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

Click here for Quick Guide for the Uber Eats Merchant Agreement (New Zealand). Last updated 8 July 2022.

Click here for an overview of the responsibilities of each participant in the Uber Eats Marketplace from 1 March 2021. Last updated 8 July 2022.

Uber Eats – Merchant Agreement

General Terms (New Zealand)

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These General Terms apply to the agreement entered into between the person identified within the Uber Eats 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 Tool and the Uber Services, unless otherwise agreed between the parties. These General Terms apply in addition to any Service Terms that apply to the services you choose.

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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. The 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.

1.2 Conditions Precedent

(a) Uber and Portier NZ will not provide any Uber Services or the Uber Tool to you unless you have met the following conditions (Conditions Precedent):

(b) You have no right to receive any Uber Services or use the Uber Tool unless and until Uber and Portier NZ confirm that the Conditions Precedent have been met. If you have not met the Conditions Precedent within 90 days after the Effective Date, this Agreement will automatically terminate.

2. TERM OF THE AGREEMENT

(a) Your Agreement will start on the earlier of:

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

(ii) the "Effective Date" set out in your Order Form (if any),

(Effective Date).

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

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

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3. SERVICES

3.1 General description

(a) If you satisfy all Conditions Precedent referenced in section 1.2:

(i) Portier NZ will provide the Portier NZ Services to you;

(ii) Uber will provide the Uber Portier BV Services to you; and

(iii) Uber will grant you a licence to use its tablet, mobile and web applications and other technology interfaces during the Term (the Uber Tool).

(b) Uber (or its Affiliate) may also make the Uber Eats App available to your customers.

(c) Together, the Uber Services and Uber Tool enable you to:

(i) seek, receive and fulfil requests for Items from your customers who order from you using the Uber Eats App, and are located within the Uber Eats Active Area; and

(ii) receive from Uber and/or Portier NZ, other services under the Service Terms.

(d) Unless otherwise set out in the Service Terms, to receive the Uber Services and use the Uber Tool, you must make your approved Items available via the Uber Eats App during your normal business hours or as otherwise agreed by the parties.

3.2 Service scope

(a) During the Term, Portier NZ will:

(i) provide lead generation services to you;

(ii) unless otherwise specified in the Service Terms and provided you have supplied all relevant business and taxation information in the Uber Tool, issue receipts and invoices to your customers on your behalf for Items and Merchant Services sold by you via the Uber Eats App;

(iii) other than as provided in section 3.2(b) below, respond to complaints and refund requests on your behalf about issues arising in connection with Items sold by you via the Uber Eats App; and

(iv) 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 Portier BV Services,

(the Portier NZ Services).

(b) During the Term, Uber will enable:

(i) the collection of payments from your customers on your behalf;

(ii) the processing of payments to you;

(iii) the management of any issues, complaints or other activities associated with the processing of payments;

(iv) the processing of refunds to your customers and wholly or partially deduct refunds from payments owed to you; and

(v) any other 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 Portier BV Services).

3.3 Application of the Service Terms

(a) The Uber Services include the provision by Uber or Portier NZ (as applicable) of the specific services that you have chosen from time to time.

(b) Unless otherwise agreed in writing, the Service Terms available at http://t.uber.com/serviceterms-nz (or a replacement URL), as updated from time to time, in accordance with the terms of this Agreement, will apply to the specific services you choose. The Service Terms for a particular service will not apply to you unless you make use of the service. Section 1.1 above will apply to any conflict between the Service Terms and these General Terms.

(c) Section 14.2 below will apply to any modifications to the Service Terms made by Uber and Portier NZ from time to time.

3.4 Promotional Activities

(a) As part of the Portier NZ Services, Portier NZ will display the availability of your Items on the Uber Eats App to customers in the Uber Eats Active Area, subject to the terms of this Agreement.

(b) You understand that:

(i) Portier NZ and its Affiliates are not obliged to display your Items on the Uber Eats App at all times, and are not obliged to display your Items outside the Uber Eats Active Area; and

(ii) Portier NZ and its Affiliates may, but are not obliged to, promote your Items in various ways, such as on Portier NZ's and its Affiliates' social media channels, websites, online and print advertisements and blogs, and via push notifications or emails.

3.5 Reporting

As part of the Portier NZ Services, Portier NZ and its Affiliates will provide the following information to you:

(a) aggregate information regarding the number of Items sold by you to your customers via the Uber Eats App; and

(b) information regarding any refunds given to your customers where the cost of such refunds were wholly or partially deducted from payments owed to you in accordance with the Merchant Refund Policy in the reporting period, including the date of the transaction, the Item ordered and the reason for the refund.

3.6 Your Acknowledgements

(a) You acknowledge and agree that any materials provided to you by Uber and/or Portier NZ in connection with the Uber Tool and/or Uber Services are Uber's and Portier NZ's Confidential Information. These materials may include information on demand and suggestions, consumer preferences and merchant case studies.

(b) You acknowledge and agree that:

(i) the Uber Services and the Uber Tool enable you to offer Items via the Uber Eats App to customers located within the Uber Eats Active Area only;

(ii) Portier NZ will use various tools from time to time, such as changes to the size of the Uber Eats Active Area for your location, to manage marketplace conditions, including supply and demand, with a view to ensuring the efficient and reliable operation of the Uber Eats marketplace for all participants;

(iii) neither Uber, Portier NZ nor any of their Affiliates make any guarantee in relation to the size of the Uber Eats Active Area for your location(s), the number of Items you will sell via the Uber Eats App, the ability of Portier NZ to undertake delivery (if you offer Delivery Items) or the number or geographic location of users of the Uber Eats App that will see you or your Items on the Uber Eats App;

(iv) as between you, Uber and Portier NZ, Uber will retain sole and absolute control over the Uber Eats App (and all elements of the user experience and user interface relating to the Uber Eats App), including with respect to: (A) the personalisation of the Uber Eats App for customers; (B) the prioritisation and display of options available to customers; (C) the factors that impact the order and ranking in which all merchants appear to customers, including in search results and presentation of merchants by category; (D) adding, removing or otherwise modifying any feature or functionality made available through the Uber Eats App to optimise reliability or efficiency on the Uber Eats App;

(v) the Uber Eats App is a competitive marketplace where you, your Marks, your Sponsored Listings (as defined in the Service Terms), and your Promotions may each be displayed together with, alongside, or compared with your competitors and other third parties that may promote or sell products through the Uber Eats App;

(vi) nothing in this Agreement prevents Portier NZ from presenting you, your Marks, your Sponsored Listings (as defined in the Service Terms), and your Promotions together with, alongside, or in comparison with your competitors and other third parties that may promote or sell products through the Uber Eats App;

(vii) the presentation and layout of your “storefront” to your customers on the Uber Eats App is controlled by Portier NZ and may be adjusted or updated by Portier NZ in its sole discretion; and

(viii) you are not entitled to any compensation for marketing on your “storefront” on the Uber Eats App.

(c) If you are not satisfied with the Uber Eats Active Area for your location, changes to the Uber Eats Active Area, changes to the Uber Eats App or any other matter described in section 3.6(b) over time, you may stop using the Uber Services and the Uber Tool at any time and can terminate this Agreement in accordance with your rights under section 13. Nothing in this section 3.6 prevents you from offering Items outside the Uber Eats App in geographic locations in or outside of the Uber Eats Active Area.

4. YOUR ROLE AND RESPONSIBILITIES

4.1 Your relationship with Uber and Portier NZ

By entering into this Agreement, you acknowledge that:

(a) if you choose to offer Delivery Items, Portier NZ will provide delivery services directly to the customer, under an agreement between Portier NZ and that customer; and

(b) other than as set out in section 4.1(a) above, neither Uber, Portier NZ nor any of their Affiliates provide any other delivery or transportation services in connection with Items sold by you via the Uber Eats App.

4.2 Approved Items

(a) You are only allowed to offer an item for sale via the Uber Eats App if that item, or category of items, is approved by Portier NZ. To avoid doubt, any approval provided by Portier NZ in respect of an item, or category of items, may be limited to a specific merchant or location.

(b) Portier NZ may, acting reasonably, remove Items from the Uber Eats App if Portier NZ, acting reasonably determines that:

(i) the Item is not an approved item or part of an approved category of items, or if Portier NZ discovers an Item has been approved in error;

(ii) the Items are inappropriate for sale via the Uber Eats App. Inappropriate Items include people, animals of any size, illegal items, alcohol and pharmaceutical items (unless otherwise approved by Portier NZ), fragile items, dangerous items (such as weapons, explosives or flammables), stolen goods, or any Items that you do not have permission to sell or send; or

(iii) the description of the Items, or any photographs of the Items, that you make available on the Uber Eats App are inaccurate or misleading.

(c) Uber, Portier NZ, or one of their Affiliates will let you know, in accordance with section 14.2(c), at least 30 days before making any modification to the approved categories of items that will be detrimental to your rights under this Agreement.

4.3 Provision of Items

(a) Items may be provided to your customer via different options as further described in the Service Terms. The option used depends on the specific services that you have chosen. Each option allows you to receive requests for Items from customers using the Uber Eats App, sell Items to customers and receive payment from customers for Items. If permitted under the Service Terms (or otherwise approved by Portier NZ in writing), some options may also allow you to receive requests for Merchant Services, sell Merchant Services to customers, and receive payment from customers for Merchant Services. The sale and purchase of any Items and Merchant Services (if any) takes place directly between you and your customer.

(b) Depending on the specific services that you have chosen, additional Service Terms may apply. For each option, unless otherwise specified in the applicable Service Terms:

(i) Portier NZ will charge an Uber Eats Fee (for the relevant option), in accordance with section 5;

(ii) Portier NZ and Uber will perform the applicable Uber Services set out in these General Terms and the Service Terms;

(iii) you must comply with the obligations applicable to you in these General Terms and the Service Terms and, unless otherwise specified, the Service Terms for one service do not limit any of your obligations under the Service Terms or these General Terms for any other service; and

(iv) subject to the relevant Service Terms for specific services, you may choose to use any option set out in the Service Terms, for the provision of Items to your customers.

4.4 Quantity, type and price of Items

(a) Subject to section 4.2, you are responsible for determining the quantity and type of Items you make available via the Uber Eats App.

(b) Portier NZ and its Affiliates may provide information to you regarding predicted customer demand. You are not required to act on this information and Portier NZ and its Affiliates do not make any representation that the predicted customer demand will be met. It is your responsibility to assess the predicted customer demand and any other relevant factors that may be relevant in the circumstances and to determine the quantity and type of Items you wish to make available via the Uber Eats App.

(c) You are responsible for setting the retail price (Retail Price) for each Item that you make available via the Uber Eats App.

4.5 Quality of Items

(a) You are responsible for ensuring that Items are handled appropriately and are appropriate for sale via the Uber Eats App. This includes ensuring that your:

(i) 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); and

(ii) Items, their handling and sale and all information you provide about them including nutritional and other information (such as calorie count or allergen information), comply with all Laws, including the Food Acts and Food Code, this Agreement and all applicable Uber Policies, and are accurate and not misleading.

(b) Without limiting section 4.5(a), you agree that you are solely responsible for:

(i) determining the criteria that apply to your Items, such as any quality, portion, size, ingredient and other criteria that apply to your Items;

(ii) ensuring that your Items meet those criteria when those Items are made available via the Uber Eats App; and

(iii) ensuring that the description of your Items, and any photographs of your Items that you make available on the Uber Eats App are (and continue to be) accurate and not misleading.

4.6 Item Inventory

(a) For Delivery Items, you maintain title to each Item until the Item is delivered to your customer by Portier NZ.

(b) For Self-Delivery Items, you maintain title to each Item until the Item is delivered to your customer by your Delivery Staff.

(c) For Non-Delivery Items, you maintain title to each Item until the Item is provided to your customer by you or your agent.

4.7 Refunds

(a) Unless otherwise specified in the Service Terms, as part of the Uber Portier BV Services provided under this Agreement, Uber will process refunds to your customers in relation to issues arising in connection with the Items they ordered from you via the Uber Eats App and, if you use the Self-Delivery Option, any delivery services you provide related to such Items.

(b) You can find out more about the refund process by reading the Merchant Refund Policy.

(c) The Merchant Refund Policy provides information about how Uber will apply refunds on your behalf and describes the circumstances where you may be responsible for the costs of refunds for Items, and if you use the Self-Delivery Option, the cost of refunds for delivery services you provide, to your customers. You agree that if Uber, acting reasonably, determines that you are responsible for the cost of a refund in accordance with the Merchant Refund Policy, you will be responsible for the costs of the refunded Item (or partial costs if only part of the Item was refunded) and, if you use the Self-Delivery Option, the costs of the refunded delivery services.

(d) Uber may deduct these costs from the payment owed to you under this Agreement, in accordance with the Merchant Refund Policy.

(e) If you believe that Uber has deducted the cost of any refund from you in error, you may dispute the deduction in accordance with the Merchant Refund Policy. If you dispute a deduction, Uber will consider the dispute reasonably, taking into account any information provided by you about the circumstances related to the refund. You will not be held responsible for the cost of the relevant refund if Uber believes, acting reasonably, that you are not at fault. The Merchant Refund Policy may be amended under section 14.2, which also provides you with the right to terminate this Agreement if you do not agree with certain changes to that policy.

4.8 Provision of Alcohol Items

The Service Terms for Alcohol Items apply to you if you offer to sell Alcohol Items to your customers via the Uber Eats App, which is only permitted with the prior approval of Portier NZ.

4.9 Restrictions

(a) For each order that you receive via the Uber Eats App, you must not include any additional materials in bags or packages for your customers other than Items and other materials approved by Portier NZ.

(b) Portier NZ may, acting reasonably, restrict the sale of Items via the Uber Eats App based on physical attributes of such Items (eg, weight (per Item or in aggregate), height, shape, or appropriateness for delivery). Without limiting this section 4.9(b), if you make Delivery Items available via the Uber Eats App, you:

(i) acknowledge that Portier NZ provides delivery services under an agreement between Portier NZ and the customer, and Portier NZ reserves the right to refuse to accept any Delivery Item for delivery in its sole discretion; and

(ii) must ensure that each order of Delivery Items does not weigh (in total) more than 13kg.

4.10 Uber Policies

(a) You must comply with the Uber Policies that apply to your use of the Uber Services and the Uber Tool, and ensure your employees and agents (and your Delivery Staff, if you use the Self-Delivery Option) do the same.  The Uber Policies include: Merchant Refund Policy and other policies published on Uber's website at https://www.uber.com/legal/en/#policies-and-guidelines (or a replacement URL), such as  Community Guidelines, Retail Merchants - Payments for Cancelled and Unfulfilled Orders Policy, Retail Merchants - Quality Requirements Policy, Feedback Policy, Uber Non-Discrimination Policy, Guidelines for Public Health Authorities, User-Generated Content Policy, Uber Copyright Policy and Uber Trademark Policy.

(b) Uber, Portier NZ or their Affiliates may update the Uber Policies from time to time in accordance with section 14.2.

4.11 Changes to your Locations or Business

(a) You must tell Uber and Portier NZ if you intend to add a location to, vary a location, or remove a location from, the locations from which you will make Items available via the Uber Eats App (including the addition of any Virtual Storefront).

(b) If you are adding or varying a location you must provide all licences, permits or other documents or information requested by Uber or Portier NZ, and you give the warranties in section 9(b) for each new location (including any Virtual Storefront location). You will not be permitted to make Items available via the Uber Eats App from that location until Uber or Portier NZ has approved the new location.

(c) If your location remains offline on the Uber Eats App for over 60 days (other than as a result of section 13.2(b)), Uber and Portier NZ may remove that location from the Uber Eats App provided that Uber, Portier NZ or their Affiliates give you at least 7 days' notice before the removal. You may be required to pay Portier NZ an Activation Fee to reinstate a location that has been removed.

(d) You must tell Uber and Portier NZ in writing when, or as soon as reasonably possible after, there is a Change in Ownership of you or your business. You must give Uber and Portier NZ reasonable assistance (including providing copies of relevant documentation) as requested to enable Uber and Portier NZ to make any necessary adjustments to your account and/or Uber or Portier NZ's systems.

4.12 Licences and Permits

(a) Without limiting any other part of this Agreement, you must obtain and maintain all applicable licences and permits, and comply with all notification and registration obligations, to enable you to operate your business, sell and offer for delivery your Items from each of your locations via the Uber Eats App in accordance with all applicable Laws, including the Food Acts, Food Code, the Sale and Supply of Alcohol Act 2012, and Sale and Supply of Alcohol Regulations 2013. If you propose to make food Items available via the Uber Eats App, such licences and permits include, but are not limited to, a national programme registration or food control plan with a delivery component.

(b) You must immediately notify Portier NZ of any change or modification (eg, expiration, revocation, renewal or termination) to any licences, permits or registrations that you are required to provide to Portier NZ under this Agreement, under sections 1.2(a), 4.11(b) or any applicable Service Terms (Required Licences) and immediately provide Portier NZ with any new or updated Required Licenses. Portier NZ may remove Items from your menu on the Uber Eats App or suspend your account in accordance with section 13.2 if you fail to comply with these obligations.

4.13 Modern Slavery Prohibition

You must not engage in any practice which would violate any national or international law regarding slavery or human trafficking. You must notify Uber and Portier NZ 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 Agreement.

4.14 Ratings

(a) After receiving an Item, your customer may be prompted by the Uber Eats App to provide a rating of that Item and any feedback related to you or that Item (Customer Feedback).

(b) You acknowledge and agree that the Uber Eats App may allow:

(i) you and customers;

(ii) you and a Delivery Person; or

(iii) a Delivery Person and customers,

to each communicate with each other (In-App Communications).

(c) Portier NZ and its Affiliates may use, share, and display Customer Feedback and In-App Communications for any purpose related to their businesses without attribution to you or your approval. You acknowledge that Portier NZ and its Affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback and In-App Communications, provided that Portier NZ and its Affiliates may edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual's name or other Personal Data, violate any privacy or other applicable Laws, or Portier NZ's or its Affiliates' content policies. Uber, Portier NZ, and their Affiliates do not endorse or approve any Customer Feedback or In-App Communications.

(d) All:

(i) communications between Uber or its Affiliates and you;

(ii) Customer Feedback; and

(iii) In-App Communications,

are subject to the User-Generated Content Policy.

4.15 Special Terms for Franchisors

(a) If you are the franchisor of a franchise system (Franchisor), and you wish to allow 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) (Franchisees) to benefit from the terms and conditions of your Agreement, you must seek approval from Uber and Portier NZ.

(b) If Uber and Portier NZ approve your request under section 4.15(a):

(i) each of your Franchisees may benefit from the terms and conditions of your Agreement, subject to: (A) your continued compliance with this section 4.15; and (B) the relevant Franchisee entering into an agreement with Uber and Portier NZ, which references your Agreement; and

(ii) you must notify Uber and Portier NZ immediately if: (A) you become aware that your agreement with any of your Franchisees (who has entered into an agreement with Uber and Portier NZ referencing your Agreement) will expire, terminate or end for any reason; or (B) your franchise agreement with any of your Franchisees (who has entered into an agreement with Uber and Portier NZ referencing your Agreement) has expired, terminated or ended for any reason.

4.16 Special Terms for Franchisees

If you are a Franchisee who has entered into an Agreement with Uber and Portier NZ referencing your Franchisor's agreement with Uber and Portier NZ:

(a) you agree that Uber and Portier NZ may provide the following information to your Franchisor:

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

(ii) any data and information arising out of your use of the Uber Tool and Uber Services (including sales and other transactional data, whether historical or current);

(b) you must notify Uber or Portier NZ immediately if:

(i) you become aware that your franchise agreement with the Franchisor will expire, terminate or end for any reason; or

(ii) your franchise agreement with the Franchisor has expired, terminated or ended for any reason;

(c) if you or the Franchisor notify Uber or Portier NZ of the expiry, termination or end of your franchise agreement with the Franchisor, your Agreement will automatically terminate:

(i) immediately, where your franchise agreement with the Franchisor has already expired, terminated or ended at the time of the notification to Uber or Portier NZ; or

(ii) upon the expiry, termination or end of your franchise agreement with the Franchisor, where the notification to Uber or Portier NZ is given prior to the expiry, termination or end of your franchise agreement with the Franchisor;

(d) if the Franchisor enters into a new agreement with Uber and Portier NZ (the Franchisor’s New Agreement) to replace the agreement that exists between those parties as at the Effective Date of your Agreement (the Franchisor’s Existing Agreement), this Agreement will continue to apply on the same terms that were applicable immediately prior to the replacement of the Franchisor’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 Franchisor’s New Agreement; and

(e) you acknowledge that Uber and Portier NZ are entering into this Agreement with you only for so long as the Franchisor’s Existing Agreement continues to be in place. Except to the extent that section 4.16(d) 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.

5. FEES AND PAYMENT

5.1 Payment for Items

(a) You appoint Uber as your limited payment collection agent solely for the purpose of accepting payments from your customers on your behalf.

(b) Payment made by your customer to Uber, for Items and services provided by you to that customer, will be considered the same as payment made directly by your customer to you.

(c) In exceptional circumstances only (as determined by Uber in its sole discretion, acting reasonably), Uber reserves the right to temporarily or permanently cancel or suspend a payment to you. Under this section, exceptional circumstances include but are not limited to a breach of this Agreement, any legal or regulatory risk or potential breach of Law associated with the transfer of such payment to you, the actual or expected initiation of insolvency or bankruptcy proceedings against you and any failure by you to provide any documentation or information required under section 1.2(a), section 4.11, section 4.12, or section 5.9.

5.2 Uber Eats Fee

(a) In exchange for the Portier NZ Services provided by Portier NZ as described in this Agreement, you agree to pay Portier NZ a fee for each order placed with you via the Uber Eats App, calculated in accordance with section 5.2(b) (the Uber Eats Fee). You must also pay any Activation Fee, Damage Fee or other fee set out in your Order Form or (if not otherwise agreed in writing) on the Standard Fee Webpage at https://restaurants.ubereats.com/nz/en/pricing/ (or a replacement URL).

(b) Subject to any Service Terms or Addendum for a particular service, Portier NZ will calculate the Uber Eats Fee for each order placed with you via the Uber Eats App as set out on the Standard Fee Webpage. Unless otherwise specified, if any portion of the Uber Eats Fee is expressed as a Fee Percentage, the Fee Percentage portion of the Uber Eats Fee will be calculated as follows:

(i) the Retail Price of the Item(s) sold by you via the Uber Eats App (including any GST) (the Item Revenue); and

(ii) multiplied by the Fee Percentage specified from time to time at the Standard Fee Webpage, unless a different Fee Percentage has been agreed in writing. The applicable Fee Percentage will depend on the specific services that you have chosen.

(c) If you are paid for an Item, you must pay the applicable Uber Eats Fee to Portier NZ.

(d) Subject to providing notice where required under section 14.2, Uber or Portier NZ may update the Standard Fee Webpage from time to time.

5.3 Additional Fees and Charges

(a) You may charge your customers other fees and charges in relation to the Items or Merchant Services offered to your customers, to the extent such fees and charges are:

(i) permitted in accordance with applicable Service Terms;

(ii) specified on the Standard Fee Webpage; or

(iii) otherwise approved by Portier NZ in writing (including in an Addendum),

(Additional Fees and Charges).

(b) You authorise Uber to collect any Additional Fees and Charges on your behalf.

5.4 Remittance of Item Payment

(a) Subject to any Service Terms for a particular service, Uber will remit to you the total Item Revenue and Additional Fees and Charges earned by you, less:

(i) the Uber Eats Fee payable to Portier NZ;

(ii) the cost of any refunds given to your customers on your behalf in accordance with the Merchant Refund Policy; and

(iii) any other amount that Uber is permitted to deduct from the Item Revenue in accordance with the terms of this Agreement, or that Uber is required to deduct by Law,

(such final remitted amount being the Item Payment).

(b) Unless agreed with you otherwise, the Item Payment will be remitted to you on a weekly basis.

5.5 Activation Fee

(a) In exchange for the Portier NZ Services provided by Portier NZ as described in this Agreement, you also agree to pay Portier NZ an activation fee (as specified in your Order Form or on the Standard Fee Webpage) (Activation Fee) per location. For the avoidance of doubt, a Virtual Storefront is a separate location for the purpose of this section 5.5.

(b) Until you have paid the full Activation Fee for all locations, you agree that Uber may deduct from your Item Revenue the Activation Fee (in full or in part) payable to Portier NZ before remitting the Item Payment to you.

5.6 Payment Processing Errors

(a) Uber reserves the right, in its sole discretion, to seek reimbursement from you if Uber discovers payment processing errors.

(b) If there has been a payment processing error, you agree that Uber may recover from you an amount equivalent to the error by either:

(i) deducting the applicable amount from your Item Revenue prior to remitting the Item Payment to you;

(ii) debiting your card on file or your bank account on record; or

(iii) seeking reimbursement of the applicable amount from you by any other lawful means.

(c) You expressly authorise Uber to use any or all of the above methods to seek reimbursement.

(d) It is your responsibility to ensure that any card details or bank account information that you provide to Uber are accurate and remain up to date.

5.7 GST and Other Taxes

(a) ​In relation to the Items sold by you via the Uber Eats App:

(i) you are the supplier of all Items (including delivery services related to such Items, if you choose the Self-Delivery Option) for GST purposes and the responsible party for collection and remittance of all applicable taxes; and

(ii) the Retail Price for each Item must include GST, but you are solely responsible for determining all applicable taxes and identifying and informing Uber of the appropriate tax amount for Uber to collect on your behalf for Items sold by you via the Uber Eats App; and

(iii) the parties agree that, if your customer pays for Items (and, if you choose the Self-Delivery Option, any Self-Delivery Fees, Additional Self-Delivery Fees and tips) using stored Uber funds arising from the redemption of an Uber Gift Card or Uber Voucher in the Uber Eats App, then a supply of goods and services occurs at the time of payment for those Items (and, if you choose the Self-Delivery Option, any Self-Delivery Fees, Additional Self-Delivery Fees and tips) for the purposes of section 5(11G) of the GST Law.

(b) In relation to the Uber Eats Fee and other amounts payable under this Agreement:

(i) for the purposes of the GST Law, Portier NZ supplies to you the Portier NZ Services in sole consideration for the Uber Eats Fee. In addition, Uber supplies to you a licence to use the Uber Tool and the Uber Portier BV Services for no consideration;

(ii) all amounts payable, or consideration provided by you to Portier NZ under this Agreement are exclusive of GST (unless expressly stated otherwise). If a party is required under this Agreement to reimburse or indemnify another party for any loss, cost or expense, the amount of the relevant loss, cost or expense shall be determined net of any GST input tax or deduction from output tax available to the other party (or, where the other party is a member of a GST group, the representative member of that group). Where the reimbursement or indemnity payment is itself consideration for a taxable supply by Portier NZ, section 5.7(b)(iii) will apply in respect of the reimbursement or indemnity payment; and

(iii) 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.

(c) You represent and warrant that you are:

(i) a resident in New Zealand for New Zealand income tax purposes; and

(ii) registered for GST, and will remain registered for GST, at all times during the Term.

(d) The parties agree that, for the purposes of the financial arrangements rules in the Income Tax Act 2007:

(i) the Uber Eats Fee and other amounts payable under this Agreement is the lowest price that they would have agreed upon for the property or services to be provided under this Agreement on the date this Agreement was entered into on the basis of payment in full at the time at which the first right in the property is to be transferred or the services provided;

(ii) the Uber Eats Fee and other amounts payable under this Agreement is the value of the property or services; and

(iii) they will compute their taxable income for the relevant period on the basis that the Uber Eats Fee and other amounts payable under this Agreement includes no capitalised interest, and will file their tax returns accordingly.

For the purposes of this section the term "right" in the property shall bear the same meaning as the term "right" in section YA 1 of the Income Tax Act 2007.

5.8 Currency

All amounts under this Agreement must be paid in New Zealand dollars.

5.9 Additional information

(a) Portier NZ or Uber may, from time to time, ask you to provide certain additional information (Additional Information) relating to particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (UPCs), Global Trade Item Numbers (GTINs), Stock Keeping Units (SKUs), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (eg, sliced), identity of preparer, whether the Item is “ready-to-eat”, or intended use.

(b) You are solely responsible for providing Additional Information requested by Portier NZ or Uber in a timely manner. If you do not provide Additional Information in a timely manner, in response to a request by Portier NZ or Uber, Portier NZ may temporarily remove affected Items from your menu on the Uber Eats App until the Additional Information is received.

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6. INTELLECTUAL PROPERTY

6.1 Ownership of Uber Materials

(a) Uber, its Affiliates and their licensors own, or have the rights to, the Uber Tool 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.

(c) Without limiting any other part of this Agreement, you must not:

(i) copy, modify, distribute, sell or lease any part of the Uber Tool or any other Uber Materials;

(ii) reverse engineer or attempt to extract the source code of Uber's or its Affiliates' software, except to the extent allowed by Law; or

(iii) improperly use the Uber Tool, any other Uber Materials or any Uber Service.

6.2 Licence

(a) Subject to you complying with the terms of this Agreement (including the satisfaction of the Conditions Precedent in section 1.2), Uber grants you for no charge a non-exclusive, royalty-free, non-transferable, non-sublicensable and non-assignable licence to use the Uber Tool for the Term.

(b) You may only use the Uber Tool in connection with your use of the Uber Services under this Agreement.

6.3 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 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 3.4 and any use or display of your Marks in connection with making Items available through the Uber Eats App) 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 6.3(a) continue for the Term. The licences are granted for no charge and are limited, non-exclusive, non-transferable and royalty-free.

(c) The rights of you, Uber, Portier NZ (and their Affiliates) to use the Marks licensed to them under section 6.3(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, and any use or display by you of the Marks of Uber, Portier NZ or their Affiliates must conform to the current version of the "Uber Eats Brand Guidelines", which can be found at: https://brand.uber.com/guide#logo-overview (or a replacement URL);

(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.

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

(e) Portier NZ may remove any of your Marks from the Uber Eats App if they reasonably believe that any of your Marks are inappropriate or infringe the rights (including the Intellectual Property Rights) of any third party.

(f) 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).

(g) The rights of a licensee under section 102 of the Trade Marks Act 2002 are expressly excluded from the licences granted under this section 6.3.

6.4 Ownership and Licence of Marketing Materials

(a) Portier NZ (or its nominee) may create videos, photos and other materials for marketing purposes (Uber Eats Marketing Materials). The Uber Eats Marketing Materials (including all Intellectual Property Rights) are, and will continue to be, the property of Uber or its Affiliates.

(b) You may provide videos, photos or other materials to Uber, Portier NZ or its Affiliates (Your Marketing Materials) to display the availability of your Items on the Uber Eats App and for other marketing purposes. You represent and warrant at all times that you either own all rights to Your Marketing Materials or have the right to grant Uber, Portier NZ and their Affiliates the following licence to Your Marketing Materials. You grant Uber, Portier NZ and their Affiliates for no charge a non-exclusive, perpetual, royalty free, sub-licensable right to use and display Your Marketing Materials in connection with your Items and all other marketing activities (including marketing activities relating to the Uber Services, the Uber Tool or the Uber Eats App).

(c) Portier NZ may remove Your Marketing Materials from the Uber Eats App if it reasonably believes Your Marketing Materials are inappropriate or infringe the rights (including the Intellectual Property Rights) of any third party.

(d) 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 Marketing Materials in accordance with this Agreement infringes your rights (including Intellectual Property Rights).

6.5 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.

6.6 Feedback

(a) You may, but are not required to, provide feedback relating to Portier NZ's, Uber's and/or their Affiliate's services (Feedback). The User-Generated Content 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. You hereby grant to Portier NZ and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free licence to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Feedback in all formats and distribution channels now known or hereafter devised (including in connection with the Uber Services and Uber's or its Affiliates’ business, and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

6.7 Platform integration with third party websites

You acknowledge and agree that Portier NZ or its Affiliates may enter into agreements with the operators of Aggregator Platforms in order to integrate the Uber Eats App directly with those Aggregator Platforms. You acknowledge and agree that such agreements and integrations may, among other things, enable potential your customers who are browsing, or otherwise using the Aggregator Platform to order from you, either directly through the Uber Eats App, or directly from the Aggregator Platform. You authorise Portier NZ and its Affiliates to share the following information with Aggregator Platforms in relation to your locations:

(a) address;

(b) operating hours;

(c) telephone number(s);

(d) ratings and reviews;

(e) Item lists, descriptions, and images;

(f) pricing information;

(g) pickup and delivery time estimates;

(h) your Marks;

(i) Your Marketing Materials;

(j) any other information which Portier NZ or its Affiliates decides, in their discretion, to provide to the Aggregator Platform.

7. DEVICES

(a) If Portier NZ supplies a tablet or other mobile device (Device) to you, you must ensure that all such Devices are:

(i) only used for the purpose of receiving the Uber Services and using the Uber Tool in accordance with the terms of this Agreement; and

(ii) not transferred, loaned, sold or otherwise provided in any manner to any third party.

(b) You acknowledge and agree that:

(i) Devices remain the property of Portier NZ at all times;

(ii) you must return all applicable Devices to Portier NZ within 10 days after: (A) the termination or expiry of the Agreement; or (B) the removal of your location from the Uber Eats App under section 4.11(c);

(iii) the loss or theft of a Device, the failure to return any Device within the required time period, or any damage to a Device outside of normal wear and tear, will result in a damage fee (per Device) (Damage Fee) payable by you, as set out on the Standard Fee Webpage; and

(iv) if any Damage Fees are payable by you: (A) Portier NZ may invoice you for the Damage Fees; and/or (B) Uber may deduct from your Item Revenue the applicable Damage Fees (in whole or in part) prior to remitting your Item Payment to you.

8. CONFIDENTIALITY AND PRIVACY

8.1 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 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 8.1 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 (and if you are a Franchisor or Franchisee to which these terms apply, you authorise Uber and Portier NZ to disclose the terms of this Agreement to your Franchisees or Franchisor, as applicable); 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 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 Agreement, any Law or any court order.

8.2 Privacy

(a) The terms and conditions of Uber's privacy notice, currently available at https://www.uber.com/legal/en/document/?name=privacy-notice&country=new-zealand&lang=en-au, will apply to Uber's collection, use and processing of Personal Data.

(b) You must comply with all applicable Data Protection Laws in connection with the Uber Services and your activities under this Agreement.

(c) You must maintain appropriate measures to protect the integrity, security and confidentiality of all Personal Data provided to you by Uber against any anticipated threats or hazards, and/or unauthorised access to or use of such data.

(d) Without limiting the general obligation under section 8.2(b):

(i) you must only use, disclose, store, retain or otherwise process Personal Data provided to you solely for the purpose of providing Items under this Agreement and ensure your employees, agents and contractors do the same;

(ii) you are responsible for maintaining the accuracy and integrity of any Personal Data provided by Uber to you in relation to the provision of Items, the Uber Services or this Agreement;

(iii) you agree to use Personal Data provided to you by Uber solely by using the Uber Tool provided by Uber and must not copy, store, retain, remove from the Uber Tool or otherwise process the Personal Data;

(iv) you must promptly tell Uber and Portier NZ if you become aware of any actual or reasonably suspected unauthorised access, modification, use, disclosure, loss of or interference with Personal Data provided to you by Uber (Data Breach); and

(v) you must promptly provide Uber and Portier NZ with any information or assistance reasonably requested by either of them for the purposes of investigating and responding to any non-compliance with this section 8.2, any Data Breach, or a request from a customer or for a party's compliance with Data Protection Laws.

(e) You agree that Uber and Portier NZ may use aggregate, anonymised data related to your transactions in connection with the Uber Services (Aggregate Data). You agree that Portier NZ may share your contact information (including name, address, email and phone number) with third parties necessary for your onboarding to the Uber Tool, including logistics and/or delivery service providers (for the delivery of Devices or other equipment) as well as photography services (for any photography which may be provided by a third-party provider).

(f) You are responsible for maintaining the integrity of information relating to your access and use of the Uber Tool and related Uber Services, including any password, login or key information. You represent and warrant at all times that you will not share any such information with any third party.

(g) Notwithstanding anything else in this Agreement, you must, at your expense, defend, indemnify and hold harmless Uber, 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) in connection with:

(i) any loss, unauthorised disclosure, theft, or compromise of Personal Data by or from you or your employees, agents or contractors (including sub-processors); and

(ii) any breach of and/or non-compliance with the Agreement or where appropriate, any Data Protection Law by you or your employees, agents or contractors (including sub-processors),

except to the extent the claim, damage, loss or expense arose from or was contributed to by the negligence or wilful misconduct of Uber, Portier NZ or their employees or agents, or of any Delivery Person. This obligation is subject to the requirements in section 10.2 below.

8.3 Data Re-identification Restriction

Without limiting any other provision of this Agreement, including any provision in this section 8, you must not merge any of the data collected or otherwise obtained in connection with this Agreement, including any 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.

8.4 Publicity

Unless agreed by the parties in writing, neither you, Uber nor Portier NZ are allowed to issue a press release or otherwise refer to another party to this Agreement in any manner (in relation to this Agreement or otherwise), without the prior written consent of the other party. This section does not prevent Uber or Portier NZ from referring to each other in any manner.

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9. 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 any exclusive agreements with any third parties for the availability of your Items on any technology platform);

(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 that party or 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) the name of your restaurant or store on the Uber Eats App (Business Name) is a validly registered business name in the location in which you operate, including for each Virtual Storefront location;

(ii) you are the holder of the Business Name registration referred to above; and

(iii) 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, store locations and other information reasonably requested to provide any Uber Services to you) is accurate, complete and up-to-date.

(c) If you enter into this Agreement as the trustee of a trust, each trustee (including you) represents and warrants to Uber and Portier NZ at all times throughout the Term that:

(i) it enters into this Agreement in its capacity as trustee of its trust;

(ii) the trust deed empowers it to enter into and perform its obligations in this Agreement, to carry on its current or contemplated business and to own its assets, in its capacity as trustee of the trust;

(iii) it has obtained all resolutions, consents and approvals, and all other procedural matters have been attended to, as required for it to enter into and perform this Agreement;

(iv) it is the sole trustee of the trust, or all of the trustees of the trust have executed this Agreement;

(v) no event of default has occurred and no action has been taken which has or may prejudice the trustee's right of indemnity against the trust assets;

(vi) it is of the opinion that the execution, delivery, and performance of this Agreement is in the best interests of the beneficiaries of the trust and in furtherance of the administration of the trust;

(vii) it will notify Portier NZ and Uber in writing immediately if there is any alteration to the trustees or if there is any change to the trust deed, or in the case of a corporate trustee, if the constitution of the trustee is amended or revoked; and

(viii) the trust has not been terminated, and no event for the vesting of the assets of the trust has occurred.

(d) If you enter into this Agreement as the partner of a partnership, each partner (including you) represents and warrants to Portier NZ and Uber at all times throughout the Term that:

(i) the partnership deed empowers it to enter into and perform its obligations in this Agreement, to carry on its current or contemplated business and to own its assets;

(ii) it has obtained all resolutions, consents and approvals, and all other procedural matters have been attended to, as required for it to enter into and perform this Agreement;

(iii) there are no other partners in the partnership other than those that have executed this Agreement; and

(iv) no partner has given notice of its intention to terminate the partnership under the partnership deed and the partnership has not been determined or dissolved.

(e) Except as required of a party under New Zealand Consumer Law, each party makes no representations, and expressly disclaims all warranties, express or implied, regarding its goods or services or any portion of them, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Without limitation, Uber and its Affiliates do not guarantee the availability or uptime of the Uber Tool or the Uber Eats App or that access or use of the Uber Tool or Uber Eats App will be uninterrupted or error-free. You acknowledge that the Uber Tool and Uber Eats App 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. The limitations and disclaimers in this section 9(e) do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable Law, including New Zealand Consumer Law.

(f) 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 Portier BV 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 Uber Portier BV Services. Each party acknowledges and agrees that the terms of this clause 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.

(g) 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 clause 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.

10. INDEMNIFICATION

10.1 Indemnified Claims

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 or its employees or agents (and in your case, your Delivery Staff if you have chosen the Self-Delivery Option) in their performance of the Indemnifying Party's obligations under this Agreement;

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

(c) 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;

(d) any non-compliance with applicable Data Protection Laws by the Indemnifying Party or its employees or agents(and in your case, your Delivery Staff if you have chosen the Self-Delivery Option) in connection with this Agreement;

(e) where you are the Indemnifying Party, any harm resulting from your violation or alleged violation of any applicable retail, food, alcohol or other health and safety code or applicable Laws (including the Food Acts and Food Code), except to the extent such harm was directly caused by the negligence or wilful misconduct of Uber, Portier NZ or their employees or agents, or any Delivery Person;

(f) where you are the Indemnifying Party any Promotion run by you, except to the extent the claim arose from or was contributed by the negligence or wilful misconduct of Uber, Portier NZ or their employees or agents, or any Delivery Person; or

(g) where you are the Indemnifying Party and have chosen the Self-Delivery Option, any of your actions as an employer or principal of Delivery Staff, or any claim or action alleging that Uber or Portier NZ should be deemed the "employer" of any of your Delivery Staff.

10.2 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.

11. LIMITATION OF LIABILITY

11.1 Limitations and Exclusions of Liability

(a) Subject to section 11.2(b), 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 of Merchant or any third party arising out of this 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 11.2(b), Uber's and Portier NZ's combined total cumulative liability of each and every kind to you 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 above apply regardless of the success or effectiveness of other remedies.

11.2 Exception to Limitations and Exclusions of Liability

(a) Subject to section 11.2(b), the limitations and exclusions set out in section 11.1 do not apply to a party's indemnification obligations, or any breach of confidentiality.

(b) This section 11 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 New Zealand Consumer Law.

12. 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 licensed by the Reserve Bank of New Zealand under the Insurance (Prudential Supervision) Act 2010 and complying with the conditions of such licence and hold a Best's policyholder rating of not less than A VII.

(c) The insurance held by you under this section 12 must be primary and non-contributing to any insurance maintained or obtained by Uber or Portier NZ and must not be cancelled or materially reduced unless you have provided at least 30 days' prior written notice to Portier NZ.

(d) On request from a party, the other party must provide evidence of the insurance it maintains in accordance with this section 12.

(e) The limits of an insurance policy maintained under this section 12 will not limit the liability of any party under this Agreement.

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13. TERMINATION

13.1 Termination by you

You may terminate this Agreement:

(a) at any time without cause, by giving 7 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 Agreement, the approved categories of items or an applicable default Uber Eats Fee or other 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 13.1(c) is provided within 30 days after the date you were first notified of the relevant update.

13.2 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 Tool or any service,

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

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

(i) you commit a material breach of this Agreement;

(ii) in Uber's or Portier NZ's reasonable judgement, a temporary restriction or deactivation is appropriate while Uber or Portier NZ investigate a serious complaint that you or your employees, agents or contractors (including your Delivery Staff, if you use the Self-Delivery Option) have violated the Community Guidelines;

(iii) in Uber's or Portier NZ's reasonable judgement, you or your employees, agents or contractors (including your Delivery Staff if you have chosen the Self-Delivery Option) have violated the Community Guidelines; or

(iv) in Uber's or Portier NZ's reasonable judgement, an act or omission by you or your employees, agents or contractors (including your Delivery Staff if you have chosen the Self-Delivery Option) has the potential to cause 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 (a Brand Matter).

13.3 Survival

Sections 1, 5.7, 8, 9, 10, 11 and 12 (for the period specified), this section 13.3, and sections 14 and 15 survive the termination or expiry of this Agreement.

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14. GENERAL PROVISIONS

14.1 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); (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 with a copy to restaurants.anz@uber.com. Notices to Uber should be provided to Burgerweeshuispad 301, 1076HR Amsterdam, The Netherlands or restaurants.anz@uber.com. Notices to you should be provided to the address or email address set out in the Order Form, during your sign up process or otherwise notified to Uber and/or Portier NZ.

14.2 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 from the Variation Effective Date set out in 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 14.2(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 Order Form, an Uber Policy, the approved categories of Items or an applicable default Uber Eats Fee or other default fee on the Standard Fee Webpage will be detrimental to your rights 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 13.1(c).

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

14.3 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.

14.4 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.

14.5 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 14.5(a), this Agreement binds, and will continue to benefit, each party to this Agreement and that party's respective successors and assignees.

14.6 Relationship Between the Parties

Nothing in this Agreement creates any partnership, joint venture, joint enterprise, or agency relationship (except as expressly specified in the General Terms, such as section 5.1(b) above or in the Service Terms, in relation to specified Items) 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.

14.7 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 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.

15. DEFINITIONS AND INTERPRETATION

15.1 Definitions

In this Agreement:

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.

Additional Fees and Charges has the meaning given in section 5.3(a).

Additional Information has the meaning given in section 5.9(a).

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

Aggregator Platform means a third party website, application, technology or social media platform search engine, or similar method of collecting, mapping, or reviewing products, and the companies, businesses or entities that own, operate or control them.

Alcohol Item means any item that is alcohol for the purposes of section 5 of the Sale and Supply of Alcohol Act 2012.

Change in Ownership means any circumstance or event that results in a person Controlling you or your business, where that person did not Control you or your business immediately prior to the relevant circumstance or event.

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).

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.

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 and the Privacy Regulations 2020.

Delivery Item means any food, drink or other item that you make available to your customers for delivery by Portier NZ, via the Uber Eats App, excluding Self-Delivery Items.

Delivery Person means an independent contractor who may be subcontracted by Portier NZ (via the Uber Driver App), to undertake the delivery services provided under an agreement between Portier NZ and the customer. A Delivery Person is not an employee of Uber, Portier NZ or any of their Affiliates and may delegate to another person to undertake such delivery services.

Delivery Staff means your employee, contractor or other person who undertake delivery services on your behalf, not provided by Uber or Portier NZ. Uber and Portier NZ are not a party to any contract between you and your Delivery Staff.

Effective Date has the meaning given in section 2(a).

Fee Percentage means a percentage amount used to calculate the Uber Eats Fee in accordance with section 5.2(b).

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).

Food Acts means legislation applicable to the sale of food in New Zealand, including the Food Act 2014 and Food Regulations 2015.

Food Code means the Australia New Zealand Food Standards Code.

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

GST Law means the Goods and Services Tax Act 1985.

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 food, drink or other items that you make available to your customers via the Uber Eats App, and includes Delivery Items, Self-Delivery Items, Non-Delivery Items and Alcohol Items.

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.

Marketing Materials means:

(a) the Uber Eats Marketing Materials; or

(b) Your Marketing Materials.

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 Refund Policy means the terms related to refunds for Items to your customers by Uber on your behalf in New Zealand, available at https://help.uber.com/restaurants/article/managing-refunds-for-missing-or-incorrect-orders?nodeId=9aa57e9b-8bbf-4aa7-91d6-96ca77682dd2 (or a replacement URL).

Merchant Services means any services provided or made available to customers by you in connection with the sale or purchase of Items that are permitted under the Service Terms (including delivery services, if you choose the Self-Delivery Option).

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.

Non-Delivery Item means any food, drink or other Item that you make available to your customers for pick up from your location via the Uber Eats App.

Order Form means a document titled "Order Form" (or a similar name) that refers to these General Terms and 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 14.2.

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 the applicable Data Protection Law.

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

Promotions means short-term offers that are created and fulfilled by you that are intended to stimulate customer demand, including the provision of discounts and promotions applied in respect of Items, delivery fees and special promotions offered to your customers via the Uber Eats App.

Self-Delivery Items means any food, drink or other item that we agree you can make available to your customers for delivery by your Delivery Staff via the Uber Eats App.

Self-Delivery Option means the ‘Self-Delivery Option’ as further described in the Service Terms.

Standard Delivery Area means the maximum area in which Portier NZ will deliver Delivery Items in accordance with the Service Terms for the Uber Delivery Option, as amended by Portier NZ from time to time.

Service Terms means any specific terms and conditions applicable to individual service offerings, available at http://t.uber.com/serviceterms-nz (or a replacement URL) and updated by Uber and Portier NZ from time to time.

Standard Fee Webpage means the webpage at the URL specified in section 5.2(a), as updated from time to time.

Term means the Initial Term and any Renewal Term.

Uber Driver App means a website, application or other technology interface made available to a Delivery Person, to enable Portier NZ to subcontract the Delivery Person to undertake the delivery services provided under an agreement between Portier NZ and the customer.

Uber Eats Active Area means the maximum geographic area in which your location and/or Items will be visible to customers in the Uber Eats App, and (if applicable) in which Portier NZ will provide delivery of Delivery Items to customers in accordance with a separate agreement between Portier NZ and that customer, as amended by Portier NZ from time to time. The Uber Eats Active Area may be different depending on which of the options you choose, subject to any additional provisions set out in the Service Terms.

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

Uber Policies means the standard policies of Uber, Portier NZ and their Affiliates that apply to the use of the Uber Services and/or the Uber Tool, as amended from time to time, including the Uber Policies listed in section 4.10.

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

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

Variation Effective Date means the "Effective Date" set out in a varied Order Form provided to you by Uber or Portier NZ.

Virtual Storefront means a location where Delivery Items and/or Self-Delivery Items are prepared by you (or on your behalf) which does not have a physical storefront that is accessible by your customers.

15.2 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.