Local Rover App licence agreement

PARTIES

1          Local Roamer Limited, New Zealand company number 6322715 (Licensor, we, our)

2          The person downloading, installing and/or using the App (Licensee, you, your)

This Agreement applies to your use of the App and Documentation (as those terms are defined below).  By downloading, installing and/or using the App or Documentation:

·            you agree to this Agreement; and

·            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 this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.

If you do not agree to this Agreement, you are not authorised to retain and/or use the App and Documentation, and you must immediately stop doing so.

We may change this Agreement at any time by notifying you of the change in the App.  Unless stated otherwise, any change takes effect from the date set out in the notice.  You are responsible for ensuring you are familiar with the latest Agreement.  By continuing to use the App from the date on which this Agreement is changed, you agree to be bound by the changed Agreement.

This Agreement was last updated on [insert date].

SECTION A:  AGREEMENT AND KEY DETAILS

AGREEMENT

The Licensor agrees to licence the App to the Licensee on the terms of the Agreement.  The Agreement comprises:

▲         Section A (Agreement and Key Details) together with this cover page; and

▲         Section B (General Terms, including the Schedule).

KEY DETAILS

Item

Detail

App

The Local Rover software application.

Approved Purpose

The Licensee may use the App solely for the Licensee’s lawful personal and domestic purposes.

Start Date

The date you first download or use the App.

End Date

N/A.

Territory

New Zealand.

 

SECTION B:  GENERAL TERMS

1           INTERPRETATION

1.1       Definitions:  In the Agreement, the following terms have the stated meaning:

Term

Meaning

Agreement

Section A (Agreement and Key Details, including the cover page) and Section B (General Terms, including the Schedule).

Approved Purpose

the approved purpose set out in the Key Details.

Confidential Information

the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  The Licensor’s Confidential Information includes the App and the Documentation.

Documentation

the user and technical documentation designed to enable the Licensee to properly use and operate the App (if any), and includes any update of the documentation.

End Date

the end date set out in the Key Details.

Force Majeure

an event that is beyond the reasonable control of a party, excluding:

▲         an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

▲         a lack of funds for any reason.

GST

goods and services tax within the meaning of the Goods and Services Tax Act 1985 (New Zealand).

Intellectual Property Rights

includes copyright, and all worldwide rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks 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.

Key Details

the Agreement specific details set out in Section A of the Agreement.

App

the software application set out in the Key Details, including any Update.

Start Date

the start date set out in the Key Details.

Territory

the territory set out in the Key Details.

Update

a new version of the existing App released to the Licensee by the Licensor and intended to provide bug fixes and resolve other technical issues without providing new features or additional functionality.

Year

a 12 month period commencing on the Start Date or any anniversary of the Start Date.

1.2       Interpretation:  In the Agreement:

a           clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

b           words in the singular include the plural and vice versa;

c            a reference to:

i             a party to the Agreement includes that party’s permitted assigns;

ii            personnel includes officers, employees, contractors and agents, but a reference to the Licensee’s personnel does not include the Licensor;

iii           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;

iv           including and similar words do not imply any limit; and

v            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;

d           no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and

e           if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

2           LICENCE

2.1       Grant of licence:  The Licensor grants to the Licensee, and the Licensee accepts, a non-exclusive and non-transferable licence for the duration of the Agreement to use the App and the Documentation solely for the Approved Purpose within the Territory and on the terms and conditions of the Agreement.

2.2       Apple-specific terms:  The parties agree to the additional terms set out in the Schedule.

3           LICENCE CONDITIONS

Conditions:  The Licensee must:

a           use the App and the Documentation for lawful purposes only and must not copy (except making a single copy for the Licensee’s own back-up purposes), reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the App or the Documentation except:

i             as expressly provided for in the Agreement; or

ii            to the extent expressly permitted by any law or treaty that is in force in the Territory where that law or treaty cannot be excluded, restricted or modified by the Agreement;

b           ensure the App and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;

c            maintain all proprietary notices on the App and the Documentation;

d           not transfer, assign or otherwise deal with or grant a security interest in the App, the Documentation or the Licensee’s rights under the Agreement;

e           not challenge the Licensor’s ownership of (including the Intellectual Property Rights in) the App, the Documentation or any other item or material created or developed by or on behalf of the Licensor under or in connection with the Agreement; and

f             notify the Licensor in writing immediately after it becomes aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the App or the Documentation. 

4           PRIVACY AND PERSONAL INFORMATION

4.1       You acknowledge that:

a           we may require access to certain personal information (such as your location) to exercise our rights and perform our obligations under this Agreement; and

b           to the extent that this is necessary but subject to clause 6 (Confidentiality), we may authorise a member or members of our personnel to access personal information we collect from you for this purpose.

4.2       You are not required to provide personal information to us, although in some cases if you choose not to do so then the App may not be able to provide its full functionality to you.

4.3       When you provide personal information to us, we will comply with the Privacy Act 1993 (New Zealand).

4.4       The personal information you provide to us is collected and may be used for enabling the App to operate as designed, communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.

4.5       We may also collect technical information whenever you use the App.  We may collect this type of technical information through a range of means.  We use the technical information we collect to have a better understanding of the way people use the App, to improve the way it works and to personalise it to be more relevant and useful to your particular needs.  We may also use this information to assist in making any advertising we display in the App more personalised and applicable to your interests.

4.6       Generally, we do not disclose personal information to third parties for them to use for their own purposes.  However, some of the circumstances in which we may do this are:

a           to service providers and other persons working with us to make the App available or improve or develop its functionality;

b           in relation to the proposed purchase or acquisition of our business or assets; or

c            where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.

4.7       We don’t generally store your personal information but any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand.  This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.

4.8       You have the right to request access to and correction of any of the personal information we hold about you.  If you would like to exercise these rights, please email us at admin@thelocalrover.com

5           INTELLECTUAL PROPERTY 

5.1       Retained Intellectual Property:  Subject to clauses 5.2 and 5.3, the following Intellectual Property remains the property of the current owner:

a           Intellectual Property that existed prior to the Start Date; and

b           Intellectual Property that was developed independently of the Agreement.

5.2       App and related IP:   From the date of creation or development, the Licensor owns all Intellectual Property Rights in:

a           the App and the Documentation; and

b           any other item or material created, developed or provided by or on behalf of the Licensor under or in connection with the Agreement.

5.3       Feedback:  If the Licensee provides the Licensor with ideas, comments or suggestions relating to the App or the Documentation (together feedback):

a           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 the Licensor; and

b           the Licensor may use or disclose any feedback for any purpose.

6           CONFIDENTIALITY

6.1       Security:  Each party must, unless it has the prior written consent of the other party:

a           keep confidential at all times the Confidential Information of the other party;

b           effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

c            disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clause 6.1a and 6.1b.

6.2       Permitted disclosure:  The obligation of confidentiality in clause 6.1a does not apply to any disclosure or use of Confidential Information:

a           for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b           required by law (including under the rules of any stock exchange);  

c            which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

d           which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or

e           by the Licensor if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Licensor enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

7           WARRANTIES

7.1       Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

7.2       Licensor warranties:  The Licensor warrants that to the best of its knowledge, the use of the App by the Licensee in accordance with the Agreement will not infringe the Intellectual Property Rights of any other person.

7.3       Acknowledgement:  The Licensee acknowledges that the App is of a technical nature and may not be error-free or bug-free.

7.4       No implied warranties:  To the maximum extent permitted by law:

a           the Licensor’s warranties are limited to those set out in the Agreement and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to $100.00; and

b           the Licensor makes no representation concerning the quality of the App or the accuracy or completeness of any mapping, location or other information provided by the App, and does not promise that the App will be error-free, bug-free, or will operate without interruption.

7.5       Consumer Guarantees Act:  Nothing in this Agreement affects the Licensee’s rights under the Consumer Guarantees Act 1993 (New Zealand).

8           LIABILITY

8.1       Maximum liability:  The maximum aggregate liability of the Licensor under or in connection with the Agreement or relating to the App, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed $150.  The cap in this clause 9.1 includes the cap set out in clause 7.4a.

8.2       Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement for any:

a           loss of profit, revenue, savings, business, data and/or goodwill; or

b           consequential, indirect, incidental or special damage or loss of any kind. 

8.3       Unlimited liability: 

a           Clauses 8.1 and 8.2 do not apply to limit the Licensor’s liability:

i             under or in connection with the Agreement for:

▲          personal injury or death;

▲          fraud or wilful misconduct; or

▲          a breach of clause 6.

b           Clause 8.2 does not apply to limit the Licensee’s liability under or in connection with the Agreement for:

i             breach of clause 2 or 3; or

ii            those matters stated in clause 8.3ai.

8.4       No liability for other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

8.5       Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost, or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

9           TERM AND TERMINATION

9.1       Duration:  Unless terminated under this clause 10, the Agreement:

a           starts on the Start Date and ends on the End Date; but

b           where there is no End Date, continues until a party gives 30 days’ notice that the Agreement will terminate on the expiry of the then-current term.

9.2       Termination rights: 

a           Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

i             breaches any material provision of the Agreement and the breach is not:

▲          remedied within 10 days of the other party notifying it of the breach; or

▲          capable of being remedied;

ii            becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

iii           is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

9.3       Consequences of termination or expiry:  

a           Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.

b           On termination or expiry of the Agreement, the Licensee must pay all Fees for the rights and services provided prior to that termination or expiry.

c            Each party must, at the other party’s request following the termination or expiry of the Agreement, return to the other party or destroy all Confidential Information of the other party (including, in the case of the Licensee, the App and Documentation) in the first party’s possession or control.

9.4       Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 5, 7, 9, 10.3, 10.4 and 11, continue in force. 

10       DISPUTES

10.1    Good faith negotiations:  Before taking any Court action, a party must use their best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

10.2    Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

10.3    Right to seek relief:  This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

11       GENERAL

11.1    Force majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

a           immediately notifies the other party and provides full information about the Force Majeure;

b           uses best efforts to overcome the Force Majeure; and

c            continues to perform its obligations to the extent practicable.

11.2    Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

11.3    Independent contractor:  The Licensor is an independent contractor of the Licensee.  No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

11.4    Notices:  A notice given by a party under the Agreement must be delivered to the other party via email to an email address notified by the other party for this purpose.

11.5    Severability:  Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

11.6    Entire agreement:  The Agreement sets out everything agreed by the parties relating to the App licence and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the App licence that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986 (New Zealand).

11.7    No assignment:  The Licensee may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Licensor, that consent not to be unreasonably withheld.  The Licensee remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.

11.8    Law:  The Agreement is 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 the Agreement.

 

SCHEDULE

 

Apple Specific Additional Terms

The Licensor and the Licensee acknowledge that the Agreement is concluded between the Licensor and the Licensee only, and not with Apple, Inc. (Apple) and/or any of Apple’ssubsidiaries.

The Licensor, not Apple, is solely responsible for the App and the content thereof.

The license granted to the Licensee for the App is limited to a non-transferable license to use the App on any iOS products that the Licensee owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via Family Sharing.

Maintenance and Support: The Licensor, and not Apple, is solely responsible for providing any maintenance and support services with respect to the App, as specified in the Agreement, or as required under applicable law.

The Licensor and the Licensee acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

Warranty: The Licensor is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed.  In the event of any failure of the App to conform to any applicable warranty, the Licensee may notify Apple, and Apple will refund the purchase price (if any) for the App to that Licensee.  To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Licensor’s sole responsibility.

Product Claims: The Licensor and the Licensee acknowledge that the Licensor, not Apple, is responsible for addressing any claims of the Licensee or any third party relating to the App or the Licensee’s possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

Intellectual Property Rights: The Licensor and the Licensee acknowledge that, in the event of any third party claim that the App or the Licensee’s possession and use of that App infringes that third party’s intellectual property rights, the Licensor, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

Legal Compliance: The Licensee represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.

Third Party Terms of Agreement: The Licensee must comply with any applicable third party terms of agreement when using the App.

Third Party Beneficiary: The Licensor and the Licensee acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement, and that, upon the Licensee’s acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against the Licensee as a third party beneficiary thereof.