Terms and Conditions
END USER LICENCE AGREEMENT
a) This End-User Licence Agreement ("EULA") is a legal agreement between You (the user) and Spinning Stars Limited (“Spinning Stars”) for the use of the Fix Coffee mobile application (“The App”), which allows You to pre-order goods supplied by participating businesses (“Vendors”).
b) The App may be made available through third party application stores by companies such as Apple Inc. and Google (“Provider(s)”).
c) This EULA is concluded between You and Spinning Stars ONLY and not with Apple, Google or any other Provider. Spinning Stars is solely responsible for The App and the content thereof.
d) The App, and its trade marks are owned and operated by Spinning Stars Limited (“Spinning Stars”). Fix and its trade marks are owned and operated by Number 8 Retail Group.
e) By downloading, installing, copying, or otherwise using The App (whichever occurs first), the user (referred to in this EULA as You or Your) agrees to be bound by this EULA.
f) Spinning Stars reserves the right to amend The App (including any of its functionality) and this EULA at any time. Any amendments made to this EULA will be effective immediately on them being available on the Spinning Stars website and/or via The App. You should check this EULA periodically for changes.
2. GRANT OF LICENCE
a) Spinning Stars grants You a non-transferable licence to download, install and use The App on any mobile device you own or control, in order for you to connect with Vendors via your mobile device to order goods and services provided by the Vendors (“Fix Coffee”).
b) The terms of this EULA will govern any upgrades provided to you that replace and/or supplement the then current version of The App, unless such upgrade is accompanied by a separate licence in which case the terms of that licence will apply.
a) To purchase goods through The App You must register to use The App and provide certain information (Personal Information) to Spinning Stars or its third party contractors via The App or a nominated website to enable Spinning Stars to provide you with the Fix Coffee services.
b) By registering and providing the Personal Information, You warrant that:
i) You will only provide current, accurate and up-to-date information and will continually update all Personal Information as required;
ii) The Personal Information that You provide to Spinning Stars is not false, misleading, fraudulent or defamatory and does not infringe the intellectual property rights of any third party; and
iii) You will keep Your registration username and password secure.
c) When you register with Fix Coffee, Spinning Stars will provide you with or confirm Your username and password/PIN code. You must keep these secure at all times.
d) Spinning Stars is not responsible for any activity (including purchases made through The App) that may occur as a result of the disclosure by You of Your registration details and/or password to third parties, or through unauthorised access to or use of Your Personal Information.
a) Spinning Stars is not the supplier of any Products that You purchase through The App. The App is designed to facilitate Your transaction with the relevant supplier (Vendor(s)).
b) By using The App you may be able to purchase goods or services (Products). These Products are advertised, promoted, offered, sold and/or supplied by third parties (Vendors).
c) Should a dispute arise between You and the Vendor, it must be resolved by You and the Vendor. Spinning Stars is under no obligation to resolve or assist You in resolving a dispute with a Vendor.
d) The Vendor(s) is entirely responsible for all Products made available and or purchased through The App. All disputes relating to the quality of Products and inquiries regarding refunds must be directed to the Vendor.
a) The data and information that You provide Spinning Stars, including but not limited to any Personal Information You submit for the purpose of registering with or otherwise using The App, may be used by Spinning Stars or its authorised third party contractors to:
i) Provide you with the Fix Coffee service (including by disclosing Your Personal Information to a Vendor(s) to the extent necessary to facilitate any purchase You place via The App);
ii) Customise any advertising or promotional material made available via Spinning Stars; and
iii) Contact You with information regarding Fix Coffee services and The App.
b) The App may log (and Spinning Stars may have access to) information about the mobile device or computer used to access The App (including Your IP address, operating system and browser type) and the date and time of access.
c) Spinning Starts may monitor Your use of The App and Startex Espresso services.
e) You may view, and if necessary, correct Your Personal Information at any time through The App or by contacting Spinning Stars.
f) You consent to the transfer of Your Personal Information if clause 9(d) of this EULA is relied on by Spinning Stars.
g) No data transmitted via The App can be guaranteed to be secure. Any information You submit using The App is done so at Your own risk.
6. PRICE AND ORDERING
a) All prices for Products are shown in New Zealand dollars, inclusive of GST where applicable, and are current at the time of display, in accordance with the information provided to Spinning Stars by the relevant Vendor.
b) Payment for Products must be made by You to the Vendor at the time of pick up.
c) Vendors will endeavour to have Your order ready upon your arrival, but in periods of high demand occur this may result in your order being delayed.
7. TERMINATION OF ACCESS
a) Spinning Stars reserves the right to terminate Your licence and access to The App or any part of The App at any time and for any reason including, but not limited to:
i) Failing to pick up and/or pay for Products ordered from Vendor(s);
ii) Breaching this EULA; and/or
iii) Misuse of The App in any way.
8. LIABILITY AND INDEMNITIES
a) Spinning Stars is committed to meeting its obligations under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and the Sale of Goods Act 1908.
b) You understand that using a mobile device while driving is dangerous and contrary to New Zealand road rules and The App should not be used while driving or riding.
c) If You have a complaint about the quality, fitness for purpose, price or description of any Product, Your right of redress is with the Vendor as supplier of the goods.
d) To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this EULA. Where legislation implies any condition or warranty, and that legislation prohibits Spinning Stars from excluding or modifying application of, or its liability under, any such condition or warranty, that condition or warranty will be deemed included but Spinning Stars’ liability will be limited for a breach of that condition or warranty to the minimum remedy provided for in that law.
e) Any warranties, whether express or implied by law, to the extent not already effectively disclaimed are the sole responsibility of Spinning Stars. In the event of any failure of The App to conform to any applicable warranty, You may notify the Provider, and the Provider will refund the purchase price for The App to You and to the maximum extent permitted by applicable law The Provider 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 are the sole responsibility of Spinning Stars.
f) Spinning Stars, not The Provider, is responsible for addressing any claims relating to The App or the Your possession and/or use of the 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;
iii) Claims arising under consumer protection or similar legislation.
g) If a supply by Spinning Stars under this EULA is a supply of goods or services to a consumer within the meaning of the Consumer Guarantees Act 1993 (“the Act”), nothing contained in this EULA excludes, restricts or modifies The Application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Act, provided that, to the extent that the Act permits Spinning Stars to limit its liability, then Spinning Stars’ liability shall be limited to:
i) In the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
ii) In the case of goods, the cost of replacing the goods or supplying equivalent goods.
h) You acknowledge that to the extent permitted by law Spinning Stars does not accept liability for any errors, omissions, expenses, losses or damages caused by:
i) Your access to and/or use of The App;
ii) Your use of The App while walking, driving or riding;
iii) Representations made by Vendors via The App (including where inaccurate information or material has been provided);
iv) Your purchase of any Products;
v) Your provision of Personal Information via The App; and/or
vi) Any failure in the networks or servers used to provide Spinning Stars.
i) As a condition of Your use of The App, You agree to indemnify and keep indemnified Spinning Stars and all of its officers, agents, employees or contractors (Personnel) against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Spinning Stars or its Personnel) that Spinning Stars or its Personnel may sustain or incur as a result, whether directly or indirectly, of:
i) Any breach of this EULA by You;
ii) Your access to and/or use of The App; and
iii) Any loss of, or damage to, any property, or injury to, or death of, any person (including You) caused by Your access to and/or use of Spinning Stars.
9. INTELLECTUAL PROPERTY RIGHTS
a) All copyright, trade marks and other intellectual property rights in Fix Coffee and The App and the information and material contained on The App is owned by or licensed to Spinning Stars. Trade marks and other rights used under license by Spinning Stars (for example, in advertising Vendors or Products) are used with permission and are owned by the relevant third party.
b) Except as permitted under the Trade Marks Act 2002, the Copyright Act 1994 or any other applicable law in the location from which You access The App, You may not adapt, reproduce, publish or distribute copies of any information or material found on The App in any form (including by e-mail or other electronic means), without Spinning Stars’ prior written consent.
c) In the event of any third party claim that The App or Your possession and use of The App infringes that third party’s intellectual property rights, Spinning Stars, not The Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
d) Any idea, improvement or functionality for the App sent or suggested to Spinning Stars by You is the sole property of Spinning Stars and You shall have no claim to ownership or be entitled to any royalties whatsoever.
a) By accessing and using Spinning Stars, You acknowledge and agree that any disputes in relation to Fix Coffee and The App are to be determined by the courts of New Zealand, in accordance with the laws of New Zealand.
b) Spinning Stars accepts no liability for any failure or delay in complying with this EULA where such failure or delay is due to circumstances beyond Spinning Stars’ reasonable control.
c) If Spinning Stars waives any rights available to it under this EULA on one occasion, this does not mean that those rights will be automatically waived on any other occasion. Waivers must be in written form and signed by Spinning Stars or its authorised representative.
d) If Spinning Stars sells or otherwise changes control of Spinning Stars, Fix Coffee services or The App Spinning Stars reserves the right, without giving notice to You or seeking any additional consent from You, to transfer or assign Your Personal Information and any other rights You have under this EULA.
e) If any of this EULA are held to be invalid, unenforceable or illegal for any reason, the remaining clauses and terms will nevertheless continue in full force.
f) If this EULA is less restrictive than, or in conflict with, the Usage Rules set forth for Licensed Applications by the Provider, the Provider’s Rules shall prevail.
g) To clarify, if this EULA is less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise in conflict with, the Apple App Store Terms of Service then the App Store Terms of Service shall prevail.
h) Spinning Stars is solely responsible for providing any maintenance and support services with respect to The App, as specified in this EULA, or as required under applicable law. You and Spinning Stars both acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to The App.
i) You expressly represent and warrant that:
i) 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
ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
j) You and Spinning Stars acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this EULA and that upon Your acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against You as a third party beneficiary thereof.
The Developer of this App is Spinning Stars Ltd and all correspondence should be directed to: firstname.lastname@example.org