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ENZ Experiences Ltd. Agent Terms and Conditions

Terms and Conditions

  1. Definitions and interpretation
    1. Definitions

In this Agreement, unless the context clearly indicates otherwise:

Agreement means this Master Services Agreement;

Affiliate Booking has the meaning set out in Schedule 1;

Affiliate Link means the affiliate link to the Affiliate Website that is provided by ENZ Experiences to the Partner;

Affiliate Website means the affiliate website related to the Partner, through which Customers can make Affiliate Bookings;

Booking means a booking made by:

  • a Customer using the Affiliate Website; or
    • a Partner, on behalf of a Customer, using the Local Agent Booking Portal;

Business Day means a day that is not a Saturday, Sunday or public holiday in Wellington, New Zealand;

Commencement Date means the commencement date of this Agreement, as set out in Item 1 of the Details;

Commission has the meaning given in clause 8.1(a);

Commission Rate has the meaning set out in Item 2 of the Details;

Confidential Information means, the terms of this Agreement and any information in any form which:

  • relates to the design, specification or content of the Local Agent Booking Portal, the Affiliate Website or the Materials;
    • is, by its nature, confidential or non-public;
    • is marked or designated or confirmed by a party as confidential or proprietary at the time of its disclosure; or
    • a party knows or ought to know is confidential,

but excludes information that is:

  • in or enters the public domain through no fault of either party;
    • was made available to a party by a person (other than the other party) who, as far as that recipient party knows, has or then had the unrestricted legal right to do so; or
    • was developed by a party without that party relying on, referring to, or incorporating any of the other party’s Confidential Information;

Consumer Law means the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ);

Customer means a customer of the Partner;

Eligible Data Breach means a “privacy breach” or a “notifiable privacy breach” as defined in the Privacy Act 2020 (NZ) or, for any other jurisdiction, a similar material data breach under the applicable Privacy Laws;

Experiences means the experiences which are provided by Suppliers and advertised through either the Local Agent Booking Portal, the Affiliate Website or the Materials;

Force Majeure Event means any act of God, war, sabotage, riot, insurrection, civil commotion, national emergencies, strikes, lock-outs or other industrial disturbance, accidents, pandemic, epidemic or disease, uncontrollable transportation delays, communications or network failure, or the effect of any applicable laws, orders, rules or regulations, and any other matters beyond the reasonable control of the party claiming force majeure;

GST means any form of goods and services tax payable under the GST Law;

GST Law means the Goods and Services Tax Act 1985 (NZ);

Initial Term means the initial term of this Agreement, as set out in Item 5 of the Details;

Insolvency Event means includes the winding up, dissolution or cessation of business, the appointment of an administrator, liquidator, receiver or an official manager, an assignment for the benefit of creditors, scheme of arrangement with creditors, insolvency and bankruptcy of a party or any similar procedure;

Licence means the licence granted to the Partner pursuant to clause 4.1(a);

Local Agent Booking Portal means the local agent booking portal through which a Partner may make a Booking on behalf of a Customer for the Experiences;

Materials means all advertising materials made available by ENZ Experiences to the Partner in relation to the Experiences, including brochures, posters and the materials set out in Item 7 of the Details;

Month means a calendar month;

NZBN means a New Zealand Business Number registered under the NZBN Act, or the appropriate government issued registration number for tax purposes in the Territory;

NZBN Act means the New Zealand Business Number Act 2016 (NZ), or the appropriate legislation regarding registration for tax purposes in the Territory;

Personal Information has the same meaning as the given in the Privacy Laws;

Premises means each premises of the Partner in the Territory at which the Local Agent Booking Portal, the Affiliate Website or the Materials are displayed or promoted;

Privacy Laws means the Privacy Act 2020 (NZ) and for any other jurisdiction, any other applicable privacy laws including, for all jurisdiction, any determination or guideline issued under those laws in the country of use of the Local Agent Booking Portal, the Affiliate Website and the Materials;

Purpose means for the purposes of advertising Experiences to Customers (whether through the Affiliate Website, the Materials or otherwise) and processing Bookings through the Local Agent Booking Portal;

Recipient Created Tax Invoice (RCTI) means buyer-created taxable supply information provided by ENZ Experiences to the Partner;

Refund means a refund processed in accordance with clause 8.2;

Related Company has the meaning given in the Companies Act 1993 (NZ);

Supplier means a third party that provides an Experience to Customers;

Term means the period set out in clause 3.1; and

Territory means New Zealand.

  1. Interpretation

In this Agreement, unless the context clearly indicates otherwise:

  • a reference to this Agreement or another document means this Agreement or that other document and any document which varies, supplements, replaces, assigns or novates this Agreement or that other document;
    • a reference to legislation or a legislative provision includes any statutory modification or substitution of that legislation or legislative provision and any subordinate legislation issued under that legislation or legislative provision;
    • a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity;
    • the singular includes the plural and vice versa;
    • a reference to one sex or gender identity includes reference to any other sex or gender identity;
    • headings to clauses are included but do not affect the meaning of the clauses to which they relate;
    • a reference to a business day means a day on which banks are open for business in Wellington, New Zealand.
  • Master Services Agreement

This Agreement is a master services agreement, pursuant to which ENZ Experiences will grant a licence to the Local Agent Booking Portal, the Affiliate Website and the Materials.

Other than as permitted by law or provided for in this Agreement, the Partner must not:

  • copy, alter, modify, adapt or reproduce the Local Agent Booking Portal, the Affiliate Website or the Materials;
    • merge any part of the Local Agent Booking Portal or the Affiliate Website with any other software;
    • reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Local Agent Booking Portal or the Affiliate Website;
    • itself, nor may it permit others to sell, rent, lease, sub-license, lend, assign, time-share, distribute or otherwise make the Local Agent Booking Portal, the Affiliate Website or the Materials available to any third party;
    • redistribute the Local Agent Booking Portal, the Affiliate Website or the Materials to unauthorised third parties, in whole or in part, including but not limited to, extensions or components, without the prior written approval of ENZ Experiences;
    • make any attempt to circumvent the technological measures that control access to or use of the Local Agent Booking Portal or the Affiliate Website;
    • use the Local Agent Booking Portal or the Affiliate Website to transfer or exchange any material where such transfer or exchange is prohibited by law; or
    • remove, alter, obscure or deface any:
      • patent, copyright, trademark, or proprietary rights notices of ENZ Experiences or its licensors;
      • trade mark, service mark, get up, logo or branding, proprietary or restricted use legend; or
      • disclaimer, warning, instruction or advisory notice,

which are contained in or affixed to the Local Agent Booking Portal, the Affiliate Website or the Materials.

  • Changes to Services
    • In addition to ENZ Experiences’s rights under clause (a), ENZ Experiences reserves the right to Change the Local Agent Booking Portal, the Affiliate Website or the Materials as required due to new legislation.  If such Change materially alters the performance or functionality of the Local Agent Booking Portal, the Affiliate Website or the Materials, ENZ Experiences will notify the Partner.
  • Obligations
    • Obligations of the Partner
      •  The Partner must:
        • actively promote and resell the Experiences in accordance with the terms and conditions of this Agreement;
        • be solely responsible for all costs associated with display or promotion of the Local Agent Booking Portal, the Affiliate Website or the Materials at the Premises (subject to clause 6.5);
        • ensure that any point of sale displays are maintained in a clean and orderly way, and that any brochure materials remain well stocked;
        • ensure that the Materials are displayed in a manner that is generally consistent with the example layouts set out in Schedule 2;
        • ensure that any video displays related to the Local Agent Booking Portal, the Affiliate Website or the Materials are switched on during hours where the reception, concierge or similar operations at the Premises at which the video displays are based, are staffed;
        • perform and ensure that its employees and contractors (if any) perform its responsibilities and duties honestly and in a proper, professional, timely and efficient manner;
        • comply with this Agreement in the use of the Local Agent Booking Portal, the Affiliate Website or the Materials;
        • ensure that its hardware, software and other technological capabilities meets any minimum operating requirements necessary for the Local Agent Booking Portal, the Affiliate Website or the Materials, as notified by ENZ Experiences from time to time;
        • ensure that all usernames, passwords and other credentials used to access the Local Agent Booking Portal are kept secure and confidential and that any unauthorised use is immediately notified to ENZ Experiences;
        • comply with the directions of ENZ Experiences in relation to the use of the Local Agent Booking Portal, the Affiliate Website or the Materials;
        • comply with all applicable laws;
        • immediately cease to use the Local Agent Booking Portal, the Affiliate Website and the Materials upon expiration or termination of this Agreement; and
        • fully cooperate with ENZ Experiences in relation to complaints or requests for the provision of refunds and compensation arising from circumstances including but not limited to:
          • where there has been a substantial change to a Booking; or
          • where a Customer has a justifiable complaint regarding a Booking.
      • The Partner must not:
        • do or permit or suffer to be done or omit to do anything in relation to the advertising of the Local Agent Booking Portal, the Affiliate Website or the Materials which would be likely to bring ENZ Experiences, the Local Agent Booking Portal, the Affiliate Website or the Experiences into disrepute or ridicule; or
        • advertise the Local Agent Booking Portal, the Affiliate Website or the Materials in any manner likely to deceive or confuse Customers.
      • The Partner must not and is not authorised under any circumstances to make any promises or undertakings to the Customer on behalf of ENZ Experiences.
    • Obligations of ENZ Experiences
      • ENZ Experiences must:
        • make the Local Agent Booking Portal, the Affiliate Website and the Materials available to the Partner;
        • perform and ensure that its employees and contractors (if any) perform its responsibilities and duties honestly and in a proper, professional, timely and efficient manner; and
        • ensure that the Local Agent Booking Portal, the Affiliate Website and the Materials meet all applicable industry, professional and quality standards.
      • ENZ Experiences will provide the Partner with all reasonable assistance required by the Partner to otherwise display and promote the Local Agent Booking Portal, the Affiliate Website and the Materials.
    • Availability of the Local Agent Booking Portal and the Affiliate Website
      • The Partner acknowledges that the Local Agent Booking Portal and the Affiliate Website may be supplied over communications links and other networks and that ENZ Experiences relies on the availability of those links and networks.
      • ENZ Experiences will use commercially reasonable steps to make sure that those links and networks are available but makes no warranty that the Local Agent Booking Portal or the Affiliate Website will be continually available and excludes all liability for loss or damage if the Local Agent Booking Portal or the Affiliate Website cannot be provided because of the unavailability of the links or networks.

The Partner acknowledges that ENZ Experiences may be required to perform maintenance operations, which may affect the continuous operation or functioning of the Local Agent Booking Portal or the Affiliate Website.

  • Materials
    • ENZ Experiences will:
      • make the Materials available to the Partner during the Term at the applicable locations; and
      • ensure that the Materials remain in good, working order.
    • The Partner must notify ENZ Experiences Ltd as soon as reasonably practicable after becoming aware that the Materials are not in good, working order.
    • Notwithstanding clause 6.5(a), the Partner must indemnify ENZ Experiences for any damage to the Materials that:
      • is not fair wear and tear; or
      • does not arise in the ordinary course of business.
  • Intellectual Property
    • For the duration of the Term, each party grants to the other party a limited, non-exclusive and revocable licence to use the party’s name and branding (including any trademarks) and to disclose the party’s relationship with the other party for the purpose of:
      • including the other party’s branding on the Local Agent Booking Portal and the Affiliate Website for the benefit of the other party; and
      • the other party’s reasonable promotional and marketing activities for the Local Agent Booking Portal or the Affiliate Website (subject to the licensing party having a reasonable opportunity to review, and provide its written consent to, any such use of its name and branding).
    • Clause 7(a) will survive the termination or expiration of this Agreement.
  • Booking process
    • Process
      • The Partner will be entitled to receive a commission on the ticket price of a confirmed Booking, (Commission) equal to:
        • the applicable Commission Rate multiplied by the ticket price of the Booking (inclusive of GST);
        • less the value of any discounts offered by the Partner on the Booking.
      • Following confirmation of a Booking from ENZ Experiences, ENZ Experiences will be responsible for managing all aspects of that Booking, including:
        • management of any complaints (to the extent they relate to the Booking); and
        • payments to Suppliers for provision of the underlying Experiences.
    • Refunds
      • If a Customer wishes to obtain a refund for a Booking, and payment was made directly to ENZ Experiences, and the refund and cancellation complies with the ExperienceOz Terms and Supplier policies, then the Partner must contact the ENZ Experiences customer service team for ENZ Experiences to process the refund for the Customer.
      • If a Customer wishes to obtain a refund for a Booking and payment was made directly to the Partner, and the refund and cancellation complies with the ExperienceOz Terms and Supplier policies, then the Partner must refund the monies to the Customer in full and cancel the voucher through the Local Agent Booking Portal.
      • The Partner acknowledges and agrees that, if it refunds money to a Customer in a manner that is not consistent with the ExperienceOz Terms or Supplier policies, it will be liable to reimburse ENZ Experiences for the value of that Booking (less any Commission that would have been payable if the Booking was not refunded).
  • Fees and payment

Fees and invoices are to be calculated and paid in accordance with Schedule 1.

  1. GST
    1. Commission inclusive of GST

Commission and any other charges payable by a party under this Agreement are wholly inclusive of GST, unless they are expressly stated in this Agreement to be exclusive of GST.

  1. Tax Invoice

Payment of fees and any other charges payable by a party under this Agreement is subject to receipt of a tax invoice[DC1] .

  1. Adjustments

A party must give the other party supply correction information within 7 days of becoming aware of any inaccuracy in taxable supply information or buyer-created taxable supply information being incorrect.

  1. Partner to provide GST number

The Partner will notify ENZ of its GST number upon entering into this Agreement. 

  1. Recipient Created Tax Invoices

The Partner authorises ENZ Experiences to issue Recipient Created Tax Invoices in accordance with the terms set out below:

arising out of or in connection with the Indemnifying Party’s performance of its obligations under this Agreement; and

  1. Warranties
    1. Mutual warranties

Each party warrants that:

  • they have authority to enter into this Agreement and are able to enter into and fulfil the obligations in this Agreement;
    • they are not under any obligation or restriction that would interfere with or restrict the performance of their obligations under this Agreement;
    • entry into this Agreement or the performance of this Agreement will not put it in breach of any obligation to any third party as at the date of entering this Agreement, and throughout the Term; and
    • all representations, warranties and undertakings are true and correct to the best of their knowledge.
    • Exclusions

To the fullest extent permitted by law, ENZ Experiences expressly excludes any warranty that:

the Confidential Information or any other document, papers, materials, data and reports (in whatever form, including in electronic format) that contain or refer to the Confidential Information of the other party and must provide the other party with a letter certifying that all the Confidential Information has been returned or destroyed.

  1. Privacy
    1. Where a party discloses (Disclosing Party) any Personal Information to the other party (Receiving Party) under this Agreement, the Receiving Party:
      1. must comply with the Privacy Law.  In the case that the Receiving Party is not bound by the Privacy Law, the Recipient party must treat such Personal Information in the same manner as if the Privacy Law was applied to the Receiving Party;
      1. must use the Personal Information in accordance with and only for the purposes of fulfilling its obligations under this Agreement;
      1. acknowledges that if the Receiving Party breaches the Privacy Law, the Disclosing Party may be held to be in breach of the Privacy Law and accordingly must not, and must procure that its Personnel do not, act in any way that contravenes the provisions of the Privacy Law; and
      1. must inform the Disclosing Party within one Business Day of any privacy complaints or events which may cause the Privacy Law to be breached and must assist the Disclosing Party in investigating any complaints or potential breaches, including providing access to relevant information.
    1. The Receiving Party indemnifies the Disclosing Party, and the Disclosing Party excludes all liability in respect of any loss, claim, liability or expense (whether in contract, tort (including negligence), strict liability or otherwise) incurred by the Disclosing Party resulting from a breach by the Receiving Party or its Personnel of the Privacy Law.
  2. Eligible Data Breach
    1. Each party warrants to the other party that it has and will maintain in accordance with industry standards:
      1. systems to detect and report when an event has occurred that may give rise to reasonable grounds to suspect an Eligible Data Breach has occurred; and
      1. a system to investigate and assess a suspected Eligible Data Breach within the period prescribed by law of becoming aware of a suspected breach, including a documented procedure for making an evaluation of each investigation.
    1. If a party becomes aware of a suspected Eligible Data Breach in connection with a Service, then in accordance with the applicable laws relating to Eligible Data Breaches, the party must promptly do whatever is necessary to contain the suspected breach.
    1. If an Eligible Data Breach occurs, the parties must as soon as reasonably practicable:
      1. notify the other party of the breach;
      1. cooperate to minimise any loss or damage of each party, including loss of, or damage to, goodwill or reputation;
      1. consult with each other prior to any external communications;
      1. cooperate with respect to any mandatory notifications that must be made to a regulatory authority under the Privacy Laws; and
      1. cooperate to implement any remedial and preventative actions and to the extent reasonably necessary to ensure compliance with Privacy Laws.
  3. Insolvency

The Partner must immediately provide written notice to ENZ Experiences if it experiences an Insolvency Event.

  1. Force Majeure Event
    1. Where any party is unable, either wholly or in part, to carry out any obligation under this Agreement due to a Force Majeure Event, that party shall:
      1. as soon as practicable after becoming aware of the Force Majeure Event, give the other party notice of the occurrence of that Force Majeure Event and specify the period for which the Force Majeure Event is reasonably expected to prevent performance;
      1. use all reasonable endeavours to remedy the effect of the Force Majeure Event;
      1. perform each obligation affected by the Force Majeure Event in such other way as may reasonably be possible;
      1. continue to perform its other obligation under this Agreement;
      1. resume performance of its affected obligations as soon as possible; and
      1. take all reasonably practicable action available to it to mitigate any loss, damage or liability that may be suffered by the other party arising from or in connection with the failure to perform,

and the obligations of that party under this Agreement will be suspended to the extent that they are affected by any such Force Majeure Event.

  • If by reason of a Force Majeure Event, the delay or non-performance of the obligations continues for more than an aggregate of 20 Business Days in any 12 month period, the party not relying on the Force Majeure Event may terminate this Agreement immediately by written notice to the other party.
  • Dispute Resolution
    • Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this Agreement specifying the nature of the dispute.
    • Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
    • If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties will refer the dispute to an appropriate, independent dispute resolution body, for facilitation of a mediation in accordance with that dispute resolution body’s mediation rules.
    • The parties must co-operate with Resolution Institute as facilitator.
    • If within 10 Business Days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Mediation Rules.
  • General
    • This Agreement is governed by and is to be construed according to the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the laws of New Zealand.
    • To the extent permitted by law, this Agreement embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties and supersedes any prior written or verbal or other Agreements between the parties.
    • Nothing in this Agreement constitutes a partnership, joint venture or any similar relationship between the parties. The relationship between the parties is that of principal and agent.
    • Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver.
    • If any part of this Agreement is deemed to be illegal, void or unenforceable, that part of the Agreement will be severed to the extent of that illegality, voidness or unenforceability, without invalidating the remaining provisions.
    • Clauses 1, 2, 7(a), 12, 13, 14, 15, 16, 17 and 20 will survive the expiry or earlier termination of this Agreement.
    • No waiver of any breach the Agreement will be effective unless such waiver is in writing and signed by the party against whom such waiver is claimed.  No waiver of any breach will be deemed to be a waiver of any other or subsequent breach.
    • The Partner may not subcontract its obligations under this Agreement without the prior written consent of ENZ Experiences.  If ENZ Experiences consents to use of any subcontractor, the Partner acknowledges that the Partner remains primarily liable to ENZ Experiences under this Agreement.
    • ENZ Experiences may subcontract its obligations under this Agreement to a Related Entity of ENZ Experiences, without the prior written consent of the Partner. 
    • Any amendments to this Agreement must be signed in writing by both parties.
    • Access to, and use of, the Local Agent Booking Portal, the Affiliate Website or the Materials is personal to the Partner who does not have the right to assign in whole or in part its rights or obligations under this Agreement without the prior written consent of ENZ Experiences.  ENZ Experiences may assign or novate its interests or obligations in or under this Agreement by notice in writing to the Partner.
    • Each party shall execute such further document(s) and assurances and take such further action as may be required to give effect to the intent of this Agreement in accordance with any applicable law..

 [DC1]NZ GST no longer contains a statutory definition of a ‘tax invoice’. 

 [DC2]It is not a requirement of the GST Act for an NZBN number to be held/obtained or provided in order for a person to be registered for GST or required to return GST to Inland Revenue.