Terms of Use

 
 

CAPITALISED WORDS AND PHRASES ARE DEFINED IN THE SECTION OF THE DOCUMENT ENTITLED "DEFINITIONS".

Big Space means Big Space Ltd (9429046964458) as registered with the NZ Companies Office, New Zealand, contactable at aucklandfoodtruckfinder@bigspace.co.nz

User means the App Downloader


1. Agreement

Big Space grants User a right to use the Service subject to the terms and conditions of the Agreement.

2. Age Restrictions

By agreeing to these terms the User promises that he or she either:

a) is over 18 years of age.

b) has the consent of a parent or legal guardian to use this application.


3. App store

Big Space and User agree to the additional App Store Terms in relation to the Service.


4. App Use

User agrees that they will be responsible for any use of their App Instance, even if the App Instance is used in an unauthorised way by any other person.

The Parties agree that a breach of any clause within the Agreement gives Big Space the right to immediately suspend User's access to the Service until Big Space is reasonably satisfied that the use breaching this clause will be discontinued.


5. Privacy

  • Big Space will store and use the Personal Information of User in accordance with privacy law.

  • User is responsible for its own compliance with privacy law. 

  • Big Space does not promise that User's use of the Services complies with privacy law.

  • Personal Information of User will be subject to our Privacy Policy.


6. Agreement creation

User agrees to the terms of the Agreement by manifesting acceptance of them using the clickwrap procedure on the App.


7. Agreement changes

The Most current form of the Agreement is located at this url: ( https://www.aucklandfoodtruckfinder.com/terms ). Big Space may change the Agreement by notifying User within the App prior to the date from which the changes will become effective. We will update the revision date at the beginning of the Agreement if and when a change to the Agreement occurs. 

If User does not agree to the Agreement changes, User must cease using the Services.


8. Intellectual Property Protection

  • The App and its content including the logo and all designs, text, graphics, pictures, information and other content (including content uploaded or generated by Vendors) is owned by Big Space, Big Space’s licensors, Vendors and it is protected by New Zealand and international copyright laws.

  • User understands that unless Big Space expressly states, User does not have the rights to:

    • publicly perform or publicly display the Service

    • modify or otherwise make any derivative uses of the Service or any portion thereof

    • use any data mining, robots or similar data gathering or extraction methods

    • access the Service in order to build a competitive product or service

    • use the Service other than for its intended purposes

  • Big Space reserves the right to alter any element of the Product IP at its discretion.

  • User agrees not to reverse engineer any part of the Product IP.

  • No licence or right is granted over any intellectual property in the Product IP unless explicitly described in the Agreement.

  • User does not have any right to resell or sub-licence the Product IP unless the Agreement explicitly provides otherwise.

  • If User provides Feedback to Big Space, User Transfers Intellectual Property Ownership in the Feedback (and any resulting enhancements to the Service) to Big Space.


9. Acceptable content

  • User agrees to use the Service in accordance with the law at all times and only in ways that the Service was designed to be used.

  • User agrees not to use the Service to communicate or store any Prohibited Information.

  • User agrees not to use the Service such that the use interferes with Big Space's ability to provide the same service to other parties.


10. Third-Party Services

From time to time, Big Space or Vendors may provide the User with links to third party websites or services that Big Space do not own or control. User’s use of the Service may also include the use of applications that are developed or owned by a third party. User’s use of such third party applications, websites, and services is governed by that party's own terms of service or privacy policies. Big Space encourage the User to read the terms and conditions and privacy policy of any third party application, website or service that User visits or uses.

Big Space makes no claim or representation regarding, and accepts no responsibility for third party websites accessible by link from the Service or websites linking to the Service. When the User leave the Service, the User should be aware that these Terms and our policies no longer govern.


11. Vendor Content

If there is any content on the Service created or generated by Vendors, Big Space do not review, verify or authenticate it, and it may include inaccuracies or false information. Big Space makes no representations, warranties, or guarantees relating to the quality, suitability, truth, accuracy or completeness of any content contained in the Service. The User acknowledges sole responsibility for and assumes all risk arising from their use of or reliance on any content. Big Space is not an agent or representative of any Vendor.


12. User Services Changes and Fees

Use of Services by Users is currently free. Big Space reserves the right to add, change or remove any fees that may exist at any time, provided that Big Space provides User with 7 days notice to have the chance to cease using Services. Big Space may discontinue or change Services at any time.


13. Exclusion of warranty

Big Space supplies it's Services 'as is' without any warranty or condition. Big Space shall be excluded from any such warranty or condition, whether implied, statutory, or express.


14. Exclusion of liability

Under no circumstances will Big Space be liable to the User in statute, contract, tort, equity, regulation or otherwise for any loss or damage of any kind.


15. Limitation of liability

The amount User can claim from Big Space in relation to the Agreement, Services and Products (including for any Example Limitation Risks) is Limited To The Legal Minimum.


16. Covering costs

User will Cover Direct Losses of Big Space arising from the risks described below, to the extent such losses are caused by the conduct of User.

Risks from data, including:

  • breaches of privacy or data protection law;

  • breach of any law in connection with spam;

  • third party loss from the storage of third party data; and

  • an individual pursuing a right under privacy or data protection law connected with conduct,

  • by Indemnifier in connection with the Agreement.

Risks from intellectual property, including:

  • infringement of third party intellectual property; and

  • any third party claim or legal action for intellectual property infringement connected with conduct,

  • by Indemnifier in connection with the Agreement and Services.

Risks from people and property, including:

  • death or injury connected with conduct; and

  • property damage connected with conduct,

  • by Indemnifier in connection with the Agreement and Services.

Risks from the Agreement, including:

  • negligence;

  • third party reliance on the Agreement and Services resulting from conduct;

  • any act or omission; and

  • breaches,

  • by Indemnifier in connection with the Agreement and Services.


17. Information and Reliance

  • Big Space does not promise that any Service Content is complete or correct.

  • User agrees that it should verify any Service Content before relying on it in any way.

  • Big Space may change the Service Content at its discretion without any warning or notification to User.

  • To the extent that Service Content is third party advertising or third party generated content, User agrees that Big Space does not endorse the third party advertiser / content generator or any of its information, products or services.

  • Big Space does not inspect, verify, endorse or warrant any Vendor or their products or services. 

  • User Agrees that it is the sole responsibility of the Vendor to comply with any laws and regulations that may pertain to the Vendor or its operation in any way. 

  • User agrees not to hold Big Space liable for any Cost, Consequential Loss or injury resulting from the use of any Products, Services or Information made available through the App.

19. Boilerplate

  • Defined words and phrases are capitalized. Clauses with defined phrases will be read in such a way that the rights and obligations described by the defined phrase are incorporated by reference into the clause.

  • The text in a defined phrase is for convenience only and is not legally effective, however, the operation of the rights and obligations in the definition of the defined phrase will be determined by the other words in the clause incorporating the defined phrase.

  • The parties submit to the exclusive jurisdiction of the courts of New Zealand and the governing law of the Agreement will be the law of that country.

  • The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.

  • The Agreement will apply retrospectively to anything provided by Big Space to User within the scope of the Agreement prior to the commencement of the Agreement, unless the parties agree otherwise in writing.

  • The parties agree to:

    • the Boilerplate Provisions; and

    • the Interpretation Principles.


Definitions

Account, Accounts

means a digital account used by User for the purpose of the Services.


Agreement, Agreements

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.


App

means Auckland Food Truck Finder (AFTF) app created by Big Space


App Instance

means the installation of the App, on the device that it was downloaded on, by the App Downloader.


App Downloader

means the party in the Agreement using the mobile device application.


App Runner

means the party in the Agreement providing the mobile device application.


App Store Owner

means the owner of the application store from which User acquired the Service, whether that be the Apple App Store, the Google Play store or another analagous application store.


App Store Terms

The Agreement is between App Runner and App Downloader only.

App Runner and not the App Store Owner is responsible for the App, and App Runner is solely responsible for:

support and maintenance;

the investigation, defence, settlement and discharge of any claim that the authorised use of the App infringes third party intellectual property rights;

any claim that the App fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.

The App Store Owner's liability to App Downloader is limited to the refund of the purchase price of the App paid by App Downloader. The App Store Owner will have no other liability to App Downloader in relation to any other claims or liabilities with respect to the App.

The App Store Owner is entitled to enforce the terms of the Agreement against App Downloader and App Downloader agrees to submit to the App Store Owner's legitimate enforcement.

App Downloader's right to use the App is non-transferable and non-sublicensable, except to the extent that the App Store Owner permits family sharing or like sharing arrangements.

If there is any inconsistency between the Agreement and the application usage rules set out in the App Store Owner's terms of service, the App Store Owner's terms of service will prevail to the extent of the inconsistency.

If App Downloader purchased the App from the Apple app store, App Downloader may only use the App on Apple branded products in accordance with the usage rules in the Apple App Store terms of service.

The App Store Owner may monitor App Downloader's use of the App.

If App Downloader uses any third party service in the course of accessing or using the App, App Downloader must comply with applicable third party terms and conditions.


Assignee, Assignees

means the party receiving ownership of the Intellectual Property Rights in the Provision.


Assignor, Assignors

means the party transferring ownership of the Intellectual Property Rights in the Provision.


Boilerplate Provisions

Entire agreement

If User is not a Vendor Account Owner this constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all previous agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between the parties regarding the subject matter.


If User is a Vendor Account Owner this document in addition to the Vendor Terms constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all previous agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between the parties regarding the subject matter.


No waiver

No failure or delay on the part of any party in exercising any right or remedy provided in this agreement will operate as a waiver thereof or preclude any exercise thereof, or the exercise of any other right or remedy provided under this agreement, or otherwise available at law or in equity.


Cumulative remedies

Except if expressly provided herein, no remedy specified in this agreement is intended to be exclusive of any other remedy, and each remedy will be cumulative, in addition to every other right or remedy provided herein, or otherwise available at law or in equity.


Severance

To the extent that any term, provision or part of this agreement is held invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of this agreement will not be impaired or affected, and will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by law.


Survival

Any provision of this agreement that contemplates performance or observance subsequent to termination or expiration of this agreement (including confidentiality and data protection, limitation of liability, indemnification provisions and perpetual licenses) will survive termination or expiration of this agreement, and will continue in full force and effect thereafter.


Communication, Communications

means any contractual communication in connection with the Agreement.

Compulsory Condition, Compulsory Conditions

means any condition, warranty or guarantee that the law does not permit to be waived, limited or excluded 


Consequential Loss, Consequential Losses

means any kind of consequential, special, incidental or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive, reliance or exemplary loss or damages.


Cost, Costs

means any cost, expense, loss, damage, claim, demand, proceeding, judgment, settlement, lawyer or attorney's fees, court cost, or other liability, whether arising under contract law, tort law, legislation or otherwise.


Cover All Costs

Application of indemnity

The Indemnities are subject to the application of any Compulsory Conditions.

To the fullest extent permitted by the law, the Indemnifying Party will indemnify, defend, and hold harmless the Indemnified Party and its directors, employees, agents and assigns, for all Costs claimed against or suffered by them which arise from or relate to, in whole or in part, any of the Indemnified Risks, with the exception of a loss which is caused by the sole negligence of the Indemnified Party.

Scope of Indemnities

The Indemnified Party must use reasonable endeavours to mitigate any Cost that arises that is subject to an Indemnity.

The Indemnity will not apply to Costs that are the subject of an Indemnity Exception, to the extent of that Indemnity Exception.

The Indemnifying Party will and has the right to assume the defense for any Indemnity with counsel of its selection, subject to the approval of the Indemnified Party (not to be unreasonably withheld, delayed or denied).

In the event there is a good faith dispute concerning the Indemnifying Party's responsibility to indemnify, the Indemnifying Party may, but is not obligated to, assume the defense of the Indemnity while reserving its rights to seek reimbursement for all expenses incurred in defending, resolving or discharging the Indemnity, so long as the grounds for reserving such rights are set forth in a writing delivered to the Indemnified Party prior to the Indemnifying Party's assumption of the defense.

An Indemnified Party whose tender of defense has not been accepted after providing the obligated Indemnifying Party a reasonable opportunity to investigate the facts and circumstances underlying the Indemnity will have the right to defend and settle such Indemnification at its sole discretion without prejudice to any of its rights against the Indemnifying Party.

Separate Indemnities

Each Indemnified Risk described in the Provision will give rise to a separate indemnity in relation to that Indemnified Risk on the terms and conditions in the Module.

Indemnity Details

Any Indemnity created by the Provision:

will survive the termination of the Agreement; and

will be additional to any common law indemnification obligations and contractual damages that the Indemnified Party might otherwise be entitled to claim.

Unless otherwise stated in the Provision, the Indemnified Party and Indemnifying Party agree that the Indemnified Party may make a claim under any Indemnity before any liability is crystallized, loss sustained or cost incurred.


Example Limitation Risk, Example Limitation Risks

means any liabilities arising from the risks described below.




Risks from software and network, including:


  • digital security issues like software vulnerabilities;

  • software in a testing phase like (or analogous to) beta and alpha software;

  • software or network that's inaccessible for any reason;

  • faulty technical data created by software;

  • the use of software for unlawful activity; and

  • failure of any software, hardware or network components provided by a third party.

  • Risks from intellectual property, including:

    • risks relating to infringement of third party intellectual property; and

    • any third party claim or legal action for intellectual property infringement.

  • Risks from the Agreement, including:

    • negligence connected with the Agreement and its subject matter;

    • third party reliance on the subject matter of the agreement;

    • any act or omission connected with the Agreement;

    • any delay connected with the Agreement; and

    • breaches of the Agreement.

    • Feedback

    • means any comments or suggestions on the Service by User resulting from use of the Services by User.


Indemnified Party, Indemnified Parties

means the party who is indemnified under the Provision.


Indemnified Risk, Indemnified Risks

means the areas of risk or potential liability described in the Provision.


Indemnifying Party, Indemnifying Parties

means the party providing the Indemnity under the Provision.


Indemnity, Indemnities

means any indemnity, obligation of defense, or requirement to hold harmless the Indemnified Party created via the operation of the Provision, the Module and/or the operation of the law.

Indemnity Exception, Indemnity Exceptions

means any exception described in the Provision to any Indemnity, Indemnities or Indemnified Risk.

Intellectual Property Right, Intellectual Property Rights

means, with the exception of moral rights and other inalienable rights, all right, title and interest in each of the following, in New Zealand and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:

  • copyrights;

  • trademarks;

  • trade names, brand names or indications of source, appellation or origin;

  • inventions including patents, utility patents, design patents, plant patents, reissue patents, defensive publications, and statutory inventions regulations;

  • trade secrets, including formulas, patterns, compilations, programs, devices, methods, techniques, or processes;

  • registered or unregistered inventions including patents,

  • mask works or integrated circuit layout designs and topography;

  • registered or unregistered designs;

  • rights in databases;

  • plant variety and plant breeder rights;

  • domain name registrations;

  • confidential information;

  • works of authorship;

  • tangible media;

  • know how;

  • any application for the registration of any of the above, and any rights to make such an application;

  • any other intellectual property rights rules, regulations, ordinances, statutes, codes, or laws;

  • any right to take action to enforce any of the above rights; and

  • any license from a third party to use any of the above.


Interpretation Principles

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:


Parties

a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party.

any reference to a trustee includes any substituted or additional trustee.


Grammatical Forms

where a term is defined, other grammatical forms of that term will be taken to have the same meaning.

"including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context.

"$" means the New Zealand dollar.


Documentation

headings and tables of contents are for convenience and will not affect interpretation.

article or section references are to articles or sections of the document in which the reference is contained.

references to numbered articles or sections of this Agreement also refer to and include all subsections of the referenced article or section.


Language

this Agreement is intended to be interpreted in the English language.

all versions of this Agreement in any other language will be for accommodation only, and will not be binding upon the parties to this Agreement.

all communications, notices, and other documents to be made, given, or approved pursuant to this Agreement will be in the English language.


Construction

the terms and conditions of this Agreement are the result of negotiations between the parties to this Agreement.

the parties intend that this Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation or drafting of this Agreement.


Rights and Obligations

a reference to a party's conduct includes omissions as well as acts.

if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.

"may" means "has the right", but not the obligation to do something and "may not" means "does not have the right to do something".

"will" are expressions of command, not merely expressions of future intent or expectation.


Binding version of the Agreement

If the Agreement is signed on Codepact.com, the version displayed on the '/pact' (or future equivalent) route of the Codepact interface will take precedence over any other version on the interface.

To the extent of any inconsistency between the signed version on the Codepact interface and any other embodiment of the agreement (like email), the Codepact.com version will take precedence.

Limitation Exception, Limitation Exceptions

means the exception to the limitation of liability in the Module that the Provision may or may not describe.


Limitation Risk, Limitation Risks

means the risks that may give rise to a claim, theory, or cause of action upon which may rest or flow potential liability described in the Provision.


Limitation Subject, Limitation Subjects

means the subject(s) of the limitation of liability in the Provision (if any).


Limited Party, Limited Parties

means the party whose ability to recover Costs is limited by the limitation of liability in the Provision.


Limited To The Legal Minimum

Limited Party deals with the Limiting Party in respect of the Limitation Subject at its own risk. To the fullest extent permitted by law, Limiting Party excludes all liability (including Consequential Loss) to Limited Party for any liabilities connected directly or indirectly with the Limited Party and Limiting Party dealings in relation to the Limitation Subject, including liabilities based on:

  • contract law;

  • tort law;

  • common law; or

  • legislation,

  • and including liabilities caused by the Limitation Risks.


Some jurisdictions do not allow the limitation or exclusion of liability for certain kinds of Consequential Loss so some of the above limitations may not apply.

Where there is a Limitation Exception, this limitation of liability does not apply to the subject of the Limitation Exception.


Indemnities not limited

The foregoing limitation of liability will not apply to indemnities given by Limiting Party to Limited Party under the Agreement.


Implied Conditions

To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the Limiting Party and the Limited Party in respect of the Limitation Subject are excluded from the Agreement.


Limiting Party, Limiting Parties

means the party relying on the limitation of liability in the Provision.


Module

means the module of terms and conditions imported with a defined phrase by the relevant Provision.


Personal Information

means any information that is categorised as "personal information" under privacy law.



Product IP

means the intellectual property in the Services provided.


Prohibited Information

means information:

  • that could reasonably be considered racist or hate speech;

  • that infringes the intellectual property rights of a third party;

  • to harass any third party;

  • that is pornographic in nature;

  • that could reasonably be categorised as "malware"; or

  • that is unlawful.


Provision, Provisions

means, in relation to a particular instance of a defined phrase, the provision in the Agreement that uses the defined phrase.

Service, Services

means the services provided by Big Space to User, including:

Use of the App and any features relating to the App accessible by User.


Service Content

means any information, content or data provided with or in association with the Services.


Transfer Exception, Transfer Exceptions

means the exception to the transfer of Intellectual Property Rights.


Transfer Intellectual Property Ownership, Transfers Intellectual Property Ownership

Assignor assigns all current and future Intellectual Property Rights in the Transfer Subject to Assignee.

The assignment is worldwide unless the Provision specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.

Assignor warrants and represents to Assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the Assignee's legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.

Assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.

Where there is a Transfer Exception, the transfer of Intellectual Property Rights in the subclauses above will not apply to the subject of the Transfer Exception.


Transfer Subject, Transfer Subjects

means the subject(s) of the transfer of Intellectual Property Rights in the Provision.


Vendor, Vendors

means any company or person with the ability to produce content and/or display their location, or information within the App. 


Vendor Account Owner, Vendor Account Owners

means any company or person who has been granted ownership of a Vendor Account by the Auckland Food Truck Collective.