Terms of use
Effective from 1 August 2019
These Terms (the “Terms”) set out the general terms governing your use of Electric Kiwi's website (the "Website") or any Electric Kiwi app (the “App”).
1. Application of these terms
1.1
By accessing this Website or downloading, installing and using any App, you agree to be bound by these Terms.
1.2
The Terms may be updated from time to time without notice. If at any time you do not agree to these Terms, please refrain from using the Website or uninstall the App. If you continue to use the Website or App after any changes are made to these Terms, then you will be deemed to have agreed to those changes.
2. Privacy
2.1
We will comply with our Privacy Policy. By using our Website or App, you accept this policy as the way in which we collect, hold and manage your personal information.
2.2
By installing the App or logging into the Website or App, you confirm that you are the account holder or are authorised by the account holder to access the account details. You will need to confirm some personal information so that we can verify your identity. It is important that this personal information and any other information you give us is correct and that you tell us if there is any change to it. If you don't supply us with this information, you may not be able to use the Website or App.
3. Confidentiality & Security
3.1
It is your responsibility to keep your login details and information about your account confidential. You agree to accept responsibility for all activities that occur under your account and to notify us immediately of any unauthorised use of your account or any other breach of security. We reserve the right to take any action we deem appropriate upon receiving notification from you of unauthorised use of your account or a breach of security.
3.2
The physical security of your device is your responsibility and you are responsible for ensuring the security of the personal information held on your mobile or other device.
3.3
You must also always adhere to the relevant manufacturer's software and support requirements to ensure your devices are covered by the latest software and security updates.
3.4
If you are connecting to the Website or App via a wi-fi network, you must always use a trusted network.
4. Cancellation of your account
4.1
You are entitled to cancel your account with us by giving us prior written notice in accordance with our general Terms and Conditions. Following a valid termination of your agreement with us and cancellation of your account, your account will be deactivated or deleted.
5. Links
5.1
The Website or App may contain links to external websites or resources. These links are provided for your convenience and the inclusion of them on the Website or App does not mean that we endorse those sites or resources. We accept no responsibility or liability in relation to any content or security of any other website or resource, and you acknowledge that you access them at your own risk.
6. Copyright
6.1
The Website and App are comprised of underlying code and software and may include at any given time video clips, sound clips, text, graphics, logos, images, icons and data (together, the " Content"). The Content is the property of Electric Kiwi, our affiliates or third parties with whom we do business.
6.2
You may not modify, copy, distribute, transmit, display, publish, sell, license, create derivative works of, or use any of the Content available on or through the Website or App for commercial or public purposes, unless otherwise indicated on the Website or App or unless we have given you express written permission to do so.
7. Disclaimers
7.1
With the exception of the specific promises we make in separate agreements to which you are a party and in addition to disclaimers contained elsewhere our general Terms and Conditions, you understand and agree that:
- Your use of the Website and App and its content is at your own risk.
- The Website and App are provided "as is" and on an "as available" basis. We make no warranty or representation that the Website and App will meet your requirements, that it will be of satisfactory quality, that it will be fit for a particular purpose, that it will not infringe the rights of third parties, that it will be compatible with all systems, that it will be secure or that all information provided will be accurate.
- We make no guarantee of any specific results from the use of the Website or App.
- While we do our best to ensure the Website and App are secure, we provide no warranty or guarantee that the Website and App are free of viruses, malicious computer code or other forms of interference that may damage your computer or any other device, or that access to the Website and App will be uninterrupted, timely or secure.
- Your use of the Website, App and Services may be subject to delay or interruption. We accept no liability for any disruption or non-availability of the Website or App due to maintenance, technical or operational requirements or where this results from external causes including, but not limited to, Internet Service Provider equipment failure, host equipment failure, communications network failure, power failure, natural events or legal restrictions and censorship. We may also restrict or block your access to and use of our Website or App at any time if we reasonably believe that you may have breached any provision in these Terms, or used the Website or App in breach of any legislation, for any unlawful act, or to damage or disrupt any online service offered by us.
- We may vary the information, change or remove functionality and issue new versions of the Website or App at any time without notice. If you do not update the App with the latest version, some or all of that App’s functionality may not be available to you, and the security of your information may be compromised.
8. Limitation of liability
8.1
To the maximum extent permitted by law, Electric Kiwi:
- excludes all warranties and liabilities (including any consequential loss) that may apply to your access and use of, and your attempted access and use of, the Website and App;
- is not liable to you for any damage or alteration to your electronic device (including any data stored in your electronic device) as a result of the installation or use of any App; and
- is not in any other way liable to you for any loss or damage of any nature arising from your use of the Website or App or any information contained in them.
8.2
Electric Kiwi will not be liable to you in the event that any loss or damage you suffer could have been avoided by you installing the latest version of any App.
8.3
Nothing in these Terms excludes, limits or modifies a consumer's rights under the Consumer Guarantees Act 1993.
9. Indemnity
9.1
You indemnify Electric Kiwi and agree to keep Electric Kiwi indemnified against all claims, damages, actions, proceedings, expenses (including legal costs) losses and liabilities (including all fines, penalties and other charges) whether in contract, under statute, in tort (including negligence) (Liabilities) which Electric Kiwi suffers or incurs arising directly or indirectly from any use of the Website or App by you or by any person through your mobile device (including unauthorised use if you have failed to comply with these Terms).
10. Electronic Communications
10.1
You consent to receiving communication from us electronically and you agree that all agreements, notices and disclosures satisfy any legal requirement that such communication be in writing. You agree for the purposes of the Electronic Transactions Act 2002 to be bound by any agreement reached through electronic means.
11. Linking to our site
11.1
You may not in any way link to our Website or App without our prior written consent. If you wish to link to our Website or App or make use of its content, please send a request via the ‘contact us’ link on our website. We reserve the right to withdrawal any linking without notice.
12. No waiver
12.1
If we do not exercise or enforce any right available to us under these Terms, it does not in any way constitute a waiver of those rights.
13. Severability
13.1
If any provision of these Terms becomes or is held to be invalid, unenforceable or illegal for any reason, that provision shall be severed from the remaining Terms and Conditions, which shall continue in full force and effect.
14. Governing law
14.1
These Terms shall be governed by New Zealand law, and you submit to the exclusive jurisdiction of the New Zealand courts for any matter or dispute arising in relation to these Terms.
15. Communication
15.1
If you have any questions or concerns relating to these Terms, please contact us via the ‘contact us’ link on our website.
16. App Specific Terms
16.1
There are no additional charges for downloading any App. You may incur charges from your mobile network operator for downloading and using any App. Check with your operator for details of those charges.
16.2
We may enhance, update or upgrade any App from time to time. If you do not install the latest release, then some of the functionalities may not properly work.
16.3
You may stop using any App at any time by logging out of the App and uninstalling the App. Once you have uninstalled the App, the rights and licenses granted to you under these Terms will end.
16.4
For the iPhone versions of any App:
- Subject to these Terms, we are solely responsible for any App, and Apple Inc. is not responsible for any App in any way. You are given a non-transferable license to use any App on your mobile device in accordance with these Terms and the Apple Usage Rules in the Apple Store Terms of Service.
- To the maximum extent permitted by law, Apple Inc. has no warranty obligations whatsoever with respect to any App. You agree that we, and not Apple Inc., are responsible for the following things:
- Addressing any claims by you or a third party in relation to any App, including but not limited to, product liability claims, claims that any App fails to conform to legal or regulatory requirements or consumer protection claims;
- Investigating any claim that any App breaches third party intellectual property rights, and for defending, settling or discharging such claim; and
- Maintenance and support services for any App.
- You warrant that you are not located in a country that is subject to a US Government embargo or is designated by the US Government as a 'terrorist supporting' country, and you are not listed on any US Government list of prohibited or restricted parties.
- You agree that Apple Inc. and its subsidiaries are third party beneficiaries of these Terms and that Apple Inc. has the right to (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
- iPhone and the App Store are trademarks of Apple Inc., registered in the US and other countries.
16.5
For the Android versions of any App:
- Subject to these Terms, we are solely responsible for any App, and Google is not responsible for any App in any way. You are given a non-transferable license to use any App on your mobile device in accordance with these Terms and the terms of service and policies applicable to your use of Google Play.
- You warrant that you are not located in a country that is subject to a US Government embargo or is designated by the US Government as a 'terrorist supporting' country, and you are not listed on any US Government list of prohibited or restricted parties.
