Merchant Terms of Use

These Terms of Use govern your membership in the Bucqi Trading Program and your use of the Bucqi Application (the Application) as a Merchant. Use of the Application requires that you have a computing device with internet connection. You should read these Terms of Use before you decide to become a member of the Bucqi Trading Program and continue with your registration as a Merchant. By signing the application form or clicking the SUBMIT button below you will submit your application to become a member of the Bucqi Trading Program, to register as a Bucqi Merchant and you agree to be bound by these Terms of Use and the terms and conditions of the payment processor which facilitates the Card Transactions between Buyers and Merchants. These terms are in addition to Bartercard Rules of the Trading Programme. The Bartercard Rules of the Trading program are available on request or from the members section of the Bartercard website.

1. Definitions

In these Terms of Use:

Applicable Laws means all laws, rules, regulations, or ordinances applicable to a party, in light of that party’s role with respect to the party’s obligations under these Terms of Use.

Associates means an entity’s holding companies, subsidiaries, related companies, directors, officers, employees, contractors and agents.

Bartercard Trade Dollar means an accounting unit (equivalent to one New Zealand Dollar) used to record the value of goods and services traded. Bartercard Trade Dollars are not legal tender, securities, debentures or commodities. One Bartercard Trade Dollar is the equivalent of one New Zealand Dollar and vice versa.

 

Bartercard Trading Program means the reciprocal trade exchange program whereby Bartercard New Zealand LP acts as a clearing house and third party record keeper of Bartercard trade transactions among its members and directs its members to each other for the purpose of trade.

Manager means Bartercard New Zealand LP

Bartercard means Bartercard Exchange Limited

Bartercard Exchange Limited (“Bartercard”) issues memberships in the Trading Programme and is a party to the Deed of Management. Bucq and/or Bucqs means an accounting unit (equivalent to one New Zealand Dollar) use to record the value of goods and services purchased or traded. Bucqs are not legal tender, securities, debentures or commodities. One Bucq is the equivalent of one New Zealand Dollar and vice versa.

Bucqi, we, us means Bartercard Exchange Ltd

Bucqi Trading Program means the system to facilitate transactions involving Bucqs amongst the Merchants, Buyers and the Manager.

Buyer means a person that registers to use the Application as a "Buyer" to make payments using their Card to purchase goods and/or services from one or more Merchants.

Card means any of:

  1. (a) a valid financial transaction card issued by a member or affiliate of MasterCard® on which the MasterCard marks appear;
  2. (b) a valid financial transaction card issued by a member or affiliate of Visa on which the Visa marks appear;
  3. (c) a valid financial transaction card issued by a member or affiliate of American Express® on which the American Express marks appear; or
  4. (d) a valid financial transaction card issued by a member or affiliate of Diners Club on which the Diners Club marks appear

which are used in conjunction with the Application.

Card Scheme means the MasterCard, Visa, American Express or Diners Club or any other Card Scheme provider that Bucqi or its payment processor is a member of or participates in.

Card Transactions means a payment, refund or reversal by the Merchant or a Cardholder via a Card.

Cardholder means a person to whom a Card has been issued.

Commencement Date means the date your application to become a Bucqi Merchant is accepted.

Confidential Information means all technical, financial, commercial and other information (in whatever medium) of, or relating to, a party or its business affairs, which is disclosed or available to, or observed or accessible by, another party or parties in connection with these Terms of Use which:

  1. (a) is designated by a party as confidential;
  2. (b) is marked as 'confidential', 'sensitive', 'private' or any other similar description;
  3. (c) a reasonable person would (given its nature) consider confidential; or
  4. (d) is proprietary to the relevant party,
  5. (e) but excluding information that:
    1. (i) is readily available in the public domain without breach of confidentiality; or
    2. (ii) the receiving party can establish by written records is, or has been, legally known to, developed by, or acquired by, that receiving party, independently of these Terms of Use.

Direct Debit Authority means the direct debit authority form as provided by Bucqi from time to time.

Extraordinary Member means the classification given to the Manager when it participates in the Bucqi Trading Program by selling to and buying Bucqs from Merchants upon the Merchants issuing to and redeeming Bucqs from Buyers.

Force Majeure Event means any occurrence or omission outside a party’s control and includes:

  1. (a) a physical natural disaster including fire, flood, lightning or earthquake;
  2. (b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
  3. (c) epidemic or quarantine restriction;
  4. (d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
  5. (e) law taking effect after the date of these Terms of Use;
  6. (f) breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material;
  7. (g) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors; and
  8. (h) failure of a third party service provider to Bucqi to provide services.

Insolvency Event means, in relation to either party:

  1. (a) a receiver, receiver and manager, administrator or similar official is appointed in respect of the party;
  2. (b) the party suspends payment of its debts generally;
  3. (c) the party is or becomes unable to pay its debts when they are due or is unable to pay its debts;
  4. (d) the party enters into or resolves to enter into any arrangement, competition or compromise with, or assignment for the benefit of, its creditors or any class of them; or
  5. (e) an application order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the party or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the party otherwise than for the purpose of an amalgamation or reconstruction.

Intellectual Property means all present and future copyright, rights to inventions including patents and patent applications, modifications or improvements to the same, registered and unregistered trade marks, registered and unregistered designs, rights to trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields and for the purposes of these Terms of Use includes any material provided by or to which access is given by one party to the other for the purposes of these Terms of Use including website templates, programs, instructions, images, manuals, documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means and includes Software.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Merchant means a member of the Bucqi Trading Program who has agreed to these terms and does not include an Extraordinary Member.

Merchant Services Agreement means any agreement between Bucqi or a payment processor and a merchant acquiring bank, pursuant to which Bucqi or the payment processor is able to facilitate Card Transactions.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Personnel means directors, officers, employees, professional advisers, agents or subcontractors of a party.

Services means the services, including Transaction Services, provided by Bucqi to the Merchant as described in these Terms of Use.

Settlement Account means the account established and maintained by the Merchant in accordance with clause 9(a).

Software means any software or products that have been provided by Bucqi which are being used or capable of being used by the Merchant.

Tablet means a mobile computer with a touchscreen display, circuitry and battery in a single unit; the touchscreen display uses finger or stylus gestures substituting for the use of computer mouse and keyboard.

Third Party IT Supplier means an entity engaged by the Merchant to provide services relating to the IT used by the Merchant in connection with the Application.

Transaction Services means services provided by Bucqi (through the Application and payment processor) to facilitate Card Transactions between Buyers and Merchants.

2. Interpretation

In these Terms of Use, unless the context requires otherwise:

  1. (a) headings and italicised, highlighted or bold type do not affect the interpretation of these Terms of Use;
  2. (b) words importing the singular include the plural and vice versa;
  3. (c) a reference to one gender includes the other genders;
  4. (d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental agency;
  5. (e) a reference to anything (including any right) includes a part of that thing, but nothing in this clause 2(e) implies that performance of part of an obligation constitutes performance of the obligation;
  6. (f) a reference to a document or agreement (including these Terms of Use), or a provision of a document or agreement is to that document, agreement or provision as amended, supplemented, replaced or novated;
  7. (g) a provision of these Terms of Use may not be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms of Use or the preparation or proposal of that provision;
  8. (h) specifying anything in these Terms of Use after the words 'include', 'including', 'for example', 'such as' or similar expressions does not limit what else is included unless there is express wording to the contrary;
  9. (i) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; and
  10. (j) a reference to a subclause in a clause is a reference to a subclause in that clause unless specified otherwise.

3. The Rules

  1. a) The purpose of these rules is to regulate the Bucqi Trading Program by setting out the terms upon which Merchants:
    1. (i) may acquire Bucqs from the Manager,
    2. (ii) issue Bucqs to Buyers as a reward for using the Application,
    3. (iii) redeem Bucqs from Buyers and
    4. (iv) sell Bucqs to the Manager. These rules govern the operation of the Bucqi Trading Program.
  2. b) The Manager and each Merchant agree to be bound by these rules. The rules form a contract between the Manager and the Merchants.
  3. c) These rules are binding on the Merchants. Obligations imposed upon Merchants under these rules shall survive the suspension or termination of the right of a Merchant to participate in the Bucqi Trading Program.
  4. d) Unless the Manager allows otherwise, only a Merchant which is in good standing and has sufficient funds to buy Bucqs can participate in the buying, issuing, redeeming and selling of Bucqs. A Merchant is in good standing if it
    1. (i) is a member in good standing if they are not in breach of The Rules of the Bartercard Trading Program;
    2. (ii) is current in any fees and charges owing to the Manager under the Bartercard Trading program and the Bucqi Terms of use;
    3. (iii) is carrying on a business involving the provision of goods and/or services; and
    4. (iv) otherwise conducts itself in accordance with these rules (referred to in these rules as a “Merchant in Good Standing”).
    5. (iv) The rules are binding upon the Merchants, their heirs, successors and permitted assigns.

4. Nature of Bucqs

  1. a) A Bucq recorded by the Manager in a Bucqs Account of a Merchant represents an asset of that Merchant. Such a Merchant is entitled to issue Bucqs to a Buyer pursuant to a loyalty/rewards program of the Merchant in accordance with these rules but not otherwise.
  2. b) The Bucqs recorded in a Bucqs Account of a Merchant which has a credit balance do not constitute a liability or a debt payable by the Manager to any Merchant or Buyer.
  3. c) A Merchant which has a debit balance in its Bucqs Account is liable in accordance with these rules to pay to the Manager an amount equivalent to the amount in Bucqs of the debit balance in Bartercard Trade Dollars (if the Merchant is in Good Standing) or otherwise in cash.
  4. d) Under no circumstances shall the Manager be under any obligation to any Merchant to redeem or convert to cash or pay any amount for or in respect of Bucqs. The Manager does not warrant the negotiability of Bucqs.
  5. e) Bucqs may only be used in the manner and for the purpose set forth in these rules.

For the avoidance of doubt, Bucqs must not be exchanged between Merchants or between Merchants and Buyers for any cash consideration.

5. Bucqi Trade Transactions

  1. a) A Bucqi Trade is a transaction conducted in the manner set out in these rules between the Manager as an Extraordinary Member and a Merchant upon the issuing of Bucqs by the Merchant to a Buyer and the redeeming of Bucqs by the Merchant.
  2. b) The Manager shall for each Merchant establish a Bucqi Virtual Trade Account for recording Bucqi Trades.
  3. c) The Manager shall cause a Bucqi Trade to be recorded for those transactions in which a Merchant is issuing Bucqs to a Buyer as follows:
    1. (i) the Merchant shall acquire from the Manager the Bucqs to be issued to the Buyer as a reward for the Buyer’s use of the Application for the purchase of goods and/or services from the Merchant. The purchase price to be paid to the Manager shall be Bartercard Trade Dollars from the Merchant, nominated account in the Bartercard Trading Program in an amount equivalent to the Bucqs issued to the Buyer.
    2. (ii) the Buyer shall be credited with the Bucqs issued by the Merchant;
    3. (iii) the Merchant’s Virtual Trade Account shall be debited the amount of the Bucqs issued to the Buyer.
  4. d) The Manger shall cause a Bucqi Trade to be recorded for those transactions in which a Buyer redeems Bucqs as follows:
    1. (i) the Buyer shall be debited the amount of Bucqs redeemed; and
    2. (ii) the Merchant’s Virtual Trade Account shall be credited with the amount of Bucqs redeemed;
    3. (iii) The Manager shall acquire from the Merchant the Bucqs redeemed with the Merchant by the Buyer. The purchase price to be paid to the Merchant’s nominated account in the Bartercard Trading Program shall be Bartercard Trade Dollars in an amount equivalent to the Bucqs redeemed by the Merchant.
  5. e) In issuing and redeeming Bucqs, Merchants do so as principals and not as agents or through the Manager. The Manager is not a party to any Bucqi transactions between a Merchant and a Buyer. Bucqi Trades between a Merchant and a Buyer are entered into voluntarily. The Manager is not a guarantor of any Bucqi Trades.
  6. f) Bucqi Trades between the Manager and a Merchant will be settled by the Manager on a daily basis by the issuing by the Manager of a tax invoice to the Merchant for that day’s trade(s).

6. Rewards

Issuing

  1. a) A Merchant in Good Standing must issue to each Buyer, who uses the Application to purchase goods and/or services from the Merchant, a reward in Bucqs of not less than 20% nor more than 100% of the cash portion of the purchase price paid by the Buyer using the Application on any day they are open for business.
  2. b) Merchants are to advise Bucqi of the percentage of the cash portion of the purchase price they will issue as a reward for a Buyer using the Application to purchase the goods and/or services of the Merchant.

Redeeming

  1. a) Merchants must accept from Buyers redeeming Bucqs an amount in Bucqs which is not less than 20% of the purchase price of the goods and/or services on any day they are open for business.
  2. b) Merchants may accept up to 100% of the purchase price in Bucqs.
  3. c) Merchants are to advise Bucqi of the percentage of the purchase price they will accept in Bucqs from Buyers using the Application to purchase the goods and/or services of the Merchant.

7. Services

  1. a) In registering for the Services the Merchant agrees to provide accurate and complete information as requested by Bucqi and in the event of a change to such information the Merchant will promptly update the information on the Merchant's User Profile at www.bucqi.co.nz
  2. b) Bucqi will provide the Services to the Merchant for the purpose of facilitating Card Transactions for the purchase of goods and/or services by a Buyer from the Merchant.
  3. c) Merchants are at all times required to have available for Buyers who wish to use the Application a computing device with internet connection. Merchants may elect to purchase a Tablet from Bucqi upon payment of the Tablet purchase fee at the time of issuance of the Tablet or rent a Tablet from Bucqi upon payment of the monthly rental fee. The rental term will be 12 months at which time upon payment in full of the rental fee the Tablet will be owned by the Merchant.
  4. d) The Merchant acknowledges that each transaction for the purchase of goods and/or services is a contract between the Merchant and the Buyer.
  5. e) Bucqi is not a party to any Card Transaction and is not responsible for the goods and/or services supplied by the Merchant in accordance with a Card Transaction nor is Bucqi responsible for the completion of payment by the Buyer of the goods and/or services from a Merchant.
  6. f) Bucqi will facilitate each Card Transaction on behalf of a Merchant through the appropriate payment processing network using an appropriate payment processor.
  7. g) The Merchant acknowledges that an authorisation for a Card Transaction is not a confirmation of the identity of the Buyer nor that the Card Transaction will not be subject to a chargeback or other reversal. Bucqi has no obligation to confirm the identity of a Buyer. A Merchant in its reasonable discretion may require proof of a Buyer’s identity.
  8. h) The Merchant must not require the Buyer to provide the Merchant with the account numbers of any payment instrument used in a Card Transaction.
  9. i) The Merchant must not use the Services to facilitate the transfer of money between a Buyer and Merchant that does not directly result from a purchase of goods and services from Merchant.
  10. j) The use of the Services to process Card Transactions in connection with illegal transactions or the purchase of illegal or prohibited goods or services is strictly prohibited.
  11. k) The Merchant acknowledges and agrees that:
    1. (i) the inclusions and functionality for each aspect of the Services are as determined by Bucqi from time to time;
    2. (ii) Bucqi may substitute an alternative for any part of the Services, provided that such alternative shall be capable of performing the functions of the original system without affecting the overall performance of the Service;
    3. (iii) the Services will not be error free; and
    4. (iv) the Services may not be available from time to time.
  12. l) The Merchant must comply with all reasonable procedures and other directions notified by Bucqi to the Merchant from time to time.
  13. m) To the extent required to assist us in protecting our integrity, our system or our users from loss or to prevent fraud and limit the risk of money laundering and terrorism financing, we reserve the right to impose transaction limits on the Merchant's use of Transaction Services.

8. Vouchers

Merchants may make available for purchase by Buyers using the Application gift vouchers for redemption only with the Merchant who sold the gift voucher. A gift voucher cannot have a value of more than $500. Merchants which issue gift vouchers shall be obligated to honour the terms of the gift vouchers withstanding that the Merchant ceases to be a member of the Bucqi Trading Program. A Merchant selling gift vouchers must comply with all Applicable Laws regarding the issue and redemption of gift vouchers.

9. Payment Terms

  1. a) The Merchant will establish and maintain a deposit account with a New Zealand bank or authorised deposit taking institution approved by Bucqi for the receipt of funds from Card Transactions through electronic funds transfer.
  2. b) Subject to clause 9(d), amounts due to the Merchant in cash in accordance with a Card Transaction will be paid by Bucqi or a payment processor by electronic transfer into the Settlement Account; amounts due to the Merchant in Bucqs will be paid by Bucqi or by a payment processor or by electronic transfer to the Merchant’s Virtual Bucqs Account.
  3. c) Bucqi or the payment processer is not obligated to transfer the amounts referred to in clause 9(b) into the Settlement Account unless Bucqi or the payment processor has received full and final settlement in available funds for the amount of the Card Transaction.
  4. d) Bucqi will use its best endeavours to cause the amounts referred to in clause 9(b) to be paid to the Settlement Account after Bucqi or the payment processor has received full and final settlement in available funds for the amount of the Card Transaction.
  5. e) If a Buyer retains a chargeback right pursuant to a Card Transaction, the chargeback and a chargeback fee will be passed to the Merchant.
  6. f) Bucqi or the payment processor may withhold payments or reverse previous payments to the Settlement Account and Bucqi may withhold or reverse payments of Bucqs to the Merchant’s Virtual Bucqs Account if a Buyer makes a claim for a refund or other reversal or if Bucqi or the payment processor is of the opinion (in their sole and absolute discretion) that a Card Transaction is invalid, fraudulent, in contravention of these Terms of Use or the terms and conditions of the payment processor or otherwise illegal.
  7. g) The Merchant may login to the Merchant Portal in order to reverse a transaction or part thereof. Bucqi will assist the Merchant to process any reversal, chargeback or other refund transaction or adjustment where funds and/or Bucqs are returned to a Buyer from the Merchant at the request of a Merchant.
  8. h) Bucqi may offset any amounts owing by the Merchant to Bucqi under these Terms of Use (including any Fees under clause 10) and any amounts overpaid to the Merchant due to a reversal, chargeback or other adjustment against any payment obligation that Bucqi may have to the Merchant.
  9. i) If the Merchant's Settlement Account does not have sufficient funds to meet the requirements of the refund, Bucqi may choose, and the Merchant authorises Bucqi, to process a transaction to the value of the refund using the Merchant's credit card details or deduct funds from daily sales.
  10. j) Any outstanding amount remaining due and owing to Bucqi by the Merchant becomes a debt immediately due and payable by the Merchant to Bucqi.

10. Fees

For the purposes of this clause:

Fees means the following standard fees:

Chargeback Fee: $55.00+GST per instance.

Success / Facilitation Fee:

  1. (a) the greater of (i) $0.25+GST per each Card Transaction or (ii) 6.5% cash + GST of each Card Transaction payment payable when a Card Transaction is performed;
  2. (b) 1% in Bartercard Trade Dollars + GST of each Card Transaction payment payable when a Card Transaction is performed;
  3. (c) 6.5% cash + GST of each Bucqs payment to the Merchant; and
  4. (d) 1% in Bartercard Trade Dollars + GST of each Bucqs payment to the Merchant.

Declined Transaction Fee: $0.17incl GST per failed transaction.

Tablet: as per the application payable on issuance of a Tablet.

Tablet Purchase Fee: $90.00 +GST

Tablet Rental Fee: $11 per month incl GST for 12 month term.

Plus any other Fees notified to the Merchant by Bucqi from time to time in accordance with these Terms of Use.

All fees under this clause are exclusive of the current applicable GST rate unless stated otherwise.

The Fees

  1. a) The Merchant must pay the fees to Bucqi.
  2. b) The Fees may be amended by Bucqi at any time by notice to the Merchant in accordance with these Terms of Use.
  3. c) The Merchant must pay all invoices issued by Bucqi in accordance with the timeframe specified on that invoice and if not specified, within 30 days of the date of invoice.
  4. d) Interest at a rate of 10% per annum is payable on any overdue amounts payable by the Merchant to Bucqi.
  5. e) If there is a dispute about whether a Fee contemplated by this Agreement is payable or available, clause 19 will apply but the Merchant must not withhold the amount in dispute.

Enforcement Expenses

Despite anything else contained in these Rules, if a Member is in default or in breach under these Rules, any enforcement expenses reasonably incurred or expended by Bartercard and/or the Manager in exercising any right under these Rules, or arising from any such default or breach, are immediately payable by the Member with effect from the date on which the enforcement expenses are incurred or expended and until paid will bear interest at the rate of 15% per annum from the date they are incurred or expended until the date of payment.

Payment

  1. a) The Merchant must pay the cash Fees to Bucqi:
    1. (i) by direct debit, either from a debit account or credit card, in which case the Merchant must complete a Direct Debit Authority; or
    2. (ii) upon receipt of an invoice from Bucqi; or
    3. (iii) by offset in accordance with clause 9(h),
    4. (iv) in accordance with clause 9(i), at the election of Bucqi.
  2. b) The Merchant authorises the payment to Bucqi of the Bartercard Trade Dollar fees through a deduction of the Bartercard Trade Dollar portion of the fees directly from the Merchant’s nominated account in the Bartercard Trading Program. The deduction to be made when a Card Transaction is performed or when a Bucqs payment is made to the Merchant.

11. GST

Unless otherwise specified all charges are exclusive of GST

12. Website

  1. a) Bucqi grants the Merchant a non-exclusive and non-transferable licence to display the availability of the Service on the Merchant's website.
  2. b) The Merchant must not display any content relating to the Service on the Merchant's website without Bucqi's prior approval of such content. Bucqi reserves the right to request to modify or remove any content relating to the Services and the Merchant agrees to comply with such request.
  3. c) The Merchant acknowledges that the Services are not an endorsement by Bucqi of any information or other content on the Merchant's website or of the Merchant's goods or services. The Merchant will not state or imply any endorsement by Bucqi on the Merchant's website or in any other way.

13. Software

  1. a) In the event that Software provided by Bucqi is being used or is capable of being used by the Merchant, this Software will form part of the Services for the purposes of these Terms of Use and is supplied in accordance with the provisions of this clause 13.
  2. b) Bucqi grants the Merchant a non-exclusive, non-transferable, licence to:
    1. (i) install and run the Software;
    2. (ii) use the Software in accordance with the documentation provided by Bucqi in connection with the Software;
    3. (iii) make copies of the Software for backup purposes; and
    4. (iv) access the Services and Bucqi's Intellectual Property in accordance with these Terms of Use.
  3. a) For clarity:
    1. (i) the licence under clause 13(b) does not include the right to sublicense to third parties and the Merchant has no right to sublicense its licence under clause 13(b); and
    2. (ii) any software provided by Bucqi under these Terms of Use remains the property of Bucqi.
  4. a) The Merchant must:
    1. (i) use the latest version of the Software as provided by Bucqi to the Merchant; and
    2. (ii) not install updates or upgrades to the Software in any order other than the order in which the updates or upgrades were released by Bucqi.
  5. b) For clarity, nothing in this clause 13 requires or obliges Bucqi to provide updates, upgrades or new versions of the Software to the Merchant.

14. Bucqi obligations

  1. a) Bucqi must:
    1. (i) keep separate records regarding the provision of the Services and make those records available for inspection and copying by the Merchant as reasonably requested;
    2. (ii) comply with all Applicable Laws regarding the Services and its Personnel involved in the provision of the Services; and
    3. (iii) co-operate (at a cost to be agreed with the Merchant) with the Merchant and any Third Party IT Suppliers to ensure integration and compatibility of services and deliverables supplied by any Third Party IT Supplier, with the Services (and vice versa).
  2. b) Bucqi must endeavour to provide the following technical support in connection with the Services:
    1. (i) support and assistance (by telephone, web or any other means elected by Bucqi) in the form of technical issue resolution, issue information, feature assistance and feature overview during business hours only;
    2. (ii) corrections or modifications to any Software which forms part of the Services as they are made generally available; and
    3. (iii) patches and new releases as they become generally available.

15. Merchant obligations

  1. a) The Merchant must:
    1. (i) ensure that all of Bucqi's information and materials in the custody of the Merchant are protected from unauthorised access or use, and from misuse, damage or destruction by any person;
    2. (ii) provide Bucqi with such information and assistance necessary to enable it to provide the Services;
    3. (iii) use best endeavours to ensure that neither Bucqi, nor the payment processor nor the Merchant do or omit to do anything which results in Bucqi or the payment processor breaching a Merchant Services Agreement to which it is a party;
    4. (iv) provide Bucqi with access to the Merchant's premises as reasonably requested;
    5. (v) have all resources necessary to receive the Services, including hardware, other software, telecommunications resources and internet access acceptable to Bucqi (except where the Bucqi is responsible under these Terms of Use for the provision of such resources);
    6. (vi) comply with systems recommended by Bucqi from time to time in relation to the Merchant's use of the Services, including back up routines and virus checking;
    7. (vii) co-operate with Bucqi, act reasonably and follow Bucqi's directions in connection with these Terms of Use and receipt of the Services and assist Bucqi to provide the Services;
    8. (viii) keep and store Tablets safely and securely; and
    9. (ix) only use the Services for its own business purposes.
  2. b) The Merchant acknowledges and agrees that if it does not comply with clause 15(a) then Bucqi is not obliged to supply the Services.
  3. c) The Merchant must not:
    1. (i) perform any illegal or unlawful acts in connection with the receipt, or use, of the Services;
    2. (ii) resupply the Services (or any one of them) to any third party or use the Services in relation to the provision of any services or activities to third parties except as expressly permitted under these Terms of Use;
    3. (iii) use the Services (or any one of them):
      1. (a) to engage in fraudulent behaviour;
      2. (b) in a way that infringes any third party’s Intellectual Property Rights;
      3. (c) in a way that disrupts, misuses or excessively uses Bucqi's hardware, bandwidth access, storage space or other resources or that of Bucqi's other users;
  4. (iv) in a way that is harmful to the reputation of Bucqi;
  5. (v) in any other manner that is unacceptable to Bucqi; or
  6. (vi) make any representation, warranty or promise on behalf of Bucqi or suggest that the Merchant is an agent or representative of Bucqi.

16. Privacy obligations

  1. a) Where the Merchant receives Personal Information from or on behalf of Bucqi, the Merchant must:
    1. (i) take all reasonable steps to protect all Personal Information in its possession or control against misuse and loss and from unauthorised access, modification or disclosure;
    2. (ii) deal with the Personal Information only:
      1. (a) for the purposes of performing the Merchant's obligations under these Terms of Use; or
      2. (b) with the express written agreement of Bucqi;
    3. (iii) not disclose or permit the disclosure of the Personal Information to any third party including, without limitation, a third party outside the jurisdiction in which the information was initially received, unless:
      1. (a) expressly required under these Terms of Use; or
      2. (b) otherwise with the express written agreement of Bucqi; and
    4. (iv) on termination of these Terms of Use or if requested by Bucqi, at the option of the Bucqi, either:
      1. (a) return all Personal Information in the Merchant's possession or control to Bucqi;
      2. (b) destroy all Personal Information in the Merchant's possession or control; or
      3. (c) de-identify all Personal Information in the Merchant's possession or control.
  2. b) Notwithstanding the above, the parties acknowledge and agree that the Services are not intended to contain any Personal Information.

17. Merchant indemnity

  1. a) The Merchant is liable for, and indemnifies Bucqi from and against, all loss or damage (including legal costs) incurred or suffered by Bucqi or any other person however caused in connection with any breach of these Terms of Use by the Merchant, any act or omission of the Merchant, any use of the Services by the Merchant or any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with the Services.
  2. b) The indemnity in clause 17(a) is a continuing obligation notwithstanding:
    1. (i) any settlement of account; or
    2. (ii) the occurrence of any other thing, and it is not necessary for Bucqi to incur expense or make payment before enforcing or making a claim under an indemnity.

18. Limitation of liability

  1. a) Unless otherwise provided in these Terms of Use:
    1. (i) Bucqi's liability for any loss or damage however caused (including by the negligence of Bucqi), suffered by the Merchant or any other person in connection with these Terms of Use is limited to the total Fees for the Services paid by the Merchant to Bucqi in the month prior to the Merchant first suffering loss or damage in connection with these Terms of Use; and
    2. (ii) Bucqi is not liable for any consequential loss however caused (including by the negligence of Bucqi), suffered or incurred by the Merchant or any other person in connection with these Terms of Use.
  2. b) If legislation provides that there is a guarantee in relation to any goods or service supplied by Bucqi in connection with these Terms of Use and Bucqi's liability for failing to comply with that guarantee cannot be excluded but may be limited, then Bucqi's liability for such failure is limited to (at Bucqi's election):
    1. (i) in the case of a supply of goods, Bucqi replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
    2. (ii) in the case of a supply of services, Bucqi supplying the services again or paying the cost of having the services supplied again.

19. Disputes

  1. a) Bucqi is not a party to and is not responsible for disputes between a Buyer and a Merchant and the payment processor and a Merchant except where such dispute involves a failure by Bucqi to perform an obligation under these Terms of Use, in which case Bucqi will assist with the resolution of the dispute having reasonable regard to Bucqi’s involvement.

20. Registered Financial Services Provider

Bartercard is a registered Financial Service Provider under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. If a Bartercard Member has a complaint this should be addressed in the first instance with the Member’s Trade Broker. If you are not satisfied with how Bartercard has managed your complaint then you may send a complaint to the independent complaints resolution service. This service is provided free of charge and is available to all Retail Clients. Retail Clients are defined as small businesses, particularly entities with less than $1m assets or annual turnover or any one individual or business with less than 19 full time employees. Please note: Retail clients must lodge a complaint with Financial Services Complaints Ltd within two months of the issue occurring. If the complaint is made after two months of the issue occurring the complaint will not be investigated.

The contact details for FSCL are:

Financial Services Complaints Ltd

Postal Address:

PO Box 5967
Lambton Quay
Wellington 6145

20. Confidential Information

  1. a) Each party (a Recipient) acknowledges that the other's (Discloser's) Confidential Information is, and remains, the property of the Discloser. These Terms of Use do not convey any proprietary or other interest in one party's Confidential Information to the other. The Recipient must keep the Discloser's Confidential Information strictly confidential and not disclose it or allow it to become available to any third party, except as provided for in these Terms of Use. This obligation survives the termination of these Terms of Use and will continue until the information no longer constitutes Confidential Information of the Discloser.
  2. b) The Recipient may only access and use the Discloser's Confidential Information to perform its obligations or exercise its rights under these Terms of Use or with the Discloser's prior consent. The Recipient must comply with any reasonable restraint on such use stipulated by the Discloser. The Recipient may only disclose the Discloser's Confidential Information to:
    1. (i) its Personnel, provided that it complies with clause 18(c)and Applicable Law;
    2. (ii) a third party (other than its Personnel) with the prior specific consent of the Discloser to disclose to that person (an Authorised Disclosee); and
    3. (iii) the extent required to comply with any Applicable Law or stock exchange rule. However, the Recipient must (to the extent possible) minimise the extent of disclosure and give the Discloser prior notice with reasonable details of the proposed disclosure and the relevant Confidential Information to be disclosed.
  3. c) The Recipient must take, and ensure its third party disclosees of the Discloser's Confidential Information take, all reasonable precautions to maintain confidentiality of that information and protect it from unauthorised access, use and disclosure, including;
    1. (i) restricting access to, and use of, that information to the specific purpose for which that information was disclosed by the Discloser and complying with any reasonable security and safety procedures notified to the Recipient by Discloser;
    2. (ii) notifying each of its Personnel and Authorised Disclosees that has access to the Confidential Information, of the Recipient's obligations under these Terms of Use;
    3. (iii) immediately notifying Discloser of any actual or potential breach of confidentiality or any unauthorised access, disclosure or use of the Confidential Information; and
    4. (iv) making every reasonable effort to cooperate with Discloser in any investigation, prosecution or remedial action taken by Discloser for protection of that Confidential Information.
  4. d) On termination of these Terms of Use, the Recipient must, subject to clause 20(c):
    1. (i) deliver to Discloser any Discloser Confidential Information in the Recipient's possession or control that is reasonably capable of being delivered; and
    2. (ii) irretrievably delete, erase or destroy all Discloser Confidential Information in the Recipient's possession or control that is not capable of delivery to the Discloser.
  5. e) Provided the Recipient continues to comply with this clause 20, the Recipient may retain any Confidential Information that:
    1. (i) is included in any board papers of the Recipient, or in backup tapes made in the ordinary course of its business which are not capable of ready search and deletion;
    2. (ii) the Recipient is required to retain by Applicable Law, or needs to retain to defend itself in any proceeding being brought or threatened against it at the time the Confidential Information must be returned or destroyed;
    3. (iii) the Recipient is required to retain for its own reasonable internal credit, risk, insurance, taxation or record-keeping purposes; or
    4. (iv) is contained in any electronic record made in the ordinary course of the Recipient's business which is captured by automated document retention procedures designed to allow the Recipient to comply with document retention laws.

21. Force Majeure

  1. a) Bucqi will not be:
    1. (i) in breach of these Terms of Use as a result of; or
    2. (ii) liable for, any failure or delay in the performance of its obligations under these Terms of Use to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Merchant or payment processor.

22. Dissolution of Bucqi Trading Program

  1. (a) Events Triggering Dissolution. The Bucqi Trading Program shall be dissolved in accordance with this rule if an order is made that the Manager be wound up (other than for the purpose of reconstruction or amalgamation).
  2. (b) Procedure on Dissolution. Upon the occurrence of an event referred to in 22(a) the following procedure shall apply:
    1. (i) (Inform Merchants) The Manager shall inform each Merchant that such event has occurred and draw their attention to the requirements of these rules;
    2. (ii) (Balancing Period) Each Merchant and the Manager if permitted shall be entitled to continue to trade for a period of up to a maximum of ninety (90) days (the "Balancing Period") to allow Buyers to use the Application to bring their Bucqs account to a nil balance, but no Merchant shall be obliged to trade during this period;
    3. (iii) (Strike accounts) The Manager shall strike delinquent accounts off the Bucqi Trading Program;
    4. (iv) (Manager to recover fees) After the giving of notice, the Manager shall use its best endeavours to recover all amounts owing to the Manager and it shall be no defence for any Merchant from whom payment is sought to be recovered, to contend that, by reason of any conduct of thethe Manager or any other person, it was difficult or impossible to bring the Merchant’s trade account to a zero balance during the Balancing Period or at any previous time;
    5. (v) (Legal action by Manager) The Manager shall have no obligation to take or continue any legal action in respect of any amount owing by any Merchant where:
      1. (a) the Manager perceives legal or practical difficulty in recovering the amount owing;
      2. (b) it appears to the Manager that the amount that would or may be recovered will or might be exceeded by the cost of recovery;
      3. (c) the Manager, in its discretion considers that there is sufficient reason to not take action.
    6. (vi) (Receiver's powers) Any power or discretion exercisable by the Manager under this rule may be exercised by any receiver or receiver and manager appointed to the Manager.

23. Term and Termination

  1. a) These Terms of Use commence on the Commencement Date and continue unless terminated in accordance with its terms.
  2. b) Either party may terminate these Terms of Use immediately or on a date otherwise specified by the party by written notice to the other party if:
    1. (i) the other party commits a breach of a term of these Terms of Use that:
      1. (a) cannot be remedied; or
      2. (b) is not remedied within 10 days after written notice from the party specifying such breach; or
      3. (c) an Insolvency Event occurs in relation to a party.
  3. c) Bucqi may terminate these Terms of Use immediately or on a date otherwise specified by Bucqi by written notice to the Merchant if:
    1. (i) Bucqi suspects that the Merchant has done or is likely to do any of the things described in clause 15(c);
    2. (ii) a third party alleges that the Merchant has done or is likely to do any of the things described in clause 15(c);
    3. (iii) the Merchant fails to pay the Fees in accordance with clause 10; or
    4. (iv) despite its best endeavours, Bucqi is, for any reason, no longer able to provide the Services.
  4. d) Either party may terminate these Terms of Use at any time upon giving 5 Business Days written notice to the other party.
  5. e) Upon termination of these Terms of Use:
    1. (i) the accrued rights or remedies of a party are not affected; and
    2. (ii) the Merchant must deliver to Bucqi any of Bucqi's Confidential Information or other property in the Merchant's care, custody or control including but not limited to any Tablet(s) rented by the Merchant. The Merchant will be responsible for the replacement costs of any rental Tablet(s) that is (are) not returned or repair costs of any rented Tablet(s) that is (are) delivered to Bucqi in damaged condition.
  6. f) Without limiting any other remedy Bucqi may have under these Terms of Use or at law, Bucqi may suspend the provision of the Services (including access to any Software) if any of the events specified in clause 23(c) occurs.
  7. g) Termination of these Terms of Use will not affect any provision of these Terms of Use which is expressly or by implication intended to come into force or continue on or after the termination.

24. Notices

Notices given under these Rules and the Agreement will be in writing and may be given by:

  1. (a) hand delivery; or
  2. (b) prepaid post; or
  3. (c) facsimile transmission; or
  4. (d) email transmission – to the address set out in the Agreement of the party to whom the notice is given or by publication by Bartercard in the Rules and Regulations Tab within the Members section on the Bartercard website. Every notice will be deemed to have been received and given 48 hours after the posting, or if hand delivered, on the date of the delivery, or if sent by facsimile transmission or email transmission in the normal course of transmission or if published on Bartercard’s members Internet Website 48 hours after publication.

25. Variation

  1. a) We may change these Terms of Use (including bringing in new fees, changes in the fees or limits, changes in the services we offer and changes to the product) at our discretion by giving you at least 14 days prior notice (see clause 21 above for details of how we will communicate with you). You can get a copy of the most recent Terms of Use by visiting our website www.bucqi.co.nz
  2. b) We will not be in breach of these Terms of Use if we take steps in order to enable us to comply with any laws or other legal obligations.
  3. c) We will not be in breach of these Terms of Use if we take necessary action in order to make a change necessitated by an immediate need to restore or maintain the security of the system.

26. Miscellaneous

  1. a) These Terms of Use supersede all previous agreements in respect of its subject matter and is the entire agreement of the parties with respect to that subject matter.
  2. b) Unless expressly stated otherwise, these Terms of Use do not create a relationship of employment, trust, agency or partnership between the parties.
  3. c) No party may assign, novate or create an interest in its rights under these Terms of Use without the prior written consent of the other party.
  4. d) A right under these Terms of Use may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
  5. e) Each provision of these Terms of Use will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.

These Terms of Use are governed by the Laws of New Zealand.