|Name:||Diet Your Way(Sole Trade)|
|Address:||1 Emily Place, Auckland 1010, NZ|
This is a mutual services agreement. The Restaurant will produce made to order meals for customers of Diet Your Way (DYW) and help facilitate the delivery of said meals and the support of aforementioned customers. DYW pays a Fee to the Restaurant for creating the meals and possibly delivering them, which for the purposes of this Agreement will be known as the Services. They are set out in further detail in the Schedules of this Agreement and any subsequent Schedules that get added each week by way of new orders
DYW will facilitate the transaction between the customer and the Restaurant. All dealings with the customer will be handled by DYW including the customer service, the dispute resolution and the billing. The Restaurant pays no Fee to DYW for the Services.
DYW agrees to engage the Restaurant, and the Restaurant agrees, to provide the Services on the terms and subject to the conditions set out in this Agreement.
|Signing (in the manner required for execution of an agreement)|
|DYW by:||Restaurant by:|
|Name: Ghizlane Chebitou Position: Authorised signatory||Name: Position: Director / Authorised signatory|
In this Agreement, unless the context requires otherwise:
Agreement means this services agreement (including each part) and any schedules (including each Schedule) as attached to it and as may be amended from time to time;
Charges has the meaning set out in clause 7.2
Confidential Information means any information:
-relating to the terms of this agreement; or
-relating directly or indirectly to the business or activities of any party, including (without limitation) its intellectual property, and research, development or marketing in respect of the business of such party or any of its suppliers or customers,
-and which is disclosed by a party to the other party on a confidential basis, or which might otherwise reasonably be expected by any party to be confidential in nature.
Fees has the meaning set out in clause 11.
Force Majeure Event means any event or circumstance (whether arising from natural causes, human agency or otherwise) that is beyond the reasonable control of DYW, including strikes, lockouts or other labour disputes, riot, civil commotion, fire, flood, drought, loss or delay at sea, breakdown or war (whether declared or not), rendering the performance of this Agreement in accordance with its terms impossible.
Intellectual Property means:
- all statutory and common law rights in tangible property, including (without limitation) patents and patentable inventions, designs, product varieties, trademarks, trade secrets, know-how, copyright and copyright works (including all moral rights), manufacturing technologies, methods and materials, all rights in relation to inventions, business names, domain names, circuit layouts, source and object code, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields; and
-all intellectual property rights related to the categories of intellectual property listed in subparagraph (a) above, whether registered or unregistered (including applications for such rights) as may exist anywhere in the world at any time3.
Services means the services to be provided by DYW to the Restaurant from time to time under this Agreement and as specified in any Schedule.
Schedule means each Schedule for the provision of the Services under this Agreement as contemplated in clause 5 and attached as schedules to this Agreement.
Term means the “Initial Term” as defined in clause 3 and the automatic renewal of the term as set out in clause 4;
In this Agreement, unless the context requires otherwise:
Clauses and parts: reference to a clause or part is to a clause or part of this Agreement, and a reference in a part to a clause is a reference to a clause in that part;
Headings: headings have been inserted for convenience and as a guide to the provisions of this Agreement and will not form part of this Agreement or affect its interpretation in any way;
Currency: unless specifically stated otherwise, reference to any monetary amount (including the use of the $ symbol) is to New Zealand dollars;
Party: reference to a party or entity includes an agent, successor, permitted assign, executor, administrator or other representative of such party, person or entity;
1. DYW hereby agrees to engage The Restaurant and The Restaurant agrees, to provide the Services on the terms and subject to the conditions set out in this Agreement. The Restaurant agrees to engage DYW and DYW agrees, to provide the Services on the terms and subject to the conditions set out in this Agreement
2. Nothing in this Agreement will be deemed or construed to constitute a partnership, trust or joint venture between DYW and the Restaurant. Neither party will have the authority to act for or incur any obligation on behalf of the other except as expressly provided in this Agreement or any agreement entered into pursuant to this Agreement.
3. This Agreement will commence on the date the Restaurant begins providing DYW customer The Services and continue for as long as the Restaurant provides The Services to DYW customer, unless terminated earlier in accordance with this Agreement (Initial Term).
4. On completion of the Initial Term, the Term will automatically renew until this Agreement is terminated by either party giving to the other party not less than 30 days written notice of termination.
5. The parties acknowledge and agree that:
-the mutual Services that are to be provided under this Agreement will be set out in one or more of the Schedules, which will be negotiated and agreed between the parties from time to time;
-each Schedule will, unless otherwise agreed, be substantially in the form of the template Schedule attached as a schedule in this Agreement;
-neither party will be under any obligation to enter into and agree any Schedule provided that each party will use all reasonable endeavours to negotiate (in good faith) a timely agreement of a Schedule and will not arbitrarily or unreasonably refuse to enter into, delay entering into, or impose or imply any unreasonable conditions on, any Schedule;
-upon execution by both parties, each Schedule will be deemed to be incorporated into, form part of, and be governed by the terms of this Agreement;
-each Schedule will commence on the date and continue for the term specified in that Schedule or where no term is specified, until all obligations have been fulfilled or the Term has expired, unless terminated earlier in accordance with this Agreement. For clarity, no obligations under any Schedule shall have an expiry date that is later than the expiry of the Term; and
-once agreed, each party will comply with the terms and conditions set out in the relevant Schedule.
6. The Schedules applicable as at the date of commencement of this Agreement are attached as schedules to this Agreement. Without limiting the generality of the foregoing, such Schedules set out the mutual Services that the parties have agreed to provide to the other as from the commencement of this Agreement.
7. During the Term, each party represents and agrees:
-that it has full power and has obtained the required authority to enter into and perform its obligations under this Agreement;
-to ensure that where approvals or decisions are contemplated by this Agreement the parties decision will be given promptly and will be within that party’s delegated authority levels
-the full performance of its obligations will not result in the breach of any other agreement;
-upon execution by both parties, each Schedule will be deemed to be incorporated into, form part of, and be governed by the terms of this Agreement;
-to perform its obligations with care, skill and diligence;
-to provide the other party with reasonable access to its resources and/or sites to the extent necessary to allow the other party to perform its obligations under this Agreement;
-to promptly notify the other party of any matter in dispute between the parties in which case the provisions of the dispute resolution clauses shall apply, provided that such notification shall not in itself be construed as an admission of liability or breach;
-to comply with the other party’s reasonable security, operational and confidentiality requirements as set out in this Agreement and as advised to that party by the other from time to time in writing;
-to comply with all relevant statutes, regulations and law; and
-otherwise perform its obligations under this Agreement efficiently, diligently and in a timely manner.
8. During the Term, the DYW wil
-in relation to each Schedule, provide the Services in accordance with the requirements and specifications set out in the relevant Schedule; and
-ensure that it has (or has the use of) all necessary facilities, equipment, personnel, Intellectual Property and/or any other thing reasonably necessary to perform its obligations under this Agreement and each Schedule.
9. DYW is dependent on external third party providers (including but not limited to PayPal) in providing certain aspects of the Services to the Restaurant. To the extent that DYW is unable to deliver the Services due to the actions of a third party supplier, the Restaurant agrees that DYW is under no obligation to deliver the Services unless the direct cause for the delivery failure is due to DYW’s breach of its contractual arrangements with such third party supplier.
10. During the Term, the Restaurant will at its own expense:
-promptly respond to all reasonable requests made by DYW for instruction and information relating to the provision of the Services, and promptly do all things reasonably necessary to enable DYW to fully and effectively provide the Services;
-make available to DYW in a timely manner all assistance, including personnel, information, facilities, services and equipment reasonably required by DYW for the performance of its obligations under this Agreement.
11. The Fees payable in respect of the provision of the Services (Fees) will be as set out in the relevant Schedule.
12. All expenses actually and properly incurred or reasonably expected to be incurred, by the Restaurant in connection with the provision of the Services will be met by the Restaurant.
13. If any tax or levy is payable, the Restaurant will pay such tax or levy and indemnify and hold harmless DYW against any claim or demand for the payment of such tax or levy.
14. DYW will issue the Restaurant with a GST invoice through the website at www.dyw.co.nz in respect of all amounts payable under this Agreement.
15. Amounts due to DYW under this Agreement will be paid by the Restaurant to DYW online at the website within seven days of the invoice being issued.
16. The Restaurant will issue the Restaurant with a GST invoice in respect of all amounts payable to the Restaurant by DYW for customer meals under this Agreement
17. Amounts due to the Restaurant under this Agreement will be paid by DYW to the Restaurant within thirty days of the invoice being raised by the Restaurant.
18. A party receiving or having access to the other party’s Confidential Information shall: treat, and shall ensure that its representatives and employees treat the Confidential Information with the utmost confidence;
-not use the Confidential Information (nor allow it to be used) for any purpose, provided that if use of the Confidential Information is necessary to perform its obligations under this Agreement it may be used for that purpose only;
-store and keep all materials containing Confidential Information in secure custody (which is appropriate given the form of such materials);
-exercise the same standard of care in the treatment and protection of the Confidential Information as it exercises for its most valuable Confidential Information, or, if it is higher, exercise a standard of care appropriate for the treatment and protection of solicitor and client, including legally privileged, information; and
-return all copies of the Confidential Information (and materials containing Confidential Information) to the other party upon the request of that other party or the earlier termination or expiry of this Agreement.
19. No Confidential Information shall be disclosed without the prior consent in writing of the party from which the information was received or to which the information relates to anyone other than representatives and employees having a need-to-know for the purposes contemplated by this Agreement.
20. Either party may disclose Confidential Information to its employees, agents, contractors and/or professional advisers, to the extent necessary, provided that such persons agree to be bound by the obligations of confidence set out in these confidentiality clauses.
21. The provisions of these confidentiality clauses shall not apply to information to the extent the recipient can show the information is:
-legally required to be disclosed:
-part of, or legitimately enters, the public domain through no fault of the recipient; or
-in the unrestricted possession of the recipient prior to disclosure to the recipient by the Disclosing Party other than by virtue of a breach of any obligation of confidence.
22. Upon Termination of this Agreement or expiry of the Term, the disclosing party may request the destruction or return of any Confidential Information in the possession or control of the recipient and the recipient will promptly:
-destroy or return to the disclosing party (at the disclosing party’s sole discretion) all such Confidential Information (whether documents, reports, exhibits and other papers, and whether on paper or in any electronic information storage and retrieval system or in any other storage medium, in the recipient’s possession or control);
-use its best endeavours to remove, destroy or erase any Confidential Information contained within any other information in the recipient’s possession or control; and
-upon such return or destruction provide to the disclosing party a certificate, signed by an authorised representative of the recipient, stating that the Confidential Information returned or destroyed comprises all the Confidential Information in the recipient’s possession or control.
23. Each party will comply with the Privacy Act 1993 to the extent that this legislation is relevant to this Agreement.
24. These obligations as to confidentiality shall remain in full force and effect notwithstanding termination or expiry of this Agreement.
25. During the Term and for a period of two years following expiry of the Term or termination of this Agreement, the Restaurant will not, without the prior written consent of DYW:
-directly solicit, offer employment to employees of or individuals contracting to DYW;
-directly solicit, offer employment to a person who has been an employee of or individual contracting to DYW within six months after that person leaves the employment of or ceases its contract with DYW but this restriction:
26. During the Term and for a period of two years following expiry of the Term or termination of this Agreement, the Restaurant will not, without the prior written consent of DYW or the customer themselves:
-attempt to determine the identity of one of DYW’s customers;
attempt to contact one of DYW’s customers; or
-attempt to sell goods or services to one of DYW’s customers that are not directly related to The Services agreed upon with DYW, unless it can be reasonably proved that the Restaurant approached the customer without the knowledge of this Agreement or the relationship between DYW and the Restaurant.
27. Each party warrants for the benefit of the other, that
- it has full power and capacity to execute, deliver, and perform its obligations under, this Agreement;
- the execution, delivery and performance of this Agreement:
o has been duly authorised by all necessary action; and
o will not breach the terms and conditions of or constitute a default under, any other agreement, undertaking or arrangement to which it is a party or bound or breach any law applicable to it or by which it may be bound;
- this Agreement constitutes its legal, valid and binding obligations, enforceable in accordance with its terms; and
- it has not taken any action, nor have any other steps been taken or commenced against it for its liquidation, dissolution or re-organisation.
28. The Restaurant warrants for the benefit of DYW, that:
- it will perform the Services with due care, skill and diligence and will ensure that its obligations in respect of the Services are carried by a properly qualified, competent and experienced personnel;
- it will follow all health and safety, food preparation and commercial kitchen regulations when performing the Services; and
- none of the Services, or any additional services, violates or infringes or will violate or infringe the rights of any third party.
29. To the extent permitted by law, the total liability of DYW under this Agreement and any Schedule (whether in contract, equity, tort or otherwise) arising from any breach of any of DYW’s obligations under this Agreement or a Schedule, the cancellation of this Agreement or a Schedule, or negligence, misrepresentation or other act or omission on the part of DYW, its employees, agents or contractors will not exceed the aggregate of the Fees paid by the Restaurant to DYW under this Agreement or the relevant Schedule in the 12 month period immediately prior to the date of the incident giving rise to such liability.
30. Notwithstanding any other provision of this Agreement, in no event will the measure of damages against DYW for any breach of this Agreement equity, tort (including negligence), or other action or contravention of any statute, include special, incidental, consequential or indirect loss or any consequential economic damage, lost profits, business, revenue, goodwill, or anticipated savings, nor will DYW be liable for:
- any breach of this Agreement or any Schedule to the extent that such breach is attributable to the prior default, negligence, misconduct or breach of the Restaurant or its employees.
- damage or loss caused by a Force Majeure Event, whether or not DYW was aware, or should have been aware of the possibility of such loss or damage.
31. The Restaurant acknowledges that it has not relied on any information or advice given by DYW in relation to the Services and DYW is not liable for any damage, loss or expense resulting from the failure to give advice or information or the giving of incorrect advice or information whether or not due to DYW's negligence or that of its employees, agents or contractors.
32. Notwithstanding any other provision of this Agreement, non-performance by DYW of any of its obligations under this Agreement and any Schedule will be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or substantially, by a Force Majeure Event either affecting DYW or affecting Restaurant to such an extent that DYW is unable to perform its relevant obligations under this Agreement or the relevant Schedule. Performance of any obligation affected by a Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event. DYW will promptly advise Restaurant in writing, specifying the cause and extent of its inability to perform any of its obligations under this Agreement or any Schedule and the likely duration of such non-performance.
33. If the parties’ obligations are affected by any Force Majeure Event, the parties will immediately use all reasonable endeavours to avoid, remove or mitigate the relevant Force Majeure Event and fulfil its obligations.
34. If by reason of a Force Majeure Event, either party is unable to perform any material obligation under a Schedule for a period of twenty (20) business days after the occurrence of the Force Majeure Event then:
- either party may terminate such Schedule by giving written notice to the other party; and
- if termination of the relevant Schedule results in a material reduction in the benefit of this Agreement to either or both of the parties, then either party may terminate the Agreement by giving written notice to the other party.
35. If at any time during the Term any dispute arises between the parties in connection with the interpretation or application of the provisions of this Agreement or any Schedule, its breach or termination, the validity of any documents provided by either party pursuant to the provisions of this Agreement or any Schedule, or any other matter arising out of or in connection with this Agreement or any Schedule, then the following will apply:
- the parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Agreement;
36. If the dispute remains unresolved after the expiry of thirty (30) business days from the date the dispute became known, either party may refer the dispute to the mediation of one mediator.
37. If the dispute is not resolved within ten (10) business days of the date of commencement of the mediation, either party may terminate the mediation by giving written notice to the other party and commence court or other proceedings in respect of the dispute.
38. The nature, content and outcome of any negotiation and mediation under this clause and any information or documents disclosed during such negotiation and/or mediation will be confidential, will not be used except to settle the dispute and be without prejudice to the rights of the parties in any proceedings subsequently brought in connection with the dispute or otherwise (if any).
39. Each party will bear its own costs in connection with any dispute resolution process under this clause and the mediator’s expenses and charges will be borne equally by the parties to the Dispute, unless otherwise determined.
40. Pending resolution of the dispute, the parties will continue to perform their respective obligations under this Agreement, unless the nature of the dispute is such that it is not reasonably practicable for the relevant party to so perform that obligation.
41. Subject to clause 4, Either party may terminate this Agreement upon five business days’ written notice (referring to the grounds for such termination) where the other party breaches a material term of this Agreement, provided that where that breach is able to be remedied, such breach has not been remedied within ten (10) business days after the first party has given the other party written notice requesting it to remedy the breach.
42. If the Restaurant defaults in the payment of any amount due to DYW under this Agreement (and not in dispute) and the Restaurant does not remedy such default within ten (10) business days after being given written notice of such default, then DYW may by giving five (5) further business days’ written notice to the Restaurant terminate this Agreement.
43. Either party may by written notice to the other party immediately terminate this Agreement and every Schedule if the other party is, becomes, or is deemed to be, insolvent or bankrupt.
44. If this Agreement and a Schedule is terminated, the Restaurant will pay DYW all amounts due to DYW under this Agreement for work that has been performed up to the date of termination.
45. Termination of this Agreement will be without prejudice to a party’s other rights and remedies under this Agreement and those provisions of this Agreement which are intended to survive termination.
46. The Restaurant will not assign or attempt to assign or otherwise transfer any right or obligation arising out of this Agreement without obtaining the prior written consent of DYW (such consent to be given or withheld at DYW’s sole discretion).
47. DYW may assign all or any of its rights and obligations under this Agreement and/or any Schedule to any successor entity or other person whether by operation of law or otherwise, provided that DYW ensures that the assignee agrees in writing to be bound by all of DYW’s obligations under this Agreement and/or the relevant Schedule.
48. DYW may subcontract all or any substantial part of its obligations under this Agreement and/or any Schedule to a third party, provided that DYW will ensure that any subcontract entered into is consistent with the terms of this Agreement and/or the relevant Schedule and DYW will be responsible for any act, default or neglect of the third party and any employee, agent or contractor of the third party as if the act, default or neglect was committed by DYW.
49. Any notice or other communication to be given under this Agreement must be in writing addressed to the recipient at the address or email address from time to time notified by that party in writing to each other party.
50. Unless otherwise agreed in writing as between the parties or expressly specified in this Agreement, each party will bear its own costs in relation to the negotiation, preparation and execution of this Agreement.
51. This Agreement constitutes the entire understanding and agreement of the parties relating to the transactions contemplated by this Agreement and supersedes and extinguishes all prior agreements, arrangements and understandings between the parties relating to the transactions contemplated by this Agreement.
52. Each party will do all such further acts (and sign any documents) as may be required to give full effect to this Agreement.
53. No amendment to this Agreement will be effective unless it is in writing and signed by both parties.
54. No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by a party in respect of any breach of the other party’s obligations under this Agreement is to:
- operate as a waiver or prevent the subsequent enforcement of that obligation; or
- be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.
55. Any unlawful or voidable provision in this Agreement will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing of such provision does not materially affect the purpose of or frustrate this Agreement.
56. Unless expressly provided otherwise, the rights and/or remedies exercised by either party under this Agreement will be without prejudice to any of its other rights and/or remedies under law or in equity.
57. This Agreement may be executed in two or more counterparts (including by way of an exchange of scanned PDF email copies) each of which will be deemed an original, but all of which together will constitute one and the same instrument.
58. This Agreement is governed by and will be construed in accordance with the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand.
Diet Your Way (DYW) agrees to provide the Services described in this Schedule to Insert Restaurant Name (Restaurant) in return for payment of the Fees due under these terms.
The Restaurant agrees to provide the Services described in this Schedule to DYW (Restaurant) in return for payment of the Fees due under these terms.
The agreement in respect of the provision of the Services comprises the terms and conditions in the Mutual Services Agreement between DYW and Restaurant dated and the terms and conditions set out in this Schedule.
DYW and Restaurant agree as follows:
|Provided by DYW: Customer service, Solving returns, Give access to the customers on DYW website, Facilitate payments between Restaurant and client.||Provided by the Restaurant: Cook the meals as stated by the customer. Deliver the meals the right time and location corresponding to the Schedule and agreed upon with the customer|
|Roles and Responsibilities|
|DYW: Provide the necessary informations for the restaurant to be able to service the customer’s meals and delivery.||Restaurant: Cook the meals as stated by the customer. Deliver the meals the right time and location corresponding to the Schedule and agreed upon with the customer.|
|DYW by:||Restaurant by:|
|Name: Ghizlane Chebitou Position: Authorised signatory.||Name: Position: Director / Authorised signatory|