Terms of Trade - Customer- 09-11-new

    1. INTERPRETATION.
      1. "Account" means your account established at clause 5.1 for the purpose of using the Services;
      2. "Cancellation Fee" means the fee payable by you, as determined by HomeCuisine, for cancellation of an Order;
      3. "Chef" means the third-party chef responsible for the preparation of a Meal;
      4. "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;
      5. "Delivery Address" means the preferred address as stated in your Account for the delivery of Orders;
      6. "Delivery Fee" means the fee collected from you for the delivery or your Order to your Delivery Address by a Delivery Partner;
      7. "Delivery Partner" means the third-party delivery partner responsible for the delivery of an Order;
      8. "Delivery Region" means the geographic area served by the relevant Chef and a Delivery Partner;
      9. "Estimated Delivery Time" means the time by which you can reasonably expect your Order to be delivered to your Delivery Address by a Delivery Partner;
      10. "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;
      11. "HomeCuisine" means HomeCuisine Limited (NZCN 8143558);
      12. "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;
      13. "Meal" means a meal prepared by a Chef;
      14. "Order" means an order made by you through the App and includes a “Pick-up Order” as that term is defined at clause 7.1;
      15. "Pick-up Point" means the place at which your Order can be collected by the Delivery Partner or you (as applicable);
      16. "Price" means the price payable for a Meal as shown on the App and includes GST and all other applicable Taxes as required by law;
      17. "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, 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;
      18. "Terms" means these terms of use which may be updated by HomeCuisine from time to time, and includes any document referred to in them; and
      19. "You" means the Account owner.
    2. GENERAL
      1. Terms: these Terms govern the access or use by you, an individual, of all applications, websites, content, products and services made available to you by HomeCuisine Limited (HomeCuisine) (together, the Services).
      2. Agreement to be bound: your access and use of the Services constitutes your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services.
      3. Terms paramount: to the extent that there is a conflict between the Terms and any other document relating to the Services, these Terms will prevail.
      4. Amendments to Terms: HomeCuisine may amend the 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 after such posting, constitutes your consent to be bound by the Terms, as amended.
    3. SERVICES
      1. Services: HomeCuisine will provide the Services to you under these Terms. The Services constitute the provision of a technology platform that enables you, as a user of HomeCuisine’s mobile application or website (together, the App) to:
        1. arrange and schedule the delivery of Meals prepared by independent Chefs and delivered by independent Delivery Partners (as applicable) who have an agreement with HomeCuisine; and
        2. facilitate payments to Chefs and Delivery Partners (as applicable), and to receive receipts in respect of those payments.
      2. Personal use: the Services are made available to you solely for your personal, non-commercial use.
      3. Acknowledgements: you acknowledge and agree that HomeCuisine does not provide:
          1. meal preparation services; or
          2. meal delivery services,

        and all meal preparation and meal delivery services are provided by Chefs and Delivery Partners (as applicable), who are independent of HomeCuisine and who are not employed or engaged by HomeCuisine, directly to you. For the avoidance of doubt, you acknowledge that, by using the Services and ordering from the App, you are entering into a contract with the relevant Chef and Delivery Partner (as applicable), and not with HomeCuisine.

      4. No responsibility: to the maximum amount permitted by law and subject to these Terms, HomeCuisine accepts no responsibility or liability for:
        1. meal preparation services performed by Chefs or any Meals prepared by the Chefs; and
        2. meal delivery services performed by Delivery Partners.
    4. LICENSE
      1. Ownership of Intellectual Property Rights: the Services and all Intellectual Property Rights therein are and shall remain the property of HomeCuisine. These Terms and/or your use of the Services do not grant to you any rights:
        1. in or related to the Services, except for the license granted to you at clause 4.2 below; or
        2. to use or reference in any manner HomeCuisine’s company names, logos, product and/or service names, or trade marks, without the prior written consent of HomeCuisine.
      2. Grant of license: subject to your compliance with these Terms, HomeCuisine grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the App solely in connection with your use of the Services.
      3. Restrictions: during your use of the Services, you may not:
        1. remove any copyright, trade mark or other proprietary notices from any portion of the Services; or
        2. reproduce, modify, distribute, license, sell, resell, transfer, or otherwise exploit the Services except as expressly permitted by HomeCuisine.
    5. YOUR USE OF THE SERVICES
      1. User account: in order to use the Services, you must be at least 18 years old and register for and maintain an active user account (an Account). Account registration requires you to submit to HomeCuisine certain personal information, such as your name, age, address, mobile phone number and at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete and up-to-date information in your Account. Your failure to maintain accurate, complete and up-to-date information, including the failure to maintain at least one valid payment method, may result in your inability to access or use the Services or termination of your Account by HomeCuisine.
      2. User requirements: you agree to comply with all applicable laws when accessing or using the Services and may only access or use the Services for lawful purposes. You may not authorise a third-party to use your Account. You may not assign or otherwise transfer your Account to any other person or entity.
      3. User conduct: you are responsible for all activity that occurs under your Account. You will not, in your use of the Services, cause nuisance, annoyance or inconvenience, whether to HomeCuisine, a Chef, a Delivery Partner, or any other party.
      4. Commercial electronic messaging: by creating an Account, you agree that HomeCuisine may send you commercial electronic messages (including emails, SMS and/or push notifications) as part of your use of the Services. You may opt-out of receiving commercial electronic messages from HomeCuisine at any time. You also acknowledge that opting out of receiving commercial electronic messages from HomeCuisine may impact your use of the Services. For the avoidance of doubt, you cannot unsubscribe from transaction messages, including delivery receipts.
      5. Promotional codes: HomeCuisine may, in HomeCuisine’s sole discretion, create promotional codes or other features and/or benefits related to the Services, or the services of a Chef and/or Delivery Partner (each a Promotional Code). You agree that Promotional Codes:
          1. must be used in accordance with the terms of the Promotional Code and for the intended audience and purpose, and in a lawful manner;
          2. may not be duplicated, sold or transferred in any manner, or made available to the general public;
          3. may be disabled at any time by HomeCuisine for any reason, at HomeCuisine’s sole discretion, and without liability to HomeCuisine;
          4. may only be used pursuant to the specific terms of the relevant Promotional Code;
          5. are not valid for cash; and
          6. may expire prior to your use.

        HomeCuisine reserves the right to withhold or deduct credits or other benefits obtained by you through the use of Promotional Codes in the event that HomeCuisine reasonably considers that the use or redemption of the Promotional Code was in error, fraudulent, illegal or in violation of the applicable Promotional Code terms or these Terms.

      6. Offers and discounts: HomeCuisine may, from time to time, provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar Orders. You agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the charges applied to you.
      7. User feedback: HomeCuisine may, in HomeCuisine’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to HomeCuisine text and/or visual content and information, including commentary and feedback related to the Services (User Feedback). By providing User Feedback to HomeCuisine, you grant HomeCuisine a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, use, copy, modify, distribute, publicly display, and otherwise exploit in any manner, such User Feedback in all formats and distribution channels, without further notice or consent from you, and without the requirement of payment to you or any other person or entity. To the extent that you include personal information (for example, your name) in any User Feedback, you agree that HomeCuisine may publish that personal information on the HomeCuisine website, the App, and on any other HomeCuisine social media platforms.
      8. Review and monitoring of User Feedback: you acknowledge that HomeCuisine may review, monitor, or remove User Feedback, at HomeCuisine’s sole discretion and at any time and for any reason, without further notice to you.
      9. Network access and devices: you are responsible for obtaining the data network access necessary to use App and the Services. Your mobile network’s data and messaging rates and fees may apply, and you will be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and App.
      10. Personal information: our collection and use of your personal information in connection with the Services in accordance with our Privacy Policy.
    6. ORDERS
      1. General: when you place an Order, your Order will be communicated to, and processed by, the relevant Chef. Orders are subject to the Chef’s item availability and where an Order is to be delivered, the Delivery Partner’s delivery capacity. The contract for the supply of your Order is formed between you and the Chef at the point in time when the Chef accepts the Order and you receive a notification of your Order being accepted.
      2. Incorrect Order: if you believe that the Order that you are delivered is incorrect, or if something is missing, inaccurate, unacceptable or damaged, you must provide the relevant details to HomeCuisine no later than 24 hours after placement of the Order. Any information provided after 24 hours will not be accepted. HomeCuisine may request a photograph of the Order as delivered to you. HomeCuisine and the relevant Chef and/or Delivery Partner will review the information provided and, unless there is a reasonable cause to believe that the problem was caused by you, HomeCuisine will provide a full refund of the Price (and if appropriate, the Delivery Fee) to you using the same method you used to pay for your Order. Prior to processing any refund, HomeCuisine may take into account relevant factors including the details of the Order, your Account history and information from the relevant Chef and/or Delivery Partner (as applicable).
      3. Deemed acceptance of an Order: for the avoidance of doubt, you will be deemed to have accepted an Order without fault and in its condition delivered to you by a Delivery Partner, or picked-up by you from a Chef (as applicable), and waive all rights and entitlements to receive a refund for an Order if, following the period of 24 hours after placement of an Order, you have not lodged a complaint with HomeCuisine in relation to the relevant Order.
    7. DELIVERY AND PICK-UP
      1. General:when you place an Order, you have the option to pick-up your Order from the Chef at the Pick-Up Point (a Pick-up Order), or have your Order delivered to you (if delivery of your Order is available in your Delivery Region). You also have the option to schedule delivery (i.e. as soon as reasonably possible, or for a later time).
      2. Delivery:the Estimated Delivery Time displayed on the App is only an estimate and is calculated by including factors such as:
        1. the time it typically takes the relevant Chef to accept and prepare an average order; and
        2. the time it typically takes a relevant Delivery Partner to travel from the Pick-up Point to your Delivery Address at the time of placement of the Order.
      3. Pick-up: if you place a Pick-up Order, you will be notified when the relevant Chef accepts the Pick-up Order, the estimated time required by the relevant Chef to complete your Pick-up Order, and when the Pick-up Order is ready for collection (the Scheduled Pick-up Time). Once your Pick-up Order is confirmed by the Chef, you will be charged. If your Order is not picked up by the Scheduled Pick-up Time, the relevant Chef reserves the right to deem such Pick-up Order as completed.
      4. Delivery time may vary: we ask that Delivery Partners do their best to deliver the Order within the Estimated Delivery Time. Actual delivery time may vary depending on the size of your Order, traffic conditions, weather conditions and other factors.
      5. Change of address after Order:if you would like to change your Delivery Address after you have placed an Order (but before the Delivery Partner has been dispatched), HomeCuisine may allow you to do so if your new address is within the Delivery Region of the relevant Chef and a Delivery Partner. If the location is outside the relevant Chef’s and Delivery Partner’s Delivery Region, and the Chef has started Order preparation and/or the Delivery Partner is on its way to the Pick-up Point, you will be charged the full amount of the Order, including the Delivery Fee.
      6. Failed delivery: if your Order is delivered late or does not arrive, and the delivery status is shown as incomplete, you can access your Account through the App and directly contact the Delivery Partner for an update on the status of the Order. In the event that you are unable to contact the Delivery Partner and/or your Order does not arrive, you must contact HomeCuisine as soon as possible through the App, but no later than 24 hours after placing the Order, and provide the details of the relevant Order. HomeCuisine will review the issue and if it is found that the issue did not arise due to any of your actions, HomeCuisine will provide a full refund (Price and Delivery Fee) for any payment already made using the same method you used to pay for your Order.
      7. Safe access: you must ensure that your Delivery Address has safe and available passageways to enable the Delivery Partner to successfully deliver your Order to you. If there is no such safe passageway for the Delivery Partner, and the Delivery Partner is unable to deliver your Order because of this, you will be charged the full amount of you Order and the relevant Delivery Fee.
      8. Uncontactable: if the Delivery Partner tries to contact you when the Delivery Partner arrives at your Delivery Address, but you do not respond to any communications within 10 minutes of the Delivery Partner physically reaching your Delivery Address, and you will be charged the full amount of the Order and the relevant Delivery Fee.
      9. Risk: when your Order is delivered to you, or is picked-up by you, all risk associated with the Order shall be transferred to you.
    8. PAYMENT
      1. General:the Price of Meals will be shown on the App at the time you submit your Order. The Price of Meals on the App may change from time to time. For the avoidance of doubt, you will always see the Price of a Meal upfront so you can decide whether you would like to proceed with the Order.
      2. Payment: you understand that your use of the Services may result in charges to you for the Orders you receive, including the Price and Delivery Fee (the Charges). Following your receipt of an Order obtained through the use of the App, HomeCuisine will facilitate your payment of the applicable Charges on behalf of the Chef and Delivery Partner (as applicable), as collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Chef and Delivery Partner (as applicable). Charges will be inclusive of GST and all other applicable Taxes where required by law. Charges paid by you to HomeCuisine are final and non-refundable, unless otherwise determined by HomeCuisine in accordance with these Terms or as required by law.
      3. Timing: all Charges are due immediately on receipt of an Order, and payment will be facilitated by HomeCuisine using the preferred payment method designated on your Account, after which HomeCuisine will send you a receipt via email. If you preferred payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that HomeCuisine may, as collection agent, use a secondary payment method in your Account, as applicable.
      4. Revision:as between you and HomeCuisine, HomeCuisine reserves the right to establish, remove and/or revise Charges for any or all Orders obtained through the use of the Services at any time and in HomeCuisine’s sole discretion.
    9. CANCELLATION
      1. Cancellation before the Chef accepts the Order:you can cancel your Order any time before the Chef accepts your Order and receive a full refund for the Price of the Order already paid.
      2. Cancellation after the Chef accepts the Order: if you would like to cancel your Order after your Order has been accepted by a Chef, you must contact HomeCuisine immediately through the App. If HomeCuisine confirms that the relevant Chef has commenced preparation of your Order and is unable to accept cancellation, you will not be eligible for a refund of the Price of the Order.
      3. Cancellation after the Delivery Partner is on its way to collect your Order: if you would like to cancel your Order after a Delivery Partner is on its way to pick up your Order, you will be charged the full Price of the Order, including the Delivery Fee.
      4. Cancellation by Chefs:there may be instances where Chefs may cancel your Order after accepting it because such items are no longer available and/or there are no available Delivery Partners to deliver your Order. In such circumstances, HomeCuisine will notify you through the App that your Order has been cancelled. You will not be charged for such cancelled Orders, and HomeCuisine (on behalf of the Chef) will refund you for the Price and Delivery Fee already paid, using the same method you used to pay for your Order.
    10. DISCLAIMERS
      1. Meal description:all descriptions and information provided on the App about a relevant Meal (including, the temperature, portion size, allergen statements, ingredients, dietary statements etc.) (the Meal Description) is provided by the relevant Chef and not by HomeCuisine. You acknowledge that it is the responsibility of the relevant Chef to ensure that the Meal Description is correct, up-to-date and not misleading at all times.
      2. Warranties and representations:HomeCuisine requires the Chefs to comply with HomeCuisine policies in relation to Meal preparation. Notwithstanding this, you acknowledge and agree that HomeCuisine shall not be held responsible for, and gives no warranty or representations as to:
          1. the accuracy of Meal Description’s provided by any Chef;
          2. the quality and suitability of the Meals ordered from any Chef;
          3. the preparation, handling or cooking of the Meals ordered from any Chef;
          4. the portion size of the Meals ordered from any Chef;
          5. the ingredients used in the Meals ordered from any Chef; and
          6. the accuracy of the allergen and dietary statements used by any Chef on the App.

        You further acknowledge that you do not rely on any representation or statement made by or on behalf of HomeCuisine or its employees or agents other than the express provisions of these Terms.

    11. LIABILITY
      1. Exclusion of warranties conditions, etc:to the fullest extent permissible at law, all representations, terms, warranties, guarantees, or conditions whether implied by statute, common law or custom of the trade or otherwise, including, but not limited to, implied warranties or guarantees, are excluded.
      2. No liability: HomeCuisine shall have no liability for anything, other than a breach by HomeCuisine of an express provision of these Terms, including but not limited to negligence on the part of HomeCuisine or its employees or agents. For the avoidance of doubt, HomeCuisine shall accept no liability for any breach of these Terms by a Chef and/or Delivery Partner.
      3. Limitation of liability subject to consumer law:except as is required of HomeCuisine under consumer law, the Services are provided “as is” and “as available”. HomeCuisine makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services, or that the Services and the App will be uninterrupted or error-free. HomeCuisine does not guarantee the quality, suitability, safety or availability of the Chefs and Delivery Partners. You agree that the entire risk arising out of your use of the Services remains solely with you, to the fullest extent permissible at law.
      4. Limitation of liability:notwithstanding anything else contained in these Terms, the total aggregate liability of HomeCuisine to you (whether in contract, tort (including negligence), misrepresentation or otherwise and whether in connection with an act or omission of HomeCuisine or any sub-contractor or agent of HomeCuisine) shall not exceed the Price and Delivery Fee (if applicable) of the Order in respect of which the liability arises.
      5. Consumer Guarantees Act 1993:nothing in these Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 (CGA), except to the extent permitted by the CGA, and all provisions of any contract shall be read as modified to the extent necessary to give effect to that intention.
      6. Indemnity:you agree to indemnify and hold HomeCuisine harmless from any and all Claims, demands, losses, liabilities and expenses arising out of or in connection with:
        1. your use of the Services and the Meals received through your use of the Services;
        2. your breach of violation of any of these Terms; and
        3. your violation of the rights of any third party, including Chefs and Delivery Partners.
    12. TERMINATION
      1. Suspension:HomeCuisine may suspend you from accessing or using the Services, or any part of them, immediately, without notice, in circumstances where HomeCuisine reasonably suspects that you have, or are likely to, breach these Terms.
      2. Termination by HomeCuisine:HomeCuisine may terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion of them:
        1. immediately, where HomeCuisine reasonably suspects that you have, or are likely to, materially breach these Terms; or
        2. on 30 days’ written notice to you, where HomeCuisine, acting reasonably, terminates these Terms or any Services for any legitimate business, legal or other regulatory reason.
      3. Termination by you:you may delete your account at any time for any reason.
    13. 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:HomeCuisine may give notice by means of a general notice on the App, electronic mail to your email address as stated in your Account, or by written communication sent to your address as stated in your Account. 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,

        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 our 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. Errors and omissions:clerical errors or omissions, whether in compilation or otherwise in any Order or receipt are subject to correction by HomeCuisine.
      6. 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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