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New World Clubcard App End User Licence Agreement

This End User Licence Agreement (Agreement) is a legal agreement between you (the user) and us (Foodstuffs (N.Z.) Limited) that sets out our, and your, rights and obligations in relation to the New World Clubcard mobile application (App) and any information you provide to us through the App. By using the App you agree to be bound by this Agreement so please read it carefully. If you do not agree to this Agreement please stop using, and uninstall, the App.

1. Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires or is specified otherwise:

Agreement means this End User Licence Agreement; App means:

(a) the New World Clubcard mobile application;

(b) printed materials, manuals, online or electronic documentation, and all copies of such software and materials relating to the App; and

(c) all Updates;

Data means:

(a) data inputted by you for the purpose of registering to use, or using, the App;

(b) data generated by the App or the device on which the App is installed, but only to the extent that data is about you; and

(c) any location (such as GPS) or other information reported from the device on which the App is installed, but only to the extent that data is about you;

Digital Platform means a digital distribution, digital rights management, online gaming and/or digital media platform or service, including AppStore and Google Play;

Foodstuffs Group means:

(a) us, Foodstuffs North Island Limited (Company No. 41782), and Foodstuffs South Island Limited (Company No. 391297); and (b) any company that operates a New World supermarket in accordance with a franchise agreement with any of the entities specified in (a);

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Updates has the meaning set out in clause 3.1;

Usage Data means any data we may collect about the way in which you use the App but does not include your Data;

Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

we, us and our refers to Foodstuffs (N.Z.) Limited (Company No. 43087) with its registered office at Suite 1, 60 Roma Road, Mount Roskill, Auckland, 1041, New Zealand; and you and your refers to you, the owner or authorised user of the device on which the App is installed and used.

2. Licence and Access

2.1 We grant you a non-exclusive, non-transferable, revocable right to access and use the App for the term of this Agreement solely for your own personal, non-commercial use and on a device that you own and/or control, all on the terms and conditions set out in this Agreement.

2.2 The New World Clubcard Terms and Conditions (as amended from time to time) apply to your participation in the New World Clubcard loyalty programme, including via your use of the App, and should be read in conjunction with this Agreement. Where appropriate, references to your “Clubcard” in the New World Clubcard Terms and Conditions include the digital version of the Clubcard made available through the App.

2.3 If the App is downloaded or accessible through a Digital Platform, your use of the App is also subject to the terms and conditions set out in any terms and conditions specified by the operator of the relevant Digital Platform (Digital Platform Terms). If there is any inconsistency between the terms and conditions of this Agreement and the Digital Platform Terms, the terms and conditions of this Agreement will prevail to the extent of the inconsistency.

2.4 You:

(a) must only install and use one copy of the App on one physical or virtual device. You may install multiple copies of the App on more than one device provided that you have a licence for each copy. For the avoidance of doubt and by way of example, if you wish to install the App on one physical device and one virtual device, you must secure a licence for each of the physical device and the virtual device;

(b) may make or store one copy of the App for backup or archival purposes. You may use it only to reinstall the App.

2.5 You will not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between you and us:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the App (as applicable) in any form or media or by any means; or
(ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the App;

(b) access all or any part of the App in order to build a product or service which is the same as or similar to the App or which otherwise competes with the App;

(c) use the App to provide services to third parties without our prior written consent;

(d) remove, disable, circumvent or attempt to undermine the integrity of any security or technical measures that control access to:
(i) the App; or
(ii) our, or any third party’s, systems, networks or resources used in the provision of the App;

(e) attempt to gain unauthorised access to any information or materials other than those to which you have been given express permission to access as part of the App;

(f) attempt to obtain, or assist third parties in obtaining, access to the App;

(g) export or re-export the App or any copy or adaption in violation of any applicable laws or regulations;

(h) remove, modify, deface or circumvent any proprietary notices or labels contained on or within the App; or

(i) access, store, distribute or transmit any Viruses through the App, and we may, without liability to you, disable your access to the App if you are in breach of this clause.

2.6 You are responsible for any access to or use of the App (whether authorised or unauthorised) from your device. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the App and, in the event of any such unauthorised access or use, promptly notify us.

2.7 We may terminate this Agreement if you breach any provision of this Agreement or at any other time at our discretion and we will, where practical, send a notification to you of termination. If we terminate this Agreement you will immediately cease to use the App, uninstall and destroy all copies of the App and all of its component parts in your possession or control.

2.8 You may terminate this Agreement at any time by uninstalling the App from the device on which it is installed.

3. Changes to the App

3.1 You acknowledge that we may provide updates, upgrades, patches and other modifications to the App (together Updates) that must be installed for you to continue to use the App properly or at all. You may be required to install Updates to the App or to update or upgrade the device you use to access the App or the operating system running on that device in order to continue to use the App. We may provide Updates remotely and access the App residing on the device on which the App is installed for such purpose, without your knowledge, and you hereby grant to us the right to deploy and apply such Updates. Unless we specify otherwise, Updates will be provided at no cost.

3.2 All provisions of this Agreement that refer to the App will also include all such Updates, unless such Updates are accompanied by a separate licence, in which case the terms of that licence will govern.

3.3 Although we use reasonable endeavours to ensure that any Updates do not cause any problems in your use of the App, our liability to you to the extent that problems arise from such Updates is limited in accordance with clause 7.

4. Your Data and Usage Data

4.1 We acknowledge and agree that, except for the rights you grant us and other members of the Foodstuffs Group to use your Data under this Agreement and the New World Clubcard Terms and Conditions, you will own all rights, title and interest in and to all of your Data and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your Data.

4.2 While we will take reasonable measures against the accidental loss, destruction or damage of your Data, to the extent permitted by law, neither we, nor any other member of the Foodstuffs Group, will be responsible for any loss, destruction, alteration or disclosure of your Data and you should ensure that you back-up any important information included in your Data in a separate location on a regular basis.

4.3 If any of your Data or any Usage Data is “Personal Information” for the purposes of the Privacy Act 1993, we will comply with our obligations under the Privacy Act 1993 in respect of that Personal Information. Please also refer to clause 10 of the New World Clubcard Terms and Conditions for further information relating to how we collect, store, use and disclose your Personal Information. You acknowledge and agree that we, and any other member of the Foodstuffs Group, will be permitted to collect, store, use and disclose such Personal Information:

(a) in the manner contemplated in the New World Clubcard Terms and Conditions;

(b) in accordance with the Privacy Act 1993, including without limitation where we believe on reasonable grounds that we are required to do so by law or that disclosure is necessary to facilitate the disposition of the App business (whether as a going concern or otherwise); and

(c) as agreed by you under this Agreement.

4.4 If you have any questions in connection with the use of any Personal Information you have provided to us or you wish to access or update your Personal Information please write to us at our registered office address above.

4.5 You acknowledge and agree that the Foodstuffs Group may use your Data for the purpose of:

(a) providing the App to you and otherwise performing our obligations under this Agreement. This may include passing your Data to third party service providers we use to provide the App (including without limitation overseas data centre and outsourcing providers);

(b) ensuring that you are complying with the terms and conditions of this Agreement;

(c) improving or enhancing the App;

(d) performing research and data analysis on an aggregated and anonymous basis; and

(e) marketing the Foodstuffs Group’s own and third-party products and services to you (including in accordance with the New World Clubcard Terms and Conditions).

4.6 You acknowledge and agree that Data may be collected or generated from features within the device on which you use the App, such as location information. You may be able to disable these features on your device and although you may still be able to use the App, some functionality in the App may be limited to the extent that the App uses those features.

4.7 Any Usage Data we collect will be owned by us. We will, and will ensure that any member of the Foodstuffs Group will, only use such Usage Data in an anonymised form and will be free to do so for any purpose, commercial or otherwise.

5. Your Obligations

5.1 You will:

(a) provide us with all necessary co-operation in relation to this Agreement so that we can provide you access to the App;

(b) comply with all applicable laws (including the Privacy Act 1993) and any third party terms you have agreed to (for example with your telecommunications service provider or the operator of the relevant Digital Platform) with respect to your use of the App and your activities under this Agreement;

(c) use the App in accordance with the terms and conditions of this Agreement and carry out all other of your responsibilities set out in this Agreement in a timely and efficient manner; and

(d) be solely responsible for:
(i) procuring and maintaining your network connections and telecommunications links from the device you use to access the App; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

5.2 You confirm that you have all the rights in relation to your Data that are necessary to grant us and members of the Foodstuffs Group the right to use it as set out in the terms of this Agreement and the New World Clubcard Terms and Conditions.

6. Intellectual Property Rights

6.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the App. Except as expressly stated in this Agreement, this Agreement does not grant you any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the App.

7. Warranties and Liability

7.1 You acknowledge that, except for those warranties or representations that cannot be excluded by law (including under the Consumer Guarantees Act 1993 and Fair Trading Act 1986), the App is provided on an “as is” basis and all representations, conditions or warranties in respect of the App (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded. 7.2 In particular and without limiting clause 7.1, we do not warrant:

(a) that your use of the App, or access to the App by way of any Digital Platform, will be uninterrupted or error-free;

(b) that the App can be accessed through any Digital Platform;

(c) that the App will meet your requirements;

(d) that the App will operate on all types of mobile devices; or

(e) that the App will be secure or free from Viruses.

7.3 You agree that, to the maximum extent permitted by law, we will not be liable to you for any form of loss or damage or injury, regardless of cause or origin, on any basis whatsoever, (including but not limited to breach of contract, warranty, negligence, strict liability in tort or otherwise), arising out of or in connection with this Agreement. If, notwithstanding the foregoing, we should have any liability to you for any form of loss or damage, then to the maximum extent permitted by law, our maximum aggregate liability to you will not exceed $10.

7.4 Without limiting clause 7.3, you agree that:

(a) to the maximum extent permitted by law, we will not be responsible for the loss, destruction or damage of your Data, however caused; and

(b) before using any data exported or otherwise retrieved from the App (including your Data) you will verify the accuracy, correctness and completeness of such data and will carry out your own assessment of the appropriateness of such data for the purpose for which you intend to use it and that we will not be responsible for any errors or omissions in such data, however caused.

7.5 Clauses 7.3 and 7.4 are subject to any rights you have under the Consumer Guarantees Act 1993 and Fair Trading Act 1986 that cannot be excluded by agreement between you and us.

7.6 You acknowledge that:

(a) we may rely on the provision of services by third parties (including Digital Platforms, data centre, electricity, telecommunications and outsourcing providers) in order to make the App available to you (Third Party Providers) and that the App may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers;

(b) to the maximum extent permitted by law, we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by Third Party Providers, including any delays, denial-of-service attacks, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet; and

(c) the App may contain links to other sites and resources provided by third parties, and that these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.

7.7 You will indemnify us against all costs, losses, expenses and damages incurred through any claims against us resulting from your use of the App.

8. Technical Protections

8.1 You acknowledge and agree that we may include in the App certain measures to:

(a) control your access to the App (or any part of it);

(b) prevent unauthorised copies; or

(c) attempt to prevent anyone from exceeding the limited rights granted under this Agreement. These measures may include incorporating product activation, licence management and other security technology in the App and monitoring usage of the App, including time, date and/or location controls, installation counters, registration or serial numbers, activation technology, and/or other security devices designed to prevent the unauthorised access, use, and copying of the App, and any breach of this Agreement.

8.2 You acknowledge and agree that we may monitor the use of the App at any time and collect any such data that we consider appropriate including IP and MAC addresses relating to the device(s) on which the App is accessed or installed.

8.3 You will not interfere with such access control measure or attempt to disable or circumvent such security features, and if you do, the App may not function properly.

9. Apple Device Terms (where applicable)

9.1 This clause 9 applies to you only if you use an Apple device (e.g.: iPhone, iPad, iPod Touch) to access the App. It does not apply to you if you do not use the App on an Apple Device.

9.2 You and us both acknowledge and agree that:

(a) this Agreement is concluded solely between you and us, and not with Apple, and Apple is not responsible for the App and the content thereof;

(b) any maintenance or support that may be offered by us in connection with the App is solely our responsibility and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;

(c) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and request a refund the purchase price (if any) you paid for the App through Apple’s App Store. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;

(d) Apple is not responsible for addressing any claims by you or any third party relating to the Software or your possession and/or use of the App. In the event of any third party claim that the App or your possession and use of it infringes that third party’s intellectual property rights you should contact us as Apple will have no responsibility for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;

(e) Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary;

(f) except as provided in clause 9.2(c), any questions, complaints or claims with respect to the App should be directed to us at the following address: PO Box 27480, Mount Roskill, Auckland 1440

9.3 You represent and warrant that:

(a) you are 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

(b) you are not listed on any U.S. Government list of prohibited or restricted parties.

10. General

10.1 This Agreement, and the New World Clubcard Terms and Conditions (in relation to the Clubcard loyalty programme), constitute the entire agreement between you and us in relation to the App and supersedes any previous understanding or agreements on that subject matter.

10.2 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.

10.3 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.

10.4 A party to this Agreement may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.

10.5 This Agreement is entered into by us on our own behalf and for the benefit of other members of the Foodstuffs Group and will, with any necessary modifications, be enforceable by each of them under the Contract and Commercial Law Act 2017, Part 2, Subpart 1 (such necessary modifications referred to in this clause to include those changes that will allow the relevant member of the Foodstuffs Group to benefit from the warranties and indemnities provided by you, and to exercise the rights granted to us in the same manner as if the relevant member is us).

10.6 This Agreement may be varied by us at any time. Unless otherwise stated, amendments to these terms will be effective upon notifying you of the changes through, or posting the changes on, the App (including by push notification), website, email, the Digital Platform we use to provide access to the App, or otherwise. You must ensure that you have read, understood and agree to the terms in this Agreement. You agree that your continued use of the App represents your agreement to be bound by the most recent terms.

10.7 You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent. Notwithstanding the forgoing, you may permanently transfer the App, all of your rights and obligations, and this Agreement directly to another person. Before the transfer, the other person must agree that this Agreement applies to the transfer and use of the App. You must uninstall the App before transferring it separately from the device, and permanently delete all copies and installations of the App in your control or possession. You may not retain any copies. You will be solely responsible for any taxes, fees, duties, withholdings, charges and assessments that may be due in connection with such transfer.

10.8 This Agreement will be governed by and construed in accordance with the laws of New Zealand.

10.9 Should you wish to take any action against us in respect of the App and/or this Agreement, you agree that any such action will be commenced only in the New Zealand courts, which courts will have exclusive jurisdiction over such actions and proceedings.