RACQ DINING REWARDS - TERMS AND CONDITIONS
1 THE ROYAL AUTOMOBILE CLUB OF QUEENSLAND LIMITED ABN 72 009 660 575 (RACQ or Program Provider)
2. THE COMPANY DESCRIBED IN PART A AS MERCHANT (Merchant)
These terms and conditions apply to the participation by the Merchant in the Program.
1. Definitions: In this document:
Acceptance Date means the date of commencement of this Agreement; Agreement means the agreement between RACQ and Merchant including these terms and conditions in operation at the relevant time including the Application to enable the Merchant to participate in the Program as amended or replaced by RACQ from time to time; Annual Subscription Fee means the non-refundable annual subscription fee paid by the Merchant to participate in the Program; Application means the forms provided to the Merchant comprising Parts (A) to (D) inclusive; Bank means the financial institution providing the direct debit facility for the Reward; Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Brisbane or Sydney; Card means a Visa or Mastercard branded reloadable pre-paid, debit or credit card activated by the Cardholder or the Issuer to participate in the Program; Cardholder means any person that has a Card who is eligible to participate in the Program; Cooling-off period means the 72 hours after signature by the Merchant; Content means any information provided for the Directory or a Promotion; Database Information means any and all Cardholder information collected by RACQ from the Cardholder; Database List means the list of Cardholders from the Database Information to whom the Promotion is targeted; Directory means the display of the Merchant’s information from Part A on the Website; Fee means the amounts specified in Part B including the Annual Subscription Fee and is inclusive of GST; Intellectual Property includes copyrights, patents, trademarks, processes, confidential know how, registered designs, or other like rights of which any party is the author, proprietor, owner or licensee; Issuer means the financial institution that issues the Cards and accepts settlement of the Rewards; Materials means all advertising and promotional materials provided by RACQ to the Merchant for display at the point of sale and entry of the premises; Merchant Bank Account means the bank account nominated by the Merchant in Part C or such other bank account details as the Merchant advises RACQ in writing from time to time; Minimum Default Reward Rate means 10% unless amended by notice from RACQ Network Provider means the payments network permitting acceptance and identification of the Cards at the Point of Sale, as notified to the Merchant from time to time; Nominated Representative means an authorised person appointed by the Merchant to communicate with RACQ; Point of Sale means the payment equipment at each of the Merchant’s locations, whether physical or virtual, provided in Part A; Program means the Program defined in this Agreement and in Part B; Program Commencement Date means the first day of operation of the Program; Qualifying Transaction means any in-store, internet, IVR or other transaction between a Cardholder and the Merchant for the sale of goods or services inclusive of all applicable taxes; RACQ means The Royal Automobile Club of Queensland Limited or its agent; Reward means the amount of a Qualifying Transaction inclusive of GST to be debited from the Merchant or the Merchant Bank Account in accordance with the Program and clause 8, calculated by adding the Reward Rate and the Program Fee; Reward Rate means the % prescribed in Part B and varied from time to time in accordance with clause 8; System means the software, hardware and communications used by RACQ or its authorised contractor to deliver the Program; Templates means the templates that the Merchant can access from the Website and utilise to create Content for Promotions; User Guide means the document supplied to the Merchant by RACQ that provides instructions on how to participate in the Program; Website means the sites on the World Wide Web operated by RACQ in connection with the Program Written Notice means a letter delivered to the Address for Notices.
2. Term: The Term of this Agreement commences on the Program Commencement Date and continues for twelve continuous months (Term). At the end of the initial Term, the Agreement and the Term will be automatically renewed for further Terms of 12 months. The Merchant may terminate this Agreement by giving 90 days Written Notice to RACQ of its intention to terminate the Agreement however the Merchant may terminate for convenience during the cooling-off period in which case RACQ will refund the Annual Subscription Fee if already paid by the Merchant. RACQ may terminate this Agreement by giving 90 days notice of its intention to terminate the Agreement. RACQ may also immediately terminate this Agreement by notice if RACQ considers the Merchant has brought the Program into disrepute.
3. Obligations of RACQ:
(a) operate all Systems;
(b) provide the Merchant with relevant Qualifying Transaction reports;
(c) create for the Merchant a Directory which will be displayed on the Website on Program Commencement Date or within 30 days of acceptance, whichever is the latter;
(d) manage the Program subject to the terms of this Agreement;
(e) provide to the Merchant the User Guide upon acceptance;
(f) provide the Merchant support via email@example.com
(g) provide the Merchant’s Nominated Representative with initial training in the Program and the necessary know-how to participate in the Program; and provide ongoing support to the Merchant by providing reasonable assistance when requested, regular communications concerning matters of relevance to the Program.
(h) provide the Merchant with help desk / support via firstname.lastname@example.org; throughout the Term in accordance with this agreement
The Merchant acknowledges that an authorised contractor of RACQ will facilitate all financial dealings between the Merchant, the Cardholder and any Bank or Issuer and the Merchant gives the necessary authority to an authorised contractor of RACQ to operate the Merchant’s Bank Account but only for the purpose of implementing the Program.
4. Ownership and Maintenance of the Technology: During the Term and any extension, the Program will at all times remain the property of RACQ.
5. System Availability: The Merchant acknowledges that the Program may not operate with full functionality at all times. In relation to any loss suffered by the Merchant or any other person as a result of the performance or non-performance of the Programs or any repairs or remedial work required to the System, the liability of RACQ is limited to clause 26 and is not otherwise liable for System downtime.
6. Intellectual Property:
(a) the Merchant agrees that there is no assignment of Intellectual Property rights in the Systems or knowhow which are made available under this Agreement, and arrangements, agreements and relationships between the various participants in the Program.
(b) the Merchant will not during participation in the Program or after:
(i) reproduce or cause any third party to reproduce any part of the items referred to in clause 6(a) above;
(ii) use the Program in any manner which may threaten the operation or integrity of the Program or undermine another party’s Intellectual Property.
7. Obligations of Merchant: The Merchant agrees to participate in the Program by:
(a) authorising the payment of Rewards by direct debit as specified in clause 10;
(b) accepting Qualifying Transactions from Cardholders;
(c) never processing a Qualifying Transaction unless there is ‘valid proof of order and/or delivery of goods’ existing with the Cardholder to whom those goods were to be supplied otherwise such processing will be fraudulent and deemed to be an illegal transaction;
(d) immediately notifying RACQ if the Merchant reasonably suspects that a Cardholder or any other person is fraudulently using the Program;
(e) allow RACQ or its authorised contractor to conduct a test transaction at any Point Of Sale;
(f) providing information relating to all Points of Sale; and
(g) immediately notifying RACQ where the Merchant changes the Information in Part A or any Point of Sale, and the Merchant will be liable for any back payment, loss, cost, expense or consequence suffered by RACQ, Cardholder, Issuer or Network Provider resulting from a failure to notify RACQ of such change in accordance with this clause;
(h) actively promoting the Program to its customers by prominently displaying all Materials at the point of sale and entry of the premises in accordance with the User Guide;
(i) delivering the Program in accordance with the User Guide;
(j) not bringing the Program into disrepute.
(a) RACQ will prescribe a Minimum Default Reward Rate
(b) a Merchant may elect to nominate an alternative higher Reward Rate in Part B other than the Minimum Default Reward Rate, which will be subject to acceptance by RACQ.
(c) the Merchant must offer the Reward Rate to Cardholders at all times and acknowledges that the Reward will be direct debited according to such Reward Rate for the duration of the Term.
(d) the Merchant may at any time elect to vary the Reward Rate above the Minimum Default Reward Rate by using the templates to be sent to RACQ specifying the applicable percentage variation proposed to apply for the remainder of the Term or for such other specified period.
(e) any request by a Merchant to vary the Reward Rate is subject to written approval of RACQ.
(f) where the Merchant elects to vary the Reward Rate, the varied Reward Rate will apply within 30 days receipt of such template by RACQ, or if requested from such later date and for the period specified.
(g) subject to clause 8(b), at no time may the Reward Rate be varied to a percentage below the Minimum Default Reward Rate set by RACQ.
(h) the Merchant acknowledges that the Reward will be apportioned between the Reward Rate payable to the Cardholder and the Program Fee payable to RACQ. The Reward is payable in accordance with Part B or other agreement between the Cardholder and RACQ, or as varied by notice to the Merchant from time to time,
9. Pay Rewards and Fees:
(a) the Merchant will pay the Reward weekly or bi-monthly in arrears or as advised by RACQ, in accordance with clause 8.
(b) Any additional bank fees due to dishonour, plus an additional management fee of 5% will be charged automatically to the Merchant Bank Account. The Merchant agrees that interest may be charged for late payment at the rate of 2% per month at the discretion of RACQ.
(c) throughout the Term, the Merchant authorises RACQ to deduct the Reward at any time in arrears for all previous Qualifying Transactions where the Reward has not yet been collected.
(d) any charges in accordance with these Merchant terms and conditions will be payable in accordance with clause 9 (d) by the Merchant monthly in arrears.
10. Direct Debit: The Merchant acknowledges that all payments referred to in this Agreement will be collected by RACQ or its authorised contractor in accordance with the Direct Debit Agreement in Part C.
11. Creation of Debt: The Merchant acknowledges that immediately upon conducting a Qualifying Transaction, the Reward becomes an irrevocable debt immediately owing to RACQ.
12. Bank Authorities: The Merchant will provide RACQ and its authorised contractor with all bank authorities as they may reasonably require for the operation of the Program.
13. Advertising/Marketing: RACQ will advertise and market the Program by:
(a) supplying the Merchant with the Materials;
(b) providing the Website for access by Cardholders; and
(c) any other advertising media provided by RACQ, Issuer or Network Provider advised to the Merchant from time to time.
14. Content Retention: The Merchant acknowledges that RACQ and its authorized contractor may retain any Content provided to it and that this Content may be used:
(a) to demonstrate the Program to prospective Merchants;
(b) to archive or for the storage of ‘back-ups’ to be used for replacement purposes; or
(c) as otherwise entitled by law.
15. Responsibility for Content and Database List: The Merchant acknowledges that:
(a) RACQ has no obligation to moderate, monitor, screen, review or control the Content or Database Information;
(b) the Merchant will at all times be responsible and remain liable for the Content and indemnifies RACQ for any loss, cost, expense, third party claim or consequence suffered by RACQ arising from the transmission of Content under this Agreement;
(c) RACQ reserves the unfettered right to refuse to transmit or display or cancel the transmission or display of any Content that in the opinion of RACQ may breach any provision of this Agreement or infringe the rights of any other person.
16. Prohibited Content: The Merchant will not submit or request RACQ to display or transmit any Content that:
(a) breaches, or in the opinion of RACQ, is likely to breach any law, legislation, regulation, ordinance, order, code, industry guideline or standard, or that infringes any persons rights (including Intellectual Property rights), including any Content that would require RACQ or any other person to remedy any loss or damage occasioned by such Content;
(b) defames, harasses, unreasonably or unlawfully offends or harms any person, is indecent, obscene, offensive, enrages public sentiment or gives negative publicity to any other product or program of a third party;
(c) in relation to a product or program is misleading or deceptive, constitutes a false representation or is not true or accurate; or
(d) knowingly promotes, advertises or markets any product or a program which directly competes with any product or program of RACQ.
17. Permission: The Merchant warrants to RACQ that it has all necessary consents, licenses and permissions to submit the Content for display and transmission and to send the Content to Cardholders on the Database List.
18. No Liability for non-display of Content: To the extent permitted by law, RACQ will not be liable to the Merchant for:
(a) failure to transmit or display all or any part of the Content;
(b) loss or damage to any Content submitted by the Merchant to RACQ;
(c) any error, alteration or omission in such Content whether or not caused by the negligence or mistake of RACQ, its officers, employees or agents or otherwise; or
(d) the accuracy of the information contained in any Content.
19. Reporting: RACQ will make available to the Merchant (via username and password via the System) the reporting on Qualifying Transactions made by Cardholders (including date, Reward and Reward Rate).
21. General Database Information: Subject to the rights of Cardholders under applicable privacy laws and the Network Provider, the Merchant agrees that all property and rights in the Database Information of the Program belongs to RACQ.
22. Confidentiality: The Merchant will both during and after the Term of this Agreement keep confidential and not use (other than for the purpose of complying with this Agreement on a need to know basis) and will take reasonable steps to ensure that its employees also keep confidential and not use any information regarding the Program or RACQ, including, without limitation, RACQ’s business affairs, Systems, marketing strategies and Cardholder information (Confidential Information). Subject to prior denial from the Merchant, RACQ may use any information provided by the Merchant for its own purposes or for promotional, benchmarking, sales or other purposes.
23. Non-Compete: The Merchant acknowledges and agrees that RACQ is free to encourage and allow the participation in the Program of any other person interested or engaged in any business. The Merchant will not provide the Reward to any other rewards program substantially similar to the Program, involving a Network Provider, Cards and the Cardholders.
24. Warranties: The Merchant warrants to RACQ that:
(a) it has the necessary corporate power and has obtained all necessary consents to enable it to enter into and carry out its obligations under this Agreement;
(b) the entry into or performance of this Agreement does not constitute a breach of its constitution or any of its contractual documents; and
(c) this Agreement creates a legal, valid and binding obligation on the Merchant enforceable in accordance with this Agreement.
25. General Indemnity: The Merchant indemnifies RACQ against any liability or losses (both direct and consequential) sustained by RACQ as a result of the Merchant breaching this Agreement or any relevant laws applicable to the Merchant or the Program. This indemnity is a continuing obligation and survives termination of this or any subsequent Agreement.
26. Liability Limitation: To the extent permitted by law, the liability of RACQ to the Merchant under this Agreement will be limited to the costs of re-supplying the Program. In no case will RACQ be liable for any consequential loss or damage suffered by the Merchant arising from the Merchant’s participation in the Program or otherwise from this Agreement even if RACQ or an authorised representative is aware or has been advised of the possibility of consequential loss or damage flowing from, but not limited to, any errors, faults, omissions or other inaccuracies of the Program. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
27. Termination (any party): This Agreement may be terminated immediately by a party if any other party breaches this Agreement and the breach is not rectified within 30 days of a notice from the first party to remedy the same.
28. Termination by RACQ: RACQ may terminate this Agreement immediately if there is a material change in the nature of the business conducted by the Merchant or the beneficial ownership of the Merchant, or in the reasonable opinion of RACQ, the Merchant ceases to actively participate in the Program or whether by act or omission fails to support the Program, or all Program terms and conditions terminate.
29. Termination Consequences: Rewards provided for a Qualifying Transaction by the Merchant under this Agreement are not refundable on termination. On termination the Merchant must pay all other amounts then outstanding, in addition, on termination the Merchant must remove and destroy all Materials including all advertising and promotional materials provided by RACQ to the Merchant for display at the point of sale and front of premises.
30. Suspension: The Merchant agrees that RACQ may, at any time, in its absolute discretion vary, suspend or terminate the conduct of the Program or any part of the Program for any reason whatsoever. Any liability that arises out of, or in connection with such variation, suspension or termination is expressly excluded.
31. Logos and Trade Marks
(a) the Merchant licenses RACQ to use its name, trademarks and logos on the Website including the right to sublicense the same to the Issuer and Network Provider.
(b) RACQ licences the Merchant to use the Materials throughout the term.
(c) the Merchant must not claim any right in or to the logos of RACQ, Network Providers, Issuers or business providers of RACQ in any manner.
(d) the Merchant must not:
(i) attempt to register or reserve for registration any trade marks similar to trade marks registered, reserved for registration or owned by RACQ or a Network Provider or Issuer, including those contained in any materials provided to the Merchant in accordance with the Program terms and conditions or which the Merchant is otherwise permitted to use (“Trade Marks”);
(ii) dispute RACQ or a Network Provider’s ownership of their Trade Marks;
(iii) intentionally or deliberately reduce the value of the goodwill attached to the Trade Marks;
(iv) incorporate part of the Trade Marks into a Merchant trade mark;
(v) use or display Trade Marks in relation to goods or services which are not associated with RACQ, Network Provider or Issuer;
(vi) in relation to the Program, use a Trade Mark in any way not authorised by agreement or in authorised written notices from RACQ; or
(vii) assist or permit another person to do any of (i) – (vi).
32. Assignment/Subcontracting: The Merchant may not assign or purport to assign any of its rights and obligations under this Agreement, except in the event of a sale of business, without the prior written consent of RACQ. RACQ may subcontract its obligations or assign its rights under this Agreement without the Merchant’s consent.
33. Governing Law and Jurisdiction: This Agreement will be governed by and be construed in accordance with the laws of Queensland, Australia, and the parties agree to submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
34. Waiver: Failure or omission of a party at any time to enforce or require the strict observance of or compliance with any provision of this Agreement or any exercise or discretion under this Agreement will not operate as a waiver of such rights of a party, whether express or implied, arising under this Agreement.
35. Relationship: Nothing in this Agreement or any other express or implied term of any document, nor conduct or trade usage will constitute any relationship of trust, partnership, joint venture or any relationship other than that of debtor and creditor between RACQ, a Merchant, a Cardholder or any other person.
(a) the Merchant acknowledges that:
(i) the Fee constitutes a fee for service payable by the Merchant to RACQ or its authorised contractor and constitutes a taxable supply for the purposes of GST.
(ii) payment of the Reward (minus the Fee) to the Cardholder in accordance with this Agreement is a deferred discount payable to the Cardholder and does not constitute a taxable supply for the purposes of GST.
(b) if (and to the extent that) any supply or any of the supplies made under this Agreement constitutes a taxable supply for the purposes of GST, the consideration otherwise payable or to be provided under this Agreement for that supply will be exclusive of GST.
(c) for the purposes of this Agreement “GST”, “GST law” and other terms defined in GST law have the meanings given to those terms in A New Tax System (Goods and Programs Tax) Act 1999.
37. Administration: The Merchant authorises RACQ to complete any blank spaces and to rectify any manifest errors in data input fields within this Agreement provided that the Merchant is notified and may verify such details.
38. Facsimile or Electronic Versions: The Parties agree that a validly executed facsimile or electronic copy of this Agreement or part thereof is accepted as a valid original.
39. No Set-off: The Merchant waives all rights of set-off against RACQ, and will pay all amounts due to RACQ under this Agreement in full, without set-off, counterclaim or other deduction.
40. Party Acting As Trustee: If a party enters into this Agreement as trustee of a Trust, that party and its successors as trustee of the Trust will be liable under this Agreement in its own right and as trustee of the Trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this Agreement:
(a) all the powers and discretions conferred by the deed establishing the Trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the Trust is a valid and subsisting trust;
(b) the party is the sole trustee of the Trust and has full and unfettered power under the terms of the deed establishing the Trust to enter into and be bound by this Agreement on behalf of the Trust and that this Agreement is being executed and entered into as part of the due and proper administration of the Trust and for the benefit of the beneficiaries of the Trust; and
(c) no restriction on the party’s right of indemnity out of or lien over the Trust's assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the Trust's assets.
41. Variation: This Agreement is subject to change by RACQ from time to time by notice to the Merchant or by display on the Website; the Merchant’s continued use of the Program acknowledges the binding effect of such change.
42. Appointments: For the purposes of the Program, RACQ may from time to time appoint other persons or entities to manage or carry out certain parts of the Program on its behalf and may remove or replace any persons or entities so appointed.
43. Nominated Representative: The Merchant agrees to appoint a Nominated Representative with full and unfettered power to negotiate, agree, transact on behalf of and bind the Merchant. The Merchant will only change the Nominated Representative on prior Written Notice to RACQ.
44. Execution and Acknowledgement:
(a) the Merchant acknowledges that by signing the execution panel in Part A, it agrees to be bound by the terms and conditions of this Agreement, and subject to clause 44(b), enters into this Agreement with RACQ for the Program, and the Merchant:
(i) solemnly and sincerely declares that Part A is signed with the signatory’s own name and handwriting;
(ii) declares that the signatory is duly authorised to sign this Agreement for and on behalf of the Merchant;
(iii) agrees and acknowledges that the written details in Part A are true and correct in every particular and are given in support of an application by the Merchant for participation in the Program;
(b) execution by the Merchant on the execution panel in Part A constitutes an offer by the Merchant, which may be accepted or rejected by RACQ in its sole and independent discretion. This Agreement only becomes binding on RACQ upon signature by RACQ of the execution panel in Part A and Program Commencement. This will then be communicated to the Merchant.
This Agreement may be executed in any number of counterparts and all counterparts, when executed and taken together, constitute this Agreement
46. Address for Notices
Any notice required under this Agreement can be delivered to:
RACQ Dining Rewards
C/o 36/46 Cavill Avenue
Surfers Paradise QLD 4217
Or Any other address as notified by RACQ from time to time.
47. Severability: If any provision of this Contract should be held to be invalid in any way or unenforceable it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Contract shall be construed so as to most nearly give effect to the intent of the parties as it was originally executed.