KlickEx Pacific Terms and
Conditions Version 2.0
KlickEx Pacific Limited
The Purpose of this
To assist you in understanding the KlickEx Pacific Terms and Conditions,
in that this document details the significant features of KlickEx Pacific
service, including how to use KlickEx Pacific and its benefits and risks.
This document is divided
into the following sections:
Section 1: Introduction
and frequently asked questions
Section 2: Terms.
This document, including the Terms and Conditions, forms your agreement
with us. You should read it carefully before deciding whether to register and
then use KlickEx Pacific. By using KlickEx Pacific, you agree that you have
received, read and understood this document, and accept the Terms and
Conditions. If you have any questions about the information in this document or
KlickEx Pacific, please contact us.
Capitalised terms and expressions used in this document
have the meanings given to them at the beginning of the Terms and Conditions in
This document is
effective 28 September 2013.
Section 1: Introduction and
and Important Information
Section 2: Terms and
1.1 This document, including the Terms, forms your agreement with us. You
should read it carefully before deciding whether to register and then use KlickEx
Pacific. By using KlickEx Pacific, you agree that you have received, read and
understood this document, and accept the Terms.
Definitions and Interpretation
2.1 In this Agreement:
Additional Services means any
additional services added by KlickEx, notified to You
and You subscribing to such services.
Agreement means this agreement
including any annexures and schedules.
Authorisation Limit means a
limit on the value of an Order or all Orders that the Customer or an Authorised
User may place with KlickEx.
Authorised User means any
User to whom a login and password has been provided by the Customer.
Credit Limit means a
limit on the total amount of credit that KlickEx will provide to the Customer.
Confidential Information means
is by its nature
(b) is treated by each party as confidential; or
(c) each party knows or ought to know is confidential,
or becomes public knowledge otherwise than by breach of this Agreement; or
has been independently acquired or developed by a
party to this Agreement.
Consequential Loss means and
includes: indirect loss and special damages; loss of revenue; loss of profits;
loss of business; loss of anticipated savings; loss of goodwill; loss of data;
claims of third parties; and loss or costs associated with Clause 25.
Customer/User means any person registering and using the KlickEx Pacific Service.
Identification Procedures means those
identification and verification procedures which need to be completed to comply
with the Financial Transactions Reporting legislation and know your customer
requirements of the Territory.
Day means a day
on which commercial banks are open for business (including dealings in foreign
exchange) in the place specified by KlickEx for that purpose;
Equipment means Your computer or any other device used to access to the
Fees mean the Tariffs and other
charges payable by You under this Agreement for use of
Financial Transactions Reporting legislation means the Financial Transactions Reporting Act and any subsequent
amendments or regulations (collectively ‘the Act ’).
Instruction means any
instruction or request given by the Internet.
Internet means the interconnected
system of networks that connects computers around the world.
KlickEx means KlickEx Pacific Limited including its subsidiaries and includes
the officers, employees, agents and subcontractors of KlickEx.
Personnel means employees, officers and agents of KlickEx.
KlickEx Services includes all of the services, including the KlickEx Send Money Services
provided by KlickEx to the Customer from time to time.
KlickEx Website means the KlickEx
website named www.klickexpacific.com
Law means any statute, regulation, rule, subordinate
legislation or other document enforceable under any statute, regulation, rule
or subordinate legislation.
Send Money means the
transfer of Money from one Customer to another Customer using the KlickEx
Pacific Platform or to a customer from a Third Party Network.
Order means a transaction in
which the Customer agrees to purchase or sell currency from or to KlickEx or
enter into any other transaction with KlickEx for the KlickEx Services.
Party means either You or KlickEx.
Password means the four digit
identification code or more chosen by a Customer at the time of activating
their account and used to access and operate the KlickEx Services.
Terms means anything set out in
Territory means Australia, Fiji, New
Zealand, Samoa, Tonga and the UK.
Transaction means any
Order in which the Customer agrees to purchase or sell currency from or to KlickEx
or enter into any other transaction with KlickEx for the KlickEx Services.
Value Date means either
the Day selected by the Customer and agreed by KlickEx/Digicel for the
settlement of an Order or if there is no such Day, then the third Day after the
execution of an Order by the Customer.
means the Customer/User.
2.2 In this Agreement:
(a) the singular includes the
plural and vice versa;
to clauses are included for the sake of convenience only and shall not affect
the interpretation of the clauses to which they relate;
to any statute or statutory provision include that statute or statutory
provision as amended, extended, consolidated or replaced by subsequent
legislation and any orders, regulations, instruments or other subordinate
legislation made under the relevant statute;
(d) this Agreement shall bind
each party’s legal personal representatives, successors and assigns.
KlickEx Pacific Account Application and Required Information
3.1 Before You can commence using KlickEx Services
You must register with KlickEx or on the KlickEx Website in the prescribed
3.2 You must provide to KlickEx all Customer Identification documents before
you may be registered for KlickEx Pacific.
3.3 You agree that You:
(a) will supply to KlickEx, upon request, any information in order for KlickEx
to provide KlickEx Pacific to You;
(b) authorise KlickEx to obtain from and provide to any third party in the Territory
such information as may be reasonably required for the purpose of providing KlickEx
Pacific, including in the resolution of complaints.
(c) authorise KlickEx to receive and disclose any information about You to
local and international law enforcement or any competent regulatory or
governmental agencies to assist in the prevention, detection or prosecution of
criminal activities or fraud;
(d) authorise KlickEx to receive and disclose any information about
You to and from our service providers, dealers, agents, or any other
company that may be or become our subsidiary, parent company or partner, for
reasonable commercial purposes connected to Your use of KlickEx Pacific, such
as marketing and research related purposes;
(e) authorise KlickEx to receive and disclose any information about You to
facilitate our ability to carry out any activity in connection with a legal,
governmental or regulatory requirement;
(f) authorise KlickEx to receive and disclose any information about You to our
lawyers or auditors or to the applicable court in connection with any legal or
audit proceedings (notwithstanding that any such proceedings may be of a public
3.4 You must ensure that You provide accurate
information to satisfy the Customer Identification Procedures and any of our
requests under this Agreement.
3.5 KlickEx may at its sole discretion decline Your
application for KlickEx Pacific.
4 The Customer
4.1 Representations and
At the time of entering into this Agreement and immediately before
entering into any transaction contemplated by this Agreement, the Customer
represents and warrants to KlickEx that:
(a) If the Customer is a
natural person, the Customer is of sound mind, at least 18 years of age, and
possesses full legal competence;
(b) If the Customer is not a natural person,
(i) the Customer is duly organized and validly existing under
the applicable laws of the jurisdiction of its organisation;
execution and delivery of this Agreement and all other transactions
contemplated under it and performance of all obligations contemplated under
this Agreement and all other transactions contemplated under it have been duly
authorised by the Customer;
(iii) it has the power to
enter into and perform its obligations under this Agreement, to carry out the
transactions contemplated by it and to carry on its business as now conducted
or contemplated; and
(iv) each person executing
and delivering this Agreement and all other transactions contemplated under it
on behalf of the Customer, performing the obligations contemplated under this
Agreement and any other transaction contemplated under it on behalf of the
Customer, has been duly authorised by the Customer to do so;
(c) If the Customer enters
into this Agreement in its capacity as the trustee of a trust, the Customer
makes the following representations and undertakings:
(i) the relevant
trust instrument is valid and complies with the Law;
(ii) the Customer is properly appointed as
sole trustee of the trust;
(iii) the Customer has a right of indemnity
from the trust assets in respect of this Agreement and the transactions
contemplated by it;
(iv) the Customer will comply with its
duties as trustee of the trust;
(v) the Customer will not do anything
which may result in the loss of its right of indemnity from the trust assets;
(vi) the Customer will remain sole trustee
of the trust;
(vii) if, despite the above, the Customer is replaced or joined as trustee,
the Customer will make sure the new trustee becomes bound to the Customer’s
satisfaction by this Agreement and any other agreement relating to a
transaction contemplated by this agreement to which the Customer is expressed
to be a party, or by a document which is identical in effect;
Customer will not resettle, set aside or distribute any of the assets of the
trust without KlickEx’s consent unless compelled to do so by the trust
Customer will not amend or vary the trust instrument.
(d) Execution and delivery
by the Customer of this Agreement, and performance of all of the Customer’s
obligations contemplated under this Agreement, does not violate any Law
applicable to the Customer;
(e) All information
provided by the Customer to KlickEx, including, but not limited to, the
information provided on the Application Form, is true, correct and complete,
and the Customer will notify KlickEx promptly of any changes in such
(f) All information
provided by the Customer to KlickEx is true in all material respects as at the
date of this Agreement or, if later, when provided. Neither that information
nor the Customer’s conduct or the conduct of anyone acting on its behalf in
relation to the transactions contemplated by this Agreement, was or is
misleading, by omission or otherwise.
4.2 Acknowledgement by the Customer
The Customer acknowledges that KlickEx has entered into this Agreement
and will enter into the transactions contemplated by this Agreement in reliance
on the representations and warranties in Article 4.1.
4.3 Joint and Several Liability
If the Customer is comprised of two or more legal persons then a
reference to a right or obligation of the Customer under this Agreement or
under a transaction contemplated by this Agreement confers that right or
imposes that obligation, as the case may be, jointly and severally on those
5 What are the Services?
can only use KlickEx Send Money subject to the Terms in this Agreement.
5.2 When You are validly registered KlickEx may provide the following
as KlickEx Pacific Services:
(a) Send Money;
(b) Additional Services.
5.3 KlickEx will use its best
efforts to provide KlickEx Pacific and enable You to
access the services 24 hours each day, 7 days a week. KlickEx will not be
liable to You for interruptions to KlickEx Pacific.
6 Acceptance and Commencement
You are deemed
to have accepted these Terms as amended from time to time and which take effect
upon your registration to the KlickEx Pacific services.
7 Your obligations and responsibilities
7.1 You will be responsible
for all applicable Fees at the applicable rates for any Transaction effected
using the KlickEx Website.
7.2 You are solely
responsible for any transmitted material and or communication, which is
classified as defamatory, illegal or in breach of any copyright and shall
indemnify and keep us indemnified against any claims and expenses made against
us in respect thereof.
7.3 You must not use KlickEx
Pacific to commit any offence(s) against the laws applicable in the Territory.
8 KlickEx Obligations
8.1 KlickEx will hold all
Transfer Transactions for the benefit of the third party as mentioned on Your
Application Form and the latter shall be beneficially entitled to such amounts
transferred by You at that particular time.
8.2 KlickEx is not bound to
make any independent investigation of any third party’s beneficial entitlement
to the amounts transferred by You.
8.3 You further acknowledge
that, in relation to any transfer of money, we may act on instructions given by
You using your Password or instructions purported to be given by You using your
Password even if they are actually given by a third party.
8.4 You agree that:
is under no obligation to invest any amounts transferred by You;
the extent that any interest accrues, You shall have no beneficial entitlement
to such interest and KlickEx shall be entitled to retain such interest to
defray the costs and expenses of operating KlickEx Pacific or deal with such
amounts as directed under any the applicable regulatory bodies.
9.1 Indemnity and Survival
shall indemnify and hold KlickEx harmless from any and all liabilities, claims,
costs, expenses and damages of any nature, including, but not limited to,
reasonable legal fees and any fees and expenses incurred in connection with
litigation, arising out of or relating to the Customer’s negligence or wilful
misconduct, the violation of any Law by the Customer, or the breach by the
Customer of any provision of this Agreement. The Customer also agrees to
promptly pay to KlickEx all damages, costs and expenses, including reasonable
legal fees and expenses, incurred by KlickEx in the enforcement of any of the
provisions of this Agreement. The Customer’s obligations under this Article
shall survive the termination of this Agreement.
KlickEx will use reasonable precautions to maintain the confidentiality
of information it receives from the Customer and material and/or data the
Customer provides, creates, inputs or develops in connection with the
Customer’s use of the KlickEx Services. Nonetheless, because such information,
material and/or data may be provided through the Internet, the Customer hereby
acknowledges and agrees that KlickEx cannot assure that such information,
material and/or data will continue to be confidential. The Customer accepts the
risk of a third party receiving confidential information concerning the
Customer and specifically releases and indemnifies KlickEx from any claim
arising out of a third party intercepting, accessing, monitoring or receiving
any communication from a Customer intended to be provided to KlickEx or from KlickEx
intended to be provided to the Customer. The Customer acknowledges and agrees
that KlickEx may disclose the Customer’s name and other personal and financial
information about the Customer, and any relevant details of an Authorised User,
to its employees, representatives, officers, agents, and affiliates, as well as
to a governmental entity or self-regulatory authority, an Internet service
provider or any other third party agent or service provider for any purpose
related to offering, providing, administering or maintaining the KlickEx
Services, or to comply with applicable Laws. KlickEx will treat the Customer’s
may obtain by contacting KlickEx or at the KlickEx Website.
10.2 Money Laundering
Due to the inherent risks in transferring currency between parties
located in different countries, KlickEx takes extraordinary measures to ensure
that it is not participating or assisting in money laundering or terrorist
financing. Law enforcement agencies and regulatory authorities may periodically
inspect and require copies of customer information and business records held by
KlickEx. To ensure compliance with all applicable money laundering and
terrorist financing Laws, the Customer should be fully aware that in
appropriate cases all communications and information concerning the Customer
held by KlickEx including, but not limited to, details of Orders, accounts, and
related transactions, may be disclosed to and reviewed by law enforcement
agencies and regulatory authorities. In addition, the Customer agrees to comply
with all applicable money laundering and terrorist financing Laws, including,
but not limited to, the requirement to obtain satisfactory evidence of the
identity of any principal whom the Customer may represent in any transaction
entered into with KlickEx. The Customer shall comply (and shall cause the
Customer’s officers, principals and employees to comply) with all applicable
laws and regulations applicable to the Customer’s business, as the same may be
amended from time to time, including but not limited to: (a) licensing laws
applicable in each Territory; (b) anti-money laundering laws, terrorist
financing laws, cash reporting requirements and KlickEx’s written policies and
procedures (as amended from time to time) as they relate to compliance with the
detection and prevention of money laundering and cash reporting requirements;
and (c) all applicable privacy laws and regulations in each Territory.
11 Quality of Services
11.1 KlickEx Pacific is
provided through the web page www.klickexpacific.com. The quality and availability of KlickEx Pacific and related products
and services are subject to limitations including physical obstruction, network
congestion, maintenance, outages, the configuration or limitations of your
internet connection, or other operational and technical difficulties.
(a) will always do its best to provide a reasonable quality of service but KlickEx
does not warrant that they will be continuously available or fault free and
(b) does not represent or warrant that KlickEx Pacific or related products and
services shall be available in all parts of the Territory or in any other
(c) does not represent or warrant that the operation of KlickEx Pacific or
related products and services will be uninterrupted, timely, secure or
error-free or that it will meet Your or any other person’s specific
(d) does not accept responsibility for the security of any use of KlickEx
Pacific. You use the KlickEx Pacific at Your own risk and You are solely
responsible for adopting such appropriate security measures against
unauthorized access to and interference your Account (or associated
software/hardware and data) as may be necessary;
(e) may modify or suspend KlickEx Pacific and our related products and
services wholly or partly, with or without notice, if we, in our sole
discretion, reasonably believe it to be necessary or consider that such action
is necessary or desirable for the purpose of upgrading, maintaining, modifying
or otherwise the KlickEx Website or other systems or if such action is required
or reasonably requested of us by an authorized authority. We shall attempt to minimize such KlickEx
Pacific disruptions but will not be able to guarantee any minimization in each
(a) KlickEx may give a
notice (a Disturbance Notice) to the Customer at any time if it forms the view
that market conditions in the relevant financial market for the currency
concerned are seriously disturbed.
(b) This includes
circumstances where, in KlickEx’s opinion, deposits in the currency concerned
are not available in the ordinary course of business to KlickEx in the relevant
financial market or because of national or international financial, political
or economic circumstances or exchange controls, it is impractical.
(c) When a Disturbance
Notice is given, KlickEx’s obligations will be suspended while it and the
Customer negotiate alternative arrangements. If both parties reach agreement
before the Value Date, those alternative arrangements will apply. If they do
not reach agreement within that period, each will be released from its
obligations under the relevant transaction.
13 Credit Limits
(a) The Customer understands that:
(i) KlickEx may advise the Customer of a Credit Limit
applicable to some or all Orders;
(ii) KlickEx is not obliged to agree to or accept any Order;
(iii) KlickEx is not obliged to provide credit to the Customer;
(iv) any Credit Limit set by KlickEx may be
reduced or withdrawn at any time by giving Notice to the Customer.
(b) The Customer acknowledges
that if KlickEx acts on an Instruction which would result in a Credit Limit
(i) KlickEx is not
obliged to advise the Customer that the Credit Limit will be exceeded;
(ii) the Customer will continue to be
liable to KlickEx for all amounts including those above the Credit Limit; and
(iii) KlickEx is not obliged
to, though may, act upon any subsequent Instruction where a Credit Limit might
KlickEx reserves the right to refuse any Order that is incorrect,
incomplete, or unsatisfactory to KlickEx for any reason.
15 Payment of
Following Acceptance of an Order, unless otherwise agreed in writing,
the Customer must pay or deliver to KlickEx transferable cleared funds before KlickEx
is obliged to make payment on behalf of the Customer. If the Customer fails to
settle the Order on the Value Date, KlickEx may, without limiting any other
remedies that it may have, in its absolute discretion
the Value Date to a later date, by which date Customer must make settlement;
the Order, in which case the Customer must reimburse KlickEx for any
cancellation costs and other expenses incurred by KlickEx in cancelling the
order. The Customer is liable to KlickEx for all of the costs, taxes, interest,
expenses and losses incurred by KlickEx arising out of the Customer’s failure
to settle an Order and KlickEx exercising its rights under this Article.
16 Value Date
If the Value Date for the settlement of an Order is not a Day in the
jurisdiction in which any of the accounts from or to which the Customer will be
making or receiving payment for an Order is located, the Value Date for the
Order will be the first day following the Value Date that was selected that is
a Day in each of the jurisdictions in which such accounts are located.
Although KlickEx will use all reasonable efforts to process the
Customer’s Order on the same Day it is submitted to KlickEx (provided that the
Order is received before the close of business on that Day), KlickEx shall not
be responsible or liable for the time it may take financial institutions to
settle accounts. KlickEx shall not, in the absence of gross negligence or willful misconduct, be liable for delays, damages, failures
or errors in the completion of the Order.
Rate indications from KlickEx are available on the KlickEx Pacific
website (the “Indication”). The Indication is not binding, and the rates will
be as agreed when the Order is placed. As a dealer in currency, KlickEx has a
spread between its purchase and sale prices; and it bases its individualised
rates on many factors including its assessment of market conditions, its
overhead and processing costs.
19 Quoting Error
Should a quoting error occur due to a typographical error or obvious
mistake in a quote or Indication (the “Quoting Error”), KlickEx shall not
liable for any damages, claims, losses, liabilities or costs arising from the
Quoting Error. KlickEx reserves the right to make the necessary adjustments to
correct the Quoting Error. Any dispute arising from a Quoting Error will be
resolved on the basis of the fair market value, as determined by KlickEx acting
reasonably, of the relevant currency at the time such Quoting Error occurred.
20 Cancellation or
Should the Customer subsequently wish to reverse, alter or cancel any
Order made by Internet on the KlickEx Pacific Website, the Customer shall be
liable to reimburse KlickEx in full, on demand, for any loss or costs incurred
by KlickEx as a result of such reversal, cancellation or amendment.
21 Confirmation of Orders
An Order made by the Internet on the KlickEx Pacific Website will be
confirmed by KlickEx in writing to the Customer by email and the Customer shall
on receipt of the Order, immediately notify KlickEx by phone and in writing of
any discrepancy, otherwise the Customer shall be deemed to have accepted the
confirmation as an accurate record of the transaction.
22 Internet Ordering
through KlickEx Pacific Website
If the Customer uses KlickEx’s website based foreign exchange ordering
system (the “Internet System”), the Customer confirms and accepts the
(a) The exchange rates
quoted on the Internet System are indicative only and may change. The actual
exchange rate will be as agreed when the Customer’s Order is booked. The booked
exchange rate may be different to the rate quoted on the Internet System for a
number of reasons, for example, because the Order is booked sometime after the
quoted rate was given.
(b) All transactions must be
completed using the logins and passwords chosen by the Customer and valid entry
of such a login and password will constitute an authorisation by the Customer
to complete the Order specified irrespective of whether the login and password
are entered by an Authorised User.
(c) The Customer must ensure that the logins and passwords are kept
secure and confidential. The Customer must also ensure that each Authorised
User to whom a login and password is provided, will keep them secure and
(d) The Customer must ensure that no unauthorised person is able to
use the logins and passwords. As part of this obligation the Customer must
ensure that each Authorised User quits the Internet browser whenever he or she
leaves his or her computer after using the Internet System.
(e) The Customer must promptly verify all Orders to ensure that the
details of those Orders match the Customer’s records and the Customer will
report any discrepancies to KlickEx on the same day.
(f) KlickEx may at any time without Notice to the Customer suspend,
withdraw or deny access to the KlickEx Website for any reason including but not
limited to security, quality of service, failure by the Customer to pay an
amount when due or breach by the Customer of any provision of this Agreement.
23.1 Informational Purposes
Information provided by KlickEx and other entities on the KlickEx
Pacific Website is believed to be accurate and reliable when placed on this
site, but KlickEx cannot guarantee it is accurate or complete or current at all
times. Information on the KlickEx Pacific Website is for informational purposes
only and is not intended to provide financial, legal, accounting or tax advice
and should not be relied upon for those purposes.
This Agreement shall be governed by the laws of New Zealand. The parties
submit to the exclusive jurisdiction of the courts of that Country.
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (”Notice”) shall be in writing
(a) If to the Customer, it
is to be sent by prepaid registered mail or delivered by hand to the address of
the Customer set out in this Agreement, or such other address the Customer
designates in writing, or by KlickEx posting a Notice to the KlickEx Website;
(i) if posted on the KlickEx Website, Notice is deemed to have
been given 3 Days after the Notice was posted on the KlickEx Website; or
the Notice was sent to the address of the Customer, the Notice is deemed to
have been given on the Day after the Notice was sent, unless delivered by hand
in which case the Notice is deemed to have been given on delivery.
(b) If to KlickEx, be sent by
prepaid registered mail or delivered by hand to the address of KlickEx set out
in this Agreement, or such other address KlickEx designates in writing, and
such Notice is deemed to have been given on the Day after the Notice was sent,
unless delivered by hand in which case the Notice is deemed to have been given
on delivery. Any Notice given or made under this Agreement may also be sent by
(i) the Notice is sent to the email address last notified by the
intended recipient to the sender; and
sender keeps an electronic or printed copy of the Notice sent. A Notice sent by
email will be deemed to have been given on the first to occur of: (a) receipt
by the sender of an email acknowledgement from the recipient’s information
system showing that the Notice has been delivered to the email address stated
above; (b) the time that the Notice enters an information system which is under
the control of the recipient; and (iii) the time that the Notice is first
opened or read by an employee or officer of the recipient.
In using the KlickEx Pacific Website and/or any KlickEx Service, the
Customer and KlickEx are expressly authorised to send financial and other data
as well as electronic messages to each other through the Internet. The Customer
acknowledges that when the Internet or any other means of electronic
communication are used to transmit or receive data and messages, the data and
the messages may be accessed by unauthorised third parties. KlickEx shall not
be liable to the Customer for any loss or damages in connection with any data
and messages which may be accessed by unauthorised third parties. The risk of
such unauthorised third party receipt of information confidential to the
Customer is expressly acknowledged and accepted by the Customer when using any KlickEx
Service. The Customer releases and indemnifies KlickEx from any claim arising
out of an unauthorised third party accessing data or messages being transmitted
between the Customer and KlickEx.
Hyperlinks or other links to or from websites outside of the KlickEx
Pacific Website are for the convenience of KlickEx’s clients only. KlickEx does
not review, monitor, endorse or control, and is not responsible for, any sites
linked to or from the KlickEx Pacific Website. KlickEx will not be liable for
any damages in respect of linking or in consequence of following a link.
24.1 This Agreement shall
continue and be in effect until terminated by the Customer or KlickEx. Either
party may terminate this Agreement at any time, effective as of the close of
business on the Day Notice of termination is given. From and after termination KlickEx
shall not be required to accept or process any Order thereafter placed by the
24.2 Subject to paragraph
24.3, termination by either party shall not affect any Order or other
transaction previously entered into and shall not relieve either party of any
outstanding obligations arising out of this Agreement, nor shall it relieve the
Customer of any obligations arising out of any Order entered into prior to such
24.3 In the event that KlickEx is made aware of
or has reason to believe any of the following:
(i) that the
Customer has provided false or misleading information to KlickEx; or
(ii) that the Customer has participated or
is participating or has assisted or is assisting in money laundering or
the Customer is being officially investigated by law enforcement and/or
regulatory agencies; or
(iv) that an Insolvency Event has occurred,
at its sole discretion, may terminate this Agreement immediately by Notice to the
Customer, and KlickEx shall be relieved of any obligations set out in this
Agreement or arising out of the transactions contemplated by this Agreement,
including any obligations arising out of any Order already placed with and
accepted by KlickEx.
25 Exclusion of liability
25.1 KlickEx shall not be
liable for the loss of cash or unauthorized use of Your Account or has been
accessed by an unauthorized User.
25.2 KlickEx shall not be
liable for any indirect or consequential damage suffered by the Customer for
any defect or failure in the performance of KlickEx Send Money by reason of any
mistake, omission, interruption, or delay.
25.3 Insofar as it is
permissible by law, KlickEx shall not be liable for any injury, loss or damage,
whether foreseen or unforeseen, directly or indirectly (and including
Consequential Loss) resulting from:
(a) any failure, interruption, delay, suspension or restriction in providing
KlickEx Pacific to You which is due to a force majeure event set out in Clause
(b) any suspension or
non-availability of a part or the whole of the KlickEx Pacific;
(c) suspension or termination of this Agreement;
(d) any unlawful or
unauthorised use of or access to the Equipment, KlickEx Pacific and/or KlickEx
Website by You or third parties;
(e) any claim arising
out of any act or omission by You, Your servants or agents or arising out of
any reliance placed by such persons on call content;
(f) any claim arising
in relation to the provision or non-provision, maintenance or use of the Equipment,
or website being lost or the failure to connect to the KlickEx Pacific website
or by the Equipment for whatever reason.
25.4 Further to above, KlickEx,
our associated or affiliated companies, and our and their respective officers,
agents, directors, principals, employees, attorneys, underwriters, advisors,
successors and assigns will not be liable for or in respect of any effects,
claims, actions, proceedings, suits and causes of action (whether at law or in
equity and including emotional distress), liens, debts, damages, fatalities,
losses or injury (whether property or personal, consequential or otherwise),
judgments, liabilities, costs and expenses of every nature kind whatsoever,
whether known or unknown, suspected or unsuspected arising out of or in respect
to the Equipment, KlickEx Pacific and/or KlickEx Website by or through the KlickEx
Website and/or Equipment.
25.5 If KlickEx offers
services as agents of any principal provider or providers, or as contractors, KlickEx
will accept neither responsibility nor liability to You for the performance,
loss of profit, emotional or mental distress or disappointment, or provision
thereof by such providers so long as we have identified the providers to you
and identified ourselves as agents or contractors.
25.6 In the event that KlickEx
is liable to You under any rights You may have under any legislation, for which
our liability is not able to be excluded, then where our liability is able to
be limited, then we choose to limit our liability to replacing the relevant
goods or services where it is fair and reasonable to do so.
25.7 KlickEx will not at any
time, in any circumstances, be liable for any loss or damage whatsoever
including but not limited to any loss of data, loss of savings, loss of
business, loss of profit, or any other direct, indirect, special or
consequential damage, in each case whether arising from negligence, breach of
contract, breach of statutory duty or otherwise which is in any way connected
with or arises out of Your use of KlickEx Pacific.
25.8 KlickEx and KlickEx
Personnel will not be liable for any failure to perform their and our
obligations if such failure arises from such circumstances reasonably beyond
their and our control. These circumstances include, but are not limited to,
strikes at a national level or industrial disputes at a national level,
lockouts, riots, labour disputes, epidemics, earthquakes, fire, floods and
other acts of nature, government action or their agencies, war, sabotage or
inability to obtain sufficient labour, fuel or utilities, failure of telecommunications lines, power failures, power interruptions or shortages, failure or breakdown of machinery, computer or processing systems failures, theft, malicious damage, strike, lock-out or industrial action of any
25.9 KlickEx will not be responsible for delays or failures in accessing KlickEx
Pacific, or processing of transactions, or transactions being declined, or by
delaying or failing to implement any of Your
25.10 KlickEx will endeavour to
process all transactions without delay, but expressly disclaim any and all
liability for any processing delays, or the consequences of any processing
delays, which may occur in any circumstance, whether beyond Our reasonable
control, or otherwise.
If any provision of this Agreement shall be prohibited by Law or is or
becomes illegal, invalid or unenforceable in any jurisdiction, that will not
legality, validity or enforceability in that jurisdiction of any other term of
this Agreement; or
legality, validity or enforceability in other jurisdictions of that or any
other term of this Agreement.
This Agreement comprises the terms and conditions governing the
relationship of the Parties. If there is any conflict between the terms of any
schedule, attachment or other addenda attached to this Agreement, then the
terms in this Agreement shall prevail, to the extent of that conflict, over the
terms of the schedule, attachment or other annexure.
The terms of this Agreement and any transactions under it, may be
amended by KlickEx at any time. KlickEx will provide Notice to the Customer of
any such amendment. The Customer agrees to be bound by the terms of such an
amendment on the earlier of
(a) ten (10) Days after KlickEx has posted
notice of the amendment on the KlickEx Website; or
(b) on the date of the entry of any Order after
29 Entire Agreement
This Agreement, and all schedules, attachments or other annexure
attached to it, constitute the entire agreement between the parties with
respect to the use and provision of the KlickEx Services, and supersede and
replace any and all prior or contemporaneous understandings, communications or
agreements, written or oral, regarding such subject matter.
30 Compliance with Law
Each party will conduct its activities under this Agreement in
compliance with all applicable Laws. The Customer may be required to provide KlickEx
with personal information or information concerning its business, which will be
kept on record. If KlickEx considers it necessary in order to comply with any
applicable Law, KlickEx may make a report of transactions involving the
Customer to the appropriate regulatory authority or law enforcement agency.
31 Force Majeure
will be liable for any failure or delay in performance (except for duties of
payment) due to an event or cause beyond the reasonable control of the party
claiming the force majeure, which shall include
acts of God (earthquakes, flood, fire, fog, storm, volcanic
eruption or other natural disaster, but excluding bad weather, riots, wars, accidents, industrial disputes, embargo or requisition
(acts of government), or delays in performance of its personnel, agents, or
contractors caused by any such
circumstances as referred to in this Clause 31. In case of a force majeure, the
affected Party shall promptly notify the other Party in writing and furnish it
with all relevant information thereto.
32 Governing law
is governed by the law applicable in New Zealand and You
submit to the exclusive jurisdiction of the courts of New Zealand.