Form G
Commonwealth of Australia
Competition and Consumer Act 2010 — subsection 93 (1)
NOTIFICATION OF EXCLUSIVE DEALING
To the Australian Competition and Consumer Commission:
Notice is hereby given, in accordance with subsection 93 (1) of the Competition and
Consumer Act 2010, of particulars of conduct or of proposed conduct of a kind
referred to subsections 47 (2), (3), (4), (5), (6), (7), (8) or (9) of that Act in which the
person giving notice engages or proposes to engage.
PLEASE FOLLOW DIRECTIONS ON BACK OF THIS FORM
(L)
N96841
Applicant
(a) Name of person giving notice:
(Refer to direction 2) ^
(b)
(c)
2.
Short description of business carried on by that person:
(Refer to direction 3)
.
Address in Australia for service of documents on that person:
Notified arrangement
(a) Description of the goods or services in relation to the supply or acquisition
of which this notice relates:
.
.
Page 1 of 5
(b)
Description of the conduct or proposed conduct:
(Refer to direction 4)
Persons, or classes of persons, aiffected or likely to be affected by the
notified conduct
(a) Class or classes of persons to which the conduct relates:
(Refer to direction 5L^ .
\
(b) Number of those persons:
(i) At present time:
(ii) Estimated within the next year:
(Refer to direction 6)
(c)
Where number of persons stated in item 3 (b) (i) is less than 50, their names
and addresses:
Page 2 of 5
4.
Public benefit claims
Arguments in support of notification:
(a) (Refer to direction 7)
refer
(b)
Solo^d-eM
Facts and evidence relied upon in support of these claims:
rrQA, Vo
t?uL
5.
Market definition
Provide a description of the market(s) in which the goods or services
described at 2 (a) are supphed or acquired and other affected markets
including: significant suppliers and acquirers; substitutes available for the
relevant goods or services; any restriction on the supply or acquisition of
the relevant goods or services (for example geographic or legal restrictions):
(Refer to direction 8)
Hi
r> \
6.
Public detriments
(a) Detriments to the public resulting or likely to result from the notification, in
particular the likely effect of the notified conduct on the prices of die goods
or services described at 2 (a) above and the prices of goods or services in
other affected markets:
(b)
Facte and evidence relevantto these detriments:
1
o/i/y
Page 3 of 5
9
Further information
(a) Name, postal address and contact telephone details of the person authorised
to provide additional information in relation to this notification:
.i/7/.l5
lied by/on behalfrOfAe applicant
(Signature)
OMr^—
»
(Full Name)
.
j
(Organisation)
fH^
\ <r<: "Vo
'
(Position in Or^isation)
Page 4 of 5
MasterCard Worldwide
Asia/Pacific, Middle East & Africa
Level8,100 Arthur Street
North Sydney NSW 2060
Australia
MasterCard
tel +6,294663700
fax+61299593296
WWW. mastercard. comau
Worldwide
FILE No
Doc
27th May, 20 13
MARS/PRIS
Shannon O'Brien
Managing Director
Sydney Harbour Kayaks
81 Parriwi Road/ Spit Bridge
MOSman NSW 2088
Dear Shannon
LIERCHANT ACRIDlBlvlENT WITH SYDNEYHARBOllRKAYAKS
MasterCard Asia/Pacific (Australia) Pty Limited anN 95/08603345 ("Master Card Australia") is
pleased to confinn the participation of Sydney Harbour Kayaks ABN 57096831051 ("Merchant") in
the MasterCard Priceless Cities Program (the "Program") providing the following benefits to
Master Card cardholders (the "Promotion") on the ternis and conditions set out below
("Agreement!L),,_
I. Promotion
a) in accordance with this Ageement, the Merchant will offer Master Card cardholders the
offers specified in Ninexure I to this letter ("Offers").
a) Merchant will ensure the Offers are in the spirit of MasterCard's 'Priceless' market positioning
and are supplied, packaged and delivered in such a way that they clearly offer appreciable
benefits and opportunities for members of the Program.
2. Validity of Offers
Merchant will ensure the Offers remain available to Master Card cardholders for the period(s) of
time specified in fumexure I to this letter.
3. Terms of Promotion
a) Each Offer will be available to Master Card cardholders who purchase the Merchant's goods
and/or services using a valid Master Card card to redeem the Offer.
by The Offers may be coriumunicated to and redeemed by cardholders residing overseas.
4. Merchant's Obligations
AUST. COMPETITION &
CONSUMER COMMISSION
16,19332-vl\SinDMS\AUSAOM
MasterCard Asla/Padflc (Australia) Pty Ltd A8N 95/08603345
I A JUL 20/3
CANBERRA
In accordance with this Agreement, the Merchant will:
a) Ensure each Offer is fulfilled in accordance with the terms of that Offer' and this Agreement
(including, for the avoidance of doubt, in accordance witli the Terms);
by Pay allcosts associated with the fulfilment of each Offer, including without limitation the cost
of the any merchandise, product, service, discount or othei. expense or activity that is the
subject matter. of any part of the Offer;
c) Where applicable, ensure it has sufficient stock available to satisfy each Offer If sufficient
stock is not available, the Merchant will substitute the product or seivice with a replacement
that is of substantially the same value and specification at no cost to Master Card Australia or
the cardholder;
d) Provide an appi'opriate and commercially reasonable level of customer. service to MasterCard
cardholders who participate in the Promotion;
e) Provide commercially reasonable efforts to resolve any MasterCard cardholder inquiries or
disputes within 3 business days of notice of such inquiiy or dispute. The Merchant
acknowledges and agrees that MasterCard Australia will transfer. any cardholde^ inquiries or
disputes relating to any Offer offered by tile Merchant pursuant to this Agreement to the
Merchant for evaluation, resolution and/or action as appropriate. The Merchant will also
jinmediately notify MasterCard Australia of any cardholde^ dispute;
f) Provide Master Card Australia with any assistance reasonably requested in relation to
preparation of marketing or other materials related to each Offer.
-~
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g) Not advertise or promote any Offer unless it has MasterCard Australia's approval in writing to
advertise o1' promote the Offer and subject to the Merchant complying with the telms of this
Agreement, including the Terms. For the avoidance of doubt, all marketing and promotional
activities undertaken by the Merchant in relation to an Offer must be agreed by Master Card
Australia on a case-by-case basis prior to any expenditure in relation to such activities being
incurred and all final promotional material must be approved by MasterCard Australia in
writing prior. to publication;
by Not warrant or Top^OSent to any participant in the Program or any other person that Master Card
Australia is responsible for filmlfuig any Offer. or is liable to any third party (including
meinbel' of the Program) in relation to any Offer; and
Not conduct any sweepstakes, lotteiy, lucky draw, competition or any similar promotion in
connection with any Offer, unless otheiwise agreed with MasterCal'd AUSti'alia. If the parties
agree that either of them will conduct a sweepstakes, lottery, lucky draw, competition or any
similar promotion relating to any Offer. , the parties will enter into a separate agreement
relating to such promotion.
5.
MasterCard Australia's Obligations
1649332-vl\SinDMS\AUSAOM
in accordance with this Agi'Gement, MasterCard Australia:
a) will promote the Progi'am to MasterCard cardholders as a Master'Card-branded promotion, as
it considers appropriate:
(i) via the Program; and
(it) in any other direct-to-consumer web or social networking sites or any communications
channels as dete!mined by Master Card at its sole discretion; and
by is entitled to license or pass thi. ough the rights granted under this Agreement to issuing banks
to promote one or more of the Offers ("Issuer Promotions") as MasterCal. d deems fit. Issuer
Promotions may include, without limitation, promotion of tile Offers in Master'Card
cardholder statement mseits issued by the relevant MasterCard card issuer, electronic
marketing, or direct mail; and
makes no representation or warranty with respect to the scope or extent of any marketing or
promotion of the Offers conducted in accordance with this Agi. Gement.
6. Marketing materials
In accordance with this Agreement, for. each Offer. :
a) the Merchant will provide to Master Card Australia all details and all relevant marketing
materials relating to the Offer ("Marketing Materials"), including:
(i) electronic, high resolution logo type, art and imageiy in the foi'mat(s) requested by
Master Card Australia (including at least EPS and JPEG fonnat); and
.^(ii) all applicable offer GOPy, ingluding redemption and-fulfilment instruGtions, promotion
codes and legal tel'ms and conditions;
b) the Merchant will submit the Mar'keting Materials to Master Card Australia:
(i) if the Offe^ will be launched at the commencement of the Program, within 5 days after
this Agreement commonccs (unless otheiwise agreed by Master Card Australia); and
(ii) for any other Offer, at least 5 weeks prior to the launch date for that Offer or by any
earlier date notified to the Merchant as reasonably requested by Master Card AUSti'an a;
and
MasterCal'd Australia will submit creatives incorporating some or all of the Mall<sting
Materials to the Merchant for review and approval. The Merchant must review and approve
the creatives within 3 business days of receipt from MasterCal'd Australia (unless otheiwise
ageed by MasterCard Australia). If the Merchant makes no objection within 3 business days,
Master'Card Australia will be deemed to have approval.
7. ^xclusivity
The Promotion offered pursuant to this Agreement must be either unique to MasterCard
cardholders or, if not unique, the Promotion must not be lower in valuc compared to any other
offer made to consumers,
16,19332-vl\SYDDMS\AUSAOM
8. Reporting
a) For each Offer, the Merchant will provide to Master Card Australia written reports on a
monthly basis containing details to enable MasterCard to assess the success of the Promotion,
including:
co details relating to conversion of the Offer';
(ii) the number of sales (including the value and volume of sales) relating to the Offer, ; and
(in) the increase in MasterCard-branded card activity during the poliod of the Offer.
Each report is due on the 15th day of the month. The first repoit is due in the month
innnediately following the month in which the Offer is launched.
c) From time to time, the Merchant will supply to MasterCard Australia other. reports relating to
each Offer to support the success of the Promotion as reasonably requested by MasterCard.
d) For the avoidance of doubt, the Merchant will only provide de-identified and statistical
information in its reports. It will not, and will not be requii. ed to, provide any personal
information about cardholders.
9. Merchant contact details
The contact details for' the Merchant's primaly and secondary contacts are:
Primary contact
Secondary contact
Name: Shannon 0'Brien
Name:-SarahSherwood
Telephone N0: 0299694590
Telephone N0: 0299694590
Email address:
Email address:
shannon@sydneyharbourkayaks. coin. au
info@sydneyharbourkayaks. coin. au
The tenns in minexure I and schedules A and B attached to this letter (together, 'Terms") are
incorporated by reference and made a part of this Agreement and will have the same force and effect
as ifit were set out heroin. in the event of any inconsistency between the provisions of the Tenns and
the provisions of this letter, the provisions of this letter will prevail.
1649332-vl\SYDDMS\AUSAOM
Thank you for your support. Kindly indicate Sydney Harbour Kayaks acceptance of this Agreement
by signing below.
Yours sincerely,
Signed on behalf of
Accepted on behalf of
MasterCard Asia/Pacific (Australia) Pty Ltd
Sydney Harbour Kayalrs
^-~~
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I\\,,* ,, 7-<~
Name: 6 Wrt'/ IP ,^',<0. ^; t, ^<
Designati n:blU ^1,101\I 11:1='SIbj^"1.17
Name:
hats^ 6 JU 0013 1405TKi^LAS. ,^
Date: 30 May 2013
1649332-vl\SYDDMS\AUSAOM
Shannon O'Br'eru
Designation: Managing Director
Schedule A
Definitions
(a)
"Card" shall include, without limitation, any bank card, credit card, charge card, travel and
entertainment card, coriumercial card, debit card, ATM card, prepaid card, sinait card, storedvalue card, co-branded card, viitual card or any other payment card, mechanism or device and
any account or financial payment systems functionality or features associated witli same.
(b)
"Competitor" means any person or entity that, directly or indirectly, engages in the issuance,
marketing, promotion o1. publicity of any payment system, card or device other' than a
MasterCard payment system, card or device, and the parent, subsidiary and all affiliates of any
such person or entity including, but not limited to, American Express, Carte Blanche, Discover
Card, Paypal, Billpoint, Bill Me Later, interac, JCB, Visa, Travelex and EFTPOS.
(0)
"MasterCard", when used as a noun, means MasterCard Australia and its affiliated entities
and, when used adjectivalIy, refers to the MasterCard@ brand.
(d)
"MasterCard Group" means MasterCard Australia and its affiliated entities.
(6)
"MasterCard Card" means a Card bearing the name, logotype, hologi. am, service mai. ks,
trademarks or devices of MasterCard (including, without limitation, those 1.81ating to Maestro,
Cirrus and Mondex) and providing the functionality associated with same.
(f)
''Related Bodies Corporate" has the meaning given to it in section 50 of the Gol:poi, @!ions
A, t 2001 (Cth).
1649332-vl\SYDDMS\AUSAOM
Schedule B
Terms of Participation
The terms of palticipation ("Terms") set out below govern the participation in, implementation of and related administrative
matters pertaining to, the Program between MasterCard Australia and the Merchant.
I.
Duties and Obligations of MasterCard
Australia
MasterCard Australia shall supply all information and
supporting documentation which is reasonably required
by the Merchant. MasterCard Australia shall determine
at its sole discretion any marketing activities relating to
tlie Program to be carried out by Master Card Australia,
including communication of the Promotion to issuer
banks, provided MasterCard Australia shall solely bear
such marketing expenses including the costs of
communicating the terms of the Promotion to its issuer
banks. Costs and expenses incurred by issuer banks in
more prominence than MasterCard and/or
MasterCard branded products.
(g) The Merchant will not enter into any anangements
or ageements similar in narurc to this Agrccmcnt
or the transactions contemplated under this
Agieement with any other payment system
organisation during the term of this Ageement.
(h) The Merchant will ensure that the terms and
conditions of the Promotion and references to the
MasterCard cardholders will be borne by such issuer
terms and conditions of the Promotion in any
promotional materials will contain the following
disclaimer "The products and services purchased to
enter this Promotion are provided solely by the
banks.
Merchant, under such tenns and conditions as
2. Duties and Obligations of Merel, ant
deterTwined by such Merchant, and MasterCard
accepts no liability whatsoeve^ in connection with
such products and services. "
connection with the communication of offers to
(a) ' The Merchant shall not endorse or pennit any
direct references in connection with the
Promotion, or in any marketing matcrials,
advertisements, commercials or press releases,
websites and other communications channels
pertaining to the Promotion, to any payment
system organisation other than MasterCard for
the duration of the Promotion.
(b) The Merchant shall not offer the Promotion to
cardholders of any Cards other than MasterCard
Cards.
(c) Thc MCI'chant must obtain MasterCard Australia's
consent in writing prior to making any references
to MasterCard in any of its advertisements and
other marketing matcrials relating to the
Promotion.
(d) The Merchant will ensure all appropriate sales and
customer service personnel at each Merchant
Outlet (where applicable) are trained in procedures
to comply with thc Mcrchants obligations under
this Agreement. The Merchant undertakes to
procure that all such personnel will abide by and be
bound by the terms of this Agreement as if they
were the Merchant.
(6) The Merchant shall ensure that all appropriate sales
and customer service personnel at each Merchant
Outlet (where applicable) are familiar with the
terms of the Promotion and the offer. to be made to
MasterCard cardholders.
^ The Merchant shall ensure that branding and any
point-Of-Sale (POS) merchant collaterals relating to
other payment system organisations and/or nonMaster Card branded payment products shall not be
displayed by the Merchant in a manner giving them
co The Merchant must maintain insurance, at its own
expense, to cover any and all potential losses and
liabilities whicli may arise from the operations
carried on under this Agreement including, without
limitation, from claims of any nature made by any
person for damage to property or personal injury or
death. The Merchant will provide evidence of such
insurance if requested by MasterCard.
O) It shall be the responsibility of the-Merchant to
obtain all necessary permits, approvals and/or
licences and any other required approvals from the
respective government/statutory authorities or third
parties for the smooth conduct of the Promotion
and the performance of its obligations under this
Agreement. Without limiting the foregoing, the
Merchant shall be responsible for filing any third
line forcing notifications to the Australian
Competition and Consumer Commission for any
Offers that are offer'ed by the Merchant, or its
agent, exclusively to MasterCard cardholders.
3. Confidentiality and privacy
(a) MasterCard Australia and the Merchant agrce that
the tenns of this Agreement including without
limitation any amount payable by MasterCard
Australia to Merchant are confidential and shall not
be disclosed to any third party other than as
mutually agreed by the parties in writing. This
clause shall survive the termination or expiry of
this Agreement.
(b) To the extent Merchant collects or uses personal
information about an identifiable individual
("Personal Information") from or in relation to a
MasterCard cardholder or from or on behalf of
MasterCard Australia, it must collect and handle
this information in accordance with MasterCard's
1649332-vl\SVDDMS\AUSAOM
Privacy Policy (as amended from time to time),
any directions of MasterCard, and any applicable
privacy legislation.
The MeIchant must immediately inform
Master Card of (i) any complaint it receives in
relation to the handling of such Personal
Information; and (i) any breach or potential breach
of the Merchants privacy obligations in this
Agreement, and will coopemte with MasterCard
and comply with Master Card's directions in
relation to responding to and managing any such
complaint, breach or potential brcach.
4. Term of Agreement
Maestro, Mondex or Cirrus as provided to Merchant
by Master Card Australia. Except where otherwise
provided in this Agreement, the Merchant shall not
use the name "MasterCard", "Master" or any other
trade name, trade mark, service mark, logo, symbol
or other intellectual properly of Master Card witliout
the prior approval of MasterCard Australia in
writing. All intellectual property of MasterCard in
the possession of the Merchant shall be either
destroyed or returned (if requested by MasterCard)
promptly after expiration or earlier termination of
the Promotion. Subject to the limited use rights
granted to the Merchant in respect of MasterCard's
trade marks under this Agreement, all powers that
would be conferred on authorised users by section
26 of the Australian 71. @de A10, .kg Zel 1995 are
Unless the Ageement is terminated earlier in accordance
with clause 8, this Agreement shall be effective from the
date of execution of this Agreement, and shall rcmain in
force for a period of 12 months ("nitial Term"). After
the Initial Term the Agreement will automatically renew
for a further 12 months unless either party gives notice to
the other of its intention to teaminate the Agreement 30
days prior to the end of themitialTerm.
5. Trademarl, s and Copyright Information
(a) For the purpose of this Clause 5(a) "Promotion
Marks" shall mean the logos, marks and designs of
the Merchant applicable to the Promotion. The
Merchant hereby grants, or shall procure the grant,
to MasterCard of the right and licence to use on a
royalty frce basis the Promotion Marks (including
but not limited to the use of the Promotion Marks for
activities, promotions, marketing or other events
conducted, organiscd or promoted by MasterCard or
in which MasterCard participates) furnished to
Master Card by the Merchant in relation to the
Promotion for the duration of this Agreement in
accordance with the terms or this Agreement.
expressly excluded.
(d) All trade marks, photographs, transparencies and
similar production material relating to the Promotion
produced by Master Card hereunder shall be the
exclusive property of Master Card apart from the
intellectual property of the Merchant. All
intellectual property of the Merchant including
without limitation the logo, trade marks and
tradenames and their reproductions shall be the
exclusive property of the Merchant and shall be,
either destroyed or Tclumcd (if requested by
Merchant) promptly after expiration or earlier
termination of the Promotion.
6. Legal Riglits
(a) Master Card Australia and the Merchant warrant and
represent that they have the right and authority to
enter into this Agreement and their performance of
their obligations under this Agreement shall not
conflict with the rights granted to any party under
any other agreement.
(b) Subject to the indemnity provided by Master Card
(b) The Merchant further hereby grants, and shall
procure the grant, to each MasterCard issuer bank
the right and licence to use on a royalty free basis
the Promotion Marks (including but not limited to
the use of the Promotion Marks for activities,
promotions, marketing or other events conducted,
organised or promoted by the relevant issuer bank or
in which the relevant issuer bank participates)
furnished to MasterCard by the Merchant in relation
to the Promotion for the duration of this Agreement
in accordance with the terms of this Agreement. For
thc purposc of this clause, the parties agree that
MasterCard Australia shall store the Promotion
Marks furnished by the Merchant in an image library
within a secured website that is accessible by
merchants or issuer banks, as applicable, via a
secured password.
Australia for IP Claims under clause 9 of this
Agreement, Merchant is responsible for compliance
of the Promotion, including without linttation all
advertising and promotional materials, with all
applicable laws including without limitation
providing any notifications required to regulatory
authoritics.
(0) Each party will conduct all activities and perform all
its obligations under this Agrccmcnt in full
compliance with all applicable laws and regulations.
(d) This Agreement will be governed by the laws of
New South Wales, Australia and the parties agree to
submit to the nori-exclusive jurisdiction of the courts
of New South Wales.
7. Responsibility
(c) Subject to the prior written approval of Master Card
and for the purpose of the Promotion only, Merchant
shall be granted the right and licence to use on a
royalty free basis the trade names, trade marks,
service marks, logos, symbols and other intellectual
property of MasterCard, including without limitation
1649332-vl\SYDDMS\AUSAOM
It is hereby agreed and acknowledged by the parties that:
(a) neither MasterCard Australia nor any, member of the
Master Card Group assume any responsibility for the
products or services purchased by cardholders to
enter into the Promotion. The products and services
are sold or licensed or provided solely by the
Merchant, its affiliates, agents or sub-contractors
under such terms and conditions as determined by
such vendors, and no member of the Master Card
Group accepts any liability whatsoever in
connection with the products and services; and
B. the In doinnified Party provides such
information, assistance and
co-
operation as the Indemnifying Party
may request from time to time in
relation to the IP Claim;
C. The Indemnifying Pal'ty will have
full and sole discretion to defend,
compromise or settle any such IP
(b) thc products and services purchased by cardholders
to enter the Promotion have not been certified by
any member of the MasterCard Group or tested for
certification purposes by any member of the
Master Card Group and under no circumstances shall
the inclusion of any product or service in the
Promotion be construed as an endorsement or
recommendation of such product or service by any
member of the MasterCard Group.
8. Termination
Either party may terminate the Agreement at any time by
written notice to the other party with immediate effect
from that or any later date that the notifying party may
nominate in the event that . (a) the other party has
breached any material term of this Agreement and has
not remedied such breach within 14 days after written
notice from the notifying party specifying the breach; or
(b) the other party is unable to pay any of its debts as
they fall due, commences negotiations with its creditors
with a view to an adjusiment of its debts or any step is
taken or proceedings commenced for its winding up,
liquidation, rcccivership, administration or protection or
relief nom creditors or any distress or execution on its
property. Termination in accordance with this clause 8
shall be without prejudice to the parties' accrued rights
and liabilities arising under the Agreement, including for
reac .
9. Indemnity and Limitation of Liability
(a) Indemnification
Claim on such terms as the
Indemnifying Party thinks fit (and the
Indemnified Party must not defend,
compromise or settle any claim on
th* Indemnifyi"g Party's behalf
without the Indemnifying Panty's
written consent); and
D. The hadeiriintying Party will have no
liability to indemnify or defend any
IP Claim if the Indcmnificd Party
modifies the intellectual property of
the Indemnifying Party.
If an IP Claim is made against the
hidernnified Party, the Indemnifying
Party will (at the Indemnify ing Party's
sole option) endeavour to:
A. obtain for the Indelnnified Party the
right to continue to use the leievant
intellectual property of the
Indemnifying Party; or
B. replace or modify the relevant
intellectual property of the
Indemnifying Party to make it noriinfringing; or
C. if neither A nor B is possible, either
party .may terminate this Agreement
on written noti6e~t6~the other party.
) Clauses 9(a)(i) and (ii) state the entire
liability of the Indemnifying Party and the
solo and cxclusivc rcmcdics of the
Indemnified
tlie
party against
co Each party ("Indemnifying Party") agrees to
defend, indemnify and hold the other party and,
where the Merchant is the Indemnifying Party,
) Merchant agrees to defend, indemnify and
MasterCard AUStraluls Related Bodies
hold MasterCard Australia, its directors,
Corporate and MasterCard issuer banks
('Tndemnified Party") harmless from and
against any damages awarded against the
In denmified Party and any liability under any
settlement of any claim negotiated in
accordancc with this clause (including
reasonable legal fees and expenses) as a result
of any claims ("IP Claims") by third parties
that the use by the In delnnificd Party of any
intellectual property of the Indemnifying Party
in accordance with this Agreement infringes
any intellectual property rights of those third
parties, provided that:
A. the hidernnthed Party promptly
notifies the Indemnifying Party in
writing after the In delnnified Party
first learns of the IP Claim;
1649332-vl\SVDDMS\AUSAOM
Indemnifying Party for IP Claims.
officers, employees, agents and
MasterCard issuer banks harmless from
and against any and all liabilities, claims,
suits, damages, judgments, costs and
expenses (including reasonable legal fees
and expenses) arising out o^ or in
connection with:
A. Merchant's breach of this
Ageement;
B. any act or omission of the Merchant
which leads in any way to damage to
MasterCard's brand image and/or
reputation; and
C. the activities of the Merchant
relating to this Agreement or the
Promotion, including, without
limitation, any claims rclating to
Merchant's fulfillment of (or failure
,
to fulfill) any order or the quality,
legitimacy, or legality of any
Promotion, product or service, any
product liability claim, and any
cardholder dispute concerning any
matter, cause or thing relating to this
Agreement or the Promotion(s).
(b) Liability Limitation
Other than in respect of the obligations in clause 3
and the indemnities in clauses 9(a)(i), 9(a)(iv)(B)
and 9(a)(iv)(C), to the extent permitted by law, in no
event will either party to this Agreement be liable to
the other party for incidental, consequential,
punitive, special or remote damages, or for any loss
of profit, loss of business or loss of business
opportunity, regardless of the form of action,
whether in contract, statutory warranty, tort
(including negligence), unjust. enrichment, under an
indemnity or otherwise, even if foreseeable and/or
advised in advance of the possibility of such
damages. Subject to each party's indemnification
obligations dcscribcd above, in no event will either
party be liable to the other party for acts or
omissions of third parties (other than its officers,
employccs, contractors or agcnts) including, but not
limited to, MasterCard issuer balks.
(c) This clause 9 shall survive the termination or expiry
of this Agreement
10. Miscellaneous
(a) Should any clause of this Agreement be found to be
invalid or unenforceable it shall not affect the other
clauses~of this'Agreement and^rich^Iause~(or~part
thereof) shall be deemed severed from this
Agreement and the other clauses hereof shall remain
in full force and effect as if this Agreement had been
executed without the offending clause appearing.
1649332-vl\SinDMS\AUSAOM
(by The Merchant shall be liable for all taxes which
might be payable in respect of the payments by
MasterCard Australia under this Agreement.
(c) The Merchant shall not assign, transfer or charge or
purport to assign, transfer or charge this Agreement
or any of its rights or obligations thereunder or any
part thereof without the prior express written
consent of MasterCard Australia. MasterCard
Australia may assign its rights or obligations under
this Agreement or any part thereof to any of its
affiliates or Related Bodies Corporate (the consent
of the Merchant to such transfer being hereby
irrevocably given).
(d) No amendment to this Agreement, for whatever
reason, shall be of any force or effect, 11nless it is
reduced to writing with reference to this Agreement
and signed by a duly authorised officer or
representative of each of the parties.
(e) Nl notices required or authorised by this Agreement
are to be in writing in the English language and are
to be delivered by either party to the other by hand
or by registei'ed post to such address as the parties
may inform each other from time to time in
accordance with this section. Notices delivered by
hand will be deemed given upon hand delivery.
Notices delivered by registered post will be deemed
given on the fifth working day after' the envelope
containing the same was posted.
(f) Nothing in this Agrccmcnt shall constitute or to
deemed to constitute a partnership between the
parties or render the other the agent of the other for
any purpose whatsocvcr. NGithcr party shall have
anIhorliy~o1 power to~bind the other 10 contract or
create a liability against the other in any way.
(g) This Agreement constitutes the entire ageement of
the parties and supersedes in all respects any and all
prior oral or written agreements or understandings
pertaining to the subject matter hereof.
Annexure I
Offers
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Smiths Boat Shed
The Spit Bridge
MOSman
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NSW
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0299604389
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info@sydneyharbourkayaks. coin. au
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I) Tell us about your brand/product
2)~Flow did your brand^^t start^d
Sydney Harbour Kayaks has been renting & selling kayaks,
teaching kayaking and guiding tours around Middle Harbour
from the Spit Bridge since 1991. . Their backyard is the
beautiful Middle Harbour and lessons are their speciality
teaching from beginners through to Professional level. We
take great pride in our kayak rental fleet and kayaking tours
and aim to offer the best possible experience. The kayak tours
are a lot of fun and offer a wholesome day out on the water,
exploring Sydney from a whole new perspective.
OFE R DETAIL
ISPeclco reltedlnformatlo, pleasel t co $u errleva tpoltsregadlng
the fun
I) Tell us what you're locally famous for?
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on?
3) What's the experience that consumers have as a part of the
offer you've developed?
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4) What is the exclusive/priceless element about this offer?
Discover Sydney Harbour from a different perspective - take
the family on a day of discovery to the secluded beaches,
whilst kayaking and picnicking on the Sydney harbour.
Discover Sydney's Middle Harbour with a private 2.5 hour tour
with professional guide at an exclusive price just for
MasterCard customers. Including delicious morning or
afternoon tea and snacks on a secluded beach. The kayaks
used are all top end/ light weight composite sea kayaks.
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. If paddling with children, please read our paddling
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. Bad weather policy
I. Sydney Harbour 1<ayal<s reserves all lights to cancel or
reschedLile the activity in the event of adverse weat heI'
conditions or other Lintoreseen circumstances.
2. All participants that bool<ed directly through Sydney
Hai'bow' 1<ayal<s will be given a refuncl or a credit in this
situation.
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5. ToLirs and rentals can be ti'ansferi'ed to another person or
family Inembei'.
Cancellation Policy
I. All I>articipants need to read and agi'ee to the Indemnity
form prioi' to each tour or lesson.
2.1f You would like to transfer o1' postpone Your booking
after 5 p. in. on the previous day or on the day of the tour or
lesson a $25.00 administration fee will be cliai. ged.
3. No refunds will be given toI' cancellations after 5 pin. on
the revious da or on the da of the tour.
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. Click on Call to Action
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. Customer speaks to Sydney Harbour Kayaks
representative and mentions Priceless Sydney offer
. Customer books their private tour and pays on
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. Customer arrives at Sydney Harbour Kayaks on their
reserved date
. Customer enjoys private tour of private beaches and
locally known treasures
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3) Tell us about your brand/product
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Sydney Harbour Kayaks has been renting & selling kayaks,
teaching kayaking and guiding tours around Middle Harbour
from the Spit Bridge since 1991. Their backyard is the
beautiful Middle Harbour and lessons are their speciality
teaching from beginners through to Professional level. We
take great pride in our kayak rental fleet and kayaking tours
and aim to offer the best possible experience. The kayak tours
are a lot of fun and offer a wholesome day out on the water,
exploring Sydney from a whole new perspective.
O FER D ^
( pecMc off rel ted In or adon, ease 11st al consume rele ant points regardl
the ffer)
I) Tell us what you're locally famous for?
2) Do you have any unique selling points You -can give detail
on?
3) What's the experience that consumers have as a part of the
offer you've developed?
4) What is the exclusive/priceless element about this offer?
A family day of exercising the local's favourite way - sea
1649332-vl\SYDDMS\AUSAOM
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kayaking on the harbour at The Spit, head toward Grotto Point
and Middle Head, or adventure into the beautiful Garigal
National Park, giving you a taste of the life around one of
Sydney's wonderful Iy secret waterways. This is a great day out
for groups of friends too.
MasterCard Cardholders can Rent a Kayak for 3 Hours and
receive a FREE upgrade to a top end Composite Sea kayak &
Paddle. You will also receive a complimentary water proof
Camera Rental to capture the day
W AT Is THE EXCLUSIVE E^EMEN To MAST^ OARD?
I I ele ant ab ut the o er I^ exclusi e to Mast IC Jd co dhdd rs?)
Complimentary Upgrade - Complimentary waterproof camera
rental
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. Offers are subject to merchant terms and conditions.
. Offer subject to availability.
Bad weather policy
I. Sydney Harbour 1< ayal<s reserves all rights to cancel or
reschedule the activity in the event of adverse weather
conditions or othei' Linfoi'eseen circumstances,
2. All participants titat bool<ed directly through Sydney
1.1ai'bour Kayaks will be given a refund or a credit in this
situation.
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If addlin with children please read our paddling
with children policy prior to booking -
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4.1f it is raining on the day of the tour or rental, we will
not necessarily cancel the tour or rental (we can provide
you with a rain jacket),
5. Tours ancl rentals can be transferred to another person
or fainily member.
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Cancellation Policy
I. All participants Ileed to read anti agree to the
Indemnity form prior to each toui' or lesson.
2.1f you would like to transfer or postpone Your booking
after 5 p. in. o11 the previous day or on the day of the tour
or lesson a $25.00 administration fee will lie cliargecl,
3. No refunds will lie given for cancellations after 5 p. in.
on the previous day or on the day of the tour.
I st uetions on how to
Redee e
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Priceless Site
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Sydney Harbour Kayaks
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. Priceless Offer Detail page
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I 1. '
. Click on Call to Action
action
. Customer speaks to Sydney Harbour Kayaks
representative and mentions Priceless Sydney offer
. Customer books their kayaks for the family and pays
on MasterCard
. Customer arrives at Sydney Harbour Kayaks on their
reserved date
. Customer enjoys kayaking with the family
C " o ctio Opton
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,aq 10
Notification of Third Line Forcing Arrangements
Below is an overview of the process for filing a third line forcing notification. This is provided for
guidance only. The merchant is responsible for making its own enquiries about when a
notification is required and the process that must be followed to file a notification.
What is third line forcing?
Third line forcing occurs when a merchant provides a promotional offer exclusively to
MasterCard cardholders.
A merchant will engage in third line forcing conduct if it
. (a) supplies (or offers to supply) goods or services, or (b) supplies (or offers to supply)
goods or services at a particular price, or (c) gives a discount (or allowance, rebate or credit)
on a supply or proposed supply of goods or services, to a consumer
on the condition that the consumer will acquire other specific goods or services directly or
indirectly from another person.
A merchant will also engage in third line forcing conduct if it refuses to:
. (a) supply goods or services, or (b) supply goods or services at a particular price, or (c) give
a discount (or allowance, rebate or credit) on the supply of goods or services, to a consumer
because the consumer has not acquired or agreed to acquire other specific goods or
services directly or indirectly from another person.
For example, it is third line forcing if a merchant offers to provide a product/service to a
consumer, or give the consumer a discount on a producVservice, only if that consumer has
acquired a MasterCard credit or debit card from the cardholder's issuing bank.
These kinds of arrangement are a form of 'exclusive dealing' and are illegal in Australia
regardless of their effect on competition or their intended purpose.
Australian Competition & Consumer Commission ("ACCC")
The ACCC is the statutory body responsible for prosecuting people and organisations that
breach Australia's competition laws. For a corporation, the maximum penalty which the ACCC
can impose for a breach is the higher of $10 million, three times the value of the benefit, or 10
% of annual turnover.
Notification
The ACCC can grant immunity from legal action for exclusive dealing conduct in certain
circumstances. One way to obtain immunity is to notify the details of the proposed arrangement
to the ACCC. This must be done by following the ACCC's exclusive dealing notification
process.
The notification must be lodged by the party engaging in the third line forcing conduct (that is,
by the merchant).
The ACCC has published guidelines on its exclusive dealing notification procedure (click here).
Required form
1608937-v3\SYDDMS\AUSAOM
To lodge a notification, the merchant must complete the ACCC's Form G (click here) providing
all the required information and send this to the ACCC along with the required lodgement fee.
The fee is currently $1 00.
The form requires the merchant to provide the following key information:
Details of the merchant, including a short description of the business carried on by the
merchant;
Details of the proposed arrangement, including a description of the goods and services
that relate to the arrangement. If a merchant is making more than one promotional offer
exclusively to MasterCard cardholders, the merchant must describe each offer;
The persons, or classes of persons, affected or likely to be affected by the notified
conduct;
.
The benefit which the merchant claims the proposed arrangement will have to the public;
.
A description of the market(s) affected by the proposed arrangement; and
.
A description of any detriment to the public resulting or likely resulting from the
notification.
Once lodged, the notification will be publicly available.
How to lodge
Exclusive dealing notifications can be lodged at any ACCC office by mail or in person.
However, the ACCC encourages notifications to be lodged at its national office in Canberra,
addressed to:
The General Manager
Adjudication Branch
Australian Competition and Consumer Commission
GPO Box 3131
Canberra ACT 2601
Notifications can also be lodged by email to adjudication@accc. gov. au or faxed to (02) 6243
I211.
The ACCC prefers 10dgment fees for notifications to be paid by cheque. Notifications lodged by
email or fax should be accompanied by a covering letter including details of how and when the
10dgment fee will be paid. A notification is not considered valid until the 10dgment fee is
received by the ACCC.
Clearance
The ACCC applies a "net public benefit" test to determine whether to allow immunity from
prosecution. Immunity is automatically granted 14 days from the date of lodgement unless the
ACCC notifies the merchant otherwise within the I4-day period.
This means the merchant must lodge the notification at least ,.^;.^!^y^ prior to engaging in
the third line forcing conduct.
The immunity afforded by a third line forcing notification will only extend to the conduct
described in the notification (and will not extend to any conduct engaged in before immunity was
granted). The ACCC may remove the immunity at any time. It will provide notice to the parties
and have a pre-decision conference before removing immunity.
1608937-v3\SYDDMS\AUSAOM