Terms & Conditions
Members Terms and Conditions
Welcome to Goody!
We look forward to being in contact with you, and to seeing you often.
Here are the terms (Terms) that we need you to agree to in order to use the website goodycard.co.nz (the Website), download the Goody application to your mobile device (Goody Application) and become a Goody Member.
Goody gives you the ability to connect with a wide range of businesses that have also connected with Goody (Goody Businesses) to receive special offers and other communications for the Goody Businesses you choose or join loyalty programs and track and manage the points you’ve earned with the Goody Businesses you choose (Goody Benefits)with the convenience of having one loyalty card (Goody Loyalty Card) or by using the Goody Application.
Goody Limited (Goody, we, us) provides the benefit of becoming a member of Goody. When you click "I agree” on the membership registration page you agree to be bound by these Terms. All Goody Benefits and any other features or functions of Goody that we advise you of from time to time, are only available, if you sign up to be a member of Goody.
We reserve the right to change, alter or modify these Terms at any time and will update you of this by sending you a note to the contact details you have advised us of on registration or any update or these that you have advised us of and by updating the "last updated" notice beside the link to these Terms. If after we have done this you do not advise us that your wish to terminate your membership with Goody, then you agree to be bound by the amended Terms. You should check from time to time to see if these Terms have changed or not.
Access to Services
- Becoming a Goody Member and the Goody Benefits are intended for use only by people who are at least 13 years of age. By accepting these Terms you are representing that you are at least 13 years old. If you are between the ages of 13 and 18 and your parent or guardian has any questions about your use of the Website or the Goody Benefits, please ask him or her to contact us at firstname.lastname@example.org.
- A person must be 18 or older to join the rewards program of any licensed premises using the Goody system.
You will be responsible for:
- ensuring that any username and password (Goody Login) required to access and/or use the Goody Benefits is kept secure and confidential and not revealed to any other person and any Goody Loyalty Card or Goody Application given to you is kept secure. Any instruction issued using your Goody Login, Goody Loyalty Card or Goody Application will be deemed to be an instruction by you and may be acted upon accordingly until you notify Goody otherwise;
- notifying Goody immediately of anyunauthorised use of the Goody Login, Goody Loyalty Card or Goody Application or any other breach of security. Upon your notification, Goody will cease to relyon that username and password.
- When you sign up to Goody you will provide Goody with certain information (including your email address, name and sex). You may also be asked to enter optional personal information such as age, mobile phone number. By entering such it will give you the ability to use a broader range of features.
- Where you are a Facebook member we offer you the option of logging in with your Facebook membership details. Where you choose this option then you will remain bound by the terms of Facebook when you are using them and you provide us with the authority to copy your Facebook membership details to Goody.
You confirm that all information provided at the time of registration:
- is current, complete and accurate information at the time provided by you and you agree to maintain and update this information as necessary; and
- may be used by us to verify the accuracy of the information (including by contacting you).
- By signing up with Goody through the Website or at a Goody Business you are able to pick up a Goody Loyalty Card for free (Goody Loyalty Card) at a Goody Business. Where you have downloaded the Goody Application, you have the choice of either using the Goody Loyalty Card or Goody Application, and you will be able to use your Goody Loyalty Card or the Goody Application at all Goody Businesses.
- Where you agree to receive communications from Goody, Goody may use the informationprovided by you at registration to send you information about Goody, promotionalmaterial for Goody Businesses and Goody Benefits.
- Each Goody Business manages and operates its own rewards program that allows you to accrue points or credits by using your Goody Loyalty Card or the Goody Application. The relevant Goody Business will advise you of how to earn points and how these can be redeemed.
- You will be able to select the different Goody Businesses you wish to receive messages and other information about (Notes), these may include special promotions or offers (Offers). A Goody Business may send you Notes and Offers through social media platforms, including Facebook, Twitter, SMS text messaging, notifications and other social media services that may be included from time to time (Social Media Tools) where you have given them the permission.
- You may unsubscribe at any time from receiving Notes or Offers from Goody or (where applicable) any Goody Business. For instance, you may like to only receive Notes or Offers from one Goody Business but you will still be able to redeem Offers from all Goody Businesses and, where made available, participate in a reward program made available by a Goody Business. Notwithstanding that you may have unsubscribed from receiving Notes or Offers from Goody, Goody may still continue to contact you in relation to matters relating to your membership. If you do not want to be contacted at all you should notify Goody of this and Goody will cancel your membership.
- There is no charge for the use of any of the Goody Benefits or to become a Goody Member, but you should be aware that rates and fees charged by third parties(e.g., text messaging fees) may apply.
- Goody charges Goody Businesses for services it provides to them. These charges may in some circumstances be connected to interactions made with their customers and the success of the Offers made using the services Goody provides to them.
The Roles of Goody and Goody Businesses
Goody Businesses' Responsibilities
You acknowledge and agree that each Goody Business is responsible for:
- the goods and services that it offers, and the description of those goods and services on the Website and otherwise;
- the Notes, including Offers and other promotions, that it sends from time to time;
- the terms of its rewards programs (if any) and the description of such rewards program on the Website; and
- for making sure that its product and service descriptions, its Notes, its rewards program, the products and services it provides, and its business are all in compliance with applicable law.
- members must be 18 or older to join the rewards program of any licensed premises.
Termination of Right to use the Services
- You or we may terminate this agreement at any time. Without limiting the foregoing, we have the right to immediately terminate your member account in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or in the event of a failure by you to comply with any of these Terms.
- Where Goody terminates this agreement, then Goody will remove all access privileges to the Goody Benefits, deactivate your Goody Loyalty Card or Goody Application, and remove your information from use in the services provided to Goody Businesses.
- Where Goody terminates your membership to Goody, it will not be responsible or liable if this impacts on any loyalty scheme or rewards program you have signed up for or your ability to redeem promotions from any Goody Business.
You agree to indemnify and hold us and our officers and employees (Goody Representatives) harmless from any claims, actions, costs (including legal costs) or losses by us or any third party due to or arising out of:
- reasonable reliance by us or any third party upon any acts carried out, requests made or information provided through the use of your account details (including your username and/or password), your Goody Loyalty Card or your Goody Application or any instruction given by you or actions taken by you;
- your breach of any of these Terms; or
- any conduct of yours or any transaction entered into by you that does not comply with the relevant law.
You acknowledge and agree that:
- Goody make no warranties that the Website, Goody Benefits, Goody Loyalty Card or Goody Application will meet your requirements or that the Website, Goody Benefits, Goody Loyalty Card or Goody Application will operate uninterrupted, secure or error–free;
- Goody or Goody Representatives will not have any liability, on any legal basis whatsoever, to you or any third person for any indirect, special, exemplary, incidental or consequential damages, including but not limited to damages for loss of profits, use, data or other intangibles, arising out of or related to your use of the Website, Goody Benefits, Goody Loyalty Card or Goody Application;
- Goody is not responsible for the acts or omissions of any Goody Business and, to the extent permitted under applicable law you hereby release Goody from any and all claims or liability related to or arising from the acts or omissions of any Goody Business.
- You agree to indemnify and hold us and our officers and employees (Goody Representatives) harmless from any claims, actions, costs (including legal costs) or losses by us or any third party due to or arising out of:
Resolution of Disputes
If you have a complaint or a dispute with Goody or a Goody Business, our goal is to learn about and address your concerns promptly. If we are unable to do so to your satisfaction, we want you to have a neutral and cost effective means of resolving the issue quickly. Any complaint or dispute you may have:
- that involve Goody may be reported to Goody via e-mail at email@example.com, or by calling Goody’s customer service representative at 0800 10 33 32 between 9am-5pm weekdays (other than holidays);
- with regard to a Goody Business with respect to the services or the products or services offered by the Goody Business should be reported directly to the Goody Business.
- Where any dispute arises between you and another member another user of the Website or a Goody Business in relation to any usage of the Website (including in relation to any Content posted or transmitted) the Goody Benefits your use of your Goody Loyalty Card or your Goody Application you agree to act in good faith in relation to that other user to use your best endeavours to attempt to resolve the dispute amicably through negotiation or other informal means before pursuing any further formal action. You acknowledge that we will not be a party to any such dispute.
- If you have a complaint or a dispute with Goody or a Goody Business, our goal is to learn about and address your concerns promptly. If we are unable to do so to your satisfaction, we want you to have a neutral and cost effective means of resolving the issue quickly. Any complaint or dispute you may have:
- If any portion of these Terms is deemed to be invalid, illegal or unenforceable the remaining provisions shall remain in full force and effect.
- These Terms are governed by and will be construed in accordance with the laws of New Zealand and you submit to the jurisdiction of the courts of New Zealand.
Goody Card Merchant Agreement - General Terms
In this agreement
- Associated Person has that meaning given to it in clause 13.1;
- Business Day means each day except for Saturday, Sunday and public holidays in Auckland;
- Consenting Customers means those Goody Members who have agreed, and continue to agree, to receive certain Notes from the Merchant;
- Direct Debit Authorisation means the direct debit form that authorises Goody to collect funds by way of direct debit from the Merchant’s bank account;
- Inappropriate Content means any content that the Merchant does not have the right to use, or any content that is unlawful, vulgar, profane, disparaging or, in the sole judgment of Goody, otherwise objectionable;
- Merchant Customers means customers of the Merchant who are also Goody Members and have agreed to be part of any mailing list or loyalty program managed by the Merchant in relation to the Merchant Business through the Goody Services;
- Monthly Subscription Fee has the meaning in clause 9.1;
- Notes means certain messages, special offers, promotions, coupons, deal offers, and any other electronic communications, whether through email or, where available, various social media platforms;
- Replacement Fee has the meaning given to it in clause 3.4;
- Router has the meaning given to it in clause 2.1(a);
Goody Benefits means the benefits that Goody extend to individuals who sign up to be a member and through this membership be entitled to receive the benefits including:
- the convenience of having a card that can be used for loyalty schemes of various merchants that Goody has arranged to provide the Goody Services to; and
- the convenience of one set of personal details that can be managed by the individual through which chosen merchants can notify the member of matters relating to their business;
- Goody Loyalty Card means the loyalty card provided by Goody to Goody Members for Goody Members to use the Goody Benefits;
- Goody Member Data means all personal information and other information collected about the Goody Member from that members use of the Goody Benefits and Goody Loyalty Card;
- Goody Members means any individual person that has registered to be a member of Goody and agreed to the Goody User Terms;
- Goody Services has the meaning given to it in clause 2.1;
- Goody Software means all proprietary software and systems, including the Website, developed by Goody, that facilitate the provision of the Goody Services and provided to the Merchant;
- Goody User Terms means the terms on which an individual may access the Goody Benefits and Goody will provide those benefits to the individual;
- Tablet has the meaning to it in clause 2.1(a);
- Website means www.goodycard.nz and any other website that Goody may own or use to assist in the provision of the Goody Benefits and/or Goody Services.
- In this agreement
Description of Goody Services
For the term of this Agreement, Goody will provide the Merchant with the following services (Goody Services):
- the right to use the Number of Tablets (each, a Tablet) and, if applicable, the Router (Router) in the manner set out in clause 3;
- a licence to use the Goody Software in the manner set out in clause 4;
- management of data relating to Merchant Customers in the manner set out in clause 5;
- assisting the Merchant in its communication with Merchant Customers in the manner set out in clause 6;
- providing analysis of Merchant Customer behaviour in the manner set out in clause 7.
- For the term of this Agreement, Goody will provide the Merchant with the following services (Goody Services):
Tablet and Router Use
- Upon Goody supplying the Merchant with the Tablets and, where applicable, the Router, the Merchant will set up the relevant equipment in the manner proscribed by Goody at the time of supply.
The Merchant understands that:
- it will not use the Tablet(s) and /or Router for any purposes other than receiving the Goody Services;
- the Tablet(s) and, where applicable, the Router, are on loan to the Merchant for the term of this Agreement and Goody will continue to be the owner of such devices;
- the Merchant has the obligation to return any Tablet(s) and, where applicable, Router to Goody upon termination of this Agreement;
- the Tablet(s) may bear a logo, tagline and/or other message attesting to Goody’s role in offering the Goody Services and making available to Merchant Customers the Goody Benefits(e.g. “Powered by Goody”);
- it will not remove, alter, deface, cover or otherwise alter any markings, stickers or other indicia applied to the Tablet(s) and/or Router by or on behalf of Goody;
- it will use such Tablet(s) and Router (if any) in accordance with normal usage, and will not alter, or seek to alter, any such device;
- it will be responsible for the security of such Tablet(s) and Router (if any), maintaining them in good and operable condition and maintaining internet connectivity; and
- it will be responsible for training and supervising the Merchant’s employees and others acting on the Merchant’s behalf in the use of the Goody Services.
- The Merchant will, within 15 days after termination of this Agreement for any reason, return the Tablet(s) and Router (if any), in good and operable condition, subject only to ordinary wear and tear.
- In the event that the Merchant does not return any Tablet(s) or Router, to Goody within 15 days after termination of this Agreement, Goody may charge the Merchant a replacement fee for the applicable Tablet(s) or Router, which is equal to the full replacement cost of the device (Replacement Fee). Upon receipt by Goody of such Replacement Fee, title to the Tablet(s) and Router (if any) shall vest in the Merchant, and the Merchant’s obligations set forth in clause 3.2 and 3.3 will not apply.
- acknowledges that this Agreement constitutes a security agreement for the purposes of section 36 of the Personal Properties Securities Act 1999 (PPSA);
- acknowledges that a security interest exists in the Tablet(s) and any Router supplied to the Merchant; and
- grants a security interest in the first Tablet(s) and any Router, and all future Tablets or Routers Supplied to the Merchant under these Terms.
- The Merchant will provide all information and do all things that Goody may require to ensure that Goody has a perfected security interest in respect of the Tablet(s) and any Router under the PPSA.
Access to and Use of the Software
Upon the Merchant having set up the Tablet(s) in the manner proscribed by Goody, Goody grants the Merchant the right to use the Goody Software on the basis that such software:
- may only be used in furtherance of the Merchant Business;
- may not be copied or altered; and
- may only be used by the Merchant for securing Goody Members, operating the Merchants loyalty programme, managing the Merchant Customer data communicating with Consenting Customers and analysing the Merchant Customer behaviour in the manner contemplated by this Agreement.
- Goody represents that the Goody Software installed on the Tablet will operate materially in accordance with any instructions or documentation provided by Goody and will facilitate the applicable Goody Services as set out in this Agreement.
The Merchant will be responsible for:
- ensuring that any username and password (Merchant Login) required to access and/or use the Goody Software is kept secure and confidential and not revealed to any other person; and
- notifying Goody immediately of any unauthorised use of the Merchant Login or any other breach of security. Upon the Merchant’s notification, Goody will cease to rely on that username and password.
- The Merchant acknowledges that any instruction issued using the Merchant Login will be deemed to be an instruction by the Merchant and may be acted upon accordingly until the Merchant notifies Goody otherwise;
- Upon the Merchant having set up the Tablet(s) in the manner proscribed by Goody, Goody grants the Merchant the right to use the Goody Software on the basis that such software:
Management of Data
- acknowledges that Merchant Customers are a subset of Goody Members and that Merchant does not have any right of access to details of Goody Members other than Merchant Customers and that all data in relation to Goody Members (including Merchant Customers) is owned exclusively by Goody;
- acknowledges that Goody has a direct membership agreement with all Goody Members including Merchant Customers and may use Goody Member Data in the manner it has agreed with Goody Members and otherwise as permitted by applicable law;
- will not seek to access information in relation to Goody Members that are not Merchant Customers;
- will not use the Goody Software or access data in relation to the Merchant Customers in a manner that will impact on usage of services by other Goody business users;
- will ensure any usage of Merchant Customer data is consistent with the usage consented to by that Merchant Customer and is consistent with any applicable laws;
- will not prevent any information provided by a Goody Member or any request from a Goody Member from being passed through to Goody; and
- will not store data obtained through the use of the Goody Services on any device or platform other than the Tablet(s) or Goody Software.
- hold and maintain data in accordance with all applicable laws, except to the extent the Merchant has failed to pass through any Merchant Customers information requirements that would result in Goody not complying with those applicable laws; and
- not allow any other Goody business users to access data relating to Merchant Customers that is unique to the Merchant.
- The Merchant
Communication with customers
- For the term of the Agreement, Goody will, through the use of the Goody Software, enable the Merchant to send Notes to Consenting Customers as and when the Merchant determines, provided that the Note relates only to the Merchant Business.
- When sending any Notes, including any deal offers or promotions, the Merchant will comply with all applicable laws and any specific requirements of Merchant Customers.
- Goody may provide the ability for the Merchant to send the Notes through various social media platforms, which may include Facebook, Twitter, email, text messaging, mobile notifications and other social media platforms as advised by Goody from time to time.
- Where Goody requests (in its sole discretion) to see a Note or Notes from a Merchant prior to them being sent then, not less than 2 Business Days prior to sending any Note the Merchant must provide Goody with a copy of that Note and details of the intended recipient(s). Where Goody considers, in its sole judgment, that any Note contains any Inappropriate Content or that any offer the subject of the Note will not be fulfilled by the Merchant in accordance with the terms of such offer, Goody may advise the Merchant of this and require that the Note not be sent or be amended prior to sending (Goody Requirement). Where Goody advises Merchant of any Goody Requirement Merchant will comply that that Goody Requirement. Where the Goody Requirement is to amend the Note the Merchant will resubmit that Note in the same manner as required by this clause 6.4. Notwithstanding this clause 6.4 the Merchant remains responsible for all Notes sent by it.
Analysis of Data
- Where requested by the Merchant, Goody will, in relation to data collected through the Goody Software about Merchant Customers, carry out analysis and provide reports based on that analysis of the kind set out on the Website or in any documentation provided by Goody.
- Merchant may choose to receive the reports on a weekly or monthly basis and will notify Goody of the frequency it wishes to receive the reports provided it gives Goody 5 business days’ notice of this change.
- Goody will provide reports requested by Merchant as soon as is practicable but not more than 5 Business Days after receiving a request from Merchant.
Responsibilities of the Merchant
The Merchant acknowledges and agrees it will encourage its customers:
- to sign up to be a Goody Member and use the Goody Loyalty Card and/or, where available, any application Goody develops for a smartphone device;
- agree to receive Notes from the Merchant;
- to otherwise use the Goody Benefits.
- The Merchant will be responsible for ensuring that it is complying with all laws applicable to the Merchant Business in sending Notes, operating its loyalty program and otherwise operating th Merchant Business.
- The Merchant acknowledges and agrees it will encourage its customers:
- Except where the Merchant has been offered a Free Promotional Period, in consideration for the Goody supplying the Goody Services, the Merchant will pay Goody the monthly subscription fee as set out on the Goody Website (Monthly Subscription Fee).
- Where Goody offers any new services, it may charge a fee for the use of such services (Activity Fees) and those fees will be subject to the applicable terms of this Agreement and any other terms specified by Goody. The Activity Fees will be accrued for each calendar month and will be payable in accordance with clause 10.3.
- The Merchant will keep true and accurate records of all Notes, loyalty programs, promotional deals offered to Merchant Customers and deals redeemed by Merchant Customers and will, at Goody’s request, permit an independent auditor appointed by Goody to inspect the records for the purpose of confirming that, where applicable, the Activity Fees paid by the Merchant is accurate and the Merchant is otherwise complying with their obligations under this Agreement. Goody’s auditor may inspect those records during the Merchant’s normal business hours. The inspection will be conducted at Goody’s cost and will not be more than twice per calendar year, unless such audit reveals any material non-compliance by the Merchant.
- Where applicable, if an audit discloses any shortfall in the Activity Fees paid, the Merchant will immediately pay the shortfall, together with interest at the rate 2% above the overdraft rate of the Goody’s bank, calculated from the date on which the shortfall should have been paid to the date of actual payment.
Payment of Fees
- The Merchant agrees to sign the relevant Direct Debit Authorisation form in order for Goody to make direct debits from the Merchant for the Monthly Subscription Fee and, where applicable, Activity Fees.
The Monthly Subscription Fee is payable one month in advance, on or after the first day of the month, except if:
- the Commencement Date of this Agreement is other than the first Business Day of any month, the relevant Monthly Subscription Fees for the first partial month shall be prorated and charged the following month, together with the regularly scheduled monthly fees for such following month; or
- Goody offers a Free Promotional Period, the Monthly Subscription Fees for the initial partial month shall be charged along with the Monthly Subscription Fees for the first month commencing after the Free Promotional Period.
- Activity Fees will be payable in arrears on or after the first Business Day of the month following the month in which the fees were incurred.
- Goody may change the Monthly Subscription Fee and any Activity Fee by providing the Merchant notice of such change at least 14 days before the change becomes effective. If the Merchant does not agree to any such change in fees the Merchant may terminate this Agreement in accordance with clause 15 by giving Goody not less than 10 Business Days written notice of termination prior to the effective date of such fee change. The Merchant’s failure to terminate this Agreement prior to the relevant date of the fee change shall constitute the Merchant’s acceptance of the change in fees.
- The Merchant acknowledges and agrees not to terminate any Direct Debit Authorisation until all fees and charges payable under this Agreement have been paid in full. All fees and charges payable will remain enforceable obligations of the Merchant regardless of whether the Merchant terminates its Direct Debit Authorisation prior to collection in full by Goody or the Merchant challenges or seeks to reverse any charge authorised under this Agreement.
- Where Goody has not been able to collect payment from the Merchant for Monthly Subscription Fees or Activity Fees owed and that payment is 10 days past the due date, then Goody may suspend the Goody Services. Where Goody has been unable to collect any fees owed in a reasonable time and manner, Goody may engage an outside collection agency for such collection.
Goody reserves the right to use the Merchant’s name in:
- promoting and marketing the Goody Benefits
- presentation materials for the purpose of marketing Goody’s services and promoting Goody; and
- in communications with investors and prospective investors and with third parties with which Goody does, or seeks to do, business.
- For the duration of this Agreement, Goody is authorised to display the Merchant Trade Marks, provided such display is solely in connection with the marketing, demonstration, advertisement and promotion of Goody Services and the Goody Benefits.
- Nothing contained in this Agreement will give either party any interest in any patent, trade mark, service mark, copyright, moral rights, right in a design, know-how, confidential information and all or any other intellectual or industrial property rights, whether or not registered (Intellectual Property Rights) belonging to the other party. The right to use such Intellectual Property Rights as provided in this Agreement will cease on termination of this Agreement or earlier notice in writing.
- The Merchant acknowledges that all Intellectual Property Rights in the Goody Services and Goody Software and in any enhancements to or modifications to those belong to Goody and the Merchant will do nothing to contest or dispute such ownership.
- Goody reserves the right to use the Merchant’s name in:
Representations and Warranties
Goody represents and warrants to the Merchant that Goody will provide the Goody Services in compliance with:
- all applicable laws and regulations;
- Goody's published policies relating to the Goody Benefits; and
The Merchant represent and warrants to Goody that the Merchant:
- has all rights to any materials delivered by the Merchant for use (or approved by the Merchant for use) in conjunction with the Goody Services and to all Merchant Trade Marks and materials used in the Notes, and that the use of any of these by Goody in accordance with this Agreement will not infringe the rights of Goody or any third party;
- will comply with the terms of its published policies and programs, with respect to any of its operations that relate to the Goody Services;
- will not do anything that is intended to or likely to cause damage to the reputation of Goody;
- will not upload, post, e-mail or otherwise transmit any material that contains a virus or other mechanism designed to interrupt, destroy or limit the functionality of the Goody Software, any of the Goody Services, the Goody Benefits or any software or system of a third party; and
- will not interfere with the use of the services or benefits provided by Goody to any business user of Goody or any other end user, nor will the Merchant interfere with any other technology or services offered by Goody; and
- except as authorized by Goody, the Merchant will not seek to download, obtain the code for or in any other way seek to access the Goody Software or any other software or technology of Goody.
- Goody represents and warrants to the Merchant that Goody will provide the Goody Services in compliance with:
Disclaimers; Limitations of Liability; Release and Waiver
- Except as expressly set out in this Agreement, Goody, and any officer, director, employee, agent or representative of Goody (Associated Person), expressly disclaims all other representations, warranties and covenants, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
- Under no circumstances will Goody or any Associated Person be liable for damages of any kind arising out of or in connection with indirect, incidental, special or consequential damages (including but not limited to damages for loss of profits, use, data or other intangibles).
- Goody’s and all Associated Person’s liability collectively to the Merchant arising out of all claims (whether in contract, tort or otherwise) under or relating to this Agreement will not exceed, in aggregate, the total Monthly Subscription Fees and, if any, Activity Fees paid by the Merchant in the six months prior to the date on which the liability purportedly arose
- Except for each party’s payment obligations, neither party shall be liable under, or in default of, this Agreement for failure to perform its obligations under this Agreement if such failure arises out of causes beyond such party’s reasonable control and without its fault or negligence. Such causes or conditions shall include, but shall not be limited to, acts of God, terrorism, acts of a government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labour or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunications or internet outages, riots, or wars.
- The Merchant hereby agrees to indemnify Goody and its Associated Persons, and to hold them harmless from and against, any and all losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of any claim by a third party resulting from any act or omission of the Merchant or the operation of the Merchant Business (including but not limited to goods and services sold or provided by the Merchant) or from an actual or alleged breach of or failure to comply with any of the Merchant’s obligations, representations, warranties or covenants set forth in this Agreement.
Suspension, Term and Termination
- Goody may suspend the Merchant’s access to the Goody Services if the Merchant violates any of the terms of this Agreement or any policy or procedure applicable to the use of the Services that may be published by Goody from time to time.
- Upon suspension and until such time that the Merchant it is no longer suspended or this Agreement is terminated, Goody will remove the Merchant’s access privileges to the Goody Services and Goody Software.
- Upon termination of this Agreement Goody will remove the Merchant’s access privileges to the Goody Services and Goody Software and will remove and/or delete all material relating to the Merchant that was uploaded by Goody. The Merchant shall be responsible for the prompt return of the Tablet(s) and/or Router loaned to the Merchant by Goody, pursuant to Section 3.3.
This Agreement commences on the Commencement Date and ends on either:
- where there is a Free Promotion Period offered by Goody, the end of the Free Promotional Period; or
- the last day of the calendar month following the month in which the Commencement Date occurs;
- At the expiry of the Initial Term, this Agreement will automatically renew for consecutive monthly renewal terms (each a Renewal Term) unless either party gives the other written notice of termination in accordance with this clause 15.
If a notice of termination is delivered:
- on or prior to the fifteenth day of any calendar month, this Agreement will terminate on the last day of that same month;
- after the fifteenth day of any month, this Agreement will terminate on the last day of the following calendar month.
This Agreement can be terminated by the Merchant on 15 Business Days’ written notice:
- pursuant to clause 10.4;
- if Goody materially breaches this Agreement and does not correct such breach within 5 Business Days after receipt of written notice of the breach from the Merchant.
- This Agreement may be terminated for convenience by Goody on 10 Business Days written notice to the Merchant at any time in Goody’s sole discretion, without providing any explanation for such termination and without any liability or obligation to the Merchant.
- The Merchant shall continue to honour all Notes, including deal offers and promotions, sent to Merchant Customers prior to termination.
- If a dispute arises out of or relates to this Agreement (the Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
- A party claiming the Dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the Dispute.
- On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
- If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause (or within such further period agreed in writing by the parties) either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
- No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of this Agreement at any time will not be interpreted as a waiver of the provision.
- This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings, provided that, where a confidentiality agreement has previously been signed by the parties, that confidentiality agreement will continue in full force and effect, except to the extent of any inconsistency with this Agreement.
Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:
- addressed to the email address or address designated in writing by each party for that purpose from time to time; and
- marked for the attention of the designated person or office holder (if any).
- The initial email address, address and relevant person or office holder of each party are set out in the Key Terms of this Agreement and these addresses are also the addresses for the service of any legal proceedings in relation to this Agreement. However, these addresses may be changed from time to time by notice in writing to the other party.
A notice or communication in relation to this Agreement will be deemed to be received:
- in the case of a letter, on the third Business Day after posting;
- in the case of an email, will be deemed to be received when transmitted to the correct email address of the recipient; and
- in the case of personal delivery, when delivered.
- The parties acknowledge and agree that neither party has the authority to bind the other party.
- The Merchant will not assign, transfer or otherwise deal with this Agreement or any of its rights or obligations under this Agreement whether in whole or in part, without the prior written consent of Goody.
- This Agreement may be executed by the parties in counterparts, each of which will be deemed to be an original and all of which will constitute together one and the same agreement and all signatures need not appear on any one counterpart.
- This Agreement will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.