These Terms may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon us notifying you of the changes by email, or by posting the changes on the Platform. You must ensure that you have read, understood and agree to the terms in these Terms. You agree that your continued use of the Platform represents your agreement to be bound by the most recent terms.
1.1 In these Terms, unless the context otherwise requires or is specified otherwise:
Access Details has the meaning given in clause 3.3(b);
Account means the online profile you have with us that is accessible via the Platform;
Administrator means the person(s) designated by the Retailer (where such functionality exists on the Platform) to administer Retailer Users’ use of the Platform;
Booking means the Retailer’s request for Driver Services made through the Platform;
Booking Information means any information provided by a User to the Platform in relation to Bookings, including photographs, pickup and delivery locations and delivery documentation;
Device means a computer or other device that you own and/or control;
Driver means a person who has been given access to the Platform by us in accordance with the Driver Agreement;
Driver Agreement means the agreement entered into between the Driver and us in relation to the provision of Driver Services to Retailers;
Driver Services means the carriage and delivery of Goods from the collection address to the destination address specified by Retailers;
Goods means the chattels identified by the Retailer through the Platform and which the Driver is to provide the Driver Services;
Intellectual Property Rights means all intellectual property rights and includes any patents, registered designs, utility models, trade marks (including logos and trade names), domain names, copyright, circuit layouts, rights in computer software and databases, rights in inventions, ideas, know-how and trade secrets, image and personality rights (including all things recording that intellectual property), in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world and all rights to apply for any such rights;
Master Agreement means:
(a) the Retailer Agreement, if you are a Retailer User; or
(b) the Driver Agreement, if you are a Driver;
Platform means the cloud-based transportation and delivery solutions platform provided by OnSend to the Retailer, enabling the Retailer to request Bookings, and Drivers to view and accept Bookings;
Retailer means the retailer that has entered into a Retailer Agreement;
Retailer Agreement means the agreement entered into between the Retailer and us in relation to the provision of delivery services to the Retailer’s customers;
Retailer User means an employee or independent contractor of the Retailer who has been given access to the Platform by the Retailer to make Bookings;
Subscription Term means the term of the Master Agreement;
Updates has the meaning given in clause 4.1;
Users means users of the Platform, and includes Drivers, Retailers, Retailer Users and Administrators (where those Administrators are designated by you);
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, us and our are a reference to LM Technologies Limited;
you and your are a reference to the individual that accesses and/or uses the Platform; and
Your Data means any data that you have inputted on the Platform, including Booking Information.
2.1 The Platform allows the request for Driver Services by the Retailer for the delivery of Goods to its customers, and the provision of those Driver Services by Drivers.
2.2 If you are a Retailer User using this Platform on behalf of a Retailer, you may make Bookings that will be made available to Drivers on the Platform.
2.3 If you are a Driver, you may accept Bookings requested by Retailers on the Platform.
2.4 You acknowledge and agree that these Terms do not form any contract directly between Drivers and Retailers (or the Retailers’ customers) in respect of a Booking or otherwise.
2.5 Your access and use of the Platform is also provided to you in accordance with the Master Agreement.
3.1 We grant you a royalty-free, non-exclusive, revocable, non-transferable, non-sublicensable, right to access and use the Platform during the Subscription Term on the terms and conditions set out in these Terms and the Master Agreement.
3.2 We will use reasonable endeavours to make the Platform available to you.
(a) will be solely responsible for:
(i) procuring and maintaining your network connections and telecommunications links from the Device you use to access the Platform; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
(b) will keep any logins, passwords and registration codes (together, Access Details) that are required for your access to your Account and/or use of any part of the Platform confidential and ensure you are the only person to access and use the Platform through use of the Access Details;
(c) will only access those parts of the Platform that you have been authorised by an Administrator to access. If you have access to parts of the Platform that you do not think you should have access to please immediately contact the Administrator and/or us;
(d) will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify us;
(e) are fully responsible for all activities that occur under your Account and agree to immediately change your password in the event of any breach of security;
(f) acknowledge and agree that we may disable your login Account or access to the Platform if we discover that the Access Details have been provided to any third party;
(g) will ensure that all information that you provide to us is true and correct and kept up to date for so long as you continue to use the Platform;
(h) will abide by the safety information, maintenance instructions or other relevant notices contained in the information that is included with the Platform; and
(i) comply with all applicable laws (including the Privacy Act 1993) and any third party terms you have agreed to (for example with your telecommunications service provider) with respect to your use of the Platform.
3.4 You will not:
(a) except as may be permitted by any applicable law which is incapable of exclusion by agreement between you and us:
(i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or
(ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
(b) access the Platform in order to build a product or service which is the same as or similar to the Platform or which otherwise competes with the Platform;
(c) remove, disable, circumvent or attempt to undermine the integrity of any security or technical measures, including any digital rights management system or other content protection or features used by us, that control access to:
(i) the Platform; or
(ii) our, or any third party’s, systems, networks or resources used in the provision of the Platform; and
(d) access, store, distribute or transmit any Viruses through the Platform, and we may, without liability to you, disable your access to the Platform if you are in breach of this clause.
4.1 You acknowledge that we may provide updates, upgrades, patches and other modifications to the Platform (together Updates) that must be installed for you to continue to use the Platform properly or at all. You may be required to install Updates to the Platform or to update or upgrade the Device you use to access the Platform or the operating system running on that Device in order to continue to use the Platform. Unless we specify otherwise, Updates will be provided at no cost.
4.2 Although we use reasonable endeavours to ensure that any Updates to the Platform do not cause any problems in your use of the Platform, our liability to you to the extent that problems arise from such Updates is limited in accordance with these Terms.
4.3 We may at any time modify, discontinue or restrict access to the Platform (or any part of it), temporarily or permanently with or without notice to you. To the extent permitted by law, you agree that we will not be liable to you or to any third party for any modification, discontinuance or restriction of the Platform.
5.1 As a User, you may be required to provide Booking Information in relation to a particular Booking, which will be made available to other Users. You may also have the ability to post your own feedback and other communications to the Platform (User Generated Content).
5.2 You will not provide Booking Information or User Generated Content, that:
(a) contains photographs or images of, or relating to, another person or entity if you do not have that person’s or entity’s consent;
(b) breaches the Intellectual Property Rights of any third party;
(c) uses another person’s personal information other than for the specific purposes for which that person’s personal information was provided to you;
(d) is objectionable, false, misleading, defamatory, incomplete and/or inaccurate; or
(e) contains any Viruses.
5.3 You acknowledge and agree that:
(a) we do not control, and therefore are not responsible for, any communication between you and any other User that may have been initiated as a result of use of the Platform;
(b) the views expressed in any User Generated Content or Booking Information may not be our views. While we may monitor User Generated Content and Booking Information and exercise editorial control where possible, you acknowledge that you use and rely on the User Generated Content and Booking Information obtained through the Platform at your own risk.
5.4 We may at any time:
(a) refuse to post any Booking Information or User Generated Content; or
(b) edit or remove any Booking Information or User Generated Content;
that we in our absolute discretion (acting reasonably) consider breaches these Terms or are otherwise inappropriate for the Platform.
5.5 Where you provide Booking Information or User Generated Content on the Platform, you are deemed to have granted us a non-exclusive, perpetual and worldwide licence to use such content on the Platform. You also warrant that any such Booking Information or User Generated Content do not infringe the Intellectual Property Rights of any person. You agree to indemnify us for all direct and indirect damages, losses and costs of any kind incurred or suffered by us as a result of or in connection with a breach of the warranty given by you in this clause 5.5.
6.1 You acknowledge and agree that we own all Intellectual Property Rights in and to the Platform. Except as expressly stated in these Terms, these Terms do not grant you any Intellectual Property Rights in or to, or any other rights or licences in respect of, the Platform.
6.2 We acknowledge and agree that, except for the rights you grant us to use Your Data under these Terms, you (and/or in the case of Retailer Users, the Retailer) will own all rights, title and interest in and to all of Your Data and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
7.2 You acknowledge and agree that we may use Your Data for:
(b) performing our obligations under these Terms;
(c) ensuring that you are complying with these Terms;
(d) improving or enhancing the Platform;
(e) assessing what other services we may provide and promote to the Retailer or Drivers; and
(f) performing data analysis on an aggregated and anonymous basis.
8.1 You acknowledge that, except for those warranties or representations that cannot be excluded by law, the Platform is provided on an “as is” basis and all representations, conditions or warranties in respect of the Platform (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded.
8.2 In particular and without limiting clause 8.1, we do not warrant:
(a) that your use of, or access to, the Platform will be uninterrupted or error-free;
(b) that the Platform will meet your requirements; or
(c) that the Platform will operate on all types of devices.
8.3 You agree that, to the maximum extent permitted by law, we will not be liable to you for any form of loss or damage or injury or death, regardless of cause or origin, on any basis whatsoever, (including, but not limited to, breach of contract, warranty, negligence, strict liability in tort or otherwise), arising out of or in connection with your use of the Platform or these Terms. If, notwithstanding the foregoing, we have any liability to you for any form of loss or damage, then to the maximum extent permitted by law or as otherwise expressly set out in the Master Agreement, our maximum aggregate liability to you will not exceed NZ$10.
8.4 You acknowledge that:
(a) you assume all risk when using the Platform, including (without limitation) all of the risks associated with any online or offline interaction with others;
(b) we have no control over the accuracy, reliability, or completeness of Booking Information and we make no representations or warranties as to such Booking Information;
(c) the Platform may contain links to mobile applications, websites and resources provided by third parties, and that these links are provided for your information only. We have no control over the content on those applications, websites or resources, and accept no responsibility for any loss or damage that may arise from your use of them; and
(d) we are not responsible for any and all problems, conditions, delays, delivery failures and all other loss or damage arising from, or relating to, your network connections or telecommunications links or caused by the internet.
8.5 You will indemnify us against all costs, losses, expenses and damages incurred through any claims against us resulting from your use of the Platform.
9.1 We may, at our discretion, suspend your access to the Platform if you fail to comply with these Terms.
9.2 These Terms will automatically terminate when the Master Agreement terminates for any reason.
9.3 On termination of these Terms:
(a) all licences granted to you under these Terms will immediately terminate and you must cease using the Platform; and
(b) we may delete Your Data if we choose not to hold Your Data for a period after termination of these Terms.
10.1 These Terms constitutes the entire agreement between you and us in relation to the Platform and supersedes any previous understanding or agreements on that subject matter.
10.2 If any part or a provision of these Terms is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of these Terms will continue to operate.
10.3 A provision or a right under these Terms may not be waived except in writing signed by the party granting the waiver.
10.4 A party to these Terms may exercise a right, power or remedy under these Terms at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under these Terms does not prevent a further exercise of that or of any other right, power or remedy.
10.5 These Terms may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon notifying you of the changes via email, or by posting the changes on the Platform. You must ensure that you have read, understood and agree to the terms in these Terms. You agree that your continued use of the Platform represents your agreement to be bound by the most recent terms.
10.6 You will not assign, transfer or otherwise deal with these Terms or any of your rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
10.7 These Terms will be governed by and construed in accordance with the laws of New Zealand.