1. APPLICATION OF TERMS
1.1. Application and agreement: These Terms apply to your use of the Software and the Services (as those terms are defined below). By accessing or using the Software or the Services (e.g. by downloading the Software or placing an order for Services using the Software):
- you agree to these Terms; 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 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.
1.2. If you do not agree: If you do not agree to these Terms, you are not authorised to access and use the Software or the Services, and you must immediately stop doing so.
2.1. Changes to Terms: We may change these Terms at any time by posting them here. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Software or the Services from the date that the Terms are changed, you agree to be bound by the changed Terms.
2.2. These Terms were last updated and are effective from: 18 September 2020.
3.1. Definitions: In these Terms, the following terms have the stated meaning:
|Confidential Information||any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Software or the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Software. Your Confidential Information includes your Photos.|
|Deliver||the option to have your Products delivered to you as defined in clause 5.1a.|
|Fees||the applicable fees for the Services charged by us as set out at the time of the relevant transaction|
an event that is beyond the reasonable control of a party,
|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 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.|
|Objectionable||includes being objectionable, defamatory, obscene, harassing, threatening, harmful or unlawful in any way.|
|Personal Information||information about an identifiable individual.|
|Photos||all photos, images and other content (including Personal Information) owned, held, used or created by you or on your behalf that is uploaded or transmitted by or on your behalf using the Software.|
|Software||this app and/or website, and (where the context permits) including the underlying software.|
|Products||prints and/or other products that you have ordered using the Software.|
|Retail Partners||the businesses described in clause 4.3b.|
|Retail Pick Up||the option to pick up your Products from a Retail Partner as defined in clause 5.1a.|
|Services||the Photo-processing and printing services provided by us and/or our retail Partners (including the supply of any Products) in connection with your placement of an order using the Software.|
|Start Date||the date that you first accept these Terms in accordance with clause 1.1.|
|Underlying Systems||the IT solutions, systems and networks (including software and hardware) used by us and our Retail Partners to provide the Software and the Services, including any third party solutions, systems and networks.|
|we, us or our||MEA Mobile Limited, a New Zealand company, company number 2464333.|
|Website||the internet site at www.exciteprints.com, or such other site notified to you by us.|
|Year||a 12 month period starting on the Start Date or the anniversary of that date.|
|you or your||you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.|
3.2. Interpretation: In these Terms:
- clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
- words in the singular include the plural and vice versa;
a reference to:
- a party includes that party’s permitted assigns;
- personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us;
- 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;
- including and similar words do not imply any limit; and
- 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.
4.1. General: We will provide the Services:
- in accordance with these Terms and applicable law; and
- exercising reasonable care.
4.2. Non-exclusive: Our provision of the Software and the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Software or the Services to any other person.
- Through the use of web services and APIs, the Software interoperates with a range of third party service features. We do not make any warranty or representation on the availability 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 terms that we regard as appropriate in our sole discretion, we may cease to make available that feature to you. 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.
- Certain third party retail businesses assist us to deliver the Services (Retail Partners). While we use reasonable efforts to ensure that our Retail Partners exercise reasonable care, skill and diligence in helping us to deliver the Services, those businesses are independent entities to us. We make no warranty or representation on the availability or performance of Retail Partners, their services or their systems, and will have no liability to you for any delay or failure to provide the Services as a result of any delay or failure by a Retail Partner or its services or systems.
5.1. Delivery/Retail Pickup:
- When you place an order for Services using the Software, you may have the option to have your Products delivered to you (Deliver), or to pick up your Products from one of our Retail Partners (Retail Pick Up). In the case of Deliver, certain third party photo printing and fulfilment partners assist us to deliver the Services (Deliver Partners).
- We will use all reasonable efforts to deliver or make your Products available in accordance with the Deliver or Retail Pickup option that you have selected when placing your order.
5.2. Risk and title: Risk and title in the Products pass to you:
- in the case of Deliver, on delivery of the Products to you, provided we have received payment in full for those Products; and
in the case of Retail Pickup, on the later of:
- receipt of payment in full for those Products; and
- our Retail Partner making those Products available to you for collection.
6. YOUR OBLIGATIONS
6.1. General use: You and your personnel must:
- use the Software and the Services in accordance with these Terms solely for your own lawful purposes; and
- not resupply, distribute, or make available, the Software or the Services to any third party, or otherwise commercially exploit the Software or the Services.
6.2. Access conditions: When accessing or using the Software or the Services, you and your personnel must:
not impersonate another person or misrepresent authorisation to act on behalf of others or us;
correctly identify the sender of all electronic transmissions;
ensure the Software and the Services are protected at all times from misuse or any form of unauthorised use, copying or disclosure;
maintain all proprietary notices appearing in relation to the Software and the Services;
not copy, reproduce, modify or translate the Software except as expressly provided for in these Terms;
not decompile or reverse engineer the Software except to the extent expressly permitted by any applicable law or treaty that is in force where that law or treaty cannot be excluded, restricted or modified by these Terms; and
neither use the Software or the Services in a manner, nor upload or transmit any Photos or other data, that breach any third party right (including Intellectual Property Rights and privacy rights) or are Objectionable, incorrect or misleading.
6.3. Personnel: A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
6.4. Authorisations: You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Software and the Services, including to upload or transmit Photos using the Software.
7. PHOTOS AND DATA
7.1. Our access to Photos and data:
You acknowledge that:
- We, our Retail Partners, and our Deliver Partners require access to Photos, other data and Personal Information that you provide to us, to exercise our rights and perform our obligations under these Terms (including to provide, maintain, repair and improve the Services); and
- to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access those Photos and that data and Personal Information for this purpose.
- You must arrange all consents and approvals that are necessary for us and our Retail Partners to access the Photos as described in clause 7.1a.
- You acknowledge and agree that to the extent Photos and other data that you provide to us contain Personal Information, in collecting, holding, transmitting and processing that information through the Software or the Services, and in supplying Products to you, we are acting as your agent for the purposes of any applicable privacy law.
- You must obtain all necessary consents from the relevant individual to enable us to collect, hold, transmit, process, and use, that information in accordance with these Terms.
7.3. Backups of Photos: You acknowledge that:
- while we will take standard industry measures to prevent accidental loss of the Photos uploaded or transmitted by you using the Software, we do not provide data storage services and do not undertake to store backup copies of any Photos; and
- you are responsible for keeping separate back-up copies of all Photos uploaded by you using the Software.
7.4. International storage of Photos, etc.: You agree that, despite clause 7.3, we may store Photos and any other data that you provide to us (including any Personal Information) in secure servers which may be in overseas territory/ies and may access those Photos and that data (including any Personal Information) in those territories and New Zealand from time to time.
7.5. Indemnity: You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Product, or Photo or other data that you provide to us, infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Product, or the Photo or data, is Objectionable, incorrect or misleading.
8.1. Fees: You must pay the Fees without any set-off or deduction:
- where you have selected Deliver or Retail Pickup (with payment in advance), to us in advance via our payment gateway accessed through the order process in the Software; or
- where you have selected Retail Pickup (with payment in store), to our Retail Partner when you pick up your Products. We and our Retail Partners reserve the right not to provide your Products until you have paid in full for the relevant Services.
8.2. GST: The Fees exclude GST, which you must pay on taxable supplies.
8.3. Increases: We may increase the Fees at any time by giving notice, provided that the increase will not apply to any orders for Services which you have already placed prior to the date of the increase.
9. INTELLECTUAL PROPERTY
- Subject to clause 9.1b, title to, and all Intellectual Property Rights in, the Software, the Services, the Website, and all Underlying Systems is and remains the property of us (and our licensors). You must not dispute that ownership.
- Title to, and all Intellectual Property Rights in, the Photos (as between the parties) remains your property. You grant us (and our Retail Partners) a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Photos to the extent reasonably required to perform our obligations in accordance with these Terms.
9.2. Know-how: To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services for the purpose of providing the Services to you.
9.3. Feedback: If you provide us with ideas, comments or suggestions relating to the Software or the Services (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, and enhancements, modifications or derivative works of the Software), are owned solely by us; and
- we may use or disclose the feedback for any purpose.
9.4. Third party sites and material: You acknowledge that the Software may link to third party websites or feeds that are connected or relevant to the Software. Any link from the Software does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
10.1. Security: Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- 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 clauses 10.1a and 10.1b.
10.2. Permitted disclosure: The obligation of confidentiality in clause 10.1a does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
- by us 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 we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
11.1. Mutual warranties: Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.
11.2. No implied warranties: To the maximum extent permitted by law:
- our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the New Zealand Sale of Goods Act 1908) are expressly excluded; and
we make no representation concerning the quality of the Software or the
Services and do not promise that:
- the Software or the Services will meet your requirements or be suitable for a particular purpose;
- any software (including the Software) will be secure, free of viruses or other harmful code, uninterrupted or error free; or
- the Products or any other aspect of the Services will be made available by any particular time or date.
11.3. Consumer Guarantees Act: 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.
11.4. Limitation of remedies: Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
- supplying the Software or the Services again; and/or
- paying the costs of having the Software or the Services supplied again.
12.1. Maximum liability: Our maximum aggregate liability under or in connection with these Terms, the Software or the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed the lesser of US$100 and the Fees you have paid for the Software and/or Services in the Year preceding notice of your claim.
12.2. Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms, the Software or the Services for any:
- loss of profit, revenue, savings, business, use, data (including Photos), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
12.3. Unlimited liability:
Clauses 12.1 and 12.2 do not apply to limit our liability under or in
connection with these Terms for:
- personal injury or death;
- fraud or wilful misconduct; or
Clause 12.2 does not apply to limit your liability:
- to pay the Fees;
- under the indemnity in clause 7.5;
- for those matters stated in clause 12.3; or
- for a breach of our Intellectual Property Rights.
12.4. No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.5. 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 these Terms, the Software or the Services.
13. TERM, TERMINATION AND SUSPENSION
13.1. Duration: Unless terminated under this clause 13, your right to access and use the Software and the Services:
- starts on the Start Date; and
- continues until you no longer wish to use the Software and the Services, or we cease to provide or support the Software and/or the Services in which case your right to access will terminate at that date of cessation without the need for us to provide any notice.
13.2. Other termination rights: Either party may, by notice to the other party, immediately terminate your right to access and use the Software and the Services if the other party:
breaches any material provision of these Terms and the breach is not:
- remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
- capable of being remedied; or
- 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.
13.3. Consequences of termination:
- Termination of your right to access and use the Software and the Services does not affect either party’s other rights and obligations that accrued before that termination.
- On termination of your right to access and use the Software and the Services, you must pay all Fees for any orders placed for Services prior to that termination or expiry and de-install the Software from your device.
- No compensation is payable by us to you as a result of termination of your access to and use of the Software or the Services for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
- Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of your right to access and use the Software, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
13.4. Obligations continuing: Clauses which, by their nature, are intended to survive termination of your right to access and use the Software and the Services, including clauses 7.5, 9, 10, 11, 12, 13.3 and 13.4, continue in force.
13.5. Suspending access: Without limiting any other right or remedy available to us, we may restrict or suspend your access to the Services where you (including any of your personnel):
- undermine, or attempt to undermine, the security or integrity of the Services;
- use, or attempt to use, the Software or the Services for improper purposes; or
- have otherwise materially breached these Terms (in our reasonable opinion).
14.1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2. Rights of third parties: No person other than us and you has any right to a benefit under, or to enforce, these Terms.
14.3. Waiver: For us to waive a right under these Terms, that waiver must be in writing and signed by us. 14.4 Independent contractor: Subject to clause 7.2, we are an independent contractor of yours, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
14.5 Notices: If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
14.6. Severability: Any illegality, unenforceability or invalidity of a provision of these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms. 14.7 Variation: Subject to clauses 2.1 and 8.3, any variation to these Terms must be in writing and signed by both parties.
14.8. Entire agreement: These Terms set out everything agreed by the parties relating to the Software and the Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Software or the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
14.9. Subcontracting and assignment: 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.
14.10. Law: 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, the Software or the Services.
15. CONTACT AND FURTHER DETAILS
15.1. MEA Mobile Ltd is a company incorporated in New Zealand and its principal place of business is at Level 15, Tower Building, 48 Ward Street, Hamilton 3240, New Zealand. Please contact us anytime at email@example.com.