terms and conditions

Please read these terms of use (the Terms) carefully as they form a legally binding contract between You (the Organisation) and PayTorque Limited (the Company). These Terms apply to the entire content of the web site at the URL http://www.paytorque.com or any other site operated by PayTorque® including any customised URL (usually for a customised version of the Solution), (the Websites), the use by You of the PayTorque services provided through the Websites (the Solution) including “production”, “development” and “test” instances of the Solution.
If You continue to use the Websites, regardless of whether or not You choose to register to use the Solution, or enter into a formal Supply Agreement with PayTorque, You agree to these Terms, which will bind You. If You do not agree to these Terms, then please do not access and/or use our Websites and/or our Solution.

This policy was last updated on 5 October 2010.

DEFINITIONS

Administrator means the person within Your Organisation that is responsible for the running of the PayTorque Solution.
Company means PayTorque Limited, (PayTorque® or PT), a private limited liability company registered in New Zealand.
Contract means the resulting commercial arrangement established by Your agreement to abide by these Terms.
Data means any data and information entered by You or any of your Invited Users, or transferred to the Solution via the synchronising software.
Intellectual Property means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Initial Setup Costs / Solution Investment means the initial costs for the solution (excluding any taxes and duties) payable by You in accordance with the pricing schedule or as agreed in a Supply Agreement.
Invited Users means users of the Solution that You authorise to have access to the Solution.
Monthly Fees / Usage Fees / Ongoing Operating Costs means the monthly fees (excluding any taxes and duties) payable by You in accordance with the pricing as agreed in a  Supply Agreement.
Organisation means You, the entity that contracts to use the Solution as supplied by PayTorque Limited.
Party means either the Company or Organisation as the context dictates.
Solution means the software and services that comprise the PayTorque Bill to Bank automation solution. The solution comprises several elements including PayTorquePro and PayTorque Connector software licenses. PayTorque Connector is typically installed on Your network and connects into the source database. PayTorquePro can be delivered either as locally hosted software on Your network, or it can be hosted by PayTorque and accessed by You via the Internet. In all cases, You do not purchase the software product, but are licensed to use the software in accordance with these terms and conditions for the duration of the contract.
PayTorque might be delivered via the internet or alternatively, the software might be installed on a server inside Your network.
Supply Agreement means the formal document defining the scope of delivery, pricing, implementation plan, and the terms and conditions as agreed by both Parties.
Warranty Period means the period during which the warranty provisions, where applicable, shall apply.
Websites means the internet website at the URL http://www.paytorque.com or any other site operated by PayTorque associated with delivery of the Solution to the Organisation.
User / You / Your means You and Your Organisation and includes Your employees, consultants, representatives and agents.

1.     INTRODUCTION

1.1     In consideration of the payment by the User of the agreed fees and You and our agreeing to abide by these Terms, we grant You access to use the Websites and the Solution on the terms set out in this document.
1.2     Any amendments, modifications, enhancements or changes to the Solution made available by the Company from time to time shall be subject to these Terms.
1.3    You agree to allow PayTorque to collect and publish summary data (non company specific, and non identifiable) about overall trends and the performance of our users over time.

2.     USE OF THE SOLUTION

2.1     You are licensed to use the Solution on the following basis:
(a)     if You are authorised to act for the Organisation, and have obtained the required approval to do so;
(b)     if You provide or otherwise make available the Solution in whole or in part in any form to any person including your employees or end customers, (Invited Users) You undertake to ensure that all Invited Users comply with these Terms and acknowledge that You shall remain responsible and liable for the acts or omissions of all Invited Users to the same extent as if You had carried out such acts or omissions Yourself.
2.2     All copyright and other intellectual property rights in the Solution and material on the Web sites are owned by the Company or its licensors except for Your trademarks, name, logos and Intellectual Property owned or licensed by Your Organisation.  The Company warrants that Your use of the Solution and the Company’s Web sites will not infringe the intellectual property rights of any third party.
2.3     The PayTorque Bill to Bank Solution comprises several elements including two software components, the main PayTorque software, (Biz, Pro or Corp versions) and the PayTorque Connector synchronising software.  Both PayTorque and PayTorque Connector are provided to you as a software license for Your use. The PayTorque Connector is typically installed on Your network and connects into the source database. PayTorque can be delivered either as locally hosted software on your network, or it can be hosted by PayTorque and accessed by you via the internet. In all cases, You do not purchase the software product, but are licensed to use the software in accordance with these terms and conditions for the duration of the contract.
2.4     Any customisation or additional functionality developed for Your Organisation is supplied to You as part of the Solution and the conditions specified above in section 2.3 still apply.
2.5    Any third party services are provided under the terms and conditions of the supplier and are subject to approval by that provider. These services will be delivered and billed separately by the third party provider.
2.6    Any rights not expressly granted in these Terms are reserved.

3.     SERVICE ACCESS & TECHNICAL SUPPORT

3.1     Whilst the Company endeavours to ensure that the Websites and Solution are normally available 24 hours a day, the Company shall not be liable if for any reason, other than the negligence of the Company, the Websites or Solution is unavailable at any time or for any period.
3.2     Access to the Websites and the Solution may be suspended temporarily and with reasonable notice for maintenance or repair, or without notice in the case of system failure or for reasons beyond the Company's control.
3.3     Technical support will be provided for bugs or errors in the Web Site that are reproducible by the Company. You agree to provide the Company with full and accurate details of all bugs and errors in the Solution requested by the Company. You acknowledge that the solution is provided with a limited warranty as outlined in clause 9.
3.4     The Company will provide technical support by e-mail or phone or remote access software, and on-site as required on the terms agreed in the Service Level Agreement.
(Refer Section 2)

4.     WEBSITE & SOLUTION ACCESS CONDITIONS

4.1     You are prohibited from posting or transmitting to or from the Websites and/or the Solution any material:
(a)     that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy; or
(b)     for which You have not obtained all necessary licences, consents and/or approvals; or
(c)     which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or
(d)     which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
4.2     You may not use the Websites or the Solution:
(a)     in any way that breaches any applicable local, national or international law or regulation;
(b)     in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c)     for the purpose of harming or attempting to harm minors in any way; or
(d)     to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam) or be in breach of any local or applicable international anti-spam laws.
4.3     The Company shall fully co-operate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or locate anyone posting any material in breach of clause 4.1 or 4.2.
4.4     When accessing the Websites and using the Solution You must:
(a)     not attempt to undermine the security or integrity of the Company’s computing systems or networks or, where the Solution is hosted by a third party, that third party's computing systems and networks;
(b)     not use, or misuse, the Solution in any way which may impair the functionality of the Solution or Websites, or impair the ability of any other user to use the Solution or Websites;
(c)     not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Solution is hosted;
(d)     not transmit, or input into the Solution, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(e)     not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Solution, the Software or the Websites.
4.5    Responsibility for the security of any usernames and passwords issued (including those of any Invited Users) rests with You. The Company does not recommend that You share your user name and password with any other person nor with multiple users on a network.
4.6     No part of the Websites, Solution may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without The Company's prior written permission.
4.7    You may use any third party website which we link to our website provided that you comply with the relevant third party's terms of use for its website. However, we are not liable for any content on any third party website. (Refer to Section 7.0 Disclaimers below)

4.8   You agree to allow the words "Powered by PayTorque" to be displayed at the bottom of all communications generated by PayTorque, and at the bottom of any PayTorque delivered web sites or portals.

4.9   As part of our standard operating procedures, the Company takes full backups of all databases and copies of customised Systems every night. These backups are encrypted and sent to an off-site Data Centre in case the Company needs to restore them to an alternate operating environment. In an emergency they are a core part of the Company’s Disaster Recovery Plan with a planned recovery window of less than 48 hours.

If You are hosting PayTorque on Your local LAN, the Company will provide a local Backup of the databases and encrypt the files and provide them on a Windows File Share for inclusion in your standard overnight backup processes (this Backup is NOT part of the standard PayTorque off-site Backup process as outlined above) It is intended that You will make arrangements with Your internal IT provider to Backup these files in accordance with Your Backup Policy. The Company will provide you with the means to decrypt the files.

5.     PAYMENT & CONTRACT TERMS

5.1     The Solution is for use by a single legal entity (e.g. a company or a partnership). You may provide Invited Users with access to your account by registering them as a user of your account.
5.2     In the case of a Supply Agreement, the Agreement will come into effect on the date it is signed by the parties and will continue for the Initial Contract Term unless terminated in accordance with its terms.
5.5     The Registration Fee or deposit proportion of the Software license and Initial Setup costs, options, and additional consulting fees is due on the signing of a Supply Agreement; the balance is due within 7 days of Invoice.
5.6     The Usage Fees for the Solution are billed monthly in arrears on the last day of the month. Payment is due within 7 days of Invoice and is payable by way of electronic bank transfer.
5.7     All pricing charges and fees are exclusive of all taxes and duties.
5.8    New Zealand GST will be added to our fees at the current rate. PayTorque will provide a tax invoice as required by the Goods and Services Tax Act 1985.
5.9     Accounts that remain unpaid for 30 business days after the due date will be suspended until payment is made in full.
5.10     The Company reserves the right to terminate Your account and the Solution to You when payment is 60 days overdue.

6.     REFUND POLICY

Since PayTorque is a consumable service, we do not provide any refunds for services already delivered.
If You have any problems with your billing or payments, please email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it or call us on +64 (09) 280 3260.

7.     DISCLAIMER

7.1    While the Company endeavours to ensure that the information provided on the Websites and the information provided in connection with the Solution is correct, the Company does not warrant the accuracy and completeness of such material.
7.2     You acknowledge that:
(a) it is not possible to test the Solution in advance in every possible operating combination and environment; and
(c) it is not possible to produce Software known to be error free in all circumstances.

7.3     We disclaim any liability in relation to:
(a) the content of any third party website which may be linked to our website at any time. The links to such sites which we include in our website are merely for convenience for you and we do not necessarily endorse the content of those third party sites;
(b) information which is obtained from third parties and which we may post on our website at any time. We provide such information to you merely for convenience, and we do not necessarily endorse the products or services referred to in the information.

8.     LIABILITY

8.1     Except where clause 4.8 applies, the Company is not responsible for making on-going regular backups of any of Your data files or information that is uploaded or will be uploaded to the Solution and that the Company is not liable for any loss or corruption of any source data, files, or records as a result of connecting to and using the Solution.
8.2     The Company is not in any way responsible or liable for the services, products, actions, deliverables, performance and warranties provided by 3rd party suppliers including any Company agents, resellers, distributors, and partners where You directly engage with that 3rd party. Any engagement between You and any 3rd party will be based on agreed terms and conditions between You and that party.
8.3     The Company or any agents or resellers of the Company, take no responsibility for gaining any  permissions that may be required by your clients or recipients of communications made via the Solution to receive communications and have summary data regarding their account activity with You made, available via email and web based delivery systems.
8.4     The Company does not warrant that the use of the Solution will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the web site, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Solution. The Company is not in any way responsible for any such interference or prevention of your access or use of the Solution except where the interference or prevention of access or use of Solution is caused by the Company’s negligence.
8.5    The Company is not liable for any loss or corruption of any data, files, or records as a result of connecting to and using the Solution.
8.6     The Company is not in any way liable for any loss in business incurred by You as a result of using the Solution.
8.7    You warrant and represent that You are acquiring the right to access and use the Solution by way of software license and agreeing to these Terms for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Solution, or Software, the website or these Terms.
8.8    Subject to clauses 8.1 and 8.2, the Company’s maximum aggregate liability under or in connection with these Terms, or any collateral contract, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited in respect of any one incident, or series of connected incidents to (a) in the case of incidents not connected with implementation of the Solution, a sum equal to the access and usage fees paid by You to the Company in the twelve (12) month period immediately prior to the period giving rise to such Claim; and (b) in the case of incidents connected with implementation of the Solution, the fees paid or payable in respect of implementation of the Solution up until the “Go Live” date.

9.     LIMITED WARRANTY

9.1    The Solution is provided with a limited warranty.
Software is inherently problematic. Errors and bugs can and do occur.
Any errors, bugs or defects identified during the Warranty Period will be resolved by PayTorque at no charge.
Any errors, bugs or defects identified after the Warranty Period which arise as a result of a systemic problem, rather than as a result of Your particular circumstances, will be resolved by the Company as the company provides upgrades to the Solution over time as part of the annual software maintenance fee.
Where such errors, bugs, and errors occur, PayTorque reserves the right to determine the nature and timing of the resolution.
9.2    The Warranty Period is 30 days for PayTorqueBiz and 60 days for PayTorquePro or PayTorqueCorp from the time of “go-live” for any particular phase or milestone in the implementation process, following which time the terms of the appropriate Service Level Agreement will apply.
9.3    PayTorque Service Level Agreement
PayTorque provides several levels of support that are defined in the Service Level Agreement associated with the particular Solution that you agree to purchase.
9.4    In no event shall PayTorque or any other party who may have distributed the Solution, be liable to You for any special, incidental or consequential damages arising out of the use or inability to use the Solution (including but not limited to loss of data or data being rendered inaccurate or losses sustained by You or third parties or a failure of the Solution to operate with any other programs), even if such holder or other party has been advised of the possibility of such damages.
9.5    Each Party warrants that no additional authorisation, consent, approval, filing or registration with any court or government department, commission, agency or instrumentality is or will be necessary or required for the Party to enter into and give effect to this Agreement.

10.     TERMINATION

10.1    Subject to clause 10.2, either Party may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if:
(a) there is a material breach of the Agreement by the Defaulting Party which can be remedied but is not remedied by the Defaulting Party within fourteen (14) days of being instructed to do so (or within such other period reasonably specified in the instruction); or
(b) an order is made or an effective resolution is passed for the liquidation, receivership, voluntary administration or other insolvency administration of the Defaulting Party.
10.2    Early Termination Penalties:
Except where You lawfully terminate this Agreement under clause 10.1, if you have a term contract with the Company and terminate this Agreement prior to the expiry of the contract, then the following penalty payment will apply:
The penalty fee will be calculated at 50% of the Average Monthly Billing or Minimum Monthly Fee, (whichever is greater) multiplied by the number of months remaining in the term of the contract. The Average Monthly Billing will be calculated as the average billed amount over the 3 month period prior to the termination notice.
10.3     Upon termination for any reason:
(a)     all rights granted to You under these Terms shall cease;
(b)     You must cease all activities authorised by these Terms;
(c)     You must immediately pay to the Company any sums due to the Company under these Terms including any partial month usage fees when paying in arrears;
(d)     You will not be entitled to any refund or credit in respect of any fee paid by You in advance or partial month fees, including any Minimum Fees that apply, incurred for any cancelled Solution;
(e)     You will immediately pay any early termination penalty fees owing as per clause 10.2 above;
(f)     a copy of all of Your information held in the  Company system will be provided to You prior to deleting it from our servers;
(g)     any confidential information held by either Party pertaining to the other Party will immediately be returned to the issuing party.

11.     TRANSFER OF RIGHTS AND OBLIGATIONS

11.1     These Terms are binding on You and us, and on our respective successors and assigns.
11.2     You may not transfer, assign, charge or otherwise dispose of these Terms or any of your rights or obligations arising hereunder, without our prior written consent.
11.3     We may not transfer, assign, charge, sub-contract or otherwise dispose of these Terms, or any of our rights or obligations arising hereunder, without prior notice.

12.    NOTICES

All notices given by You to us must be given to PayTorque Limited at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or in writing to PayTorque Limited, PO Box 101-996 NSMC, Auckland 0745, New Zealand. We may give notice to You at either the e-mail or postal address You provided to us when registering. Notice will be deemed received and properly served; 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the serving of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

13.     EVENTS OUTSIDE OUR CONTROL

13.1     We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder that is caused by events outside our reasonable control (a “Force Majeure Event”).
13.2     A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a)     strikes, lock-outs or other industrial action;
(b)     civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c)     fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d)     impossibility of the use of public or private telecommunications and data networks.
13.3     Our performance is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.

14.     WAIVER

14.1     If either Party fails, at any time to insist upon strict performance of any of the other Party’s obligations under these Terms, or if a Party fails to exercise any of the rights or remedies to which it is entitled hereunder, this shall not constitute a waiver of such rights or remedies and shall not relieve the other Party from compliance with such obligations.
14.2     A waiver of any default shall not constitute a waiver of any subsequent default.
14.3     No waiver by either Party of any of these Terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the other Party in writing.

15.     SEVERABILITY

15.1     If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

16.     ENTIRE AGREEMENT

16.1     These Terms and any document expressly referred to in it represents the entire agreement between us in relation to the use of the Websites and the provision of the Solution and supersedes any prior agreement, understanding or arrangement between us, or any agent representing us, whether oral or in writing.
16.2     We each acknowledge that, in entering into these Terms, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into these Terms except as expressly stated herein.

17.     DISPUTES RESOLUTION

17.1     If a dispute arises out of or relates to these terms and conditions (the Dispute) a party to the Contract may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
17.2     A Party claiming the Dispute has arisen under or in relation to the Contract must give written notice to the other Party specifying the nature of the Dispute.
17.3     On receipt of that notice, the Parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
17.4     If the Dispute is not resolved within 15 Working Days of the notice being given pursuant to clause 17.2 (or within such further period agreed in writing by the Parties) either Party may, by giving written notice to the other Party, request the Dispute to be determined by the arbitration of a single arbitrator.  The arbitrator will be appointed by the Parties or, failing agreement within 5 Working Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society on application of either Party.  The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.

18.    CONFIDENTIALITY

18.1    A Party shall not without the prior written approval of the other Party, disclose the other Party’s confidential information.
18.2    A Party shall not be in breach of subclause 18.1 in circumstances where it is legally compelled to disclose the other Party’s confidential information.
18.3    Each Party shall take all reasonable steps to ensure that its employees and agents and any subcontractors engaged for the purposes of the Agreement, do not make public or disclose the other Party’s confidential information.
18.4    A Party may at any time require the other Party to arrange for its employees, agents or subcontractors engaged in the performance of the Agreement to execute a suitable confidentiality agreement.
18.7    This clause shall survive the termination of the Agreement.

19.     GOVERNING LAW AND JURISDICTION

This legal notice shall be governed by and construed in accordance with New Zealand law. Disputes arising in connection with this legal notice shall be subject to the exclusive jurisdiction of the New Zealand Courts.

20.     ISSUING PARTY & CONTACTS

20.1     These Terms are issued by PayTorque Limited, a private limited liability company registered in New Zealand.
20.2     If you have any questions, concerns or complaints in relation to the Websites, the Solution or these terms and conditions, please contact PayTorque Ltd or by sending an email to: This e-mail address is being protected from spambots. You need JavaScript enabled to view it or in writing to PO Box 300-002, Albany, Auckland 0752, New Zealand.