The POLi Service (also known as POLi) is provided by Merco Limited (NZ company Number 2208567), referred to in these terms and conditions (Terms) as we, us and our.

Your use of the POLi Service is subject to these Terms. By using the POLi Service, you agree to be bound by these Terms.

These Terms apply separately to every payment facilitated by POLi including attempted payments.

If you do not agree to any of these Terms, then you must not use the POLi Service.

To help you navigate and understand these Terms we've included headings and overviews of the key provisions which are covered in each section of these Terms. However, these aren't a substitute for, and don't change the meaning of, the full terms and conditions contained in these Terms.

POLi™ Service

Section Overview: This section describes the POLi Service. POLi lets you make payments directly from your bank account to a merchant without using a credit or debit card.

POLi gives you the ability to initiate payments to merchants from your New Zealand bank account, without the need for you to use a credit card or a scheme debit card.  POLi can be used to initiate payment to any merchants who offer the “Pay with POLi” payment option on their website or other digital applications.

POLi is not a means of payment in itself. POLi doesn't carry out the actual transfer of funds from your bank account. POLi delivers your payment instruction to your bank, for your bank to then act on that payment instruction.

When you use POLi your funds are generally transferred directly from your bank account to the merchant's bank account, and are not received or held by us. The only exception to this is where the merchant is overseas, in which case your funds may initially be transferred to an intermediary settlement account controlled by us or our agents before they are transferred on to the overseas merchant's bank account.

Your Bank

Section Overview: Except where we have an open banking agreement in place with your bank, your bank may not have approved your use of POLi. POLi is separate to your bank's products and systems. Where we have an open banking agreement with your bank, the bank has discretion to authorise payments, and the bank is not liable for losses resulting from your use of POLi.

You acknowledge that we may not have the approval of, or any licence from or agreement with, your bank to operate or make POLi available for use by you. In some cases we may have this type of approval (for example, if we have an open banking agreement with your bank), but in other cases we may not and we cannot guarantee that your use of POLi will be permitted under your bank's terms and conditions.

You agree that the POLi Service is separate from your bank’s products, systems and services, and your bank’s terms, conditions and policies will separately apply to your use of their products, systems and services.

Where the POLi Service is operating under an open banking agreement with your bank, the following terms apply:

• You acknowledge that your bank retains discretion in relation to authorising payments initiated by POLi in accordance with the bank's own terms and conditions.
• You agree that if our open banking agreement with your bank is suspended or terminated or your bank goes into statutory management, your access to the POLi Service will cease.
• To the extent permitted by law, your bank and its officers, employees and agents will not be liable for any loss suffered by you arising out of or in connection with the POLi Service.
• The provisions in the above bullet points and the provisions which refer to your bank in the Customer Consents, Data and Privacy section below are intended to confer a benefit on and be enforceable by your bank in accordance with Subpart 1 (Contractual privity) of Part 2 of the Contract and Commercial Law Act 2017.

Your Obligations and Acknowledgements

Section Overview: You must not use POLi for illegal activities and must use it only with your own payment accounts and where you have authorisation to make the payment. You must ensure you have sufficient funds for transactions and take precautions against risks like viruses. You must not do anything to tamper with the software or service.

You agree that:

• You will not access or use POLi for any illegal, fraudulent or dishonest purposes.
• You will not use POLi while located in countries that are subject to U.S.A. export Administration Regulations (EAR), including (but not limited to) Cuba, Iran, North Korea, and Syria.
• If we use POLi to process a refund or return of a previous payment that you initiated using POLi, then that refund or return is to be directed to the same payment account from which the original payment was initiated.
• The performance of POLi (including response or payment times) will depend on factors outside of our control (or the control of our service providers and/or agents), including: (i) the performance of the merchant’s website and business systems; (ii) mobile applications, processes, rules, codes, procedures and policies of the banks involved in the transactions; and (iii) the state of the relevant telecommunications network and their interconnections and network congestion.
• By using POLi, you warrant: (i) that the bank account from which you are initiating the payment is your own account; (ii) that you are permitted under the terms and conditions of that bank account to make the payment to the merchant; and (iii) that you have the capacity and are authorised to make payments from that bank account.
• By using POLi, you confirm that you enter into any transactions at your own will and will take your own precautions to ensure that you will have sufficient funds to fund the relevant transaction.
• You will take your own reasonable precautions to ensure that the process that you use for accessing or using POLi does not expose you to any undue risk of viruses, malicious computer code or other forms of interference that may damage your computer system.
• You will not modify, adapt, translate or create derivative works based upon any of the software, infrastructure or systems used to provide POLi.
• You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the software used to provide POLi.
• You will not monitor or alter or interfere with the operation of POLi using tools external to POLi.
• You will not alter the inputs, outputs or internal data of POLi while it is initiating payment transactions.

Your Statutory Rights

Section Overview:  You have rights under the Consumer Guarantees Act and the Fair Trading Act. These laws require services to be provided with care and skill and protect you from misleading practices.

You have rights under the Consumer Guarantees Act 1993 (CGA) in relation to our provision of the POLi Service to you. Nothing in these Terms is intended to or will affect, limit, contract out of or exclude any rights or remedies you may have in relation to the POLi Service under the CGA or under the Fair Trading Act 1986 (FTA).

The CGA contains statutory guarantees in relation to the supply of certain types of goods and services, including that the services will be carried out with reasonable care and skill. The FTA contains prohibitions on misleading and deceptive conduct and false, misleading and unsubstantiated representations.

For further information on statutory consumer rights you can visit https://comcom.govt.nz/ and https://www.consumerprotection.govt.nz/.

Disclaimers

Section Overview: We don't provide any guarantees beyond those in the Consumer Guarantees Act. We aren’t responsible for any issues with your bank or merchant.

With the exception of the applicable guarantees under the CGA and our obligations as set out in these Terms and applicable laws, we provide POLi "as is" and do not provide any warranties or guarantees in respect of POLi and your use of POLi.

We do not endorse or provide any guarantees in relation to any merchant or bank, their websites or systems (including their security and operation), or any goods or services provided by them. These are the responsibility of the relevant merchant and/or bank. While they may impact or interface with the POLi, we have no control over the actions of merchants or banks and they do not form part of the POLi Service. Concerns in respect of the actions or inactions of a merchant or bank should be directed to that merchant or bank.

Liability

Section Overview: We won't be liable to you unless we cause you a loss by breaching these Terms or our legal obligations. Where we are liable to you, this will only be for losses which were reasonably foreseeable, up to the amount of the payment transaction.

Our liability to you, and your liability to us, is limited in the following ways:

• We are not responsible or liable for any loss you suffer in connection with POLi or your use of POLi (including any loss suffered where someone else uses POLi to initiate an unauthorised or fraudulent payment transaction from your bank account), except to the extent we cause or contribute to the loss through our breach of these Terms or any legal obligation we owe to you.
• Neither party will be liable to the other party for any consequential loss suffered or incurred by the other party in connection with POLi or your use of POLi. A consequential loss is any loss which was not reasonably foreseeable as something that would result from a party's act, failure or omission.
• A party's liability in connection with any payment or attempted payment transaction facilitated by POLi will not exceed the amount of that transaction.
• A party will not be liable for any failure to comply with these Terms or to provide the POLi™ Service or any error or issue with the POLi™ Service where such failure is due to circumstances beyond that party’s reasonable control.

The above limitations of liability also apply to any liability of our directors, officers, employees and agents. These limitations of liability apply to all claims relating to these Terms, POLi and your use of POLi regardless of the circumstances giving rise to the claim and regardless of the legal basis of the claim. However they will not apply to a claim to the extent that the claim arises as a direct result of a party's fraud or wilful misconduct or is made under the legislation referred to in the Your Statutory Rights section above.

Fees

Section Overview: We don’t charge you for using POLi. Check your merchant's website as they may charge a fee.

We do not charge you a fee for using the POLi Service. The merchant may charge a fee for use of the POLi Service, and this fee may vary from time to time. You can obtain information about such fees from the merchant’s website or digital application at the time of purchase.

Complaints, Unauthorised Transactions and Mistaken Transactions

Section Overview: Contact your bank if you think there's been an unauthorised transaction. For mistaken transactions, contact your bank or the merchant. If you have an issue with goods or services purchased from the merchant, contact the merchant. Contact us if you have an issue or complaint with POLi.

If you believe that there has been unauthorised access to or an unauthorised transaction from your bank account you should contact your bank.

If you made a transaction in error, you should contact your bank or the merchant. We are generally not able to cancel or stop a payment transaction once your payment instruction has been provided to your bank.

If you haven’t received the goods or services that you paid for, you should contact the merchant. We aren't involved in the supply of, and are not responsible for, the goods or services you purchase from the merchant..

If you have an issue or complaint with POLi, please contact us by clicking here.

Blocking and unblocking your use of the POLi Service

Section Overview: You can request to block your access to POLi. You can also request to unblock your access. We can choose to block your access for any reason.

You may contact us via email at support@polipay.co.nz if you wish to request for your access to the POLi Service to be blocked or unblocked, specifying your bank accounts which you wish to be blocked or unblocked.

We will use reasonable endeavours to block the use of these bank accounts to initiate payments using POLi.  For technological reasons, blocks are not always effective.  If you find that you are still able to use POLi to make payments with any of the accounts you wished to block, you must notify us as soon as possible.

If you have more than one bank account, it is your responsibility to notify us which of those accounts are to be included for the purposes of us blocking or unblocking your use of the POLi Service.

You will need to assist us with any checks that we may reasonably carry out to verify your identity before actioning a block or unblock.

You also agree that we may (at our absolute discretion) at any time block your access to or use of the POLi Service without notice to you.

Customer Consents, Data and Privacy

Section Overview: You consent to us collecting, using and sharing your transaction data to facilitate your payment transaction, including for fraud mitigation checks. Your transaction data may be sent overseas for these purposes.

You also agree to our privacy policy available here on our website.

You can revoke your consent and ask us to delete or anonymise your data.

To provide the POLi Service we collect and use certain data relating to your bank account and your payment transaction or attempted payment transaction (referred to as your transaction data). Your transaction data may include financial transaction information (such as transaction value, date and description), bank account information (such as name, account number, account type and contact details), geolocation data, device identifiers (such as IP addresses), and behavioural data (such as mouse movements, touch screen inputs, and key stroke and key pressed data).

Irrespective of the payment type or how you access the POLi Service you give your explicit consent to:

• POLi facilitating an electronic funds transfer (in the amount authorised by you) from your bank account to the merchant's bank account.
• In order, and to the extent reasonably necessary, for POli to facilitate the electronic funds transfer and otherwise provide the POLi Service: (i) POLi contacting your bank and the bank acting on your payment instruction; (ii) POLi collecting (including from the merchant and your bank) and using your transaction data; (iii) us disclosing your transaction data to your bank; and (iv) us disclosing your transaction data to the merchant.
• In order, and to the extent reasonably necessary, for us to check whether the electronic funds transfer may be at greater risk of being unauthorised, fraudulent or illegal: (i) us collecting and using your transaction data; and (ii) us disclosing your transaction data to our providers of fraud detection services and systems. For details of how our providers of fraud detection services and systems use your transaction data, please refer to our privacy policy.
• Us disclosing your transaction data outside of New Zealand to the merchant (if the merchant is overseas) and our providers of fraud detection services and systems as reasonably required for any of the above purposes. You acknowledge that they may not be required to protect your data in a way that provides comparable safeguards to those in the Privacy Act 2020.
• Us sharing details relating to the above consents with your bank if requested by the bank.

By using the POLi Service you also agree to our privacy policy. If anything in our privacy policy is inconsistent with these Terms, these Terms will prevail in relation to handling and processing of your transaction data.

Except with your consent or as required to respond to your enquiries or as permitted under the Privacy Act 2020 or our privacy policy, we will not use or disclose your transaction data for any other purposes.

These consents will only apply to the particular payment transaction you are using POLi for. You may revoke any of the above consents by contacting us at support@polipay.co.nz. If you revoke your consent or we receive notice from the bank you have revoked your consent, we may not be able to prevent or reverse the particular transaction.

If you request us to, we will delete, destroy or anonymise your transaction data, except to the extent that your transaction data must be retained by a law or relates to any current or anticipated legal proceedings or dispute resolution proceedings.

Intellectual Property Rights

Section Overview:  We own POLi, but your transaction data is yours.

We own all of the intellectual property and rights in POLi, including the software and systems used to provide POLi.

As between you and us, you own all intellectual property and other rights in your transaction data.

Legal Construction

Section Overview:  The terms are governed by New Zealand law. If any term is invalid, the rest remain in effect. The terms at the time of the transaction apply, and we can change the terms for future transactions.

In these Terms, unless the context requires otherwise, references to party means either you or us, and parties means both you and us.

These Terms will be governed by, and interpreted according to, the laws of New Zealand and you consent to submit to the jurisdiction of the courts of New Zealand.

If we waive any rights available to us under these Terms on one occasion, this does not mean that those rights will automatically be waived on any other occasion.

If any of these Terms conditions are held to be invalid, unenforceable or illegal for any reason, it will be read down to the extent of the invalidity, unenforceability or illegality, and the remaining terms and conditions shall nevertheless continue in full force.

The Terms that were available from our website at the time of your transaction will apply to that transaction.

While we retain the right to unilaterally vary these Terms without notice, that variation would only apply to subsequent use of the POLi Service. You should check these Terms each time you use POLi for a transaction.