Mastercard Standard Terms and Conditions for Merchants

1. Enrolled Programs

    1.1 The Enrolled Programs that you participate in are listed on the Enrollment Form. The parties may at any time add to or remove from the list of Enrolled Programs by mutual agreement in writing.

2. Our responsibilities

    2.1 In consideration for and subject to you performing your obligations under this Agreement (including paying the Fees), during the Term we will perform the following obligations as per this Agreement to the extent specified in the Schedules:

    (a) promote the Enrolled Programs in accordance with, and subject to, Sponsor requirements and the relevant Sponsor Agreement;

    (b) handle enquiries in relation to the Enrolled Programs;

    (c) capture Eligible Spending transactions (as relevant);

    (d) subject to receipt by Mastercard of all Eligible Spending transaction information necessary for the Cardholder Offer to be allocated and corresponding Fees from Merchant, allocate the Cardholder Offer (as relevant); and

    (e) notify you of changes in or to Enrolled Programs; and

    (f) provide agreed reporting.

3. Your Responsibilities

    3.1 During the Term you must, as further defined herein:

    (a) observe and perform all your obligations as described in this Agreement and the Schedules. Mastercard’s performance under this Agreement is dependent on these obligations being performed;

    (b) ensure any Merchant Group member and Participating Merchant participating in an Enrolled Program complies with the terms of this Agreement as applicable to the Merchant or Participating Merchant as the case may be;

    (c) notify Mastercard, and keep Mastercard notified, of any changes to the Participating locations/stores for each Enrolled Program;

    (d) provide reasonable assistance in handling Enrolled Program(s) related enquiries; and

    (e) pay the Fees as required by this Agreement.

    3.2 You hereby authorise us to obtain, use and disclose all Eligible Spending transaction information (including any and all Cardholder or customer information) from any source (including any Sponsor) to third parties (including any Sponsor) for the purposes of this Agreement and the relevant Cardholder Offers and Enrolled Programs, and allocate the Cardholder Offers on your behalf, in accordance with this Agreement,

4. Fees

    4.1 You will pay us the Fees in accordance with clause 5 and as per the applicable Schedule. You may be required to pay for Fees arising after the expiry of the Cardholder Offer End Date, in the event that valid transactions in respect of spend prior to the Cardholder Offer End Date are processed by the Sponsor, after the Cardholder Offer End Date.

5. Invoicing

    5.1 Invoicing and payment is in accordance with the Enrolment Form.

    5.2 In the event that any invoice is disputed, you must pay us the full amount in accordance with this clause 5 and any agreed reimbursement will be processed subsequently by Mastercard. You may only dispute any invoice provided to you under this Agreement if: (a) it is no older than 30 days; and (b) you have complied in full with your obligations to update your Participating locations/stores.

    5.3 Taxes. Unless otherwise expressly stated in this Agreement, all amounts stated to be payable under this Agreement are exclusive of Taxes, which will added to the invoice, as applicable.

    If any goods and services tax (“GST”) is payable on any taxable supply made under this Agreement to the recipient by the supplier ("Supplier"), the recipient must pay the GST amount to the Supplier at the time and in the same manner as of making payment of any monetary consideration on which the GST is calculated. The Supplier must provide a tax invoice as a precondition for payment by the recipient of the GST amount. However, this paragraph will not apply if the GST on the supply is reverse charged and payable by the Recipient, and the Supplier shall not reimburse the Recipient for the GST amount that is reverse charged.

    If either party is required to pay, reimburse or indemnify the other for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this Agreement, the amount must be reduced by the amount for which the other party (or representative member if this is not the other party) can claim an input GST credit.

    If any Taxes are required by applicable law to be withheld from any payment in connection with this Agreement, the party making the payment will deduct those Taxes from the amount payable and remit them to the relevant taxing authority and pay an additional amount to the other party which would result in the other party receiving (after deduction/withholding of the amounts referred to above) the full amount which the other party would have received if no deduction/withholding had been required. For the avoidance of doubt, the paying party is not responsible for any Taxes payable by the other party in respect of the other party’s net income in its country of tax residence or incorporation.

6. Currency

    A reference to dollar or $ is to New Zealand dollar currency.

7. Use of Intellectual Property for Promotion

    7.1 You grant us a non-exclusive, sub-licensable right to use and reproduce Merchant Marks and the Participating Merchant Marks (and you hereby represent and warrant that you have the relevant consents from the Participating Merchant to grant us a non-exclusive, sub-licenseable right to use and reproduce the Participating Merchant Marks) for no consideration for the Term as reasonably required for us and Sponsors to market your and/ or Participating Merchants’ involvement in the Enrolled Programs and/or the relevant Cardholder Offer(s), perform our obligations and exercise our rights under this Agreement, including for use on the dedicated website relating to the applicable Enrolled Program, and for the purpose of displaying the Merchant Marks and/ or the Participating Merchant Marks in associated marketing communications.

    7.2 You may only use Approved Program Materials to promote Enrolled Program(s) and your participation in it/them. Each time you are approved by us to use the Approved Program Materials, you will be granted a non-exclusive, non-sub-licensable right for no consideration to use the same in accordance with clause 7.3 below.

    7.3 You undertake at all times to:

    (a) use Approved Program Material only to promote Enrolled Program(s);

    (b) strictly comply with the conditions of using Approved Program Material communicated to you; and

    (c) only use Approved Program Materials signed and approved by us and in accordance with the applicable brand guidelines issued to you from time to time and our reasonable instructions.

    7.4 We may from time to time by notice to you amend the Approved Program Materials, or the conditions of their use provided to you for the purposes of this Agreement.

    7.5 Except as expressly permitted in the conditions of use of Approved Program Material, you agree that neither you nor any Merchant Group member nor any of your Participating Merchants has by implication or otherwise any title, right or interest in or to any intellectual property, belonging to us or any Sponsor or any of our/their respective Related Companies. You and your Participating Merchants must not use intellectual property belonging to us or Sponsors without express prior written approval. Nothing in this Agreement shall operate to transfer or grant any Intellectual Property Rights to any person and all powers that would be conferred on licensees by sections 102 and 104 of the Trade Marks Act 2002 are expressly excluded. All Intellectual Property Rights associated with the Programs and/or the services we provide shall vest in us and/or Sponsors or our licensors as the case may be.

8. Confidential Information and Privacy

    8.1 Confidentiality: Each party must, and must ensure that its Related Companies, officers, employees, agents and subcontractors (and in the case of Merchant, any of its Participating Merchants) do not disclose any Confidential Information of the other party to any third person or entity or use any Confidential Information of the other party without the other party’s prior written consent, except:

    (a) to its officers, staff, advisers, sub-contractors, counsel or agents (and in the case of Mastercard, Sponsors) as reasonably necessary for the performance of this Agreement or to receive advice in relation to this Agreement; or

    (b) to the extent that a party is required to make such disclosure by law, a valid order of a court or by a government agency, or the rules of any stock exchange.

    8.2 Breach of confidentiality: Each party must notify the other party promptly in writing if it becomes aware of a breach of clause 8.1 above, and each party must provide whatever assistance the other party may reasonably require to protect its Confidential Information.

    8.3 Return of Confidential Information: Each party must upon termination or expiry of this Agreement or at any other time as notified by a party, at the direction of the other party, either return or destroy all of the other party's Confidential Information in their possession, control or custody, including taking reasonable steps to delete any such Confidential Information from any computer systems or files (other than electronic backups).

    8.4 Privacy: Each party must comply with the Privacy Law in the performance of this Agreement. You must also ensure that you, each Merchant Group member and your Participating Merchants, and your/their respective Related Companies, comply with our reasonable written instructions to do anything required for either party to comply with Privacy Law.

9. Liability

    9.1 (a) Mutual Indemnification: Each party (Indemnifying Party) shall indemnify and hold harmless the other party and their Related Companies (and where the Merchant is the Indemnifying Party, the Sponsors and their Related Companies) and each of their directors, officers, employees and agents (Indemnified Parties) from and against any and all loss, liability, cost, damage and expense (including reasonable legal fees and expenses) (Losses) to which the Indemnified Parties may be subjected or which it or they may incur in connection with any claims of personal injury or death of a person or of damage to tangible property to the extent such Losses arise as the result of the wilful misconduct or negligent acts or omissions of:

    (1) the Indemnifying Party; and

    (2) where the Merchant is the Indemnifying Party, any Merchant Group member and the Participating Merchants, and any of their respective directors, officers, employees or contractors, in the performance of its or their duties and obligations under this Agreement.

    (b) Merchant Indemnification: you (Indemnifying Party) shall indemnify and hold harmless us, our Related Companies and the Sponsors and their Related Companies and each of their directors, officers, employees and agents (Indemnified Parties) from and against any and all loss, liability, cost, damage and expense (including reasonable legal fees and expenses) (Losses) to which the Indemnified Parties may be subjected or which it or they may incur in connection with any claims arising out of a breach of: (i) the provisions in clause 8; (ii) payment obligations in clause 4; (iii) use of any intellectual property of the Sponsors or their Related Companies; (iv) any claim by a third party which is caused or contributed to by any failure by Merchant to comply with its obligations hereunder.

    9.2 IP Claims:

    (a) Each party (Indemnifying Party) shall indemnify and hold the other party, the other party's Related Companies (and where the Merchant is the Indemnifying Party, the Sponsors and their Related Companies) and each of their directors, officers, employees and agents (Indemnified Parties) harmless from and against any damages awarded against the Indemnified Parties and any liability under any settlement of any claim negotiated in accordance with this clause 9.2 (including all reasonable legal fees and expenses) as a result of any claims (IP Claims) by third parties that the use by the Indemnified Parties of material provided by the Indemnifying Party in accordance with this Agreement (Offending Material) infringes any Intellectual Property Rights of those third parties.

    (b) In respect of any IP Claim, the Indemnified Party shall:

    (1) promptly notify the Indemnifying Party in writing as soon as reasonably practicable after first becoming aware of the IP Claim;

    (2) provide such information as the Indemnifying Party may reasonably request from time to time in relation to the IP Claim, at the Indemnifying Party’s cost; and

    (3) discuss with the Indemnifying Party, good faith steps for responding to an IP claim. The parties will not take any steps to defend, compromise or settle any IP Claim without the other party's prior written consent, not to be unreasonably withheld, delayed or conditioned. The Indemnifying Party acknowledges and agrees that the Indemnified Party may appoint its own advisors in respect of the IP Claim.

    (c) Notwithstanding the forgoing, the Indemnifying Party shall have no liability to indemnify or defend any IP Claim to the extent that the IP Claim arises from the Indemnified Party's update to, or modification of the Offending Material, or its use of such Offending Material with any other products or programs.

    (d) In the event of an IP Claim, the Indemnifying Party must endeavour to obtain for the Indemnified Party the right to continue to use the relevant part of the Offending Material, or replace or modify the relevant part of the Offending Material to make it non-infringing (at its sole option), at the Indemnifying Party's cost and expense. For the avoidance of doubt, this clause 9.2(d) does not limit the Indemnified Party's right to a remedy for a breach of this Agreement by the Indemnifying Party.

    9.3 Limitation: To the maximum extent permitted by applicable law and other than in respect of our obligation to indemnify under clause 9.1, our liability (whether in contract, tort, including negligence, indemnity, equity, statute or otherwise) to you or any person claiming through you will not exceed in aggregate the greater of: (a) the amount of Fees earned in the 12 months preceding the date of the event giving rise to our liability excluding any amounts paid by you in respect of redeemed Cardholder Offers; and (b) $10,000.

    9.4 Special damages: To the maximum extent permitted by applicable law in no event will either party or its directors, officers, employees or agents be liable for any special, indirect, incidental, consequential or punitive damages, or any losses, damages or costs incurred as a result of loss of time, loss of savings, loss of property, loss of goodwill, loss of data, or loss of profits (other than loss of profits incurred by us, our contractors or agents in connection with this Agreement to the extent such loss of profits constitutes direct damages of us), even if such party knew of the possibility of such damages and regardless of whether such claims or damages are based, or remedies are sought, in contract, under an indemnity, in negligence, strict liability, tort, products liability, equity, under statute or otherwise. Any claim for damages by a Cardholder or a Sponsor against us in relation to an Enrolled Program or this Agreement, in relation to Merchant’s obligations hereunder, is a direct loss and is not excluded.

    9.5 Warranties: You represent and warrant to Mastercard that you have the right, power and authority to enter into this Agreement and perform your obligations under this Agreement. To the extent permitted by law, we hereby exclude all warranties and guarantees, written or implied or imposed by law, applicable to any services provided by us or to any materials supplied by us in connection with such services (other than as expressly stated in this Agreement).

    9.6 Remedies: The exclusion of or limitations of liability contained in this Agreement are made to the full extent permitted by law. Certain legislation, including the CGA, may imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified except to a limited extent. These Mastercard Standard Terms and Conditions for Merchants must be read subject to those statutory provisions.

    9.7 Mitigation: Each party will take all reasonable steps to mitigate any loss incurred by them under this Agreement.

    9.8 Contribution: To the full extent permitted by law, each party's liability to the other in contract, tort, negligence, strict liability, equity, under statute, under an indemnity, or otherwise will be reduced to the extent, if any, to which the other contributed to the loss or damage.

    9.9 Group Loss: You agree that you are responsible for the conduct of each Merchant Group member and the Participating Merchant in relation to this Agreement. You also acknowledge that we have the benefit of the limitation and exclusions of liability under this Agreement when providing services for the benefit of the Merchant Group and the Participating Merchant. Accordingly:

    (a) you must ensure that all claims in connection with this Agreement are made by you;

    (b) subject to the other provisions of this clause 9 and subject to any limitation of liability, we will be liable to you for any loss suffered by the Merchant Group arising in connection with this Agreement where we would have been liable for that loss under this Agreement had it been incurred by you (Group Loss) as if the Group Loss had been suffered by you; and

    (c) to the full extent permitted by law and subject to clause 9.9(b), you indemnify us for any and all loss, liability, cost, damage and expense (including reasonable legal fees and expenses) suffered as a result of any claim made by a Merchant Group member or the Participating Merchant against us on grounds that it has suffered Group Loss or loss respectively.

    9.10 Indemnities on trust: To the extent that an indemnity is provided to a party and its related Indemnified Parties (including, in the case of Mastercard, the Sponsors and their Related Companies), that party contracts as a trustee for its related Indemnified Parties and shall be entitled to bring a claim under such indemnity on behalf of those related Indemnified Parties, and hold any and all amounts paid under the indemnity in respect of any such related Indemnified Party on trust for that related Indemnified Party.

    9.11 Sponsors as principal: Without limiting clause 9.10, where this Agreement refers to Sponsors as Indemnified Parties, Mastercard enters into this Agreement as agent severally on behalf of each Sponsor solely to the extent of its status as an Indemnified Party under the indemnities in clauses 9.1 and 9.2 and Merchant expressly acknowledges the appointment of Mastercard by each Sponsor as agent for those Sponsors under the relevant indemnity and that each Sponsor has a direct right of action against the Merchant under clauses 9.1 and 9.2 for any Losses suffered under that indemnity by a Sponsor or any of its Related Companies as an Indemnified Party. For the avoidance of doubt, where Mastercard is an Indemnified Party and suffers Loss itself, it enters into this Agreement in its own right and not as agent for the Sponsors.

10. Termination

    10.1 Term: This Agreement commences on the Effective Date and will terminate upon the termination or expiry of your participation (under this Agreement) in all Enrolled Programs, unless otherwise terminated in accordance with the following terms (Term). The term of your participation in each Enrolled Program is specified in the corresponding Schedule (see Enrolled Program Initial Term and Enrolled Program Renewal Terms) or, if no such term is stated in that Schedule, the term of your participation is 2 years after the Effective Date.

    10.2 Termination by either Party: Either party may terminate this Agreement:

    (a) immediately on written notice at any time prior to expiry upon the other party becoming unable to pay any of its debts as they fall due, commencing negotiations with its creditors with a view to an adjustment of its debts or any step being taken or proceedings commenced for its insolvency, bankruptcy, winding-up, liquidation, receivership, administration or protection or relief from creditors or any distress or execution of its property; or

    (b) by written notice to the other party with immediate effect from such later date as set out in the notice if the other party materially breaches this Agreement and the breach is not capable of remedy or, if the breach is capable of remedy, fails to remedy such breach within 30 days of receiving notice to do so (save that in the case of any Fee that is due and payable under this Agreement, you do not pay within 7 days of a demand to do so).

    10.3 Termination of participation in an Enrolled Program:

    (a) We may suspend (for a period determined in our sole discretion) your participation in an Enrolled Program with immediate effect if we are otherwise entitled to terminate this Agreement for any reason.

    (b) We may terminate your participation in an Enrolled Program in any of the following circumstances (with as much notice as reasonably possible):

    (1) an Enrolled Program no longer exists or is terminated;

    (2) we no longer manage or are otherwise involved in an Enrolled Program; or

    (3) a Sponsor of an Enrolled Program requires us not to renew your participation in that Enrolled Program, or to end your participation in that Enrolled Program.

    (c) Termination of your participation in an Enrolled Program does not terminate this Agreement should you remain in other Enrolled Programs.

    10.4 Consequences of termination: If this Agreement is terminated in whole or in part (or in respect of one or more Enrolled Programs), as the case may be, under this clause 10:

    (a) termination will be without prejudice to the accrued rights of either party;

    (b) subject to the terms of this Agreement, the parties are relieved from future performance of this Agreement or relevant part of it as the case may be;

    (c) each party must comply with all surviving terms of this Agreement (and all terms of this Agreement, with respect to Enrolled Programs in which your participation continues, should you remain in other Enrolled Programs);

    (d) you must cease to represent yourself as a participant in each corresponding Enrolled Program and return to us or destroy (at our election) any relevant Approved Program Material in your possession or control (this includes any standalone terminals you have rented during the term of this Agreement); and

    (e) those obligations in clauses 4, 7.5, 8, 9, 10 and 11.1, and any other obligations that, by their nature, are intended to survive termination, shall survive any termination.

11. General

    11.1 Governing law: This Agreement is governed by the laws of New Zealand and each party submits to the non-exclusive jurisdiction of the courts of that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (1980) and Part 3 of the Contract and Commercial Law Act 2017 will not apply.

    11.2 Notices: Any notice or other document to be served under this Agreement may be: (a) delivered (which, unless proven to the contrary, shall be deemed to have been served on the date of delivery if delivered on a Business Day before 4pm, or the following Business Day if delivered at any other time); or (b) sent by prepaid registered post (which, unless proven to the contrary, shall be deemed to have been served on the second day following the date of posting if sent by domestic service or the fifth day following the date of posting if sent by international service), to the party to be served at the corresponding address set out in the Enrolment Form (or such other applicable address as subsequently notified by that party).

    11.3 Waiver: A waiver (whether express or implied) by a party of any of the provision of this Agreement or of any breach of or default by the other party in performing any of those provisions shall not constitute a continuing waiver and that waiver shall not prevent the waiving party from subsequently enforcing any of the provisions of this Agreement not waived or from acting on any subsequent breach of or default by the other party under any of the provisions of this Agreement.

    11.4 Compliance with Laws: (a) Each party must ensure that it complies with all laws, regulations, ordinances and rules governing its obligations, responsibilities and duties under or in the performance of this Agreement. (b) Each party shall comply, and shall ensure that each of its subcontractors and personnel complies, with all anti-bribery Laws including in relation to business transactions with government officials. (c) Merchant shall ensure that its offering of the Cardholder Offer(s) to its customers complies with all applicable laws, regulations, ordinances and rules and it shall be the responsibility of the Merchant to obtain all necessary permits, approvals and/or licences and any other required approvals from the respective government/statutory authorities or third parties for the smooth conduct of the Cardholder Offer and the performance of its obligations under this Agreement. Without limiting the foregoing and if applicable, the Merchant shall be responsible for filing any third line forcing notifications to the relevant regulatory authority for any Cardholder Offers that are offered by the Merchant, or its agent, exclusively under this Agreement.

    11.5 Entire Agreement: This Agreement supersedes all prior communications, representations, agreements, arrangements and undertakings between you and us. Except where expressly provided for in this Agreement, a provision of this Agreement may not be changed except in writing and signed by you and us.

    11.6 No reliance on warranties and representations: In entering into this Agreement, Merchant:

    (a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person, other than as expressly stated herein;

    (b) has relied entirely on its own enquiries in relation to the subject matter of this Agreement; and

    (c) has not relied on any financial forecast, financial model, estimate or performance expectation provided by or on behalf of Mastercard, including any financial model prepared by Mastercard in relation to a Program or participation in it by the Merchant, for planning purposes or otherwise, any estimate of revenue or profits or any similar estimate.

    11.7 Excusing Events: Subject to the remainder of this clause 11.7, each party shall be excused from performance of its obligations (other than payment obligations) under this Agreement for any period (and to the extent) that the party is prevented from performing any such obligation in whole or in part as a result of delays caused by: (a) the other party or that other party's Related Companies, or any of the other party's directors, employees, agents or sub-contractors, or (b) an act of God, war, terrorism, civil disturbance, work stoppages, equipment failures, power failures, fire, court order, labour dispute (other than one between a party and its staff), epidemic or pandemic or governmental action in relation thereto, or other events beyond the party’s reasonable control, including without limitation, failures or fluctuations in electrical power, heat, light, air-conditioning or telecommunications equipment, or (c) if the party is Mastercard, any Sponsor or any of the Sponsor’s directors, employees, agents or sub-contractors, (each, an Excusing Event). Each party shall notify the other promptly on becoming aware of any Excusing Event affecting its ability to perform its obligations under this Agreement. The party affected by the Excusing Event concerned shall use all reasonable endeavours to resume full performance in the event of any such delay. Without affecting any other rights a party may have to terminate this Agreement, if an Excusing Event other than an Excusing Event listed in part (a) or (c) of this clause 11.7 continues for more than 30 days, a party may terminate this Agreement by giving 7 days' written notice.

    11.8 Assignment and change of control: (a) You may not assign this Agreement without our prior written consent. We may assign and transfer all our rights, benefits and obligations under this Agreement to any Related Company of ours, upon written notice to you. (b) You must notify us promptly of any change of Control (or any sale or proposal to sell any material proportion of your business or Participating locations/stores) that occurs to you or is proposed to occur during the term of this Agreement.

    11.9 Relationship: Nothing in this Agreement shall be considered or interpreted as constituting a party as the partner, agent or representative of the other party or any other relationship under which a party may be liable generally for the acts or omissions of the other party and in particular no party shall have authority to act, contract or incur any obligation or responsibility on behalf of the other party unless by virtue of a properly executed power of attorney.

    11.10 Other: No party may withhold and set-off payment of any amount due and owing by it to the other party, against any amount due and owing by that other party to it.

    11.11 Severability: The invalidity, illegality or unenforceability of any of the provisions of this Agreement will not affect the validity, legality and enforceability of the remaining provisions of this Agreement.

    11.12 Costs and Expenses: Each Party shall bear its own costs and expenses (including legal and other professional costs) in connection with the preparation, negotiation and execution of this Agreement and any related documents.

    11.13 Disputes: (a) If either party considers that a dispute has arisen, it shall promptly issue a notice to the other party, setting out reasonable details of the matter in dispute (Dispute Notice). (b) After a Dispute Notice has been issued, the parties must: (i) promptly hold good faith discussions to attempt to resolve the dispute (First Level Discussions); and (ii) subject to privilege, provide the other party with information relating to the dispute which is appropriate in connection with its resolution. If the dispute has not been resolved within 15 Business Days (or other agreed period) after commencement of the First Level Discussions, the parties must attempt to resolve the dispute by holding good faith discussions between more senior representatives of each party. (c) If the dispute is not resolved within 15 Business Days (or such other period agreed between the parties) after the date of commencement of the First Level Discussions, the dispute must be referred to mediation administered by the New Zealand Dispute Resolution Centre before having recourse to litigation. (d) Neither party may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute unless the dispute resolution procedures set out in this clause have been followed and, if the dispute was referred to mediation, the mediation has terminated. (e)The parties must continue performing all of their obligations under this Agreement while the dispute is being resolved, except where the dispute renders it impossible to do so. (f) Nothing in this clause prevents proceedings being issued for urgent injunctive or declaratory relief.

    11.14 Definitions

    In this Agreement:

    Approved Program Material means materials relating to the promotion of an Enrolled Program and/or your participation in it (including trade marks, brand names, business names or copyright belonging to a party to a Sponsor Agreement), and including the conditions of use of those materials, in each case as approved by Mastercard for use by Merchant.

    Business Day means a day that is not a Saturday, Sunday or public holiday or a bank holiday in New Zealand.

    Card means any card (including any credit, debit, cash, charge, electronic funds transfer, point of sale, automatic teller, multi-use or stored-value card) or Program membership identifier that may be used by Cardholders to earn benefits or rewards under an Enrolled Program.

    Cardholder in respect of an Enrolled Program means any person as defined in the relevant Schedule.

    Cardholder Offer in respect of an Enrolled Program means the Cardholder Offer described in the relevant Schedule in respect of Eligible Spending.

    CGA means the Consumer Guarantees Act 1993.

    Confidential Information of a party (the disclosing party) means all information or material which is proprietary to the disclosing party, and/or its Related Companies (and in our case as disclosing party, all information or material which is proprietary to Sponsors or their Related Companies), and is provided to the other party in connection with this Agreement, and which is: (i) designated as confidential by the disclosing party or (ii) by its nature confidential, but does not include:

    (a) information that, at the time it is disclosed, is already in the receiving party's rightful possession or available to it or its representatives from any other source having no obligation not to disclose it;

    (b) information that is, or any time becomes, available to the public without any breach of obligation not to disclose it; or

    (c) which is developed independently by the other party without reliance on any of the disclosing party's Confidential Information.

    Control means, where references are to one person being controlled by another person, that the other person (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) has the power:

    (a) to appoint and/or remove the majority of the members of the governing body of that person;

    (b) to appoint a member or members of the governing body of that person, with the power to exercise, or control the exercise of, more than 50% of the maximum number of votes that might be cast at a meeting of the governing body or the members of that person; or

    (c) to control, by any other means, the affairs and policies of that person, and control and change in control have corresponding meanings.

    Effective Date means: (a) if a date is specified as the Effective Date on page 1 of this Agreement, that date; or (b) if no date is specified as the Effective Date on page 1 of this Agreement, the date of this Agreement; or such other date as the parties may agree in writing.

    Eligible Spending in respect of an Enrolled Program means any transaction with you or a Merchant Group member or Participating Merchant by a Cardholder which qualifies the Cardholder for the relevant Cardholder Offer as per the terms outlined in the relevant Schedule.

    Enrolled Program means each Program as selected on the Enrollment Form, as may be amended in accordance with clause 1.1, in which you are enrolled under this Agreement.

    Enrolment Form means the Merchant Alliance Enrolment Form and including the Schedules, forming part of this Agreement which Agreement incorporates by reference these Mastercard Standard Terms and Conditions for Merchants.

    Fees means the fees payable to us as indicated in the Schedules to this Agreement.

    GST means any goods and services tax, value added tax or similar tax imposed on the sale and supply of goods, services, rights or other things as set out in the New Zealand Goods and Services Tax Act 1985.

    Intellectual Property Rights means all rights globally, whether currently in existence or arising in the future, in or to any copyright, trade or service mark, design, patent, semiconductor or circuit layout right, domain name, trade name, business name or company name, indication of source or appellation of origin, whether registered, registrable, patentable or not or other proprietary right, or and any right to registration of such rights.

    Mastercard Standard Terms and Conditions for Merchants means these terms and conditions titled Mastercard Standard Terms and Conditions for Merchants.

    Merchant Marks means your trade marks, service marks, logos and branding (including any product descriptions and images that you provide to us) which may be relevant to conducting or promoting an Enrolled Program, any Eligible Spending or any Cardholder Offer.

    Merchant Descriptor means the information used by you to identify yourself for the purpose of transacting business with a Cardholder.

    Merchant Group means the Merchant and its Related Companies described in the relevant Schedule (or such other Related Companies as agreed in writing from time to time), or any one or more of the Merchant and those Related Companies.

    Month means a calendar month.

    Participating locations/stores in respect of an Enrolled Program has the meaning given in the relevant Schedule.

    Participating Merchant, if any, means, (a) a third party which has entered into a separate agreement with the Merchant, where the Merchant shall receive payment on behalf of the Participating Merchant which shall provide or fulfil the goods or services which are the subject of a Cardholder Offer; or (b) a third party merchant which operates as a franchisee in relation to the Merchant (franchisor) and wishes to participate in the Enrolled Program/s to enable Cardholders to receive Cardholder Offers subject to Eligible Spending, whereby such Participating Merchants agree contractually, via a separate contract with the Merchant (franchisor) to be responsible for paying for amounts due under a Cardholder Offer, and whereby such amounts will be paid to Mastercard by Merchant.

    Participating Merchant Descriptor means the information used by a Participating Merchant to identify itself for the purpose of transacting business with a Cardholder.

    Participating Merchant Marks means, in relation to a Participating Merchant, the trade marks, service marks, logos and branding (including any product descriptions and images that you provide to us with the relevant consent from the Participating Merchant) which may be relevant to conducting or promoting an Enrolled Program, any Eligible Spending or any Cardholder Offer.

    Personal Information means information about an identifiable individual; and includes information relating to a death that is maintained by the Registrar-General pursuant to the Births, Deaths, Marriages, and Relationships Registration Act 1995, or any former Act (as defined by the Births, Deaths, Marriages, and Relationships Registration Act 1995).

    Privacy Law means all legislation, principles, industry codes and policies regulating the handling of Personal Information including the Privacy Act 2020.

    Program means any loyalty/incentive program in respect of which Mastercard provides certain administrative, marketing and other loyalty services, including those listed on the first page of the Enrollment Form.

    Related Company has the meaning given to that term in section 2(3) of the Companies Act 1993, provided that a reference to company in that section will refer to any company or body corporate, notwithstanding the jurisdiction of incorporation or establishment of the relevant company or body corporate.

    Schedules means the Schedule(s) (or the applicable Parts of the Schedule(s) as the case may be) to this Enrolment Form which set out the key terms applicable to your participation in the relevant Enrolled Program.

    Sponsor means any client of Mastercard or its affiliates which establishes and runs a Program for its Cardholders who participate in that Program.

    Sponsor Agreement means any agreement or other arrangement between us or a Related Company and a Sponsor, or between us or a Related Company, a Sponsor and others relating to the operation of a Program.

    Taxes means taxes (including GST), levies, imposts, deductions, charges, withholdings and duties imposed by any authority, together with any related interest, penalties, fines and expenses in connection with them, except those imposed on the overall net income of a party in its country of tax residence or incorporation.

    Term has the meaning given in clause 10.1.

    11.15 Interpretation

    In this document (i) the terms “include” and “including” are meant to be inclusive and shall be deemed to be followed by “without limitation”; (ii) the word “or” is disjunctive, but not necessarily exclusive; (iii) unless otherwise specified, all references to days, months or years shall be deemed to be preceded by the word “calendar”; (iv) the singular includes the plural and vice versa, and a gender includes other genders; (v) another grammatical form of a defined word or expression has a corresponding meaning; (vi) a reference to a clause or schedule is to a clause or schedule to this Agreement, and a reference to this Agreement includes any schedule; (vii) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; (viii) headings are for ease of reference only and do not affect interpretation (ix) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (x) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (xi) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them; (xii) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (xiii) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally; (xiv) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and (xv) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.