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1.1 Your access to, and use of trynapkin.com, napkin.co.nz or any related website (“Website”) and your communication with other users to facilitate the sale and purchase of a dining experience/takeaway (“Meal”) via the Website is subject to the following terms of service (“Terms”). By using the Website you represent that you have read, understood and accepted these Terms, and agree to be bound by them. Any reference to “We”, “Us” or “Our” is a reference to Napkin Limited or it’s Related Entity.
1.2 Services provided by our Website may also be accessed through an electronic device through applications We provide or authorise (“App”). Any references to Website in the Terms also include any use of our services through an App.
1.3 You agree that you will not access our services other than through the Website or an App.
1.4 These Terms will prevail if there is any inconsistency with any other document.
1.5 The Terms may be updated from time to time. You acknowledge that the Terms that are listed on our Website at the time on which create a Listing or order a Meal will be the Terms that apply to you in relation to that Meal.
1.6 Unless where stated otherwise, the Terms dictate the relationship you have with us, and do not give you any actionable rights against any other party. However, on the mutual agreement between a Guest and Chef relating to a Meal, a contract will be created between you and a third party, and the terms of that contract will be based on portions of the Terms.
2.1 “Chef”, “Home Chef” or “Host” means any user of the Website who places a Listing for a Meal.
2.2 “Guest” means any user of the Website who purchases a Meal from the Website. For the sake of clarity, a Website user can be both a Chef and a Guest. However they cannot be both the Chef and Guest for the same Meal.
2.3 “Arranged Time” means the day and time at with the Meal is to be provided. Any reference to Arranged Time in these Terms will include the consideration allowed under clause 6.2.
2.4 “Listing” means a listing on the Website placed by the Chef detailing a Meal.
2.5 “Related Entity” means the company under whom we operate the service in the Chef’s region. The Related Entity will be either a subsidiary or have largely the same shareholder’s as New Zealand company Napkin Limited.
2.6 “Chef Service Fee” means the fee payable to Us by the Chef on the ordering of a Meal.
2.7 “Guest Service Fee” means the fee paid to Us by the Guest on the ordering of a Meal.
2.8 “Rating” means the score provided to you by the other party after a Meal.
2.9 “Force Majeure” means any act of God, fire, strike, war, act of parliament or other event that We believe was outside of the control of the parties and which the party was unable to foresee or prepare for.
2.10 “Business Day” means a day which is not a Saturday, Sunday, Public Holiday or Mondayised public holiday in Auckland, New Zealand.
3.1 Anyone may view Listings on the Website. To perform any other action you will be required to create an Account on our Website (“Account”).
3.2 You must be at least 18 years of age to create an Account.
3.3 An Account can be created in two ways:
(a) By creating an Account on the Website by entering the required information and verifying your email address; or
(b) Through the use of a third-party social networking site (“SNS”). The use of an SNS will create an Account on our Website with the information which the SNS provides, with your permission, to us. We may require additional details and you may be required to enter these on either the creation of your Account or at some later date. By using an SNS to create an Account, you authorise us to receive, hold and make use of the information which the SNS provides to us (“SNS Information”). We reserve the right to use the SNS Information within our Website, and the right to post (with your consent) details of our services to the SNS on your behalf. You agree that you will not hold us at all accountable if, for any reason, the SNS is no longer able to be used to access the Website. You will still be bound by any agreement you may have with the SNS.
3.4 You agree that all information provided on your Account, either directly by you or via the SNS, will be correct and accurate. If you do not use your legal name on the SNS then you must create an Account manually without using the SNS.
3.5 You may terminate your account at any time on the following conditions:
(a) You have no outstanding amounts payable to Us;
(b) You have no open Listings;
(c) All Listings in which you are involved have been completed; and
(d) You are not currently part of a dispute with Us or another user of the Website.
3.6 You acknowledge that, on termination of your Account, any public interaction that you had with the Website will still be visible on the Website. We may, at our sole discretion, anonymise and/or remove from public view any such interaction.
3.7 We reserve the right to suspend or terminate your account at our sole discretion.
3.8 You acknowledge that you will not disclose your password to any other person, and will take all reasonable steps to secure your Account. You agree that we have no obligation to inquire into the authority of any person using your Account, and that it is your responsibility to ensure the security of your own account login and password.
3.9 You agree to use your best endeavours to refrain from misleading, insulting, defaming, or threatening other Website users, or any other action which may cause another Website user distress or offence.
3.10 You agree that you will not include, in anything you post on the Website, or apply or utilise in any other way, anything that contains malicious code, data or set of instructions that, whether intentionally or unintentionally, causes harm or undermines the Website’s intended functions. This includes, but is not limited to, trojans, viruses, worms, time bombs, denial of service attack or another other computer program that may damage, interrupt, interfere, access without authority, delete, subvert or delete our Website or any information we store, maintain and transfer.
3.11 You acknowledge that a legally binding agreement will be established between the Chef and a Guest on purchasing a Meal, and that We are not a party to that agreement.
3.12 We reserve the right to withdraw any Listing and cancel any Meal at any time without warning or notification and without providing a reason or compensation.
3.13 You agree that we have no obligation to inquire into the authority of any person using your Account, and that it is your responsibility to ensure the security of your own Account.
3.14 You agree that we have no obligation to inquire into the authenticity or use of any other Account on the Website.
3.15 At the completion of a Meal, the Guest and Chef are encouraged to leave the other party an honest Rating. This will allow other Guests to decide which Chef to use. It will also allow Us to monitor for Guests who may not be suited to using the service.
3.16 We reserve the right to restrict you from the use of any function of the Website at our sole discretion and without giving a reason.
3.17 We reserve the right to terminate your account if we believe, in our sole opinion, that your ratings are too low.
3.18 A Meal may be cancelled at any time on the mutual agreement of both the Chef and the Guest. Please refer to clause 6 for the other cancellation terms.
3.19 You acknowledge that we have the right to use any intellectual property included in any interaction you have with the Website. You agree to indemnify us for any and all costs and expenses that we may experience as a result of any breach of intellectual property in any of your interactions with the Website.
4.1 Any Account holder may post a Listing. Every Listing must:
(a) Be for a Meal provided in a country in which we provide our service;
(b) The Listing must be for a Meal. While there may be other elements to the Meal experience (such as an amazing view, ambience etc.) the primary focus should be on the supply of the Meal and no other item. For the sake of clarity the Meal must not involve the supply of anything that is not edible, pornographic material, sexual services, tobacco products, fireworks, firearms, counterfeit items, items that breach copyright, recreational drugs, gambling (except where allowed by law) or any other product or activity which is illegal in the country the Meal is delivered or we consider, in our sole discretion, to be immoral.
(c) Be genuine and able to be completed within the Terms and within the laws applicable in the country in which it is to be delivered.
(d) Not use any images or language that may cause offence to any reasonable person, or which seeks to deliberately cause harm or offence to any person.
4.2 You acknowledge that you are personally liable for any Listing posted under your Account on the Website, whether you listed it for yourself or on behalf of a third party. If a Listing is being posted on behalf of a third party, such as a company, then you agree to make reference to this in the Listing description.
4.3 You acknowledge that you are responsible for complying with any legislation that may apply in your country. You acknowledge that such requirements aim to protect the safety and well being of those who will eat the Meal and that such requirements must be met.
5.1 You acknowledge that you do not hold us liable for the legality of any Listing posted.
5.2 You acknowledge that it is the Chef’s responsibility to comply with any legislation that is in place in their country. This includes, but is not limited to, any requirements related to food preparation, food hygiene, and food safety, alcohol distribution and consumption, and the payment of any and all applicable tax. If you believe that any such requirement has been breached then you must follow any procedure that the legislation may require (if any). We also recommend that you use our service to either provide poor feedback or, if you believe it is warranted, to place a complaint against the Chef under clause 6.14.
5.3 You acknowledge that you are willing to be held liable for any Meal purchased using your Account.
5.4 You may register a credit card on your account to use for paying for Meals. You acknowledge that you will remain liable for our fees if we experience, for any reason, a payment that has been reversed.
5.5 You acknowledge that, with the exception of the username and date the Listing was posted to the Website, all information in a Listing on our Website is provided by the Chef. You agree to not hold us liable for any information which you consider misleading, erroneous or offensive.
5.6 You agree that you are to pay us for any Meal you order on the Website. We will then make payment to the Chef as per the Terms agreed between ourselves and the Chef. You acknowledge that you are not to pay any amount to the Chef directly at any time. Any attempt to make payment, or any suggestion or offer to make or take payment, outside of the Website is a breach of the Terms.
5.7 You agree that all payments for Meals are non-refundable unless agreed to by us at our sole discretion or as allowed under clause 6
5.8 You agree that we may cancel any purchase of a Meal at our sole discretion and we are not required to provide a reason or provide compensation.
5.9 All communication related to a Meal must be done through the Website. Any attempt to contact each other, or providing details that would allow such contact, is a breach of the Terms.
6.1 To allow a Chef to prepare the Meal, they need to be sure of the number of Guests who have purchased the meal. The Chef may specify on the Listing how much notice before the Meal the Guest must give to cancel the order (“Cancellation Notice”). If the Guest cancels the order before that time then the Guest will receive a full refund less the Guest Service Fee. If the Guest cancels the Meal after that time then the Guest will not receive any refund.
6.2 The Arranged Time for any Meal is the time which the Chef expects the Guest to arrive. However, due to factors such as traffic or parking, a Guest may arrive before or after the arranged time. The parties agree that a Guest must use their reasonable endeavours to be present within 15 minutes of the arranged time. The Chef will use their reasonable endeavours to be present within 5 minutes of the arranged time. We will take these allowances in to consideration when deciding on any request for refund or complaint, including any event deemed by Us as being a Force Majeure. We may also, at our sole discretion, take in to account any other factors that may have reasonably caused a delay.
6.3 If the Chef has not specified how much Cancellation Notice is required then the Cancellation Notice will be 24 hours before the Arranged Time.
6.4 Cancellations and complaints may only be made by the Chef providing the Meal and the Guest who ordered the Meal.
6.5 If the Guest does not arrive at the Arranged Time, whether for a takeaway or hosted Meal, no refund will be provided.
6.6 If the Chef cancels a Meal at any point before the Arranged Time then the Guest will receive a full refund. The Chef will still be required to pay the Chef Service Fee.
6.7 If the Chef does not arrive for the Meal, is not home at the Arranged Time or does not have the meal ready at the Arranged Time then the Guest will receive a full refund. The Chef Service Fee will remain payable. The Chef also agrees to pay Us a sum of $50. The Chef agrees that this amount is the reasonable value of the damage to Our goodwill and to cover marketing to counter such damage.
6.8 If the Chef terminates a Meal with a Guest while it is taking place due to security/safety concern, discrimination or harassment, the Chef must register a complaint on the Website as soon as possible and no later than 3 Business Days after the Meal. We will examine the complaint. If We do not believe that the complaint is justified then clause 6.9 will be followed. If We believe, in our sole discretion, that the complaint is justified then:
(a) the Guest will not receive any refund;
(b) the Chef will receive a refund of the Chef Service Fee;
(c) the Guest agrees to pay Us the sum of $150. The guest agrees that this is the value of the damage Our goodwill caused by the Guest’s actions and will help cover marketing to counter such damage; and
(d) the Guest’s account will be deactivated.
6.9 If the Chef terminated a Meal with a Guest while in session for any other reason then the Guest will receive a full refund including Guest Service Fee. The Chef Service Fee will remain payable.
6.10 If the Chef does not have the takeaway order ready for the Guest at the Arranged Time, the Guest will receive a full refund inclusive of the Guest Service Fee. The Chef Service Fee will remain payable. We reserve the right to require the Chef to pay Us a sum of $50. The Chef agrees that this amount is the value of the damage to Our goodwill and to cover marketing to counter such damage.
6.11 Opinions on food quality are largely subjective. Therefore We will not handle any complaints about the quality or quantity of food unless clause 6.14 below applies. We allow the use of Ratings that a Guest’s opinion on a Meal can be provided.
6.12 If the Guest needs to leave their Meal due to a security/safety concern, discrimination or harassment, a complaint should be made as soon as possible and no later than 10 Business Days after the Meal. We will examine the complaint. If We do not believe that the complaint is justified then then the parties will be informed and the matter will be considered closed. If We believe, in our sole discretion, that the complaint was justified then:
(a) the Guest will receive a full refund;
(b) the Chef Service Fee will remain payable;
(c) the Chef will pay Us the sum of $150. The Chef agrees that this is the value of the damage to Our goodwill caused by the Chef’s actions and will help cover marketing to counter such damage; and
(d) the Chef’s account may be deactivated at Our sole discretion.
6.13 If the Guest believes that they have been deceived by the Chef then a complaint should be made through the Website as soon as possible and no later than 10 Business Days after the Meal. We will examine the complaint. If We do not believe that the Chef’s Listing was deceiving then the parties will be informed and the matter will be considered closed. If We believe, in our sole discretion, that the Chef’s Listing was deceiving then:
(a) the Guest will receive a full refund;
(b) the Chef Service Fee will remain payable;
(c) the Chef agrees to pay Us the sum of $150. The Chef agrees that this is the value of the damage to Our goodwill caused by the Chef’s actions and will help cover marketing to counter such damage; and
(d) the Chef’s account may be deactivated at Our sole discretion.
6.14 If the Guest believes that their Meal is unfit for consumption and/or breaches reasonable expectations as to food handling and preparation standards then they should register a complaint on the Website as soon as possible and no later than 10 Business Days after the Meal. We will examine the complaint. If We do not believe that the complaint was justified then the parties will be informed and the matter will be considered closed. If We believe, in its sole discretion, that the food does not meet reasonable expectations as to food handling and preparation standards:
(a) the Guest will receive a full refund;
(b) the Chef Service Fee will remain payable;
(c) the Chef agrees to pay Us the sum of $150. The Chef agrees that this is the value of the damage to Our goodwill caused by the Chef’s actions and will help cover marketing to counter such damage;
(d) the Chef’s account may be deactivated at Our sole discretion if We believe the breach was of a significant level;
(e) the Chef will be issued with a warning and details on healthy food preparation practices;
(f) the Chef’s account will be disabled for 30 days on a second complaint received within three months; and
(g) the Chef’s account will be permanently disabled on a third complaint being received within three months. The account may be reactivated after 180 days if We believe, in Our sole opinion, that the Chef has shown that they have resolved any issues.
6.15 We reserve the right to terminate any Account at any time without giving a reason.
7.1 The Website is for the sharing of dining experiences. It is NOT for the sale of any alcohol.
7.2 No Listing on the Website is to contain a promise, suggestion or imply the supply or sale of alcohol.
7.3 Chefs acknowledge that they are solely responsible for the wording of any Listing made using their Account.
7.4 Guests acknowledge that we must be active in ensuring that the Website and our Chefs remain within the law in the Chef’s country.
7.5 We reserve the right to cancel any Listing prior to the Arranged Time if we believe, in our sole discretion, that the Listing breaches clause 7.2. On cancellation any Guest will receive a full refund. On cancellation the Chef will still be required to pay the Chef Service Fee for any cancelled Meals.
7.6 Guests will respect the personal views of the Chef in relation to alcohol. If the Listing states that the Chef does not permit alcohol then the Guest is required to respect the Chef’s opinion and is not permitted to bring or consume alcohol on the Chef’s premises. Breach of this clause will be considered discrimination and clause 6.8 will apply.
7.7 Any reference to Smoking in the Terms is in reference to the smoking of Tobacco products and/or electronic vaporisers where allowed by law. The smoking of any other products is NOT permitted unless legally authorised by the law of the Chef’s country and/or state AND it is explicitly stated as permitted in the Listing.
7.8 Guests will respect the personal views of the Chef in relation to Smoking. If the Listing states that the Chef does not permit Smoking on the premises then the Guest is required to respect the Chef’s opinion and is not permitted to smoke on the Premises. If the Chef allows Smoking on the premises but only in certain locations or outside then the Guest will be expected to respect those allowances and to follow them. Breach of this clause will be considered discrimination and clause 6.8 will apply.
8.1 Guests must pay for Meals when requesting to book a Listing.
8.2 We will use our reasonable endeavours to pass payments, less the Fees, within 3-5 Business Days.
8.3 Chef Service Fee, if any, and Guest Service Fee, if any, is subject to change and are available on the Website. The Chef Service Fee will be at the rate that was specified when the Listing was created. The Guest Service Fee will be at the rate when the Meal was ordered.
8.4 The Chef Service Fee will be deducted from any payment made to the Chef. If, for any reason, the Guest has received a full refund and the Chef Service Fee remains payable, the Chef will be required to make payment of the Chef Service Fee within 10 Business Days.
9.1 You agree that any information you provide to us may be used by us at any time for any purposes connected with our business including, but not limited to, direct marketing. Any personal information is held at Amazon Web Services and you have certain right of access to your personal information under the Privacy Act 1993
9.2 Any information provided by you will not be disclosed to any third party unless we are legally required to do.
10.1 All statutory, express or implied warranties by us are expressly excluded (to the extent permitted by law).
11.1 As agreed in clause 3.11 above, a contract exists between the Guest and Chef.
11.2 You agree that you will not hold us liable in any way for any damage suffered by Guest due to the actions or inactions of the Chef. Similarly we are not a party to any damage suffered by the Chef due to the actions or inactions by the Guest. The Chef and Guest acknowledge that such issues of damage should be resolved between them. This includes any property damage caused by either party.
11.3 Subject to clause 11.4, you agree that we will not be liable for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage), however caused, arising out of or in connection with our Website or any services provided on our Website.
11.4 Our liability in respect of all claims for loss, damage or injury arising from a breach of our obligations under these Terms or from any act or omission by us, is limited in each case to the amount We received for the Chef Service Fee and Guest Service Fee for that particular Meal.
11.5 All claims must be made in writing and are subject to verification or acceptance by Us. No claim may be brought more than 10 days after the date you become aware or reasonably ought to have been aware of the circumstances giving rise to the claim.
11.6 We will not be liable to you if any other party to a Meal does not fulfil their obligations, breaks any law or commits any other contractual or legal offence against you.
11.7 You agree that We are not liable for any damage, loss, injury or financial penalty that you experience through the use of the Website. You agree to not hold Us liable for the action, or inaction, of any other party to a Meal sale.
11.8 You agree that we have no responsibility and provide no warranty as to the honest, accuracy and truth of anything posted to the Website by any other Account holder, nor an Account holder’s ability to provide a Meal as described in a Listing, nor an Account holder’s ability to pay for a Meal they have ordered.
12.1 You agree that, if you are not a consumer as defined in the Consumer Guarantees Act 1993 that it is fair and reasonable that:
(a) The provisions of the Consumer Guarantees Act 1993 do not apply; and
(b) Sections 9, 12A, 13 and 14(i) of the Fair Trading Act 1986 are contracted out of any agreement between Chef and Guest.
13.1 Under the Unsolicited Electronic Messages Act 2007, you must consent to receiving commercial emails from us. Consent can either be explicit, inferred or deemed. We will infer that we have your consent to send you commercial emails from time to time unless you inform us otherwise by letter or email. The email address for unsubscribing to commercial emails is email@example.com.
14.1 We will not be prevented from enforcing any of our rights under this agreement because on an earlier occasion we did not enforce those rights.
14.2 You agree that we may assign, delegate or subcontract any or all of our rights or obligations under these Terms of Service.
14.3 You agree that we may issue any proceedings in respect of our agreement with you in any court that suits us. The law that governs these terms is New Zealand law. All references to legislation are in reference to New Zealand legislation.
14.4 Any part of the Terms that is held to be invalid or unenforceable, for any reason, shall be severed from the Terms and shall not affect the provisions that remain.
14.5 You agree that these Terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these Terms.
14.6 As we are not a party to any agreement between the Chef and Guest, we will not become involved in resolving any dispute. You agree that, should a dispute arise, you will attempt to negotiate a resolution with the other party.
14.7 As part of Our Website We use Google Maps. By using of Website you agree that you are bound by Google’s Terms of Service located at https://www.google.com/intl/en/policies/terms