAY New Zealand Limited and be subject to the restrictions set forth herein.

6.	Restricted Use
6.1.	You will not use the Intellectual Property to manufacture, have made, use or market a similar site or similar services in any location nor will You use the Intellectual Property for any purpose other than expressly permitted by eWAY.  Where eWAY has indicated to You that the whole or any part or parts of the Intellectual Property comprises Confidential Information You will not at any time during the term (as renewed) of the Agreement or after its termination or expiry or the termination of this Agreement during the Trial Period disclose such Confidential Information or material to any person without obtaining eWAYs' express written consent.  You will take such steps as may be necessary to ensure that any of Your servants or agents do not disclose such Confidential Information including any Intellectual Property.

6.2.	You may not and warrant that you will not:-
(a)	Copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site or the Services,
(b)	transfer or attempt to transfer any part of the Site or Services or Your right to access them  or otherwise make them available to any other person,
(c)	attempt to discover eWAY's source code,
(d)	Sublicense, rent or lease any portion of  the Site or the Services; 
(e)	Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Site or Services, or create derivative works from the Site or Services except so far as such actions are permitted by applicable law notwithstanding this limitation or are approved in writing by eWAY.
(f)	use the Site or the Services for any illegal purpose
(g)	allow your Account to be used for any illegal purpose; or 
(h)	allow your Account to be used by another person for any purpose.

7. Password Policy
7.1.	Your password for access to your eWAY Business Centre must:  
(a) Be changed every 90 days.
(b) Not be the same as one of your last 4 passwords.

8.	Limited Trial.
8.1.	Upon entering into this Agreement eWAY grants You a Trial Period during which eWAY warrants that no fees will be payable if you terminate the Agreement in writing and cease all use of the Site and Services.

9.	Fees
9.1.	During the term of this Agreement You must pay to eWAY the fees detailed at http://www.eway.co.nz/Business/Pricing.aspx

9.2.	You warrant that You understand and agree to the fee structure as outlined at http://www.eway.co.nz/Business/Pricing.aspx.  You warrant that You understand and agree that all transactions sent to the eWAY Test Gateways are FREE of charge, and that any transaction sent to the LIVE eWAY Gateways, whether successful or unsuccessful, purchase or refund, will be charged at the rates set out at http://www.eway.co.nz/Business/Pricing.aspx.

9.3.	eWAY in its sole, absolute and unfettered discretion reserves the right to change any Fees charged for the Services or use of the Site at any time. In the event of an increase in a Fee that Fee will become payable from the earlier of:-
(a)	7 days after a Notice in respect of the fee is posted on this Site or given to You.
(b)	Your entry to a new agreement or the renewal of a term

9.4.	If eWAY introduces a new Service, any Fees for the use of that Service are applicable from the commencement of the Service unless otherwise stated and by using that Service You warrant that you agree to the Fees applicable to that Service as set out at http://www.eway.co.nz/Business/Pricing.aspx.

9.5.	Unless otherwise stated Fees are exclusive of GST and in quoted in New Zealand dollars.

9.6.	No refund of fees is offered after the conclusion of the Trial Period.

9.7.	You must pay to eWAY within 14 days of being invoiced or receipt of a demand for payment or Notice for payment:
(a)	all charges specified in this Agreement.
(b)	any amount payable by You arising from your use of the Site or Services.
(c)	any amount for which you are liable to eWAY under this Agreement in respect of any breach of the Agreement or otherwise.
(d)	You authorise eWAY to charge all monies payable to eWAY under this User Agreement to your account.
(e)	eWAY will pay any monies payable to the You by such method as eWAY may reasonably choose.  


10.	Infringement 
10.1.	If You learn of:
(a)	Any infringement or threatened infringement of the Intellectual Property or Confidential Information; or
(b)	Any passing-off which may cause deception or confusion to the public by a third party,
You must immediately notify eWAY in writing giving particulars of the infringement or threatened infringement

10.2	eWAY will at its sole discretion institute and prosecute an action against in respect of the infringement.

11.	Costs for Breach 
11.1.	If eWAY is required by You or by an order sought by You in any litigation in which you are involved whether under subpoena or order of a court of competent jurisdiction, including complying with any order for discovery or attending court to give evidence, you shall bear all costs incurred by eWAY in connection with the provision of such service, including eWAY's costs for taking legal or other professional advice or representation on a full indemnity basis. 

11.2.	Further, you agree and acknowledge that where you take any action including legal action against or involving eWAY you will provide security for such costs to eWAY upon written demand.

12.	Termination.
12.1.	Any fraudulent or damaging activities or attempts to comprise the eWAY service will give eWAY a right to immediately terminate this Agreement and your use of the Site or Services.

12.2.	eWAY shall have the right to terminate this Agreement forthwith by written notice to You if You breach an essential term of this Agreement  or breach another term of the Agreement as specified herein. The following events are deemed to be a breach of an essential term of this Agreement.
(a)	A failure by You to pay any monies payable to eWAY on the due date.
(b)	You become insolvent or unable to pay Your debts in the ordinary course of business.
(c)	In the case of an individual, if a petition for bankruptcy is presented or in the case of a company, if a receiver is appointed or a petition for the winding up of eWAY is presented.
(d)	In the case of a company, You permit an order to be made or a resolution to be passed for the winding up of the company or if the company is placed in liquidation and/or receivership or a meeting is called for that purpose.
(e)	You permit or propose a compromise or arrangement to be made between You and any of Your creditors.
(f)	You assign all or part of Your assets for the benefit of any creditor. 
(g)	You or any of Your Directors is convicted of a criminal offence which in the case of an individual could carry a term of imprisonment or in the opinion of eWAY has or has the potential to cause damage or injury to the reputation and standing of eWAY.
(h)	Your making of an assignment or attempted assignment for the benefit of creditors
(i)	You purport or attempt to transfer, assign or deal with this Agreement or the Site or Services without the written consent of eWAY.
(j)	You purport to or use and Site or Services which are not approved by eWAY.
(k)	If You (or Your Directors or anyone or more of them) do or neglect to do anything which in eWAY's opinion is likely to bring disrepute upon eWAY or prevent You or eWAY from properly performing Your or its obligations under this Agreement.

12.3.	You shall compensate eWAY and eWAY shall be entitled to recover damages from You for breach. Such entitlement shall be in addition to any other right or remedy which eWAY may have. The acceptance by eWAY of arrears of monies shall not constitute a waiver of Your continuing obligation to pay monies on the due date.


12.4.	Without prejudice to eWAY's rights, in the case of any other term of this Agreement, You shall be guilty of a breach, non-observance or non-performance of the terms of this Agreement or Your obligations contained in this Agreement if you have not remedied such breach, non-observance or non-performance (if it is capable of remedy):
(a)	In the case of any obligation to comply with any statutory law or regulatory obligation relating to the Business the use of the Site or Services, within 14 calendar days after written notice from eWAY;
(b)	In the case of any other obligation, for a period of 7 Business Days after written notice from eWAY, then eWAY may by written notice terminate this Agreement.
(c)	Notwithstanding the provisions contained in clause 11, if You  have been guilty of any breach, non-observance or non-performance of the same obligation twice any period of one year, or if eWAY has given notice on not less than two occasions in any 12 month period, eWAY may terminate this Agreement forthwith by written notice to You without prior warning or notice if a third or subsequent breach, non-observance or non-performance occurs within a period of 6 calendar months from the second or last of such occurrences.

12.5.	Notwithstanding any other clause in this Agreement You may terminate this 	Agreement in writing, other than by email, to eWAY at any time.  Such 	written notice is to be signed by a duly authorised officer or signatory.

12.6.	eWAY may terminate this Agreement at any time upon providing You with 30 days Notice

12.7.	Termination of this Agreement whether by no matter how arising shall be without prejudice to the rights and obligations of the parties existing up to and including the date of expiry or termination including the right of the party terminating to seek and obtain damages for any breach of this Agreement by the other party or the other party's servants or agents.

12.8.	Termination on instructions from Your Merchant Bank 
(a)	Without prejudice to any other right of eWAY under this Agreement, if Your Merchant Bank requests that eWAY terminate your use of the Site and/or the Services or this Agreement for any reason eWAY may do so immediately without Notice being given
(b)	In the event of termination on instructions from Your Merchant Bank You indemnify eWAY and hold eWAY harmless in respect of any loss or damage arising from such termination no matter how such loss or damage arises.

13.	Rights of Parties on Termination or Expiry 
13.1.	On termination of this Agreement for whatever reason, the following shall apply from and after the expiry date or such termination.

13.2.	You shall immediately discontinue the use of the Site and the Services and cease to use the Intellectual Property, Confidential Information, and any other signs, displays or advertising material which contains reference to eWAY.

13.3.	You shall not represent or advertise that You were formally using eWAY.

13.4.	All fees previously paid remain the property of eWAY and You agree to make no claim in respect of such Fees.  You must further pay to eWAY any fees that have accrued but are unpaid as at the date of the termination or expiration.

13.5.	You shall forthwith pay to eWAY without any deduction or right of set off all sums of money which may be due or payable by You to eWAY including all costs, expenses and disbursements of eWAY which in accordance with this Agreement are payable by You.

13.6.	You shall deliver up to eWAY or its nominated representative all stationery, literature and materials upon which reference to eWAY or any Intellectual Property, or Confidential Information may appear.

13.7.	You will ensure that all references to eWAY are removed at the first possible opportunity from all websites, telephone and other directories, directory assistance records, membership rosters and from any other publication.

13.8.	You shall immediately remove, paint out or cover all notices, display and advertising material which refers to or may be associated with eWAY. If You fail to carry out Your obligations and then fails within 14 days of a request to do so by eWAY, then eWAY shall have the power (without incurring any liability to You) and without the Your consent save the authority hereby given by You to remove such references at Your expense which expense You shall pay within 7 days demand.


13.9.	You shall forthwith return to eWAY or its nominated agent all items which may have been loaned to You by eWAY.

14.	Limit of eWAY liability
14.1.	The Site and Services are designed to merely clear transactions or data to Your selected New Zealand bank using the existing EFTPOS network. eWAY accepts no responsibility for the delivery of the transactions to the eWAY server.  These transactions may come from a variety of sources (e.g. Web, phone operator, database etc) It is Your responsibility to ensure that these details are correct (e.g. correct card number, amount) and securely passed to the eWAY server.
 
14.2.	You release and indemnify eWAY from any and all loss or damage arising out of any loss of data or corruption of data during the transfer of such data to eWAY.

14.3.	eWAY has no responsibility, for the settlement of transactions between any Merchant, You, it's financial institution or any other person.

14.4.	To the extent permitted by law, eWAY excludes all representations and warranties, express or implied, other than those contained in this Agreement.  Where eWAY is found to be liable for breach of any warranty or condition implied by statute and which eWAY cannot lawfully exclude, eWAY 's liability is limited (to the extent permitted by law) at the option of eWAY to the following: 
(i)	in the case of any programming or software supplied or offered by eWAY:
(a)	to the supply of those programs or software or programs or software of similar functioning  again; or 
(b)	to the payment of the cost of having those programs or software supplied again; or

(ii)	in the case of Services supplied or offered by eWAY:
(a)	to the supply of the services again; or 
(b)	to the payment of the cost of having services supplied again.

14.5.	eWAY, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
(i)	your use of or inability to use the Site or Services;
(ii)	any virus or other harmful, or potentially harmful, code which may be transmitted in connection with Your use of the Site or Services;
(iii)	eWAY 's negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, providers or agents arising from or related to this Agreement, the Site and the Services.
(iv)	Your provision of incorrect information.
(v)	Your loss of information or data.

14.6.	eWAY's liability for any loss or damage under this Agreement or any statute is reduced by the extent that You have caused or contributed to such loss or damage.

15.	eWAY warranty
15.1.	eWAY warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the Site or Services will not result in the infringement of proprietary or third party rights.

15.2.	eWAY indemnifies You against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with any claim made against You by a third party on the grounds that by virtue of rights to which such third party lays claim, under letters patent or copyright (whether registered as a design or not) or any other similar right or claim, such third party is entitled to prevent or interfere with your use of any or all of the Intellectual Property pursuant to this Agreement.

15.3.	eWAY also indemnifies You against any claim by Your customers in respect of any loss or similar to those in 14.2 injury and court fees and expenses or damages and costs and loss or injury suffered by compliance with an injunction order on the part of such a customer or third party.

15.4.	The Site is provided by eWAY on an "as-is" basis and the only obligations on eWAY are set out in this Agreement.  eWAY gives no warranty or condition, express or implied other than those expressly set out herein. eWAY does not warrant that the functions contained in this Site and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that this Site, or eWAY's hardware or computer systems are free of viruses or other harmful components or programs. eWAY does not warrant or make any representations regarding the accessibility or the use or the results of the use of this Site or the Services and You hereby acknowledge that You have relied on the Your own enquiries and inspection in relation to the Site and the Services including "Test Gateway" transactions and the use of the Site and Services during the Trial Period before entering into this Agreement and using the Site or the Services.

15.5.	eWAY does not give a warranty of completion of transactions. eWAY does not warrant that any Merchant or financial institution will complete a transaction.  eWAY accepts no liability associated with such risks.  You agree that you accept these risks and indemnify and hold harmless eWAY in respect of such risks.
15.6	Where the New Zealand Consumer Guarantees Act 1993 applies to the supply of services under this Agreement, you may have additional rights under that Act.

15.7	Where the Services that you acquire from eWAY are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire or hold yourself out as acquiring the Services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 will not apply and are excluded from this Agreement.

16.	Your Indemnity
16.1.	In this clause "eWAY" includes parent companies, subsidiaries, officers, directors, employees and agents. You indemnify and hold harmless eWAY against any claim, loss, liability, cost or expense, including legal costs on a full indemnity basis, made against or incurred by eWAY in relation to:-
(a)	personal injury or death;
(b)	property damage;
(c)	economic loss;
(d)	civil or criminal penalty; or
(e)	consequential loss
(f)	any other matter 
Arising out of any breach by you of this Agreement or
(g)	any negligent or criminal act or omission  by you;
(h)	compliance by eWAY with eWAY's obligations under this Agreement or
(i)	eWAY's exercise or failure to exercise any right under this Agreement. 

16.2.	Your indemnity includes all claims, demands, proceedings, damages (actual, special or consequential) of every kind and nature, known and unknown, including but not limited to demands, proceedings, damages (actual, special and consequential) of every kind and nature taken by any third party due to or arising out of your breach of this Agreement or by your violation or breach of any law or any rights of a third party.

16.3.	You agree and acknowledge that You and not eWAY are liable for all loss and damage no matter how arising which is caused or contributed to by your use or misuse of the Site or the Services.

16.4.	You indemnify and hold eWAY harmless in respect of any loss or damage sustained by you as a result of eWAY's refusal to renew or enter into an Agreement with You and agree and acknowledge that eWAY's refusal does not amount in anyway to a restraint of trade.

16.5.	You indemnify eWAY in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Site or the Services from any terminals or access points within Your control, custody or power.

17.	Authorisation for Corrections
17.1	You authorise eWAY to correct any errors on your account.

18.	Marketing and Promotional Messages
18.1.	eWAY reserves the right to use your company or trading name in any promotional or marketing material it deems fit. This may be of the form print, Tv, radio or Multimedia (including Web). Example uses may include; promotional flyers, or website case studies. 
18.2	On occasion, eWAY may send to you emails related to eWAY�s current promotional activities and special offers.  However, you have the right to choose not to receive those marketing or promotional emails from us.  You may make this request by emailing us at support@eway.co.nz with the word �unsubscribe� in the subject line.

19.	Confidentiality
19.1.	You  acknowledge and undertake to eWAY that:
(a)	all information, documents, data and any other material which is provided by eWAY to You or Your directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by You or Your directors, officers, employees and agents or a third-party is and remains the property of eWAY;
(b)	You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement;
(c)	You will only disclose the Confidential Information to such of Your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the Site and the Services ; 
(d)	You will not, and will ensure that Your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;
(e)	You will take all steps necessary to prevent or stop, and comply with all reasonable directions of eWAY in respect of, suspected or actual breaches of, or defaults under this clause;
(f)	You will promptly notify eWAY if it suspects, or becomes aware of, any unauthorised access, use or disclosure of any of the Confidential Information and will give eWAY (at Your cost if the unauthorised access, use or disclosure is as a result of a breach of, or default under, this Agreement) all reasonable assistance in connection with any action which eWAY may take, or proceedings which eWAY may institute, in respect of the unauthorised access, use or disclosure; and
(g)	You will, and will procure that Your agents and advisers will, return to eWAY all Confidential Information at the end of the term or upon termination of this Agreement.
(h)	You agree that you will not during the term of the Agreement, or at any time after the termination of the Agreement (howsoever this may occur) disclose to any other person (without the previous consent in writing by eWAY) either directly or indirectly, any Confidential Information relating to eWAY of which you became possessed whilst subject to this Agreement, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to eWAY howsoever arising. 
(i)	Without limiting the generality of the foregoing clause, eWAY's Confidential Information shall include information which eWAY directs You to treat as confidential and shall include (but not be limited to) eWAY's (documents, client lists, client cards, job orders, eWAY's principles, policies and procedures or other documents you came into possession in the course of  this Agreement).
(j)	Upon termination of this Agreement, or at any time on the request of eWAY, you will immediately deliver up to eWAY all documents which were prepared by or on behalf of eWAY and which are in your care, custody, or control, and all other property belonging to eWAY. 
(k)	You must treat as confidential all information gained during the term of this Agreement that relates to clients of eWAY and utilise your best efforts to ensure that any employees under your supervision or control also do so. 

20.	Trade Mark
20.1.	This Agreement does not grant You any rights in connection with the Trademarks (registered or otherwise) of eWAY.

20.2.	You will not at any time during or after the expiry or termination of this Agreement, contest or challenge in any legal proceedings or otherwise the proprietorship of eWAY in the Intellectual Property.

20.3.	You shall not in any manner represent that You have any proprietary rights in the Intellectual Property.

20.4.	In so far as the Intellectual Property or any components of the Intellectual Property are the subject of registrations or applications for registrations under applicable statutes, You shall do nothing to challenge, oppose, dispute or impugn the validity of such applications or registrations and shall take all necessary steps as may be required by eWAY to assist in maintaining or obtaining such registrations.

20.5.	If You become aware of any claims against or infringements of any rights associated with the Intellectual Property, then You shall forthwith notify eWAY and eWAY at its sole discretion may elect to defend or prosecute any action relating to the Intellectual Property. In relation to any proceedings or claims to protect or defend the Intellectual Property, You, if required by eWAY, shall render all assistance including if necessary, providing evidence and being named as a party to any legal proceedings.

20.6.	At the expiry or termination of this Agreement, all of Your rights in respect of the Intellectual Property shall cease.

20.7.	eWAY may change the Intellectual Property which You are permitted to utilise at any time for any reason. 

20.8.	You may not use the Intellectual Property in a manner which may place the Intellectual Property at risk of loss or loss of value to eWAY.

21.	Privacy.  
21.1	You warrant that all Personal Information as defined in the New Zealand Privacy Act 1993 (�Privacy Act�) which you disclose to eWAY is up-to-date, complete and relevant to the purpose for which it was disclosed to eWAY.  Under the Privacy Act, you have the right of access to and correction of your personal information.

22.	Prior Agreements
22.1.	This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled but without prejudice to any rights which have already accrued to either of the parties under those arguments.

23.	Rights Cumulative
23.1.	All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any right granted by this Agreement or otherwise available to it.

24.	Costs
24.1.	You shall pay Your own costs in respect of this Agreement.

25.	Set Off
25.1.	eWAY shall have the right to set-off against any payment due by eWAY to You any amount owed to eWAY by You.  Upon termination or expiration of this Agreement for any reason, You shall pay any amount due to eWAY immediately with no right to set-off.  

26.	Waiver
26.1.	The failure by eWAY to enforce at anytime or for any period anyone or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall constitute any waiver of eWAY's rights.

27.	Force Majeure
27.1.	Neither party shall be considered in breach of this Agreement where performance of its obligations under the Agreement is by any cause beyond the reasonable control of the parties rendered impossible or delayed.

27.2.	If the reason for the inability to perform or delay in performance referred to in clause continues for a continuous period of 30 days, either party may by written notice to the other terminate this Agreement.

28.	Survival of Obligations
28.1.	Any provision of this Agreement intended to survive termination or expiry of this Agreement survives termination or expiry of this Agreement.

28.2.	The representations, warranties and indemnities contained in this Agreement survive its expiry or termination and the discharge of any of eWAY's or your obligations to the other and to other Members.


29.	Severability
29.1.	If any provision of this Agreement is or becomes wholly or partially invalid or unenforceable for any reason then from the date of the invalidity or unenforceability:-
(a)	If the offending provision can be read down in any way to make it valid and enforceable by any means without materially changing its effect, it must be read down or amended to the extent necessary to achieve that result; and
(b)	Otherwise:
(i)	the offending provision shall be severed from this Agreement and the remaining provisions will operate as if the severed section had not been included; and
(ii)	the parties must negotiate in good faith to replace the severed provision with one that is valid and enforceable and provides as near as possible the same effect as the severed provision.

(c)	Any provision of this Agreement, which is or becomes unenforceable for any reason will be ineffective or severable to the extent only of such unenforceability or invalidity and will not invalidate the remaining provisions.

30.	Notices
30.1.	All notices must be in writing and be given by any one or the following means:-
(a)	By delivering it to the address of the party specified in this Agreement.
(b)	By sending it to the address of the party by pre-paid mail. 
(c)	By emailing it to the address of the party and on the next business day giving it by either of the means set out (a) or (b)
(d)	By sending it by facsimile transmission to the facsimile number of the party.
(e)	The postal address, facsimile number and email address of each party is set out below.
30.2.	A notice is deemed to have been given
(a)	If given in accordance with 30.1 (a) the next business day after the day of delivery.
(b)	If given in accordance with 30.1(b) 3 business days after the date of posting.
(c)	If given in accordance with 30.1(c) or (d) the next business day after sending or transmission.

31.	Governing Law and Jurisdiction
	This Agreement is subject to the laws of New Zealand.
31.1	Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand.
[END]
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