Last updated: Apr 15th 2019
- These are the terms and conditions (the "Terms and Conditions") that apply to your access to, and use of, Laybuy's payment platform ("Platform") developed and owned by Laybuy Holdings Limited ("we", "us" and "our" and includes our officers, employees, contractors, agents, successors and assignees). Accordingly, please read these terms and conditions carefully.
- Where we refer to "you" or "your" in these Terms and Conditions, we mean any individual using the Platform.
- By accessing and using the Platform, you acknowledge you have read, and agree to comply with, these Terms and Conditions. If you do not wish to be bound by these Terms and Conditions, do not download, access or use the Platform.
- We reserve the right to amend these Terms and Conditions, in whole or in part, for any reason at any time. If we amend these Terms and Conditions the amendments will be effective immediately upon posting of the amended Terms and Conditions on our website and the date at the beginning of these Terms and Conditions will be updated to the date such amendments take effect. We will also email you with a link to the new Terms and Conditions. Any amendments we make do not change the Terms and Conditions of a purchase made using the Platform and the payment of the Purchase Price (see clause 2.2(b)) that applied at the time of the purchase. You are responsible for checking, and ensuring you are familiar with, the latest Terms and Conditions applicable at the date of purchase. Your continued use of the Platform after any amendments are made will be confirmation of your acceptance of these Terms and Conditions as amended.
Purchasing goods and services on your behalf
- The Platform permits you to purchase certain goods and services made available by retailers approved by us ("Merchants"). Some of the goods and/or services a Merchant sells may not be able to be purchased using the Platform. The Merchant will advise you if this is the case.
- When using the Platform in a store or online:
- you instruct us to purchase a product or service you identify with the Platform ("Product" or "Service", as the case may be), on your behalf, from a Merchant;
- we will pay the full amount of purchase price for the Product or Service inclusive of GST, delivery costs, booking fees, service charges and other fees the Merchant may impose ("Purchase Price") to the Merchant;
- the Merchant will arrange for delivery of the Product or Service to you (with delivery times dependent on the Merchant and that Merchant's delivery terms and conditions), and in the case of the Product it will become your exclusive property on delivery;
- the Merchant will pay us a commission fee for assisting to procure the sale of the Product or Service to you; and
- you unconditionally, and irrevocably, agree to pay to us the Purchase Price on the terms set out in these Terms and Conditions.
Fees and payment
- Subject to clause 3.2, you must pay us the Purchase Price for each Product or Service you purchase using the Platform in six equal weekly instalments. The first instalment will be due and payable at the time you purchase the Product or Service. The second instalment will be due and payable on the day of the week you select when you confirm your payment schedule at the time of purchase and each of the four subsequent instalments will be due and payable on the same day of week as the second instalment in the weeks following. For example, if you purchase a Product or Service on a Friday, and the Purchase Price is $120.00, on the date of purchase you will pay $20.00 and, if, for example, you select all the following payments to be made on a Wednesday, on each Wednesday in the following five weeks you will be required to pay us an instalment amount of $20.00.
- When you first access the Platform, you will be assigned a transaction limit ("Your Limit"). If:
- the Purchase Price for the Product or Service; or
- the Purchase Price and the aggregate of all other amounts you owe us in respect of the Products and Services,
- You will not be charged any interest on the amounts you are required to pay to us.
- By using the Platform, you grant us a direct debit authority to deduct all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise under these Terms and Conditions (including default fees), from your nominated debit card or credit card. Your payment method will need to be approved by us before you will be able to purchase any products or services using the Platform.
- You will be responsible for ensuring you have sufficient available funds on your nominated debit card or sufficient available credit on your credit card, depending on the payment method we register on your account, to enable us to deduct all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise, under these Terms and Conditions. You will have sole responsibility for paying all bank and/or card charges associated with any payment method we approve for you.
- At any time, you can pay some, or all, of the Purchase Price to us in advance of the due date of the instalment payments referred to in clause 3.1, without penalty. If you make any such early payment, all subsequent instalment payments will be adjusted accordingly so the same amount is due for payment on each subsequent instalment date (unless you prepay the full amount of the Purchase Price in which case there will be no more instalments).
- The Purchase Price will include goods and services tax chargeable under the Goods and Services Tax Act 1985 (as may be amended, consolidated, re-enacted or replaced at any time).
- If for any reason whatsoever you fail to, or are unable to, make an instalment payment on its due date, you will have a further 24 hours to pay. If you fail pay within 24 hours of the due date, we will charge you a default fee of $10.00. If you do not rectify your default by making the missed instalment payment within the next seven days, we will charge you a further default fee of $10. As a result, you could be charged, in aggregate, $20 for each instalment payment you miss or which is paid late (and by using the Platform, you agree these default fees are fair and reasonable given the time and cost we will incur in dealing with your default). We may also arrange for a debt collection agency to collect the amount you owe us from you.
- You may download the Platform for free (although you will need an internet connection to download, access and use the Platform and you may incur charges or fees from your mobile network provider associated with the same).
- You will not, for any reason, set off, deduct or withhold any amount in respect of payments due to us under these Terms and Conditions.
Your account, log in and security
- When you first use the Platform, you will be required to provide certain log in information (including a user name, password and pin number) that will enable you to access the Platform each time you wish to use the Platform to purchase products or services. You must keep your log in information secure to avoid use of the Platform using your log in details by other persons.
- You must not permit use of the Platform using your log in details by any other person. If the Platform is used by any other person with your log in details, or if you know or suspect any other person has obtained your log in details, you must immediately notify us at [email protected]
- You must exercise every possible care to ensure the safety of your computer or mobile device by taking all reasonable care to prevent loss, theft and unauthorised or fraudulent use.
- If the Platform is used by another person to purchase a Product or Service, you will be personally liable to pay the Purchase Price of that Product or Service to us in accordance with these Terms and Conditions.
Dealings with Merchants
- As a consumer, under law you have certain rights and protections in respect of goods or services you purchase using the Platform (including under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986). We are 'in trade' for the purposes of the Fair Trading Act 1986.
- If you have any complaint, concern or other issue with a Product or Service, that concern or issue should first be addressed directly to the Merchant (in accordance with the Merchant's policy for the same). The Merchant may have a returns policy on its website.
- If, in accordance with the Merchant's consent and/or instructions, you return the Product to the Merchant or the Service is to be delivered to you again, any arrangements for the supply of a replacement good or service should be made with the Merchant. In such circumstances, your obligation to pay the Purchase Price to us continues unaffected.
and the Merchant agrees you should receive some or all your money back, your obligation to make the instalment payments referred to in clause 3.1 or clause 3.2 (as applicable) will continue unaffected until the Merchant advises us:
- the Product is returned to the Merchant and not replaced; or
- the Service is not provided or not provided to your reasonable satisfaction,
- the Product has been returned and not replaced; or
- the Service has not been provided or not provided to your reasonable satisfaction,
- If you are not satisfied with the way in which the Merchant deals with your concern or issue, or your concern or issue is not resolved or otherwise addressed by the Merchant to your satisfaction, you should notify us in writing at [email protected] including details of your complaint. While we will use reasonable endeavours to assist you with your subsequent dealings with the Merchant, until the concern or issue is resolved your obligation to make the instalment payments referred to in clause 3.1 will continue unchanged.
- We provide no guarantee or other assurances in respect of the timing of any refunds as timing will be influenced by the actions of the relevant Merchant and the bank being used.
Your covenants and representations
- You agree not to use the Platform:
- to purchase any Product or Service where payment of the Purchase Price to us in accordance with these Terms and Conditions will, or is likely to, cause you any financial hardship;
- for any unlawful, fraudulent or improper purpose;
- in any manner which does, or may, damage, disable, overburden or otherwise impair the Platform or interfere with any other person's use and enjoyment of the Platform;
- to introduce any harmful information or materials (which includes any spyware, viruses, worms, trojan horses, harmful scripts or codes or any other damaging items which could interfere with the Platform, our software, hardware, network or computer system); and/or
- if you are aware your computer or mobile device has such harmful information or materials installed on it.
- You will not remove any restrictions imposed by us, the software or the operating system, that delivers the Platform.
- You represent and warrant that:
- you are 18 years of age or older;
- the information you provide to us when you access the Platform for the first time, and any subsequent information you provide to us, will be true, complete and accurate in all respects; and
- if any of your circumstances change resulting in any information you have previously provided to us no longer being true, complete and accurate in all respects you will immediately notify us by email at [email protected]
- You agree not to use the Platform:
- For the purposes of these Terms and Conditions, "Intellectual Property" means all rights to, and interests in, any copyright, trade mark, patent, design, know-how, trade secret, domain name, rights in software, rights in inventions, and any other proprietary right or form of intellectual property (whether protectable by registration or not).
- All Intellectual Property in the Platform is owned by us and none of the contents of the Platform may be used, reproduced, copied or distributed, in any way whatsoever, other than for the purpose of using the Platform for your own personal use.
- You must not copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post to other applications or websites, change, or otherwise distribute, license, sub-licence or transfer in any form any aspect of the Platform.
- If any person claims your use of the Platform infringes a person's Intellectual Property, you must notify us and allow us to deal with that claim which may, at our absolute discretion, include us, amongst other things, settling or modifying the Platform to the extent necessary to avoid or minimise the claim.
Upgrades and maintenance
- We may, from time to time, issue upgraded versions of the Platform, and/or may automatically upgrade the version of the Platform you are using, without notice to you. If you use the Platform, you will be deemed to have consented to any such upgrades.
- You acknowledge the Platform may be unavailable from time to time due to errors, defects, maintenance or events that may be outside of our control.
- You may stop using the Platform at any time. If you also wish to terminate or close your account with us, you will need to email this request to us at [email protected]. On the date your account is terminated or closed at your request, you will remain liable to pay us the Purchase Price for each Product or Service you have purchased using the Platform prior to that termination or closure.
- We may block, suspend, restrict or otherwise terminate your access to, or use of, the Platform, at any time. If your access to, or use of, the Platform is blocked, suspended, restricted or terminated:
- we will provide you notice by email; and
- you will remain liable to pay us the Purchase Price for each Product or Service you have purchased using the Platform.
Limitation of liability and indemnity
- You have statutory protections under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 (including statutory guarantees relating to title, delivery, quality and fitness for particular purpose of products, and that services will be provided with reasonable skill and care and be reasonably fit for a particular purpose) and these rights cannot be excluded or limited by these Terms and Conditions.
- Subject to clause 10.1:
- any and all liability and responsibility we may have to you, or any other person, under or connection with your access to, or use of, the Platform, these Terms and Conditions and/or your inability to use the Platform, regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise, is limited to a maximum amount of the Purchase Price of the Product or Service; and
- our liability and responsibility is excluded for any indirect or consequential loss or damage of any kind (including, but not limited to, any loss of opportunity, anticipated savings or unauthorised use).
- Subject to clause 10.1, but without limiting our rights and remedies, you agree to indemnify us, as a continuing indemnity, against all costs, losses, liabilities (including legal and other professional expenses on a full indemnity basis), claims, demands, damages, fines and penalties (including any consequential or indirect losses) we may incur or otherwise suffer arising directly or indirectly out of, or in connection with, your access to, or use of, the Platform, except where such loss arises from our acts or omissions.
We have made all reasonable efforts to ensure that the Platform will function properly but, subject to clause 10.1 we do not guarantee that the Platform will be:
- error-free, uninterrupted, continuously available, or free from viruses or malicious programmes; or
- compatible with any particular computer or mobile device.
- We have made all reasonable efforts to ensure that the Platform will function properly but, subject to clause 10.1 we do not guarantee that the Platform will be:
Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and privacy
- We are a "reporting entity" for the purposes of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 ( "AML/CFT Act"). Accordingly, we are required by the AML/CFT Act to collect certain personal information from you (including, but not limited to, satisfactory evidence to enable us to verify your identity). If we require information to satisfy our legal obligations, you must provide the information we request.
- By using the Platform you consent to us collecting your personal information and using it for any purpose associated with your use of the Platform and/or our delivery of the Platform to you including (but not limited to):
- ensuring we comply with our obligations under the AML/CFT Act and other laws;
- for administrative and credit assessments purposes;
- aggregating your information with the information of others for the purposes of assessing the types of persons using the Platform and determining Platform usage trends; and
- sending you push notifications, text messages and/or emails about upgrades, maintenance, features, services or other information relating to your access to, or use of, the Platform (including promotional and marketing information concerning the Platform and/or the products and services of the Merchants).
- You authorise us (or any agents or contractors providing services on our behalf) to disclose your personal information to other persons to the extent required by law, which may include us reporting any credit account information and default by you, these Terms and Conditions and/or for credit assessment purposes (which may include us reporting any default by you in paying amounts due to us to credit assessment agencies).
- Subject to clause 10.1, while we will employ technical security measures to protect your personal information, no transmission over the internet can be guaranteed to be completely secure.
- We may collect and use information about your computer, mobile device, systems and application software to facilitate the provision of upgrades, product support and other services related to the Platform, including any of its features or tools. This may include, without limitation, collecting location information concerning you if your mobile device has a global positioning system and the device is set to allow your location to be ascertained.
- We will communicate with you through text messages or by email to your email address, and you consent to us communicating using the contact details you provide to us.
- The provisions of clauses 7, 9, 10, 11 and 12, and any other clauses that are, by their nature, intended to survive termination, will survive the termination of your access to, or use of, the Platform.
- You may not, directly or indirectly, assign, transfer or otherwise dispose of any of your rights or interests in, or obligations or liabilities under, these Terms and Conditions. We may assign our rights, interests, obligations and/or liabilities at any time without your consent or notice to you unless the assignment detrimentally affects your rights under these Terms and Conditions.
- No waiver of any breach, or failure to enforce any provision, of these Terms and Conditions at any time by us will in any way affect, limit or waive our right to enforce and compel strict compliance with the provisions of these Terms and Conditions.
- If any part of these Terms and Conditions is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of these Terms and Conditions, which will remain in full force and effect.
- The Platform is operated from within New Zealand and access to, and use of, the Platform by a person residing, or otherwise located, in any other jurisdiction is prohibited.
- The Platform is governed by, and will be construed in accordance with, the laws of New Zealand and the courts of New Zealand will have non-exclusive jurisdiction.