Merchant Terms & Conditions

TaxiCharge New Zealand Limited - Merchant Agreement

BETWEEN: TaxiCharge New Zealand Limited (“TaxiCharge”) a company registered in New Zealand and having its registered office at Level 4, 210 Khyber Pass Rd, Newmarket, Auckland AND and the Merchant (“the Merchant”)

TaxiCharge provides a service which enables merchants to consolidate all payments made using Approved Payment Methods (“Service”). The Merchant operates a taxi service, and wishes to provide passenger services to persons who use an Approved Payment Method. TaxiCharge and the Merchant agree that TaxiCharge will provide Services to the Merchant on the terms and conditions set out in this Agreement.

1. Interpretation

"Account Holder" means a natural person, company, firm, partnership, incorporated society, government department or other body corporate who or which has entered into an agreement with TaxiCharge enabling Charges to be made to an account operated by TaxiCharge in the name of that Account Holder;

"Agreement" includes (a) these Terms and Conditions (b) the Operating Procedures; and (c) any other terms and conditions provided to the Merchant by TaxiCharge from time to time relating to specific aspects of the Services, in each case as amended by TaxiCharge from time to time;

“Approved Payment Method” means a method for payment of Charges by a passenger or Account Holder that is approved by TaxiCharge from time to time. At the date of this Agreement, the Approved Payment Methods are:

(a) scheme debit card;

(b) credit card;

(c) TaxiCharge Card - a card issued by TaxiCharge to a natural person nominated by an Account Holder to be used to pay Charges for Taxi Services, which carries the name of the relevant Account Holder and Card Holder;

(d) TaxiCharge Phone Charge – a PIN number issued by TaxiCharge to an Account Holder’s account number which is assigned by TaxiCharge to a specific Taxi Service phone booking and entitles an Authorised Passenger to charge the Charges for the Taxi Service provided pursuant to that booking
to the Account Holder’s account by quoting the PIN;

(e) TaxiCharge Voucher Card - an electronic TaxiCharge Voucher Card issued by TaxiCharge to an Account Holder’s account number which entitles an Authorised Passenger to incur charges to the Account Holder’s account by presenting the TaxiCharge Voucher Card for processing through a TaxiCharge point of sale terminal;

(f) TaxiCharge Voucher - a printed certificate embossed or encoded with the account number assigned by TaxiCharge to an Account Holder, which is issued by TaxiCharge to that Account Holder entitling an Authorised Passenger to make Charges to that Account Holder's account;

“Authorised Passenger” means any person in possession of a TaxiCharge Voucher, TaxiCharge Voucher Card, or TaxiCharge PIN for a Phone Booking, who is authorised by the applicable Account Holder to make Charges to the Account Holder’s account;

"Business Day" means a day (other than a Saturday or Sunday) on which registered banks are customarily open for business in Auckland;

"Charge" means any Taxi Fare or ESF charged by use of an Approved Payment Method;

"Confidential Information" means this Agreement and any information about the business of either party, including information about its systems, operations, processes, trade secrets and data or which is by its nature confidential, or which relates to service providers or suppliers to either party and includes information about any Authorised Passenger or customer or any employee of either party but does not include information which is or becomes public knowledge other than by breach of this Agreement or any other confidentiality obligation;

"Electronic Payment" means payment using any Approved Payment Method other than a TaxiCharge Payment Method;

“ESF” means an electronic service fee charged to a passenger (in addition to the Taxi Fare) if the passenger pays the Taxi Fare by Electronic Payment;

"Intellectual Property" means all intellectual property of TaxiCharge, including patents, logos, registered designs, trademarks (whether registered or unregistered), copyright, database rights, know-how, and rights to Confidential Information;

“Merchant” means the person named in the Application as the Merchant;

“Mobile App” means a mobile application that:

(a) enables authorised users to pay Charges;

(b) processes Charges using the TaxiCharge payment system; and

"Operating Procedures" means the procedures for acceptance of the Approved Payment Methods as notified by TaxiCharge to the Merchant from time to time;

"Participating Taxi Company" means an approved taxi organisation which operates as a taxi company, to which the Merchant is contracted and which has also entered into an agreement with TaxiCharge;

"Payment Period" means the payment period agreed between the Merchant and TaxiCharge from time to time in accordance with section 3;

“Representative” means a representative of a party, including its employees, agents and contractors;

"Sales Voucher" means a voucher provided by TaxiCharge to the Merchant which enables the Merchant to manually record Charges that would otherwise be paid by Electronic Payment;

“Service” has the meaning set out above;

"Taxi Fare" means the fare charged by the Merchant for the provision of Taxi Services, excluding any ESF;

"Taxi Services" means the transport services provided by the Merchant on demand under the Merchant's taxi licence;

“TaxiCharge Card”, “TaxiCharge Phone Charge”, “TaxiCharge Voucher Card” and “TaxiCharge Voucher” each has the corresponding meaning set out in the definition of “Approved Payment Method” above;

“TaxiCharge Customer” means a passenger who uses an Approved Payment Method to pay Charges for Taxi Services;

“TaxiCharge Payment Methods” means methods for payment by Account Holders operated by TaxiCharge, as updated by notice to the Merchant by TaxiCharge from time to time. At the date of this Agreement, the TaxiCharge Payment Methods are: (a) TaxiCharge Cards; (b) TaxiCharge Phone Charges; (c) TaxiCharge Voucher Cards; and (d) TaxiCharge Vouchers;

"Valid Charge" means a Charge which is:

(a) made by a Customer's use of an Approved Payment Method in accordance with clause 2; and

(b) delivered to TaxiCharge in accordance with the Operating Procedures, provided that “Valid Charge” does not include any ESFs unless the Participating Taxi Company has instructed TaxiCharge to pay part or all of the ESFs to the Merchant.

In this Agreement a reference to any statute is to that statute as amended, supplemented or varied from time to time and includes any re-enactment or substitution of such statute; headings are convenience only and do not affect interpretation; “including” will be construed without limitation; and the singular includes the plural (and vice versa).

2. Charges

2.1 The Merchant must permit all passengers to pay Taxi Fares and any ESFs using any Authorised Payment Method. The Merchant must not:

(a) charge passengers any additional fees (other than ESFs) for payment using an Approved Payment Method; or

(b) demand any payment directly from a TaxiCharge Customer.

2.2 The Merchant must process all payments for Charges made using an Approved Payment Method in accordance with the Operating Procedures.

2.3 The Merchant must deliver all signed Sales Vouchers and TaxiCharge Vouchers to TaxiCharge within 30 days of the date on which the applicable Taxi Services are actually provided, in accordance with the Operating Procedures.

2.4 The Merchant must supply a TaxiCharge Customer with a valid tax invoice on request.

3. Payment

3.1 TaxiCharge will:

(a) reimburse the Merchant for Valid Charges; and

(b) pay the Surcharges to the Merchant or the Merchant’s Participating Taxi Company, in accordance with the Merchant’s Participating Taxi Company’s directions to TaxiCharge from time to time. The Merchant acknowledges that the Merchant’s Participating Taxi Company’s directions to TaxiCharge
in respect of payment of the Surcharges is at the Participating Taxi Company’s (and not TaxiCharge’s) discretion.

3.2 TaxiCharge will, not later than 10 days after the end of the Payment Period, supply the Merchant with a statement setting out Valid Charges for that period, and will pay to the Merchant the amount of all Valid Charges recorded in all transactions using an Approved Payment Method received by TaxiCharge during that Payment Period, less the commission specified in respect of that Payment Period.

3.3 Either party may by not less than one month's notice to the other alter the Payment Period applicable to the Merchant to any other Payment Period currently offered by TaxiCharge.

3.4 TaxiCharge may by written notice to the Merchant alter the dates on which Payment Periods commence from time to time.

3.5 The Merchant shall accept that payment from TaxiCharge is in full and final satisfaction of the relevant debts to the Merchant incurred by TaxiCharge Customers.

3.6 TaxiCharge may at any time by written notice to the Merchant vary the rates of commission applicable in respect of any Payment Period, and the Merchant shall be bound by that variation from receipt of that notice.

3.7 TaxiCharge may make payments to the Merchant by direct credit to the bank account of the Merchant or to any other bank account as the Merchant may from time to time notify TaxiCharge in writing.

3.8 Each payment will be deemed to be made when TaxiCharge gives instructions to its bank to make that direct credit. TaxiCharge will not be liable for any delay in crediting the payment to the account of the Merchant.

3.9 The Merchant must notify TaxiCharge of any claims in respect of disputed payments within 6 months after the date the Charge was accepted by the Merchant (the Six Month Period). After the Six Month Period the Merchant is deemed to have accepted the accuracy of the payment and has no claim in respect of the disputed payment.

3.10 The Merchant must pay any monies owed to TaxiCharge immediately on demand.

3.11 TaxiCharge may set off any monies owing to it by the Merchant for any reason against any payment due to the Merchant, including sums payable under this Agreement.

3.12 For the avoidance of doubt, a Mobile App does not change the relationship between Merchants and TaxiCharge Customers and the usual payment processes will continue to apply.

3.13 TaxiCharge may set off any amount payable to TaxiCharge by the Merchant against any amount payable by TaxiCharge to the Merchant.

4. Complaint s against Merchant

4.1 The Merchant is solely responsible for addressing and, where appropriate, settling all complaints and disputes (including claims of overcharging) in respect of the Taxi Services made by TaxiCharge Customers and third parties claiming through them.

5. Indemnity

5.1 The Merchant indemnifies TaxiCharge on demand against any damages, costs and expenses (including legal expenses on a solicitor and own client basis) suffered or incurred TaxiCharge and any claims, setoffs, actions and proceedings by any person of any nature whatsoever arising from:

(a) charges which are not Valid Charges or ESFs which are in excess of the standard ESF;

(b) unauthorised or fraudulent use of a Mobile App and/or an Approved Payment Method;

(d) charges for which TaxiCharge reasonably believes payment was made directly by an Account Holder or an Authorised Passenger to the Merchant;

(e) claims of any kind in respect of Taxi Services supplied by the Merchant or its Representatives;

(f) unauthorised, fraudulent or negligent actions or omissions of the Merchant or its Representatives;

(g) breach of this Agreement by the Merchant; and

(h) enforcement of TaxiCharge’s rights under this Agreement (including debt collection costs).

5.2 This clause 5 will survive termination of this Agreement.

6. Term of Agreement

6.1 This Agreement commences on the date the Merchant commences providing Taxi Services to TaxiCharge Customers.

6.2 This Agreement will terminate immediately if the Merchant ceases to operate under the Participating Taxi Company.

6.3 TaxiCharge may terminate this Agreement immediately, at its is discretion at any time, by giving the Merchant notice in writing.

6.4 The Merchant may terminate this Agreement by giving TaxiCharge at least 30 days' notice in writing (subject to clause 10.1).

6.5 On termination of this Agreement

(a) TaxiCharge will remain liable to pay the Merchant in respect of Valid Charges made before the date of termination, less any set-offs but will have no other liability of any kind to the Merchant;

(b) the Merchant must remain liable for liabilities accrued during the term of the Agreement, together with liabilities under clauses which survive termination of this Agreement; and

(c) the Merchant will within 2 Business Days return to TaxiCharge all Confidential Information and Intellectual Property of TaxiCharge.

7. Promotion of TaxiCharge service

7.1 TaxiCharge may supply to the Merchant promotional material, including insignia and documentation. TaxiCharge will retain all Intellectual Property rights in the promotional materials.

7.2 The Merchant must:

(a) display the promotional material supplied by TaxiCharge in a manner visible to all taxi users at all times;

(b) comply with all reasonable written directions of TaxiCharge in respect of the promotional material;

(d) not do anything that prejudices the reputation or standing of TaxiCharge, or TaxiCharge's products and Service;

(e) advise TaxiCharge promptly if it believes that any person not entitled to use the promotional materials is in fact using them, or that there is any breach of TaxiCharge's rights in Intellectual Property;

(f) not make any misrepresentation about the Charges, or TaxiCharge's products and Services;

(g) prominently acknowledge TaxiCharge in any material produced or distributed by the Merchant that refers to the Services, the wording of which must be approved by TaxiCharge. Any acknowledgement must include a statement that TaxiCharge owns, or is the licensee of, all
intellectual property rights in the Services or in the promotional materials as the case may be.

7.3 The Merchant is entitled to use the Intellectual Property only to promote and market the use of the Services as explicitly provided for in clause 7.2. To the extent that the Merchant acquires any proprietary rights or goodwill in any of TaxiCharge's Intellectual Property, the Merchant automatically assigns such rights to TaxiCharge and will take any steps reasonably requested by TaxiCharge to give effect to such assignment.

7.4 This clause 7 will survive termination of this Agreement.

8. Privacy and compliance with law

8.1 The Merchant acknowledges that it and its Representatives may, from time to time, have access to personal information about TaxiCharge Customers, TaxiCharge's staff and TaxiCharge members and undertakes to use and protect all personal information in accordance with the principles of the Privacy Act 1993. In particular, the Merchant may only use and store any such personal information strictly for the purpose for which it is provided to the Merchant and must not use such personal information for its own purposes.

8.2 The Merchant authorises TaxiCharge to collect, hold and disclose personal information about the Merchant for the purpose of providing the Services and for any other purpose notified to the Merchant by TaxiCharge or permitted under the Privacy Act 1993. The Merchant may access and request correction of any information that TaxiCharge holds about it by contacting TaxiCharge.

8.3 The Merchant will comply with all New Zealand laws, including but not limited to the Transport Services Licensing Act 1989, the Transport (Vehicle and Driver Registration and Licensing) Act 1986, the Land Transport Act 1998 and the Fair Trading Act 1986, the Health and Safety at Work Act 2015, and all relevant regulations, bylaws and Codes.

8.4 The Merchant must immediately notify TaxiCharge if the Merchant becomes aware of any health and safety issues related to a TaxiCharge Point of Sale Terminal.

9. Limitation of Liability

9.1 TaxiCharge expressly excludes all warranties and representations (whether express or implied) in connection with all matters covered by this Agreement, including the provision of the Services, Approved Payment Methods and any Mobile App.

9.2 For the purposes of section 5D of the Fair Trading Act 1986 (FTA), the parties agree to contract out of sections 9, 12A and 13 of the FTA in respect of all matters covered by this Agreement. The parties agree that it is fair and reasonable for them to be bound by this clause.

9.3 In no event will TaxiCharge, nor its Representatives (excluding the Merchant, Participating Taxi Company and drivers), be liable under contract, tort (including negligence) or otherwise in connection with the use of or inability to use the Services, Approved Payment Methods and/or a Mobile App.

9.4 In the event TaxiCharge is liable notwithstanding clause 9.3, TaxiCharge expressly excludes any liability for any:

(a) loss of profits; and

(b) consequential, indirect or special damage, loss or injury of any kind.

10. General

10.1 TaxiCharge may amend the terms of this Agreement at any time by written notice to the Merchant. The Merchant may terminate this Agreement on written notice within 2 Business Days of receipt of notice from TaxiCharge in accordance with this clause 10.1, failing which the Merchant will be deemed to be bound by the amendment.

10.2 The Merchant must procure that its Representatives comply with the terms of this Agreement. Any acts or omissions of a Representative of the Merchant will be deemed to be acts or omissions of the Merchant for the purposes of this Agreement.

10.3 The Merchant must not assign or transfer its rights or obligations under this agreement without the prior written consent of TaxiCharge which TaxiCharge may in its discretion grant or refuse, on any conditions it may think fit. For the purpose of this clause 10.3 any change in the effective management or control of the Merchant must be deemed to be an assignment.

10.4 The relationship between TaxiCharge and the Merchant is one of independent contract. The Merchant is not an employee or agent of TaxiCharge, and has no authority to make binding commitments, enter into agreements or incur any liability on behalf of TaxiCharge.

10.5 If TaxiCharge fails to enforce any terms or to exercise its rights under this Agreement at any time, TaxiCharge has not waived those rights.

10.6 If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions must remain in full force and effect and the parties must adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by the terms of this Agreement.

10.7 In the event of any conflict between the provisions of: (a) this Agreement and the provisions of any other document, the provisions of this Agreement will prevail; and (b) these Terms and Conditions and any other part of this Agreement, these Terms and Conditions will prevail.

10.8 All notices to be given under this Agreement must be in writing, by way of personal delivery, post, facsimile or email. Notices given to the Merchant will be deemed to be received by the Merchant if given by facsimile or email, immediately upon despatch to the facsimile number or email address, and if given by post, 5 Business Days after mailed to the most recent postal address notified to TaxiCharge by the Merchant. Notices given to TaxiCharge will not be effective until actual receipt by TaxiCharge.