Merchant Terms & Conditions

TaxiCharge New Zealand Limited Merchant Agreement

AGREEMENT made between TAXICHARGE New Zealand LTD (“TaxiCharge”) and the Merchant (“the Merchant”)

A. TaxiCharge provides a card and voucher based service to enable regular taxi passengers to charge taxi fees to a consolidated tax invoice which incorporates account management benefits and to enable merchants to consolidate EFTPOS, debit and credit card vouchers and Taxi Vouchers for payment (“the Service”).

B. The Merchant operates a “taxi service, and wishes to provide passenger services to persons who use EFTPOS, debit, credit and TaxiCharge cards and Taxi Vouchers.

C.  TaxiCharge agrees to allow the participation of the Merchant in the Service on the terms set out in this agreement.

1.  Interpretation

1.1 In this agreement:

“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” means this Agreement, all schedules and attachments referred to in, and appended to this agreement including the Operating Procedures, and any variation in accordance with the terms of this agreement;

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

“Card” means:

•  an approved EFTPOS, debit card or credit card which TaxiCharge has given notice to the

Merchant will be accepted by TaxiCharge, or

•  a Taxi Card, which complies with clause (valid transactions)

“Card Holder” means a natural person to whom TaxiCharge has issued a Taxi Card, or a person who proffers an approved debit or credit card, in each case for the payment of Taxi Fares;

“Charge” means any Taxi Fare charged by use of a Card or Taxi Voucher;

“Confidential Information” means information about the business of either party, including, without limitation, 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 Card Holder, Taxi Voucher Holder 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;

“Delivery Period” in respect of a Charge means the period ending 30 days after the Transaction

Date in respect of that Charge;

“Electronic Transaction” means any charge processed through an electronic point of sale terminal;

“Force Majeure” means any event beyond the reasonable control of either party including (but not limited to) any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil commotion, network service or data switch failure, inability to obtain products or supplies including the imposition of any export or import bans;

“GST” means goods and services tax under the Goods and Services Tax Act 1985;

“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;

“Operating Procedures” means the procedures for acceptance of Cards and Taxi Vouchers 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 and to which the Merchant is contracted, and which has also entered into an agreement with TaxiCharge;

“Payment Period” means the period specified in Schedule 1 in respect of which payments are to be made to the Merchant as set out in clause 3.1;

“Sales Taxi Voucher” means a Taxi Voucher provided by TaxiCharge to the Merchant for use in recording Charges made by use of a Card;

“Taxi Card” means a card issued by TaxiCharge to a natural person nominated by an Account Holder to be used to make charges, which carries the name of the relevant Account Holder and Card Holder;

“Taxi Fare” means the fare charged by the Merchant for the provision of Taxi Services;

“Taxi Services” means the transport services provided by the Merchant on demand under the

Merchant’s taxi licence to the Card Holder or Taxi Voucher Holder;

“Transaction Date” means the date on which taxi services are actually provided;

“Valid Charge” means a Charge which is made by a Customer’s use of a Card or Taxi Voucher which complies with clause 2 and which has been delivered to TaxiCharge in accordance with the Operating Procedures;

“Taxi Voucher” means 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 the Taxi Voucher Holder to make Charges to that Account Holder’s account and which complies with clause [valid transactions];

“Taxi Voucher Holder” means any person in possession of a Taxi Voucher who is authorised by an Account Holder to make Charges.

1.2 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.

2. Charges

2.1 Where the Merchant, its employees or agents have provided Taxi Services to Account Holders, Card Holders or Taxi Voucher Holders, the Merchant shall permit, and shall require its employees or agents to permit those Card Holders or Taxi Voucher Holders to pay Charges for those services by presentation of Cards or Taxi Vouchers at the Taxi Fares normally charged for those taxi services and subject to the terms of this Agreement.

2.2 The Merchant shall not demand any other payment directly from an Account Holder, Card Holder or Taxi Voucher Holder in respect of taxi services charged by use of Card or Taxi Voucher.

2.3 On providing taxi services to any Card Holder the Merchant shall complete the Sales Voucher or electronic transaction as required by the Operating Procedures and have it signed by the Card Holder, and on providing taxi services to any Taxi Voucher Holder the Merchant shall complete the Taxi Voucher as required by the Operating Procedures and have it signed by the Taxi Voucher Holder on completion.

2.4 The Merchant shall deliver all signed Sales Vouchers and Taxi Vouchers to TaxiCharge within the relevant Delivery Period as required by the Operating Procedures.

2.5 The Merchant acknowledges that Sales Vouchers and Taxi Vouchers are not tax invoices, and shall supply the Card Holder or Voucher Holder with a Tax Invoice on request.

3. Payment

3.1 TaxiCharge shall reimburse the Merchant for Valid Charges only, on the terms of this Agreement.

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 Sales Vouchers and Taxi Vouchers received by TaxiCharge during that Payment Period, less the commission specified in respect of that Payment Period in Schedule 1.

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 in full and final satisfaction of the relevant debts to the Merchant incurred by those Account Holders, Card Holders and Taxi Voucher Holders.

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 as set out in clause 13.

3.7 TaxiCharge may make payments to the Merchant by direct credit to the bank account of the Merchant specified in Schedule 1 or to any other bank account as the Merchant may from time to time notify TaxiCharge in writing.

3.8 Each payment shall be deemed to be made when TaxiCharge gives instructions to its bank to make that direct credit. TaxiCharge shall 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, otherwise the Merchant is deemed to have accepted the accuracy of the payment.

3.10 The Merchant shall pay any moneys owed to TaxiCharge promptly 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.

4. Complaints against Merchant

4.1 The Merchant is solely responsible for addressing and, where appropriate, settling all complaints, disputed Charges including claims of overcharging, adjustments and demands in respect of the Taxi Services made by Account Holders, Card Holders, Taxi Voucher Holders and third parties claiming through them.

5. Indemnity

5.1 The Merchant shall be entirely responsible for, and will indemnify TaxiCharge against, all claims, setoffs, actions and proceedings by any person of any nature whatsoever arising from:

(a) charges which are not Valid Charges;

(b) unauthorised or fraudulent use of Cards or Taxi Vouchers;

(c) unauthorised or fraudulent redemption of Cards or Taxi Vouchers;

(d) charges for which TaxiCharge reasonably believes payment was made directly by the Account Holder, Card Holder or Taxi Voucher Holder to the Merchant;

(e) claims of any kind in respect of taxi services supplied by the Merchant to a Card Holder or Taxi Voucher Holder.

5.2 The Merchant will indemnify TaxiCharge against all claims, losses, damages or costs (including legal costs on a solicitor-client basis) arising as a result of unauthorised, fraudulent or negligent actions by the Merchant, its employees, contractors or agents.

5.3 The Merchant will indemnify TaxiCharge against all claims, costs, losses, and damages of any kind whatsoever arising from any breach of this contract by the Merchant.

5.4 This clause 5 shall survive termination of this Agreement.

6. Term of Agreement

6.1 This Agreement commences on the date it is signed by both the Merchant and TaxiCharge.

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

6.3 TaxiCharge may terminate this Agreement immediately 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.

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 shall have no other liability of any kind to the Merchant;

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

(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 shall supply to the Merchant promotional material, including insignia and documentation. TaxiCharge shall 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;

(c) not part with possession or permit other persons to use 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 shall be entitled to use the Intellectual Property only to promote and market the use of the Services as explicitly provided for in clause 7.2. All goodwill arising from the use of the Intellectual Property by the Merchant shall accrue to TaxiCharge and the Merchant shall not acquire any proprietary right or goodwill in any of TaxiCharge's Intellectual Property.

7.4 This clause 7 shall survive termination of this Agreement.

8. Assignment

8.1 The Merchant shall 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, including without limitation, an indemnity from the Merchant to TaxiCharge in respect of the appropriate recipient of payments as between the Merchant and the assignee.

8.2 For the purpose of clause 8.1 any change in the effective management or control of the Merchant shall be deemed to be an assignment.

9. Relationship between the parties

9.1 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 or enter into agreements on behalf of TaxiCharge.

10. Changes

10.1 TaxiCharge may vary the terms of this Agreement at any time by written notice to the Merchant. Unless the Merchant gives written notice terminating this agreement within 2 Business Days after receipt by the Merchant of notice from TaxiCharge, the Merchant shall be bound by that variation.

11. Compliance with the law

11.1 The Merchant acknowledges that it, its employees and contractors may have access to personal information about Card Holders, Taxi Voucher Holders, Account Holders, TaxiCharge’s staff and members and undertakes to treat all personal information as Confidential Information and in accordance with the principles of the Privacy Act 1993.

11.2 The Merchant will comply with all New Zealand laws, including but not limited to the TransportServices Licensing Act 1989, the Transport (Vehicle and Driver Registration and Licensing) Act 1986, the Land Transport Act 1998, the Commerce Act 1986, the Fair Trading Act 1986, the Health and Safety in Employment Act 1992, and the Copyright Act 1994 and all relevant regulations, bylaws and Codes.

12. General

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

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

12.3 In the event of any conflict between the provisions of this Agreement and the provisions of any other document, the provisions of this Agreement shall prevail.

13. Notices

13.1 All notices to be given under this agreement shall be in writing. Notices given to the Merchant shall be deemed to be received by the Merchant if given by facsimile, immediately upon despatch to the facsimile number specified in Schedule 1, and if given by post, 5 days after mailed to the postal address specified in Schedule 1 as amended by notice in writing from time to time.

13.2 Notices may not be given by electronic mail or mobile phone text messaging.

13.3 Notices given to TaxiCharge shall not be effective until actual receipt by TaxiCharge.