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

Agreement means this End User Licence Agreement;

Content Provider means the party offering Digital Content through the Software, which may be us or a third party;

Data means

• (a) data inputted by you for the purpose of registering to use, or using, the Software (if any); and
• (b) data generated by the Software or the device on which the Software is installed, but only to the extent that data is about you;

Digital Content means digitised content obtained through the Software, such as books, podcasts, videos and other content;

Digital Platform means a digital distribution, digital rights management, and/or digital media platform or service, including, the App Store and Google Play;

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;

Service means the provision of Software, Digital Content, support and any other services that we provide to you through the use of the Software;

Software means the MEASINA application software, any related documentation that we make available to you and any Updates;

Updates has the meaning set out in clause 3.1;

Usage Data means any data we may collect about the way in which you and other users use the Service 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 Measina Limited (Company No. 6016307) with its registered office at 58 Landscape Road, Papatoetoe, Auckland, 2025, New Zealand; and

you and your refers to you, the individual that installs the Software and uses the Service.

2.1 In respect of the Software offered to you as part of the Service, we grant you a non-exclusive, non-transferable, revocable right to access and use the Software 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 In respect of Digital Content offered to you as part of the Service:

• (a)upon your download of Digital Content and payment of any applicable fees (including applicable taxes) , we, or the applicable Content Provider, grant(s) you a non-exclusive, non-transferable, revocable right to view, play, use, or display such Digital Content, solely though our Software or as otherwise permitted as part of the Service, and 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; and
• (b)you acknowledge and agree that Digital Content is licensed, not sold, to you by the relevant Content Provider.

2.3 We will use reasonable endeavours to make the Service available to you on and subject to the terms of this Agreement.

2.4 If any part of the Service is downloaded or accessible through a Digital Platform, your use of the Service 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.

2.5 You:

• (a) will keep any logins, passwords and registration codes (together, Access Details) that are required for your access and use of any part of the Service confidential and ensure you are the only person to access and use the Service through use of the Access Details;
• (b) are fully responsible for all activities that occur under your account and agree to immediately change your password in the event of any breach of security;
• (c) acknowledge and agree that we may disable your login account or access to the Service if we discover that the Access Details have been provided to any third party;
• (d) will ensure that all your Data that you provide to us is true and correct and kept up to date for so long as you continue to use the Service;
• (e) will abide by the safety information, maintenance instructions or other relevant notices contained in the information that is included with the Service.

2.6 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 Service 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 Service;
• (b) access all or any part of the Service in order to build a product or service which is the same as or similar to the Service or which otherwise competes with the Service;
• (c) use the Service to provide services to third parties without our prior written consent, such consent may be subject to the payment by you of additional fees ;
• (d) remove, disable, circumvent or attempt to undermine the integrity of any security or technical measures, including any digital rights management system or other content protection or features used by us, that control access to:
  • (i) the Service; or
  • (ii) our, or any third party’s, systems, networks or resources used in the provision of the Service;
• (e) attempt to gain unauthorised access to any Digital Content, information or materials other than those to which you have been given express permission to access as part of the Service;
• (f) attempt to obtain, or assist third parties in obtaining, access to the Service;
• (g) export or re-export any part of the Service 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 Service;
• (i) transfer and/or make available any part of the Service through a local area network, file sharing network, or any other network;
• (j) access, store, distribute or transmit any Viruses through the Service, and we may, without liability to you, disable your access to the Service if you are in breach of this clause; and
• (k) rent, lease or lend any part of the Service to which you have access.

2.7 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify us.

2.8 We may terminate this Agreement if you breach any provision of this Agreement. If we terminate this Agreement you will immediately cease to use the Service, uninstall and remove all copies of the Software, Digital Content, and all of its component parts in your possession or control.

2.9 You may terminate this Agreement at any time by uninstalling and removing the Software and Digital Content from the device on which it is installed.

3.1 You acknowledge that we may provide updates, upgrades, patches and other modifications to the Software (together Updates) that must be installed for you to continue to use the Service properly or at all. You may be required to install Updates to the Software or to update or upgrade the device you use to access the Service or the operating system running on that device in order to continue to use the Service . Unless we specify otherwise, Updates will be provided at no cost.

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

3.3 We may at any time charge for use of the Service, and modify, discontinue or restrict access to the Service (or any part of it), temporarily or permanently with or without notice to you . To the extent permitted by law, you agree that we will not be liable to you or to any third party for any modification, discontinuance or restriction of the Service.

4.1 We acknowledge and agree that, except for the rights you grant us to use your Data under this Agreement, 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, we will not 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 regular basis.

4.3 In so far as 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. You acknowledge and agree that we will be permitted to share or disclose your Personal Information:

• (a) 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 Service business (whether as a going concern or otherwise); and
• (b) as agreed by you under this Agreement

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

4.4 You acknowledge and agree that we may use your Data for the purpose of:

• (a) providing the Service 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 Service (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 Service;
• (d) performing research and data analysis on an aggregated and anonymous basis; and
• (e) marketing our own and third-party products and services to you, where you have indicated, or otherwise agreed, that we may do so.

4.5 In addition to clause 4.4, you acknowledge and agree that:

• (a) we will be free to use your Data on an anonymous basis for any purpose, commercial or otherwise, including for data analysis and market research purposes, and that we will be free to provide such data and grant such use rights to our business partners and other third parties. The rights granted by you to us under this clause are perpetual and irrevocable; and
• (b) we may provide your Data to third parties, such as our business partners, for marketing purposes provided that we have obtained your specific consent to do so.

4.6 Any Usage Data we collect will be owned by us. We will only use such Usage Data in an anonymised form and will be free to do so for any purpose, commercial or otherwise.

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 Service;
• (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 Service and your activities under this Agreement;
• (c) use the Service 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;
• (d) be solely responsible for:
  • (i) procuring and maintaining your network connections and telecommunications links from the device you use to access the Service; 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 the right to use it as set out in the terms of this Agreement.

6.1 You acknowledge and agree that we, Content Providers, and/or our or their licensors own all Intellectual Property Rights in the Service. 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 Service.

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 Service is provided on an “as is” basis and all representations, conditions or warranties in respect of the Service (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 Service, or access to the Software as part of the Service by way of any Digital Platform, will be uninterrupted or error-free;
• (b) that the Service will meet your requirements;
• (c) that the Service will operate on all types of devices; or
• (d) that the Service will be secure or free from Viruses.

7.3 You agree that, to the maximum extent permitted by law, we or any Content Provider 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 (including your reliance or use of the Software and Digital Content). If notwithstanding the foregoing, we 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 the amount you have paid us for the Service.

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 Software (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, Digital Content, data centre, electricity, telecommunications and outsourcing providers) in order to make the Service available to you (Third Party Providers) and that the Service 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;
• (c) the Service 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; and
• (d) any opinions, advice, statements, offers, or other information or content expressed or made available by third party Content Providers of Digital Content are those of the respective Content Providers and not ours.

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 Service.

8.1 This Agreement constitutes the entire agreement between you and us in relation to the Service and supersedes any previous understanding or agreements on that subject matter.

8.2 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.

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

8.4 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.

8.5 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 Software (including by push notification), website, email, the Digital Platform we use to provide access to the Service, 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 Service represents your agreement to be bound by the most recent terms.

8.6 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.

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

8.8 Should you wish to take any action against us in respect of the Service 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.

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

9.2 You and we 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 Service and the content thereof;
• (b) any maintenance or support that may be offered by us in connection with the Service is solely our responsibility and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service;
• (c) in the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and request a refund the purchase price (if any) you paid for the Software 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 Service;
• (d) Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Software. In the event of any third party claim that the Software 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 Service should be directed to us at the following address:

  [[email protected]]

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.