Merchant Terms and Conditions

    Introductory

  1. Purpose of this Agreement: We are a not for profit company established to promote Docklands businesses through a program which involves issuing membership cards to eligible persons and then promoting offers made by Docklands businesses to these eligible persons (the Program). By entering into this Agreement, you will become a participant in the Program.
  2. Application Form: By completing and providing your application to us, you are offering to join the Program on the terms set out in this document. We reserve the right to refuse your offer in our absolute discretion (including, e.g. the fact that your business may not have a sufficient connection with the Docklands in our view).
  3. Defined terms: The meanings of italicised words in this document and the rules for interpreting this Agreement are set out in Clauses 40 and 41.

    4. Program

  4. In consideration for the payment of the program fee, we agree to do the following during the term –
    1. promote the Program to eligible persons;
    2. issue membership cards to those eligible persons who register with us;
    3. build and maintain a database of card holders;
    4. maintain the web site;
    5. advertise your business on the web site; and
    6. communicate with card holders through a monthly email newsletter or other means as we determine from time to time.

    5. Your participation in the Program

  5. Special Offers: You must continuously make at least one special offer during the term. In order to maximise the benefits of the Program, we recommend that you provide compelling offers that are continually refreshed.
  6. Communication: You must:
    1. display your special offer prominently at all times at the premises using the template provided by us.
    2. upload your special offers directly to the web site.
  7. Honouring special offers: You must enable each person who presents a valid membership card to redeem your current special offer.
  8. Additional promotions: We may agree from time to time to run additional promotions on your behalf to card holders. Such promotions may include advertising your business in the monthly email newsletter.

    9. Fees

  9. Program Fee: You must pay the program fee to us upon the signing of this Agreement.
  10. Additional promotion fees:If we run any additional promotions on your behalf under Clause 8, then you must pay the additional fees for those promotions as agreed from time to time.

    11. Advertising and promotions

  11. Accuracy of information: You are responsible for promptly checking the accuracy of all proofs (if provided) and advertising and notifying us of any errors.
  12. Timeliness: You are responsible for the timely provision of artwork and advertising copy. We are under no obligation to refund fees for advertisements which do not run on time due to your failure to comply with stated deadlines.

    13. Premises

  13. The rights and obligations in this Agreement relate to the premises, and do not extend to any other place of business that you own or operate.
    Intellectual property
  14. Trade marks:
    1. We grant a licence to you to display the trade marks strictly for the purposes of this Agreement.
    2. You must immediately cease to use any of the trade marks upon the termination of this Agreement.
  15. Ownership and access to information: For the avoidance of doubt, you do not own, and you have no right to access, any of the information contained in the databases developed or maintained by us or on our behalf.

    16. Market intelligence

  16. Despite Clause 15, we may choose to provide you with general market data regarding the Program as well as non-personal demographic data about the card holders. We may also choose to provide general (non-financial) information generated from card holder surveys which may include information about favourite offerings etc.

    17. Additional obligations

  17. No misleading conduct etc: You must not engage in any conduct in relation to the Program that –
    1. breaches the Australian Consumer Law;
    2. infringes any other person’s intellectual property rights;
    3. constitutes defamation or contempt of any court, tribunal or royal commission; or
    4. breaches any privacy legislation or anti-discrimination legislation.
  18. Representations about your role: You must not represent that you are –
    1. the owner or manager of the Program; or
    2. the agent of the owner or manager of the Program.
  19. Reputation of the Program; You must not do, or fail to do, anything that brings (or would be likely to bring) the Program into disrepute.
  20. Infringement of rights: You must notify us of any infringement or suspected infringement of our trade marks.
  21. Security: You must keep your account details, including your web site login and password details secure.

    22. Warranties etc

  22. Implied warranties: The law implies certain warranties into this Agreement, including a warranty that services are of acceptable quality. These implied warranties form part of this Agreement, and nothing here is intended to exclude, restrict or modify those terms.
  23. Other warranties: We make no warranties to you other than those referred to in Clause 22. In particular, we make no warranty about:
    1. the level of custom you will receive through your participation in the Program;
    2. the profitability of the Program for you.
  24. You acknowledge that the effectiveness of the Program depends at least in part upon the attractiveness of your own Special Offers, and the level of advertising that you run.

    25. Liability

  25. Limitation of Liability: Our liability to you in relation to breaches of any warranties that form part of this Agreement is limited to (at our option):
    1. the re-supply of services supplied by us; or
    2. the payment of the cost of having the services re-supplied.
  26. Exclusion of Liability: Subject to Clause 25, and our obligation under any law not to exclude or restrict our liability, we exclude all liability to you -
    1. of whatever nature (whether any indirect, incidental, special or consequential loss or damage or otherwise, including loss of business or other profits); and
    2. however arising (whether through the law of negligence or tort generally, breach of contract, breach of statutory duty or otherwise).
  27. Indemnity: You must indemnify us for any loss, damage cost or expense arising in any way from a breach of this Agreement, including through any act or omission of any of your agents, employees or officers.

    28. Term

  28. Term: This Agreement commences from the date that we notify you of our acceptance of your offer, and continues for 12 months unless terminated earlier, or renewed in accordance with Clause 29 below.
  29. Renewal: This Agreement can be renewed for one or more additional 12 month periods if –
    1. the Parties agree to do so in writing; and
    2. you pay the program fee for the renewal period.

    30. Termination by you

  30. You have the right to terminate this Agreement by providing 30 days’ written notice to us, providing that you –
    1. pay all monies due to us under this Agreement; and
    2. honour all claims for special offers made before the termination of this Agreement becomes effective.
  31. If you exercise your right to terminate this Agreement under Clause 30, you are not entitled to a refund of any part of the program fee.

    32. Termination by us

  32. Termination for breach by you: If you breach any of its terms, then this Agreement terminates five business days after we issue a breach notice to you, unless (in the case of a breach that is capable of remedy) you remedy the breach before the termination of the Agreement.
  33. Termination due to an event of default: This Agreement terminates automatically if you suffer an event of default.

    34. General

  34. Assignment etc:
    1. You have no right to assign your rights or obligations under this Agreement without our prior written consent.
    2. We have the right to –
      1. assign our rights and obligations by giving 30 days’ written notice to you;

      2. sub-contract or delegate our obligations.
  35. Disputes: Any dispute arising out of or in connection with this Agreement must be submitted to mediation in accordance with, and subject to, the Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules;
  36. Joint and several liability: If a party consists of more than one person, that party is bound both jointly and severally.
  37. o waiver: No Party waives any rights or remedies in relation to future breaches by waiving or failing to enforce its rights in relation to one or more past breaches.
  38. Notices: Notices under this Agreement must be in writing. Any notice sent by email to the correct address is deemed to have been received at the time of sending unless the recipient’s email server notifies the sender that the email was not delivered.
  39. Governing law: This Agreement is governed by the laws in force in the state of Victoria, and the Parties submit to the jurisdiction of the courts based in Melbourne.

    40. Interpretation

  40. When interpreting this Agreement, unless the context clearly requires otherwise:
    1. a reference to “We”, “us”, and “our” is a reference to Destination Docklands Ltd;
    2. a reference to “you” and “your” is a reference to the Merchant as listed in the application form;
    3. a reference to “written notice” or “writing” includes email and fax;
    4. a reference to a “Party” means either you or us;
    5. a reference to “the Parties” means both you and us;
    6. the singular includes the plural and vice versa; and
    7. all fees exclude GST and are in Australian dollars.

    41. Dictionary

  41. In this Agreement, italicised words have the following meanings, unless the context requires otherwise:
    1. Card holders means those eligible persons who provide their registration details to us and who are in possession of a valid membership card issued by us;
    2. Eligible persons means residents who live in, and persons who work in, the Docklands area;
    3. Event of default means any of the following events –
      1. the committing of an act of bankruptcy by an individual;
      2. the entering into of any arrangement with creditors;
      3. the appointment of a receiver or manager over any of a corporation’s property;
      4. the appointment of an administrator or a liquidator;
      5. a corporation becoming insolvent within the meaning of Part 1.2 of the Corporations Act 2001;
    4. Program means the program described in Clause 1;
    5. Program fee means the fee specified the application form or any renewal invoice;
    6. Premises means your place of business as specified in your application form;
    7. Special offer means an offer for the sale of goods or the provision of services (or both) that is made to card holders which is not available to the general public and which involves –
      1. a reasonable discount on the normal retail price;
      2. the provision of additional goods or services (or both goods and services); or
      3. another incentive as approved by us in writing;
    8. Standard Terms and Conditions means this document;
      1. Term means the period of this Agreement as defined in Clause 28;
    9. Trade marks means any mark owned by us that includes the words “Docklander” and “Deals” including Australian Trade Mark No. 1403755; and
    10. Web site means the site at docklanderdeals.com