Chooice Merchant Terms
1. APPLICATION OF MERCHANT TERMS
These Merchant Terms apply to your use of the Chooice Shop Services (as that term is defined below). By setting up an account to sell products or services through Chooice, clicking I agree to these Merchant Terms or accessing or using the Chooice Shop Services:
- you agree to these Merchant Terms; and
- where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Merchant Terms on that person’s behalf and that, by agreeing to these Merchant Terms on that person’s behalf, that person is bound by these Merchant Terms.
If you do not agree to these Merchant Terms, you are not authorised to use the Chooice Shop Services, and you must immediately stop doing so.
We may change these Merchant Terms at any time by updating them on Chooice. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Merchant Terms. By continuing to access and use the Chooice Shop Services, you agree to be bound by the changed Merchant Terms.
We may change, suspend, discontinue, or restrict access to, Chooice and/or the Chooice Shop Services without notice or liability.
Merchant Terms last updated: These Merchant Terms were last updated on 29/07/2020.
3. DEFINITIONS AND INTERPRETATION
Definitions: In these Merchant Terms:
Chooice means the internet site at http://chooice.co.nz/, or such other site notified to you by us
Chooice Shop Terms means the Chooice shop terms available at http://chooice.co.nz/terms-conditions/
Chooice Shop Services means the listing and facilitation of sales of products and services on and through Chooice and associated promotional services
Commission means the commission payable by you to us on products and/or services sold through Chooice, as may be updated from time to time in accordance with clause 7.4, as follows:
- for products and/or services sold as a result of a click-through from a live social media broadcast, 20%; and
- for all other sales, 5%
Content means content, data, and information (including personal information) that you upload when you create a Shop Listing or that is Public Content
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
Merchant Terms means these terms and conditions titled Chooice Merchant Terms
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening or unlawful, in any way
personal information means information about an identifiable, living person
products and services includes goods, services, events, activities, property and accommodation
Public Content means content (including photos, video and audio) and information that is publicly available about you, including via Shop Listings, your website and your social media feeds such as Facebook, Instagram and Twitter
Shop Listing means a listing made by you on the Chooice Shop Services
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Chooice Shop Services, including any third party solutions, systems and networks
User ID means a unique name and/or password allocated to you to allow you to access the Chooice Shop Services
We, us or our means Chooice.co.nz Limited, company number 7994616,
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting
In these Merchant Terms:
- clause and other headings are for ease of reference only and do not affect the interpretation of these Merchant Terms;
- words in the singular include the plural and vice versa; and
- a reference to:
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit; and
- a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4. ABOUT CHOOICE AND THE CHOOICE SHOP SERVICES
Chooice allows users to discover products and services and support New Zealand businesses.
The Chooice Shop Services enable merchants to sell products and services directly from Chooice.
We act as an intermediary for users to transact and are not a party to any agreement to buy, sell or provide products or services advertised on Chooice or sold using the Chooice Shop Services. When a user purchases products and/or services using the Chooice Shop Services, they are entering into an agreement directly with you.
Any interaction between you and another user, including any sale of products or services through the Chooice Shop Services, is a matter directly between you and that user. Other than our obligations set out in these Merchant Terms, we are not liable to you for any failure by any user to comply with the Chooice Shop Terms or any other legal obligation.
We will use reasonable efforts to provide the Chooice Shop Services in accordance with these Merchant Terms and New Zealand law.
Our provision of the Chooice Shop Services to you is non-exclusive. Nothing in these Merchant Terms prevents us from providing the Chooice Shop Services to any other person.
Subject to clause 4.8, we will use reasonable efforts to ensure the Chooice Shop Services are available on a 24/7 basis. However, it is possible that on occasion the Chooice Shop Services may be unavailable to permit maintenance or other development activity to take place, or due to an event that is beyond our reasonable control.
Through the use of web services and APIs, the Chooice Shop Services may interoperate with a range of third party service features. We do not make any warranty or representation on the availability or performance of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
5. YOUR OBLIGATIONS
You and your personnel must:
- use the Chooice Shop Services in accordance with these Merchant Terms solely for:
- your own internal business purposes; and
- lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007); and
- not resell or make available the Chooice Shop Services to any third party, or otherwise commercially exploit the Chooice Shop Services.
You must use the Chooice Shop Services solely in connection with products and services that comply with the listing rules.
You must ensure that Shop Listings are posted to the appropriate category. You must familiarise yourself with the requirements of each category to ensure appropriate placement of Shop Listings.
You must provide true, current and complete information in your dealings with us (including when setting up an account and creating a Shop Listing), and must promptly update that information as required so that the information remains true, current and complete.
You must keep your User ID secure and:
- not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
- immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by sending an email to [email protected].
When accessing and using Chooice and the Chooice Shop Services, you and your personnel must:
- not impersonate another person or misrepresent authorisation to act on behalf of others or us;
- not attempt to undermine the security or integrity of the Underlying Systems;
- not use, or misuse, Chooice or the Chooice Shop Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use Chooice or the Chooice Shop Services;
- not attempt to view, access or copy any material or data other than:
- that which you are authorised to access; and
- to the extent necessary for you to use the Chooice Shop Services in accordance with these Merchant Terms;
- neither use Chooice or the Chooice Shop Services, nor transmit, input or store any Content, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
- unless with our agreement, access Chooice and the Chooice Shop Services via standard web browsers and apps and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction, monitoring or input method.
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Chooice Shop Services, including to use, store and input Content into, and display Content using, Chooice and the Chooice Shop Services.
A breach of any of these Merchant Terms by your personnel is deemed to be a breach of these Merchant Terms by you.
You indemnify us against all Loss we suffer or incur as a direct or indirect result of:
- any actual or alleged claim by a third party that any Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Content is Objectionable, incorrect or misleading;
- your failure to comply with these Merchant Terms, including any failure of a person who accesses and uses Chooice or the Chooice Shop Services by using your User ID; or
- any Loss arising from or in connection with an actual or alleged breach by you of any legal or regulatory requirements which occurs a consequence of your Shop Listing or as a result of a relationship established through Chooice or the Chooice Shop Services.
6. SHOP LISTINGS
When creating a Shop Listing, you must:
- provide accurate information on the products and/or services offered;
- disclose the price payable for the products and/or services offered; and
- provide any additional terms and conditions that apply to the products and/or services offered.
All descriptions and information in a Shop Listing must be accurate, complete, up-to-date and truthful to the best of your knowledge and belief.
If products and/or services becomes unavailable for any reason, you agree to remove or suspend the Shop Listing as soon as practicable.
You grant us the right to access your website and social media feeds, copy Public Content and republish Public Content to promote your Shop Listings, products and services.
On a Chooice user purchasing your products and/or services from a Shop Listing, you must supply the products or services to which the Shop Listing relates, in accordance with:
- these Merchant Terms;
- any additional terms that apply to the applicable Shop Listing; and
- any legal or regulatory requirements relating to that Shop Listing and the supply of the products or services to which the Shop Listing relates.
You acknowledge and agree that you are responsible for all Shop Listings that you post. Accordingly, you represent and warrant that any Shop Listing you post will:
- comply with any agreements you have entered into with any third parties;
- comply with all applicable laws; and
- not conflict with the rights of third parties.
7. COMMISSION AND PAYMENT
You will be required to submit your bank account details to our payment processor (currently Stripe). By using Stripe’s payment processing services, you agree to comply with Stripe’s terms and conditions, including the payment of a transaction fee for each product and/or service sold through the Chooice Shop Services.
When a Chooice user purchases your products and/or services through the Chooice Shop Services, Stripe will pay you the price for the products and/or services sold, minus the Stripe transaction fees and our Commission (if applicable).
We may increase the Commission by giving at least 30 days’ notice. We will notify you of any increase and the effective date of the increase by posting a notice on Chooice and/or emailing you at the email contact address that you have most recently supplied to us. If you do not wish to pay the increased Commission, you may remove your Shop Listings and/or your account. If you do not remove your Shop Listings before the effective date of the increase, you are deemed to have accepted the increased Commission.
Title to, and all Intellectual Property Rights in, the Content (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Merchant Terms.
Without limiting clause 8.1, you acknowledge that we may use Content for our internal research, analytical and product development purposes, to conduct statistical analysis and identify trends and insights (on an anonymised and aggregated basis) and for our internal reporting requirements (and these rights will survive termination and expiration of these Merchant Terms).
You must ensure you have obtained all necessary consents for us to access, collect, hold, process and distribute the Content as described in these Merchant Terms.
While we will use reasonable endeavours to back up all Shop Listings, you must keep separate and regular back-up copies of all Content uploaded by you for Shop Listings.
9. OUR INTELLECTUAL PROPERTY
Other than your Content, we (and our licensors) own all proprietary and intellectual property rights in Chooice, the Chooice Shop Services and the Underlying Systems, including all information, data, text, graphics, artwork, photographs, trade marks, logos, icons, sound recordings, videos and look and feel, and including any modification, enhancement or derivative work of any of the foregoing.
If you provide us with ideas, comments or suggestions relating to Chooice, the Chooice Shop Services or the Underlying Systems (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
- we may use or disclose the feedback for any purpose.
To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
- any Shop Listing;
- any relationship established through Chooice or the Chooice Shop Services;
- Chooice or the Chooice Shop Services being unavailable (in whole or in part) or performing slowly;
- any error in, or omission from, any information made available through Chooice or the Chooice Shop Services;
- any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use Chooice or the Chooice Shop Services. To avoid doubt, you are responsible for ensuring the process by which you access and use Chooice and the Chooice Shop Services protects you from this; and
- any site linked from Chooice. Any link on Chooice to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
We may, from time to time, feature products and/or services on our Facebook live segments and other social media platforms. We have the sole discretion to determine what products and/or services are featured on those segments and platforms.
You agree and represent that you are accessing and using Chooice and the Chooice Shop Services for the purposes of a business and that the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of Chooice or the Chooice Shop Services or these Merchant Terms.
All Shop Listings and all sales of products and/or services through the Chooice Shop Services are carried out entirely at your own risk. We exclude to the fullest extent permitted by applicable law all liability for any Loss arising out of or in any way connected with any other arrangements that you may have made in connection with Chooice or your use of Chooice or the Chooice Shop Services.
To the maximum extent permitted by law:
- you access and use of Chooice and the Chooice Shop Services at your own risk; and
- we are not liable or responsible to you or any other person for any Loss under these Merchant Terms or in connection with Chooice, the Chooice Shop Services, or your access and use of (or inability to access or use) Chooice or the Chooice Shop Services. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
To the maximum extent permitted by law and only to the extent clause 12.1 does not apply, our total liability to you under these Merchant Terms or in connection with Chooice or the Chooice Shop Services will not exceed the Commission we have received from sales by you through Chooice in the [month] prior to the first event giving rise to liability.
We will not be liable to you under or in connection with these Merchant Terms, Chooice or the Chooice Shop Services for any:
- loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
Clauses 12.1 to 12.3 do not apply to limit:
- our liability under or in connection with these Merchant Terms:
- for personal injury or death; or
- for fraud or wilful misconduct; or
- any liability that cannot be excluded by law.
13. SUSPENSION AND TERMINATION
Unless terminated under this clause 13, these Merchant Terms and your right to access and use the Chooice Shop Services continues until a party gives [30 days’] notice that these Merchant Terms and your access to and use of the Chooice Shop Services will terminate on the expiry of that notice.
You can cease using the Chooice Shop Services at any time by removing your account for the Chooice Shop Services. If you do this, these Merchant Terms and your right to use the Chooice Shop Services will terminate immediately.
Termination of these Merchant Terms does not affect either party’s rights and obligations that accrued before that termination.
No compensation is payable by us to you as a result of termination of these Merchant Terms for whatever reason, and you will not be entitled to a refund of any Commission that you have already paid.
Without limiting any other right or remedy available to us, we may restrict or suspend your use of the Chooice Shop Services and/or delete, edit or remove your Content if we consider that you or any of your personnel have:
- undermined, or attempted to undermine, the security or integrity of Chooice or the Chooice Shop Services or any Underlying Systems;
- used, or attempted to use, Chooice or the Chooice Shop Services for improper purposes (including failure to comply with the listing rules or the Unsolicited Electronic Messaging Act 2007);
- your Content breaches or may breach these Merchant Terms or any third party right (including Intellectual Property Rights and privacy rights), or is or may be Objectionable, incorrect or misleading; or
- otherwise materially breached these Merchant Terms.
Clauses which, by their nature, are intended to survive termination of your right to access and use the Chooice Shop Services, including clauses 5.9, 8, 9, 10, 11, 12, 13.4 and 13.6, continue in force.
If we need to contact you, we may do so by email or by posting a notice on Chooice. You agree that this satisfies all legal requirements in relation to written communications.
These Merchant Terms, and any dispute relating to these Merchant Terms or the Chooice Shop Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Merchant Terms or the Chooice Shop Services.
We are not liable to you for any failure to perform our obligations under these Merchant Terms to the extent caused by an event that is beyond our reasonable control.
You may not assign, novate, subcontract or transfer any right or obligation under these Merchant Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Merchant Terms despite any approved assignment, subcontracting or transfer.
No person other than us and you has any right to a benefit under, or to enforce, these Merchant Terms.
Subject to clause 2.1, any variation to these Merchant Terms must be in writing and signed by both parties.
For us to waive a right under these Merchant Terms, that waiver must be in writing and signed by us.
If any part or provision of these Merchant Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Merchant Terms. The remainder of these Merchant Terms will be binding on you.
These Merchant Terms set out everything relating to your use of the Chooice Shop Services and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Merchant Terms. The parties have not relied on any representation, warranty or agreement relating to the Chooice Shop Services that is not expressly set out in the Merchant Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Merchant Terms.