1 ABOUT THESE TERMS
- 1.1 Nature of Terms: These Terms set out:
- (a) the basis on which each Member is entitled to participate in the Exchange; and
- (b) the obligations that each Member has to Barter Rewards (NZ) 2007 Limited (hereinafter referred to as Barter Rewards) and to other Members or anyone else that may accept Barter Rewards Trade dollars in the event of any transaction.
- 1.2 Alteration of Terms: Barter Rewards may alter any of these terms (including the charges payable) by giving notice to each Member. Any alteration will be effective from the date specified by Barter Rewards. However the effective date must not be earlier than 30 days from the date on which notice of the alteration is given.
- 1.3 No partnership: Nothing in these Terms creates any partnership, agency or joint venture relationship between Barter Rewards and any Member or between any two or more Members.
- 1.4 Definitions: Some words which are used often in these Terms are defined in clause 24.
2 Barter Rewards'S ROLE
- 2.1 Barter Rewards has established the Exchange to allow Members to trade amongst each other on a non-cash basis. Except as stated in clause 2.3, Barter Rewards's role is that of a facilitator. The parties to any Transaction made through the Exchange are entirely responsible for that sale or supply and Barter Rewards has no liability to either party in relation to that Transaction.
- 2.2 Any disputes in relation to a Transaction are to be resolved between the parties to that Transaction. Barter Rewards has no responsibility in relation to any such dispute but it will provide for appropriate adjustments to be made to Members' Barter Rewards Dollar accounts where a request is made in accordance with the Operating Procedures.
- 2.3 Barter Rewards is a Member and can enter into Transactions as a principal. Where Barter Rewards sells goods through the Exchange it does so on the basis that it makes no warranty regarding those goods, except that it owns them. Barter Rewards excludes any warranties implied by law in respect of any such sale.
3 Barter Rewards DOLLAR ACCOUNTS
- 3.1 Barter Rewards will maintain an account for each Member. The form of currency used in the Exchange is the Barter Rewards Dollar. Barter Rewards Dollars are not legal tender and have no value other than to enable Members to make purchases from other Members on a non-cash basis in accordance with these Terms. In no circumstances is Barter Rewards (or any other person) obliged to redeem Barter Rewards Dollars for cash. For valuation purposes $1 NZ dollar is equivalent to $1 Barter Rewards Trade Dollar
- 3.2 Barter Rewards will credit to a Member's Barter Rewards Dollar account: (a) the value of each sale or supply made by that Member through the Exchange in accordance with these Terms;
- (b) any other amounts as may be provided for in these Terms or agreed between the Member and Barter Rewards.
- 3.3 Barter Rewards will debit from a Member's Barter Rewards Dollar account: (a) the cost of each purchase made by that Member through the Exchange; (b) the Barter Rewards Dollar component of the fees payable by the Member in accordance with clause 7; (c) any other amounts as may be provided for in these Terms or agreed between the Member and Barter Rewards.
4 AUTHORISATION OF TRANSACTIONS
- 4.1 Barter Rewards will credit a selling or supplying Member's Barter Rewards Dollar Account only where the Transaction is authorised by Barter Rewards. Any request by a Member for authorisation of a Transaction must be made in accordance with the Operating Procedures.
- 4.2 Barter Rewards will not authorise a Transaction if: (a) at the time of the Transaction either party's right to engage in Transactions was suspended, in accordance with clause 14; (b) the Transaction would result in the purchasing Member's credit limit being exceeded.
- 4.3 While Barter Rewards will use all reasonable endeavours to ensure that its approval system is functioning properly at all times, it is unable to guarantee that that will occur. Barter Rewards excludes all liability to Members arising out of: (a) any Transaction being improperly declined or improperly approved by Barter Rewards;
- (b) any failure of Barter Rewards to provide a prompt response to any request for authorisation of a Transaction.
5 CREDIT LIMITS
- 5.1 Each Member agrees to Barter Rewards allowing Members a credit limit on their Barter Rewards Dollar Accounts of such amount as Barter Rewards in its discretion considers appropriate. Barter Rewards may at any time increase or reduce a Member's credit limit, although it will not increase a Member's credit limit beyond the level requested by the Member. Barter Rewards may at its discretion require a Member to provide a guarantee, cash deposit or other security acceptable to Barter Rewards as security for the performance by the Member of its obligations under these Terms.
6 COMMITMENTS BY Barter Rewards
- 6.1 Barter Rewards agrees to use its best endeavours to:
- (a) encourage a wide range of businesses to become Members;
- (b) operate the Exchange in accordance with good industry practice;
- (c) respond to queries from Members in a timely manner;
- (d) authorise (or decline, where appropriate) Transactions between Members on a real-time basis;
- (e) maintain an accurate and up to date database of Members which can be accessed by Members during normal business hours.
- 6.2 Barter Rewards agrees to act in good faith towards each Member.
- 7.1 Charges: In consideration of Barter Rewards performing services as specified in these Terms, each Member must pay Barter Rewards:
- (a) transaction charges on the Transactions (sale or purchase) made by that Member through the Exchange (as a set percentage of the total transaction value, being 8% for the buyer and determined by the members joining date and fees paid as per Barter Rewards's joining packages);
- (b) joining charges and charges in respect of any increased credit limit requested by the Member at the rates applicable at the time of request.
- 7.2 Due date: Barter Rewards will send each member a monthly statement and GST invoice showing the amounts payable by the Member in respect of transactions occurring in the previous month. Any cash amount owing to Barter Rewards by the Member must be paid within 14 days of receipt of that statement. Any Barter Rewards Dollars which are owing will be deducted from the Member's Barter Rewards Dollar account by Barter Rewards 7 days after the date of the statement.
- 7.3 Direct debit: Each Member must provide Barter Rewards with a direct debit authority or credit card for the cash payments referred to in this clause if required by Barter Rewards.
- 7.4 Interest: If any sum owing to Barter Rewards by a Member is not paid on the due date the Member must pay Barter Rewards interest at the Default Rate on the outstanding sum from the due date for payment, until the date payment is made in full.
8 OBLIGATIONS OF MEMBERS
- 8.1 Each Member agrees:
- (a) to pay the charges due to Barter Rewards in accordance with clause 7, by the due date for payment;
- (b) to act in good faith towards Barter Rewards and each other Member;
- (c) not do anything which is likely to diminish the good name or goodwill of Barter Rewards or the Exchange;
- (d) to comply with all relevant laws when engaging in Transactions;
- (e) to comply with all relevant taxation obligations (and each Member acknowledges that Barter Rewards has no responsibility to pay any tax on the Member's behalf). For valuation purposes each $1 NZ dollar is equivalent to $1 Barter Rewards Trade Dollar
- (f) not to use the name or any trade mark of Barter Rewards, except in a manner approved by Barter Rewards.
- 9.1 All liability of any kind of Barter Rewards to any Member with respect to the services provided by it (whether arising under the Consumer Guarantees Act, or any other enactment, or otherwise) is excluded to the fullest extent permitted by law.
10 ENTIRE AGREEMENT
- 10.1 These Terms contain all of the terms relating to each Member's participation in the Exchange.
- 11.1 No exercise or failure to exercise or delay in exercising any right or remedy by Barter Rewards will constitute a waiver by Barter Rewards of that or any other right or remedy available to it.
12 CONFIDENTIALITY AND PUBLICITY
- 12.1 Confidentiality: Each Member undertakes to keep these Terms and any information that Member learns about Barter Rewards or its business or the business of any other Member confidential, except that this undertaking will not apply to disclosures made:
- (a) as required by law or the New Zealand Stock Exchange Listing Rules; or
- (b) in good faith and in proper furtherance of arrangements connected with the Barter Rewards Exchange; or
- (c) to the Member's professional advisers; or
- (d) of information already in the public domain.
- 12.2 Membership Directory: Each Member acknowledges the confidentiality of (and undertakes not to disclose the contents of) Barter Rewards's membership directory.
- 12.3 Publicity: Each Member acknowledges that its contact details will be included in the online directory published by Barter Rewards.
- 14.1 Barter Rewards may suspend a Member's ability to engage in Transactions if:
- (a) the Member has failed to pay any charges or other sum due under these Terms within 10 days of the due date; or
- (b) Barter Rewards reasonably believes that the Member has breached any of its obligations under these Terms.
- 14.2 Any suspension under clause 14.1(a) will be lifted when all arrears are paid. Any suspension under clause 14.1(b) will be lifted when Barter Rewards is reasonably satisfied that no breach has occurred, or that any breach which did occur has been rectified.
15 TERMINATION OF MEMBERSHIP
- 15.1 Termination on notice: A Member may cease to be a Member by giving 5 working days written notice to Barter Rewards. Barter Rewards may terminate a Member's membership by giving 5 working days written notice to the Member.
- 15.2 Termination by Barter Rewards on default: Barter Rewards may terminate a Member's membership with immediate effect by giving written notice to the Member:
- (a) if the Member committing any material breach of these Terms; or
- (b) if the Member becomes insolvent, or a receiver or manager of any asset of the Member is appointed, or an order made or resolution passed for the liquidation of the Member.
16 CONSEQUENCES OF TERMINATION
- 16.1 Upon termination of a Member's membership for any reason the Member must immediately pay to Barter Rewards:
- (a) the cash equivalent of any debit balance in the Member's Barter Rewards Dollar account; and
- (b) all charges which have accrued in accordance with clause 7.
- 16.2 If Barter Rewards reasonably believes that the Member is unable to pay their cash fees and/or that the Member may be insolvent Barter Rewards reserves the right to seize stock, goods, fittings and fixtures to the value of all fees PLUS the Barter Rewards Member's Barter Rewards Dollar account. Barter Rewards can seize these goods immediately upon termination of the members account. For the purpose of seizing goods these shall be:
- (a) Valued at wholesale price.
- (b) Barter Rewards shall return said goods only on the condition that the member meets their obligations as defined in 16.1 (a) and 16.1 (b)
- 16.3 Barter Rewards may add the reasonable cost of recovery of any debts that require the assistance of a 3rd party debt collection agency to collect, to the total amount payable to Barter Rewards.
17 TERMINATION OF THE EXCHANGE
- 17.1 If for any reason the Exchange ceases to operate each Member which has a debit balance in its Barter Rewards Dollar account must immediately pay to Barter Rewards the cash equivalent of that debit balance. Any payments made pursuant to this clause will be held in trust by Barter Rewards and will be distributed pro-rata among the Members with credit balances in their Barter Rewards Dollar accounts. $1 NZ dollar is equivalent to $1 Barter Rewards Trade Dollar
- 17.2 Cessation of the Exchange's operations does not release any Member from liability to make any payment due to Barter Rewards at the time the Exchange's operations cease.
18 RECEIPT OF CASH BY Barter Rewards
- 18.1 Where a Member pays cash to Barter Rewards in respect of any debit balance in that Member's Barter Rewards Dollar account Barter Rewards will debit an equivalent number of Barter Rewards Dollars from its own Barter Rewards Dollar account, so that the payment has a neutral effect on the Exchange.
- 19.1 Payments to be made under this Agreement are exclusive of GST (if any) and any GST payable must be paid by the person to whom the goods or services are provided.
- 20.1 No Member may assign its rights under these Terms. Barter Rewards may by notice to the Members assign its rights under these Terms.
21 PARTIAL INVALIDITY
- 21.1 If any provision of these Terms or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of these Terms and their application will not be affected and will remain enforceable to the greatest extent permitted by law.
22 THIRD PARTIES
- 22.1 Nothing in these Terms is intended to confer a benefit upon anyone other than Barter Rewards and the Members.
- 23.1 Service of notices: Any notice given pursuant to these Terms will be deemed to be validly given if personally delivered, posted, or forwarded by facsimile transmission to:
- (a) in the case of a notice to Barter Rewards, the address set out below or to such other address as Barter Rewards may advise:
- Barter Rewards (NZ) 2007 Limited
- PO Box 8781
- Symonds Street
- New Zealand
- Facsimile: 0800 269663
- (b) in the case of a notice to a Member, the address or facsimile number which is listed in Barter Rewards's records as the address or facsimile number of that Member.
- 23.2 Time of service: Any notice given pursuant to this Agreement will be deemed to be validly given:
- (a) in the case of delivery, when received;
- (b) in the case of facsimile transmission, when sent provided that the sender has a facsimile confirmation receipt recording successful transmission;
- (c) in the case of posting, on the second working day following the date of posting; provided that any notice personally delivered or sent by facsimile either after 5pm on a working day or on any day that is not a working day will be deemed to have been received on the next working day.
- 24.1 Definitions: In these Terms unless the context otherwise requires: "Default Rate" means the standard overdraft interest rate charged (or chargeable) to Barter Rewards by its principal banker, plus a margin of 8% per annum; "Exchange" means the bartering exchange known as Barter Rewards Trade Exchange, which was established by (and is operated by) Barter Rewards. "GST" means Goods and Services Tax arising pursuant to the Goods and Services Tax Act 1985 and "GST Act" means the Goods and Services Tax Act 1985; "Member" means a person who has applied to become a member of the exchange and whose application has been accepted by Barter Rewards; "Operating Procedures" means the procedures applicable from time to time relating to the operation of the Exchange, which are set out on the Barter Rewards website at www.barterrewards.co.nz; "Barter Rewards" means Barter Rewards (NZ) 2007 Limited at Auckland; "Terms" means these Terms and Conditions of Membership of the Barter Rewards Trade Exchange; "Transaction" means the supply of goods and or services from one Member to another made through the Exchange in accordance with these Terms; and "working day" means a day (other than Saturday or Sunday) on which registered banks are normally open for business in Auckland.
- 24.2 General construction: In interpreting these Terms the following rules must be applied unless the context otherwise requires:
- (a) Headings to clauses are for reference only and are not an aid in interpretation.
- (b) References to statutory provisions will be construed as references to those provisions as they may be amended or re-enacted or as their application is modified by other provisions from time to time.
- (c) References to clauses are to clauses of these Terms.
- (d) References to currency are to New Zealand currency.
- (e) Any date which is not a working day, upon or by which anything is due to be done by any party, will be deemed to be a reference to the next working day.
- (f) Words importing the plural include the singular and vice versa and words importing gender import all genders.
- (g) Any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done.