This Commercial Entity User Agreement for Card Processing Services (“Commercial Entity Agreement” or “CEA”) is provided to all “Commercial Entities” or the equivalent under Association Rules (defined below) and that require a merchant account. (Each such entity or person receiving this document is hereby referred to as “Merchant”). This CEA constitutes Merchant’s separate legally binding contract for card processing between (1) Merchant, as a Commercial Entity; and (2) Member (which is Bank of New Zealand (BNZ). Member may terminate its provision of card processing services and enforce or rely on any term or provision of the Merchant’s Braintree Payment Services Agreement (“PSA”), all of which Member considers relevant are incorporated in this CEA by reference read as if references to Braintree are references to Member (and which will specifically include Intellectual Property, Data Security and Confidentiality). In this CEA “we”, “us” and “our” refer to Member. Any reference to the PSA shall mean the Braintree Payment Services Agreement made between Merchant and Braintree.
By accepting the Commercial Entity Agreement, Merchant agrees to the terms and conditions of this CEA and any documents incorporated by reference. Merchant further agrees that this CEA forms a legally binding contract between Merchant and Member. Any rights not expressly granted herein are reserved by Member. Descriptions of material amendments to this CEA will be provided as applicable. Any capitalised terms used in this CEA and not otherwise defined shall have the meanings set forth in the PSA.
1. Association Rules
2. Card Associations Visa Europe Ltd, Visa U.S.A., Inc. and Visa International ("Visa") and Mastercard International Incorporated ("Mastercard") (the "Associations") have developed rules and regulations (the "Association Rules") that govern their member banks and merchants in the procedures, responsibilities and allocation of risk for payments made through the Associations. By accepting this CEA, Merchant is agreeing to comply with all such Association Rules. Member may terminate its provision of card processing services and enforce or rely on any term or provision of the Association Rules, and to the extent such Association Rules are required to be incorporated into this CEA by the Association Rules or that Member considers are relevant, the Association Rules are incorporated in this CEA by reference.
3. Merchant's Refund Policy must be on Merchant's Website. If Merchant limits refund/exchange terms or other specific conditions for Card sales, Merchant's policy must be clearly provided to the cardholder prior to the sale and as part of your sale confirmation process. Proper disclosure would include wording that is prominently displayed and states "No refund, exchange only", or something substantially similar and includes any special terms. Note: qualifying your refund or exchange terms does not completely eliminate your liability for a refund because consumer protection laws and Association Rules frequently allow the cardholder to still dispute these items. In particular, by implementing Directive 97/7/EC many European Union member states will have distance selling regulations which allow a consumer to cancel its contract with the Merchant within a defined period and receive a refund.
4. Settlement of Transactions. Member shall pay to Merchant's nominated account the full amount of all valid and acceptable sales, refund and cash transactions (with any chargebacks) processed by Merchant in the applicable currency, which shall be New Zealand dollars unless Member agrees otherwise.
5. Settlement of Transactions. This CEA is effective upon the date Merchant accepts the terms and conditions set out herein and continues so long as Merchant uses the Braintree Service (“Services”) or until terminated by Merchant or Member, provided that those terms which by their nature are intended to survive termination (including without limitation, indemnification and chargeback obligations and limitations of liability) shall so survive termination. This CEA may be terminated by Member at any time based on a breach of any of Merchant’s obligations hereunder or for any other reason that Member or Processor deem exceptional.
This CEA will terminate automatically upon any termination of Merchant’s PSA.
6. Indemnification. Merchant agrees to indemnify, defend, and hold Member harmless from and against all losses, liabilities, damages and expenses (including legal fees, collection costs, any fines or other penalties imposed on Member by the Associations) which the Member and/or its affiliates or agents may suffer or incur arising from any breach of any warranty, covenant or misrepresentation by Merchant under this CEA, or arising as a result of any negligent or tortious conduct by Merchant or Merchant’s employees or agents, in connection with Card transactions or otherwise arising from Merchant’s provision of goods and services to cardholders or from any contravention of any legal requirements.
7. Arbitration. Any dispute with respect to this CEA between Merchant and Member, including a dispute as to the validity or existence of this CEA and/or this clause, shall be resolved by arbitration in Wellington, New Zealand, conducted in English by a single arbitrator under the Arbitration Act 1996. The parties agree to waive any right of appeal against the arbitration award. In the event of a failure by the parties to agree on the sole arbitrator within 30 days of one party calling upon the other to do so, one shall be appointed by the President of the New Zealand Law Society (or his/her nominee) at the request of either party.
8. Assignment/Amendments. This CEA may not be assigned by Merchant without the prior written consent of Member. Member may assign their rights under this CEA without Merchant’s consent and subject to the Association Rules. This CEA may be amended by Member as provided under the PSA (as if references in the Amendments clause to "this Agreement" were to "this CEA"), and otherwise shall not be modified in any respect without the express written agreement of the Member.
9. Warranty disclaimer. This CEA is a service agreement. We disclaim all representations or warranties, express or implied, made to Merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise of any services or any goods provided incidental to the services provided under this CEA to the extent permitted by law.
10. Logo Usage. In using each other’s logos and other trademarks, each agrees to follow the guidelines prescribed by the other, as notified by the parties to each other from time to time.
11. Limitation of Liability. Notwithstanding anything in this CEA to the contrary, in no event shall the parties hereunder, or their affiliates or any of their respective directors, officers, employees, agents or subcontractors, be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this CEA to the contrary, in no event shall we be liable or responsible for any delays or errors in our performance of the services caused by our service providers or other parties or events outside of our reasonable control, including Braintree. Notwithstanding anything in this CEA to the contrary, the parties' cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this CEA) and regardless of the form of action or legal theory and whether or not arising in contract or tort (excluding negligence and wilful misconduct) shall not exceed the total volume of all transactions, expressed as a N.Z. dollar amount, processed under this CEA. Nothing in this CEA shall exclude or limit any liability of any party for death or personal injury caused by negligence or fraud, deceit or fraudulent misrepresentation, howsoever caused.
12. Enforceability. No term of this CEA shall be enforceable by a third party and in particular a person who is not a party to this CEA has no rights under the Contracts (Privity) Act 1982 to enforce or enjoy any of the benefits of this CEA (being a person other than the parties and their permitted successors and assignees).
13. Governing Law. Governing law with respect to this CEA shall be the laws of New Zealand. Each party hereby submits to the non-exclusive jurisdiction of the courts of New Zealand.
14. Waiver. The failure of a party to assert any of its rights under this CEA, including, but not limited to, the right to terminate this CEA in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this CEA in accordance with its terms.
15. Relationship between the Parties; No Partnership or Agency; Independent Contractors. No agency, partnership, joint venture or employment relationship is created between Merchant and Member by way of this CEA. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Nothing in this CEA will be construed to constitute either party as the agent for the other for any purpose whatsoever. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party's behalf.
16. No Illegal Use of Services. Merchant will not access and/or utilise the Services for illegal purposes and will not interfere or disrupt networks connected with the Services.
17. Severability. Whenever possible, each provision of this CEA will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof will be prohibited by or determined to be invalid by a court of competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this CEA