Last updated Feb 12, 2024
These terms and conditions of use (“Terms of Use”) govern constitute a legally binding agreement made between you and Andark Holdings Limited, doing business as Total Coach ("Total Coach," “we," “us," or “our”), concerning your access to and use of the https://totalcoach.com website (“Website”) and the Total Coach sports coaching mobile application(s) (“App”) as well as any other media form, media channel or mobile website related, linked, or otherwise connected thereto (collectively with the Website and App, the “Services”) provided or operated by Andark Holdings Limited, doing business as Total Coach ("Total Coach," “we," “us," or “our”). We are registered in New Zealand and have our registered office at Unit A, Building 1, 100 Bush Road, Rosedale, Auckland 0632. Our VAT number is 090-409-700.
You are only permitted to access and use the Services if:
you read, understand and agree to these Terms Of Use; or
you are under the age of 18, your parent or legal guardian has read, understood and agreed to these Terms Of Use.
You agree that by setting up an account to use the Services on your or your child’s behalf, clicking [I agree] when setting up an account to use the Services, accessing and/or using the Services, or allowing your child to access or use the Services:,
you have read, understood, and agreed to be bound by all of these Terms of Use;
where you are setting up an account to use the Services on your child’s behalf or you allow your child to access or use the Services, your child’s access and use of the Services is bound by these Terms of Use, and you are responsible for ensuring that your child complies with these Terms of Use; and
where your access and use is on behalf of an entity (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms of Use on that entity’s behalf and that, by agreeing to these Terms of Use on that entity’s behalf, that entity is bound by these Terms of Use.
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING, OR ALLOWING YOUR CHILD TO USE, THE SERVICES AND YOU MUST DISCONTINUE USE, AND (IF APPLICABLE) ENSURE THAT YOUR CHILD DISCONTINUES USE, IMMEDIATELY.
Where your access and use of the Services is on behalf of an entity (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that entity’s behalf and that, by agreeing to these Terms on that entity’s behalf, that entity is bound by these Terms, and In the remainder of these Terms, references to “you” in these Terms means:
if you are setting up an account to use the Services or accessing or using the Services on your own behalf, you;
if you are setting up an account for your child to use the Services or have allowed your child to access or use the Services, both you and your child;
if clause 1.3c applies, both you and that the entity on whose behalf you are acting.
Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use and/or (where you are using the App) by posting a notice within the App, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms of Use every time you use our Services so that you understand which Terms of Use apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Services after the date such revised Terms of Use (or notice of revised Terms of Use) are posted.
The Services and information provided via the Services are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Services are not tailored to comply with industry-specific laws or regulations (e.g. laws or regulations specific to health, banking or government), so if your interactions would be subjected to such laws, you may not use the Services.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the Services. If you are a minor, you must have your parent or guardian read and agree to these Terms of Use prior to you using the Services.
Unless otherwise indicated, the the Services are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Services (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by applicable copyright, trade mark, intellectual property rights and unfair competition laws and international conventions. The Content and the Marks are provided on the Services “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Services, and no Content or Marks, may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
We reserve all rights not expressly granted to you in and to the Services, the Content and the Marks.
By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Services; (5) you will not access the Services through automated or non-human means, whether through a bot, script, or otherwise; (6) you will not use the Services for any illegal or unauthorized purpose or in a manner that breaches any third party right (including intellectual property rights, privacy rights and publicity rights); and (7) your use of the Services will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
You may be required to register in order to use the AppServices. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by us.
As a user of the Services, you agree not to:
Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
Use any information obtained from the Services in order to harass, abuse, or harm another person.
Make improper use of our support services or submit false reports of abuse or misconduct.
Use the Services in a manner inconsistent with any applicable laws or regulations.
Engage in unauthorized framing of or linking to the Services.
Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
Delete the copyright or other proprietary rights notice from any Content.
Attempt to impersonate another user or person or use the username of another user.
Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing the Services to you.
Attempt to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services.
Copy or adapt the Services’ software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services.
Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or using or launching any unauthorized script or other software.
Use a buying agent or purchasing agent to make purchases on the Services.
Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretences.
Use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavour or commercial enterprise.
Use the Services to advertise or offer to sell goods and services, except those that are specifically endorsed or approved by us.
Sell or otherwise transfer your profile.
The Services may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Services, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Services and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to use your Contributions in any manner contemplated by the Services and these Terms of Use.
You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Services and these Terms of Use.
Your Contributions are not false, inaccurate, or misleading.
Your Contributions are not unsolicited or unauthorised advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libellous, slanderous, or otherwise objectionable (as determined by us).
Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
Your Contributions do not violate any applicable law, regulation, or rule.
Your Contributions do not violate the privacy or publicity rights of any third party.
Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
Any use of the Services in violation of the foregoing violates these Terms of Use and may result in, among other things, termination, or suspension of your rights to use the Services.
By posting your Contributions to any part of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights, or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Services. You are solely responsible for your Contributions to the Services and you expressly release us from any and all responsibility and agree to refrain from any legal action against us, regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Services; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
The Services may allow you to upload or input data, content, or information into, or generate data, content or information using, the Services (such data, content and information collectively, “Data”).
You acknowledge that we may require access to Data to exercise our rights and perform our obligations under these Terms and, to the extent that this is necessary but subject to us maintaining the confidentiality of Data, we may authorise our employees or agents to access Data for this purpose.
You must arrange all consents and approvals that are necessary for us to access Data as described in clause 8.28.2.
You acknowledge and agree that:
we may:
use Your Data and information about your use of the Services to generate anonymised and aggregated statistical and analytical data (“Analytical Data”);
use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
supply Analytical Data to third parties;
our rights under clauses 8.48.4aiiaii and aiiiaiii will survive termination or expiry of these Terms of Use; and
title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
You acknowledge and agree that to the extent Data contains information about an identifiable individual (including personal information, personal data, personally identifiable information and equivalent information as defined under applicable privacy and data protection laws) (collectively, “Personal Information”), in collecting, holding and processing that information through the Services, we are acting as a data processor and/or service provider and/or as your agent for the purposes of applicable privacy and data protection laws. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms of Use. If the processing of that information is governed by the General Data Protection Regulation of the European Union or the equivalent laws of the United Kingdom, the additional terms in the GDPR Data Processing Addendum at [insert url] (“Data Processing Addendum”) also form part of these Terms.
Although we perform regular routine backups of data, you are solely responsible for all Data or any other data that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
You agree that we may store Data (including any Personal Information) in secure servers in Australia and may access that Data (including any personal information) in Australia and New Zealand from time to time.
Subject to you paying the applicable fees, we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the App on wireless electronic devices owned or controlled by you, and to access and use the App on such devices strictly in accordance with the terms and conditions of this clause 99. You shall not: (1) except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the App; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the App; (3) violate any applicable laws, rules, or regulations or breach any third party right (including intellectual property rights, privacy rights and publicity rights) in connection with your access or use of the App; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the App; (5) use the application for any revenue generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the App available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the App for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the App; (8) use the App to send automated queries to any website or to send any unsolicited commercial e-mail; (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the App.
If you download, install, access or use an iOS version of an App:
the App is licensed to the App user on the terms set out in Apple’s standard licensed application end user licence agreement (available at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/);
despite anything else in these Terms of Use, your licence to use the App is limited as set out in the usage rules in the Apple Media Services Terms and Conditions (available at http://www.apple.com/legal/internet-services/itunes/us/terms.html);
we both acknowledge and agree that:
the licence for the App is concluded between us and you only, and not with Apple;
to the maximum extent permitted by law, Apple has no responsibility or liability in respect of any matter relating to the App or the Content made available to you through using the App, including:
your use or possession of the App or the Content made available to you through using the App; and
the provision of any maintenance or support services for the App;
we, not Apple, are solely responsible for any express or implied product warranties.
we, not Apple, are solely responsible for the App and the content of the App, and for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to
product liability claims;
any claim that the App fails to conform to any applicable legal or regulatory requirement;
claims arising under consumer protection or similar legislation; and
investigation, defence, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s Intellectual Property Rights.
we, not Apple, are solely responsible for any express or implied warranties. Without limiting clause 10.110.1cc, in the event of any failure of the App to conform to an applicable warranty, you may notify Apple, and Apple may refund the purchase price (if any) for the iOS version of the App;
you must comply with applicable third party terms when using the App (e.g. your wireless data service agreement);
you acknowledge and warrant that 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 you are not listed on any U.S. Government list of prohibited or restricted parties; and
we and you agree that Apple, and any Apple subsidiary, are third party beneficiaries of this clause 10.110.1 and that Apple has the right to enforce this clause 10.110.1 against you as a third party beneficiary.
Questions, complaints or claims with respect to the App should be directed to:
Andark Holdings Limited
Unit A, Building 1, 100 Bush Road
Rosedale, Auckland 0632
New Zealand
Phone: (+64)0272734716
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Services ("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.
We care about data privacy and security. Please review our Privacy Policy: [insert link].. By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Website and App, and the systems used to provide the other Services, are hosted in Australia. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in Australia, then through your continued use of the Services, you are transferring your data to Australia, and you agree to have your data transferred to and processed in Australia.
We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
These Terms of Use shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
We reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.
We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.
THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OF THE SERVICES OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW:
YOU USE THE SERVICES AT YOUR OWN RISK; AND
WE AND OUR DIRECTORS, EMPLOYEES, AND AGENTS ARE NOT LIABLE OR RESPONSIBLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM, DAMAGE, LOSS, LIABILITY AND COST UNDER OR IN CONNECTION WITH THESE TERMS OF USE (INCLUDING, IF APPLICABLE, THE DATA PROCESSING ADDENDUM), THE SERVICES, OR YOUR ACCESS AND USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES. THIS EXCLUSION APPLIES REGARDLESS OF WHETHER OUR LIABILITY OR RESPONSIBILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, BREACH OF STATUTORY DUTY, OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ONLY TO THE EXTENT CLAUSE 19.119.1 DOES NOT APPLY, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OF USE (INCLUDING, IF APPLICABLE, THE DATA PROCESSING ADDENDUM) OR RELATING TO THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, MUST NOT EXCEED THE FEES (IF ANY) PAID BY YOU FOR USE OF THE SERVICES IN THE MONTH PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, LOST PROFIT, LOST REVENUE, LOST SAVINGS, LOST BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR OTHER DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
To the maximum extent permitted by law, you agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions or Data; (2) use of the Services; (3) breach of these Terms of Use; (4) any breach of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Services with whom you connected via the Services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the App, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
These Terms of Use (including, if applicable, the Data Processing Addendum shall be governed by and defined following the laws of New Zealand. We and you irrevocably consent that the courts of New Zealand shall have non-exclusive jurisdiction to resolve any dispute which may arise in connection with these terms.
These Terms of Use (including, if applicable, the Data Processing Addendum) and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Services. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defences you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
Andark Holdings Limited
Unit A, Building 1, 100 Bush Road
Rosedale, Auckland 0632
New Zealand
Phone: 0272734716