Membership Terms & Conditions
INTRODUCTION
A PERL has developed a national trade network and buying group promoted under the brand “PERL REWARDS”, which aims to reduce costs and improve buying margins for goods/services for its independent members.
B The Member has completed the Membership Application and wishes to become a Member of the PRG Network. The parties set out the terms and conditions that apply to the Membership by way of this Membership Agreement.
1. Interpretation and Definitions
1.1 In this Membership Agreement, unless the context otherwise requires:
“Annual Membership Fee” means the annual membership fee described in the Membership Application.
“CGA” means the Consumer Guarantees Act 1993.
“Commencement Date” means the commencement date described in the Membership Application.
“Early Termination Fee” means $100.00 plus GST.
“Intellectual Property” means any intellectual property owned by PERL or that PERL has the right or licence to use, and includes (for example and without limitation) any copyright and related rights, trade marks, service marks, trade names, business names, domain names, rights in get-up, goodwill, rights in designs, database rights, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and which subsist now or in the future anywhere in the world.
“Member” means the person(s) or entity named as the Member in the Membership Application.
“Membership” means membership to the PRG Network for the provision of the Services by PERL.
“Membership Agreement” means this membership agreement.
“Membership Application” means the membership application attached to this Membership Agreement.
“Membership Period” means the membership period described in the Membership Application.
“PRG Network” means PERL’s trade network, rewards and buying group and includes all persons and entities who have entered into respective membership agreements with PERL for the provision of the Services by PERL.
“PRG Trade Card” means any PERL REWARDS membership card (whether in a digital or physical form) that is the property of PERL or that features any Intellectual Property, allowing the Member or any of its authorised staff to obtain the benefits of membership and access to the Services when making purchases of goods and/or services from relevant Suppliers.
“PERL” means Perl Group NZ Limited, including its successors and assigns.
“Personal Information” means any personal information of the Member, including the information contained within the Membership Application that relates to, or may identify, the Member (and in particular, that information included under the heading “Your Details” and that information contained within Annexure 1).
“Privacy Policy” means any privacy policy of PERL that is provided to the Member at any time during the Term or that is displayed or available for download at the Website (which the Member acknowledges may change from time to time and any such changes will take effect from the date posted on the Website).
“Services” means the promotion of the PRG Network to prospective members and/or Suppliers, the administration of the PRG Network, and/or the negotiation with (and/or facilitation of) prospective and current Suppliers for the provision of competitive pricing discounts and/or other benefits to be (or actually) provided by Suppliers to members of the PRG Network.
“Supplier” means a supplier of goods and/or services who has agreed with PERL to provide competitive pricing discounts and/or other benefits for members of the PRG Network.
“Term” means the period commencing on the Commencement Date and expiring at the end of the Membership Period (unless terminated earlier in accordance with the terms of this Membership Agreement).
“Website” means www.perlrewards.com.
1.2 Clause and other headings are for ease of reference only and do not affect the interpretation of this Membership Agreement.
1.3 Words importing the singular include the plural and vice versa, and words referring to persons include bodies corporate and unincorporate and vice versa.
1.4 References to clauses and annexures are references to the respective clauses and annexures of this Membership Agreement.
1.5 References to parties are references to parties to this Membership Agreement and where the context requires, includes all references to transferees and permitted assigns where this Membership Agreement continues in force.
1.6 Any obligation not to do anything is deemed to include an obligation not to suffer, permit or cause that thing to be done.
1.7 Where this Membership Agreement requires the Member to do or not do something, the Member must make sure that the Member’s staff and other representatives do, or not do, that thing.
1.8 Where two or more persons are named as Member, the obligations and agreements on their part or implied in this Membership Agreement will bind them and every two or more of them jointly and each of them severally.
2. MEMBERSHIP
2.1 Subject to and conditional upon:
2.1.1 A satisfactory credit check of the Member being obtained by PERL (at PERL’s sole cost) prior to the Commencement Date; and
2.1.2 PERL notifying the Member (prior to the Commencement Date) that the Membership Application has been approved (PERL reserving the right to decline the Membership Application for any reason and not being required to disclose such reason(s)), at which time PERL is deemed to have accepted the terms and conditions of this Membership Agreement,
this Membership Agreement, and the Membership, commences on the Commencement Date and continues:
2.1.3 Until expiry of the Membership Period; or
2.1.4 Until the Membership Agreement is earlier terminated by either party in accordance with clause 4.
2.2 In consideration of the Member’s payment of the Annual Membership Fee to PERL, and the Member’s continued compliance with this Membership Agreement for the Term, PERL grants to the Member (and the Member accepts) a non-exclusive Membership to the PRG Network for the Term on the terms and conditions set out in this Membership Agreement.
2.3 At all times during the Term, the Member agrees to:
2.3.1 Pay to PERL the Annual Membership Fee and any other fees and costs in accordance with clause 3;
2.3.2 Comply with the terms and conditions set out in this Membership Agreement;
2.3.3 Not use (for any purpose whatsoever) any of the Intellectual Property unless expressly permitted by PERL to do so (which instances may include, for example and without limitation, where the Member wishes to make or submit an application to a Supplier for a trade/credit account with that Supplier). The Member acknowledges and agrees that:
(a) The Intellectual Property at all times remains the sole and exclusive property of PERL;
(b) Any expressly authorised use by the Member of any of the Intellectual Property will be strictly in accordance with all directions, instructions and specifications provided to the Member by PERL (and the Member will ensure that the Intellectual Property is protected at all times from any misuse, damage or any form of unauthorised use);
(c) The Member will not at any time during the Term or thereafter use or seek registration of any trade mark or trade name that incorporates or is substantially identical to, or deceptively or confusingly similar to, any of the Intellectual Property. The obligation in this clause remains in full force and effect after the expiry or termination (for any reason) of this Membership Agreement and is not deemed waived, merged or extinguished on the expiry or termination of this Membership Agreement;
2.3.4 Not join or become a member of any other trade buying group which operates in an identical or similar manner to PERL, unless PERL provides its prior written consent;
2.3.5 Take all reasonable steps to ensure that the goodwill and reputation of PERL and the PRG Network is maintained and enhanced, and not do anything that may prejudice or harm the goodwill or reputation of PERL and/or the PRG Network;
2.3.6 Where the Member orders or purchases goods and/or services from any Suppliers, pay all invoices rendered by such Suppliers strictly in accordance with the relevant payment and/or credit terms of such Suppliers;
2.3.7 Where the Member has a trade or credit account with any Supplier, not take any action or omission that may cause or entitle such Supplier to cancel or terminate that Supplier’s contractual relationship with the Member;
2.3.8 Agree to the Suppliers submitting to PERL reports, data and other information relating to the Member’s purchases from Suppliers, so that PERL can establish/ascertain the status of the Member’s trading account and performance with the Suppliers as well as information required for the purposes of calculating amounts owed to PERL under clause 7.1.
2.3.9 Not permit, allow or assist any third party to obtain the benefit of any competitive price, rate, discount, reward or other benefit that PERL has negotiated with the Suppliers for the benefit of the Member and other members of the PRG Network.
2.4 In exchange for the Annual Membership Fee, PERL agrees to (during the Term) provide the Services, and in particular:
2.4.1 Negotiate with Suppliers (as agent for and on behalf of the Member and the PRG Network) for competitive prices, rates, discounts, rewards and other benefits relating to the purchase of goods and/or services applicable to the business(es) of the Member and other members of the PRG Network;
2.4.2 Continue to market and develop the PRG Network;
2.4.3 As agent for the Member and other members of the PRG Network, investigate and pursue opportunities that may benefit the business(es) of the Member and other members of the PRG Network.
2.5 PERL makes no warranties, assurances or guarantees to the Member:
2.5.1 That any Supplier will agree to provide any line of credit to the Member or provide the Member with any goods and/or services; and
2.5.2 In relation to the quality, completeness, timeliness or fitness for purpose (as the case may be) of the Services, any Supplier, or any Supplier’s goods and/or services available for purchase by the Member.
2.6 The Member acknowledges and agrees that:
2.6.1 PERL acts only as an agent for the Member in introducing the Member to its Suppliers;
2.6.2 PERL may, at any time, introduce, vary, substitute or remove a Supplier from that status on notice being provided to the Member, at which time on the removal of a Supplier the Services provided by that Supplier will immediately cease and if the Member wishes to continue to trade with that Supplier it may do so at whatever pricing it negotiates with Supplier direct.
2.6.3 The Member is not obligated or required under this Membership Agreement to make any orders or purchases of any goods and/or services from any Supplier; and
2.6.4 The Member is solely responsible for the security, safeguarding, supervision, management and control of the use of all benefits and Services provided by Membership and as accessed through the use of PRG Trade Card (including any passwords, pin numbers, access codes and/or log-ins associated with the same) and must ensure that the benefits and Services provided by Membership and as accessed through the use of PRG Trade Card are protected at all times from any misuse, damage, abuse, destruction or any form of unauthorised use.
2.6.5 If the Member wishes to purchase any goods and/or services from any Supplier (which the Member is not obligated to do), then:
(a) The Member must meet the relevant Supplier’s requirements with respect to any trade or credit account application of a Supplier and PERL makes no warranty, assurance or Guarantee to the Member that a Supplier will open an account with the Member if the Supplier’s requirements are not met; and
(b) PERL is not responsible or at all liable for any obligations of the Member with respect to those goods and/or services ordered or purchased from the relevant Supplier (including, for example and without limitation, any payment obligations of the Member with respect to the Supplier); and
2.6.6 In order to obtain the benefits of Membership and including access to the Services, then:
(a) The Member must first activate the PRG Trade Card using the activation procedure specified by PERL (and by activating the PRG Trade Card the Member will be deemed to have confirmed its prior acceptance of these terms and conditions); and
(b) At the time of purchasing goods and/or services from any relevant Supplier, the Member (or its authorised staff) must first present the PRG Trade Card to the Supplier and/or quote its Membership details.
2.6.7 The Member carries on its own business as an independent operator/proprietor and not as a partner, joint-venturer, agent, employee, or contractor of PERL. The Member will not at any time pledge the credit of PERL.
3. MEMBERSHIP FEES AND OTHER COSTS/PAYMENTS
3.1 The Member will pay the Annual Membership Fee to PERL on or before the Commencement Date, in full and without setoff or deduction.
3.2 If the Membership Period is a period of more than 12 months, then the Member will pay each subsequent Annual Membership Fee to PERL at least 14 days prior to each applicable anniversary of the Commencement Date, in full and without setoff or deduction.
3.3 If the Member fails to pay the applicable Annual Membership Fee by the due date for payment, then (without limiting PERL’s rights under clause 4) PERL may suspend the Membership of the Member (including suspending providing the Services to the Member), in which case the applicable Annual Membership Fee remains payable.
3.4 The Member is responsible for (and will indemnify PERL against) all costs incurred by PERL in connection with PERL exercising its rights under this Membership Agreement as a result of any breach of this Membership Agreement by the Member including, without limitation, all debt collection, recovery and/or enforcement costs and legal fees (including on a solicitor-client basis) incurred by PERL in seeking or obtaining recovery of amounts owing by the Member to PERL.
4. TERMINATION OF MEMBERSHIP AGREEMENT
4.1 The Member may terminate this Membership Agreement at any time prior to expiry of the Membership Period by:
4.1.1 Providing PERL with at least one month’s written notice of termination; and
4.1.2 Paying to PERL the applicable Early Termination Fee, on or before expiry of the above notice period.
4.2 Without prejudice to any other rights or remedies of PERL, PERL may terminate this Membership Agreement:
4.2.1 On providing the Member with at least one month’s written notice of termination if:
(a) PERL reasonably considers that it is no longer commercially viable to provide the Services to the Member and/or other members of the PRG Network;
4.2.2 Immediately, at any time during the Term, if:
(a) PERL discovers that the Member has made a materially false statement in the Membership Application;
(b) The Member fails to pay any amount due and owing to PERL under this Membership Agreement within 10 working days of the due date for payment;
(c) Fails or neglects to perform or observe, or breaches, any of the provisions of this Membership Agreement and (if capable of remedy) fails to remedy such breach to PERL’s satisfaction within 10 working days of notification of such breach;
(d) Being a company, is unable to pay its debts as they fall due or enters into liquidation, has a receiver or statutory manager appointed, or is wound up other then for the purpose of a reconstruction approved by PERL, or a meeting is called for the purposes of considering the appointment of a liquidator/receiver/statutory manager;
(e) Being a natural person, becomes bankrupt;
(f) Does or suffers anything which in PERL’s reasonable opinion will be, or will likely be, detrimental to the PRG Network or bring PERL or the PRG Network into disrepute or be damaging to the goodwill or reputation of PERL and/or the PRG Network in any way; or
(g) The Term expires without any further renewal arrangements being agreed between the parties.
4.3 On expiry of the Term or on the early termination of this Membership Agreement for any reason, all rights of the Member granted by this Membership Agreement terminate and:
4.3.1 The Member is not entitled to receive further benefits relating to the PRG Network nor any compensation (for any loss of business, income or other loss), rebate or refund of any amounts paid to PERL under this Membership Agreement;
4.3.2 The Member must immediately pay to PERL all outstanding amounts owing under this Membership Agreement;
4.3.3 Immediately settle all sums owing to all Suppliers (whether or not payment is due) and in that case the Services provided by that Supplier will immediately cease and if the Member wishes to continue to trade with that Supplier it may do so at whatever pricing it negotiates with Supplier direct; and
4.3.4 Immediately return to PERL any items or property provided to the Member pursuant to this Membership Agreement (including, for example and without limitation, any physical PRG Trade Card and any PERL REWARDS marketing material).
4.4 Expiry or termination of this Membership Agreement does not affect any accrued rights or remedies of a party to this Membership Agreement, nor will any expiry or termination of this Membership Agreement prevent any provisions of this Membership Agreement intended to continue in effect beyond expiry or termination from continuing to apply between the parties.
5. LIABILITY, INDEMNITY AND WARRANTIES
5.1 To the fullest extent permitted by law, PERL is not liable to the Member in respect of any loss or damage of any kind whatsoever (including, without limitation, any loss of profit, revenue, goodwill or anticipated savings, any consequential, indirect or special loss or damage, and any injury or damage of any kind whatsoever) which may be suffered or incurred by the Member or which may arise directly or indirectly as a result of:
5.1.1 PERL’s provision of the Services to or for the Member; and/or
5.1.2 The Member’s entry into this Membership Agreement.
5.2 Notwithstanding any other clause of this Membership Agreement, and without prejudice to clause 6.1, if PERL becomes liable for any loss or damage that would have otherwise been excluded, then that liability is limited to the Annual Membership Fee.
5.3 The Member will, at all times, indemnify and keep PERL (and its directors, officers, employees and agents) indemnified from and against any and all damages, losses, claims, demands, liabilities (including vicarious liability), injuries, suits, actions, judgements, costs and expenses of any kind whatsoever (including reasonable legal fees) arising out of or in connection with:
5.3.1 The Member’s conduct, omission or breach of this Membership Agreement; and
5.3.2 The Member’s conduct of its own independent business (including, for example and without limitation, its own independent contractual relationships with, and the Member’s own obligations owed to, any Suppliers).
5.4 The Member warrants that prior to entry into this Membership Agreement, the Member has conducted its own assessment of the Membership, and warrants and acknowledges that:
5.4.1The Member has (and if a company, its director(s) has/have) carefully read and understood the provisions of this Membership Agreement, and has had an opportunity to seek legal advice on the Membership Agreement prior to entering into it;
5.4.2 The Member has entered into this Membership Agreement on their own judgement and initiative and not in reliance of any express or implied statement, verbal assurance, warranty or representation of PERL (or any agent of PERL); and
5.4.3 PERL has not made any representations, inducements, guarantees or warranties as to the actual or potential savings, benefits or discounts that may be achieved or received by the Member entering into this Membership Agreement and joining the PRG Network.
5.5 Nothing in this Membership Agreement is intended to avoid the provisions of the CGA except to the extent permitted by the CGA or to exclude liability of PERL arising under any other statute. If and to the extent that such liability cannot be lawfully excluded, this Membership Agreement is modified to the extent necessary to give effect to that intention. If the Member is entering into this Membership Agreement for the purposes of acquiring goods and/or services from any Supplier for a “business” (as that term is defined in the CGA) then the Member agrees that the guarantees provided in the CGA do not apply to this Membership Agreement. PERL makes no “express guarantee” (as that term is defined in the CGA) other than those expressly confirmed in this Membership Agreement.
6. PRIVACY
6.1 The Member provides PERL with the Personal Information when completing the Membership Application and agreeing to become a member of the PRG Network and enter into this Membership Agreement, and at times during the Membership.
6.2 The Member acknowledges and agrees that PERL collects, stores and uses the Personal Information only for the following purposes (and that PERL’s collection, storage and use of the Personal Information is necessary for such purposes):
6.2.1 To communicate with the Member at the time the Member provides the Personal Information and prior to and during the Term (and by signing this Membership Agreement, the Member agrees to receive from PERL ongoing newsletters relating to Suppliers and various promotions of Suppliers);
6.2.2 To process and administer the Membership Application and Membership;
6.2.3 To undertake a credit check of the Member prior to the Commencement Date (the Member acknowledging and agreeing that PERL may provide a copy of the results of that credit check to any Supplier prior to the Member making a trade/credit account application to such Supplier for the provision of goods and/or services from that Supplier);
6.2.4 To provide the Services to and for the Member;
6.2.5 To assist Suppliers to connect (to the PRG Network) any existing trade or credit account that the Member may have had with such Suppliers prior to the Commencement Date;
6.2.6 For debt collection purposes;
6.2.7 To carry out activities connected to PERL’s operation of its business and PRG Network (including, for example and without limitation, personnel training, quality control, when dealing with requests, enquiries or complaints from any Supplier, network monitoring, testing, monitoring and maintenance of computer and other IT systems and networks, and/or in connection with the sale, assignment or transfer of any part of PERL’s business to a 3rd party; and
6.2.8 Where required by law.
6.3 PERL will only disclose the Personal Information to certain 3rd parties (including Suppliers, PERL’s professional advisers as necessary to establish, exercise or defend PERL’s legal rights and/or obligations, those agencies involved in data protection, those agencies involved in crime prevention, detection, investigation and/or prosecution, and the Office of the Privacy Commissioner in the event of a notifiable privacy breach concerning the Member), if necessary for any of the purposes described in clause 6.2 and/or if required by law.
6.4 The Member has the right to request access all Personal Information that PERL holds about the Member, and the right to request correction of any inaccurate, misleading, out-of-date or incomplete Personal Information that PERL holds about the Member. All requests by the Member for access to and/or correction of the Personal Information must be directed to PERL’s privacy officer at membership@perlrewards.com.
6.5 The above clauses 6.1 to 6.4 are at all times subject to the Privacy Policy and the Privacy Act 2020, and are not intended to limit or exclude the Member’s rights under the Privacy Act 2020.
7. GENERAL
7.1 The Member acknowledges and agrees that PERL may (to the exclusion of the Member) be entitled to negotiate and receive from any Supplier commissions, incentives, fees, rebates, payments or any other benefits relating to any goods and/or services supplied to the Member by any Supplier, and that the Member is not entitled to make any claim against nor request any disclosure and/or compensation from PERL in respect of the same.
7.2 Neither party to this Membership Agreement is responsible to the other party for any delay in performance or non-performance due to any causes beyond the reasonable control of the parties, but the affected party will (promptly upon the occurrence of any such cause) inform the other party in writing, stating the nature and extent of the circumstances and that such cause has delayed or prevented its performance of its obligations under this Membership Agreement during such event and from that time on such party will take all action within its power to recommence its affected operations in order to comply with the terms of this Membership Agreement as fully and promptly as possible.
7.3 All notices or other communications required or permitted to be given under this Membership Agreement are to be given:
7.3.1 In respect of the Member, at the Member’s addresses described in the Membership Application; and
7.3.2 In respect of PERL, at the following:
(a) Physical/Postal address for service: 9 Kopiko Road, Titirangi, Auckland 0604
(b) Email: membership@perlrewards.com
And are deemed to have been given:
7.3.3 In the case of communication by email, when transmitted to the applicable email address (and/or such other email address as a party commonly uses for other communications relating to this Membership Agreement), provided that the email communication is followed by posting or delivery of an original notice as set out below;
7.3.4 In the case of communication by letter, on the second day after being posted by mail, correctly addressed and stamped; and
7.3.5 In given by hand, on personal delivery to the recipient.
7.4 This Membership Agreement is governed by and construed in accordance with the laws of New Zealand and is subject to the exclusive jurisdiction of the New Zealand judicial system.
7.5 This Membership Agreement constitutes the entire agreement between the parties with respect to the Membership and cannot be varied, amended or modified except by mutual written agreement.
7.6 Time is of the essence with respect to the performance of any obligation of the Member under this Membership Agreement. Failure or delay by PERL to enforce any provision of this Membership Agreement against the Member will in no way constitute a waiver of such provision or in any way affect the validity of that provision or this Membership Agreement.
7.7 PERL may assign its rights, title and interest in or under this Membership Agreement at any time during the Term (without giving prior notice to the Member or seeking the Member’s consent). The Member must not transfer or assign its Membership and/or this Membership Agreement without PERL’s prior written consent.