Terms and Conditions                                                                                                   

Version dated August 2019

1. Terms

These terms of use ("Terms") set out the terms and conditions for your use of the Chomp Services offered by Folio Solutions Limited or its related companies (as that term is defined in the Companies Act 1993) ("we" or "Chomp"). Any person or organisation using Chomp Services, together with all individual users accessing Chomp Services on that person's behalf (together, "you" or "Users") accept and agree to be bound by these Terms.

You agree to be bound by these Terms by clicking on the appropriate button below, or by downloading, installing, activating or using Chomp Services.

Chomp grants you a limited, non-exclusive, non-transferable, revocable licence to use the Chomp Services in accordance with these Terms.

In these Terms:

  1. “Apps” means Chomp’s mobile device applications
  2. “Account” means the Account you have with Chomp Services for the payment of Fees payable by deduction for the   provision of Chomp Services;
  3. "Chomp Services" means Chomps' Food Control Plan and Food Safety Training Apps and any features, technologies or   functionality provided by those products or services, offered by us from time to time, including the Apps and the   Website; and
  4.  “Food Control Plan” has the meaning given to that term in the Food Act 2014
  5.   "Website" means the Chomp Website www.chomp.nz.

 

If you do not agree to any of these Terms, then you should not use the Chomp Services. All rights not expressly granted to Users in these Terms are reserved by Chomp.

2. Amendments

We may change these Terms from time to time, and will endeavour to notify you of such changes via email or by displaying a message when you next use the Chomp Services. However it is your responsibility to ensure that you are aware of the then current Terms at all times when you use Chomp Services. If you continue to use Chomp Services, your use will be governed by the updated Terms.

From time to time, we may add, make changes to or remove altogether features or functionality of the Chomp Services. If you're using an App, you may need to install a new or updated version before you can receive the benefit of those changes. We may also decide to cease providing all or some of the Chomp Services at any time, and nothing in these Terms is to be taken as a guarantee that the Apps or any Chomp Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the Chomp Services, or the Apps or any version of them.

3. Account information

You warrant that you are 18 years or older (except where you are a body corporate). You agree to provide true, accurate, current and complete Account information, and to maintain and promptly update your Account information in order to ensure that it remains true, accurate, current and complete.

 

4. Cancellation and expiration of Accounts

We can cancel or suspend your Account at any time if, in our sole discretion, you have committed a material or persistent breach of these Terms or any other terms applying to your use of the Chomp Services.

You are entitled to cancel your Account with Chomp at any time. You must notify in writing 30 days in advance of that date you wish to cancel from.   If you cancel your Account before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless we agree otherwise).

If your Account is cancelled or expires: (a) your Account will be deactivated or deleted; (b) all of your rights granted under these Terms will immediately come to an end; and (c) all of your data and content may be deleted from our systems immediately after we have provided you with a copy of your Food Control Plan and all data entered into the Apps in electronic form. Chomp will do this within a reasonable period of cancellation or expiration. Once Chomp has provided you with this information in electronic form it has no obligation to do so again in the future.

Your content cannot be recovered once your Account is cancelled or expires. We are not liable for any loss or damage following, or as a result of, cancellation or expiration of your Account, and it is your responsibility to ensure that any other content or data which you require is backed-up or replicated before cancellation or expiration.

 

5. Fees and taxes

The fees charged for use of the Chomp Services are set out on the Website ("Fees") and are subject to change. We will endeavour to notify you (by email or by displaying a message when you next use the Chomp Services) at least 30 days before increasing the Fees.

You must pay the Fees (without set-off, counterclaim or deduction) in advance on a monthly basis (regardless of whether you have a casual or annual subscription with Chomp).  

If you cancel your Account within two months of the date your Account was made available to you, Chomp will refund any Fees you have paid to Chomp in respect of that Account (“our money back guarantee”).  

If you cancel your Account at any other time: the Fees are non-refundable, even where you only use part of a month or year's subscription for  Chomp Services.

Where your Account is subject to an annual licence fee, you must pay the full annual licence fee even if your Account is cancelled prior to the end of the subscription period (subject to our money back guarantee) and regardless of whether the cancellation is initiated by you or us.

Unless required by law, we will not provide refunds in connection with the Chomp Services other than our money back guarantee.

Paying online you must provide a valid credit card number when setting up your Account with Chomp and update your credit card details in the event they change. All Fees are exclusive of all taxes, and you indemnify and hold Chomp harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest.

 

6. Chomp Services are provided "as is"

The Chomp Services are provided on an "as is" and "as available" basis, and your use of them is at your sole risk. We will try to promptly address (during normal business hours) all technical issues that arise in connection with the Chomp Services.

We do not warrant that: (a) the Chomp Services will meet your specific requirements; (b) the Chomp Services will be uninterrupted, timely, secure, or error-free; (c) the Chomp Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Chomp Services will meet your expectations; or (e) any errors in the Chomp Services will be corrected.

You acknowledge that Chomp may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Chomp Services. The acts and omissions of those third party suppliers may be outside of Chomp's control, and Chomp does not accept any liability for any loss or damage suffered as a result of any act or omission of any third party supplier.

On behalf of itself and such third party suppliers, Chomp excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.

 

7. Our liability is limited

To the maximum extent permitted by law, Chomp shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data, anticipated savings or other intangible losses (even if Chomp has been advised of the possibility of such damages), irrespective of how liability arises, whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise, resulting from: (a) the use or the inability to use the Chomp Services (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, loss or alteration of, your communications, content or data; (d) statements or conduct of any third party regarding the Chomp Services; or (e) any other matter relating to the Chomp Services.

In the event that any limitation or provision contained in these Terms is held to be invalid for any reason and Chomp becomes liable for loss or damage that would otherwise have been excluded, it is agreed that Chomp's maximum aggregate liability under or in connection with these Terms or your use of the Chomp Services is limited to the amount of Fees paid by you in the 12 months immediately preceding the date you make your claim known to Chomp.

 

8. You are responsible for your use of the Chomp Service and you indemnify us

You are responsible for all activity that results from use of the Chomp Services through your Account. You are responsible for maintaining the security of your Account and password. Chomp will not be liable for any loss or damage that may result from any failure to keep user  names and passwords secure. You accept all responsibility for reliance on and use of the Chomp Services by you, your contractors, employees and agents.

You must: 

(a) install any update, fix or patch for the App(s) immediately upon receipt; (b) comply with Chomp’s reasonable restrictions and instructions in relation to the use of the App(s) including those set out in these Terms; (c) obtain and maintain all equipment, software and services needed to enable your use of the Chomp Services; and (d) comply with all relevant laws, including all statutory, regulatory and common laws, in your use of the Chomp Services.

You indemnify Chomp against all forms of liability, actions, proceedings, demands, costs, charges and expenses including but not limited to legal costs incurred on a client-solicitor basis, which Chomp may incur or suffer as a result of use of the Chomp Services through your Account or as a result of your failure to comply with these Terms.


 9. No malicious or illegal use

You must not: (a) use the Chomp Services in any unlawful manner, for any unlawful or fraudulent purpose, or in any manner inconsistent with these Terms; (b) infringe our intellectual property rights or those of any third party in relation to your use of the Chomp Services; (c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Chomp Services; (d) use the Chomp Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (e) collect or harvest any information or data from the Chomp Services or our systems or attempt to decipher any transmissions to or from the servers running any Chomp Services; (f) disclose or distribute information relating to another User of the Chomp Services to any third party, or use any other User's information for any marketing purposes unless you have that User's express permission to do so; (g) access or register User logins via bots or other automated methods; (h) use, copy, modify or distribute the Chomp Services without the prior written consent of Chomp; or (i) sublicense, rent or lease the Chomp Services to any third party without the prior written consent of Chomp.

 

10. Reasonable use policy

You agree to use the Chomp Services in a reasonable way (including, to avoid doubt, if you have subscribed for an 'unlimited' Account). If we determine that your use of the Chomp Services is not reasonable or that your use is causing degraded performance of the Chomp Services for you or for other Users, we may impose limits on your use of the Chomp Services. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.

Limits on your use of the Chomp Services may include (but are not limited to) the quantities and volumes of the following parameters, per client: (a) storage required to host and backup client data; (b) sales transactions per calendar month; (c) API (application programming interface) calls per five (5) minute period; (d) page views per five (5) minute period; (e) bandwidth usage per twenty four (24) hour period; (f) support tickets opened per calendar month; or (g) outlets, registers, users, products and customers.

 

11. Intellectual property

You agree that Chomp owns all of the intellectual property rights existing in the Chomp Services, including but not limited to all trademarks, trade names, copyrights and patents (“Intellectual Property”). You agree not to challenge or do anything inconsistent with such ownership at any time during or after the cancellation or expiry of your Account(s). You may not publish or use Chomp's brand, branding or logos except with Chomp's prior written consent. Any modifications or updates to the Chomp Services, whether carried out by Chomp or any other person, will be the property of Chomp.

You grant Chomp a royalty-free, irrevocable, perpetual licence to use, copy, store, modify, adapt and exploit (including for commercial purposes) information and/or data received by Chomp (whether given to Chomp by you or collected by Chomp through your use of the Chomp Services), provided that we aggregate or anonymise that information or data before using it. Other than this right, Chomp claims no intellectual property rights in relation to the information or content you input into the Chomp Services.

You may provide us with comments, feedback or suggestions on Chomp Services, and you agree that we will be free to use, modify and incorporate such suggestions without any obligation to you. If you provide feedback, recommendations, contributions or suggestions (together, “feedback”) to Chomp in respect of the Chomp Services, all intellectual property rights in that feedback and any new material created or modification made to the Chomp Services as a result of that feedback will be owned solely by Chomp.

You fully indemnify us against all claims, proceedings, actions, liabilities, damages, costs, expenses and losses (including full legal costs) suffered or incurred by us as a result of any claim or alleged claim that the possession or use of any intellectual property supplied or licensed by you infringes any third party’s rights.

 

12. Privacy

We maintain a privacy policy that sets out the parties obligations in respect of personal information. You should read that policy at and you will be taken to have accepted that policy when you accept these Terms of Use.

You warrant to us, and can demonstrate to our full satisfaction upon request, that all persons you employ who are responsible for carrying out tasks under your Food Control Plan have authorised us to collect and use personal information about them in accordance with our privacy policy.

 

13. Confidentiality

All intellectual property owned by Chomp and any information (in whatever form) provided under or in connection with the Chomp Services by Chomp to you which is expressed to be confidential or by its nature could reasonably be expected to be confidential (including but not limited to any data, specifications or documentation) (“Confidential Information”) are proprietary, secret and confidential to Chomp.

You agree you will use the Confidential Information solely in accordance with the provisions of these Terms and that you will not at any time during or after the expiry or cancellation of your Account(s), disclose the Confidential Information (to the extent the Confidential Information is not already public knowledge) whether directly or  indirectly to any third party without Chomp’s prior written consent.

You will not (whether by yourself or through any holding, subsidiary or associated company, agent or third party) modify, vary, enhance, copy, sell, lease, license, sublicense or otherwise deal with the Confidential Information or App(s) or any part or parts or variations, modifications, copies, releases or versions of the Confidential Information or App(s) or have any software or other program written or developed for you or any holding, subsidiary or associated company, agent or third party based on any App or Confidential Information supplied to you by Chomp.


14. Public Announcements

You acknowledge that Chomp may issue public announcements or media statements from time to time which may include the fact that you are a user of Chomp Services.

You will not make any comment or statement or representation to the public, the media or any social media or authorise or endorse any public criticism, comment or statement which is or may be prejudicial or detrimental to Chomp.

For the avoidance of any doubt, “social media” means any platform that enables members of the public to network, interact or communicate, including without limitation a platform created for the purpose of advertising, engaging in interactive dialogue or sharing information through the use of internet sites, such as Bebo, Facebook, Google Buzz, LinkedIn, Myspace, Twitter and any other blogging site, mobile technology, or any other form of communication technology.

 

15. Franchises

Where you are a franchisor, you will procure your franchisees to abide by these Terms when using the Chomp Services and you indemnify Chomp against all forms of liability, actions, proceedings, demands, costs, charges and expenses including but not limited to legal costs incurred on a client-solicitor basis, which Chomp may incur or suffer as a result of use of the Chomp Services by your franchisees or a result of your franchisees’ failure to comply with these Terms.

 

16. Non-compliance

If you do not comply with any aspect of these Terms, Chomp may (without prejudice to any other rights or remedies available to it) cancel or suspend your Account, disable your ability to use the Apps, and/or terminate these Terms (including the licence granted within them). Chomp shall not be liable for any loss or damage suffered by you as a result of Chomp exercising its rights under this clause.

 

17. General

If we don't insist that you perform any of your obligations under these Terms, or if we do not immediately enforce our rights against you, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.

The Chomp Services are provided for use in business, so you are not a consumer. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Consumer Guarantees Act 1993 and in the Fair Trading Act 1986) do not apply to the Chomp Services, these Terms or our relationship with you.

Each clause in these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them.

These Terms shall be governed by New Zealand law, and you submit to the exclusive jurisdiction of the New Zealand courts for any matter or dispute arising in relation to these Terms.

You acknowledge and agree that damages alone would be an inadequate remedy for breach by you of your obligations under paragraphs 11 and 13 these Terms and that the appropriate remedies for such a breach include, at the election of Chomp, orders for specific performance, injunctive relief and/or damages.

The parties agree that the rule of construction known as the contra proferentem rule does not apply to these Terms.

These Terms constitute the entire agreement between you and us and no earlier representation, warranty or agreement in relation to any matter dealt with in these Terms has any force or effect from the date you register for an Account with Chomp.

We will not be liable to you for any failure or delay in complying with any obligation imposed on that party under these Terms if the failure or delay arises directly or indirectly from a cause reasonably beyond our control, provided we (on becoming aware of the cause): (a) notify you in writing as soon as reasonably practicable of the nature and expected duration of, and the obligation affected by, the cause; and (b) use reasonable endeavours to mitigate the effects of the cause on our obligations under these Terms.

Any notice or other communication (“notices”) given under these Terms must be in writing. Chomp may serve any notice on you personally or to your address, fax or email address supplied by you to Chomp.  You must promptly notify Chomp of any changes to those details. You may serve notice on Chomp at the following communication points: Chomp Services, PO Box: 914, Queenstown or Email: info@chomp.nz.

Notices are deemed served at the following times: (a) when given personally, upon delivery; (b) when sent by post (other than airmail), 3 working days after posting; (c) when sent airmail outside New Zealand, 5 working days after posting; and (d) when sent by fax or email on receipt of the correct answerback or receipt code.

Any notice which has been served on a Saturday, Sunday or public holiday is deemed to be served on the first working day after that day. A notice may be given by an authorised officer, employee or agent. In this clause working day has the meaning given in the Interpretation Act 1999)

Time is of the essence.

 

18. Disputes

If a dispute arises out of or relates to these Terms (“the Dispute”) neither we nor you may commence any court or arbitration proceedings relating to the Dispute without first having complied with the following paragraphs of this clause, except where either of us seek urgent interlocutory relief:

  1.  A party claiming the Dispute has arisen under or in relation to these Terms must give written notice to the other party specifying the nature of the Dispute;
  2. On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation, mediation or other informal means;
  3.   If the Dispute is not resolved within 21 days of the notice being given pursuant to subclause (a) (or within such further period agreed in writing by the parties) either party may give written notice to the other party:
        i requiring that the dispute be referred to arbitration by a sole arbitrator; and   
        ii stating the name of the person whom the party giving the notice nominates as an arbitrator;
  4.   If the parties fail to agree on the arbitrator within 14 days of the date of receipt of the notice referring the dispute to arbitration, the arbitrator will be chosen by the president or vice-president of the New Zealand Law Society (or his or her nominee);
  5.    the arbitration will be held in Queenstown, New Zealand;
  6.   the arbitrator will decide the dispute in accordance with New Zealand law and conduct the arbitration in accordance with the Arbitration Act 1996;
  7.   the arbitrator’s award will be:
           i) an award with reasons (which will form part of the award); and 
           ii) final and binding on the parties (other than the right to appeal on points of law); and
  8.   the parties’ own costs and the costs of the award in relation to the arbitration will be borne in the manner determined by the arbitrator and, in the absence of such determination, each party will bear its own costs and an equal share of the costs of the arbitration.

 

 19. Additional Terms for Apple App Store Downloads

 

If you have downloaded an App from the Apple App Store, the following additional terms and conditions in this clause 19 apply

These Terms are solely between you and Chomp, and not with Apple. We (and not Apple) are solely responsible for the App and its content (subject to these Terms). You acknowledge that Apple has no obligation to furnish any maintenance or support services to you in connection with the App.

In the event of any failure of the App to conform to any warranty that might be contained or implied into these Terms, you may notify Apple, and Apple will refund the purchase price (if any) for the App. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.

Any claim in connection with the App related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by these Terms, and Apple is not responsible for such claims.

You must comply with the App Store Terms of Service, including the Usage Rules.

You represent and warrant that you are not located in any U.S. embargoed countries or on any U.S. Government list of prohibited or restricted parties.

Apple and its subsidiaries are third party beneficiaries to these Terms and, upon your acceptance of them, Apple will have the right to enforce these Terms against you.

All other terms and conditions of these Terms apply to your use of the App.