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Terms & Conditions

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Terms & Conditions

CUSTOMERMERCHANT

The following terms and conditions (Agreement) set out the agreement between Simple Pre-Ordering Solutions Limited and you.

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 our Platforms. You must ensure that you have read, understood and agree to the terms in this Agreement. You agree that your continued use of our Platforms represents your agreement to be bound by the most recent terms.

If you agree to the terms and conditions set out in this Agreement, click “I ACCEPT” to indicate your acceptance of these terms and conditions. If you do not agree to all of the terms and conditions in this Agreement, you must not continue to use our Platforms.

Introduction

A. We operate a food and beverage pre-ordering service through our mobile application “On the Go”, which provides you with a platform to promote your food and/or beverage products to Customers.

B. You are a supplier of food and/or beverage products and are willing to sell those products to Customers, through the App.

C. If you sell products through the App, we will act as an agent for you to facilitate the sale, and collect payments from Customers.

It is agreed

1.          Definitions

1.1. In this Agreement:

Access Details has the meaning given in clause 5.3(b);

Administration System means the online system made available to you for the administration and management of your Merchant Details, Profile and the sale of your products through the App;

Advertising Material means any content we require to facilitate our promotion of your business and products on the App, which may include photographs, designs, graphics, video, sound recordings and text;  

App means our On the Go mobile application software;

Contact Person means your staff member who is designated as your contact person;  

Customer means any customer and user of the App;

Intellectual Property Rights means any patent, trademark, service mark, copyright, moral rights, right in a design, know-how, confidential information and all or any other intellectual or industrial property rights, whether or not registered;

Menu means a list of products for sale by you and their corresponding retail prices;

Merchant Details has the meaning given in clause 3.1;  

Order means an order for your products made by a Customer using the App;

Platforms means the App and the Administration System;  

Profile means your profile page on the App that displays your Profile Information, through which Customers can purchase products from you;

Profile Information has the meaning given in clause 3.2;

Purchase Price has the meaning given in clause 4.1;

Transaction Fee means the fee payable by you for each Order placed by a Customer, as set out here at www.onthegoapp.co.nz/pricing ;

User-Generated Content means any content posted on or via our Platforms that is generated by you, and includes Profile Information;

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 are a reference to Simple Pre-Ordering Solutions Limited;

Working Day means a day (other than Saturday, Sunday or a public holiday) on which registered banks are open for business in Auckland; and

you and your are a reference to you, the business that registers with us as a merchant

2.0. Nature of the Platforms

2.1. You will offer for sale certain food and/or beverage products to Customers through your Profile on the App. For more information about what products are acceptable please visit our Merchant Information page at www.onthegoapp.co.nz/merchant .

2.2. The parties acknowledge that, at all times, we will act as agent for you in promoting your Profile and establishing Orders. Once an Order is placed by a Customer, a contract for the sale of the products will be formed between you and that Customer. We do not participate in any provision of goods or any other agreements between you and the Customer.

3.0 Registration

3.1. When you register an account, you will be asked to provide us with certain information about your business including your name, address, contact details, designated bank account details and information about your Contact Person such as their position, name and phone number (together, Merchant Details). We may, either during or after your registration, request further information from you. Your Merchant Details will not be made available to any Customers except to the extent required to process an Order placed by the relevant Customer.

3.2. When you create a Profile you will be asked to provide us with certain information and materials, including your name, contact details, geographic location, opening hours, website (if any), Advertising Material, and Menu (together Profile Information). If you wish to add, amend or delete your Profile Information after it is published you may do so at any point through our Administration System and any such changes will be incorporated into your Profile Information.

3.3. We may at any time monitor and review your Profile Information and in doing so we may:

(a) format material to ensure consistency and make any changes to the design of that material; and

(b) edit and/or refuse to publish any material on the Platforms without incurring any liability to you if we reasonably believe that the material may make us or you liable to any complaint, claim or proceedings by any third party.

Once published on our Platforms, your Profile Information will be available to all Customers, and all Customers will have the ability to place an Order with you.  

3.4. It is your responsibility to ensure that your Profile Information is always true, accurate and up-to-date and you must honour all Orders made according to, and in reliance of, your Profile Information.

4.0 Order Process

4.1. All Customers can access your Profile on the App, and when doing so they will be able to:

(a) select a product/s from your Menu;

(b) choose a collection time; and

(c) specify any other special requirements,

which together are included in the Order. Upon placing the Order, the Customer will pay us the price of the chosen products as stated on your Menu (Purchase Price) and a transaction fee as agreed between us and the Customer.

4.2. When a Customer places an Order, we will use reasonable endeavours to collect payment of the amounts due from the Customer using any payment method chosen by us. We will not be liable to you for any failure by us to collect payment from Customers where we have complied with this clause including where such failure arises out of or is in connection with insufficient funds or credit in the account chosen by the Customer for payment.

4.3. Once an Order is placed by a Customer we will, as soon as reasonably practicable after the Order is placed and payment by the Customer is confirmed, notify both you and the Customer of confirmation of the Order.

4.4. You will perform your obligations in fulfilling the Order in a professional manner with the objective of always providing excellent customer service to Customers, including promptly and efficiently:

(a) providing the relevant products to the Customer in accordance with the Order (including within any timeframes set out in the Order) and this Agreement;

(b) providing all necessary sales, service and support in respect of the relevant products;

(c) dealing with any complaint or dispute relating to an Order raised by a Customer; and

(d) complying with your obligations in accordance with the laws of New Zealand in respect of the provision of those products including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

4.5. In respect of each completed Order, we will pay you the Purchase Price less the Transaction Fee (Amount Payable) within 3 working days of an Order being placed. The Amount Payable will be paid by us into your designated bank account (as specified in your Merchant Details) through industry standard multiple encryption by a third party, and you may receive a daily notification by email recording each payment made.

4.6. You will immediately notify us if at any time you believe that you will not be able to carry out your obligations under an Order and the reason for such non-performance. For the avoidance of doubt, any notice given under this clause will not relieve you of the performance of your obligations under this Agreement.

5.0 Licence and Access

5.1. We grant you a non-exclusive, non-transferable, revocable right to access and use our Platforms for the term of this Agreement on a device that you own and/or control, all on the terms and conditions set out in this Agreement.

5.2. We will use reasonable endeavours to make our Platforms available to you on and subject to the terms of this Agreement.

5.3. You:

a) will be solely responsible for:

(i) procuring and maintaining your network connections and telecommunications links from the device you use to access our Platforms; 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;

(b) will keep any logins, passwords and registration codes (together, Access Details) that are required for your access to any part of the Platforms confidential and ensure you are the only person to access and use the Platforms through use of the Access Details;

(c) will use all reasonable endeavours to prevent any unauthorised access to, or use of, our Platforms and, in the event of any such unauthorised access or use, promptly notify us;

(d) are fully responsible for all activities that occur using your Access Details and you agree to immediately change your password in the event of any breach of security;  

(e) acknowledge and agree that we may disable your login or access to our Platforms if we discover that the Access Details have been provided to any third party;

(f) 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 our Platforms;

(g) will abide by the safety information, maintenance instructions or other relevant notices contained in the information that is included with our Platforms; and

(h) will comply with all applicable laws (including the Privacy Act 1993) and any third party terms you have agreed to (for example with your telecommunications service provider) with respect to your use of the Platforms.

5.4. 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 our Platforms 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 our Platforms;

(b) access our Platforms in order to build a product or service which is the same as or similar to the our Platforms or which otherwise competes with the Platforms;  

(c) use our Platforms, or any information obtained from our Platforms, for the purposes of circumventing or attempting to circumvent our Order process, including for the purpose of avoiding the obligation to pay fees relating to the Order;

(d) 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) our Platforms; or

(ii) our, or any third party’s, systems, networks or resources used in the provision of our Platforms; and

(e) access, store, distribute or transmit any Viruses through our Platforms, and we may, without liability to you, disable your access to our Platforms if you are in breach of this clause.

6.0 Changes to our platforms

6.1. You acknowledge that we may provide updates, upgrades, patches and other modifications to our Platforms (together Updates) that must be installed for you to continue to use our Platforms properly or at all. You may be required to install Updates to our Platforms or to update or upgrade the device you use to access our Platforms or the operating system running on that device in order to continue to use our Platforms.  Unless we specify otherwise, Updates will be provided at no cost.

6.2. Although we use reasonable endeavours to ensure that any Updates do not cause any problems in your use of our Platforms, our liability to you to the extent that problems arise from such Updates is limited in accordance with clause 10.  

6.3. We may at any time charge for use of our Platforms, and modify, discontinue or restrict access to our Platforms (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 our Platforms.

7.0 Information and Privacy

7.1. We collect your Merchant Details and Profile Information from you when you register with us and when you update any of those details. Other information we collect may include:

(a) location information, being information about the geolocation of the device you use to access our Platforms. If you do not want us to collect such location information you can turn off location information in your device settings;

(b) aggregate information, being information generated by our systems, which track traffic to the Platforms but do not personally identify you;

(c) cookie information, being information gathered from a “cookie” file relating to the computer or device you are accessing to use the Platforms, such as your IP address, PC platform (e.g. Windows or Mac), browser (e.g. Edge, Google Chrome or Safari, plus the version of the browser), and domain (whether you are accessing the Platforms from New Zealand or elsewhere); and

(d) mobile analytics, being mobile analytics software to allow us to better understand the functionality of the Platforms on your mobile device. This software may record information such as type of device you use to access and use the Platforms, the operating system, how often you use the Platforms, the events that occur within the Platforms, aggregated use and performance data. We do not link the information we store within the analytics software to any personally identifiable information.

7.2. 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 Platforms (whether as a going concern or otherwise); 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 write to us at our registered office address above or at info@onthegoapp.co.nz.

7.3. You acknowledge and agree that we may use your Personal Information for the purpose of:

(a) providing our Platforms to you and otherwise performing our obligations under this Agreement, which may include (without limitation) passing your Personal Information to an overseas data centre and outsourcing providers for the purpose of providing and/or maintaining the Platforms;

(b) ensuring that you are complying with the terms and conditions of this Agreement;

(c) improving or enhancing our Platforms;

(d) performing research and data analysis on an aggregated and anonymous basis; and

(e) marketing our own and third party products and services to you, where you have indicated, or otherwise agreed, that we may do so.

8.0 User Generated Content

8.1. You will not post on our Platforms any User Generated Content (including links to other content), or otherwise engage in any activity through our Platforms, 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 false, misleading, defamatory, inaccurate, abusive, pornographic, racially or ethnically objectionable in nature, or otherwise objectionable; or

(f) contains any Viruses.

8.2. 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 (acting reasonably) consider breaches the terms of this Agreement or is otherwise inappropriate.

8.3. Where you publish or upload User Generated Content on our Platforms, you are deemed to have granted us a non-exclusive, perpetual and worldwide licence to use such content on the Platforms. 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 8.3.

9.0 Intellectual Property Rights

9.1. You grant us a non-exclusive, royalty-free licence to use, copy, modify and publish your User-Generated Content for the purpose of fulfilling our obligations under this Agreement.

9.2. You warrant and represent to us that you have the right to grant the licence in clause 9.1, and that the granting of such licence does not breach any other agreement with, or any rights of, a third party.

9.3. You acknowledge that:

(a) all Intellectual Property Rights in the Platforms, and in any enhancements or modifications to the Platforms, including the design, layout, look and feel of the Platforms belong to us and/or our licensors; and

(b) all information generated by us about you and Customers and your or their use of the relevant Platforms will be owned by us,

and you will not contest or dispute such ownership rights.

10. Warranties and Liability

10.1. 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), our Platforms are provided on an “as is” basis and all representations, conditions or warranties in respect of our Platforms (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded.

10.2. In particular and without limiting clause 10.1, we do not warrant that:

(a) your use of, or access to, our Platforms will be uninterrupted or error-free;

(b) our Platforms will meet your requirements;

(c) our Platforms will operate on all types of devices;

(d) our Platforms will be secure or free from Viruses; or

(e) you will sell any minimum volume of products through the Platforms.

10.3. 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 our Platforms 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 will not exceed the amount of fees that you have paid us through Orders made using your Profile in the six months prior to the time the liability occurs.

10.4. You acknowledge that:

(a) any loss or damage incurred by a Customer in relation to an Order will not be recoverable from us but will be dealt with in accordance with the agreement between the Customer and you;

(b) you assume all risk when using our Platforms;  

(c) our Platforms 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.

10.5. You warrant that the Advertising Material and Profile do not mislead or deceive or are likely to mislead or deceive, or breach any other applicable law or industry code.

10.6. You will indemnify us against all costs, losses, expenses and damages incurred through any claims against us arising out of or on connection with:

(a) your use of our Platforms; or

(b) products provided by you to Customers pursuant to an Order.

10.7. Neither party will be liable to the other for any delays or non-performance of contractual obligation under this Agreement caused by reason of flood, earthquake, war or civil strife, hurricane, industrial disturbance, fire, lockout, epidemic, failure or delays of scheduled transportation facilities, or other acts of God or any law, order, decree, rule or regulation of any government authority or for any other reason whether of similar or dissimilar nature beyond the control of the parties (Force Majeure Event), provided that each party has taken all reasonable steps to minimise any loss, damage or delay resulting from a Force Majeure Event.

11. Termination

11.1. We may terminate this Agreement without notice if you breach any provision of this Agreement.

11.2. Either party may terminate this Agreement at any time by giving 10 Working Days’ prior written notice to the other party.

11.3. On termination of this Agreement:

(a) each party will continue to perform its obligations in respect of any Orders that have pick-up times after the date of termination; and

(b) you will cease to have any further rights under this Agreement except as otherwise stated in this Agreement.

12. General

12.1. We may, in our sole discretion, modify the content, lay-out and format of the Platforms from time to time without notifying you.

12.2. This Agreement constitutes the entire agreement between you and us in relation to the Platforms and supersedes any previous understanding or agreements on that subject matter.

12.3. 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.

12.4. A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.

12.5. 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.

12.6. 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 Platforms (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 Platforms represents your agreement to be bound by the most recent terms.  

12.7. 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.

12.8. This Agreement will be governed by and construed in accordance with the laws of New Zealand.

12.9. Should you wish to take any action against us in respect of the Platforms 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.