Terms of Trade - Chefs

  1. INTERPRETATION
    1. "Account" means your account established for the purpose of using the Services and the Platform;
    2. "Activation Fee" means the fee payable by you to HomeCuisine for the full activation of your Account;
    3. "Application" means your application to use the Services and the Platform offered by HomeCuisine;
    4. "Application Form" means the form submitted by you to HomeCuisine as part of your Application;
    5. "Chef" means you;
    6. "Chef Payment" means a payment made by HomeCuisine to a Chef pursuant to clause 7.4;
    7. "Claim" means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise finally determined in favour of a party by a court of competent jurisdiction or otherwise admitted by or agreed between you and HomeCuisine;
    8. "Delivery Partner" means the third-party delivery partner responsible for the delivery of an Order;
    9. "Delivery Region" means the geographic area served by the relevant Chef and a Delivery Partner;
    10. "Effective Date" means the date that you submit your Application Form to HomeCuisine as part of your Application;
    11. "Food Regulations" means all applicable food laws and regulations in New Zealand, and includes the Food Act 2014, the Food Regulations 2015 and the Australia New Zealand Food Standards Code;
    12. "GST" means goods and services tax chargeable in accordance with the Goods and Services Tax Act 1985, and includes, but is not limited to, any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of goods and services tax;
    13. "HomeCuisine", "we" or "us" refers to HomeCuisine Limited;
    14. "HomeCuisine Fee" means the fee payable by a Chef to HomeCuisine pursuant to clause 7.2;
    15. "Intellectual Property Rights" means any right, title or interest in any patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
    16. "Meal" means a meal available for order on the Platform by a Customer from a Chef, and which has been approved by HomeCuisine pursuant to clause 6.3;
    17. "Meal Payment" means the payment made by a Customer for a Meal and paid to HomeCuisine on your behalf;
    18. "Order" means an order for a Meal made by a Customer through the Platform;
    19. "Platform" has the meaning given to it at clause 5.1(b);
    20. "Price" means the price payable for a Meal as shown on the Platform and includes GST and all other applicable Taxes as required by law;
    21. "Privacy Policy" means HomeCuisine’s privacy policy, which may be updated by HomeCuisine from time to time and can be found at Privacy Policy
    22. "Refund Cost" has the meaning given to it at clause 6.10;
    23. "Services" means the services provided by HomeCuisine to you, as described at clause 5.1;
    24. "Taxes" means all forms of taxation, withholding, duties, dues, imposts, levies, rates or other statutory, governmental or local governmental impositions of whatever nature, imposed in New Zealand or elsewhere, including, income tax, withholding tax, approved issuer levy, fringe benefit tax, stamp duty, goods and services tax, gift duty, customs or excise duties, regional or local taxes, municipal taxes and accident compensation levies; and all interest, penalties or fines relating to, or arising in connection with, the imposition of non or late or under-payment of any such tax;
    25. "Term"has the meaning given to it at clause 4.1; and
    26. "Terms" means these terms which may be updated by HomeCuisine from time to time, and includes any document referred to in them.

  2. GENERAL
    1. Terms: these Terms govern the access or use by you of the Services and the Platform.
    2. Agreement to be bound: your access and use of the Services and/or the Platform constitutes your agreement to be bound by these Terms.
    3. Terms paramount: to the extent that there is a conflict between these Terms and any other document relating to the Services and/or the Platform, these Terms will prevail.
    4. Amendments to Terms: HomeCuisine may amend these Terms from time to time. Amendments to these Terms will be effective upon HomeCuisine’s posting of such updated Terms on HomeCuisine’s website. Your continued access to and/or use of the Services and the Platform after such posting constitutes your consent to be bound by the Terms, as amended.

  3. CONDITIONS
    1. Conditions: HomeCuisine will not provide the Services and access to the Platform to you unless you have satisfied all conditions contained in this clause 3.
    2. Condition to obtain a license, permit and/or registration to operate a food business: you must provide HomeCuisine with all valid and up-to-date licenses, permits and/or registrations as required by law to operate a food business, and to sell, and offer delivery of, food in the area in which you operate, including but not limited to, a national programme registration or food control plan with a delivery component.
    3. Condition to install and keep quality food preparation equipment and appliances: you must install and keep food preparation equipment and appliances (together, Appliances) to a reasonable standard, as set and determined by HomeCuisine in HomeCuisine’s sole discretion, and to any standard set out in any applicable laws.
    4. Condition to obtain insurance: you must obtain and maintain for the Term, at your own expense, insurance and insurance coverage with an insurer reasonably acceptable to HomeCuisine. The insurance may, by way of example, include coverage for the breakdown of Appliances (including all costs associated with the repair and/or replacement of Appliances). You must provide HomeCuisine with copies of the insurance policy(ies) and certificate(s) of currency, on request. HomeCuisine may, from time to time, and at HomeCuisine’s sole discretion, offer you a discounted rate for insurance cover.
    5. Condition to complete all onboarding requirements: you must provide all documents, payments and other information reasonably requested by HomeCuisine to satisfy your Application requirements and to enable HomeCuisine to onboard you to the Platform. For the avoidance of doubt, this includes payment of the Activation Fee.
    6. No right to receive Services and use the Platform: you have no right to:
      1. receive any Services; and/or:
      2. access and use the Platform,
      3. without prior written confirmation from HomeCuisine confirming that all conditions in this clause 3 have been satisfied.


  4. TERM
    1. Term: subject to clause 3.7 above, these Terms will continue from the Effective Date until terminated by you or HomeCuisine pursuant to clause 15.

  5. SERVICES
    1. Services: subject to you satisfying the conditions contained in clause 3 above, and during the Term, HomeCuisine will:
      1. provide lead generation services to you;
      2. grant you a license to use HomeCuisine’s tablet, mobile and web applications and other technology interfaces (the Platform);
      3. collect fees and other payments on your behalf and as collection agent for you arising in connection with Meals sold to Customers by you on the Platform;
      4. remit payments collected pursuant to clause 5.1(c) above net of any fees or deductions to your nominated bank account, less any Tax that HomeCuisine is liable to pay in respect of the payments;
      5. unless otherwise specified, and provided that you have supplied all relevant information to HomeCuisine, issue receipts and invoices to Customers on your behalf for Meals sold to Customers by you on the Platform;
      6. respond to Customer complaints and refund requests on your behalf about issues arising in connection with Meals sold to Customers by you on the Platform;
      7. process refunds to Customers and wholly or partially deduct refunds from Meal Payments owed to you;
      8. manage issues, complaints and any other activity associated with the processing of payments; and
      9. any other services or activities as described in these Terms or agreed from time to time (together, the Services).
    2. Reporting: for each relevant reporting period, HomeCuisine will provide the following information to you:
      1. information regarding the number of Meals sold by you to Customers on the Platform during the relevant reporting period; and
      2. information regarding any refunds given to your Customers, where the cost of such refunds were wholly or partially deducted from Chef Payments owed to you by HomeCuisine in the relevant reporting period (for the avoidance of doubt, such information will include the date of the transaction, the details of the Order and the reason for the refund).
    3. Availability of Meals on the Platform: you acknowledge that you must make your Meals available on the Platform as agreed between you and HomeCuisine, acting reasonably, from time to time.
    4. Promotion of Meals: HomeCuisine will display the availability of your Meals on the Platform to Customers in your Delivery Region unless otherwise set out in these Terms. You understand that:
      1. HomeCuisine is not obligated to display your Meals at all times, and is not obligated to display your Meals outside the Delivery Region for your location; and
      2. HomeCuisine may, but is not obligated to, promote your Meals in various ways, such as on HomeCuisine’s social media channels, websites, online and print advertisements, and via push notifications or emails.
    5. Your acknowledgements: you acknowledge and agree that:
      1. the Services and the Platform enable you to offer Meals on the Platform to Customers located in the Delivery Region for your location;
      2. HomeCuisine will use various methods from time to time, such as changes to the size of the Delivery Region for your location, to manage marketplace conditions, including supply and demand;
      3. HomeCuisine makes no guarantee in relation to the size of the Delivery Region for your location, the number of Meals you will sell on the Platform, the ability of Delivery Partners to undertake delivery in your location or the number, or geographic location, of Customers on the Platform that will see your Meals on the Platform; and
      4. HomeCuisine will retain sole and absolute control over the Platform, including with respect to:
        1. the personalization of the Platform for Customers;
        2. the prioritization and display of Meals available to Customers;
        3. the search functionality and Meal results provided to Customers; and
        4. adding, removing or otherwise modifying any feature or functionality made available through the Platform to optimize reliability or efficiency of the Platform for Customers;
      5. any materials provided to you by HomeCuisine in connection with the Platform, your use of the Platform and the Services provided by HomeCuisine are HomeCuisine’s confidential information; and
      6. if you are not satisfied with the Delivery Region for your location, changes to the Delivery Region or any other matter described in this clause 5.5 over time, you will contact HomeCuisine, and to use all reasonable endeavors to reach a resolution with HomeCuisine, prior to terminating these Terms pursuant to clause 15.

  6. YOUR ROLE AND RESPONSIBILITIES
    1. Relationship: by entering into these Terms, you acknowledge and agree that if you choose to offer Meals for delivery, HomeCuisine’s Delivery Partners will provide delivery services directly to the Customer, under separate terms with the Delivery Partner.
    2. Compliance with laws: you acknowledge and agree that it is your responsibility to ensure that you are, and remain for the duration of the Term, compliant with all legal requirements in connection with the operation of a food business, including, for the avoidance of doubt, ensuring that you are, and remain for the duration of the Term, compliant with the Food Regulations and with all health and safety laws.
    3. Meals must be approved by HomeCuisine: you acknowledge and agree that you will not offer a Meal for sale on the Platform until it has been approved by HomeCuisine. For the avoidance of doubt, any approval granted by HomeCuisine in respect of a Meal may be limited to a specific Chef or Delivery Region.
    4. Removal of Meals: HomeCuisine may remove Meals from the Platform for any reason, including if HomeCuisine determines that:
      1. the Meal has not been approved, or if HomeCuisine discovers that the Meal was approved in error;
      2. the Meal is inappropriate for sale on the Platform (an Inappropriate Meal). For the avoidance of doubt, Inappropriate Meals include animals of any size, illegal items, alcohol and pharmaceutical items (unless otherwise approved by HomeCuisine), dangerous items, stolen goods, or any other Meals that you do not have permission by HomeCuisine to sell; or
      3. the description of the Meals (including all allergen and dietary statements), or the photographs of the Meals, that you make available on the Platform are inaccurate and/or misleading to Customers.
    5. Quantity and Price of Meals: subject to clause 6.3 above, you are responsible for determining the quantity and type of the Meals you make available on the Platform, and will work with HomeCuisine to determine the Price for each Meal you make available on the Platform.
    6. Specific ingredients: HomeCuisine may, acting reasonably, and from time to time, require you to purchase from HomeCuisine, and to use in the preparation of a Meal for a Customer, a certain type and/or brand of ingredient (including, but not limited to, oils, flour, sugar and butter (each an Ingredient)). You acknowledge and agree that if you are requested by HomeCuisine to purchase, and to use, an Ingredient, you are responsible for ensuring that the Ingredient is used by you in the preparation of a Meal for a Customer. For the avoidance of doubt, HomeCuisine will provide you with the wholesale price list of Ingredients from time to time and reserves the right to update the list of Ingredients and price of Ingredients from time to time, acting reasonably.
    7. Quality of Meals: you are responsible for ensuring that your Meals are handled and prepared appropriately and are of a quality and quantity appropriate for sale on the Platform. This includes ensuring that your:
      1. Meals are packaged appropriately for delivery, including transport (as applicable); and
      2. the Meal is inappropriate for sale on the Platform (an Inappropriate Meal). For the avoidance of doubt, Inappropriate Meals include animals of any size, illegal items, alcohol and pharmaceutical items (unless otherwise approved by HomeCuisine), dangerous items, stolen goods, or any other Meals that you do not have permission by HomeCuisine to sell; or
      3. Meals, their handling and sale and all information you provide about them, including nutritional and other information (such as dietary and allergen information), comply with all laws (including the Food Regulations) and are accurate and not misleading.
    8. Determining criteria of Meals: without limiting clause 6.3 above, you acknowledge and agree that you are solely responsible for:
      1. determining the criteria that apply to your Meals, such as quality, portion, size, ingredients, and any other criteria;
      2. ensuring that your Meals meet those specified criteria; and
      3. ensuring that the description of your Meals, and any photographs of the Meals that you make available to Customers on the Platform are (and at all times continue to be) accurate and not misleading.
    9. Title: you acknowledge and agree that you maintain title to each Meal until such Meal is delivered to the Customer by the Delivery Partner or is otherwise picked-up by the Customer.
    10. Refunds: HomeCuisine will process refunds to your Customers in relation to issues arising in connection your Meals. You agree that:
      1. if HomeCuisine, acting reasonably, determines that you are responsible for the cost of a refund you will be responsible for the full cost of the refunded Meal, or partial costs if only part of the Meal was refunded (each a Refund Cost); and
      2. HomeCuisine may deduct Refund Costs from the Chef Payment owed to you under these Terms.
    11. Dispute of refund: if you believe that HomeCuisine has deducted a Refund Cost from you in error, you may dispute the deduction and report the issue to HomeCuisine. Following your dispute of a deduction, HomeCuisine will consider the dispute reasonably, taking into account any information provided by you. You will not be held responsible for the relevant Refund Cost if HomeCuisine decides, at HomeCuisine’s reasonable discretion, that you are not at fault.
    12. Changes to your location: you must tell HomeCuisine if you intend to change the location from where you make Meals available on the Platform. If you are changing your location, you must provide HomeCuisine with all licenses, permits, registrations and other documents and information as requested by HomeCuisine in relation to your new location. For the avoidance of doubt, you will not be permitted to receive the Services and use the Platform from your new location until HomeCuisine has approved, in writing, your ability to continue to operate from the new location.
    13. Licences, permits and/or registrations: without limiting any other part of these Terms, you acknowledge and agree that you will obtain and maintain all applicable licenses, permits and/or registrations, to enable you to sell, and offer for delivery from your location, Meals on the Platform. You must provide a copy of all relevant licenses, permits and/or registrations to HomeCuisine at the request of HomeCuisine. Such licenses include, but are not limited to, a national programme registration or food control plan with a delivery component.
    14. Change to licenses, permits and/or registrations: you must immediately notify HomeCuisine of any change or modification (e.g. expiration, revocation, renewal or termination) to any licenses, permits or registrations that you are required to provide to HomeCuisine under these Terms, and immediately provide HomeCuisine with any modified or updated licenses, permits and/or registrations.
    15. Failure to provide current licenses, permits and/or registrations: in the event that you fail to provide current licenses, permits and/or registrations to HomeCuisine, this will constitute a breach of these Terms, and HomeCuisine may suspend or terminate your Account in accordance with clause 15.
    16. Customer Feedback: after receiving an Order, your Customer may be prompted by the Platform to provide a rating of the Meal and any feedback related to you or that Meal (Customer Feedback).
    17. Sharing of Customer Feedback: HomeCuisine may display your Customer Feedback on HomeCuisine’s social media channels or website, for any purpose and without your prior approval.
    18. Monitoring Customer Feedback: you acknowledge that HomeCuisine are not publishers of the Customer Feedback but may edit or remove Customer Feedback in the event that the Customer Feedback includes obscenities or other objectionable content or violates any applicable laws.

  7. FEES AND PAYMENT
    1. Payment for Meals: you appoint HomeCuisine as your payment collection agent solely of the purpose of accepting payments for a Meal from your Customers and on your behalf (each a Meal Payment).
    2. Fee payable to HomeCuisine: in exchange for the Services and the use of the Platform, you agree to pay HomeCuisine a fee for each Meal ordered from you by a Customer on the Platform, calculated in accordance with clause 7.3 below (the HomeCuisine Fee).
    3. HomeCuisine Fee Calculation: the HomeCuisine Fee will be a percentage of the Meal Payment as agreed between you and HomeCuisine from time to time.
    4. Remittance of Meal Payment: HomeCuisine will remit to you the total Meal Payment earned by you, less:
      1. the HomeCuisine Fee as payable to HomeCuisine, in accordance with clause 7.2 above;
      2. Refund Costs, in accordance with clause 6.10 above; and
      3. any other amount that HomeCuisine is permitted to deduct from the Meal Payment in accordance with these Terms, or that HomeCuisine is required to deduct by law (such final remitted amount being the Chef Payment).
    5. Suspension of payment to you:in exceptional circumstances (as determined by HomeCuisine in HomeCuisine’s sole discretion, acting reasonably), HomeCuisine reserves the right to temporarily or permanently cancel or suspend a Chef Payment to you. For the avoidance of doubt, exceptional circumstances may include, but are not limited to, a breach of these Terms, any legal or regulatory risk or potential breach of law associated with the transfer of such payment to you, and any failure by you to provide documentation to HomeCuisine as required under these Terms.
    6. Payment processing errors: HomeCuisine reserves the right, in HomeCuisine’s sole discretion, to seek reimbursement from you if HomeCuisine discovers payment processing errors. In the event of a payment processing error, you agree that HomeCuisine may recover from you an amount equivalent to the error by either:
      1. deducting the applicable amount from your Chef Payments prior to remitting each Chef Payment to you;
      2. following your consent, which shall not be unreasonably withheld, debiting you card on file or your bank account on record; or
      3. seeking reimbursement of the applicable amount by any other lawful means.
      4. You expressly authorise HomeCuisine to use any or all of the above methods to seek reimbursement.

    7. Correct information:it is your responsibility to ensure that any card details or bank account information that you provide to HomeCuisine is and remains accurate.
    8. GST:in relation to the Meals sold to Customers by you on the Platform:
      1. you are the supplier of all Meals for GST purposes and the responsible party for collection and remittance of all applicable Taxes (including GST);
      2. the Price for each Meal must include GST, but you are solely responsible for determining all applicable Taxes and identifying and informing HomeCuisine of the appropriate tax amount for HomeCuisine to collect on your behalf from Meals sold by you on the Platform.
    9. Representations and warranties:you represent and warrant that you are:
      1. a resident in New Zealand for New Zealand income tax purposes; and
      2. registered for GST, and will remain registered for GST, at all times during the Term.
    10. Currency:all amounts paid under these Terms will be paid in New Zealand Dollars.

  8. INTELLECTUAL PROPERTY
    1. Ownership: HomeCuisine owns the Platform and all related materials and data (together, the Materials). This includes all Intellectual Property Rights in the Materials. The only rights that you have to the Materials are the rights as set out in these Terms.
    2. Restrictions:without limiting any other part of these Terms, you must not:
      1. copy, modify distribute, sell or lease any part of the Platform or any other Materials;
      2. reverse engineer or attempt to extract the source code of HomeCuisine’s software, the Platform or any other Materials; or
      3. improperly use the Platform, or any other Materials.
    3. Grant of license to use Platform:subject to your compliance with these Terms, HomeCuisine grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable and non-assignable license to access and use the Platform solely in connection with your use of the Services for the Term.
    4. No implied rights:all rights (including all Intellectual Property Rights) not granted to you by HomeCuisine under these Terms are expressly reserved.

  9. DEVICES
    1. Supply of device:if HomeCuisine supplies a tablet or other mobile device (each a Device) to you, you must ensure that the Device is:
      1. only used for the purpose of receiving the Services and using the Platform in accordance with these Terms; and
      2. not transferred, loaned, sold or otherwise provided in any manner to a third-party.
    2. Property of HomeCuisine: you acknowledge and agree that:
      1. any Device you receive from HomeCuisine remains the exclusive property of HomeCuisine at all times;
      2. you must return all Devices to HomeCuisine within 10 days following termination or expiry of these Terms;
      3. the loss or theft of a Device, the failure to return any Device within the required time period, or any damage to a Device outside of normal wear and tear (as determined by HomeCuisine, acting reasonably), will result in a damage fee (Damage Fee) payable by you to HomeCuisine; and
      4. to the extent that any Damage Fee is payable by you to HomeCuisine, HomeCuisine may invoice you for the Damage Fee and/or deduct the Damage Fee from your Chef Payments (in whole or in part).

  10. CONFIDENTIAL INFORMATION
    1. Confidentiality: each party to these Terms may not disclose the other party’s confidential information to any third-party, except as permitted by these Terms.
    2. Restrictions on disclosure:each party:
      1. may only use and disclose the other party’s confidential information to the extent necessary pursuant to these Terms; and
      2. must ensure that any third-party who receives confidential information of another party under these Terms maintains the confidentiality of that information.
    3. Permitted disclosure:nothing in this clause 10 prevents a party from using or disclosing another party’s confidential information to the extent that:
      1. the disclosing party has authorised the use or disclosure;
      2. disclosure of the confidential information is required by law or an order of a court; or
      3. the receiving party reasonably considers it necessary to disclose the confidential information to a third-party for the provision of legal, tax or financial advisory services.
    4. Return or destruction of confidential information: each party must, at the other party’s request, at the end of the Term or otherwise on termination of these Terms, return or destroy the requesting party’s confidential information, except where that party needs to retain that information for the purpose of complying with its obligations under these Terms, any law or any court order.

  11. PRIVACY
    1. Privacy Policy: our collection and use of personal information in connection with the Services is as set out our Privacy Policy.
    2. Compliance with privacy laws: you must comply with all privacy laws in connection with the Services and our use of the Platform under these Terms, including but not limited to, the Privacy Act 2020.
    3. Appropriate measures: you must maintain appropriate measures to protect the integrity, security and confidentiality of all personal information provided to you by a Customer and/or HomeCuisine.
    4. Responsibilities: without limiting the general obligation under clause 11.2 above:
      1. you must only use, disclose, store, retain or otherwise process personal data provided to you solely for the purpose of providing Meals to Customers on the Platform under these Terms;
      2. you are responsible for maintaining the accuracy and integrity of any personal data provided by Customers to you in relation to the provision of Orders, and the providing of Meals under these Terms;
      3. you agree that you may only use personal data provided to you by a Customer in connection with your use of the Platform and must not copy, store, retain or remove any personal data from the Platform or otherwise process the personal data;
      4. you must promptly tell HomeCuisine if you become aware of any actual or reasonably suspected unauthorized access, modification, use, disclosure, loss or of interference with personal data provided to you by a Customer; and
      5. you must promptly provide HomeCuisine with any information or assistance reasonably requested by HomeCuisine for the purposes of investigating and responding to any non-compliance.
    5. Indemnity: notwithstanding anything else in these Terms, you must, at your expense, defend, indemnify and hold harmless, HomeCuisine and its employees and agents, from and against any and all Claims, damages, losses and expenses (including reasonable legal fees) in connection with:
      1. any loss, unauthorized disclosure, theft or compromise of personal data by or from you; and
      2. any breach of and/or non-compliance with these Terms or where appropriate, any relevant privacy law,
      3. except to the extent the Claim, damage, loss or expense arose from, or was contributed to, by the negligence or willful misconduct of HomeCuisine.


  12. REPRESENTATIONS AND WARRANTIES
    1. Mutual representations and warranties: each party represents and warrants to the other throughout the Term that:
      1. authority: it has full power and authority to enter into these Terms and perform its obligations under these Terms;
      2. agreements: it has not entered into, and during the Term, will not enter into, any agreement that would prevent it from complying with these Terms;
      3. compliance with laws: it will comply with all applicable laws in its performance of these Terms; and
      4. no representations:except as required of a party under New Zealand consumer law, each party makes no representations and expressly disclaims all warranties, express or implied, regarding its goods or services or any portion of them, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Without limitation, HomeCuisine does not guarantee the availability of the Platform or that access or use of the Platform will be uninterrupted or error free. You acknowledge that the Platform may be unavailable due to scheduled maintenance or network failure or limitations, delays, and other problems inherent in the use of the internet and electronic communications.
      5. Contracting out of the Consumer Guarantees Act 1993: you acknowledge that HomeCuisine is providing the Services to you for the purposes of operating a business, and accordingly agree that the Consumer Guarantees Act 1993 (CGA) has no application to these Terms or the supply of the Services. Each party acknowledges and agrees that the terms of this clause 12.1(e) are fair and reasonable and that they have been advised by and received separate legal advice in relation to these Terms.
      6. Contracting out of the Fair Trading Act 1986: the parties confirm that they are in trade, and are acting in trade in relation to the transactions contemplated by these Terms, and accordingly, agree that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 shall not apply in relation to these Terms or as between the parties. Each party acknowledges and agrees that the terms of this clause 12.1(f) are fair and reasonable and that they have each been advised by and received separate legal advice in relation to these Terms.

  13. INDEMNIFICATION
    1. Indemnified Claims: you acknowledge and agree that you will indemnify and defend HomeCuisine, and hold HomeCuisine harmless, against any and all Claims, damages, losses and expenses (including reasonable legal fees) with respect to any third-party Claim arising out of, or related to, any of the following:
      1. your negligence or willful misconduct in the performance of your obligations under these Terms (including in relation to the provision of Meals to customers);
      2. any Claims that you have breached your representations and warranties in these Terms;
      3. any non-compliance with applicable privacy laws; or
      4. any harm resulting from your violation or alleged violation of any applicable retail, food, alcohol or other health and safety code or applicable laws (including the Food Regulations).
    2. Procedure: you agree to provide prompt notice to HomeCuisine of any potential third-party Claim that would be subject to an indemnity under these Terms.

  14. LIMITATION OF LIABILITY
    1. Limitations and exclusions of liability: subject to clause 14.3 below, in no event will HomeCuisine be liable for any Claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business, or any third-party arising out of these Terms, or loss or inaccuracy of data of any kind, whether based in contract or tort.
    2. Combined cumulative liability: to the extent that HomeCuisine has any liability under or in connection with these Terms, HomeCuisine’s aggregate liability will not exceed the aggregate of Meal Payments for 12 months from the date of the event giving rise to the Claim.
    3. Rights in consumer law: this clause 14 applies only to the maximum extent permitted by applicable law, and does not, and is not intended to, override any rights that a party may have pursuant to applicable law, including consumer law.

  15. TERMINATION
    1. Termination by you: you may terminate these Terms:
      1. at any time without cause, by giving 14 days’ prior notice to HomeCuisine; or
      2. immediately by written notice to HomeCuisine, if HomeCuisine commits a material breach of these Terms and the breach is not remedied within 2 days of HomeCuisine receiving written notice from you requiring that breach to be remedied.
    2. Termination by HomeCuisine: HomeCuisine may, acting reasonably:
      1. terminate these Terms in their entirety; or
      2. restrict or deactivate your access to the Platform or the Services,
      3. for any business, legal or regulatory reason, by giving you written notice.

    3. Suspension by you: you may temporarily suspend your Account for a period of time as agreed between you and HomeCuisine by giving 14 days’ prior notice to HomeCuisine. The minimum term you can suspend your Account for is 30 days per time. You may suspend your Account up to a maximum of 90 days per calendar year. Once your suspension is over, your Account will automatically be reactivated by HomeCuisine.
    4. Suspension by HomeCuisine: HomeCuisine may immediately suspend or deactivate your Account or access to the Platform, and use of the Services, if:
      1. you commit a material breach of these Terms;
      2. in HomeCuisine’s reasonable judgment, a temporary restriction or deactivation is appropriate while HomeCuisine investigate a serious complaint about you;
      3. in HomeCuisine’s reasonable judgment, an act or omission by you has the potential to cause adverse publicity, media attention or regulatory scrutiny or other issues that could detrimentally impact the reputation of HomeCuisine.

  16. GENERAL
    1. Severability: if any provision of these Terms is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from these Terms without affecting the validity of the remainder of these Terms and shall not affect the enforceability, legality, validity or application of any other provision of these Terms.
    2. Notice: notices under these Terms must be sent to the address specified below, or an updated address provided by a party to the either by notice under this clause. A notice will be considered to be received:
      1. on actual delivery, if delivery is by hand;
      2. one day after being sent by overnight pre-paid courier; or
      3. on actual delivery, if by electronic mail to the other party.
      4. You may give notice to HomeCuisine by written communication to the address of PoBox 24062, Royal Oak, Auckland - 1345.

    3. Force majeure: neither party shall be liable for any failure or delay in complying with any obligation imposed on that party under these Terms if:
      1. the failure or delay arises directly or indirectly from a cause reasonably beyond that party's control and not due to the default or insolvency, or an intentional act or omission, of that party
      2. that party, on becoming aware of the cause, promptly notifies the other party in writing of the nature and expected duration of, and the obligation affected by the cause; and
      3. that party uses its reasonable endeavours to mitigate the effect of the cause on that party's obligations and to perform that party's obligations on time despite the cause,
      4. but nothing in this clause shall excuse a party from any obligation to make a payment when due under these Terms.

    4. Assignment and sub-contracting: you may not assign all or any of your rights or obligations under these Terms without the prior written consent of HomeCuisine. HomeCuisine reserves the right to assign and/or transfer HomeCuisine’s rights and obligations under these Terms without your prior consent. HomeCuisine may engage third-party sub-contractors or agents to perform all or any part of the Services.
    5. Relationship between the parties: nothing in these Terms creates any partnership, joint venture, joint enterprise or agency relationship among the parties.
    6. Errors and omissions: clerical errors or omissions, whether in compilation or otherwise in any Order or invoice are subject to correction by HomeCuisine.
    7. Governing law: these Terms are governed by New Zealand law and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute of proceeding arising out of these Terms.

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