Terms and conditions

1. Goody Definitions

1.1 In this agreement

1. Associated Person has that meaning given to it in clause 14.1;
2. Business Day means each day except for Saturday, Sunday and public holidays in Auckland;
3. Consenting Customers means those Goody Members who have agreed, and continue to agree, to receive certain Notes from the Merchant;
4. 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;
5. Expiry Date means the expiry date of the relevant Offer (if any), as specified in the Offer Schedule;
6. 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:
   1. 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
   2. 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;
7. Goody Loyalty Card means the loyalty card provided by Goody to Goody Members for Goody Members to use the Goody Benefits;
8. 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;
9. Goody Members means any individual person that has registered to be a member of Goody and agreed to the Goody User Terms;
10. Goody Services has the meaning given to it in clause 2.1;
11. 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;
12. Goody User Terms means the terms on which an individual may access the Goody Benefits and Goody will provide those benefits to the individual;
13. 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;
14. Initial Term means the has the meaning given to it in clause 16.4;
15. 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;
16. Monthly Subscription Fee has the meaning in clause 8.1;
17. 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;
18. Offer means an offer specified by the Merchant and advertised on the Website and/or any Partner Website and which may be redeemed by Members for the goods and/or services of the Merchant in accordance with the Offer Terms and Conditions;
19. Offer General Terms means the general terms and conditions applicable to an Offer unless otherwise varied by the Offer Specific Terms, as set out on the Website and as may be amended by Goody from time to time by giving notice to the Merchant via email;
20. Offer Period means the period during which Goody will advertise an Offer on the Website and/or any Partner Website, as specified in the Offer Schedule;
21. Offer Schedule means a document or form (whether in hardcopy or electronic format) substantially in the format set out in Attachment A;
22. Offer Specific Terms means the specific terms and conditions applicable to the relevant Offer to be displayed on the Offer, as set out in the Offer Schedule;
23. Offer Terms and Conditions means the Offer General Terms and the Offer Specific Terms;
24. Partner Website means any website or application (for use on an electronic device) operated by any of Goody’s [partners], including (without limit) Neighbourly, Smart Trade, and Stuff;
25. Privacy Policy means the privacy policy as set out in the Website in relation to the Goody Member Data;
26. Replacement Fee has the meaning given to it in clause 3.3(e);
27. SIM Card has the meaning given to it in clause 2.1(a);
28. Tablet has the meaning to it in clause 2.1(a); and
29. Website means (a) goodycard.co.nz, goodycard.com.au, goodyhq.com and any other website that Goody may own or use to assist in the provision of the Goody Benefits and/or Goody Services; and (b) any application (for use on an electronic device) that is made available by Goody to Goody Members and relates to the website(s) specified in paragraph (a) of this definition, which provides similar functionality to those websites.

2. Description of Goody Services

2.1 For the term of this Agreement, Goody will provide the Merchant with the following services (Goody Services):

1. the right to use the Number of Tablets (each, a Tablet) and, if applicable, the SIM Card(s) (SIM Card) in the manner set out in clause 3;
2. a licence to use the Goody Software in the manner set out in clause 4;
3. management of data relating to Merchant Customers in the manner set out in clause 5;
4. assisting the Merchant in its communication with Merchant Customers in the manner set out in clause 6; and
5. promotion of the Merchant’s goods/services via Offers in the manner set out in clause 11

3. Hardware and Service Use

3.1 Upon Goody supplying the Merchant with the Tablets and, where applicable, the SIM Card, the Merchant will set up the relevant equipment in the manner prescribed by Goody at the time of supply.

3.2 The Merchant acknowledges that where Tablets or SIM Cards have been supplied to the Merchant and have been found to be faulty or in need of repair, Goody will, at Goody’s sole discretion, either repair or replace the Tablet and/or SIM Card (as applicable). Goody will not replace or repair any devices which are owned by the Merchant. Any Tablet or SIM Card replacements or repairs the need for which arises as a result of misuse by the Merchant or its Merchant Customers are subject to repair or replacement costs, set out in clause 3.3(e).

3.3 Where a Tablet has been supplied to the Merchant, the Merchant understands that:

1. it will not use the Tablet(s) and /or SIM Card for any purposes other than receiving the Goody Services;
2. the Tablet(s) and, where applicable, the SIM Card, are on loan to the Merchant for the term of this Agreement and Goody will continue to be the owner of such devices;
3. it is the Merchant’s responsibility to ensure that the Tablet and SIM Card, provided to the Merchant, remain undamaged;
4. the Merchant has the obligation to return any Tablet(s) and, where applicable, SIM Card to Goody upon termination of this Agreement, in good and operable condition, subject only to ordinary wear and tear;
5. In the event that the Merchant:
   1. does not return any supplied Tablet(s) or SIM Card, to Goody within 15 days after termination of this Agreement, Goody may charge the Merchant a replacement fee for the applicable Tablet(s) or SIM Card(s), which is equal to, or less than, the full replacement cost of the device (Replacement Fee); or
   2. returns any supplied Tablet(s) or SIM Card to Goody that is inoperable or damaged (other than as a result of ordinary wear and tear) or where a Tablet or SIM Card requires repair or replacement as a result of misuse by the Merchant or its Merchant Customers, Goody may charge the Merchant the lesser of the cost to repair the Tablet or SIM Card, or the full replacement cost of the Tablet or SIM Card (as applicable);
6. 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”);
7. it will not remove, alter, deface, cover or otherwise alter any markings, stickers or other indicia applied to the Tablet(s) and/or SIM Card by or on behalf of Goody;
8. it will use such Tablet(s) and SIM Card (if any) in accordance with normal usage, and will not alter, or seek to alter, any such device;
9. it will be responsible for the security of such Tablet(s) and SIM Card (if any), maintaining them in good and operable condition and maintaining internet connectivity; and
10. 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.

The Merchant:

1. acknowledges that this Agreement constitutes a security agreement for the purposes of section 36 of the Personal Properties Securities Act 1999 (PPSA);
2. acknowledges that a security interest exists in all Tablet(s) and any SIM Card supplied to the Merchant; and
3. grants a security interest in the first Tablet(s) and any SIM Card, and all future Tablets or SIM Cards 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 SIM Card under the PPSA.

4. Access to and Use of the Software

4.1 Upon the Merchant having set up the Tablet(s) in the manner prescribed by Goody, Goody grants the Merchant the right to use the Goody Software on the basis that such software:

1. may only be used in furtherance of the Merchant Business;
2. may not be copied or altered; and
3. 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.

4.2 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.

4.3 The Merchant will be responsible for:

1. 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
2. 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.

5. Management of Data

5.1 The Merchant

1. 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. Where a Merchant has consent from a Merchant Customer, that Merchant may export that Merchant Customer’s data from the Merchant Centre at any time, using the export button;
2. acknowledges that Goody has a direct membership agreement with all Goody Members including Merchant Customers and may use Goody Member Data only in the manner it has agreed with Goody Members and otherwise as permitted by applicable law;
3. will not seek to access information in relation to Goody Members that are not Merchant Customers;
4. will not use the Goody Software or access data in relation to the Merchant Customers in a manner that will impact on usage of Goody Services by other Goody business users;
5. 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;
6. will not prevent any information provided by a Goody Member or any request from a Goody Member from being passed through to Goody; and
7. 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.

5.2 Goody will

1. 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
2. not allow any other Goody business users to access data relating to Merchant Customers that is unique to the Merchant.

6. Communication with customers

6.1 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.

6.2 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.

6.3 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.

6.4 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.

7. Responsibilities of the Merchant

7.1 The Merchant acknowledges and agrees it will encourage its customers:

1. 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;
2. agree to receive Notes from the Merchant;
3. 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 the Merchant Business.

8. Fees

8.1 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, appropriate for the services being provided, as set out on the Goody Website (Monthly Subscription Fee).

8.2 Goody may charge a reasonable fee for each Offer that is successfully redeemed by a Goody Member (Offer Fees). For the purposes of this clause 8, “redeemed” means where an Offer is presented to the Offer Merchant by a Member and the Merchant completes a transaction with that Member. Offer Fees will be subject to the applicable terms of this Agreement and any other terms specified by Goody in the relevant Offer Schedule. Offer Fees will be accrued for each calendar month and will be payable in arrears on or after the first Business Day of the month following the month in which the Offer Fees were incurred. Goody will issue to the Merchant monthly invoices for the Offer Fees and the Merchant will pay each invoice (without any deduction or set-off of any kind) in the manner and at the time specified in the relevant Offer Schedule, or if not specified, by the 20th of the month following the month of the invoice.

8.3 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.

8.4 The Merchant will keep true and accurate records of all Notes, loyalty programs, promotional deals offered to Merchant Customers and Offers 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 Offer Fees or 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.

8.5 Where applicable, if an audit discloses any shortfall in the Offer Fees and/or 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.

9. Fair use

9.1 The Merchant agrees that its usage of the Goody Services will be reasonable and not excessive. Goody (acting reasonably) may determine the Merchant’s usage to be unreasonable and excessive if, on average, it materially exceeds the average level of usage of other Merchants in that same period (Excessive Use). If the Merchant’s usage is deemed Excessive Use, Goody may immediately suspend, modify or limit use of the Goody Services, and/or charge for the Excessive Use at a rate determined by Goody.

10. Payment of Fees

10.1 The Merchant agrees to sign the relevant Direct Debit Authorisation form for Goody to make direct debits from the Merchant for the Monthly Subscription Fee and, where applicable, Offer Fees and/or Activity Fees.

10.2 The Monthly Subscription Fee is payable one month in advance, on or after the first day of the month, except if:

1. 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
2. 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.

10.3 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.

10.4 Goody may change the Monthly Subscription Fee , the Offer Fees 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 16 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.

10.5 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.

10.6 Where Goody has not been able to collect payment from the Merchant for Monthly Subscription Fees, Offer 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.

11. Goody Offers

11.1 From time to time the parties may agree that the Merchant will offer Offers to Members. In such circumstances, the Merchant will submit to Goody a draft Offer Schedule via the Goody Software or using another electronic method agreed between the parties. Goody will accept, reject or request modification of the draft Offer Schedule within 5 Business Days of receipt.

11.2 Once an Offer Schedule is agreed between the parties by written confirmation by email, via the Goody Software or other electronic method agreed between the parties it will be deemed to incorporate the provisions of this Agreement. Goody, at its sole discretion, reserves the right to alter the Offer Period as set out in the Offer Schedule, provided that such Offer Period must occur prior to the relevant Offer Expiry Date. The parties acknowledge that there is no commitment by either of them to a minimum number of Offers to be made available by the Merchant.

11.3 The parties acknowledge that, at all times, Goody will act as agent for the Merchant in promoting Offers, and the Merchant will be solely responsible for carrying out its obligations under any Offer that is redeemed by a Member in accordance with the relevant Offer Terms and Conditions. Goody will not be responsible for any warranty claims and any obligations of the Merchant under the Consumer Guarantees Act 1993, and such warranty claims and obligations are the sole responsibility of the Merchant.

11.4 The Merchant acknowledges that Goody may act as agent for any other merchant and may promote and facilitate that other merchant’s offers, including any offers that are the same as or similar to the Offers given by the Merchant.

11.5 If a Member presents a valid Offer to the Merchant, the Merchant will perform its obligations under the Offer including promptly and efficiently:

1. providing the relevant goods and/or services to the Member in accordance with this Agreement and the Offer Terms and Conditions;
2. providing all reasonable after-sales service and support in respect of the relevant goods and/or services provided to the Member;
3. dealing with any complaint or dispute relating to a redeemed Offer raised by a Member. Without limiting the foregoing, Goody will as soon as reasonably practicable inform the Merchant in writing of any complaint or dispute made by a Member to Goody relating to a redeemed Offer; and
4. complying with its obligations in accordance with the laws of New Zealand in respect of the provision of those goods and/or services including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

11.6 In addition to the obligations set out in clause 11.5, where goods are being delivered, or services are being performed, by the Merchant under an Offer, the Merchant will:

1. be responsible for the packaging, logistics and the distribution of those goods to the relevant Member; and
2. provide Goody with proactive and regular updates on expected delivery dates of the goods or services upon request.

11.7 The Merchant will immediately notify Goody if at any time it considers it will not be able to carry out its obligations under an Offer and the reason for such non-performance. For the avoidance of doubt, any notice given under this clause will not relieve the Merchant of the performance of its obligations under this Agreement. If Goody receives notice under this clause or otherwise reasonably considers that the Merchant may not be able to carry out its obligations under a (whether or not that Offer has been advertised), then Goody may give notice to the Merchant of its intention to immediately withdraw the Merchant’s Offer(s) if the Merchant cannot reasonably show to Goody (within a reasonable time specified by Goody) that it is able to carry out such obligations.

11.8 If the Merchant fails to honour any Offer (including delivery of goods to a Member, as applicable), Goody may give notice to the Merchant of its intention to immediately withdraw the Merchant’s Offer(s).

11.9 In respect of any Offer, Goody and the Merchant agree that, in accordance with section 5(11G) of the Goods and Services Tax Act 1985, the time of supply for GST purposes will occur on the redemption of the Offer (i.e. when the Member uses the Offer to obtain the goods and/or services from the Merchant) instead of on the issue of the Offers by Goody. As such, the Merchant shall ensure that it accounts for GST on the provision of the underlying goods and/or services. Goody is not responsible for collecting, reporting or remittance of any GST in relation to sales made on behalf of the Merchant.

11.10 The Merchant warrants that where it makes, or has made, an offer for the relevant goods and/or services (whether in print, online, in store or otherwise) that is similar to, or better than, an Offer, it will notify Goody and the relevant Offer will be deemed to be amended to match that other offer.

11.11 Where the Merchant has entered into an offer agreement with Goody, that agreement shall come to an end on the later of the date of this Agreement or the date the last Offer Schedule entered into under that agreement is completed. Any Offer Schedule entered into after the date of this Agreement will be entered into on and subject to the terms of this Agreement.

12. Intellectual Property

12.1 Goody reserves the right to use the Merchant’s name in:

1. promoting and marketing the Goody Benefits
2. presentation materials for the purpose of marketing Goody’s services and promoting Goody; and
3. in communications with investors and prospective investors and with third parties with which Goody does, or seeks to do, business.

12.2 For the duration of this Agreement, Goody is authorised to display the Merchant Trade Marks (as set out in Schedule 1) and any marketing material provided to Goody by the Merchant in relation to an Offer (Advertisement Content), provided such display is solely in connection with the marketing, demonstration, advertisement and promotion of Goody Services and the Goody Benefits.

12.3 Subject to clause 12.2, 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.

12.4 The Merchant acknowledges that all Intellectual Property Rights in the Goody Services and Goody Software (excluding the Advertisement Content) and in any enhancements to or modifications to those belong to Goody and the Merchant will do nothing to contest or dispute such ownership.

13. Representations and Warranties

13.1 Goody represents and warrants to the Merchant that Goody will provide the Goody Services in compliance with:

1. all applicable laws and regulations;
2. Goody's published policies relating to the Goody Benefits; and
3. the Goody User Terms and Privacy Policy (and the updated terms as notified by Goody from time to time).

13.2 The Merchant represent and warrants to Goody that the Merchant:

1. has all rights to the Advertising Content and any other 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;
2. will comply with the terms of its published policies and programs, with respect to any of its operations that relate to the Goody Services;
3. will comply with the Goody User Terms and Privacy Policy and any other policies advised by Goody from time to time;
4. will not do anything that is intended to or likely to cause damage to the reputation of Goody;
5. 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
6. 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
7. 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;
8. will ensure that the undiscounted price of the goods and/or services (including any recommended retail price) that it specifies in an Offer or any Advertisement Content is true and correct, and does not materially differ from the price that it usually charges for the provision of those goods and/or services in the ordinary course of its business;
9. will ensure that the Offers and the Advertisement Content do not mislead or deceive or are not likely to mislead or deceive, or breach any applicable law or industry code (including without limitation, the Fair Trading Act 1986).

14. Disclaimers; Limitations of Liability; Release and Waiver

14.1 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.

14.2 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).

14.3 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, Offer Fees and/or Activity Fees paid by the Merchant in the six months prior to the date on which the liability purportedly arose

14.4 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.

15. Indemnity

15.1 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 failure by the Merchant to honour any Offer) 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.

16. Suspension, Term and Termination

16.1 Goody may suspend the Merchant’s access to any or all of the Goody Services if the Merchant violates any of the terms of this Agreement, any other agreement between the parties, or any policy or procedure applicable to the use of the Services (or services under any other agreement between the parties) that may be published by Goody from time to time.

16.2 Upon suspension and until such time that the Merchant is no longer suspended or this Agreement is terminated, Goody will remove the Merchant’s access privileges to some or all of the Goody Services and Goody Software.

16.3 Upon termination of this Agreement:

1. Goody:

   1. will remove the Merchant’s access privileges to the Goody Services and Goody Software;
   2. may withdraw any or all of the Merchant’s Offers before the end of the Offer Period; and
   3. will remove and/or delete all other material relating to the Merchant that was uploaded by Goody.

2. The Merchant will:

   1. promptly return the Tablet(s) and/or SIM Card supplied to the Merchant by Goody, pursuant to Section 3.3.; and
   2. perform its obligations in respect of any Offers that have not expired as at the date of termination.

16.4 This Agreement commences on the Commencement Date and ends on either:

1. where there is a Free Promotion Period offered by Goody, the end of the Free Promotional Period; or
2. the date specified as the Renewal Date in the Key Terms, whichever is later (Initial Term).

16.5 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 16.

16.6 The Merchant may terminate this Agreement for convenience upon written notice to Goody. If a notice of termination is delivered by the Merchant to Goody:

1. on or prior to the fifteenth day of any calendar month, this Agreement will terminate on the last day of that same month;
2. after the fifteenth day of any month, this Agreement will terminate on the last day of the following calendar month.

16.7 This Agreement can be terminated by the Merchant on 10 Business Days’ written notice:

1. pursuant to clause 10.4;
2. 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.

16.8 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.

16.9 The Merchant shall continue to honour all Notes, including deal offers and promotions, sent to Merchant Customers prior to termination.

16.10 In the event of any termination of this Agreement, Goody shall be entitled to notify some or all the Merchant Customers (via email and/or other communication) of such termination of the Merchant’s use of the Goody Services. In addition, Goody shall be entitled to take other actions, at its discretion, to assist Merchant Customers in obtaining the Goody Benefits and providing them an opportunity to redeem points earned. Any offers sent to Goody Members by the Merchant as part of the Goody Services shall be honoured by the Merchant for the duration of the offer period, as stated in the relevant offer terms and conditions.

17. Disputes

17.1 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.

17.2 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.

17.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.

17.4 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.

18. General Provisions

18.1 This Agreement may be varied by Goody at any time by notice to the Merchant (including by email). The variation will become effective on the following date (Effective Date):

1. where Goody gives notice of the variation after the fifteenth day of any calendar month, the first day of the second calendar month following the month in which such notice is given; or
2. where Goody gives notice of the variation on or prior to the fifteenth day of any calendar month, the first day of the next calendar month following the month in which such notice is given.

If the Merchant does not agree to any such variation the Merchant may give notice to terminate this Agreement in accordance with clause 16.6. The Merchant’s failure to terminate this Agreement prior to the Effective Date shall constitute the Merchant’s acceptance of the variation.

18.2 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.

18.3 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.

18.4 Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:

1. addressed to the email address or address designated in writing by each party for that purpose from time to time; and
2. marked for the attention of the designated person or office holder (if any).
3. 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.

4. A notice or communication in relation to this Agreement will be deemed to be received:

   1. addressed to the email address or address designated in writing by each party for that purpose from time to time; and
   2. marked for the attention of the designated person or office holder (if any).

5. 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:

   1. in the case of a letter, on the third Business Day after posting;
   2. in the case of an email, will be deemed to be received when transmitted to the correct email address of the recipient; and
   3. in the case of personal delivery, when delivered.

18.6 The parties acknowledge and agree that neither party has the authority to bind the other party.

18.7 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.

18.8 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.

18.9 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.