Terms of Use
GENERAL
These Terms apply to your use of the Service (as that term is defined below). By using the Service:
a) you agree to these 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 Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
CHANGES
We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
These Terms were last updated on 11 January 2022.
INTERPRETATION
In these Terms:
Avos To Go means www.avostogo.co.nz
Avos To Go Software means the software owned by us (and our licensors) that is used to provide the Service.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Avos To Go Software. Your Confidential Information includes the Data.
Customer means the person who purchases fruit using your login
Data means all data, content, and information (including personal information) owned, held, used, or created by you or on your behalf that is stored using, or inputted into, the Service.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
a lack of funds for any reason.
including and similar words do not imply any limit.
Fruit means products for sale on Avos To Go website
Intellectual Property Rights includes copyright and all rights existing 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.
Login means a customer’s personal email address and password used to access Avos To Go
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
Permitted Users means your personnel who are authorised to access and use the Service on your behalf in accordance with clause 5.3.
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.
personal information means information about an identifiable, living person. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.Sales Tax means sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
Subscription Period means the subscription period you have selected for the Service (e.g. weekly, monthly, annual, multi-year).
Terms means these terms titled Avos To Go “Terms of Use”.
Underlying Systems means the Avos To Go Software, IT solutions, website systems and networks (including software and hardware) used to provide the Service, including any third-party solutions, systems, and networks.
We, us or our means Avos To Go Limited (trading as Avos To Go), company number 8227600, NZBN 9429049751567 and any subsidiary or holding company of the Avos To Go Limited (as those terms are defined in the New Zealand Companies Act 1993).
Website means the internet site at avostogo.co.nz, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to 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.
PROVISION OF THE SERVICE
We must use reasonable efforts to provide the Service:
a) in accordance with these Terms and New Zealand law;
b) exercising reasonable care, skill and diligence; and
c) using suitably skilled, experienced and qualified personnel.
Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
Subject to clause 4.4, we must use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
Through the use of web services and APIs, the Service interoperates with a range of third-party service features. We do not make any warranty or representation on the availability 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.
All Fruit and other products supplied by Avos To Go will be in accordance with these Terms of Use and Avos To Go has the right to change these terms and conditions from time to time.
Avos To Go has the discretion to decline any order placed or cancel any order for any reason.
By using Avos To Go you agree that you have read, understood, and accepted these Terms of Use.
YOUR OBLIGATIONS
You and your personnel must:
a) use the Service in accordance with these Terms solely for:
i) your own internal business purposes; and
ii) lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007); and
b) not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
When accessing the Service, you and your personnel must:
a) not impersonate another person or misrepresent authorisation to act on behalf of others or us;
b) correctly identify the sender of all electronic transmissions;
c) not attempt to undermine the security or integrity of the Underlying Systems;
d) not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
e) not attempt to view, access or copy any material or data other than:
i) that which you are authorised to access; and
ii) to the extent necessary for you to use the Service in accordance with these Terms; and
f) neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
Without limiting clause 5.2, no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each
Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
A breach of any of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
DATA
You acknowledge that:
a) we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b) to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access the Data for this purpose.
You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
You acknowledge and agree that:
a) we may:
i) use Data and information about your and your end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
ii) use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
b) our rights under clause 6.3a above will survive termination of expiry of the Agreement; and
c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
You agree that we may store Data (including any personal information) in secure servers in Australia and may access that Data (including any personal information) in Australia and New Zealand from time to time.
You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
You agree you are liable for every order made under your login.
PRICE
The Customer will pay Avos To Go for the fruit ordered at the price displayed on the website at the time the order is submitted together with all shipping costs.
As stated in our FAQ’s, prices for one-off boxes and subscriptions will fluctuate. Like any seasonal produce this will decrease and increase throughout the avocado season. Prices will be consistent across one-off purchasing and subscriptions.
Shipping Costs are determined by location. For rural areas there will be an additional cost of $4.60 Shipping Costs charged per box of Fruit ordered.
In the event the customer has selected an incorrect shipping option, Avos To Go reserves the right to refuse or cancel the order, or to charge for any additional shipping costs. The customer will be notified if there is any additional delivery charge for their order.
The prices of fruit and shipping costs are in New Zealand currency and are inclusive of GST.
If Avos To Go is unable to supply the fruit ordered, Avos To Go will refund the
Customer’s payment or provide a similar alternative on customers approval.
INTELLECTUAL PROPERTY
Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
Title to, and all Intellectual Property Rights in, the Data (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 Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
If you provide us with ideas, comments or suggestions relating to the Service or 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.
You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
CONFIDENTIALITY
Each party must, unless it has the prior written consent of the other party:
a) keep confidential at all times the Confidential Information of the other party;
b) effect and maintain adequate security measures to safeguard the other party’s
Confidential Information from unauthorised access or use; and
c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1a and 9.1b.
The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
a) for the purpose of performing a party’s obligations, or exercising a party’s rights,
under these Terms of Use;
b) required by law (including under the rules of any stock exchange);
c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
WARRANTIES
Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
To the maximum extent permitted by law:
a) our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD100; and
b) we make no representation concerning the quality of the Service and do not promise that the Service will:
i) meet your requirements or be suitable for a particular purpose; or
ii) be secure, free of viruses or other harmful code, uninterrupted or error free.
You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
a) to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
b) it is fair and reasonable that the parties are bound by this clause 11.3.
Where legislation or rule of law implies into these Terms of Use or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
a) supplying the Service again; and/or
b) paying the costs of having the Service supplied again.
Avos To Go is not liable for any loss, damage or injury arising directly or indirectly from any fruit. Avos To Go is not liable for any consequential injury or loss of any kind arising from the customer’s use of Avos To Go or the delivery or failure to deliver fruit.
The customer agrees to indemnify Avos To Go against all liabilities, losses, claims and expenses arising directly or indirectly out of the customer’s use of the Avos To Go site or delivery or failure to deliver any product.
PRODUCT QUALITY
The customer acknowledges Avos To Go is selling perishable goods. Avos To Go will, at its discretion, replace any damaged fruit or provide a refund provided the customer lets Avos To Go know within 48 hours of receiving the damaged fruit. If requested by Avos To
Go you need to provide a photo of damaged fruit before any refund or replacement is actioned.
Avos To Go will not be liable for damage to fruit as a result of it being incorrectly stored or handled after delivery.
PAYMENT
You must pay for the fruit purchased either by internet banking or by credit card before their order will be dispatched.
You are liable for all costs associated with debt collection.
Avos To Go does not keep on record any Customer credit card details.
Stripe Payment Solutions (DPS) is the company Avos To Go uses for processing all credit card transactions securely.
Customers with an Avos To Go account who receive invoice billing are required to pay on the stated Due Date. Avos To Go will charge interest of 3% per month and debt collection charges on any accounts not paid by the due date.
DELIVERY
Avos To Go reserves the right to withhold delivery of any product for any reason whatsoever.
Deliveries will be made to the address and location the customer has identified on the order and once left at the specified address the fruit will be deemed to be delivered.
The customer will ensure Avos To Go or its agent is able to deliver where instructed by the Customer.
Avos To Go endeavours to dispatch all orders within six working days. If a customer has not received an order within seven days of having placed the order, they are required to contact Avos To Go. In the event the customer receives an incorrect order the customer is required to notify Avos To Go within 24 hours of receipt and failure to do so will deemacceptance of the fruit delivered by Avos To Go. If the customer contacts Avos To Go within 24 hours Avos To Go will arrange for replacement of the correct fruit if it is available.
USE OF COOKIES BY AVOS TO GO
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BUSINESS ADDRESS
Avos To Go is located in Maungatapere, New Zealand.
Email: support@avostogo.co.nz