Terms of Service
Last updated 21 October 2020
APPLICATION OF TERMS
These Terms apply to your use of Daily Catch. By accessing and using Daily Catch you accept and agree to be bound by these Terms. 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 Daily Catch, and you must immediately stop doing so.
We may change these Terms at any time by updating them on Daily Catch. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use Daily Catch, you agree to be bound by the changed Terms.
We may change, suspend, discontinue, or restrict access to, Daily Catch without notice or liability.
In these Terms:
Content means content, data, and information (including personal information) that is owned, held, used or created by you or on your behalf, and that is then stored, transmitted via, input into or displayed via Daily Catch including, in the case of a Merchant, all content, data and information uploaded into Daily Catch by the Merchant when creating a Listing.
Daily Catch means www.dailycatch.co.
Fees means the fees payable by Merchants to us in respect of Daily Catch.
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.
Listing means an advertisement or post by a Merchant on Daily Catch offering goods and/or services to Daily Catch users.
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.
Merchant means a person who has set up an account with us to list goods and/or services and offers such goods and/or services to Daily Catch users.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening or unlawful, in any way.
Personal Information means information about an identifiable, living person.
Terms means these terms and conditions titled Terms of Service.
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide Daily Catch, including any third party solutions, systems and networks.
User ID means a unique name and/or password allocated to you to allow you to access certain parts of Daily Catch.
We, Us, or Our means Daily Catch Ltd.
You means you or, in certain circumstances described below, both you and the other person on whose behalf you are acting.
In these Terms headings are for ease of reference only and do not affect the interpretation of these Terms. Words used in the singular include the plural form of that word and vice versa. Any reference to 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. The word “including” and similar such words do not imply any limit. 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.
ABOUT DAILY CATCH
Daily Catch is an online platform that aims to deepen the connection between consumers and primary producers in the food sectors. Daily Catch provides tools to help Merchants sell directly to consumers, including a consumer-facing platform that enables producers to tell their stories and engage directly with consumers.
We act as an intermediary for Daily Catch users to transact and are not a party to any agreement to buy, sell or provide the goods or services advertised on Daily Catch. We are not an auctioneer or broker. When a user purchases goods and/or services and a Merchant agrees to provide goods and/or services, they are entering into an agreement directly with each other, including where payment is made through Daily Catch.
Any interaction between you and another Daily Catch user, including any agreement entered into between you and another Daily Catch user, is a matter directly between you and them only. Other than our obligations set out in these Terms, we are not liable to you for any failure by any Daily Catch user to comply with these Terms or any other legal obligation.
We will use reasonable efforts to provide Daily Catch in accordance with these Terms and New Zealand law. Our provision of Daily Catch to you is non-exclusive. Nothing in these Terms prevents us from providing Daily Catch to any other person. Subject to the terms outlined herein, we will use reasonable efforts to ensure Daily Catch is available on a 24/7 basis. However, it is possible that on occasion Daily Catch may be unavailable to permit maintenance or other development activity to take place, or due to an event that is beyond our reasonable control.
Through the use of web services and APIs, Daily Catch may interact 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 cease to make that feature available 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.
USE OF DAILY CATCH
As a user of Daily Catch you must use Daily Catch in accordance with these Terms solely for lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007). Further, you must not resell or make Daily Catch available to any third party, or otherwise commercially exploit Daily Catch. By using Daily Catch you agree to provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.
You must keep your User ID secure and not permit any other person to use your User ID, including not disclosing or providing it to any other person. You must immediately notify us if you become aware of any unauthorised use or disclosure of your User ID by Contacting Us.
You must obtain our written permission to establish a link to the Daily Catch platform. If you wish to do so, Contact Us with your request.
When accessing and using Daily Catch, you must not impersonate another person or misrepresent authorisation to act on behalf of others or us. You must not attempt to undermine the security or integrity of the Underlying Systems, and you must not use or misuse Daily Catch in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use Daily Catch. You must not attempt to view, access or copy any material or data other than that which you are authorised to access, and to the extent necessary for you to use Daily Catch in accordance with these Terms.
You must not use Daily Catch in a way that breaches any third party right (including Intellectual Property Rights and privacy rights) or that is Objectionable, incorrect or misleading. Further, you must not transmit, input or store any Content that breaches any third party right (including Intellectual Property Rights and privacy rights) or that is Objectionable, incorrect or misleading. You must not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Daily Catch platform or any Underlying System, or otherwise attempt to damage or interfere with Daily Catch or any Underlying System.
Absent our express written agreement, you must access Daily Catch via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction, monitoring or input method.
You are responsible for procuring all licences, authorisations and consents required for you to access and use Daily Catch, including to use, store and input Content into, and display Content using, Daily Catch.
You indemnify us against all Loss we suffer or incur as a direct or indirect result of any actual or alleged claim by a third party 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. You further agree to indemnify us for Loss resulting from your failure to comply with these Terms, including any failure of a person who accesses and uses Daily Catch by using your User ID, or any Loss arising from or in connection with an actual or alleged breach by you of any legal or regulatory requirements which occurs in connection with a Contract or as a result of any other relationship established through Daily Catch.
ADDITIONAL TERMS FOR MERCHANTS
On creating a Listing, you must provide accurate information on the goods and/or services offered, disclose the price payable for the goods and/or services offered, and provide any additional terms and conditions that apply to the goods and/or services offered. All descriptions and information in a Listing must be accurate, complete, up-to-date and truthful to the best of your knowledge and belief. If goods and/or services become unavailable for any reason, you agree to remove or suspend the Listing as soon as practicable.
You must not complete or attempt to complete a transaction with any Daily Catch user outside of Daily Catch process or otherwise seek to avoid the Fees, or ask for or accept direct payment of the price payable for the goods and/or services by a Daily Catch user by any payment method other than payment through Daily Catch.
You acknowledge and agree that you are responsible for all Listings that you post on Daily Catch. Accordingly, you represent and warrant that any Listing you post, or a Daily Catch user’s use of, goods and/or services will comply any agreements you have entered into with any third parties, comply with all applicable laws, statutes, regulations, bylaws or other secondary legislation in force from time to time, and not conflict with the rights of third parties.
ADDITIONAL TERMS FOR DAILY CATCH USERS
You must not complete or attempt to complete a transaction with any Merchant outside of the Daily Catch process, or ask the Merchant to accept direct payment of the price payable for the goods and/or services or pay the Merchant by any payment method other than payment through Daily Catch.
FEES AND PAYMENT
We will issue monthly statements to Merchants. These statements will set out (i) the amounts received for goods and/or services sold through Daily Catch; (ii) the Fees payable to us; and (iii) the net amount due to you. We will pay the net amount due to you within 5 business days of the date of our statement.
We may, by giving at least 30 days’ notice, increase the Fees from time to time. We will notify you of any increase and the effective date of the increase by emailing you at the email contact address that you have most recently supplied to us. If you do not wish to pay the increased Fees, you may remove your Listings and/or your account. If you do not remove your Listings before the effective date of the increase, you are deemed to have accepted the increased Fees.
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 Terms.
Without limiting these Terms, 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 Terms).
You must ensure you have obtained all necessary consents for us to access, collect, hold, process and distribute the Content as described in these Terms. While we will use reasonable endeavours to back up all Content stored using Daily Catch, you must keep separate and regular back-up copies of all Content uploaded by you onto Daily Catch.
OUR INTELLECTUAL PROPERTY
Other than your Content, we (and our licensors) own all proprietary and intellectual property rights in Daily Catch (including all information, data, text, graphics, artwork, photographs, trade marks, logos, icons, sound recordings, videos and look and feel ), and the Underlying Systems, including any modification, enhancement or derivative work of any of the foregoing.
If you provide us with ideas, comments or suggestions relating to Daily Catch or Underlying Systems (together feedback) 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 we may use or disclose the feedback for any purpose.
You must treat all information available and otherwise provided through Daily Catch as strictly confidential, and may only use that information for the purpose of buying, selling and providing goods and/or services through Daily Catch. Confidential Information expressly includes contact details of each Daily Catch user, but does not include any information already in the public domain, or independently known to you.
To the 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: (i) any objectionable or offensive content being displayed on Daily Catch; (ii) the Daily Catch or video stream being unavailable (in whole or in part) or performing slowly; (iii) the failure of any Daily Catch user to comply with these Terms; (iv) any error in, or omission from, any information made available through Daily Catch; (v) 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 Daily Catch. To avoid doubt, you are responsible for ensuring the process by which you access and use Daily Catch protects you from this; and (vi) any site linked from Daily Catch. Any link on Daily Catch to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
We make no representation or warranty that Daily Catch is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of Daily Catch is not illegal or prohibited, and for your own compliance with applicable local laws.
All advertisements, arrangements and agreements to buy, sell or provide goods and/or services through Daily Catch are 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 Daily Catch, or your use of Daily Catch.
Without limiting these Terms, you rely on information provided by other Daily Catch users at your own risk and you acknowledge we do not, control, inspect, endorse, approve or check the availability, condition or nature of any advertised goods and/or services or the accuracy, currency, truth or completeness of the information provided by Daily Catch users and it is your responsibility to do so. It is your responsibility to take any other necessary precautions before entering an agreement to buy, sell or provide goods and/or services.
To the maximum extent permitted by law you access and use Daily Catch at your own risk. We are not liable or responsible to you or any other person for any Loss under these Terms, or in connection with Daily Catch, or your access and use of (or inability to access or use) Daily Catch. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability will be limited to NZD100.
To the maximum extent permitted by law and only to the extent that certain provisions of these Terms do not apply, our total liability to you in connection with these Terms will not exceed NZD100. Furthermore, we will not be liable to you under or in connection with these Terms for any loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill, or consequential, indirect, incidental or special damage or loss of any kind.
Nothing in these Terms limits our liability under or in connection with these Terms for personal injury or death, for fraud or wilful misconduct, or any liability that cannot be excluded by law.
SUSPENSION AND TERMINATION
You may cease using Daily Catch at any time by removing your account from Daily Catch. If you do this, these Terms and your right to access and use Daily Catch will terminate immediately. Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use Daily Catch, if the other party breaches any material provision of the Agreement and the breach is not: (i) remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or (ii) capable of being remedied. Immediate termination is also permitted where the other party becomes insolvent, liquidated, bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee or chargee agent appointed or becomes subject to any form of insolvency action of external administration, or ceases to continue business for any reason.
Without limiting any other right or remedy available to us, we may restrict or suspend your access to Daily Catch if we consider that you have: (i) undermined, or attempted to undermine, the security or integrity of Daily Catch or any Underlying Systems; (ii) used, or attempted to use, Daily Catch for improper purposes or in a manner, other than for normal operational purposes, that materially reduces the operational performance of Daily Catch; (iii) transmitted or stored any Content that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is, or may be, Objectionable, incorrect or misleading; (iv) failed to pay any amount when due in accordance with these Terms; or (v) otherwise materially breached these Terms.
On suspension or termination, you must immediately cease using Daily Catch and must not attempt to gain further access. Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination. Clauses which, by their nature, are intended to survive termination of your right to access and use Daily Catch, including clauses related to CONTENT, OUR INTELLECTUAL PROPERTY, CONFIDENTIALITY, DISCLAIMERS, LIABILITY, SUSPENSION AND TERMINATION, and GENERAL TERMS. Subject to these Terms, no compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any amount that you have already paid to us.
If we need to contact you, we may do so by email or by posting a notice on Daily Catch. You agree that this satisfies all legal requirements in relation to written communications.
These Terms, and any dispute relating to these Terms, 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 Terms.
We are not liable to you for any failure to perform our obligations under these Terms to the extent caused by an event that is beyond our reasonable control.
You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
No person other than us and you has any right to a benefit under, or to enforce, these Terms.
Except where explicitly stated herein, any variation to these Terms must be in writing and signed by both parties.
For us to waive a right under these Terms, that waiver must be in writing and signed by us.
If any part or provision of these 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 Terms. The remainder of these Terms will be binding on you.
These Terms set out everything agreed by the parties relating to your access and use of Daily Catch and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to Daily Catch that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agree to these Terms.