Uber Delivery - API Terms of Use (New Zealand)

These Uber Delivery API Terms of Use (API TOU) apply to the agreement entered into between the person identified in the API Order Form or Addendum (as applicable) (Provider or you) and Uber Portier B.V. (Uber) (together, the parties) for the use of the APIs and the API Services, unless otherwise agreed between the parties.

1. STRUCTURE OF THE API LICENSING AGREEMENT

(a) If:

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

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

you enter into an agreement with Uber (the API Licensing Agreement), and agree to be bound by that API Licensing Agreement. The API Licensing Agreement will consist of the following documents:

(b) The document that is higher in the above list will apply if there is any conflict between those documents.

2. APPLICATIONS AND APPLICATION PROGRAMMING INTERFACES

2.1 Uber Ownership

(a) Uber or its Affiliates owns all rights, titles and interests, including without limitation all Intellectual Property Rights and other rights, in and to:

(i) its software applications and other proprietary technology, including any underlying data or data structures therein, accompanying documentation, and any updates or revisions to the foregoing (collectively, the Uber Applications); and

(ii) the APIs and related developer tools (including any webhooks) made available by Uber that permit your applications to interface with Uber Applications, including any underlying data or data structures therein, accompanying documentation, and any updates or revisions to the foregoing (collectively, the APIs).

All rights not specifically conveyed are retained by Uber.

(b) You acknowledge that Uber may update the APIs from time to time.

2.2 APIs

(a) Subject to the terms and conditions of this API Licensing Agreement, Uber will provide you with access to the APIs selected in your API Order Form or your Addendum (as applicable). For clarity, this API Licensing Agreement applies only to your access to and use of the APIs selected in your API Order Form or Addendum (as applicable).

(b) Except as expressly specified in this API Licensing Agreement:

(i) neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights; and

(ii) all rights not granted are expressly reserved.

2.3 Uber Licence Grant

(a) Subject to the terms and conditions of this API Licensing Agreement, Uber hereby grants you for no charge a revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, non-assignable limited licence to use the APIs specified above (and no other APIs) during the Term in the Territory solely for the purpose specified in your API Order Form or Addendum (as applicable) for that API (Permitted Purpose).

(b) Upon termination or expiration of this API Licensing Agreement for any reason, the licence granted under section 2.3(a) will automatically revoke and you must cease any access to or use of the API Services.

2.4 Your Products

(a) Subject to the rights granted to Uber and limitations in these Terms, you reserve and retain sole and exclusive ownership of all right, title, and interest in and to:

(i) your extensions and applications; and

(ii) all modifications, corrections, repairs, translations, enhancements, and other derivative works and improvements of your extensions and applications,

(Your Products), to the extent Your Products do not infringe any of Uber’s Intellectual Property Rights. You are solely responsible for all costs incurred by you in the creation and maintenance of Your Products.

(b) You are solely responsible for selecting all content made available through and contained in Your Products and for ensuring that such content complies with this API Licensing Agreement and any other requirements applicable to such content. You are fully responsible for any information you provide to Uber via the APIs.

(c) You represent and warrant that:

(i) you have the right to distribute, or otherwise make available Your Products to your end users;

(ii) Your Products comply with all applicable Laws as well as applicable terms of service and privacy notices; and

(iii) Your Products do not and will not infringe the rights of any third party.

2.5 Third Party Content

The API Services may contain content owned by a third party. This content is the sole responsibility of the third party that makes it available. Additionally, content accessible through APIs and Uber Applications may be subject to the Intellectual Property Rights of third parties. User-generated content obtained by Uber will be governed by Uber’s User Generated Content Policy.

2.6 License and Use Restrictions

(a) Uber sets and enforces limitations on the use of APIs. You must not circumvent, or attempt to circumvent, such limitations as they apply to each API or as otherwise set forth in this API Licensing Agreement, except as approved in writing by Uber. Uber may limit the number or nature of network calls that you or your application may make. Uber may change such usage limits from time to time in accordance with the terms of this API Licensing Agreement and may use any reasonable means to enforce its usage limitations or prevent overuse of the APIs.

(b) Unless permitted by applicable Law or otherwise agreed in writing with Uber, you will not, and will not direct, encourage, or assist any other party to:

(i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the API Services;

(ii) modify or make derivative works based upon the API Services;

(iii) improperly use the API Services, including: (A) creating internet “links” to any part of the API Services, “framing” or “mirroring” any part of the API Services on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the APIs; or (B) transmitting any viruses or other code that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data;

(iv) reverse engineer, decompile, or disassemble the API Services;

(v) send spam or otherwise duplicative or unsolicited messages with the APIs; or

(vi) use the APIs to: (A) display any offensive content or any content for which you do not have the right to share with Uber 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.

(c) Unless otherwise agreed in writing with Uber, you must not, and must not direct, encourage, or assist any other party to, access or use the API Services to:

(i) design or develop a competitive or substantially similar product or service;

(ii) copy or extract any features or functionality from the API Services;

(iii) launch or cause to be launched on or in connection with the API Services 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 API Services;

(iv) attempt to gain unauthorised access to the API Services or its related systems or networks;

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

(vi) aggregate Uber’s data with any competitors’ data; or

(vii) parse or scrape any of Uber’s data.

(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 API Services in any manner that is competitive to Uber, 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 products and services.

2.7 Retention of Rights

As between the parties:

(a) you retain all rights, titles and interests in and to your application program interfaces, if applicable, including the technology and software you use to provide them; and

(b) Uber retains all rights, titles and interests in and to the intellectual property described in section 2.1 and the Uber Applications and API Services, including the technology and software Uber or its Affiliates uses to provide them.

3. USE OF APIS

3.1 Requirements to use API Services

You may not use the API Services if you:

(a) are not of legal age to form a binding contract with Uber;

(b) determine that you are unable to comply with this API Licensing Agreement; or

(c) you are prohibited by applicable Law from accessing or using the API Services.

3.2 Your End Users

If you offer your application for use by others outside of your entity, you must maintain a user agreement and a legally compliant privacy policy for your application that is prominently identified or located where users download or access your application. You must immediately notify us in writing of any breach of your user agreement or privacy policy that impacts, or may impact, customers or users of Uber’s products or services.

3.3 Compliance

(a) Your access, implementation and use of the API Services must be in compliance with all applicable:

(i) Laws (including, without limitation, laws regarding the import or export of data or software, privacy, and local laws);

(ii) third party rights (including any applicable Intellectual Property Rights); and

(iii) Uber instructions.

(b) You represent and warrant that you will only use the API Services in connection with legally permissible activities in accordance with the terms of this API Licensing Agreement.

(c) You must not engage in any practice which would violate any national or international law regarding slavery or human trafficking. You must notify Uber as soon as you become aware of any actual or suspected slavery or human trafficking in a supply chain that has a connection with this API Licensing Agreement.

(d) Uber may require you to promptly certify certain aspects of your compliance with this API Licensing Agreement, including:

(i) your compliance with this section 3.3; and

(ii) your security and data use practices (including the details of any privacy or security incidents relating to services provided by Uber and its Affiliates (including this Agreement), or otherwise potentially involving data of Uber users).

Uber will provide the form of certification which must be signed by an authorised officer of your entity.

4. UBER MARKS; ATTRIBUTION

4.1 Uber Marks

You agree that you will not use Uber’s, or its Affiliates’, trademarks, service marks, or trade dress or any similar names, marks, or trade dress (Uber Marks) without express, written permission from Uber. This prohibition on using Uber’s Marks includes, but is not limited to, use in domain names, on websites or social media accounts, or as the names or titles of software applications or software features or functions.

4.2 Attribution

(a) Neither party grants the other party any right, title, or interest in or to the other party’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You must not make any statement regarding your use of the API Services which disparages Uber or its business partners.

(b) The documentation for the API you use may include guidelines for providing attribution to Uber. You agree to provide any attribution in accordance with the guidelines and as further described in our design guidelines (available at https://developer.uber.com/docs/riders/guides/design-guidelines, or a replacement link), which may be updated from time to time. You can use these resources but you must not make any changes or modifications to them.

4.3 Your Content and Marks

(a) Uber may:

(i) produce and distribute incidental depictions, including screenshots, video, or other content from your API client; and

(ii) use your company or product name, trademarks, and trade dress,

(together Your Content and Marks) in the course of Uber’s worldwide promotion, marketing, or demonstration of the API Services you are using.

(b) You grant Uber for no charge a worldwide, perpetual, irrevocable, transferable, license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit Your Content and Marks in any manner for purposes referred to in section 2.4(a) without further notice to or consent from you.

5. FEEDBACK

(a) You may, but are not required to, provide feedback relating to Uber’s and/or its Affiliate’s services (Feedback). Uber’s Feedback Policy applies to any Feedback provided to Uber and/or any of its Affiliates.

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

6. CONFIDENTIAL INFORMATION AND DATA

6.1 Confidential Information

(a) A party to this API Licensing 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 API Licensing Agreement or enforce its rights;

(ii) must ensure that any third party who receives Confidential Information of another party under this API Licensing 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 6 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; or

(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 API Licensing Agreement.

(d) 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 API Licensing Agreement, any Law or any court order.

6.2 Uber Data

Where Uber Data includes non-public content relating to a user, such content must not be exposed to other users or to third parties without proper consent from that user.

6.3 Merchant Data

You represent and warrant that Merchant has expressly authorised you to access its data, including Merchant Data.

6.4 Privacy

(a) The terms and conditions of the Uber Privacy Notice will apply to Uber’s collection, use and processing of Personal Data.

(b) Each party must comply with all applicable Data Protection Laws in connection with the API Services and its activities under this API Licensing Agreement.

(c) If your use of the API Services or access to Uber Data requires or will likely result in the provision of Personal Data directly to Uber:

(i) you agree to adequately inform and obtain all necessary consents and authorisations from the applicable users to provide such Personal Data to Uber and retain written records of such consents; and

(ii) Uber will treat Personal Data obtained from you through your use of the APIs in accordance with the applicable Data Protection Laws and the Uber Privacy Notice.

6.5 Data Re-identification Restriction

Without limiting any other provision of this API Licensing Agreement, including any provision in this section 6, you must not merge any Uber Data, including any Uber Personal Data, with other data collected from any source or otherwise use any of the Uber Data, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

6.6 Security

You 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 you by Uber or its Affiliate (Provider Data Breach), and must promptly provide Uber with reasonable information and assistance for the purposes of investigating and responding to any non-compliance with any privacy obligations under this API Licensing Agreement, Provider Data Breach, or request from a customer or for a party’s compliance with Data Protection Laws.

6.7 Uber Audits

(a) Upon reasonable advance written notice, Uber may (not more than once per year, unless there has been an actual or suspected breach of this API Licensing Agreement) during normal business hours and at its own expense, audit your facilities, networks, systems, procedures, processing and maintenance of Uber Data, as well as its compliance with this API Licensing Agreement (Data Audit).

(b) You must reasonably cooperate with each Data Audit by providing access to knowledgeable personnel, physical premises as applicable, documentation, infrastructure, and any application software that processes Uber’s Confidential Information and/or Uber Data or otherwise has access to Uber’s networks and systems.

(c) Uber will be responsible for its costs and expenses of each Data Audit (or the fees and costs of the third party performing the Data Audit), unless the Data Audit reveals, or is initiated because of, a material breach of this API Licensing Agreement, in which case you will reimburse Uber for such costs and expenses.

(d) You must promptly address and correct all deficiencies identified in any Data Audit.

7. PASSWORDS

(a) To access the API Services, you may be required to register. After an approved registration, you will be issued certain credentials, which may be required to access the APIs. You may not make credentials available to third parties including by embedding them in open source projects and only you may access the API Services with the credentials provided to you. You will not misrepresent or mask your identity or your credentials when accessing or using the API Services.

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

8. TERM AND TERMINATION

8.1 Term

(a) This API Licensing Agreement starts on the Effective Date and remains in effect for one (1) year (the Initial Term).

(b) At the end of the Initial Term, this API Licensing Agreement will automatically renew for successive one (1) year periods (each a Renewal Term and collectively with the Initial Term, the Term).

8.2 Termination by you

You may terminate this API Licensing Agreement:

(a) at any time without cause, by giving 60 days’ prior written notice to Uber;

(b) immediately by written notice to Uber, if Uber commits a material breach of this API Licensing Agreement and the breach is not cured within 14 days of Uber receiving written notice from you requiring that breach to be remedied;

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

(i) there has been an update to this API Licensing Agreement and that update detrimentally affects your rights under this API Licensing Agreement; and

(ii) the notice of termination that you provide to Uber under this section 8.2(c) is provided within 30 days after the date you were first notified of the relevant update; or

(d) immediately by written notice to Uber, if Uber is subject to an Insolvency Event.

8.3 Termination or suspension by Uber

(a) Uber may, acting reasonably:

(i) terminate this API Licensing Agreement in its entirety; or

(ii) restrict or deactivate your account or access to the Uber Applications, API Services, Uber Data or any service,

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

(b) Uber may also immediately terminate this API Licensing Agreement, or restrict or deactivate your access to the Uber Applications, API Services, Uber Data or any service, and provide you with written notice of the termination, restriction or deactivation, if:

(i) you commit a material breach of this API Licensing Agreement, provided that Uber will not terminate the API Licensing Agreement unless:

(A) the breach is not curable; or

(B) the breach is curable and the breach is not cured within 14 days of you receiving written notice from Uber requiring that breach to be remedied;

(ii) you are subject to an Insolvency Event; or

(iii) you are no longer providing services to any Merchants in connection with this API Licensing Agreement.

(c) Uber may suspend or terminate or make unavailable access to API Services if at any time it has a material reasonable security or legal concern caused by you or the Merchant’s use of any API Services. Uber will make commercially reasonable efforts to provide you with as much advance notice of such suspension or termination as possible and restore access as soon as reasonably practicable.

8.4 Mutual Termination Right

Either party may immediately terminate this API Licensing Agreement, and provide you with written notice of the termination, if:

(a) you are a Merchant; and

(b) your Uber Merchant Agreement(s) are terminated or expire for any reason.

8.5 Transition Out

If you terminate this API Licensing Agreement for convenience pursuant to section 8.2(a), you must:

(a) promptly notify each Merchant receiving services from you in connection with this API Licensing Agreement; and

(b) provide all reasonably necessary transition assistance to each Merchant receiving services from you in connection with this API Licensing Agreement, to ensure that each Merchant continues to be able to receive services under their Uber Merchant Agreement and any necessary API services (whether directly provided by Uber or through another third party API service provider).

8.6 Survival

The parties acknowledge and agree that sections 1, 2.1, 2.3(c), 2.4-2.7, 4, 5, 6, 8.5, 8.6 and 12-15 survive the expiration and termination of this API Licensing Agreement.

9. DISCLAIMERS

(a) Except as expressly set forth in this API Licensing Agreement or as required under the Consumer Law:

(i) neither party makes any representations, and expressly disclaims all warranties, express or implied, regarding its goods and services or any portion of them, including any implied warranties of merchantability or fitness for a particular purpose and implied warranties arising from any course of dealing or course of performance;

(ii) Uber provides the API Service(s), the Uber Applications, and the Uber Data for no charge, “as is” and on an “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 API Services or any information requested or obtained through the use of the API Services;

(iii) Uber does not warrant that the API(s), the Uber Applications, or the Uber Data will meet your or the Merchant’s requirements or that use 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 APIs; and

(v) to the maximum extent permitted by Law, you agree that the entire risk arising out of your use of the API Services, and any information requested or obtained in connection with the API Services, remains solely with you.

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

(c) The limitations and disclaimers in this section 9 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable Law, including the Consumer Law.

10. REPRESENTATIONS AND WARRANTIES

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

(i) it has full power and authority to enter into this API Licensing Agreement and perform its obligations under this API Licensing 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 API Licensing Agreement (in your case, including any exclusive agreements with any Uber 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 API Licensing Agreement (including all Data Protection Laws); and

(vi) the content, media and other materials used or provided by that party or as part of the performance of, or exercise of rights under, this API Licensing 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) If, at any time, you cannot make the representations and warranties in section 10(a), you must immediately discontinue all access and use of the API Services.

(c) Each party represents and warrants that it:

(i) will not intentionally include Unauthorised Code via any API; and

(ii) will use commercially reasonable efforts to maintain physical, technical, and administrative safeguards reasonably designed and implemented to detect and protect against the introduction of Unauthorised Code into its platform in accordance with generally-accepted industry practices.

11. INDEMNIFIED CLAIMS

11.1 Indemnities

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 claims, damages, losses and expenses (including reasonable legal fees) with respect to any third party claim arising out of or related to any of the following:

(a) the negligence or wilful misconduct of the Indemnifying Party and its employees or agents;

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

(c) any non-compliance with applicable Data Protection Laws by the Indemnifying Party or its employees or agents in connection with this API Licensing Agreement;

(d) where you are the Indemnifying Party:

(i) your use of the API Services or information obtained through your use of the API Services;

(ii) your breach or violation of this API Licensing Agreement; or

(iii) your violation of the rights of any third party, including with respect to any third party content.

11.2 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 API Licensing Agreement.

(b) In relation to the defence of any third party claim that would be subject to an indemnity in this API Licensing 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.

12. LIMITATION OF LIABILITY.

12.1 Limitations and Exclusions of Liability

(a) Subject to section 12.2, 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, any Merchant or any third party arising out of this API Licensing Agreement, or loss or inaccuracy of data of any kind, 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 section 12.2, Uber’s combined total cumulative liability of each and every kind to you under this API Licensing Agreement will not exceed AU$1,000.

(c) The limitation and exclusion provisions above apply regardless of the success or effectiveness of other remedies.

12.2 Exception to Limitations and Exclusions of Liability

(a) Subject to section 12.2(b), the limitations and exclusions set out in section 12.1 do not apply to a party’s indemnification obligations, breaches of Uber’s (or its Affiliates’) Intellectual Property Rights in the API Services or any breach of confidentiality.

(b) This section 12 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 the Consumer Law. To the maximum extent permitted by law, Uber's liability for a failure to comply with a consumer guarantee in relation to the API Services 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.

13. INSURANCE

(a) Each party must maintain the following insurances during the Term and for one year thereafter:

(b) The above insurance policies must be provided by reputable insurance companies authorised to do business in the Territory and hold a Best’s policyholder rating of not less than A VII.

(c) The insurance held by you under this section 13 must be primary and non-contributing to any insurance maintained or obtained by Uber and must not be cancelled or materially reduced unless you have provided at least 30 days’ prior written notice to Uber.

(d) On request from a party, the other party must provide evidence of the insurance it maintains in accordance with this section 13.

(e) The limits of an insurance policy maintained under this section 13 will not limit the liability of any party under this API Licensing Agreement.

14. GENERAL

14.1 Notice​

(a) Notices under this API Licensing Agreement must be sent to the address specified in your API Order Form or Addendum, or an updated address provided by a party to the other party by notice under this section 14.1. 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); (iii) on actual delivery, if by electronic mail to the other party.

(b) Notices to Uber should be provided to Meester Treublaan 7, 1097 DP Amsterdam, The Netherlands or restaurants.anz@uber.com. Notices to you should be provided to the address or email address set out at the top of this API Licensing Agreement or otherwise notified to Uber in writing.

14.2 Modifications to the API Licensing Agreement

(a) Uber may modify this API Licensing Agreement at any time by:

(i) for the API TOU, publishing a new version on the Uber website – the modification will take effect from the date the updated API Licensing Agreement is published on the Uber website or the date specified in a notification from Uber under section 14.2(b) (whichever is later);

(ii) for an API Order Form, providing you with a new or varied API Order Form by written notice – the modification will take effect from the date specified in that API Order Form; or

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

(b) If a modification to this API Licensing Agreement will be detrimental to your rights under this API Licensing Agreement, Uber or one of its 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 API Licensing Agreement in accordance with section 8.2(c).

(c) You will be deemed to have consented to the modifications made under this section 14.2 if you continue to use the APIs after the modifications have come into effect.

14.3 Governing Law

Unless otherwise specified in an Addendum, this API Licensing Agreement is governed by and construed in accordance with the laws of New Zealand, where you are based in New Zealand, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) will not apply.

14.4 Force Majeure Event

(a) Any delay in or failure by either party in performance of this API Licensing 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 party 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.

14.5 Assignment and Subcontracting

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

(b) Uber may subcontract any of its obligations under this API Licensing Agreement.

(c) Without limiting section 14.5(a), this API Licensing Agreement binds, and will continue to benefit, each party to this API Licensing Agreement and that party’s respective successors and assignees.

14.6 Relationship Between the Parties

(a) Nothing in this API Licensing 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 party to this API Licensing Agreement, except where the other party has provided written authorisation, executed by an authorised representative of that other party. Neither party will make a public statement that suggests partnership with or sponsorship or endorsement by the other party without such party’s prior written approval.

(b) The parties’ obligations under this API Licensing Agreement are non-exclusive. Unless otherwise agreed upon separately in writing, neither party is precluded from marketing, licensing, positioning, providing and distributing its own products and services through other alliances, programs or partners. Nothing in this API Licensing Agreement prohibits or restricts either party’s right to develop, make, use, market, license, position, provide and distribute products or services similar to or competitive with those of the other party as long as it does not breach, or attempt to breach, this API Licensing Agreement.

14.7 General Provisions

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

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

(c) The failure of any party to enforce, at any time or for any period of time, the provisions of this API Licensing Agreement, or the failure of any party to exercise any option under this API Licensing 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 API Licensing Agreement is invalid or unenforceable, the remainder of this API Licensing Agreement (and to the extent practicable, the relevant provision) will remain in full force and effect.

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

(f) This API Licensing 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 and Uber each consent to this API Licensing Agreement being executed or amended by electronic communication (including by exchange of electronically signed counterparts transmitted by PDF).

(g) Nothing in this API Licensing 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.

15. DEFINITIONS AND INTERPRETATION

15.1 Definitions

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

API Order Form means a document titled “API Order Form” (or a similar name) that refers to these API TOU and is agreed by Uber and you, as amended or replaced by any variation to that API Order Form that has taken effect in accordance with section 14.2.

API Services means the guides, materials, references, software and other applications or services provided by Uber in association with the access and use of the APIs, together with the APIs themselves.

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.

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

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.

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 (NZ) and the Privacy Regulations 2020 (NZ).

Effective Date means the “Effective Date” specified in your API Order Form or Addendum (as applicable).

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

Insolvency Event means when a party:

(a) ceases conducting business in its normal course;

(b) becomes insolvent;

(c) makes a general assignment for the benefit of creditors;

(d) suffers or permits the appointment of a receiver for its business or assets; or

(e) avails itself of, or becomes subject to, any proceeding under any bankruptcy, reorganisation, arrangement of debt, insolvency, readjustment of debt or receivership Law.

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.

Merchant means a third party seller that has entered into an Uber Merchant Agreement.

Merchant Data means any data received by you in connection with the API Services relating to the Merchant, its business or its customers.

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 anywhere in the world that may now exist or that may come to exist in relation to the work.

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.

Permitted Purpose has the meaning given in section 2.3(a).

Personal Data means any information obtained in connection with this API Licensing 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 the applicable Data Protection Law.

Territory means New Zealand.

Uber Data means any data shared by Uber with you via any API Services or otherwise pursuant to or in connection with this API Licensing Agreement, including any data specifically identified by Uber as “Uber Data”.

Uber Direct Merchant Agreement means an agreement between a Merchant and Portier New Zealand Limited and Uber, to request delivery services via “Uber Direct” technology.

Uber Eats App means a website, application or other technology interface to purchase Items and, if applicable, delivery services, made available to a Merchant’s customers.

Uber Eats Merchant Agreement means an agreement between a Merchant and Portier New Zealand Limited and Uber, to sell Items via the Uber Eats App.

Uber Merchant Agreement means a Merchant’s:

(a) Uber Eats Merchant Agreement; or

(b) Uber Direct Merchant Agreement.

Uber Personal Data means any Personal Data provided by Uber to you in connection with the API Services or this API Licensing Agreement, including any Personal Data contained in Uber Data.

Uber 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.

Unauthorised Code means any virus, Trojan horse, worm, spyware, or other software designed to tamper with, damage, or destroy any computing system or network environment.

User Generated Content Policy means the terms related to user generated content provided to Uber (or their Affiliates) on your behalf, available at: https://www.uber.com/legal/en/document/?name=user-generated-content-policy&country=new-zealand&lang=en (or a replacement URL).

15.2 Interpretation

(a) In this API Licensing Agreement, unless the context otherwise requires:

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

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

(iii) 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;

(iv) 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

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

(b) In the event of any conflict between this API Licensing Agreement and any other term between the parties, this API Licensing Agreement will prevail, but only with respect to the specific matter at issue.