Last Update: 04 May 2022

1. Introduction

   1. These are the terms and conditions (Laybuy BNPL Terms) that apply to your access to, and use of the Laybuy payment platform (Platform) operated in New Zealand by Laybuy Holdings Limited (company number 6149287) (Laybuy, we, us and our and such references includes our officers, employees, contractors and assignees) under licence from Laybuy Group Holdings Limited (company number 8028865).
   2. Where we refer to you or your in these Laybuy BNPL Terms we mean any individual using the Platform.
   3. We may offer you access to your Laybuy account and the Platform by using the internet (including through the use of a mobile application) and/or your Laybuy card (and, if you are using the Laybuy card, the "Laybuy Card Terms of Use" can be accessed at https://www.laybuy.com/nz/card-terms). These are known as 'Access Methods' and are subject to these Laybuy BNPL Terms. Some or all of the Access Methods may not always be available. You can contact us at [email protected] to check their availability.
   4. By accessing and using the Platform, you acknowledge you have read, and agree to comply with, these Laybuy BNPL Terms (and the Laybuy Card Terms of Use, if you use the Laybuy card). If you do not wish to be bound by these Laybuy BNPL Terms, do not download, access or use the Platform or the Laybuy card. Accordingly, please read these Laybuy BNPL Terms carefully.
   5. We may, acting reasonably, wish or need to change these Laybuy BNPL Terms, in whole or in part, from time to time (including fees payable). If any of the changes will disadvantage you, and the changes are within our control we will notify you by email and/or text at least 30 days before the changes take effect. Any changes we make will not change the purchase price, the default fees and the other Laybuy BNPL Terms that applied at the time of the purchase.
   6. The date at the beginning of these Laybuy BNPL Terms will be updated to the date the changes take effect. You are responsible for ensuring you are familiar with the latest Laybuy BNPL Terms. Your continued use of the Platform after any changes are made will be confirmation of your acceptance of these Laybuy BNPL Terms as amended.

2. Purchasing products and services on your behalf / providing you with a loan

   1. The Platform permits you to purchase certain products and services (Product or Service, as the case may be) made available by:

      1. retailers approved by us (Merchants) over the internet; and/or
      2. Merchants, at an outlet within New Zealand that accepts Mastercard contactless cards, by using your Laybuy card,
      • although some of the products and/or services a Merchant sells may not be able to be purchased using the Platform (and the Merchant will advise you if this is the case).

   2. When using the Platform in a store or online:

      1. you instruct us to purchase a Product or Service you identify with the Platform, on your behalf, from a Merchant and you will become a "principal debtor" to Laybuy;
      2. we will pay the full amount of the 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;
      3. all transactions on the Platform will be processed in New Zealand dollars (and all references to currency in these Laybuy BNPL Terms are to New Zealand dollars);
      4. where applicable, the Merchant will arrange for delivery of the Product or Service to you (delivery times will depend 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;
      5. the Merchant will pay us, or we will deduct, a commission fee for assisting to procure the sale of the Product or Service to you;
      6. you agree that, as a principal debtor, you will owe Laybuy the Purchase Price, and the Purchase Price amount is advanced to you on interest free terms;
      7. you acknowledge the amount of the Purchase Price that is unpaid, from time to time, is the "Principal Debt" balance you owe to Laybuy;
      8. you unconditionally, and irrevocably, agree to pay to us the Principal Debt, and any default fees (if any), on the terms set out in these Laybuy BNPL Terms; and
      9. you acknowledge that Laybuy elects the arrangement for the advancement of the Principal Debt to you to fall under section 3(3C) of the GST Act (as defined in clause 3.7 below).

3. Fees and payment

   1. Subject to clause 3.2, you must repay us the Principal Debt 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 date that is one week after the date of purchase (at the latest, although you may choose an earlier date if we make this option available to you). Each of the four subsequent instalments will be due and payable on the same day in the weeks following. For example, if you purchase a Product or Service on a Friday, and the Purchase Price is $120.00, at the time of purchase you will pay $20.00 and on each Friday in the following five weeks, you will be required to pay us an instalment amount of $20.00.
   2. Each purchase of a Product or Service through the Platform is subject to our approval and any transaction limit (Your Limit) assigned to you from time to time. If:
      1. the Purchase Price for the Product or Service; or
      2. the Purchase Price and the aggregate of all other amounts you owe us in respect of the Products and Services you have purchased using the Platform,
      • is more than Your Limit, the first instalment of the Principal Debt that is due and payable under clause 3.1 will be for the amount by which the Purchase Price exceeds Your Limit and the remainder of the Principal Debt owed will be divided and paid over the remaining five instalment payments. For example, if Your Limit is $120.00 and the Purchase Price is $200.00, on the date of purchase you will pay $80.00 (being the amount above Your Limit) and on each of the five remaining instalment dates you will pay $24.00.
   3. You will not be charged any interest on the amounts you are required to pay to us.
   4. By using the Platform, you grant us authority to charge all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise under these Laybuy BNPL Terms (including default fees), to 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.
   5. 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 collect all amounts owed by you to us in connection with any Product or Service you purchase, or otherwise, under these Laybuy BNPL Terms. You will have sole responsibility for paying all bank and/or card charges associated with any payment method we approve for you.
   6. At any time, you can pay some, or all, of the Principal Debt to us in advance of the due date of the instalment payments referred to in clause 3.1 or 3.2 (as the case may be), 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 Principal Debt in which case there will be no more instalments).
   7. The Purchase Price will include GST chargeable under the Goods and Services Tax Act 1985 (GST Act), as may be amended or replaced.
   8. 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 to pay within 24 hours of the due date, we will charge you a default fee of $10.00 in relation to the Principal Debt owed. Default fees will be treated as a GST exempt supply under the GST Act due to the operation of sections 3(1)(f) and 5(26). 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 up to a maximum charge of $40 in default fees for each purchase you make (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 from you the amount you owe us.
   9. You may access or 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).

4. Your account, login and security

   1. When you first use the Platform, you will be required to provide certain login information (including a user name and password and, if you use Laybuy card, a PIN) that will enable you to access the Platform to purchase Products and Services.
   2. You must keep your login information secure to avoid use by other persons and not permit any other person to access or use the Platform using your login information. If the Platform is used by another person with your login information, or if you know or suspect another person has obtained your login information, you must immediately notify us at [email protected].
   3. If your login information is used by another person to purchase a Product or Service, you will be personally liable to pay us the Purchase Price for the Product or Service under these Laybuy BNPL Terms.
   4. When making transactions with Laybuy, card details are transmitted through a secure server using Stripe or Windcave. Card data is not processed or hosted by Laybuy after processing.

5. Dealings with Merchants

   1. 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
   2. If you have any complaint, concern or another issue with a Product or Service, you must address these directly with the Merchant (following the Merchant's policy for the same). The Merchant may have a returns, cancellation or complaints policy on its website.
   3. If, following the Merchant's returns policy, 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 Product or Service should be made with the Merchant. In such circumstances, your obligation to pay the Principal Debt to us continues unaffected.
   4. If the Product is returned to the Merchant and not replaced, or the Service is not provided, not provided to your reasonable satisfaction or you cancel, and the Merchant agrees you should receive some or all of the Purchase Price 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:
      1. the Product has been returned and not replaced; or
      2. the Service has not been provided, not provided to your reasonable satisfaction or you have cancelled, and the Merchant has refunded the Purchase Price into our bank account, then we will stop charging instalment payments to your debit or credit card (as the case may be) for the relevant Product or Service and arrange to refund all amounts (if any) you have paid to us in respect of the Purchase Price for the relevant Product or Service (other than default fees). The timing of any refunds will depend on the actions of the relevant Merchant and the bank being used.
   5. If you obtain a refund of all or part of the Purchase Price directly from the Merchant, your obligation to pay the Principal Debt to us continues unaffected until we have received the Principal Debt in full.
   6. If you are not satisfied with how 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]. 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 of the Principal Debt referred to in clause 3.1 or clause 3.2 (as applicable) will continue unchanged.

6. Platform use requirements

   1. You agree not to use the Platform:

      1. to purchase any Product or Service where payment of the Purchase Price to us is likely to cause you financial hardship;
      2. for any unlawful, fraudulent or improper purpose;
      3. in any manner which alters, damages or otherwise impairs or interferes with any other person's use of, the Platform; and/or
      4. to introduce any harmful materials (like spyware, viruses or other damaging items) which could interfere with the Platform.

   2. You agree that:

      1. you are 18 years of age or older; and
      2. any information you provide to us will be true and accurate and if your circumstances change resulting in any information you have previously provided to us no longer being true and accurate, you will immediately notify us by email at [email protected].

7. Intellectual Property

   1. In these Laybuy BNPL Terms, "Intellectual Property" means all rights to, and interests in, any copyright, trade mark, know-how, domain name, software and any other proprietary right or form of intellectual property.
   2. All Intellectual Property in the Platform is owned by us or our licensors (as applicable) and none of the contents of the Platform may be used, reproduced, copied or distributed, in any way whatsoever, other than to use the Platform for your personal use.
   3. 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.

8. Upgrades, defects and maintenance

   1. 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.
   2. The Platform may be unavailable from time to time due to errors, defects, maintenance or events that may be outside of our control (including viruses and other harmful elements). We use all reasonable endeavours to limit such unavailability, errors, defects, maintenance and events.
   3. Before use, you should ensure the device(s) you use to access the Platform are compatible with the Platform.

9. Termination

   1. You may stop using the Platform at any time. If you also wish to terminate or close your account with us, you can do so by emailing us at [email protected].
   2. We reserve the right, at our reasonable discretion, to suspend or terminate your access to your account and the Platform, at any time, either temporarily or permanently. We may exercise this discretion if you materially breach these Laybuy BNPL Terms (including failure to pay any amount owed to us), to prevent the use of the Platform for fraudulent purposes, if we consider there is a material risk of non-payment by you, if you have not used your account for 12 months or to avoid us or you breaching any law. Unless it would contravene our obligations under law, we will notify you of a suspension, termination and/or the closure of your account using the details you have provided to us.
   3. If, at the time of suspension, termination and/or closure of your account, you have made purchases of Products or Services via the Platform and you have outstanding payments due to us, you remain liable to make remaining payments up to the full value of the Principal Debt for each such Product or Service, and any outstanding default fees, until all amounts owed to us have been paid.

10. Consumer protections and limitations on our liability

    1. You have certain rights under consumer protection legislation, including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986, which include, amongst other things, laws relating to title and delivery of goods, goods will be of an acceptable quality, goods will match their description and be fit for the particular purpose made known, and that services will be provided with reasonable skill and care and be reasonably fit for a particular purpose. You have rights and remedies available to you if these laws are breached. Your rights under consumer protection legislation cannot be excluded or limited by these Laybuy BNPL Terms.
    2. Subject to your rights and our obligations under law (including your rights under consumer protection legislation referred to in clause 10.1):
       1. we will not be liable for any indirect or consequential liability, loss or damage you may suffer or incur in connection with your access to, or use of, the Platform; and
       2. any liability we may have to you, or any other person, in connection with your access to, use of, or inability to use the Platform, is limited to a maximum amount equal to the Purchase Price of the affected Product(s) or Service(s),
       • except where such liability arises from our fraud, negligence or wilful misconduct.

11. Personal information and privacy

    1. To open an account, and use the Platform and our other services, you will need to share some personal information with us. We will not be able to provide services to you if you do not provide this information.

    2. Our Privacy Policy advises you of the information we collect and how we use, share and protect it, and it applies whenever you use the Platform or our other services. Please read our Privacy Policy. You can download a copy of the Privacy Policy from our website.

12. Complaints

    1. If you have a complaint, you may submit it by email to https://intercom.help/laybuy-help/en. We will deal with your complaint as soon as reasonably practicable. If you are not happy with us, the Platform or how your complaint has been dealt with, you are also able to contact Financial Services Complaints Limited by email at [email protected]. Financial Services Complaints Limited are an independent dispute resolution service, approved by the Minister of Consumer Affairs. It will not cost you anything to access their service.

13. General

    1. We will communicate with you through text messages or by email and you consent to us communicating using the contact details you provide to us.
    2. You may not assign or transfer any of your obligations under these Laybuy BNPL Terms. We may assign some or all of our rights, obligations and/or interests, subcontract some or all of our obligations or novate our agreement with you, to another person provided it does not detrimentally affect your rights under these Laybuy BNPL Terms. Where we do this, we will let you know (including letting you know where you can access contact information for the person who we will or have transferred to and when the transfer will or has taken place).
    3. No waiver of any breach, or failure to enforce any provision, of these Laybuy BNPL Terms at any time by you or us will in any way affect, limit or waive your or our right to enforce and compel strict compliance with the provisions of these Laybuy BNPL Terms.
    4. If any part of these Laybuy BNPL Terms 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 Laybuy BNPL Terms, which will remain in full force and effect.
    5. The use of the Platform in New Zealand is governed by, and will be construed under, the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction.