Chooice Merchant Terms
1. APPLICATION OF MERCHANT TERMS
a. you agree to these Seller Terms; and
b. 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 Seller Terms on that person’s behalf and that, by agreeing to these Seller Terms on that person’s behalf, that person is bound by these Seller Terms.
1.2. If you do not agree to these Seller Terms, you are not authorised to use the Chooice Store Services, and you must immediately stop doing so.
2.1. We may change these Seller 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 Seller Terms. By continuing to access and use the Chooice Store Services, you agree to be bound by the changed Seller Terms. We recommend you regularly review these Seller Terms to see any updates or changes.
2.2. We may change, suspend, discontinue, or restrict access to, Chooice and/or the Chooice Store Services without notice or liability.
2.3. Seller Terms last updated: These Seller Terms were last updated on 06/10/21
3. DEFINITIONS AND INTERPRETATION
3.1. Definitions: In these Seller Terms:
a. “Chooice” means the internet site at https://chooice.co.nz/, any social media or other platform that we have set up a Chooice page or group in relation to the sale and purchase of Products and Services, or such other site notified to you by us;
b. “Chooice Store Services” means the listing and facilitation of sales of Products and Services on and through Chooice and associated promotional services;
c. “Commission” means the commission payable by you to us each time you sell a Product and/or Service through Chooice, as set out under and as may be updated from time to time in accordance with clause 7.6;
d. “Content” means content, data, pictures, graphics, information (including Personal Information) and any other materials published or uploaded by you when you create a Store Listing, including Public Content;
e. “GST” means goods and services tax as set out in the Goods and Services Tax Act 1985;
f. “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 trademarks 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;
g. “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;
h. “Membership Fee” means the membership fee set out on our pricing page on Chooice, as may be updated from time to time in accordance with clause 7.6;
i. “Objectionable” includes being objectionable, defamatory, obscene, inappropriate, harassing, threatening, unlawful, or otherwise considered by us as being unacceptable in any way;
j. “Personal Information” means information about an identifiable, living person;
k. “Products and Services” means goods, services, events, activities, property and accommodation;
l. “Public Content” means Content (including photos, video and audio) and information that is publicly available about you, including via Store Listings, your website and your social media feeds such as Facebook, Instagram and Twitter;
m. “Seller Terms” means these terms and conditions titled Chooice Terms and of Use (Seller) Terms;
n. “Store Listing” means a listing made by you on the Chooice Store Services;
o. “Underlying Systems” means the IT solutions, systems and networks (including software and hardware) used to provide the Chooice Store Services, including any third party solutions, systems and networks;
p. “User ID” means a unique name and/or password allocated to you to allow you to access the Chooice Store Services;
q. “We”, “Us” or “Our” means Chooice.co.nz Limited, company number 7994616;
r. “You” means you or, if clause 1.1(b) applies, both you and the other person on whose behalf you are acting.
3.2 In these Seller Terms:
a. clause and other headings are for ease of reference only and do not affect the interpretation of these Seller Terms;
b. words in the singular include the plural and vice versa; and
c. a reference to:
i. 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;
ii. including and similar words do not imply any limit; and
iii. 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
4.1. Chooice allows users to discover Products and Services and support New Zealand businesses.
4.2. The Chooice Store Services enables sellers to sell Products and Services directly from Chooice.
4.3. We act as an intermediary for users to transact and are not as an agent (except to the extent to facilitate payment of Products or Services) or party to any agreement to buy, sell or provide Products or Services advertised on Chooice or sold using the Chooice Store Services. When a user purchases Products and/or Services using the Chooice Store Services, they are entering into an agreement directly with you.
4.4. Any interaction between you and another user, including any sale of Products or Services through the Chooice Store Services, is a matter directly between you and that user. Other than our obligations set out in these Seller Terms, we are not liable to you for any failure by any user to comply with the Chooice Store Terms or any other legal obligation.
4.5. We will use reasonable efforts to provide the Chooice Store Services in accordance with these Seller Terms and New Zealand law.
4.6. Our provision of the Chooice Store Services to you is non-exclusive. Nothing in these Seller Terms prevents us from providing the Chooice Store Services to any other person.
4.7. We provide Chooice and the Chooice Store Services on an as is basis, and you use it at your own risk.
4.8. Subject to clause 4.9, we will use reasonable efforts to ensure the Chooice Store Services are available on a 24/7 basis. However, it is possible that on occasion the Chooice Store 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.
4.9. Through the use of web services and APIs, the Chooice Store 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, at our discretion, either replace or 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, except to the extent required by law, entitled to any refund, discount or other compensation.
4.10. To use the Chooice Store Services, you must complete the online registration form to set up an account to sell Products and/or Services on Chooice. We reserve the right to verify and/or reject any person wanting to become a seller on Chooice.
4.11. Please note that we do not accept businesses or sellers selling Products and/or Services from certain industries on Chooice, including those relating to weapons, recreational drugs, pharmaceuticals and other medicines, tobacco, sex work etc. For more information, please see Prohibited Businesses/Products/Services List.
4.12. Where, on registration or subsequently, you indicate that you wish to receive email communications from us, we may continue to communicate with you using email until you indicate otherwise. These communications may include information about your or another seller’s Products or Services, features of the Chooice website or Chooice Store Services, notices about applicable fees and charges, transactional information and other information concerning or related to Chooice. You may opt-out of receiving email communications at any time by using the unsubscribe link in any email.
4.13. If you are accessing Chooice on a social media or other platform (Third Party Platform) that we have set up a page or group for the sale and purchase of Products and Services, you agree to abide by the terms of that Third Party Platform in addition to these Seller Terms.
4.14. We reserve the right to update and amend any information on Chooice at any time.
5. YOUR OBLIGATIONS
5.1. We have expectations and requirements of sellers who use Chooice and we expect sellers to abide by these Seller Terms. You and your personnel must:
a. use the Chooice Store Services in accordance with these Seller Terms and solely for your own internal business purposes;
b. comply with all applicable law, including all of your obligations under the Unsolicited Electronic Messaging Act 2007, the Fair Trading Act 1986, the Consumer Guarantees Act 1993, Privacy Act 2020 and any other relevant New Zealand law;
c. not resell or make available the Chooice Store Services to any third party, or otherwise commercially exploit the Chooice Store Services;
d. use the Chooice Store Services in compliance with the Store Listing obligations under clause 6;
e. provide true, current and complete information in your dealings with us (including when setting up an account and creating a Store Listing), and must promptly update that information as required so that the information remains true, current and complete. You also confirm that the information provided through the registration process or subsequent to registration, is not misleading or deceptive, or is likely to mislead or deceive;
f. keep your User ID secure and:
i. not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
ii. immediately notify us if you become aware of any unauthorised use or disclosure of your User ID or any other breach of security, by sending an email to firstname.lastname@example.org;
You are entirely responsible for all activities that occur through the use of your User ID. Following any unauthorised use, you will cease using that password and create a new unrelated password. You will indemnify us, our directors, officers and employees against all costs, expenses and damages incurred in connection with any claim arising from or any reasonable reliance by us on any use of your password.
g. when accessing and using Chooice and the Chooice Store Services, you and your personnel must:
i. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
ii. not transmit any unsolicited advertising, promotional materials or any other forms of solicitation to other Chooice users;
iii. not attempt to undermine the security or integrity of the Underlying Systems;
iv. not use, or misuse, Chooice or the Chooice Store 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 Store Services;
v. not attempt to view, access, copy, resell, redistribute or store any material or data, including the Site Materials (as defined in clause 9.1), other than:
A. that which you are authorised to access; and
B. to the extent necessary for you to use the Chooice Store Services in accordance with these Seller Terms;
vi. neither use Chooice or the Chooice Store Services, nor transmit, input or store any Content, that:
A. breaches any applicable law or regulation;
B. breaches any third party right (including Intellectual Property Rights, privacy rights and publicity rights); or
C. is Objectionable, incorrect or misleading;
vii. not use or introduce (or allow anything to be used or introduced into Chooice, the Underlying Systems or environment any virus, Trojan horse or worm, or other device designed to damage, disable or impair the full use of Chooice or any network or Underlying System, software, data or material that underlies or is connected to Chooice; and
viii. unless with our agreement, only access Chooice and the Chooice Store Services via standard web browsers and apps and not by any other method. Do not use methods that include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction, monitoring or input method.
5.2. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Chooice Store Services, including to:
a. use, store and input Content into, and display Content using, Chooice and the Chooice Store Services; and
b. sell Products and Services on Chooice.
5.3. A breach of any of these Seller Terms by your personnel is deemed to be a breach of these Seller Terms by you.
5.4. You indemnify us, our directors officers and employees against all Loss we suffer or incur as a direct or indirect result of:
a. any actual or alleged claim by a third party, including any claim 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;
b. your failure to comply with these Seller Terms, including any failure of a person who accesses and uses Chooice or the Chooice Store Services by using your User ID; or
c. any Loss arising from or in connection with an actual or alleged breach by you of any legal or regulatory requirements which occurs as a consequence of your Store Listing or as a result of a relationship established through Chooice or the Chooice Store Services.
6. STORE LISTING OBLIGATIONS
6.1. You must ensure that all Store Listings are posted to the appropriate category. You must familiarise yourself with the requirements of each category to ensure appropriate placement of Store Listings. For guidance on the appropriate Store Listing category, please see our Sellers Standards Policy.
6.2. When creating a Store Listing, you must:
a. provide accurate, current and complete information about the Products and/or Services offered, payment terms, delivery methods and who bears the cost of delivery;
b. only place listings for Products and/or Services that exist, are able to be sold, and that you are legally entitled to sell or perform;
c. disclose the price payable for the Products and/or Services offered in New Zealand dollars and inclusive of GST (where GST is applicable);
d. provide any additional terms and conditions that apply to the Products and/or Services offered. These additional terms and conditions must not contain ‘unfair contract terms’ under the Fair Trading Act 1986. For more guidance on what constitutes an ‘unfair contract term’, please see: https://comcom.govt.nz/business/your-obligations-as-a-business/unfair-contract-terms;
e. ensure all Products and Services listed for sale are not:
i. on our Prohibited Products and Services List or otherwise Objectionable;
ii. illegal, stolen, illegally imported or do not require illegal import or export in order to complete the transaction;
iv. infringing another person’s Intellectual Property Rights; and/or
v. prohibited by, or in violation of any law, regulation or standard; and
f. without limiting clause 6.2(e), ensure the Products and Services comply with any applicable safety or other standards. If you have any doubts about the safety of a Product or Service, do not sell it. You must be satisfied that any Product or Service you sell complies with any applicable product safety standard.
6.3. All descriptions and information in a Store Listing must be accurate, complete, up-to-date and truthful to the best of your knowledge and belief.
6.4. If Products and/or Services become unavailable for any reason, you agree to remove or suspend the Store Listing as soon as practicable.
6.5. If you decide to hold a discount sale on your Products and/or Services, that sale must not be for an indefinite or prolonged period of time. Holding a sale for indefinite or prolonged periods may constitute a breach of the Fair Trading Act 1986. We reserve all rights to remove any Store Listings and/or suspend your account where we suspect that a discount sale is being held for an indefinite or prolonged period of time.
6.6. You grant us the right to access your website and social media feeds, copy Public Content and republish Public Content to promote your Store Listings, Products and Services.
6.7. Once a Chooice user has purchased your Products and/or Services from a Store Listing, you must supply the Products or Services to which the Store Listing relates to that Chooice user, in accordance with:
a. these Seller Terms;
b. any additional terms that apply to the applicable Store Listing; and
c. any legal or regulatory requirements relating to that Store Listing and the supply of the Products or Services to which the Store Listing relates.
6.8. You acknowledge and agree that you are responsible for all Store Listings that you post. Accordingly, you represent and warrant that any Store Listing you post will:
a. comply with any agreements you have entered into with any third parties;
b. comply with all applicable laws and regulations (including the Fair Trading Act 1986 and the Consumer Guarantees Act 1993); and
c. not conflict with, or breach the rights of third parties (including Intellectual Property Rights or privacy rights).
7. COMMISSION AND PAYMENT
7.1. When you set up your account, you will be required to submit your bank account details to Stripe, our third party payment processor. By using Stripe’s payment processing services, you agree to comply with Stripe’s terms and conditions, which includes the payment of a transaction fee for each Product and/or Service sold through the Chooice Store Services. For more information about Stripe’s transaction fee, please see their terms and conditions.
7.2. When a Chooice user purchases your Products and/or Services through the Chooice Store Services, Stripe will pay you the price for the Products and/or Services sold, minus the Stripe transaction fees and our Commission (if applicable).
7.3. You will be charged the Membership Fee for each month of your subscription to Chooice. You must pay us the Membership Fee in accordance with the terms of this clause 7. Unless otherwise agreed, the Membership Fee will be charged to your valid debit/credit card in advance of each monthly billing period. All payments will be processed through Stripe.
7.4. Unless you cancel your right to use Chooice prior to the end of the monthly billing period in accordance with clause 12.2, at the end of each monthly period we will automatically roll over your subscription for a further month.
7.5. If we are unable to collect the Membership Fee from your debit/credit card for any reason, including where your card has expired or there are insufficient funds, you remain responsible for any uncollected amounts, and we may suspend or cancel your access to Chooice without giving you notice.
7.6. We may increase the Commission and/or Membership Fee, or introduce other fees, at any time by giving at least 30 days’ notice.
7.7. 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 or Membership Fee, you may remove your Store Listings and/or your account. If you do not remove your Store Listings before the effective date of the increase, you are deemed to have accepted the increased Commission and Membership Fee.
8.1. 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 Seller Terms.
8.2. If you use Content from third parties in your Store Listings, you must ensure that you have obtained all necessary licences and consents:
a. to use, publicly display and profit from that Content; and
b. for us to access, collect, hold, process, copy and distribute the Content as described in these Seller Terms.
8.3. Without limiting clauses 8.1 or 8.2, 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 Seller Terms).
8.4. While we will use reasonable endeavours to back up all Store Listings, you must keep separate and regular back-up copies of all Content uploaded by you for Store Listings.
9. OUR INTELLECTUAL PROPERTY
9.1. Other than your Content, we (and our licensors) own all proprietary and Intellectual Property Rights in Chooice, the Chooice Store 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 (the “Site Materials”).
9.2. The Site Materials may not be copied, republished, rewritten, resold, redistributed, communicated transmitted or stored, whether in hard copy, electronic or any other form.
9.3. If you access and/or use the Site Materials in breach of these Seller Terms, your right to use Chooice will cease immediately and you must, at our request, delete or destroy any copies of the Site Materials you have made.
9.4. We reserve the right to prohibit links to Chooice and you must remove or cease any link to Chooice at our written request.
9.5. If you provide us with ideas, comments or suggestions relating to Chooice, the Chooice Store Services or the Underlying Systems (together “Feedback”):
a. 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
b. we may use or disclose the feedback for any purpose.
11. DISCLAIMERS AND LIMITATION OF LIABILITY
11.1. To the maximum 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:
a. any loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill;
b. any Store Listing;
c. any relationship established through Chooice or the Chooice Store Services;
d. your access and use of Chooice or the Chooice Store Services, including if Chooice or the Chooice Store Services are unavailable (in whole or in part) or performing slowly;
e. any error in, or omission from, any information made available through Chooice or the Chooice Store Services;
f. 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 Store Services. To avoid doubt, you are responsible for ensuring the process by which you access and use Chooice and the Chooice Store Services protects you from this; and
g. any site linked from Chooice. You access linked sites at your own risk. We will not be responsible for the availability, content, security, policies or practices of any linked sites and we will not be responsible for any dealing you have with any party on a linked site. Any link on Chooice to other sites does not imply any sponsorship, endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
11.2. To the maximum extent permitted by law and only to the extent this clause does not apply, our total liability to you under these Seller Terms or in connection with Chooice or the Chooice Store 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 Seller Terms, Chooice or the Chooice Shop Services for any loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill, consequential, indirect, incidental or special damage or loss of any kind.
11.3. Clauses 11.1 to 11.2 do not apply to limit:
a. our liability under or in connection with these Seller Terms:
i. for personal injury or death; or
ii. for fraud or wilful misconduct; or
b. any liability that cannot be excluded by law.
11.4. 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.
11.5. You agree and represent that you are accessing and using Chooice and the Chooice Store 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 Store Services or these Seller Terms.
11.6. You access and use Chooice and the Chooice Store Services at your own risk. All Store Listings and all sales of Products and/or Services through the Chooice Store Services are also 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 Store Services.
12. SUSPENSION AND TERMINATION
12.1. Unless terminated under this clause 12, these Seller Terms and your right to access and use the Chooice Store Services continues until a party gives 30 days’ notice of its intention to terminate the agreement set out in these Seller Terms. On expiry of that notice, these Seller Terms and your access to and use of the Chooice Store Services will terminate.
12.2. You can cease using the Chooice Store Services at any time by removing your account for the Chooice Shop Services. If you do this, these Seller Terms and your right to use the Chooice Store Services will terminate immediately.
12.3. Termination of these Seller Terms does not affect either party’s rights and obligations that accrued before that termination. If you cease using the Chooice Store Services or if it is terminated by us, you must complete any outstanding transactions with other users and pay any outstanding Commission and Membership Fees to us.
12.4. No compensation is payable by us to you as a result of termination of these Sellers Terms for whatever reason, and you will not be entitled to a refund of any Commission that you have already paid.
12.5. Without limiting any other right or remedy available to us, we may restrict or suspend your use of the Chooice Store Services and/or delete, edit or remove your Content if we consider that you or any of your personnel have:
a. undermined, or attempted to undermine, the security or integrity of Chooice or the Chooice Store Services or any Underlying Systems;
b. used, or attempted to use, Chooice or the Chooice Store Services for improper purposes (including failure to comply with the listing rules at https://help.chooice.co.nz/support/solutions/articles/51000236661-chooice-facebook-group-terms-of-use);
c. breached applicable laws or regulations, including the Unsolicited Electronic Messaging Act 2007, the Fair Trading Act 1986, Privacy Act 2020 or the Consumer Guarantees Act 1993;
d. supplied Content that breaches or may breach these Seller Terms or any third party right (including Intellectual Property Rights and privacy rights), or is or may be Objectionable, incorrect or misleading; or
e. otherwise materially breached these Seller Terms.
12.6. On suspension or termination, you must immediately cease using the Chooice Store Services and must not attempt to gain further access.
12.7. Clauses which, by their nature, are intended to survive termination of your right to access and use the Chooice Store Services, including clauses 5.4, 8, 9, 10, 11, 12.3, 12.4, 12.6and 13.3, continue in force.
13.1. 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.
13.2. If you have any questions or concerns in relation to Chooice or these Seller Terms, please contact us.
13.3. These Seller Terms, and any dispute relating to these Seller Terms or the Chooice Store 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 Seller Terms or the Chooice Store Services.
13.4. We are not liable to you for any failure to perform our obligations under these Seller Terms to the extent caused by an event that is beyond our reasonable control.
13.5. You acknowledge that you are an independent contractor in business on your own account and that our relationship is not a partnership, agency or joint adventure arrangement. You are responsible for the payment of your own income tax, GST, levies under the Accident Compensation Act 2001 and all other relevant taxes and levies.
13.6. You may not assign, novate, subcontract or transfer any right or obligation under these Seller Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Seller Terms despite any approved assignment, subcontracting or transfer.
13.7. No person other than us and you has any right to a benefit under, or to enforce, these Seller Terms.
13.8. For us to waive a right under these Seller Terms, that waiver must be in writing and signed by us.
13.9. If any part or provision of these Seller 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 Seller Terms. The remainder of these Seller Terms will be binding on you.
13.10. These Seller Terms set out everything relating to your use of the Chooice Store Services and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Seller Terms. The parties have not relied on any representation, warranty or agreement relating to the Chooice Store Services that is not expressly set out in the Seller Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Seller Terms.