Useful Links

Click here for the Merchant Service Terms (New Zealand).

Click here for the Delivery Restrictions (New Zealand).

Click here for the Standard Fee Webpage (New Zealand).

Uber Direct – Merchant Agreement

General Terms (New Zealand)

KEY PRINCIPLES

• This Agreement governs your use of the Uber Direct Services, including services set out in the relevant Service Terms.
• Your Customers (or if you are a Reseller Merchant, your Clients) place Orders with you (or a Merchant Associate) via your Merchant Platform. Neither Uber nor Portier NZ have any involvement in the process by which a Customer places an Order with you or a Merchant Associate, or pays for that Order.
• Your access to the Delivery Services is based on the Access Method you choose. Available Access Methods include:
  • the Dashboard (where Uber will provide you with access to the Dashboard from which you can request Delivery Services);
  • the Uber Direct API (where Uber will provide you with the Uber Direct API through which you can request Delivery Services); and
  • the Aggregator Platform (where you will access the Dashboard via an Aggregator Platform to request Delivery Services).
• Additional Access Methods might be added from time to time. The Service Terms set out more details about these Access Methods and other services you may choose.
• Once a Customer or Client has placed an Order, you can use the available Access Methods to request Delivery Services.
• Portier NZ will provide Delivery Services to you which will be fulfilled by a Delivery Person who is subcontracted by Portier NZ.
• For each Delivery Service, you will pay a Fee to Portier NZ. If you are placing a delivery request via an Aggregator Platform, this Fee may be collected by the Aggregator. More information about the Fees can be found in your Order Form (if any), these General Terms, the applicable Service Terms, the Standard Fee Webpage and any applicable Addendums.
• Information will be exchanged between the parties in order to provide the Delivery Services. This information may only be used in accordance with this Agreement.
• You are responsible for complying with this Agreement, which requires you to (among other things) ensure the quality of your Items (including their packaging for transport) and comply with the Uber Policies. You are also responsible for your Merchant Associates who access or use any of the services under this Agreement or otherwise help you to facilitate deliveries to your Customers.
• Uber and Portier NZ may change this Agreement from time to time, but will tell you before any change is made that detrimentally affects your rights. You can end this Agreement as a result of a change that is detrimental to you.
• Please read the Agreement carefully. It includes information as to your responsibilities, how you, Uber and Portier NZ may change or end the Agreement, what to do if there is a problem and important information about insurance and liability.

These General Terms apply to the agreement entered into between the person identified within the Uber Direct sign-up process (Merchant or you), Uber Portier B.V. (Uber) and Portier New Zealand Limited (Portier NZ) (together, the parties) for the use of the Uber Direct Services, unless otherwise agreed between the parties in writing. These General Terms apply in addition to any Service Terms that apply to the services you choose.

PART 1 – STRUCTURE OF THE AGREEMENT

This part describes how an Agreement is formed between you, Uber and Portier NZ and the documents that make up the Agreement. It also sets out the steps you need to take before you are able to use the Uber Direct Services, and how long the Agreement lasts.

1. STRUCTURE OF THE AGREEMENT

1.1 How the Agreement Works

(a) If:

(i) you click a box indicating your acceptance of these terms; or

(ii) the parties execute an Order Form or Addendum referencing these terms,

you enter into an agreement with Uber and Portier NZ (the Agreement), and agree to be bound by that Agreement.

(b) The Agreement will consist of the following documents:

(i) Addendums (if any);

(ii) Order Form (if any);

(iii) these General Terms;

(iv) Service Terms; and

(v) Uber Policies.

(c) Each Addendum that references this Agreement, once executed by all parties, will be incorporated into this Agreement by reference.

(d) The document that is higher in section ‎1.1(b) will apply if there is any conflict between those documents.

1.2 Application of the Service Terms

(a) Unless otherwise agreed in writing, the Service Terms will apply to the specific services (including Access Methods) you choose. The Service Terms for a particular service will not apply to you unless you make use of the service.

(b) Section ‎‎22.2 below will apply to any modifications to the Service Terms made by Uber and Portier NZ from time to time.

1.3 Conditions Precedent

(a) Within 10 days of when you initiate the sign-up process for Uber Direct, Uber and Portier NZ will use the information provided to assess whether you meet the following conditions (Conditions Precedent):

(i) you have provided valid business details in the sign-up process;

(ii) your business must not deal solely or predominantly in the supply of Items listed in the Delivery Restrictions, unless otherwise agreed by the parties in writing; and

(iii) there must not be an existing Uber Direct account associated with your organisation or entity.

(b) If you do not meet the Conditions Precedent, Uber and Portier NZ may prevent you from completing the sign-up process or, if the sign-up process has been completed and your Uber Direct account is active, immediately restrict or deactivate your access to any Uber Direct Services and the Uber Tools, and this Agreement will automatically terminate 30 days after the Effective Date.

2. TERM OF THE AGREEMENT

(a) Your Agreement will start on the Effective Date and will continue for 1 year from the Effective Date (the Initial Term) and will automatically renew for successive one year periods (each, a Renewal Term).

(b) The Agreement may end earlier, if it is terminated by you, Portier NZ or Uber in accordance with the Agreement.

PART 2 – ROLES AND RESPONSIBILITIES, FEES AND PAYMENT

This part describes each party's role and responsibilities under this Agreement. This includes your obligations in relation to the quality of Items and their packaging for delivery, as well as your responsibility for Merchant Associates (such as Franchisees and related companies who access or use any of the services under this Agreement or otherwise help you to facilitate deliveries to your Customers).

This part also sets out how the fees and charges are calculated, including the fees payable to Portier NZ for providing you with Delivery Services.

3. SERVICES

3.1 General Description

(a) The Uber Direct Services will enable you to:

(i) request Delivery Services from Portier NZ; and

(ii) receive from Uber and/or Portier NZ other services described in the applicable Service Terms.

3.2 Service Scope

(a) During the Term, Portier NZ will:

(i) provide Delivery Services as requested by you via the relevant Access Method in accordance with the terms of this Agreement; and

(ii) perform any other services or activities described in these General Terms, the Service Terms for services you have chosen, or any Addendum agreed between you, Uber and Portier NZ, excluding any Uber Services,

(the Portier NZ Services).

(b) During the Term, Uber will grant you a licence to use the Uber Tools (if any) on the terms specified in the applicable Service Terms and will perform any services or activities expressly stated to be provided by Uber in these General Terms, the Service Terms for services you have chosen, or any Addendum agreed between you, Uber and Portier NZ (the Uber Services).

4. DELIVERY SERVICES

4.1 Scope of Service

Portier NZ will provide the Delivery Services to you as requested by you via the relevant Access Methods. Except as expressly set out in this Agreement, you acknowledge and agree that Portier NZ may determine the manner in which it will provide the Delivery Services.

4.2 Quality, Packaging and Handoff

You agree that Portier NZ has no control over the availability or quality of Items. You are responsible for ensuring that Items are handled appropriately and are appropriate for sale via your Merchant Platform. This includes ensuring that:

(a) Items are packaged appropriately for delivery including transport (which also includes ensuring food safety during transport and any additional protection necessary based on the nature of the Item(s));

(b) Items, their handling and sale and all information you provide about them comply with all Laws applicable to such Items, this Agreement and are accurate and not misleading; and

(c) you will ensure that each Order is readily available for pickup upon arrival of a Delivery Person at the pickup location.

4.3 Item Inventory

Neither Portier NZ nor any of its Affiliates nor any Delivery Person takes title to any Items that are requested for delivery. As between Portier NZ and you, you (or the relevant Merchant Associate) maintains title to each Item until the Item is delivered by Portier NZ.

4.4 Location of Delivery Services

Pickup and drop off locations for deliveries will be limited to locations in New Zealand where Uber Direct is available and are subject to Delivery Person availability, the Active Area, and any limitations specified in an Addendum. Requests for Delivery Services where the pickup location and drop off locations are not within the same city or metropolitan area are not available.

4.5 Active Area

You acknowledge and agree that:

(a) Portier NZ will only provide Delivery Services within the Active Area;

(b) Portier NZ will manage marketplace conditions, such as by way of changes to the size of the Active Area, with a view to ensuring the safety and reliability of the Delivery Services; and

(c) Portier NZ does not make any guarantee in relation to the size of the Active Area or the ability of Portier NZ to provide Delivery Services. If you are not satisfied with the Active Area or changes to the Active Area, you may stop using Uber Direct at any time and can terminate this Agreement in accordance with your rights under section ‎‎‎‎21.1. Nothing in this section prevents you from offering Items or providing delivery services to your Customers outside the Uber Direct product in geographic locations in or outside of the Active Area.

4.6 Delivery Restrictions

(a) You must ensure that you comply with the Delivery Restrictions.

(b) You acknowledge and agree that Portier NZ is under no obligation to provide Delivery Services if an Order is not compliant with the Delivery Restrictions. Depending on your location, the Delivery Restrictions may vary.

4.7 Proof of Delivery

(a) Uber will enable one or more proof of delivery options for Orders, which you may request through the available Access Methods. Proof of delivery may include photo, signature, PIN and barcode scanning. The proof of delivery options may vary depending on:

(i) the Access Method you use to request Delivery Services; and

(ii) the Order type or category of Item(s) included in an Order.

(b) Uber may change, impose requirements or restrictions on, or stop offering any and all proof of delivery options. Uber agrees to provide reasonable prior notice to you in the event it ceases to offer all proof of delivery options.

(c) Where you use an Aggregator Platform to request Delivery Services, the Aggregator Platform may not support any or all proof of delivery options offered by Uber. Uber and its Affiliates are not responsible for which proof of delivery options the Aggregator Platform supports.

4.8 Customer Support

As between Portier NZ and you, you will be responsible for all support to Customers and (if applicable) Clients, including resolving any disputes or concerns in relation to Items delivered via the Delivery Services. Without prejudice to the foregoing, Portier NZ will use its best efforts to assist you in resolving any complaints that relate exclusively to the Uber Direct Services.

4.9 Merchant Support

(a) If you have issues with the Delivery Services, you can contact Portier NZ free of charge via one of the following support channels:

(i) by phone for live Delivery Services only, on 0800 453 950; or

(ii) by email for non-live Delivery Services only, to direct.merchants.anz@uber.com.

(b) You will be informed of the outcome of the request within a reasonable period of time.

4.10 Uber Policies

(a) You must comply, and ensure that each Merchant Associate complies, with the Uber Policies that apply to your use of the Uber Direct Services, and ensure your and each of your Merchant Associates' employees, agents and contractors do the same.

(b) Uber, Portier NZ or their Affiliates may update the Uber Policies from time to time in accordance with section ‎‎‎22.2.

5. MERCHANT ASSOCIATES AND DECENTRALISED MERCHANT ASSOCIATES

5.1 Merchant Associates

(a) Subject to approval in writing by Portier NZ and section ‎‎5(b), you may permit:

(i) each Merchant Associate (excluding any Client) to utilise the Uber Direct Services on your behalf or assist you with utilising the Uber Direct Services, including using the Uber Tools or fulfilling Orders; and

(ii) where you are a Reseller Merchant, your Clients to request Delivery Services from you, as a Reseller Merchant, via your Reseller Platform.

(b) Without limiting any other part of this Agreement (including the Service Terms):

(i) you must ensure that each Merchant Associate is aware of and complies with your obligations under this Agreement (as amended from time to time in accordance with the terms of this Agreement), including by requiring each Merchant Associate to agree to terms substantially similar to:

‎‎(A) sections ‎‎4, ‎‎‎‎6, ‎‎12, ‎‎‎‎13, ‎‎14, ‎‎‎‎16(b), ‎‎‎‎20, and ‎‎‎‎22.2, and any relevant Service Terms; or

(B) where requested by Uber or Portier NZ, acting reasonably, the Merchant Associate Requirements.

(ii) to the maximum extent permitted by law, you are solely responsible for the acts and omissions of each Merchant Associate, and the acts or omissions of each Merchant Associate will be deemed to be your acts or omissions for the purposes of this Agreement. For clarity, if Uber or Portier NZ suffers any Losses arising from or in connection with the acts or omissions of any Merchant Associates, Uber or Portier NZ (as applicable) may recover those Losses from you under this Agreement (including under any indemnity), as if such Losses arose from or in connection with the acts or omissions of you or any of its employees, agents or contractors. You will not be liable to the extent that such Loss is caused directly by the fraudulent, negligent or unlawful act or omission by Uber, Portier NZ or their Affiliates;

(iii) to the maximum extent permitted by law, you must ensure that Merchant Associates do not bring any claim in relation to this Agreement against Uber, Portier NZ, their Affiliates or their respective directors, officers, employees, agents and contractors. You acknowledge and agree that any claim in respect of any Loss suffered or incurred by a Merchant Associate arising in relation to this Agreement must be brought directly by you; and

(iv) for clarity, the parties acknowledge and agree that the limitations, exclusions and exceptions set out in section ‎‎‎‎19 apply in respect of all Loss recoverable by a party pursuant to this section ‎‎5(b).

(c) To avoid doubt, you are responsible for all charges incurred by Merchant Associates via the Corporate Account or any Aggregator Platform, regardless of whether or not a charge was authorised by you.

5.2 Decentralised Merchant Associates

(a) Special terms for Head Merchants

(i) You must seek approval from Portier NZ if you wish to allow any Affiliates, Franchisees or other third parties approved by you to utilise the Uber Direct Services in connection with this Agreement and for such Affiliates, Franchisees or other third parties to be directly responsible to Uber and Portier NZ for their use of the Uber Direct Services, including payment obligations (Decentralised Merchant Associates).

(ii) If Portier NZ approves your request under section 5.2(a), then subject to the relevant Decentralised Merchant Associate entering into an agreement with Uber and Portier NZ adopting the terms of this Agreement, they will become directly responsible to Uber and Portier NZ for their use of the Uber Direct Services, including payment obligations.

(iii) From the Effective Date of the agreement between the Decentralised Merchant Associate, Uber and Portier NZ, the Decentralised Merchant Associate will cease to be a Merchant Associate under this Agreement (if applicable).

(iv) You must notify Portier NZ immediately if you become aware that your agreement or relationship with a Decentralised Merchant Associate has or will expire, terminate or end for any reason and that Decentralised Merchant Associate has or will cease to be your Affiliate or Franchisee or a third party approved by you.

(b) Special terms for Decentralised Merchant Associates

If you are a Decentralised Merchant Associate who has entered into an agreement with Uber and Portier NZ referencing a Head Merchant agreement:

(i) For the avoidance of doubt, you are directly responsible to Uber and Portier NZ for your use of the Uber Direct Services, including payment obligations;

(ii) You agree that Uber and Portier NZ may provide the following information to the Head Merchant:

(A) information about the performance of your obligations under this Agreement; and

(B) any data and information arising out of your use of the Uber Tool and Uber Direct Services (including the Delivery Services);

(iii) You must notify Portier NZ immediately if you become aware that your agreement or relationship with Head Merchant has or will expire, terminate or end for any reason;

(iv) If you or the Head Merchant notify Uber or Portier NZ of the expiry, termination or end of your agreement or relationship with the Head Merchant, this Agreement will automatically terminate:

(A) immediately, where your agreement or relationship with the Head Merchant has already expired, terminated or ended at the time of the notification to Uber or Portier NZ; or

(B) upon the expiry, termination or end of your agreement or relationship with the Head Merchant, where the notification to Uber or Portier NZ is given prior to the expiry, termination or end of your agreement or relationship with the Head Merchant;

(v) If the Head Merchant agreement is modified or varied in accordance with its terms, you will be notified as soon as reasonably practicable after those modifications or variations have been agreed and you acknowledge that any such modifications or variations will be binding on you;

(vi) If the Head Merchant enters into a new agreement with Uber and Portier NZ (the Head Merchant’s New Agreement) to replace the agreement that exists between those parties as referenced in your Order Form (the Head Merchant’s Existing Agreement), this Agreement will continue to apply on the same terms that were applicable immediately prior to the replacement of the Head Merchant’s Existing Agreement until this Agreement is replaced by a new agreement between you, Uber and Portier NZ on terms that are consistent with the Head Merchant’s New Agreement; and

(vii) You acknowledge that Uber and Portier NZ are entering into this Agreement with you only for so long as the Head Merchant’s agreement continues to be in place. Except to the extent that section 5.2(b)(vi) applies to this Agreement, if the Franchisor’s Existing Agreement expires, terminates or ends for any reason, this Agreement will terminate automatically at the same time as the expiry, termination or end of the Franchisor’s Existing Agreement.

6. MODERN SLAVERY PROHIBITION

You must not, and must ensure that each Merchant Associate does not, engage in any practice which would violate any Law regarding slavery or human trafficking. You must notify Portier NZ as soon as you or any Merchant Associate becomes aware of any slavery or human trafficking in a supply chain that has a connection with this Agreement.

7. FEES AND PAYMENT

7.1 Delivery Fee

(a) In consideration for the Delivery Services, Portier NZ will charge you a Delivery Fee based on the pricing specified from time to time on the Standard Fee Webpage, unless different pricing has been agreed in writing by you and Portier NZ or is otherwise specified in the Service Terms. When you request Delivery Services via the Uber Tools, Portier NZ will provide you the amount of the Delivery Fee before you place the request.

(b) You acknowledge and agree that:

(i) distance amounts used for the Delivery Fee are based on the expected, not actual, delivery distance as reasonably determined by Portier NZ;

(ii) distance will be calculated based on kilometres, or any part of a kilometre;

(iii) distance components of the Delivery Fee are charged on a pro-rated basis; and

(iv) Portier NZ reserves the right to modify the amount of the Delivery Fee if the pickup location or drop off location is incorrect or is modified by you.

7.2 Other Fees

Other Fees may be payable based on the Portier NZ Services that you receive or for services that are not included within the Delivery Fee (for example, extended wait times, return trips, cancellations, or customer support). Portier NZ will charge you the Other Fees as specified in the Service Terms or on the Standard Fee Webpage, or that are otherwise agreed to by the parties in your Order Form or in any applicable Addendum.

7.3 Changes to Fees

Subject to providing notice where required under section ‎‎22.2, Uber or Portier NZ may update the Standard Fee Webpage from time to time.

7.4 All Fees

All Fees or other amounts payable under this Agreement will be paid in NZD and are stated to be exclusive of any GST, unless expressly stated otherwise. If GST is payable on any supply by Portier NZ made under this Agreement, for which the consideration is not expressly stated to include GST, you agree to pay Portier NZ an additional amount equal to the GST at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. In this Agreement, GST that is payable by Portier NZ includes GST that is payable by the representative member of Portier NZ’s GST group.

7.5 Expenses and Costs

Except as may be expressly agreed in this Agreement, each party is responsible for its expenses and costs in connection with its performance of this Agreement.

7.6 Payment

(a) Subject to section 7.6(b), if you request Delivery Services, you must pay all Fees and charges to Portier NZ. Portier NZ will bill you for such Fees and charges (each a Payment Statement). Payment Statements and payment frequency information are made available to you via the Dashboard. You will be billed on the following basis, or on a basis otherwise agreed by the parties in writing:

(i) For merchants who sign up to Uber Direct via the Self Sign-Up Form on or before 26 July 2023, you will be billed on a daily basis for all Delivery Services requested on a given day. You will need to provide a card (e.g. credit card, debit card). The card associated with your Corporate Account will be charged on this basis, and a Payment Statement will be made available shortly before your card is charged.

(ii) For merchants who sign up to Uber Direct via the Self Sign-Up Form on and from 27 July 2023, you will be charged on a per Delivery Service basis. You will need to provide a card (e.g. credit card, debit card). The card associated with your Corporate Account will be charged on this basis and a Payment Statement will be made available shortly thereafter.

(iii) For all other merchants, except where section 7.6(b) applies, you will select your payment method as part of the onboarding process.

If you opt for monthly billing, you will receive a Payment Statement each month that you must pay in full within 30 days of receipt. You may elect to pay Payment Statements via a payment method supported by Portier NZ (e.g. credit card, debit card and/or by bank transfer, etc).

If you opt for daily billing, you will be billed on a daily basis for all Delivery Services requested on a given day. You will need to provide a card (e.g. credit card, debit card). The card associated with your Corporate Account will be charged on this basis, and a Payment Statement will be made available shortly before your card is charged.

(iv) For payment methods other than bank transfers, you agree to provide and maintain a valid payment method in connection with your Corporate Account during the Term, and you acknowledge and authorise Portier NZ to charge the payment method associated with your Corporate Account (including any updated payment methods you provide during the term of this Agreement) for the amounts on each Payment Statement.

(b) If you request Delivery Services via an Aggregator Payment Processor:

(i) the Aggregator Payment Processor will be responsible for issuing a tax invoice to you;

(ii) you must pay all Fees and charges (including all additional fees or charges imposed by the Aggregator Payment Processor, if any) to the Aggregator Payment Processor in accordance with the Aggregator Terms, including the applicable timeframes; and

(iii) you understand and agree that in the event that you fail to pay the Fees and charges owed by you to Portier NZ to the Aggregator Payment Processor, Portier NZ may seek payment directly from you.

8. TAX

You are responsible for determining and setting the price for delivery and any applicable taxes on your Merchant Platform. You are the "supplier" of all Items (including delivery services related to such Items) for GST and other sales tax purposes and the responsible party for collection and remittance of the applicable taxes.

PART 3 – OWNERSHIP OF MATERIALS, CONFIDENTIALITY AND PRIVACY

This part describes the rights that you, Uber and Portier NZ have in relation to materials made available under this Agreement, including the Uber Tools provided to you.

It also describes what steps you, Uber and Portier NZ will take to protect Confidential Information and your obligations in respect of Personal Data, and other data shared by the parties in connection with this Agreement.

9. INTELLECTUAL PROPERTY

9.1 Ownership of Uber Materials

(a) Uber, its Affiliates and their respective licensors own, or have the rights to, the Uber Tools and all related materials and data (together, the Uber Materials). This includes all Intellectual Property Rights.

(b) The only rights that you have to the Uber Materials are the rights set out in this Agreement. All such rights to the Uber Materials are subject to the restrictions on use of the Uber Materials as set out in this Agreement, including the restrictions on use of the Uber Tools set out in the applicable Service Terms.

9.2 Restrictions on use of Uber Materials

(a) You agree to use the Uber Materials solely as set out in this Agreement. You must not, and must not authorise others to:

(i) licence, sublicense, lease, rent, sell, resell, give, transfer, assign, distribute or otherwise provide or make available the Uber Materials to any unaffiliated third party;

(ii) modify, copy or make derivative works based upon the Uber Materials;

(iii) improperly use the Uber Materials or any Delivery Service, including creating internet "links" to any part of the Uber Tools, "framing" or "mirroring" any part of the Uber Tools on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Uber Tools;

(iv) reverse engineer, decompile, modify, disassemble or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Uber Tools, except as allowed under applicable Law;

(v) send spam or otherwise unsolicited messages via the Uber Tools;

(vi) use the Uber Materials for any unlawful purpose; or

(vii) use the Uber Materials to: (A) display any offensive content or any content for which you do not have the right to share with Uber or its Affiliates or to display; (B) distribute unsolicited advertising or promotions; or (C) engage in fraudulent or unauthorised activity including phishing, pharming, spidering, harvesting, or other similar activities.

(b) In addition, you must not, and must not authorise others to, access or use the Uber Materials to:

(i) design or develop a competitive or substantially similar product or service to the Uber Direct Services or Uber Tools;

(ii) copy or extract any features or functionality of the Uber Tools;

(iii) launch or cause to be launched on or in connection with the Uber Tools a malicious automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program intended to overburden or hinder the operation and/or performance of the Uber Tools or the Delivery Services; or

(iv) attempt to gain unauthorised access to the Uber Tools or its related systems or networks; or

(v) unless otherwise agreed in writing with Uber, include any underlying Uber platform or product with competitors in any aggregated view (i.e. webpage, app, software, etc);

(vi) aggregate Uber's or its Affiliates' data with any competitors' data; or

(vii) parse or scrape any of Uber's or its Affiliates' data.

(c) You must not misrepresent or mask your identity or your access credentials when accessing or using the Uber Tools.

(d) You must not share with a third party (or enable a third party to use) any operational, technical or other data obtained through the use of the Uber Tools in any manner that is competitive to Uber or its Affiliates, including in connection with any application, website or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to Uber's or its Affiliates' products and services.

9.3 Licence to Each Party's Marks

(a) You grant to Uber and Portier NZ (and their Affiliates) a licence to use your Marks and Uber grants to you a licence to use Uber's Marks, each subject to the terms of this Agreement. You are only permitted to use Uber's Marks for the sole purpose of performing the activities permitted in this Agreement. Uber, Portier NZ and their Affiliates are only permitted to use your Marks for the purpose of performing the activities permitted in this Agreement (including promotional activities under section ‎10) and for displaying on their websites and in other public or private communications for their own marketing or promotional activities.

(b) The licences granted to you, Uber, Portier NZ (and their Affiliates) under section ‎‎9.3(a) continue for the Term. The licences are granted for no charge and are limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and royalty-free.

9.4 Restrictions on Use of Marks

(a) The rights of you, Uber, Portier NZ (and their Affiliates) to use the Marks licensed to them under section ‎‎9.3(a) are subject to the following restrictions:

(i) a party must only use the Marks in the form and format specified or approved by the owner of those Marks;

(ii) a party must not use the Marks for any purpose other than what is permitted in this Agreement, without the prior, express, written consent of the other party;

(iii) all goodwill related to the use of the Marks by another party (and, in the case of Uber or Portier NZ, by their Affiliates) will benefit the owner of those Marks and not any other party; and

(iv) each party licensing a Mark reserves the right to revoke the licence to use the Mark if that party reasonably considers that the quality of the other party's goods, services or performance of its obligations under this Agreement falls below an acceptable standard.

(b) You must not try to register, use or claim ownership over any of Uber's or any of their Affiliates' Marks.

(c) You must not bring a claim against Uber or Portier NZ, or any of their Affiliates or directors, officers, employees or agents, or assert a defence against any claim by any of those parties, alleging that any use or exploitation by them of your Marks in accordance with this Agreement infringes your rights (including Intellectual Property Rights).

(d) The rights of an authorised user under section 102 of the Trade Marks Act 2002 are expressly excluded from the licences granted under this section ‎‎9.

9.5 No Implied Rights

All rights (including Intellectual Property Rights) not granted under this Agreement by you, Uber, Portier NZ or any of their Affiliates, are expressly reserved.

10. PROMOTIONAL ACTIVITIES

You acknowledge and agree that Portier NZ and its Affiliates may:

(a) refer to you as a customer of Uber Direct through various promotional activities (e.g., Uber's social media channels, websites, advertisements or blogs);

(b) feature you, the Merchant Platform and your use of the Uber Direct Services in press releases or other public communications, provided that you will have the right to review and approve any such use, such approval not to be unreasonably withheld or delayed; and

(c) refer to you in other ways permitted by the Service Terms or as agreed by the parties in an Addendum.

11. FEEDBACK

(a) You may, but are not required to, provide Feedback. Uber's Feedback Policy applies to any Feedback provided to Portier NZ, Uber and/or any of their Affiliates.

(b) Portier NZ and its Affiliates may use, share, and display Feedback for any purpose related to their businesses without attribution to you or your approval.

12. USE OF DATA

12.1 Uber Data

(a) Uber Data (which may qualify as Personal Data) will be sent via your chosen Access Method(s) to you for the provision of Delivery Services.

(b) Subject to the terms of this Agreement, Uber grants to you and each Merchant Associate a non-exclusive, non-transferable, non-sublicensable, limited right and licence to use the Uber Data during the Term solely for the purposes set out in the Agreement and in accordance with applicable Data Protection Law.

12.2 Use and Restrictions for Uber Data

(a) Without limiting any restrictions set out in this Agreement, you will not, and must ensure that each Merchant Associate does not, process, store, aggregate, or otherwise use Uber Data in any manner except solely as necessary to facilitate the delivery of Items to Customers via the Delivery Services as contemplated by this Agreement (including any ancillary activities related to facilitating such delivery, which, for the avoidance of doubt, does not include using such Uber Data for marketing purposes).

(b) You will delete, and must ensure that each Merchant Associate deletes, all Uber Data and all notes, analyses, and compilations containing Uber Data within 2 months of receiving such data.

(c) You represent and warrant that you, and each Merchant Associate, will use the Uber Data solely for the purpose set out in section ‎‎‎‎12.1(b).

(d) Uber Data may include Personal Data. You represent and warrant that you, and each Merchant Associate, will comply with all applicable Data Protection Law and section ‎‎‎‎13 with respect to all Personal Data received from Uber or its Affiliates pursuant to this Agreement.

12.3 Merchant Data

(a) Merchant Data (which may qualify as Personal Data) will be sent via your chosen Access Method(s) to facilitate the provision of Delivery Services.

(b) Subject to the terms of this Agreement, you grant to Uber and its Affiliates a non-exclusive, non-transferable, non-sublicensable, limited right and licence to use the Merchant Data during the Term solely for the purposes set out in the Agreement and in accordance with applicable Data Protection Law, provided that any gratuity data or Delivery Person rating data that is included in the Merchant Data is subject to, and you grant to Uber and its Affiliates, an exclusive, perpetual licence to use such elements of the Merchant Data for any purpose in accordance with Uber's Privacy Notice (including sharing such information with Delivery Persons). For the avoidance of doubt, such licence will not terminate upon the termination of the Agreement.

(c) The licence set out in section ‎‎‎‎12.3(b) will include the right for Uber's and its Affiliates' subcontractors to use the Merchant Data, provided that:

(i) such use is solely for the benefit of Uber or any of its Affiliates in accordance with the terms of this Agreement; and

(ii) Uber will be fully responsible for each of their and their Affiliates' subcontractor's use of such Merchant Data.

(d) To the extent any Merchant Data is obtained from a third party (including a Merchant Associate), you represent and warrant that the third party:

(i) has expressly authorised you to access that data; and

(ii) has granted you the necessary licenses and rights in respect of that data to provide Uber and its Affiliates with the licences and rights set out in this Agreement (including this section ‎‎‎‎12.3).

12.4 Use and Restrictions for Merchant Data

(a) Without limiting any restrictions set out in this Agreement, Uber and its Affiliates will not process, store, aggregate, or otherwise use Merchant Data in any manner except:

(i) as required by Law;

(ii) for the provision of Delivery Services as contemplated by this Agreement (including any ancillary activities related to providing delivery, such as contacting Customers or Clients via SMS to provide delivery updates concerning an Order or to assist with the resolution of complaints concerning the Delivery Services);

(iii) for fraud detection and prevention, and safety purposes;

(iv) for product improvement, data analytics, and other internal business purposes;

(v) for contacting Customers or Clients in relation to safety incidents concerning an Order; or

(vi) for any other purpose described in the Service Terms or an Addendum.

(b) Uber represents and warrants that it will comply with all applicable Data Protection Law and section ‎‎‎‎13 with respect to all Personal Data received from you pursuant to this Agreement.

(c) You acknowledge and agree, and shall ensure that each Merchant Associate acknowledges and agrees, that the restrictions in sections ‎‎‎‎12.4(a) and ‎‎(b) do not apply to gratuity data or Delivery Person rating data that is included in the Merchant Data.

13. PRIVACY

13.1 Compliance with Data Protection Law

Each party must comply with, and you must ensure that each Merchant Associate complies with, the obligations applicable to it under the Data Protection Law with respect to the processing of Personal Data.

13.2 Restrictions

Uber and its Affiliates agree to only process Merchant Personal Data for the purposes set out in sections ‎‎‎‎12.3-‎‎‎‎12.4. You and each Merchant Associate agree to only process Uber Personal Data for the purposes set out in sections ‎‎‎‎12.1-‎‎‎‎12.2.

13.3 Security

(a) Uber and its Affiliates must implement appropriate technical and organisational measures to protect Merchant Personal Data against unauthorised or unlawful processing and against unauthorised loss, destruction, damage, alteration, or disclosure. Uber will promptly tell you if it becomes aware of any unauthorised access, modification, use, disclosure, loss of or interference with Merchant Personal Data provided to it or its Affiliates by you (Uber Data Breach), and must provide you with reasonable information and assistance for the purposes of investigating and responding to an Uber Data Breach.

(b) You, and each Merchant Associate, must implement appropriate technical and organisational measures to protect Uber Personal Data against unauthorised or unlawful processing and against unauthorised loss, destruction, damage, alteration, or disclosure. You will promptly tell Uber if you become aware of any unauthorised access, modification, use, disclosure, loss of or interference with Uber Personal Data provided to it by Uber or its Affiliate (Merchant Data Breach), and must provide Uber with reasonable information and assistance for the purposes of investigating and responding to a Merchant Data Breach.

13.4 Notifications

You must provide notice and obtain all necessary consents from Customers to enable Uber and its Affiliates to lawfully:

(a) process, store, aggregate, and otherwise use Merchant Data for the purposes set out under this Agreement; and

(b) collect evidence of the applicable proof of delivery and share that evidence with you for the purpose of verifying delivery.

13.5 Data Re-identification Restriction

Without limiting any other provision of this Agreement, including any provision in this section ‎‎‎‎13, you must not, and must ensure that all Merchant Associates do not, merge any of the Uber Data collected or otherwise obtained in connection with this Agreement, including any Uber Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

14. CONFIDENTIALITY

(a) A party to this Agreement may not disclose another party's Confidential Information to any third party except as permitted below.

(b) Each party:

(i) may only use and disclose the other party's Confidential Information to the extent necessary to perform this Agreement or enforce its rights;

(ii) must ensure that any third party (including, in your case, any Merchant Associate) who receives Confidential Information of another party under this Agreement maintains the confidentiality of that information; and

(iii) must not, and must not authorise others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the disclosing party's Confidential Information.

(c) Nothing in this section prevents a party from using or disclosing another party's Confidential Information to the extent that:

(i) the disclosing party has authorised the use or disclosure;

(ii) disclosure of the Confidential Information is required by Law or by order of a court; or

(iii) the receiving party reasonably considers it necessary to disclose the Confidential Information to a third party legal, tax or financial advisor in connection with this Agreement.

(d) Nothing in this Agreement limits your ability to collect, use and store information from Merchant Data provided the information is not Uber's Confidential Information.

(e) For the purpose of section ‎‎‎14(c)(i), if you are using an Aggregator Platform in connection with this Agreement, you authorise Uber and Portier NZ to disclose your Confidential Information to the Aggregator.

(f) Each party must, at another party's request, return or destroy the requesting party's Confidential Information (including all copies), except where that party needs to retain that information for the purpose of complying with its obligations under this Agreement, any Law or any court order.

15. PUBLICITY

Unless agreed by the parties in writing or as otherwise expressly permitted under this Agreement, you must not issue a press release or otherwise refer to Uber or Portier NZ in any manner in public (in relation to this Agreement or otherwise), without the prior written consent of the other party.

PART 4 – ALLOCATION OF RISK

This part describes the representations that you, Uber and Portier NZ give to each other, and sets out the indemnities provided by each party and the liability of each party.

The indemnity and liabilities sections help determine who is responsible under the Agreement if something goes wrong, or if a third party brings a claim against you, Uber or Portier NZ as a result of something going wrong under the Agreement. This part also contains important information about the insurance that you, Uber and Portier NZ are required to maintain.

16. REPRESENTATIONS AND WARRANTIES

(a) Each party represents and warrants to the other parties at all times throughout the Term that:

(i) it has full power and authority to enter into this Agreement and perform its obligations under this Agreement;

(ii) it is properly organised, validly existing and in good standing under the laws of the jurisdiction that it is incorporated under;

(iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement (in your case, including without limitation, any exclusive agreements with any Portier NZ competitor);

(iv) it is able to pay its debts as and when they fall due, it is not taken under applicable Laws to be unable to pay its debts, and it has not stopped or suspended, or threatened to stop or suspend, payment of all or a class of its debts;

(v) it will comply with all applicable Laws in its performance of this Agreement (including all Data Protection Laws); and

(vi) the content, media and other materials (including any Uber Materials, Marks or marketing materials) used or provided by a party as part of the performance of, or exercise of rights under, this Agreement do not, and will not, infringe or otherwise violate the Intellectual Property Rights, Moral Rights, rights of publicity or other proprietary rights of any third party.

(b) You also represent and warrant to Uber and Portier NZ at all times throughout the Term that:

(i) you are and each Merchant Associate is, the holder of all rights and authorisations to carry out its activity and that it complies with all Laws applicable to itself and its activity, including applicable retail, food, alcohol or other health and safety codes or Laws;

(ii) if Merchant or any Merchant Associate proposes to deliver food Items via Uber Direct, the Merchant or Merchant Associate (as applicable) has in place a national programme registration or food control plan with a delivery component;

(iii) you know the contents of Items to be transported via the Delivery Service;

(iv) each Order (including all Item(s)) transported via the Delivery Services complies with the Delivery Restrictions; and

(v) any information that you provide to Portier NZ, Uber or their Affiliates in connection with this Agreement (including your Business Name, NZBN or company number (as applicable), GST registration status and other information reasonably requested to provide any Delivery Services to you or any Merchant Associate) is accurate, complete and up-to-date.

17. DISCLAIMER

(a) To the maximum extent permitted by Law, except as expressly set out in this Agreement or as required under the New Zealand Consumer Law:

(i) Uber and Portier NZ make no representations, and expressly disclaim all warranties, express or implied, regarding the Uber Services or the Portier NZ 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;

(ii) Uber provides the Uber Tools and the Uber Data for no charge, on an "as is" and "as-available" basis, without warranty or indemnification of any kind. Uber makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, or availability of the Uber Tools or any information requested or obtained through the use of the Uber Tools;

(iii) Uber and its Affiliates do not guarantee the availability or uptime of the Uber Tools or that access or use of the Uber Tools will be error-free, uninterrupted virus-free, or secure;

(iv) Uber is not responsible for any display or other rendering of information provided to Uber via the Uber Direct API;

(v) you agree that the entire risk arising out of your use of the Uber Direct API, and any information requested or obtained in connection with the Uber Direct API, remains solely with you; and

(vi) Portier NZ does not guarantee the reliability, timeliness, quality, suitability or availability of the Delivery Services.

(b) You acknowledge that the Uber Tools may be unavailable due to scheduled maintenance, network failure or limitations, delays, and other problems inherent in the use of the internet and electronic communications.

(c) You are responsible for maintaining the integrity of information related to your access and use of the Uber Tools, including any password, login, access tokens or key information. Without limiting any other term of this Agreement, you represent and warrant that you will not share or solicit such information with or from any third party, without Uber’s express written consent.

(d) The limitations and disclaimers in this Agreement do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable Law, including the New Zealand Consumer Law.

(e) Contracting out of the Consumer Guarantees Act 1993: You acknowledge that Portier NZ is providing the Portier NZ Services, and that Uber is providing the Uber Services to you for the purposes of a business, and the parties agree that the Consumer Guarantees Act 1993 has no application to this Agreement or the supply of the Portier NZ Services or the Uber Services. Each party acknowledges and agrees that the terms of this section are fair and reasonable and that they have each been advised by and received separate legal advice in relation to the terms of this Agreement.

(f) Contracting out of the Fair Trading Act 1986: The parties confirm:

(i) that they are: (A) in trade; and (B) acting in trade in relation to the transactions contemplated by this Agreement; and

(ii) accordingly, that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 shall not apply in relation to this Agreement or as between the parties.

Each party acknowledges and agrees that the terms of this section are fair and reasonable and that they have each been advised by and received separate legal advice in relation to the terms of this Agreement.

18. INDEMNIFICATION

18.1 Indemnified Claims

(a) Subject to section ‎18.1(b), each party (the Indemnifying Party) must indemnify, defend (at the other party's option) and hold harmless the other party (the Indemnified Party), its Affiliates and their respective directors, officers, employees and agents from and against any and all Losses with respect to any Third Party Claim arising out of or related to any of the following:

(i) any death, personal injury or damage to tangible property (excluding Items) arising from:

(A) the fraud, negligence or wilful misconduct of the Indemnifying Party or its employees, agents or contractors;

(B) where you are the Indemnifying Party, any breach of section ‎4.2(a);

(ii) where Portier NZ is the Indemnifying Party, any loss, damage or theft in respect of any Item(s) transported via the Delivery Services arising from the fraud, negligence or wilful misconduct of Portier NZ or its employees, agents or contractors;

(iii) any claims that the Indemnifying Party breached its representations and warranties in this Agreement;

(iv) any claims that the Indemnifying Party's Marks or marketing materials infringe a third party's Intellectual Property Rights, as long as such Marks or marketing materials have been used in the manner approved by the Indemnifying Party under this Agreement;

(v) where you are the Indemnifying Party, your breach or alleged breach of sections ‎‎‎‎12.1 or ‎‎‎12.2;

(vi) where Uber is the Indemnifying Party, Uber's breach or alleged breach of sections ‎‎‎‎12.3 or ‎‎‎‎12.4;

(vii) a breach of section ‎‎‎‎13 by the Indemnifying Party or its employees or agents; or

(viii) where you are the Indemnifying Party, any breach of an obligation relating to the requirements for the delivery of Alcohol Items.

(b) The liability of an Indemnifying Party under section ‎‎‎18.1(a) will be reduced to the extent the relevant Loss arose from or was contributed to by the fraud, negligence or wilful misconduct of the Indemnified Party or its employees, agents or contractors (and, where you are the Indemnified Party, the fraud, negligence or wilful misconduct of Customers, any Merchant Associate or any of that Merchant Associate's employees, agents or contractors).

18.2 Procedure

(a) The Indemnified Party agrees to provide prompt notice to the Indemnifying Party of any potential Third Party Claim that would be subject to an indemnity in this Agreement.

(b) In relation to the defence of any Third Party Claim that would be subject to an indemnity in this Agreement, if a defence is requested by the Indemnified Party:

(i) the Indemnifying Party must defend the claim using legal counsel designated by the Indemnifying Party and reasonably acceptable to the Indemnified Party;

(ii) the Indemnifying Party must not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld; and

(iii) the Indemnified Party must reasonably cooperate with the Indemnifying Party in the defence of the Third Party Claim, at the Indemnifying Party's expense.

19. LIMITATION OF LIABILITY

19.1 General Limitations and Exclusions

(a) Subject to section ‎‎19.3, in no event will a party be liable for any claim for any indirect, wilful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business suffered or incurred by you or any third party (including any Merchant Associate) arising out of this Agreement, or loss or inaccuracy of data of any kind (except for any loss of data arising directly from a failure by the first party to comply with its obligations regarding the security of data in section 13.3), whether based on contract, tort or any other legal theory, even if the party has been advised of the possibility of such damages.

(b) Subject to sections ‎‎19.2-‎‎19.3, Uber's and Portier NZ’s combined total cumulative liability of each and every kind to you and all Merchant Associates under this Agreement will not exceed NZ$100,000, and your total cumulative liability of each and every kind to Uber and Portier NZ under this Agreement will not exceed NZ$100,000.

(c) The limitation and exclusion provisions in this section ‎‎‎19 apply regardless of the success or effectiveness of other remedies.

19.2 Further Limitation of Liability

(a) The liability of Portier NZ and its Affiliates excludes any Loss arising from your failure to comply with section 4.2(a) or any of the warranties in section ‎‎‎16(b).

(b) Subject to section 19.3, the liability of Portier NZ for any single claim relating to any Delivery Services (including under the indemnity in section 18.1(a)(ii)), is limited:

(i) for any loss arising from failure to provide the Delivery Services in accordance with this Agreement, to the supply of the relevant Delivery Services again, or the payment of the cost of resupplying the Delivery Services (at Portier NZ’s discretion); and

(ii) for any loss, damage or theft in respect of any Item(s) transported via the Delivery Services, to the Agreed Value (excluding GST).

19.3 Exception to Limitations and Exclusions of Liability

(a) The limitations and exclusions set out in sections ‎‎19.1 and ‎‎19.2(b) do not apply to:

(i) a party's indemnification obligations: (A) in sections ‎‎18.1(a)(i) and ‎18.1(a)(iii)-‎(viii); or (B) unless otherwise specified in the Service Terms;

(ii) any breach of confidentiality; or

(iii) your liability for Losses suffered or incurred as a result of acts or omissions of any Merchant Associate under or in connection with this Agreement, in which case your total cumulative liability of each and every kind to Uber and Portier NZ in respect of such Losses will not exceed NZ$100,000 per Merchant Associate, unless section ‎‎‎‎19.3(a)(i) or ‎‎‎‎(ii) applies.

(b) This section ‎‎19 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 New Zealand Consumer Law. If you are acquiring the services as a consumer, to the maximum extent permitted by law, Uber's and Portier NZ’s liability for a failure to comply with a consumer guarantee in relation to:

(i) the Delivery Services is limited to, at Portier NZ’s option, the supply of the relevant services again, or the payment of the cost of having the services supplied again; and

(ii) the Uber Tools is limited to, at Uber's option, the supply of the relevant services again, or the payment of the cost of having the services supplied again.

(c) Notwithstanding any other part of this Agreement, to the maximum extent permitted by law, Uber and Portier NZ have no liability in respect of any Loss that you, or any Merchant Associate, incurs in relation to any Aggregator Services, including your use or reliance on the Aggregator Services, except to the extent that any such Loss is directly caused by the fraudulent, unlawful or negligent act or omission of Uber, Portier NZ or their Affiliates.

20. INSURANCE

(a) Uber, Portier NZ and its Affiliates do not maintain insurance for loss, damage, or theft in respect of the Items transported via the Delivery Services. You (and each Merchant Associate) should contact an insurance agent or broker and independently determine whether insurance coverage is desired or required in connection with the Items being transported.

(b) Each party must maintain, and you must ensure that each Merchant Associate maintains, the following insurances during the Term and for one year thereafter:

(i) Commercial general liability insurance (including contractual liability, personal and advertising injury and products and completed operations): At least NZ$1,000,000 combined single limit per occurrence for bodily injury, death and property damage liability, and NZ$2,000,000 in aggregate.

(ii) Workers' compensation insurance (including employers' liability): At least NZ$1,000,000.

(c) The above insurance policies must be provided by reputable insurance companies authorised to do business in New Zealand and hold an A.M. Best financial rating of "A-", VII or better.

(d) The insurance held by you and each Merchant Associate under this section ‎‎20 must be primary and non-contributing to any insurance maintained or obtained by Uber, Portier NZ or its Affiliates and must not be cancelled or materially reduced unless you or the relevant Merchant Associate has provided at least thirty (30) days' prior written notice to Portier NZ.

(e) On reasonable request from a party, the other party must provide a certificate of insurance as evidence of the insurance it maintains in accordance with this section ‎‎20.

(f) The limits of an insurance policy maintained under this section ‎‎20 will not limit the liability of any party under this Agreement.

PART 5 – ENDING THE AGREEMENT

This part describes what steps you, Uber or Portier NZ need to take in order to end the Agreement, as well as the circumstances in which your access to the Uber Direct Services might be suspended or deactivated.

21. TERMINATION

21.1 Termination by Merchant

You may terminate this Agreement:

(a) at any time without cause, by giving thirty (30) days' prior written notice to Uber or Portier NZ;

(b) immediately by written notice to Uber or Portier NZ, if either of those parties commits a material breach of this Agreement and the breach is not cured within 2 days of the breaching party receiving written notice from you requiring that breach to be remedied; or

(c) immediately by written notice to Uber or Portier NZ, if:

(i) there has been an update to the General Terms, Service Terms, your Order Form or an Uber Policy or default fee on the Standard Fee Webpage, and that update detrimentally affects your rights under this Agreement; and

(ii) the notice of termination that you provide to Uber or Portier NZ under this section ‎‎21.1(c) is provided within 30 days after the date you were first notified of the relevant update.

21.2 Termination or Suspension by Uber or Portier NZ

(a) Uber or Portier NZ may, acting reasonably:

(i) terminate this Agreement in its entirety; or

(ii) restrict or deactivate your account or access to the Uber Direct Services,

for any legitimate business, legal or regulatory reason, by giving you 30 days' prior written notice.

(b) Uber or Portier NZ may immediately restrict or deactivate your account or access to the Uber Direct Services, and provide you with written notice of the restriction or deactivation, if:

(i) you or any Merchant Associate commit a material breach of this Agreement;

(ii) in Uber's or Portier NZ’s reasonable judgement, a temporary restriction or deactivation of your access to the Uber Tools or Delivery Services is appropriate while Uber or Portier NZ (as the case may be) investigate a serious complaint that you, any Merchant Associate, or any of your respective employees, agents or contractors have violated the Community Guidelines;

(iii) in Uber's or Portier NZ’s reasonable judgement (as the case may be), you, any Merchant Associate, or any of your or their respective employees, agents or contractors have violated the Community Guidelines;

(iv) in Uber's or Portier NZ’s reasonable judgement (as the case may be), an act or omission by you, any Merchant Associate, or any of your or their respective employees, agents or contractors has the potential to cause a Brand Matter; or

(v) with respect to the Delivery Services only, you, any Merchant Associate, or any of your or their respective employees, agents or contractors do not comply with the Delivery Restrictions.

(c) Uber or Portier NZ may restrict or deactivate your access to the Uber Direct Services if your Corporate Account is in arrears, by giving you 10 days' prior written notice and if you fail to remedy such issue within that time.

(d) Uber may restrict or deactivate your access to Uber Tools if at any time it has a reasonable belief that a material security or legal concern is caused by your or any Merchant Associate's use of any Uber Tools. Uber will make commercially reasonable efforts to:

(i) provide you with as much advance notice of such restriction or deactivation as is reasonably possible in the circumstance; and

(ii) restore your access to the Uber Tools as soon as reasonably practicable.

21.3 Termination or Expiry of Aggregator Terms

If:

(a) your only Access Method is an Aggregator Platform; and

(b) the Aggregator Terms are terminated or expire for any reason,

this Agreement will automatically terminate upon termination or expiry of the Aggregator Terms.

21.4 Survival

Accrued and outstanding payment obligations, sections ‎‎1, ‎‎5, ‎‎7, ‎‎8, ‎‎9, ‎‎12, ‎‎13, ‎‎14, ‎‎18, ‎‎19, ‎‎20 (for the period specified), ‎‎21.3, ‎‎22 and ‎‎23 survive the termination or expiry of this Agreement.

PART 6 – GENERAL LEGAL PROVISIONS

This part sets out additional standard provisions that describe how the Agreement operates, the laws that apply to this Agreement, as well as defined terms that have special meaning.

Importantly, this section also describes what steps Uber and Portier NZ need to take to update this Agreement, as well as your rights if you do not agree with a proposed update.

22. GENERAL PROVISIONS

22.1 Notice

(a) Notices under this Agreement must be sent to the address specified below, or an updated address provided by a party to the other by notice under this section. A notice will be considered to be received:

(i) on actual delivery, if delivery is by hand;

(ii) one day after being sent by overnight courier (charges prepaid); or

(iii) on actual delivery, if by electronic mail to the other party.

(b) Notices to Portier NZ should be provided to c/- PKF Goldsmith Fox, Level 1, 100 Moorhouse Avenue, Christchurch 8011, New Zealand or restaurants.anz@uber.com (for restaurants) or business-support@uber.com (for all other merchants). Notices to Uber should be provided to Burgerweeshuispad 301, 1076 HR, Amsterdam, the Netherlands or email to the relevant email address listed in the preceding sentence. Notices to you should be provided to the address or email address set out in the relevant Order Form, Addendum or in the sign-up process with either Uber or the Aggregator, or as otherwise notified to Uber and/or Portier NZ.

22.2 Modifications to the Agreement

(a) Uber and Portier NZ may modify the General Terms, Service Terms or an Order Form at any time by:

(i) for an Order Form, providing you with a new or varied Order Form by email – the modification will take effect on the effective date set out on that form;

(ii) for the General Terms or Service Terms, publishing a new version on the Uber website and letting you know by email – the modification will take effect from the date the General Terms or Service Terms are published on the Uber website or the date specified in a notification from Uber and Portier NZ under section ‎‎22.2(c) (whichever is later); or

(iii) an Addendum agreed from time to time by you, Uber and Portier NZ – the modification will take effect from the date specified in that Addendum.

(b) Uber and Portier NZ may also modify the Uber Policies or the Standard Fee Webpage from time to time by publishing a new version on the Uber website.

(c) If a modification to the General Terms, Service Terms, an Uber Policy, or the Standard Fee Webpage will be detrimental to your rights or obligations under this Agreement, Uber, Portier NZ, or one of their Affiliates will let you know at least 30 days before that modification is made. During that 30 day period, you have the right to terminate this Agreement in accordance with section ‎‎21.1(c).

(d) You will be deemed to have consented to the modifications made under this section if you continue to use the Uber Direct Services after the modifications have come into effect.

22.3 Governing Law

This Agreement is governed by and construed in accordance with the laws of New Zealand, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) will not apply.

22.4 Force Majeure Event

(a) Any delay in or failure by any party in performance of this Agreement is excused if and to the extent the delay or failure is caused by something that happens which is beyond the control of the affected party (a Force Majeure Event). Force Majeure Events can include decrees or restraints of local, state or federal government, acts of God, pandemics and epidemics (and any decrees or restraints required or recommended by local, state or federal government in connection with such pandemics or epidemics), strikes, work stoppage or other labour disturbances, war or sabotage.

(b) The affected party must promptly tell the other parties in writing upon becoming aware that any Force Majeure Event has occurred or is likely to occur. The affected party must use commercially reasonable efforts to minimise the impact of the Force Majeure Event.

22.5 Assignment and Subcontracting

(a) Portier NZ and Uber each have the right to assign or transfer this Agreement or any or all of their respective rights or obligations under this Agreement, in whole or in part, without obtaining your prior consent. You may not assign or transfer this Agreement, as the Agreement needs to remain with you. However, if Portier NZ or Uber assigns or transfers this Agreement or any of their rights or obligations, you have the right to terminate this Agreement immediately, by providing written notice of termination to Portier NZ or Uber within 30 days after the date you were first notified of the assignment or transfer.

(b) Portier NZ and Uber may each subcontract any of their obligations under this Agreement.

(c) Without limiting section ‎‎22.5(a), this Agreement binds, and will continue to benefit, each party to this Agreement and that party's respective successors and assignees.

22.6 Relationship Between the Parties

Nothing in this Agreement creates any partnership, joint venture, joint enterprise, or agency relationship among the parties, and no party or its employees has the right to make any decisions or enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other parties to this Agreement, except where the other party has provided written authorisation, executed by an authorised representative of that other party.

22.7 General Provisions

(a) Except where expressly agreed in this Agreement, each party is responsible for its own expenses and costs in connection with its performance of this Agreement.

(b) Each party is solely responsible for its employees and contractors used in connection with this Agreement.

(c) The failure of any party to enforce, at any time or for any period of time, the provisions of this Agreement, or the failure of any party to exercise any option under this Agreement, is not a waiver of that provision or option and does not in any way affect that party's right to enforce that provision or exercise that option.

(d) If a court of competent jurisdiction determines that a provision of this Agreement is invalid or unenforceable, the remainder of this Agreement (and to the extent practicable, the relevant provision) will remain in full force and effect.

(e) This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter of this Agreement, and this Agreement supersedes all prior and contemporary understandings and agreements, whether oral or written, relating the subject matter of this Agreement.

(f) The parties may enter into this Agreement by one of the methods described in section ‎‎1.1(a) of these General Terms. Without limiting the available methods, this Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument. Without limitation, you, Uber and Portier NZ each consent to this Agreement being executed or amended by electronic communication (including by exchange of electronically signed counterparts transmitted by PDF format).

(g) Nothing in this Agreement limits or excludes (nor is intended to limit or exclude) any statutory rights that you may have under applicable Law that cannot be lawfully limited or excluded.

23. DEFINITIONS AND INTERPRETATION

23.1 Definitions

In this Agreement:

Access Method means the specific service you have chosen that enables you to request Delivery Services. Available Access Methods are described in the Service Terms and include the Dashboard, the Uber Direct API and Aggregator Platforms.

Active Area means the maximum geographic area in which Portier NZ will provide Delivery Services, as amended by Portier NZ from time to time.

Addendum means any additional terms and conditions, titled "addendum", "supplemental terms" or similar, referencing these General Terms which have been agreed by you, Uber and Portier NZ in writing from time to time.

Affiliate means an entity that, directly or indirectly, Controls, is under the Control of, or is under common Control with a party.

Aggregator means the third party that provides the Aggregator Services.

Aggregator Payment Processor means an Aggregator that:

(a)provides you with billing or payment processing services; and

(b) collects the Fees from you on Portier NZ’s behalf.

Aggregator Platform means a platform owned, operated, managed or otherwise controlled by a third party that:

(a) is authorised to be integrated with Uber's APIs or systems; and

(b) allows you to place requests for Delivery Services,

including but not limited to a third party API, mobile application, cloud platform and/or website.

Aggregator Services means the provision of the Aggregator Platform and any related services provided to you or any Merchant Associate by the Aggregator, its Affiliates or their respective employees, agents or contractors.

Aggregator Terms means the terms and conditions that apply to your access and use of the Aggregator Service, as agreed between you and the Aggregator.

Agreed Value means:

(a) for restaurant food, the retail value of the Order; and

(b) for other Items, either (i) the warehouse price incurred by Merchant to acquire the Item(s); or (ii) where the warehouse price is not ascertainable, 70% of the retail value of the Order.

Agreement has the meaning given in section ‎1.1(a).

Alcohol Item means any Item that you make available to Customers, that is an alcoholic beverage.

Brand Matter means an act or omission that has the potential to cause adverse publicity, media attention or regulatory scrutiny or other issues that could detrimentally impact the reputation, good name, brand or Marks of Uber, Portier NZ or any of their Affiliates, including matters of safety.

Client means any client of a Reseller Merchant who requests delivery services via a Reseller Platform for the purpose of delivering Items to Customers.

Community Guidelines means the policy available at https://www.uber.com/legal/en/document/?name=general-community-guidelines&country=new-zealand&lang=en (or a replacement URL) as updated from time to time.

Conditions Precedent has the meaning given in section 1.3(a).

Confidential Information means any confidential, proprietary or other non-public information disclosed by one party (the disclosing party) to the other (the receiving party), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information does not include information that:

(a) was previously known to the receiving party without an obligation of confidentiality;

(b) was acquired by the receiving party without any obligation of confidentiality from a third party with the right to make such disclosure; or

(c) is or becomes publicly available through no fault of the receiving party.

Uber's Confidential Information includes the Uber Materials, the information relating to Uber Direct Services (other than Merchant Data) and the Uber Data. Your Confidential Information includes the Merchant Data.

Control means having more than 50% of the voting stock or other ownership interest or the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of the other entity are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that other entity on any distribution by it of all of its income or the majority of its assets on winding up.

Corporate Account means a corporate account created to enable you to access Uber Direct.

Customer means: (a) where you are not a Reseller Merchant, a customer of you or a Merchant Associate; or (b) where you are a Reseller Merchant, a customer of a Client.

Dashboard means the browser-based online dashboard technology system provided by Uber that allows you to, among other things, request Delivery Services.

Data Protection Law means all applicable Laws imposing an obligation in relation to the collection, use, disclosure, storage or transmission of personal information (including health information), including any codes, principles or guidelines contained in or arising out of such Laws, including the Privacy Act 2020 and the Privacy Regulations 2020.

Delivery Fee means the fees paid by you to Portier NZ in exchange for the Delivery Services, as calculated in accordance with the pricing set out on the Standard Fee Webpage or as otherwise agreed to by the parties in writing.

Delivery Person means an independent contractor who may be subcontracted by Portier NZ to undertake the Delivery Services. A Delivery Person is not an employee of Uber, Portier NZ or any of their Affiliates and may delegate to another person to undertake the Delivery Services.

Delivery Restrictions means the restrictions and guidelines available at the following URL (or a replacement URL) as updated from time to time: https://www.uber.com/en-NZ/blog/direct-connect-restrictions-and-guidelines.

Delivery Services means the provision of delivery services in relation to your Orders provided by Portier NZ as requested by you via an available Access Method.

Effective Date means the earlier of:

(a) the date you click a box indicating your acceptance of these terms; and

(b) the "Effective Date" set out in your Order Form or an Addendum (if any).

Fee means the amounts that you agree to pay Portier NZ for the provision of Delivery Services under this Agreement, including the Delivery Fee and any Other Fees, as set out on the Standard Fee Webpage or as otherwise agreed to by the parties in writing.

Feedback means feedback relating to Portier NZ’s, Uber's and/or their Affiliate's services.

Feedback Policy means the terms related to Feedback provided to Uber, Portier NZ (or their Affiliates) on your behalf in New Zealand, available at https://www.uber.com/legal/en/document/?name=feedback-policy&country=new-zealand&lang=en (or a replacement URL).

Force Majeure Event has the meaning given to it in section ‎‎22.4(a).

Franchisee means your franchisees, who are not owned or operated by you or your Affiliates, using a brand or name permitted to be used by you under your agreement with that franchisee.

General Terms means the terms and conditions set out in this document.

Head Merchant means a merchant who has entered into an Uber Direct agreement and who wishes to extend the terms of that agreement to Decentralised Merchant Associates. For the avoidance of doubt, any agreement between Uber, Portier NZ and a Decentralised Merchant Associate will form a separate agreement that references the Head Merchant agreement.

Indemnified Party has the meaning given to it in section ‎‎18.1(a).

Indemnifying Party has the meaning given to it in section ‎‎18.1(a).

Initial Term has the meaning given to it in section ‎‎2(a).

Intellectual Property Rights means all present and future rights conferred by Law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and Confidential Information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:

(a) all rights in all applications to register these rights;

(b) all renewals and extensions of these rights; and

(c) all rights in the nature of these rights, excluding Moral Rights.

Items means any items that you or a Merchant Associate make available to Customers via your Merchant Platform.

Law means any law (including subordinate or delegated legislation or statutory instruments of any kind) and also any judgment, order, policy, guideline, official directive or request (even if it does not have the force of law) of any government agency or regulatory body, including a stock exchange, applicable to any of the parties, as amended or replaced from time to time.

Losses means all claims, damages, losses and expenses (including reasonable legal fees).

Marks means any trade marks, service marks, trade names, business names, copyrights, logos, slogans and other identifying symbols and indicia (both registered and unregistered) of the applicable party and any Intellectual Property Rights in them.

Merchant Associate means:

(a) any of your Affiliates and/or Franchisees, that utilise, or assist you in utilising, the Delivery Services in connection with this Agreement, including by:

(i) using the Uber Tools, Aggregator Platform or a Reseller Platform; or

(ii) facilitating or fulfilling Orders;

(b) where you are a Reseller Merchant, your Clients; and

(c) other third parties approved by Portier NZ in writing.

Merchant Associate Requirements means a set of provisions determined by Uber and Portier NZ that are applicable in relation to a Merchant Associate's use of the Delivery Services, as notified to you and amended by Uber or Portier NZ from time to time.

Merchant Data means the following data and information: (a) Customer's full name; (b) Customer's delivery address; (c) Customer's phone number; (d) Customer's email address; (e) corresponding Order details; (f) your, or a Merchant Associate's, generated Customer ID; and (g) information shared to Uber or its Affiliates by you, or any Merchant Associate, in relation to a Customer complaint. For the avoidance of doubt, Merchant Data may qualify as Merchant Personal Data.

Merchant Data Breach has the meaning given to it in section ‎‎13.3(b).

Merchant Personal Data means any Personal Data provided by you, or any Merchant Associate, to Uber for the purpose of Portier NZ providing the Delivery Services to you, including for the avoidance of doubt, Merchant Data. For the purposes of this Agreement, Merchant Personal Data does not include the name and contact information of your or Merchant Associate's employees who are responsible for interacting with Portier NZ and its Affiliates in connection with its performance of the Agreement, and any Personal Data incidentally received by Uber or its Affiliates in connection with those interactions.

Merchant Platform means any method by which Customers may place Orders with you or a Merchant Associate, including but not limited to your or any Merchant Associate's mobile application and/or website.

Moral Rights means rights of integrity of authorship, rights of attribution or authorship, rights not to have authorship falsely attributed, and rights of a similar nature conferred by statute in anywhere in the world that may now exist or that may come to exist in relation to the work.

New Zealand Consumer Law means the Consumer Guarantees Act 1993, Fair Trading Act 1986 and other applicable Laws relating to consumer protection.

Order means any order for delivery of Item(s) placed by Customers using the Merchant Platform in connection with Delivery Services.

Order Form means a document titled "Order Form" (or a similar name) that refers to these General Terms and includes details about you, pricing and may include additional terms, that is agreed by Uber, Portier NZ and you, as amended or replaced by any variation to that Order Form that has taken effect in accordance with section ‎‎22.2.

Other Fees means any fees that may be payable by you, excluding the Delivery Fee, as set out on the Standard Fee Webpage or as otherwise agreed to by the parties in writing.

Payment Statement has the meaning given to it in section ‎‎7.6(a).

Personal Data means any information obtained in connection with this Agreement: (a) relating to an identified or identifiable natural person; (b) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and (c) any information that may otherwise be considered "personal data" or "personal information" under Data Protection Law.

Portier NZ Services has the meaning given in section ‎‎3.2(a).

Renewal Term has the meaning given to it in section ‎‎2(a).

Reseller Merchant means a merchant that provides services which enable a Client to request delivery services via a Reseller Platform, where those delivery services may be provided by one or more different providers (including Portier NZ).

Reseller Platform means any method by which Clients may place delivery requests with a Reseller Merchant, including but not limited to that Reseller Merchant's mobile application and/or website.

Self Sign-Up Form means the form available at https://merchants.ubereats.com/nz/en/services/uber-direct/ (or a replacement URL) as updated from time to time.

Service Terms means specific terms and conditions applicable to particular services (including Access Methods) that you may choose, available at https://www.uber.com/legal/en/document/?name=uber-direct-merchant-service-terms&country=new-zealand&lang=en (or a replacement URL) and updated by Uber and Portier NZ from time to time, as well as any additional service terms and conditions agreed by the parties in writing.

Standard Fee Webpage means the webpage available at https://merchants.ubereats.com/nz/en/services/uber-direct/#pricing (or a replacement URL) and updated by Uber and Portier NZ from time to time.

Term means the Initial Term and any Renewal Term.

Third Party Claim means a claim brought against a party by a third party, excluding a claim brought against:

(a) a party by any of its Affiliates; or

(b) you by any of your Merchant Associates.

Uber Data means the following data and information: (a) Delivery Person's first name and last initial; (b) Delivery Person's anonymised phone number; (c) Delivery Person's partial licence plate (last 4 digits); (d) make and model of Delivery Person's vehicle; (e) Delivery Person's obfuscated latitude as defined by Uber and its Affiliates; and (f) evidence of the applicable proof of delivery. For the avoidance of doubt, Uber Data may qualify as Uber Personal Data.

Uber Data Breach has the meaning given to it in section ‎‎13.3(a).

Uber Direct means the product that, in connection with Uber and its Affiliates' technology systems, enables you to request Delivery Services via the available Access Methods.

Uber Direct API means Uber's proprietary application programming interface (API) that enables the sharing of Merchant Data and Uber Data.

Uber Direct Services means the Uber Services and the Portier NZ Services.

Uber Materials has the meaning given to it in section ‎‎9.1(a).

Uber Personal Data means any Personal Data provided by Uber to you or a Merchant Associate for the purpose of Portier NZ providing the Delivery Services, including for the avoidance of doubt, Uber Data. For the purposes of this Agreement, Uber Personal Data does not include the name and contact information of those employees who are responsible for interacting with you on behalf of Uber and its Affiliates in connection with its performance of the Agreement, and any Personal Data incidentally received by you in connection with those interactions.

Uber Policies means the following standard policies of Uber, Portier NZ and their Affiliates that apply to the use of the Uber Direct Services: Delivery Restrictions, Feedback Policy, and Community Guidelines.

Uber Services has the meaning given in section ‎‎3.2(b).

Uber Tools means the Dashboard, Uber Direct API and any other future Uber technology used to request Delivery Services, as specified in the Service Terms and as applicable to your chosen Access Method.

Uber's Privacy Notice means the privacy notice available at the following URL (or a replacement URL) as updated from time to time: https://www.uber.com/legal/en/document/?name=privacy-notice&country=new-zealand&lang=en-au.

23.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a) headings and information boxes are for convenience only, and do not affect interpretation;

(b) reference to any document includes reference to that document as amended, novated, supplemented, or replaced from time to time;

(c) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;

(d) if an example is given of anything, such as by saying it includes something else, the example does not limit the scope of that thing; and

(e) "written" and "in writing" include any means of reproducing words, figures or symbols in a tangible and visible form.