These terms and conditions (the Agreement) form the legal agreement between you (the user) and us (Simple Pre-Ordering Solutions Limited) that sets out both of our rights and obligations in relation to the “On the Go” Application (the App) and any data you provide to us through the App. Please read this Agreement carefully before downloading and using the App. By downloading and using the App you agree to follow and be bound by this Agreement. If you do not agree to all of the terms in this Agreement, you must not use the App.
This Agreement may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon us notifying you of the changes by email, or by posting the changes on the App (including by push notification). You must ensure that you have read, understood and agree to the terms and conditions in this Agreement. You agree that your continued use of the App represents your agreement to be bound by the most recent terms and conditions.
1.1. In this Agreement, unless the context otherwise requires:
Account means the online profile you have with us that is accessible via the App;
Account Information means your name, address, contact details and other information provided to us when you register, as may be updated by you from time to time;
Agreement means these terms and conditions;
App means the “On the Go” mobile application software, through which you can order Products from Stores;
Confirmed Order has the meaning given to it in clause 2.1;
Intellectual Property Rights means all intellectual property rights and includes any patents, registered designs, utility models, trade marks (including logos and trade names), domain names, copyright, circuit layouts, rights in computer software and databases, rights in inventions, ideas, know-how and trade secrets, image and personality rights (including all things recording that intellectual property), in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world and all rights to apply for any such rights;
Order has the meaning given to it in clause 2.1;
Products means the food, beverage and other products made available by Stores on the App;
Stores means participating retail stores at which you can order Products through the use of the App;
Total Price has the meaning given to it in clause 2.3;
Transaction Fee has the meaning given to it in clause 2.3(b);
Updates has the meaning given to it in clause 4.1;
Users means all other people that have downloaded and are using the App;
User Generated Content means any content posted on or via the App that is generated by you or other Users;
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, us and our refers to Simple Pre-Ordering Solutions Limited (Company No. 6169688); and
you and your refers to you, the individual that downloads the App for use on a mobile device that you own and/or control.
2.1. The App provides a service for you to pre-order Products from a chosen Store. To use the App and pre-order Products, you must:
(a) have downloaded the App to your mobile device from a participating online mobile application store;
(b) register an Account on the App and provide all required Account Information;
(c) select a Store from which you want to purchase Products;
(d) place an order by selecting the Products you wish to purchase from the selected Store, including the pick-up time for those products (Order);
(e) confirm and agree to the terms of the Order; and
(f) submit the Order when prompted by the App. Once submitted, the Order becomes a Confirmed Order.
2.2. After a Confirmed Order is submitted in accordance with the process in clause 2.1:
(a) we will confirm we have received your Confirmed Order through the App itself or by sending you a notification (including by email or push notification) (Confirmation);
(b) we will submit the Confirmed Order to the relevant Store for fulfilment;
(c) a contract will be formed between you and the Store directly. You acknowledge and agree that:
(i) the Store is the seller of the Products offered for sale through the App and is solely responsible for providing any Products you purchase and therefore we do not accept any liability for any part of your Confirmed Order not being fulfilled; and
(ii) we act as an agent for the Store in the sale and purchase of Products in a Confirmed Order and charge a Transaction Fee for facilitating the Confirmed Order;
(d) we will charge you the Total Price for the Confirmed Order using your specified payment method;
(e) you must go to the selected Store and collect your ordered Products by the time and at the location agreed to in your Confirmed Order;
(f) you cannot change or cancel your Confirmed Order and to the maximum extent permitted by law we are not obliged to give you a refund if you decide to change or cancel your Confirmed Order. If you wish to change or cancel your Confirmed Order then:
(i) it is your obligation to contact the relevant Store directly and ask to change or cancel your Confirmed Order;
(ii) the Store is under no obligation to allow the change or cancellation and any such change or cancellation is in the Store’s absolute discretion; and
(iii) if the Store acts in its discretion in allowing the change or cancellation then any associated refund is to be made by the Store directly through any refund payment options the Store chooses and is not made by or through us or the App; and
(g) if for any reason the Store has not received the Confirmed Order, then you need to show the Store your Confirmation for proof of your Confirmed Order so that the Store can fulfil the order accordingly.
2.3. The total price for an Order (Total Price) will be determined by the following, all of which will be clearly stated for you to read before you place an Order:
(a) the cost for the selected Products as stated by the selected Store (Product Price);
(b) a transaction fee to be paid to us as outlined in our pricing at www.onthegoapp.co.nz/pricing which is subject to change without notice (Transaction Fee); and
(c) any other costs related to the Order.
2.4 In relation to your payment details:
(a) we may store details of your payment method on the App and you authorise us to charge this payment method to pay for future Confirmed Orders;
(b) all payments will be processed through industry standard multiple encryption by a third party;
(c) if your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that we may use a secondary payment method in your Account, if available;
(d) fees paid by you are final and non-refundable, unless otherwise determined by us or to the extent required by law;
(e) notwithstanding any other clause, we may suspend and/or terminate your Account if your payment method information is expired or is otherwise invalid.
1.5. You acknowledge and agree that any pick-up time specified is an estimate only and is subject to change by the Store (acting reasonably).
(a) grant you a non-exclusive, non-transferable, revocable right to access and use the App for the term of this Agreement solely for your own personal, non-commercial use and on a device that you own and/or control, all on the terms and conditions set out in this Agreement;
(b) will use reasonable endeavours to make the App available to you on and subject to the terms of this Agreement;
(c) do not make any warranties or representations regarding the goods or services to be provided by the Stores, including but not limited to, availability and quality; and
(d) do not guarantee the App will be free from errors or that any errors will be corrected.
(a) acknowledge and agree that by submitting a Confirmed Order you are directly entering into a contract with the relevant Store;
(b) will be solely responsible for:
(i) procuring and maintaining your network connections and telecommunications links from the device you use to access the App, and all costs associated with such connections and links; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
(c) will keep any logins, passwords and registration codes (together, Access Details) that are required for your access your Account and/or use of any part of the App confidential and ensure you are the only person to access and use the App through use of the Access Details;
(d) will use all reasonable endeavours to prevent any unauthorised access to, or use of, the App and, in the event of any such unauthorised access or use, promptly notify us;
(e) are fully responsible for all activities that occur under your Account and agree to immediately change your password in the event of any breach of security;
(f) acknowledge and agree that we may disable your login Account or access to the App if we discover that the Access Details have been provided to any third party;
(g) will ensure that all information that you provide to us is true and correct and kept up to date for so long as you continue to use the App;
(h) will abide by the safety information, maintenance instructions or other relevant notices contained in the information that is included with the App; and
(i) will comply with all applicable laws and any third party terms you have agreed to (for example with your telecommunications service provider) with respect to your use of the App.
3.3. You will not:
(a) except as may be permitted by any applicable law which is incapable of exclusion by agreement between you and us:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the App in any form or media or by any means; or
(ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the App;
(b) access the App for the purpose of building a product or service which is the same as or similar to the App or which otherwise competes with the App;
(c) remove, disable, circumvent or attempt to undermine the integrity of any security or technical measures, including any digital rights management system or other content protection or features used by us, that control access to:
(i) the App; or
(ii) our, or any third party’s, systems, networks or resources used in the provision of the App; and
(d) access, store, distribute or transmit any Viruses through the App, and we may, without liability to you, disable your access to the App if you are in breach of this clause.
4.1. You acknowledge that we may provide updates, upgrades, patches and other modifications to the App (together Updates) that must be installed for you to continue to use the App properly or at all. You may be required to install Updates to the App or to update or upgrade the device you use to access the App or the operating system running on that device in order to continue to use the App. Unless we specify otherwise, Updates will be provided at no cost.
4.2. Although we use reasonable endeavours to ensure that any Updates to the App do not cause any problems in your use of the App, our liability to you to the extent that problems arise from such Updates is limited in accordance with clause 8.
4.3. We may at any time charge for use of the App, and modify, discontinue or restrict access to the App (or any part of it), temporarily or permanently with or without notice to you. To the extent permitted by law, you agree that we will not be liable to you or to any third party for any modification, discontinuance or restriction of the App.
5.1. We collect certain information from you as follows:
(a) we collect Account Information from you when you register an Account. If you register an Account using an account from an online social platform (for example Facebook), we will request your permission to access your basic information on that social media platform, such as your name, profile picture and friends.
(b) other information we collect may include (but is not limited to):
(i) Payment information: to process payments, we will require details of your payment method, information and billing information;
(ii) Location information: we may collect information about the geolocation of your device. If you do not want us to collect such location information you can turn off location information in your device settings, however this may affect certain functionality of the App; and
(iii) Mobile analytics: we may use mobile analytics software to allow us to better understand the functionality of the App on your mobile device. This software may record information such as type of device you use to access and use the App, the operating system, how often you use the App, the events that occur within the App, aggregated use and performance data. We do not link the information we store within the analytics software to any personally identifiable information.
5.2. In so far as any of the information you provide to us is “Personal Information” for the purposes of the Privacy Act 1993, we will comply with our obligations under the Privacy Act 1993 in respect of that Personal Information. You acknowledge and agree that we will be permitted to share or disclose your Personal Information:
(a) in accordance with the Privacy Act 1993, including without limitation where we believe on reasonable grounds that we are required to do so by law or that disclosure is necessary to facilitate the sale of the App (whether as a going concern or otherwise) or our shares to a third party; and
(b) as agreed by you under this Agreement.
If you have any questions in connection with our use of any Personal Information you have provided to us or you wish to access your Personal Information please contact us at email@example.com.
5.3. You acknowledge and agree that we may use your Personal Information for the purpose of:
(a) providing the App to you and otherwise performing our obligations under this Agreement. This may include (without limitation) passing your Personal Information to:
(i) Stores so that they can fulfil Confirmed Orders placed by you; and
(ii) overseas data centre and outsourcing providers for the purpose of providing and/or maintaining the App;
(b) ensuring that you are complying with the terms and conditions of this Agreement;
(c) improving or enhancing the App;
(d) performing research and data analysis on an aggregated and anonymous basis; and
marketing our own and third party products and services to you, where you have indicated, or otherwise agreed, that we may do so.
6.1. You will not post on the App, or transmit to other Users, any User Generated Content (including links to other content), or otherwise engage in any activity through the App, that:
(a) contains photographs or images of another person, unless you are that person’s parent, custodian or legal guardian;
(b) breaches the Intellectual Property Rights of any third party;
(c) uses another person’s personal information other than for the specific purposes that person’s personal information was provided to you for;
(d) implies that the User Generated Content is in any way endorsed or sponsored by us;
(e) is intended to harass, annoy, threaten or intimidate any other User;
(f) is false, misleading, defamatory, inaccurate, abusive, pornographic, racially or ethnically objectionable in nature, or otherwise objectionable; or
(g) contains any Viruses.
6.2. After a Confirmed Order has been placed, Users will have the option to place feedback on the Store (Feedback). Feedback must, without limiting clause 6.1:
(a) only be given in relation to a specific Confirmed Order;
(b) not contain offensive, defamatory, retaliatory or inappropriate language or content.
6.3. You acknowledge and agree that:
(a) we do not control, and therefore are not responsible for, any communication between you and any other User that may have been initiated as a result of use of the App; and
(b) the views expressed in User Generated Content may not be our views. While we will endeavour to monitor User Generated Content and exercise editorial control where possible, you acknowledge that you use and rely on the User Generated Content obtained through the App at your own risk.
6.4. We may at any time:
(a) refuse to post any User Generated Content; or
(b) edit or remove User Generated Content;
that we in our absolute discretion consider breaches the terms of this Agreement or is otherwise inappropriate for the App.
6.5. Where you publish or upload User Generated Content on the App, you are deemed to have granted us a non-exclusive, perpetual and worldwide licence to use such content on the App. You also warrant that any such User Generated Content does not infringe the Intellectual Property Rights of any person. You agree to indemnify us for all direct and indirect damages, losses and costs of any kind incurred or suffered by us as a result of or in connection with a breach of the warranty given by you in this clause 6.5.
7.1. You acknowledge and agree that we own all Intellectual Property Rights in and to the App. Except as expressly stated in this Agreement, this Agreement does not grant you any Intellectual Property Rights in or to, or any other rights or licences in respect of, the App.
7.2. We acknowledge and agree that, except for the rights you grant us to use your User Generated Content under this Agreement, you will own all rights, title and interest in and to all of your User Generated Content and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Generated Content.
8.1. You acknowledge that, except for those warranties or representations that cannot be excluded by law (including under the Consumer Guarantees Act 1993 and Fair Trading Act 1986), the App is provided on an “as is” basis and all representations, conditions or warranties in respect of the App (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded.
8.2. In particular and without limiting clause 8.1, we do not warrant that:
(a) your use of, or access to, the App will be uninterrupted or error-free;
(b) the App will meet your requirements;
(c) the App will operate on all types of devices; or
(d) the App will be secure or free from Viruses.
8.3. You agree that, to the maximum extent permitted by law, we will not be liable to you for any form of loss or damage or injury, regardless of cause or origin, on any basis whatsoever, (including but not limited to breach of contract, warranty, negligence, strict liability in tort or otherwise), arising out of or in connection with your use of the App or this Agreement. If, notwithstanding the foregoing, we have any liability to you for any form of loss or damage, then to the maximum extent permitted by law, our maximum aggregate liability to you for all claims under this Agreement will not exceed the total Transaction Fees paid by you in the three months prior to the time the liability arises.
8.4. You acknowledge that:
(a) you assume all risk when using the App, including (without limitation) all of the risks associated with purchasing Products from the Stores;
(b) we have no control over the accuracy, reliability, or completeness of User Generated Content and we make no representations or warranties as to such User Generated Content;
(c) the App may contain links to other mobile applications, websites and resources provided by third parties, and that these links are provided for your information only. We have no control over the content on those applications, websites or resources, and accept no responsibility for any loss or damage that may arise from your use of them; and
(d) we are not responsible for any and all problems, conditions, delays, delivery failures and all other loss or damage arising from, or relating to, your network connections or telecommunications links or caused by the internet.
8.5. You will indemnify us against all costs, losses, expenses and damages incurred through any claims against us resulting from your use of the App.
8.6. The exclusions and limitations of our liability to you set out in this clause 8 are subject to any rights you have under the Consumer Guarantees Act 1993 and Fair Trading Act 1986 that cannot be excluded by agreement between you and us.
9.1. We may terminate this Agreement and cancel, or suspend, your Account for any reason whatsoever, without limitation.
9.2. You may terminate this Agreement at any time by uninstalling and removing the App from the device(s) on which it is installed.
10.1. This clause 10 applies to you only if you use an Apple device (e.g.: iPhone, iPad, iPod Touch) to access the App. It does not apply to you if you do not use the App on an Apple device.
10.2. You and we both acknowledge and agree that:
(a) this Agreement is concluded solely between you and us, and not with Apple, and Apple is not responsible for the App and its content;
(b) any maintenance or support that may be offered by us in connection with the App is solely our responsibility and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
(c) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and request a refund of the purchase price (if any) you paid for the App through Apple’s App Store. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;
(d) Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App. In the event of any third party claim that the App or your possession and use of it infringes that third party’s intellectual property rights you should contact us as Apple will have no responsibility for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;
(e) Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary;
(f) except as provided in clause 10.2(c), any questions, complaints or claims with respect to the App should be directed to us at the following address:
10.3. You represent and warrant that you are not:
(a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(b) listed on any U.S. Government list of prohibited or restricted parties.
11.1. This Agreement constitutes the entire agreement between you and us in relation to the App and supersedes any previous understanding or agreements on that subject matter.
11.2. If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
11.3. A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
11.4. A party to this Agreement may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
11.5. This Agreement may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon notifying you of the changes via email, or by posting the changes on the App (including by push notification). You must ensure that you have read, understood and agree to the terms in this Agreement. You agree that your continued use of the App represents your agreement to be bound by the most recent terms.
11.6. You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
11.7. This Agreement will be governed by and construed in accordance with the laws of New Zealand.
11.8. Should you wish to take any action against us in respect of the App and/or this Agreement, you agree that any such action will be commenced only in the New Zealand courts, which courts will have exclusive jurisdiction over such actions and proceedings.