End User Licence Agreement

Welcome to tradalia. This tradalia End User Licence Agreement (Agreement ), including the Privacy Policy, is between you (the user) and us (tradalia Limited, the company behind the tradalia APP). Please read this Agreement and the Privacy Policy carefully before using the tradalia APP. By registering, logging on and/or otherwise using the tradalia APP you agree to follow and be bound by this Agreement and the Privacy Policy. If you do not agree to all of the terms in this Agreement and the Privacy Policy, you must not use the tradalia APP.

This Agreement and the Privacy Policy may be varied by us at any time. Unless otherwise stated, amendments to any terms will be effective upon notifying you of the changes through, or posting the changes on, the tradalia APP (including by push notification), website, email or otherwise. You must ensure that you have read, understood and agree to the terms in this Agreement and the Privacy Policy. You agree that your continued use of the tradalia APP represents your agreement to be bound by the most recent terms.

1.

Definitions and Interpretation

1.1
In this Agreement, unless the context otherwise requires or is specified otherwise:
Agreement means this End User Licence Agreement;
Data means: (a) data inputted by you for the purpose of registering to use or using the tradalia APP; and (b) data generated by the tradalia APP or the device on which the tradalia APP is installed;
Harmful Code 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;
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;
NZX means NZX Limited;
NZX Information means share market information provided to you via the tradalia APP in accordance with the NZX Licence Agreement;
NZX Licence Agreement means the licence agreement between us and NZX permitting us to give our customers access to the NZX Information;
tradalia APP means the tradalia application software, which provides you with access to NZX Information and other information, and includes any upgrades or updates to the same;
Usage Data means any data we may collect about the way in which you and other tradalia APP users use the tradalia APP but does not include your Data;
we, us and our refers to tradalia Limited (Company No. 1880378); and
you and your refers to you, the individual that registers to use the tradalia APP.
2.

Licence and Access

2.1
We grant you a non-exclusive, non-transferable, revocable right to access and use the tradalia APP for the term of this Agreement and subject to the NZX Licence Agreement being in force, solely for your personal use relating to the management of your own personal investments and not for any business purpose.
2.2
You will use the tradalia APP on a device that you own and/or control, all on the terms and conditions set out in this Agreement. If you are using the tradalia APP on an Apple device, then the right granted to you under clause 2.1 is subject to clause 9.3.
2.3
You will pay the applicable fee for access to, and use of, the tradalia APP. You acknowledge and agree that the features and/or functionality of the tradalia APP made available to you differ depending on the fee you have paid for the tradalia APP. The fees are set out here [and will be automatically charged to your APP Store account]. You may cancel any paid subscriptions to the tradalia APP through the APP Store.
2.4
You will not transfer, distribute or publish any information that you receive through the tradalia APP to or for the benefit of any third party.
2.5
You acknowledge that the NZX Information made available through the tradalia APP is provided by NZX and that:
(a)
your use of the NZX Information may be subject to further terms and conditions (either imposed by us or NZX) that we will make known to you from time to time;
(b)
you will keep complete, accurate and up-to-date records relating to the use of the NZX Information and provide such records to us or NZX upon our request;
(c)
NZX and its licensors reserve all Intellectual Property Rights to the NZX Information;
(d)
NZX and its licensors accept no liability for the display of the NZX Information or any losses or claims arising from use of the NZX Information;
(e)
we may, if requested by NZX, suspend or terminate receipt of NZX Information by you if we or NZX have reason to believe the NZX Information is being misused or misrepresented;
(f)
you will not create any works (including indices or financial products) based on, or incorporating, the NZX Information;
(g)
NZX is a third party beneficiary of this Agreement, and that, upon your acceptance of this Agreement, NZX will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary;
(h)
you will, if requested by NZX, enter into a separate agreement with it in relation to the use of the NZX Information.
2.6
We will use reasonable endeavours to make the tradalia APP available to you on and subject to the terms of this Agreement.
2.7
(a)
will keep logins and passwords for your access and use of the tradalia APP confidential and ensure you are the only person to access and use the tradalia APP through use of your login 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 if we discover that your login details have been provided to any third party;
(d)
will log-out of the tradalia APP if you are not using the tradalia APP for any extended period of time or not in control or possession of the device on which you are accessing the tradalia APP;
(e)
acknowledge and agree that you may be automatically logged out of the tradalia APP after a period of time of inactivity and, if so, you will be required to log in again in order to access and use the tradalia APP; and
(f)
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 tradalia APP.
2.8
You will not access, store, distribute or transmit any Harmful Code through the tradalia APP, and we may, without liability to you, disable your access to the tradalia APP if you are in breach of this clause.
2.9
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 tradalia APP (as applicable) 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 tradalia APP;
(b)
access all or any part of the tradalia APP in order to build a product or service which competes with us or the tradalia APP;
(c)
use the tradalia APP to provide services to third parties;
(d)
attempt to undermine the integrity or security of:
(i)
the tradalia APP; or
(ii)
our, or any third party’s, systems, networks or resources used in the provision of the tradalia APP;
(e)
attempt to gain unauthorised access to any information or materials other than those to which you have been given express permission to access as part of the tradalia APP;
(f)
attempt to obtain, or assist third parties in obtaining, access to the tradalia APP, other than as provided under this clause 2.
2.10
You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the tradalia APP and, in the event of any such unauthorised access or use, promptly notify us.
2.11
We may terminate this Agreement if:
(a)
you breach any provision of this Agreement; or
(b)
the NZX Agreement terminates.
If we terminate this Agreement you will immediately cease to use the tradalia APP.
3.

Changes to the tradalia APP

3.1
You acknowledge that we may upgrade and update the tradalia APP and that the tradalia APP is continually evolving. You may be required to install upgrades and updates to the tradalia APP or to upgrade the device you use to access the tradalia APP or the operating system running on that device in order to continue to use the tradalia APP.
3.2
Although we use reasonable endeavours to ensure that any upgrades and updates to the tradalia APP do not cause any problems in your use of the tradalia APP, our liability to you to the extent that problems arise from such upgrades and updates is limited in accordance with clause 7.
3.3
We reserve the right at any time and from time to time to modify, discontinue or restrict access to the tradalia APP (or any part of it), temporarily or permanently with or without notice to you. To the maximum extent permitted by law, you agree that we will not be liable to you or to any third party for any modification, restriction, suspension or discontinuance of the tradalia APP.
4.

Your Data and Usage Data

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 2020, we will comply with our obligations under the Privacy Act 2020 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 2020, 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 the tradalia APP 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 or at tcpapp@tradalia.com
4.4
You acknowledge and agree that we may use your Data for the purpose of:
(a)
providing the tradalia APP 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 tradalia APP (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 tradalia APP;
(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 may share your Data with other the tradalia APP users or third parties provided that we have obtained your specific consent to do so;
(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.

Your Obligations

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 tradalia APP;
(b)
comply with all applicable laws and any third party terms you have agreed to (for example with your telecommunications service provider) with respect to your use of the tradalia APP and your activities under this Agreement;
(c)
use the tradalia APP 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 tradalia APP; 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.

Intellectual Property Rights

6.1
You acknowledge and agree that:
(a)
subject to clause 6.1(b), we and/or our licensors own all Intellectual Property Rights in the tradalia APP;
(b)
NZX and/or its licensors own all Intellectual Property Rights in the NZX Information.
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 tradalia APP.
7.

Warranties and Liability

7.1
You acknowledge that, except for those warranties or representations that cannot be excluded by law, the tradalia APP is provided on an “as is” basis and all representations, conditions or warranties in respect of the tradalia APP(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)
the accuracy, correctness, reliability and completeness of any information, formulae, or calculation provided through the use of the tradalia APP (together referred to as Calculations), including the interpretation of any regulations, laws, standard or guidelines upon which the Calculations are based. You acknowledge the results from any Calculations are for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account in the computation. To the maximum extent permitted by law, we will not be liable for any form of loss or damage, arising out of or in connection with your reliance on and use of the tradalia APP. You agree that you will not rely solely on the Calculations and will carry out your own calculations and make your own inquiries (e.g. by contacting a professional adviser, and other than by using the tradalia APP) to verify the accuracy, correctness, reliability and completeness of the Calculations;
(b)
that your use of the tradalia APP will be uninterrupted or error-free;
(c)
that the tradalia APP will meet your requirements; or
(d)
that the tradalia APP will be free from Harmful Code.
7.3
We are not a financial adviser (including under the Financial Advisers Act 2008 or similar legislation) and we do not provide financial or investment adviser services. As such, the tradalia APP does not offer or provide personalised investment advice. You acknowledge and agree that:
(a)
information provided through the tradalia APP:
(i)
is impersonal and not tailored to your investment needs or the needs of any specific person;
(ii)
is provided for informational and educational purposes only. The information should not be construed as investment or trading advice and is not meant to be a solicitation or recommendation to buy, sell, or hold any positions in any indices or financial markets mentioned. You are solely responsible for your own investment decisions and should seek the advice of a professional before purchasing or selling any security or making any investment;
(b)
you remain solely responsible for all decisions regarding your sale or purchase of securities, the suitability, profitability or appropriateness for you of any security, investment, financial product, investment strategy or other matter, and all other matters related to your investments and investment strategies;
(c)
we make no warranties about the accuracy, currency, completeness or usefulness of information accessed by you through the tradalia APP. If you choose to rely on such information, you do so at your own risk.
7.4
We cannot, and do not, independently verify, assess or guarantee the validity, adequacy, timeliness, accuracy or completeness of any data, content or information, the suitability or profitability of any particular security or investment, or the potential value of any security, investment or informational source. You bear sole responsibility for your own investment research and decisions and should seek the advice of a professional adviser before purchasing or selling any security or making any investment.
7.5
You agree that, to the maximum extent permitted by law, we will not be liable to you for any form of loss or damage, arising out of or in connection with this Agreement. If, notwithstanding the foregoing, we should 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 tradalia APP.
7.6
Without limiting clause 7.5, 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 tradalia APP (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.
7.7
Clauses 7.5 and 7.6 are subject to any rights you have under law that cannot be excluded by agreement between you and us.
7.8
You acknowledge that:
(a)
we are not your accountant, financial, investment or other professional adviser and you are solely responsible for ensuring the accuracy and correctness of any input, output or result from your use of the tradalia APP;
(b)
we may rely on the provision of services by third parties (including content, data centre, electricity, telecommunications and outsourcing providers) in order to make the tradalia APP available to you (Third Party Providers ) and that the tradalia APP may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers;
(c)
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, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet; and
(d)
the tradalia APP 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.
7.9
You will indemnify us and NZX against all costs, losses, expenses and damages incurred through any claims against us resulting from your use of the tradalia APP.
8.

General

8.1
This Agreement constitutes the entire agreement between you and us in relation to the tradalia APP 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 tradalia APP (including by push notification), website, email or otherwise. You will ensure that you have read, understood and agree to the most recent terms. You agree that your continued use of the tradalia APP 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 tradalia APP 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.
9.

Apple Device Terms

9.1
This clause 9 applies to you only if you use an Apple device (e.g.: iPhone or iPad) to access the tradalia APP. It does not apply to you if you do not use the tradalia APP on an Apple Device.
9.2
We acknowledge and agree that your use of the the tradalia APP may be accessed and used by other accounts associated with you via Apple’s “Family Sharing” feature or volume purchasing.
9.3
You and us 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 tradalia APP and the content thereof;
(b)
any maintenance or support that may be offered by us in connection with the tradalia APP is solely our responsibility and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the tradalia APP;
(c)
in the event of any failure of the tradalia APP to conform to any applicable warranty, you may notify Apple, and request a refund the purchase price (if any) you paid for the tradalia APP 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 tradalia APP;
(d)
Apple is not responsible for addressing any claims by you or any third party relating to the tradalia APP or your possession and/or use of the tradalia APP. In the event of any third party claim that the tradalia APP 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 9.3(c), any questions, complaints or claims with respect to the tradalia APP should be directed to us at the following address:

tcpapp@tradalia.com

9.4
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.