IPROMISE ONLINE ESCROW SERVICES
IPROMISE ONLINE ESCROW SERVICES
TERMS / TERMS OF USE
These terms of use (Terms of Use) will govern the use of the Services, including for any Trade, and bind the Users.
Users agree to be bound by these Terms of Use for a Trade until either the Trade is complete or the Trade is cancelled, in each case in accordance with these Terms.
By setting up an account or accessing and using the Service, or engaging in a Trade, you become a User and are agreeing to these Terms as a User (and where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms).
Please read these Terms of Use carefully.
If you do not agree to these Terms, you are not authorised to access or use the Service, as a User or otherwise, and you must immediately stop doing so.
IPromise reserves the right to amend these Terms of Use from time to time (including to reflect updates in IPromise products and services or any changes in law). Such amendments will be effective and will govern any Trades agreed after the time at which IPromise uploads the amended Terms of Use on the Website and will govern any other use of the Services from the time of upload. It is the obligation of the Users to read and understand any amended Terms of Use.
Parties to an existing Trade (Client and Supplier) and IPromise may together agree to amend these Terms of Use relating to that Trade in writing.
Each User acknowledges that it cannot terminate these Terms of Use while Escrow Funds are held relating to a Trade that it is a party.
These Terms of Use (including part provisions) apply in each instance to the maximum extent permitted by law.
1. DEFINITIONS
In these Terms of Use:
Account means the designated bank account provided by Client and Supplier (respectively) in accordance with clause 10.1.
AML Act means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (as amended) and the applicable regulations, codes of practice and guidelines published by the relevant legislative supervisor/s relevant to IPromise.
Business Day means any working days Monday through Friday which are not legal holidays in Auckland or Wellington, New Zealand.
Chargeback means any claim by the Client through its credit card issuer and/or bank of a sort (howsoever called) known generally as a credit card “chargeback” being a refund claim of an amount paid by credit card.
Chargeback Amount means an amount equal to any amount successfully claimed as a Chargeback by the Client.
Client means the buyer or purchaser of Merchandise or Deliverables (as applicable) from a Supplier.
Commercial Invoice means the commercial invoice (including any quote that becomes a deemed commercial invoice in accordance with the terms of the quote) provided by the Supplier to the Client for the Trade.
Completed means completion of the Deliverables (either in full or completion of a certain amount of Deliverables contemplated as being completed to a certain Payment Milestone) as in accordance with the Trading Documents and Completion has an equivalent meaning.
Confidential Information means any information that is not public knowledge and that is obtained from another party in the course of, or in connection with, the provision and use of the Services (excluding feedback or reviews provided under clause 21). IPromise’s Confidential Information includes Intellectual Property owned by IPromise (or its licensors), including the Website and Platform.
Data means all data, content, and information (including personal information) owned, held, used or created by a User or on that User’s behalf that is stored using, or inputted into, the Service, Website, Platform or Underlying System.
Deliverables means the services or such like (other than Merchandise) being bought and sold by the Users in the transaction underlying the Trade.
Direct Payment means payment made directly from the Client to the Supplier and not with the use of the Escrow Services.
Escrow Account means the New Zealand dollar denominated bank account(s) at a registered and licensed New Zealand bank in which the Escrowed Funds are deposited and held by the Trustee with no duty to hold User funds in separate bank or trust accounts.
Escrow Fees means any fees charged by IPromise (other than Subscription Fees) to perform and deliver the Services (set out on IPromise’s Website or Platform or as agreed otherwise in writing between a User and IPromise, and as may be updated from time to time in accordance with these Terms).
Escrowed Funds means, subject to clause 2.3, all funds deposited by Users into the Escrow Account for a Trade.
Escrow Services means the services provided by IPromise under these Terms of Use relating to the use, by the Client and Supplier, of the Platform and specifically the Escrow Account in order to facilitate the making and receiving of payments for Merchandise or Deliverables (as applicable).
Force Majeure Event means an event or circumstance beyond the reasonable control of a party (that could not reasonably be avoided by taking reasonable steps or care), which results in or causes the failure of that party to perform any of its obligations under these Terms of Use, provided that lack of funds will not be considered a Force Majeure Event.
Initial Payment means any first payment in connection with a Trade paid by the Client into the Escrow Account in accordance with the Payment Milestones.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
IPromise means IPromise Ltd, a New Zealand registered company, company number 8200431.
IPromise Trade Screens means that section of the Platform where Users provide the commercial details agreed between the Users which are relevant to the Trade, which may include the Payment Milestones, the Trade Value, the Trading Documents and the Latest Shipment Date.
Latest Shipment Date means the date, agreed in the Trading Agreement and reflected in the IPromise Trade Screens, by which the Supplier is to have Shipped the Merchandise.
Losses and Expenses means actions, proceedings, losses, damages, liabilities, claims, demands, costs and expenses, including fines, penalties, legal and other professional fees and any amount paid by the person claiming Losses and Expenses to any person in good faith, having reasonably determined such payment to be due to that person and in that amount (whether it is or not), and any GST payable in relation to any such matter, circumstance or item (except to the extent that the person claiming Losses and Expenses obtains credit for such GST as input tax).
Merchandise means the merchandise (being the goods or products or otherwise, including a Deliverable) being bought and sold by the Users in the transaction underlying the Trade.
party means IPromise, the Client and the Supplier (or any one of them, as the context requires).
Passcode includes a User’s passcode or password or such like used to access the Platform (and any subsequently approved change to such) and includes a PIN.
Payment Milestones means the milestones (if any) agreed between the Users provided for in the Trading Documents and reflected in the IPromise Trade Screens that specify the timing of payments and the amounts payable from the Client to the Supplier either made to the Escrow Account or through Direct Payment.
personnel includes officers, directors, employees, contractors and agents of a party, but a reference to a User’s personnel does not include IPromise.
PIN means a personal identification number linked to a User’s use of the Platform (and any subsequent approved change to this personal identification number).
Platform means the IPromise platform and Website or through an application programming interface (API) integration on another website or information system.
Services means the Trade Management Services and Escrow Services and other services provided by IPromise on the Platform under these Terms of Use (and a Service means any of them or the Website or Platform service generally).
Shipped is used in these Terms of Use in accordance with clause 2.2.
Shipping Line means the shipping line or transport company (for transport including via sea, air or land) that issues transport documentation to the Supplier upon the Merchandise being Shipped.
Subscription Fee means (following any free trial offered by IPromise to a Supplier on the terms of such free trial) any monthly or annual (as applicable) subscription fees payable by a Supplier in connection with access (or an ability to access) Services (and as set out on IPromise’s Website or Platform, or as agreed otherwise in writing between a Supplier and IPromise, and as may be updated from time to time in accordance with these Terms). No Subscription Fees are payable by a Client.
Supplier means the seller or supplier of the Merchandise or Deliverables (as applicable) to the Client.
Trade means an individual transaction for which a Client and Supplier use the Services on the Platform.
Trading Agreement means any agreement entered into between the Users which governs the underlying transaction, trade or engagement for which the Users are seeking to utilise the Platform.
Trading Documents means those documents which the Supplier discloses in the IPromise Trade Screens for the Client’s approval and confirmation before the Merchandise is Shipped or commencement of the Deliverables (as applicable), and which must include the Trading Agreement and the Commercial Invoice, and as may be amended by mutual agreement.
Trade Management Services means any services provided by IPromise under these Terms of Use required in order for IPromise to provide the Escrow Services, which includes access to and use of the Platform and the communication tools within the Platform and Website.
Trade Value means the aggregate price the Client shall pay to the Supplier for the Merchandise or Deliverables (as applicable) under the Trade, as reflected in the Trading Documents (but does not include or take into account any Escrow Fees or Subscription Fees).
Trust Deed means the IPromise Escrow Services Trust Deed under which IPromise established an express trust in which legal title to the Escrow Account and the Escrowed Funds held therein from time to time is to be held by the Trustee, and as shall be made available to Users via the Platform.
Trustee means the trustee appointed under the Trust Deed.
Underlying Systems means the Website, Platform, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
User means either the Client or the Supplier (including their personnel, if any) and Users means both the Client and the Supplier (including their personnel, if any), and includes a user of the Website, Platform or Service.
Website means the website and software applications available via www.ipromise.co.nz.
You means a User and Your has a corresponding meaning.
2. INTERPRETATION
2.1. In these Terms of Use, unless the context otherwise requires:
2.1.1. headings are to be ignored in interpreting these Terms of Use;
2.1.2. the singular includes the plural (and vice versa) and a gender includes each other gender;
2.1.3. a word derived from a defined term has a meaning that corresponds with that defined term;
2.1.4. whenever the words “includes” or “including” are used in these Terms of Use, they are deemed to be followed by the words “without limitation”;
2.1.5. references to legislation include amendments to, and re-enactments of, that legislation; and
2.1.6. references to a party include that party’s successors and permitted assignees or transferees, in each case which shall be bound by these Terms of Use as if an original party to these Terms of Use.
2.2. Notwithstanding any other agreement between the Users or a User and a third party, including the Trading Agreement or any policies of insurance, Merchandise is “Shipped” for the purposes of these Terms of Use when the Merchandise is provided to the Shipping Line.
2.3. Notwithstanding the definition of “Escrowed Funds” in clause 1, reference in these Terms of Use to “Escrowed Funds” shall not, unless the context otherwise requires, include, or be a reference to, any Escrow Fees or Subscription Fees deposited or held (from time to time) in the Escrow Account.
2.4. These Terms of Use will not be construed against a party on the basis that that a party (or its lawyers) was responsible for preparing or drafting these Terms of Use.
3. IPROMISE TO PROVIDE ESCROW SERVICES
3.1. If the Users elect to deposit funds for the Trade into the Escrow Account, whether or not the Users also agree Direct Payments, they agree to IPromise and the Trustee holding and retaining the funds as Escrow Funds in accordance with these Terms of Use and the Trust Deed.
3.2. If the Users elect to pay for the Trade exclusively by Direct Payment (if this service is available and operational within the Platform at the relevant time), IPromise will not provide the Escrow Services and, unless the context otherwise requires, any obligations of IPromise in these Terms of Use with respect to the Escrow Services shall not apply to the Trade. IPromise shall, if the Users elect to proceed exclusively with Direct Payment, grant the Users access to and a right to use the Platform (but excluding the Escrow Services) in order for the Users to utilise the Platform to facilitate their proposed transaction.
3.3. IPromise shall at all times:
3.3.1. comply with these Terms of Use and the Trust Deed;
3.3.2. comply with New Zealand law;
3.3.3. act in good faith and with honest intent; and
3.3.4. not withdraw, pay or permit to be withdrawn or paid to any person any part of the Escrow Funds, except in accordance with these Terms of Use or as may be required by law.
3.4. IPromise’s provision of a Service to a User is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person. Users simply acquire a licence to use the Platform which is a non-exclusive, non-transferable, revocable licence, in accordance with these Terms of Use
3.5. The parties acknowledge that the Platform is accessed via the internet. Subject to internet connectivity and this clause 3.5, IPromise shall use reasonable efforts to ensure the Service is available during normal business hours in New Zealand and on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable including to permit maintenance or other development activity to take place, or in the event of Force Majeure or an issue with an Underlying System (including third party systems). In the event of planned maintenance, IPromise shall use reasonable efforts to notify a User on the Platform or by email in advance with details of the planned maintenance.
3.6. Through the use of information systems (including web services and APIs), the Service interoperates with a range of third party service features. IPromise does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, IPromise may cease to make available that feature to a User. To avoid doubt, if IPromise exercises its right to cease the availability of a third party feature, Users are not entitled to any refund, discount or other compensation. Where there is a change of law that is detrimental to IPromise or its business, IPromise may cease to make available the Platform.
3.7. Users acknowledge and agree that certain product and service delivery (including, payment transactions and alerts via SMS or email) rely, at least in part, on third parties and third party products and services that are independent of us and over which IPromise may have no or limited control and which may be the provided on separate terms and conditions.
3.8 IPromise is obliged to use industry standard security protocols (including encryption) to protect User data and the Website and Platform. Despite all reasonable efforts by people, Users acknowledge that no internet connected software or device can be 100% safe or secure and IPromise does not warrant such or that the Service is free of viruses or other harmful code, uninterrupted or error free.
3.9. IPromise requires user identification and a password to access the Platform and Users must not give their password to any other person and must protect it from being used or discovered by anyone else. Users must immediately notify IPromise of any (or suspected) unauthorised use of their password or any other breach or suspected or attempted breach of security or a User account. Without limitation, each PIN and Passcode should be unique and not readily associated with the User or a common or repeated sequence or pattern. Each PIN and Passcode must be kept private and not disclosed to anyone. Without limitation, a User must not record its PIN in any way that may be read or decoded with reasonable effort or allow anyone to watch as the PIN or Passcode being entered. Each User must provide notice to IPromise immediately if:
3.9.1. someone gains access to a User account details or they are otherwise compromised;
3.9.2. the security of a PIN or Passcode is breached in any way;
3.9.3. there are reasonable grounds to believe any of the above might occur or might have occurred; or
3.9.4. if a User suspects, or have reason to suspect, that a User account details or may have been used by someone else without that User’s authority.
3.10. Nothing conveyed or provided by IPromise should be considered financial advice (or legal, accounting or tax advice) or a recommendation for a product or course of action or otherwise. Any testimonial provided on the Platform is simply an opinion of the third party person providing it and it shall create no guarantee or warranty and is not to be relied upon to predict anything relevant to a User’s specific situation. Users are responsible for whatever a User may do with the information that User obtains from IPromise. IPromise is not a licensed financial advice provider and does not give any financial advice. IPromise may provide information (for example, around the cost and terms of use) but without providing (other than the procedure for doing so) any recommendation or opinion in respect of acquiring or disposing of a Service. Any recommendation or opinion relating to a Service or the Platform relates solely to these types of products generally and as a class of financial products. IPromise may pass on the financial advice of another person without holding out that advice as IPromise’s own advice. IPromise may also recommend that a person consult a financial adviser. IPromise does not, directly or indirectly, hold out that it is a non-bank deposit taker, licensed or otherwise. IPromise, however, may maintain registration on the Financial Service Providers Register (NZ).
4. IPROMISE TRADE SCREENS
4.1 The Users shall complete, in full, the required details in the IPromise Trade Screens.The Users agree and acknowledge that:
4.1.1. the terms inserted into the IPromise Trade Screens will, in all material respects, accurately reflect any relevant terms agreed between the Users as detailed in the Trading Documents; and
4.1.2. IPromise may rely on the details provided and confirmed in the IPromise Trade Screens.
4.2. If details in the IPromise Trade Screens:
4.2.1. conflict with (due to error or otherwise) the terms of the Trading Documents; or
4.2.2. no longer reflect the arrangement between the Users or a variation is permitted and sought in accordance with the Trading Agreement, the Users shall as soon as possible correct or amend such details (and agree such correction) within the IPromise Trade Screens. If there is any conflict between these Terms of Use, the IPromise Trade Screens, the Trading Agreement and/or the Commercial Invoice, then (except to the extent expressly stated otherwise in these Terms of Use) the Trading Agreement shall take first priority, the Commercial Invoice shall take second priority, the Terms of Use shall take third priority, and the IPromise Trade Screens shall take fourth priority.
4.3 Notwithstanding any provision in any other agreement between the Users (including the Trading Agreement), the Users agree that any action taken by the Users within the Platform to amend the terms of the Trade (including with respect to the Latest Shipment Date, the Trade Value, or the Trading Documents) shall be, if agreed between the Users utilising the functionality of the Platform or otherwise done in accordance with these Terms of Use, to the maximum extent permitted by law, a legally binding amendment to the Trading Agreement and/or Commercial Invoice (as applicable).
5. AML ACT CUSTOMER DUE DILIGENCE AND VERIFICATION
5.1 The Users acknowledge that IPromise is a financial institution under the AML Act in New Zealand. As an entity subject to the AML Act, IPromise may be required to complete customer due diligence on certain Users, which may include verification of User’s information. If applicable, this information verification may need to be completed before a User can use the Services.
5.2 In order for IPromise to comply with its obligations under the AML Act, Users authorise and approve IPromise (and its authorised agents) to undertake customer due diligence and verification of the information provided by Users to IPromise and any other thing necessary or desirable for IPromise to do in seeking to reasonably comply with the AML Act. In order to comply with these obligations, IPromise (or its authorised agents) may be required to (without limitation):
5.2.1. provide Users’ information to third parties in order for it to complete, to a satisfactory level, the required customer due diligence; and
5.2.2. collect and retain the Users’ information for ongoing verification purposes (including periodic customer due diligence).
5.3 Users agree to work in good faith with IPromise in order for it to comply with its obligations under the AML Act. Users agree to provide, in a timely and efficient manner, any information requested by IPromise in order for it to comply with its obligations under the AML Act.
6. LIMITATION ON SERVICES
6.1 The Services are only available in New Zealand and:
6.1.1. to Users in New Zealand;
6.1.2. to Users that can legally use the Services;
6.1.3. for lawful Merchandise; and
6.1.4. for Merchandise or matters not otherwise excluded in clause 7.
6.2 Despite this clause 6 or any other clause of these Terms of Use, IPromise in its sole discretion can limit access to the Website, Platform, Services or Underlying Systems.
7. PROHIBITED CONDUCT
7.1. Users shall not use the Services:
7.1.1. to trade in Merchandise for which, in any of the jurisdictions in which either the Client and Supplier are incorporated or registered, it is illegal or a criminal offence to trade in, hold or be in possession of (whether physically or through an agent) such Merchandise;
7.1.2. for trading undertaken for an illegal purpose;
7.1.3. for trading in any Merchandise which, in the reasonable opinion of IPromise, could be considered obscene, immoral or objectionable, defamatory, harassing, threatening, bullying, harmful, or unlawful in any way or a risk to the reputation of IPromise;
7.1.4. for trading in:
7.1.4.1. firearms or munitions; or
7.1.4.2. illegal drugs and controlled substances;
7.1.5. to facilitate the transfer of, or to settle or close a transaction which results inthe transfer of any rights or title to or interests in:
7.1.5.1. any real property, including land and real estate;
7.1.5.2. financial products, including shares or other securities; or
7.1.5.3. the business and undertaking of a going concern;
7.1.6. for trading with, or between, persons or entities which are the subject of an international sanctions regime;
7.1.7. for any transactions being used to support money laundering, financing of terrorism or tax evasion;
7.1.8. to undermine the security or integrity of the Website, Platform, Services, or Underlying Systems;
7.1.9. to use, or misuse, the Website, Platform, Services or Underlying Systems in any way which may impair the functionality of such, or impair the ability of a User to use such;
7.1.10. to attempt to gain unauthorised access to any materials or data other than that generally available on the Website or Platform;
7.1.11. to transmit, or input into the Website or Platform or Underlying Systems, any files or other thing that may damage any other person’s devices or software, or content that may be offensive, or material or data in violation of any law or in violation of any Intellectual Property Right or privacy right of a third party;
7.1.12. to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any software used on the Website, Platform or Underlying Systems;
7.1.13. to impersonate another person or misrepresent authorisation to act on behalf of others or IPromise;
7.1.14. outside of New Zealand;
7.1.15. for any unlawful purposes (including breach of the Unsolicited Electronic Messages Act 2007); or
7.1.16. to resell or make available the Service to any third party, or otherwise commercially exploit the Service other than as reasonably intended by these Terms.
7.2. In addition to this clause 7, IPromise in its sole and absolute discretion may refuse a User’s access to the Services if IPromise believes on reasonable grounds that the User or the proposed Merchandise is suspicious or may violate the law of a jurisdictions in which any of the Client and Supplier or IPromise incorporated or registered. IPromise may in its sole discretion refuse to complete any Trade or process or make or receive a payment where it has reason to believe that the Transaction is unauthorised or unlawful or in breach of these Terms of Use.
7.3. Each Supplier must use the Service in accordance with these Terms solely for its own internal business purposes reasonably in connection with facilitating trade payments.
7.4. A breach of any of these Terms by a User’s personnel is deemed to be a breach of these Terms by that User.
7.5. Each User is responsible for procuring all licences, authorisations and consents required for that User and its personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
7.6. Each User shall keep all Confidential Information relating to the other party confidential and secure and shall not use or disclose such Confidential Information to a third party, other than to perform its obligations or exercise or enforce its rights under these Terms of Use, or with the prior written consent of the other party, or as required by law, or to its professional advisers. Where a party needs to disclose the other party’s Confidential Information to its personnel or professional advisors, it shall do so on a ‘need to know’ basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of and bound by reasonable confidentiality undertakings. Each User acknowledges that the other party and IPromise may (without liability) disclose Confidential Information and personal information to any bank and/or credit card issuer in the event of a Chargeback.
7.7. Without limiting any other right or remedy available to IPromise, IPromise may restrict or suspend a User’s access to and use of the Service and/or delete, edit or remove the relevant Data if IPromise considers that a User or any of its personnel have:
7.7.1. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
7.7.2. used, or attempted to use, the Service:
7.7.2.1. for improper purposes; or
7.7.2.2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
7.7.3. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
7.7.4. otherwise materially breached these Terms.
8. USERS’ REPRESENTATIONS AND WARRANTIES
8.1. The Users represent and warrant that:
8.1.1. all information provided to IPromise relating to the User’s use of the Services, including information within the IPromise Trade Screens, is true, accurate, complete and not misleading;
8.1.2. the person (or persons) entering into or completing registration on the Platform has the necessary authority from the User to do so and to bind theUser to the terms of these Terms of Use;
8.1.3. any person (or persons) entering into or completing registration on the Platform (and therefore entering into these Terms of Use for and on behalf of the User) is a natural person of at least 18 years of age; and
8.1.4. if they arrive at the Platform through links or through a third party, that they authorise IPromise to receive and use, and that third party to transfer, relevant data to IPromise in connection with User’s use of the Platform.
9. PAYMENT OF FUNDS
9.1. Once the IPromise Trade Screens are completed and agreed by the Client and Supplier and submitted, IPromise will provide payment instructions to the Client, which may include both Direct Payment and payment of Escrowed Funds (and, if applicable, any Escrow Fees) into the Escrow Account.
9.2. If the Users elect Direct Payment, the Supplier shall update the payment status in the IPromise Trade Screens as soon as practicable once payment has been received into the Supplier’s Account.
9.3. The Client shall update the payment status in, and upload proof of payment (where requested by Supplier) to, the IPromise Trade Screens as soon as practicable once each payment for a Trade has been completed (whether by Direct Payment or Escrowed Funds in the Escrow Account).
9.4. Upon receipt of cleared Escrowed Funds into the Escrow Account (to be paid by a User in clear funds), IPromise will, as soon as reasonably practicable:
9.4.1. update the payment status for Escrowed Funds on the IPromise Trade Screens; and
9.4.2. notify both the Client and Supplier that the funds have been received and cleared into the Escrow Account.
It is at the Supplier’s discretion and risk as to whether it chooses to wait for the notification of received and cleared funds before proceeding with the Trade. Where a Client makes payment of Escrowed Funds by credit card, Supplier acknowledges the risk of a Chargeback and Supplier gives irrevocable instructions to IPromise to repay the Client any Chargeback Amount from the Escrowed Funds, if applicable.
9.5. The Initial Payment and any subsequent Payment Milestone amount shall include any amounts required under the relevant Payment Milestone (and, if applicable, any Escrow Fees payable to IPromise for the Trade). In the event of a Chargeback, Client shall remain liable to pay any amounts required under the relevant Payment Milestone and the Client acknowledges that the outcome of a Chargeback is not determinative of any dispute between Client and Supplier.
9.6. The Client shall transfer any funds for a Trade (whether by Direct Payment or into the Escrow Account) in New Zealand Dollars and shall be responsible for any associated currency exchange fees, credit card related fees, or wire transfer fees imposed by a third party payments provider.
9.7. If the Client transfers to the Escrow Account insufficient funds to meet the terms of a Payment Milestone or to comply with the payment terms agreed in the IPromise Trade Screens, the Supplier or IPromise will promptly notify the Client, and the Client shall immediately upon receiving such notification transfer to the Escrow Account any additional funds required to meet the applicable Payment Milestone or to comply with the terms set out in the IPromise Trade Screens (or pay by Direct Payment, if applicable). Where the Client has paid by credit card and claimed a Chargeback, Client shall remain liable to transfer to the Escrow Account any additional funds required to meet the applicable Payment Milestone or to comply with the terms set out in the IPromise Trade Screens (or pay by Direct Payment, if applicable).
10. ACCOUNTS AND PAYMENTS
10.1. Each of the Client and Supplier must designate a New Zealand bank account held with a registered and licensed bank from which payment of the Escrowed Funds will be received, or paid out to, by IPromise. Prior to IPromise accepting the Account, IPromise may, if it considers it necessary or if required under applicable law or regulation, seek to verify the Client’s or Supplier’s Account to confirm it is owned and operated by the User. IPromise is under no obligation to accept payment received from, or pay out to, an account other than the User’s designated Account (other than to accept payment by credit card where available per clause 10.5)..
10.2. All payments made by IPromise under a Trade will be made to the Accounts of the Client and Supplier recorded in the Website and in New Zealand Dollars. Any foreign exchange requirements or fees will be the responsibility of the receiver of the payment (whether Client or Supplier).
10.3. In the event that a Client or Supplier is overpaid by IPromise for any reason, the Client and Supplier agree to immediately return the funds to IPromise.
10.4. The Client and Supplier shall hold IPromise, and its personnel and affiliates, harmless for any Losses and Expenses that may arise due to currency conversion.
10.5. All payments under these Terms of Use are to be made by wire transfer or direct credit to or from New Zealand bank accounts (or credit card where credit card payment is available as an option to the User on the Platform).
10.6. IPromise shall not be responsible for any delay in the transfer of the Escrowed Funds to the Supplier (or, for a cancellation of a Trade or otherwise, to the Client) if, for any reason, IPromise’s method of payment to the relevant Account is not accepted by the relevant User’s bank or there is a delay (for whatever reason) by that bank in clearing the funds.
10.7. Where Escrowed Funds are “unclaimed money” within the meaning of the Unclaimed Money Act 1971, IPromise and the Trustee may transfer the Escrowed Funds to the Crown as “unclaimed money” accordance with the Unclaimed Money Act 1971.
10.8. Where a Supplier remains registered with IPromise and is using the Website and Platform regularly with Clients, to a level set by IPromise from time to time, IPromise grants Supplier a revocable non-transferable non-exclusive licence to use the IPromise Registered Supplier logo in its marketing materials.
11. ESCROW ACCOUNT
The Users agree and acknowledge that legal title to the Escrow Account (and the Escrowed Funds held therein from time to time) is, under the terms of the Trust Deed, held in the name of the Trustee.
12. VARIATION TO TRADE VALUE
12.1. If at the time of an agreed release of Escrowed Funds to Supplier the funds paid by Direct Payment (if any) plus those held as Escrowed Funds in the Escrow Account amount to, in aggregate, a sum:
12.1.1. less than the varied Trade Value or the amount payable at the time of a Payment Milestone; or
12.1.2. more than the varied Trade Value or the amount payable at the time of a Payment Milestone,
the Users agree that:
12.1.3. if clause 12.1.1 applies:
12.1.3.1. IPromise shall release, to the Supplier, all Escrowed Funds; and
12.1.3.2. the Client shall immediately transfer to the Supplier, by Direct Payment (or as otherwise agreed between the Users), the funds necessary in order to make up the difference between the funds currently held by the Supplier for the Trade (including any funds being transferred from the Escrow Account under clause 12.2.1.1) and the varied Trade Value or the amount payable at the time of a Payment Milestone,
12.1.4. if clause 12.1.2 applies:
12.1.4.1. IPromise shall release to the Supplier the amount of Escrowed Funds required in order for those Escrowed Funds plus any Direct Payment to equal the varied Trade Value or the amount payable at the time of a Payment Milestone; and
12.1.4.2. (where the parties agree that the final payment to Supplier in connection with a Trade has been made) the remaining Escrowed Funds shall be transferred to the Client.
12.2. Any assessment under this clause 12 of the total Escrowed Funds held in the Escrow Account shall exclude, from the total Escrowed Funds figure, any funds paid by Direct Payment, any Chargeback Amount, and any funds that the Supplier has agreed to contribute to any Escrow Fees for the Trade.
13. ESCROWED FUNDS
13.1. The Escrowed Funds will remain in the Escrow Account until they are released in accordance with these Terms of Use.
13.2. Neither the Client nor the Supplier shall, in any circumstances, have any right to any interest which is earned as a result of the Escrowed Funds being held in the Escrow Account and the Users irrevocably waive any right to such interest. Title to this interest shall, upon it being earned in the Escrow Account, vest in, and be the sole property of, IPromise, and IPromise shall be entitled to transfer such funds from the Escrow Account into its operational bank accounts. IPromise shall be liable for all income taxes on interest earned for IPromise’s account.
14. TRADING DOCUMENTS
14.1. Prior to the Merchandise being Shipped, or the Supplier commencing delivering the Deliverables, the Supplier shall upload copies of the Trading Documents to the IPromise Trade Screens. IPromise will, as soon as reasonably practicable, notify the Client when a Trading Document is uploaded to the IPromise Trade Screens. The Client will review the Trading Documents and either:
14.1.1. confirm the Trading Documents through the IPromise TradeScreens; or
14.1.1. notify the Supplier of any issues with the Trading Documents.
14.2. If the Client fails to either confirm the Trading Documents or notify the Supplier of any issues with the Trading Documents within the earlier of the date of paying the Initial Payment and the date that is five (5) Business Days after the Trading Documents are uploaded onto the IPromise Trade Screens (other than because of a Force Majeure Event), the Client shall be deemed to have confirmed the Trading Documents as uploaded on the IPromise Trade Screens (absent manifest error).
15. SHIPPING AND TRACKING OF MERCHANDISE
15.1. If the Users agree to utilise a method of transporting the Merchandise which allows for online tracking information, the Users may enter the Shipping Line details, tracking website, and tracking number or reference (or other necessary information) into the IPromise Trade Screens following release of the Merchandise to the Shipping Line.
15.2. This clause 15 shall only apply if such services are available and operational on the Platform.
15.3. Once the Merchandise is Shipped, the Supplier shall:
15.3.1. Update the IPromise Trade Screens to show the Merchandise has been Shipped, enter a description of the transport provider, and expected delivery date.
15.3.2. If applicable, enter the tracking details for the delivery.
15.4. The Client agrees that, if Merchandise delivery tracking is available, the Shipping Line tracking information shall be prima facie evidence of delivery.
16. RELEASE OF ESCROWED FUNDS
16.1. Where Client and Supplier both agree to the release of a particular portion or all of the Escrowed Funds, and IPromise is reasonably satisfied that each has confirmed the agreement in writing (including via the Platform), IPromise will release those funds to the relevant User. IPromise may also release Escrowed Funds consistent with a dispute resolution judgement or award (or such like) relating to the Trade (including any Chargeback Amount). In each case, each of Client and Supplier irrevocably authorises and instructs IPromise to release the Escrowed Funds in such manner.
16.2. No later than two (2) Business Days after the Client approves the release of the Escrowed Funds to Supplier, IPromise shall transfer the Escrowed Funds to the Supplier into the Supplier’s Account.
16.3. Where Client and Supplier are not in agreement around the release of Escrowed Funds (or a dispute resolution judgement or award or such like relating to the Trade is not available), IPromise will deal with the Escrowed Funds in accordance with the remainder of these Terms of Use.
17. WHERE USERS DO NOT AGREE
17.1. The Users may agree in writing to instead have this clause 17 prevail over any conflicting terms in Trading Documents. Otherwise, subject to conflicting provisions of the Trading Documents, at least within five (5) Business Days of the date on which either the Merchandise has been delivered to Client or the date on which the Deliverables were Completed (including relating to a Payment Milestone) having been notified by the Supplier in writing of such Completion (as applicable) (the Release Period) the Client shall:
17.1.1. take all steps necessary to release (at least equivalent to the undisputed amount) the relevant Escrowed Funds to Supplier by taking the necessary Platform action; and
17.1.2. but only to the extent that there is any disputed amount:
17.1.2.1. subject to clause 17.1, issue a Dispute Notice under clause 18; or
17.1.2.2. follow any relevant dispute provisions in Trading Documents to dispute any amount payable (which shall in all instances prevail to the extent of conflict) and meet any strict timeframes provided for therein and with written notice to the Supplier and IPromise with relevant details in reasonable detail.
18. DISPUTE NOTICE
18.1. This clause 18 shall be read subject to any dispute terms provided for in Trading Documents (which shall in all instances prevail over this clause to the extent of conflict). The Users may otherwise agree in writing to instead have this clause 18 prevail over any dispute terms provided for in Trading Documents.
18.2. If upon receipt of the Merchandise or upon the Deliverables being Completed (as applicable) but before performing the actions in clause 17 necessary to release the undisputed Escrowed Funds to the Supplier, the Client, acting reasonably and in good faith, disputes that an amount is payable to Supplier or has a claim against the Supplier in respect of the Merchandise or Deliverables (as applicable) under the Trading Documents, the Client shall, within the Release Period, provide written notice (Dispute Notice) to the Supplier and IPromise setting out:
18.2.1. The amount in dispute and the amount not in dispute;
18.2.2. The specific issue or claim that User has, with reference to the Trading Documents and/or applicable law, and
18.2.3. What specific things User proposes occur for Client to not dispute the disputed amount.
If any other dispute arises between Users, a User may give a Dispute Notice to the other User setting out the matters above in reasonable detail.
18.3. The Users shall work together and in good faith to resolve the Dispute Notice dispute with a view to enable the Trade to proceed to completion. If resolved in such way, the Users irrevocably instruct IPromise to deal with any Escrowed Funds in accordance with the terms mutually agreed. If the Dispute Notice dispute is not resolved within ten (10) Business Days of the date on which the User received the Dispute Notice, either User may by notice in writing (the Mediation Notice) to the other User refer the Dispute Notice dispute to mediation in accordance with clause 19.1. The Users shall at the same time provide IPromise with a copy of the Mediation Notice.
18.4. During the period from the date on which IPromise is notified of a Dispute Notice dispute until the date on which the Dispute Notice dispute is resolved between the Users or a binding decision from the arbitrator is made, IPromise will retain any disputed Escrowed Funds in the Escrow Account and will not transfer the disputed funds to either User. If the Dispute Notice dispute is resolved by a binding decision of an arbitrator, the Users irrevocably instruct IPromise to deal with any Escrowed Funds in accordance with the terms of any such decision.
19. MEDIATION
19.1. Mediation for Dispute Notice Dispute
19.1.1. This clause 19.1 shall be read subject to any dispute terms provided for in Trading Documents (which shall in all instances prevail over this clause to the extent of conflict). The Users may otherwise agree in writing to instead have this clause 19.1 prevail over any dispute terms provided for in Trading Documents.
19.1.2. On receipt of the Mediation Notice, the recipient will either agree to proceed with mediation or agree to attend a preliminary meeting with the mediator to discuss whether mediation would be helpful in the circumstances. The Users will agree on a suitable person to act as mediator or (failing agreeing a suitable person with five (5) working days) will ask the Arbitrators’ and Mediators’ Institute of New Zealand Inc. to appoint a mediator. The mediation will be in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc.
19.1.3. The mediation shall be terminated by –
19.1.3.1. The signing of a settlement agreement by the Users; or
19.1.3.2. Notice to the Users by the mediator, after consultation with the Users, to the effect that further efforts at mediation are no longer justified; or
19.1.3.3. Notice by one or more of the Users to the mediator to the effect that further efforts at mediation are no longer justified; or
19.1.3.4. The expiry of thirty (30) working days from the mediator’s appointment, unless the Users expressly consent to an extension of this period.
19.1.4. If no mediation is agreed to or if the mediation should be terminated as provided in 19.1.3.1 – 19.1.3.4, either User may by notice in writing (the Arbitration Notice) to the other User refer the Dispute Notice dispute to arbitration in accordance with clause 19.2. The Users shall at the same time provide IPromise with a copy of the Arbitration Notice.
19.2. Arbitration for Dispute Notice Dispute
19.2.1. This clause 19 shall be read subject to any dispute terms provided for in Trading Documents (which shall in all instances prevail over this clause to the extent of conflict). The Users may otherwise agree in writing to instead have this clause 19 prevail over any dispute terms provided for in Trading Documents.
19.2.2. Any Dispute Notice which has been referred to arbitration in accordance with clause 19.1 will be finally settled by arbitration in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc by a sole arbitrator and the Users agree to opt-in to the AMINZ Expedited Arbitration provisions and neither User shall be entitled to bring any legal proceedings in respect of a Dispute Notice in any court and agree to waive any rights to appeal the arbitral decision (either on fact or law).
19.2.3. The arbitrator will be a person the Users may agree upon in writing within ten(10) Business Days of the date on which the Arbitration Notice is delivered to the User not initiating the arbitration proceedings or, failing such agreement being reached, will be the person appointed, at the request of either User, as arbitrator by the President for the time being of the Arbitrators’ and Mediators’ Institute of New Zealand Inc.
19.2.4. The arbitrator shall, in his or her sole discretion, decide the matters set out in clause 18.5 following such consideration as the arbitrator considers necessary, including with respect to the:
19.2.4.1. facts pertinent to the Dispute Notice;
19.2.4.2. principal location of the Users;
19.2.4.3. predominate language in which the Users engage in trade; and
19.2.4.4. law under which the Dispute Notice is governed.
19.2.5. The arbitrator must:
19.2.5.1. decide an appropriate commencement date for the arbitration;
19.2.5.2. decide the appropriate procedures by which the arbitration will proceed;
19.2.5.3. decide the location in which the arbitration will be held or the telecommunications technology which is appropriate where the Users are unable to meet in one location;
19.2.5.4. the language the arbitration is to be held in or the translation technology necessary in order for both Users to fully participate in and understand the arbitration proceedings (with the presumption that the language of the arbitration shall be in English language); and
19.2.5.5. the law which shall apply to the substance of the Dispute Notice (with the presumption that the law shall be New Zealand law).
20. DEDUCTION OF ESCROW FEES
20.1. Unless otherwise agreed between the Client, Supplier and IPromise, the Supplier agrees to pay all Escrow Fees for the Services as outlined in the IPromise Trade Screens on acceptance of the Trade.
20.2. The Supplier (and Client, as applicable) irrevocably authorise IPromise to deduct from the funds held in the Escrow Account for the Trade any Chargeback Amount and the Escrow Fees (or an amount equal to the Escrow Fees) prior to transferring the Escrowed Funds to the Supplier (or the Client in case of cancellation of the Trade or otherwise). Once paid into the Escrow Account, the Escrow Fees are irreversible and non-refundable.
20.3. For the avoidance of doubt, regardless of whether the Trade is cancelled or not completed (for any reason) the Supplier shall (unless agreed otherwise in writing) remain responsible to pay the entirety of the Escrow Fees due to IPromise under the Trade (and any exercise of set-off under these Terms of Use by IPromise does not serve to limit any IPromise right to recovery).
21. RIGHT TO CANCEL A TRADE
21.1. The Trade may be cancelled, for any reason:
21.1.1. by the Client or the Supplier at any time prior to the Initial Payment being made for the Trade; or
21.1.2. by agreement in writing (whether by using the tools within the IPromise Trade Screens or otherwise) between the Users at any time before the Trade is completed and the Escrowed Funds released by IPromise in accordance with these Terms of Use.
21.2. Except for:
21.2.1. a Dispute Notice dispute addressed in accordance with clauses 17, 18 and/or 19 (as applicable); or
21.2.2. by agreement under clause 20.1.2, neither User shall have any right to cancel a Trade after the Initial Payment is made for the Trade.
21.3. If cancellation of the Trade under these Terms of Use occurs after the Initial Payment, and the Initial Payment was made into the Escrow Account as Escrowed Funds, IPromise shall, within two (2) Business Days of receiving notice of cancellation, transfer those Escrowed Funds to the mutually agreed party/parties. If a Direct Payment has already been made to the Supplier, it is the responsibility of the Users to agree a refund (or otherwise) and IPromise shall bear no responsibility for (nor be obliged to assist in any way with) such Direct Payment arrangements.
21.4. If a Trade is cancelled in accordance with these Terms of Use the Users agree that from cancellation:
21.4.1. the Users irrevocably instruct IPromise to take those actions set out in clause 20.3 (if applicable);
21.4.2. other in respect of Escrowed Funds, the Users have no claim (for any Losses and Expenses against IPromise;
21.4.3. IPromise is under no obligation to assist the Users in resolving any dispute (if applicable) between the Users; and
21.4.4. any ongoing dispute between the Users (whether with respect to returning or onward delivery of the Merchandise, or regarding the Deliverables, or otherwise) shall be governed by the Trading Documents and these Terms of Use shall only apply in so far as they are necessary for IPromise to enforce any surviving rights it may have against the Users.
21.5. While continuing to hold the Escrowed Funds on the terms of the Trust Deed (until the parties agree otherwise) IPromise may, in its sole discretion suspend or terminate use of the Services at any time, without notice and for any reason.
22. FEEDBACK
22.1. After the Trade is completed or cancelled, each of the Client and Supplier may (where such feature is available and operational) upload to the Platform its feedback on the Merchandise or Deliverables (as applicable) and its experience trading with the other party.
22.2. IPromise may publish such feedback and experience on the Platform as it is received by it and has no obligation or duty to review or verify the accuracy or fairness of such. IPromise may (but is not obliged to) edit any feedback in order to fix obvious typos or to address any manifest errors. IPromise may (but is not obliged to) consider feedback from the other party in exercising its right to edit that received.
22.3. Neither Client or Supplier shall have any claim whatsoever against IPromise with respect to that received or the publication of such.
23. IPROMISE’S LIMITATION OF LIABILITY
23.1. IPromise will have no duties, responsibilities or obligations (and provides no warranties or representations) except as expressly provided in these Terms of Use. Neither IPromise nor its personnel (Protected Persons) will be liable (including in tort, or for conversion, or breach of statutory duty) for any act or omission in connection with these Terms of Use or the Escrowed Funds, other than to the extent it constitutes fraud, wilful misconduct, dishonesty or gross negligence of IPromise (having regard to the factors set out in section 44(2) and (3) of the Trusts Act 2019). IPromise is not obliged to:
23.1.1. take account of the terms of any agreement to which it is not a party, including the Trading Documents or any insurance arrangements between the Users; or
23.1.2. enquire as to compliance by either User, or ensure compliance by either User (and will have no liability in the event of non-compliance by either User), with the provisions of the Trading Documents or these Terms of Use; or
23.1.3. enquire whether any written directions under these Terms of Use have been given in accordance with any relevant provisions of the Trading Documents or to determine the correctness of any matter stated within any written directions; or
23.1.4. investigate the application of any funds paid by it to any person pursuant to these Terms of Use; or
23.1.5. investigate the authority of any person providing notice, information or instructions purported to have been given by a User; or
23.1.6. police the affairs of Client or Supplier or verify the credentials of any User (and IPromise shall not be deemed to have endorsed any User); or
23.1.7. take any steps to prevent cyber security breaches beyond those steps generally taken and reasonably expected in the industry.
23.2. Other than in respect of the obligation to always hold Escrowed Funds on the terms of these Terms of Use, the maximum liability of IPromise for the Trade under these Terms of Use or in connection with (in any way) IPromise providing the Services will be limited to the greater of:
23.2.1. the sum of any Escrow Fees for the Trade (if any);
23.2.2. Subscription Fees paid by Supplier (if any) during the term of the Trade;
23.2.3. any Chargeback Amount; and
23.2.4. $10.
23.3. IPromise does not endorse the website or links of any other party or assume any responsibility or liability for the accuracy of any material contained on any such website or via such link or for any infringement of Intellectual Property Rights and in no event will IPromise be liable for any act or omission of any third party, any payment system, any third party service provider, any provider of telecommunications services, internet access or computer equipment or software, any mail or delivery service or any payment or clearing house system, or for any circumstances beyond IPromise’s reasonable control.
23.4. Each User agrees and represents that it is acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
23.4.1. to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
23.4.2. it is fair and reasonable that the parties are bound by this clause 22.4.
23.5. Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, IPromise’s liability for any breach of that condition or warranty is limited (if not limited further by other provisions in these Terms of Use), at IPromise’s option, to:
23.5.1. supplying the Service again; and/or
23.5.2. paying the costs of having the Service supplied again.
23.6. Except in the case of fraud, IPromise shall not be liable to a User or to a third party in connection with these Terms for any:
23.6.1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
23.6.2. consequential, indirect, incidental or special damage or Losses and Expenses of any kind.
23.7. For the sole benefit of IPromise, each User must take reasonable steps to mitigate any Losses and Expenses or damage it may suffer or incur arising out of anything done or not done by a party under or in connection with these Terms or the Service.
23.8. IPromise shall not be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by another party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
23.9. Upon any transfer by IPromise of all Escrowed Funds, the Trade shall, from that time, be closed and have come to an end. IPromise will, from that time, have no further obligations with respect to the Trade. Any future Trades will, for the avoidance of doubt, create a new (and separate) legal agreement between the Users under the Terms of Use applicable at the time.
24. INDEMNITY
24.1. The Users will jointly and severally on demand indemnify IPromise and each Protected Person from and against:
24.1.1. any Losses and Expenses brought against IPromise or any Protected Person by any person whether in contract, tort or otherwise (whether joined in proceedings or otherwise); and
24.1.2. any Losses and Expenses which IPromise or any Protected Person suffers, pays, incurs or is liable for, as a direct or indirect result of or in any way in connection with;
24.1.3. IPromise’s rights or obligations under these Terms of Use;
24.1.4. the exercise by IPromise of its powers or the performance of its duties orthe preservation of its rights under these Terms of Use;
24.1.5. IPromise’s reliance on any material which purports to have been communicated, sent or transmitted to IPromise by the User, or signed by or on behalf of a User (and IPromise shall have no duty or obligation to verify or make any enquiry or investigation into such before being entitled to act on it);
24.1.6. the Users’ inability to access (for any reason) the Platform or the Website;
24.1.7. any breach of these Terms of Use by a User or any entity or person affiliated with that User;
24.1.8. any other action taken or omitted to be taken by IPromise under or in connection with these Terms of Use, other than to the extent such action or omission amounts to fraud, wilful misconduct, dishonesty or gross negligence of IPromise (having regard to the factors set out in section 44(2) and (3) of the Trusts Act 2019); and
24.1.9. any Losses and Expenses (other than the Chargeback Amount itself) which IPromise or any Protected Person suffers, pays, incurs or is liable for, relating directly or indirectly to a Chargeback.
24.2. For the avoidance of doubt, IPromise is not required to use or advance its own funds or otherwise incur financial liability on its part in performance of its duties or the exercise of its rights under these Terms of Use.
24.3. If a User fails to indemnify IPromise as required by these Terms of Use within 10 Business Days after receipt of a valid written notice from IPromise, IPromise may (without limiting its other rights and remedies) indemnify itself out of the Escrow Funds. IPromise may set-off any amounts owed to it or payable to it in connection with these Terms of Use from Escrow Funds and such Escrow Funds shall be deemed to not be held on trust and may be immediately payable into IPromise’s operational bank accounts.
24.4. To the extent the indemnities above do not apply or extend to such, if IPromise is made a party to any legal proceedings (including mediation and/or arbitration), in relation to application of the Escrow Funds or the execution and administration of its powers and duties under these Terms of Use, each User jointly and severally agrees to compensate IPromise on a time and attendance basis and to indemnify IPromise against all reasonable expenses (including legal costs) incurred by it in relation to any such application or proceedings in circumstances.
24.5. Each User agrees that it will not take any action which would have the effect, either directly or indirectly, of delaying, or otherwise preventing the operation of these Terms of Use in accordance with the spirit and intent of these Terms of Use.
25. DISCLAIMER
25.1. Except to the extent specifically provided for in these Terms of Use, IPromise does not give any warranty and has no liability to the Users in relation to the performance or non- performance of the Services or if the Service does not meet a User’s requirements or is not suitable for a particular purpose, and the Website and Platform is provided, and the Services are provided, on an ‘as is’ and ‘as available’ basis.
25.2. IPromise is not liable for any undertakings, promises, warranties or representations made or offered by any Supplier or Client.
25.3. To the maximum extent permitted by law, IPromise disclaims any and all fiduciary duties in connection with these Terms of Use and each User accepts such and that IPromise shall not be required to communicate any knowledge it receives in connection with the Escrow Services.
25.4. Each Party agrees that IPromise may (without being obliged to) disclose knowledge it receives to a Party to these Terms of Use where any fraud, dishonesty, or default by the other party, or risk of loss, is suspected by IPromise acting in good faith.
25.5. Supplier acknowledges that Client’s payment of Escrow Funds into the Escrow Account represents nothing more that conditional delivery of the funds from Client to Supplier with delivery or release of the Escrow Funds to Supplier being subject to these Terms of Use.
25.6. To the maximum extent permitted by law, IPromise’s duties are limited to faithful compliance with mutually agreed instructions from Client and Supplier (some of which are standing irrevocable instructions given by agreeing to these Terms of Use) in accordance with these Terms of Use.
25.7. IPromise’s appointment will not be determined by the appointment of a liquidator, receiver or administrator to any User.
26. FORCE MAJEURE
26.1. Where a party is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under these Terms of Use then that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance and that party shall:
26.1.1. give each party immediate written notice of the nature and expected duration of, and the obligation(s) affected by, the Force Majeure Event; and
26.1.2. use all reasonable endeavours to:
26.1.2.1. mitigate the effects of the Force Majeure Event on that party’s obligations under these Terms of Use; and
26.1.2.2. perform that party’s obligations under these Terms of Use not effected by the Force Majeure Event.
27. DISPUTES BETWEEN USERS AND IPROMISE
27.1. Notwithstanding anything to the contrary in this Terms of Use and notwithstanding any Trading Document, this clause 27 shall apply if any dispute (IPromise Dispute) arises between IPromise and a User under these Terms of Use.
27.2. IPromise, as a financial service provider under the Financial Service Providers (Registration and Dispute Resolution) 2008 (FSP Act), is a member of an approved dispute resolution scheme under the FSP Act.
27.3. Any IPromise Dispute shall be heard by (and in accordance with) the scheme appointed by IPromise (from time to time) under the FSP Act.
27.4. With the agreement of each affected or interested party, IPromise may transfer all Escrow Funds to a substitute escrow agent or depositary (or Court or tribunal of competent jurisdiction) and, where a substitute escrow agent or depositary is agreed by all Users, IPromise shall be discharged from its duties and any liabilities under these Terms by transferring the applicable Escrow Funds to the substitute escrow agent or depositary.
27.5. Notwithstanding anything else in these Terms of Use, IPromise may resign and be discharged from its future obligations under these Terms of Use at any time by giving not less than 20 Business Days’ written notice of its resignation to the Users. That notice must specify the date on which IPromise’s resignation will take effect. The Users must jointly appoint a successor escrow agent or depository. If they have not appointed a successor within 20 Business Days of receiving the notice from IPromise, IPromise may appoint its successor or transfer all funds to a Court or tribunal of competent jurisdiction, in each case on such reasonable terms as IPromise may agree with the third party. IPromise will procure that the balance of the Escrow Funds (after deduction of any amounts which have become payable under these Terms of Use) is paid to the third party either appointed by the Users, or by IPromise. In doing so, IPromise shall be discharged from its duties and any liabilities under these Terms by transferring the applicable Escrow Funds to the third party.
28. GENERAL
28.1. All communications of any kind under these Terms of Use (including the Trading Documents) must be made in English.
28.2. The Client and Supplier shall each assign an employee to administer the Platform who is fluent in written and spoken English.
28.3. IPromise maintains a privacy policy that sets out IPromise’s practices in respect of the collection and use of personal identifying information. Users should read that policy at www.IPromise.co.nz. All Users will be taken to have accepted that policy (as updated from time to time in accordance with its terms) when they accept these Terms of Use.
28.4. The Users remain solely responsible for any other third parties’ costs associated with the transaction underlying the Trade, including costs associated with shipping, insurance and inspections.
28.5. IPromise is not responsible for payment of any sales, use, personal property or other government taxes or levies imposed on any items purchased or sold through the Platform, or that otherwise arise from the transaction underlying the Trade.
28.6. If any provision of these Terms of Use is, or becomes, unenforceable, illegal or invalid for any reason, the relevant provision will be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity. If such modification is not possible then such provision will be severed from these Terms of Use without affecting the enforceability, legality or validity of any other provision.
28.7. Any delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, these Terms of Use will not operate as a waiver of such right, power or remedy. A waiver of any breach will not be, or be deemed to be, a waiver of any other, or subsequent, breach. For IPromise to waive a right under these Terms, that waiver must be in writing.
28.8. These Terms of Use shall be governed by and construed in accordance with the laws in the jurisdiction of New Zealand. Each party irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.
28.9. IPromise may assign, transfer or delegate any of its rights or obligations under these Term of Use by providing written notice to the Users. The Users shall not assign, transfer, sell or alienate in any way any of their rights or obligations under these Terms of Use and a change of control in a User shall be deemed an assignment for the purposes of this clause. No person other than the User and IPromise has any right to a benefit under, or to enforce, these Terms.
28.10. Subject to clause 30.4, IPromise is a User’s independent contractor, and no other relationship (including joint venture, agency, trust or partnership) exists under these Terms.
28.11. Clauses intended, or which by their nature are intended, to survive termination of these Terms, continue in force. Termination shall be without prejudice to rights or remedies accrued prior to termination.
28.12. Notices to be sent under these Terms of Use:
28.12.1. by a User to IPromise shall be in writing and sent to IPromise’s authorised email address (as provided by IPromise from time-to-time), or via the IPromise Trade Screens; and
28.12.2. by IPromise to a User shall be in writing and sent by email to the email account provided by the particular User to IPromise within the Platform.
Each User acknowledges that a notice is deemed received if sent in accordance with the above, provided IPromise does not receive written notification of a transmission error, and User accepts responsibility for checking for notices sent in such a way.
28.13 These Terms set out everything as it relates to rights and obligations of IPromise, and supersede and cancel anything discussed, exchanged or agreed prior. The parties have not relied on any IPromise representation, warranty or agreement that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 28.14.
29. INTELLECTUAL PROPERTY
29.1. Subject to clause 29.2, title to, and all Intellectual Property Rights in, the Services, the Website, Platform, and all Underlying Systems is and remains IPromise’s property (and its licensors’ property). Users must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
29.2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains that User’s property. Users grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of IPromise’s rights and performance of IPromise’s obligations in accordance with these Terms.
29.3. To the extent not owned by us, Users grant us a royalty-free, transferable, irrevocable and perpetual licence to use for IPromise’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service.
29.4. If Users provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
29.4.1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
29.4.2. IPromise may use or disclose the feedback for any purpose.
29.5. Each User acknowledges that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that IPromise endorses, approves or recommends, or has responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, IPromise excludes all responsibility or liability for those websites or feeds.
30. DATA
30.1. Each User acknowledge that:
30.1.1. IPromise may require access to the Data to exercise IPromise’s rights and perform IPromise’s obligations under these Terms; and
30.1.2. to the extent that this is necessary, IPromise may authorise a member or members of IPromise’s personnel to access the Data for this purpose.
30.2. Each User must arrange all consents and approvals that are necessary for us to access the Data as described in clause 30.1.
30.3. Each User acknowledges and agrees that:
30.3.1. IPromise may:
30.3.1.1. use Data and information about a User and its end users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
30.3.1.2. use Analytical Data for IPromise’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
30.3.1.3. supply Analytical Data to third parties;
30.3.2. IPromise’s rights under clause 30.3.1.1 above will survive termination or expiry of these Terms; and
30.3.3. title to, and all Intellectual Property Rights in, Analytical Data is and remains IPromise’s property.
30.4. Each User acknowledges and agrees that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, IPromise is acting as that User’s agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. Each User must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
30.5. While IPromise will take standard industry measures to back up all Data stored using the Service, each User agrees to keep a separate back-up copy of all Data uploaded by that User onto the Service.
30.6. Each User agrees that IPromise may store Data (including any personal information) in secure servers in overseas territory/ies and may access that Data (including any personal information) in overseas territory/ies and New Zealand from time to time.
30.7. Each User indemnifies IPromise against any Losses and Expenses of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
31. SUBSCRIPTION FEES
31.1. Each Supplier must pay us the Subscription Fees (plus GST, if any).
31.2. To the extent GST is payable, IPromise will provide Supplier with valid GST tax invoices.
31.3. Supplier must pay the Subscription Fees:
31.3.1. within at least 5 Business Days’ of invoicing (or by direct debit or credit card payment on the relevant date); and
31.3.2. electronically in cleared funds without any set off or deduction.
31.4. IPromise may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by IPromise’s primary trading bank as at the due date (or, if IPromise’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
31.5. IPromise may increase the Subscription Fees payable by Supplier or Escrow Fees by giving notice (including by posting the increased fees on the Website or Platform). By continued use of the Service, a User is deemed to have accepted the increased fees (effective from any date stated in a notice or from the date so published).
31.6. Subscription Fees are non-refundable.
32. PRIVACY AND INFORMATION COLLECTION
32.1. IPromise may transfer personal data outside New Zealand (including to offshore cloud computer servers), in connection with offering the Services.
32.2. IPromise collects your personal information so that IPromise can process your application, establish, administer, maintain and manage the Platform and Services provided to a User (including doing all things reasonably ancillary). IPromise may also use your personal information to assist you with inquiries, concerns and complaints you may have, to identify you and to authenticate your use of the Service or Platform, to tell you about products and services offered by third parties that may be of interest to you, to conduct customer satisfaction surveys, to improve our products and services, and for risk assessment purposes and to comply with law (and doing all things reasonably ancillary).
32.3. The Platform and Services are provided by or in conjunction with third party providers and as such certain third party providers may have access to certain information for such necessary and ancillary purposes in connection with the third party provider’s business and for the purposes of assisting in arrangements in relation to the provision of IPromise’s product and service. Such a person may be outside New Zealand or store its data outside of New Zealand and you consent and agree that information may be disclosed to those persons for the purposes.
32.4. If you a User does not provide personal information to us, IPromise may not be able to provide the Platform or Services to you, or IPromise may be required to restrict operation of the Platform or Services.
32.5. Other than expressly noted, where possible, IPromise will collect personal information about a User directly from the User. From time to time there may also be occasions (including where IPromise needs to verify your identity, undertake customer due diligence, prevent or detect money laundering or terrorist financing and where IPromise is required or authorised by law) when IPromise may need to obtain personal information about you from a third party. These persons may include banks, financial institutions, government authorities and publicly available sources of information.
32.6. If a User provides us with personal information about someone else, the User agrees to inform that person of the contents of this privacy and information collection notice and ensure that they agree to such.
32.7. As between IPromise and third party providers, IPromise may exchange your personal information with each other and with third parties in the normal operations of our business, for example with our corporate partners and affiliates, government agencies, service providers and providers of services which protect against potential fraud and other crimes. If a User owes us money, IPromise may also exchange your information with entities including lawyers, credit agencies and debt collectors.
32.8. IPromise may also disclose your personal information to recipients located overseas, subject to our privacy policy. The privacy policy is accessible via the Website and on request and in agreeing to these Term of Use you also accept the terms of the privacy policy.
32.9. IPromise’s privacy policy contains information about how you may access and seek correction of the information IPromise holds about you, how you may make a complaint about a breach of your privacy rights and how IPromise deals with complaints.
32.10. The Website and Platform uses our and third party “cookies” (small piece of data stored on your computer or mobile device by your web browser or small pieces of data attributed to you or your device) and other similar technologies. IPromise uses these to, amongst other things, enhance the performance and functionality of the Platform and Website, help us identify your browser, provide analytics, remember information about a User including your language preference or login information. Certain functionality may become unavailable without use of certain cookies.
33. APP STORES
33.1. Although the IPromise Platform may be available for download in the Google Play Store (“Google”) or the App Store (“Apple”), neither Google nor Apple representatives are a party to these Terms of Use and shall have no obligations with respect to the IPromise product or service. Google and Apple shall be deemed third party beneficiaries of these Terms of Use. These Terms of Use incorporate by reference the Licensed Application End User License Agreement (howsoever called) published by Apple and Google, for purposes of which, a User is “the end-user”. In the event of a conflict in the terms of the Licensed Application End User License Agreement and these Terms of Use, the terms of these Terms of Use shall control. IPromise is a third party beneficiary of any Licensed Application End User License Agreement (howsoever called) between Apple or Google (as applicable) and User as “the end-user”.
34. CHARGEBACK
34.1 Where the Client makes payment by credit card, the parties acknowledge the Client’s right provided for by the Client’s credit card issuer and/or bank to a Chargeback. Supplier acknowledges that the Platform may facilitate payments by the Client by credit card and accepts the risk of a Chargeback in connection with any Trade where a Client pays by credit card.
34.2 In connection with a Chargeback, Supplier does not waive any of its rights or remedies against the Client (other than as expressly waived in writing by both Supplier and IPromise and signed by the Supplier and IPromise).
34.3 In addition to the indemnity in clause 24, Supplier on demand indemnify IPromise and each Protected Person from and against any Losses and Expenses (including the Chargeback Amount itself) which IPromise or any Protected Person suffers, pays, incurs or is liable for, relating directly or indirectly to a Chargeback. IPromise may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by IPromise’s primary trading bank as at the due date (or, if IPromise’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 4% per annum.
34.4 As security for the indemnity in clause 34.3, Supplier subrogates any and all claims it may have against Client in connection with a Chargeback to IPromise for IPromise to enforce the rights and remedies against the Client (including the right for IPromise to use the Suppliers name in legal proceedings). Supplier shall promptly do all things necessary or desirable to support IPromise in the exercise of its rights under this clause.
34.5 To the maximum extent permitted by law, once Client authorises the release of funds from the Escrow Account to Supplier, Client shall not thereafter make a Chargeback.
34.6 The Users acknowledge that IPromise does not waive its rights to challenge any Chargeback on the basis that IPromise has met its product and service obligations to Client.
