1.         Background

1.1      ServeMe Limited (“ServeMe”, “we”, “us” and “our”) operates the ServeMe Application (“App”) and website www.serveme.nz (“Website”), through which your customers can place food orders with you (“you”, “your”).

1.2      These Terms and Conditions apply to any services that ServeMe supplies to you through or in relation to the App and/or Website (“Services”). These Terms and Conditions along with any quote we provide to you, comprise our contract with you for the provision of the Services.

1.3      You confirm your understanding and acceptance of these Terms and Conditions when you first log in to the Website by marking the required tick-box and clicking ‘Agree’.

2.         Services

2.1      In these Terms and Conditions the Services that we supply to you include:

a.          access to the ServeMe online portal (located on the Website) through which you may register your information and upload photographs, images, menus and other permitted information (“Content”);

b.          presentation of such Content to customers utilising the App within your premises; and

c.          relaying of ordering information provided by customers utilising the App.

2.2      The Services are provided to you separately for each physical establishment you operate and you acknowledge that you must establish separate accounts through the Website for each individual establishment. For avoidance of doubt, multiple establishments operating out of a single physical location or building require separate accounts for each establishment.

3.         Price and Payment

3.1      The price for providing the Services to you will be set out in the applicable quote that we give to you. This may include an initial signup fee as well as a monthly subscription fee. Any price we quote to you will be capable of acceptance for the period set out in your quote or, if your quote does not state a period, for a period of 30 days from the date of the quote, following which it is subject to our confirmation.

3.2      If no quote is provided in writing, the price for providing the Services may be set out in our current price list located on our Website or may be obtained by contacting us.

3.3      Any signup or other upfront fee will be payable immediately upon acceptance of these Terms and Conditions.

3.4      Any subscription fee will be payable monthly in advance on the 20th day of each month.

3.5      You agree that

a.          interest may be charged on any amount you owe us after the due date at the rate of 1.5% per month accruing on a daily basis on all overdue amounts until the date of payment in full to us; and

b.          any costs and expenses, including debt collection and legal costs, which we may incur as a consequence of having to enforce any of our rights contained in this contract, shall be payable by you.

4.         Intellectual Property and Advertising

4.1      You agree that we own all intellectual property rights, including any patents, trade marks, design rights and copyright, in the Website and App and any other computer programs, advertising materials, websites, electronic data, documents and other material that we produce in connection with any Services or otherwise supply to you (“Intellectual Property”).

4.2      Your use of the Website and Services does not provide you with any right, title or interest in the Intellectual Property other than as expressly set out in these terms.

4.3      We acknowledge, and you warrant, that any Content provided by you to be presented through the App is owned or licensed by you and that we do not obtain any right, title or interest in such Content other than as expressly set out in these terms.

4.4      You consent to us taking photographs, and/or film footage of any work we perform for you (including the results of such work) for promotional and marketing purposes which may including posting any such photos or footage on our website.

4.5      We have the sole right to conduct advertising within the App and accordingly reserve the right to remove any Content uploaded by you which we consider constitutes an advertisement beyond the scope of these Terms and Conditions.

5.         Liability & Warranties

5.1      Subject to clause 5.2, you acknowledge that:

a.          all Services are provided "as is" and any express or implied warranties and/or representations (other than warranties or conditions which may not lawfully be excluded), including implied warranties of merchantability and fitness for a particular purpose, are disclaimed or otherwise excluded;

b.          we make no warranty or representation regarding the availability of the Services and we may suspend, deactivate or limit your access to the Website and/or Services

                              i.               if we reasonably believe that you or someone authorised by you breaches these Terms and Condition;

                             ii.               if we consider necessary due to technical or security issues;

                           iii.               if we are requested to do so by a government or law enforcement agency; or

                           iv.               if it is otherwise considered necessary by us at our sole discretion;

c.          your use of any Services is at your sole risk and responsibility.

5.2      The Consumer Guarantees Act 1993 implies terms, conditions and warranties into some contracts for the supply of goods and services and prohibits the exclusion, restriction and modification of such terms ("Prescribed Terms"). Nothing in these Terms and Conditions operate so as to exclude, limit, restrict or modify:

a.          the application of the Prescribed Terms;

b.          the exercise of a right conferred by any of the Prescribed Terms;

c.          our liability for breach of a Prescribed Term (except to the extent that liability may be restricted in accordance with Clause 5.4 below); or

d.          any other liability that may not be excluded, limited, restricted or modified under any applicable laws.

5.3      Subject to clause 5.2 and to the extent permitted by law, we will not be liable to you or any third party (whether for breach of contract, tort, for breach of statute or on any other basis) for any:

a.          indirect, consequential or special loss, damage or injury; or

b.          any loss of profits, revenue, business opportunity, anticipated savings, wasted overheads or damage to goodwill, regardless of whether in the circumstances it is deemed direct, indirect, consequential or special losses.

5.4      Subject to clauses 5.1, 5.2 and 5.3, if we are deemed to be liable to you for any loss or damage of any kind whatsoever, arising from the supply of Services by us to you whether suffered or incurred by you or another person or entity and whether in contract or tort (including our negligence) or otherwise, then you agree that our liability is limited in its aggregate to the lesser of:

a.          the price of the Services supplied to you in the 12 months preceding the date of the event giving rise to the claim; and

b.          $500 (NZD).

6.         Indemnity

6.1      You agree to indemnify us from and against any actions, claims and liabilities arising out of or relating to your breach of these Terms or any unlawful use of our Website.

7.         Term and Termination

7.1      These Terms and Conditions will come into force from the date upon which you accept them (“Commencement Date”) and shall continue until terminated in accordance with this clause 7.

7.2      Either party may terminate the Services by providing the other party with notice in writing, with such termination having effect at the end of the month following the month in which the notice of termination is provided (for example, if you provide a notice of termination in January, the Services will terminate at the end of February).

7.3      We may immediately terminate these Terms and Conditions and/or suspend provision of Services under these Terms and Conditions upon written notice to you if:

a.        a Default Event occurs with respect to you;

b.       you fail to pay any monies owing by the due date; or

c.        you commit material breach of this Agreement which is not capable of being remedied;

d.       you commit a material breach of this Agreement that is reasonably capable of being remedied, but has not been remedied within 20 business days after receiving a notice from the First Party requiring it to remedy the relevant breach.

7.4      Each of the following events will be a Default Event for the purposes of clause 7.3(a):

a.        you go into liquidation, or a receiver, administrator, statutory manager or similar officer is appointed to all or any part of your business or assets;

b.       you become or are deemed by law to be insolvent;

c.        you cease, or threaten to cease, to carry on all or substantially all of your business; and/or

d.       you make any composition, arrangement or assignment with or for the benefit of your creditors.

7.5      In addition to the rights of termination set out in this clause 7.5, we may by notice in writing to you suspend any part of any contract for the supply of Services to you if you fail to pay any money owing to us by the applicable due date.

7.6      Any termination or suspension will not affect our claim for money due to us at the time of termination or suspension, damages for any breach of your obligations to us under these terms and conditions and any other legal rights we have.

8.         Information Collection

8.1      We collect information that you and your customers voluntarily provide to us through the Website and App. The types of information that we collect will depend on the purpose for which it is collected and may include contact information, financial details, and information related to your use of the Website, App and Services, such as details of orders placed by your customers.

8.2      Such information may be used:

a.     to assess your credit worthiness;

b.     to enforce any rights under these Terms and Conditions

c.     to facilitate our provision of the Services;

d.     for marketing and promoting our Services; or

e.     to aggregate along with the data of other customers for further analysis and marketing purposes.

8.3      You agree that we may provide any of the information collected to any person for the above purposes, but you may withdraw your consent at any time.

8.4      You may access any information that we hold about you or your customers and ask us to correct any mistakes in it.

9.         Miscellaneous

9.1      Subject to clause 5.2, we are not liable for delay or failure to perform our obligations, if the cause of the delay or failure is beyond our control.

9.2      We may assign or otherwise transfer any of our rights under these Terms and Conditions to any other person without your consent. We agree that we may novate our obligations under this Terms and Conditions to any other person and you will enter into any form of novation that we may reasonably require to give effect to this upon request.

9.3      We may revise or amend these Terms and Conditions from time to time. If we do make any such changes we will notify you of the revised terms and conditions and you must accept the revised Terms and Conditions before continuing to use the Services, App and/or Website.

9.4      If we fail to enforce any of the provisions contained in these Terms and Conditions it shall not be deemed to be a waiver of any of the rights or obligations we have under our contract with you.

9.5      If any of the provisions of these Terms and Conditions are determined to be invalid, void or illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

9.6      These Terms and Conditions are governed by the laws of New Zealand and all disputes or claims in relation to these Terms and Conditions will be subject to the exclusive jurisdiction of the New Zealand courts.