End User License Agreement

Last modified: 1 September 2020

 

This end-user licence agreement (Agreement) is a legal agreement between you (you) and Mutu NZ Limited (NZCN 8037498) (us or we) for the use of the Mutu peer to peer renting system via the Mutu mobile application (Mutu App).

 

1. How these Terms apply

1.1 By accessing any product or service offered by us, such as the Mutu App, website and any other related technology (Mutu System), you are agreeing to be bound by this Agreement, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of the terms of this Agreement, you are prohibited from using or accessing the Mutu System.

1.2 This Agreement should be read in conjunction with our Privacy Policy.

1.3 We reserve the right, at any time, to update and change any or all of this Agreement, at our sole discretion. If we do so, we will post the modified Agreement on the Mutu System, and you will be notified of any changes that, in our sole discretion, materially impact the terms of this Agreement. Continued use of the Mutu System after any changes have been made will constitute your consent to such changes. 

1.4 You are responsible for regularly reviewing the most current version of the Agreement, which is currently available at: https://www.mutu.co.nz/terms-and-conditions. When we change the terms of the Agreement, we will modify the "Last modified" date on that webpage.

2. How Mutu works

2.1 The Mutu System allows:

2.1.1 users to advertise items for rent (such users that lend being Lenders);

2.1.2 Lenders to communicate with and enter into agreements with other users to borrow such items (such users that borrow being Borrowers);

2.1.3 Lenders and Borrowers to resolve disputes concerning the items rented by the Borrower from the Lender (Rented Items), via the Mutu App (together the Mutu Services).

2.2 By providing the Mutu Services, we only provide the Mutu System as a platform that enables Borrowers to borrow and Lenders to lend Rented Items, but we do not borrow or lend items. We also do not regularly monitor the quality of the items made available for hire by Lenders through the Mutu System.

2.3 Borrowers can request to book items made available by Lenders by making a request to the Lender through the Mutu System and including the requested Booking Start Date and Booking Completion Date and paying the applicable fees (as set out in Section 4 below), including the rental fee charged by the Lender (Rental Fee). Once confirmed by the Lender, the Mutu System will notify the Borrower that the Rented Item is confirmed as booked to them and confirming the Booking Start Date and Booking Completion Date (Booking).

2.4 On the Booking Start Date, each Lender and Borrower is required to be at the agreed upon location for the Lender to deliver the Rented Item to the Borrower. Borrowers are responsible and liable for the Rented Item during the Booking period and must treat the Rented Item with care and respect. If you are a Borrower, you will be liable to cover the costs of damage or replacement of any damages or loss of the Rented Item during the Booking, as well as any damages associated with failing to return the Rented Item on the Booking Completion Date and to the specified location.

2.5 Upon return to the Lender at the specified location, the Lender will inspect the Rented Item to ensure it is in the same condition that it was when it was delivered to the Borrower. After the inspection, a cleaning fee may be charged to the Borrower depending on the condition of the Rented Item and the Lender’s additional fees.

3. Your Mutu account

3.1 In order to access the Mutu System and be provided the Mutu Services, you must set up an account using your email address (Account). You will need to create a password for your Account – we encourage you to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account.

 

3.2 You must be 16 years or older and capable in your country of residence of entering into a legally binding agreement to use the Mutu System. If you are below the age of 18 we may require a parent or guardian to enter into the agreement on your behalf. In this instance, we will hold a legally binding agreement with the parent or guardian.

 

3.3 It is your responsibility to maintain the confidentiality of your login details and for any activities that occur under your Account. If you have any concerns that your Account may have been misused, you should contact us at support@mutu.freshdesk.com immediately to let us know.

 

3.4 You are required to provide valid credit card information, direct deposit information or other acceptable payment information to register (Billing Information), which will be provided to our third-party payment processor (Payment Processor) and used for payment of fees and payouts under this Agreement and remittance of payment for Platform transactions. You must advise us if your Billing Information changes due to loss, theft, cancellation, expiry, or otherwise, and you will be liable for any failure to pay fees caused by out-of-date Billing Information.

 

3.5 You are responsible to maintain the confidentiality of the password to your Account and will be responsible for all users via your registration and/or login, whether authorised or unauthorised by you. You agree to immediately notify us of any unauthorised use of your registration, Account, Billing Information or password.

 

4. Booking Fees and Payment Terms

4.1 There are no fees to create an Account. However, we charge fees for each transaction made through the Mutu System (Transaction Fees). In particular, we charge:

 

4.1.1 Lenders a fee for each completed transaction, which fee is displayed to the Lender at the time an incoming rental request is received by that the Lender for his or her Item. The Transaction Fee is not charged to the Lender's account until the Lender has accepted the rental request; and

 

4.1.2 Borrowers a fee for each completed transaction, which fee is displayed to the Borrower at the time of checkout. Following successful processing of the Borrower's credit card at checkout, we place a hold on the Borrower's card for the combined amount of the Rental Fee and our Transaction Fee (Rental Charge) and the Mutu System will send a rental request to the relevant Lender. Once the Lender accepts the rental request, we charge the Borrower's card for the total amount of the Rental Charge.

If you rent out an item as a Lender or rent an Item as a Borrower, you agree to pay all Transaction Fees described herein or otherwise quoted to you at the time of the transaction.

 

4.2 Transaction Fees and any other fees for purchases made through the Mutu System are subject to applicable taxes which will be determined by us and added to the respective fees. We are not responsible for calculating, reporting, remitting and withholding any applicable taxes associated with the Lender’s services rendered or income earned through the Mutu System (Lender Taxes). Lenders are solely liable for calculating, reporting, remitting and withholding any taxes associated with Lender’s services rendered through the Mutu System and agrees to indemnify us and hold us harmless for any such taxes

 

4.3 We use a third-party service provider, Stripe, to process all payments through the Mutu System. Users are not permitted to make payments outside the Mutu System in connection with transactions arising from the use of the Mutu System. By providing your Billing Information, you agree to allow us to capture payments for a Booking by paying 50% of the booking total or 100% of the booking total. We are not responsible for any fees that may or may not be applied to your Billing Information by your credit card provider or financial institution related to your use of the Mutu Services. We disclaim all liability in this regard.

 

4.4 We will release the Rental Fees owed to the Lender (less the applicable Transaction Fee and any other applicable taxes and fees) at the time that the Booking is marked as complete. Depending on the Lender’s bank, it may take a few business days for the funds to be deposited to the Lender’s Billing Information.

 

4.5 If there is a dispute between the Lender and the Borrower notified to us via the Mutu System within 48 hours of the Booking Completion Date (Dispute), the funds will not be released to the Lender until the Dispute has reached a resolution. We have the right to determine, in our sole discretion, how to resolve an Issue, including:

 

4.5.1 Issuing a refund to the Borrower; and/or

 

4.5.2 Requiring the Borrower to pay for damages caused to a Rented Item; and/or

 

4.5.3 Suspending or terminating the Borrower’s or the Lender's Account; and/or

 

4.5.4 Requiring the Borrower to pay the listed additional fees.

 

4.6 We do not offer any refunds in respect of Transaction Fees. Rental Fees may be refunded in accordance with our Cancellation Policy.

 

4.7 Borrowers are liable for all Rental Fees and are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. A chargeback is usually issued when a Borrower disputes a charge that appears on their credit card statement. A chargeback may result in the reversal of a transaction. When a chargeback is issued, the Borrower is immediately liable to us for the full amount of payment of the chargeback plus any associated fees, fines, expenses or penalties. You agree that we may recover these amounts by means of any billing Information or bank account you have provided to us or by way of set-off of any amounts owed by us to you. If we are unable to recover funds related to a chargeback for which you are liable, you will pay us the full amount of the chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid chargebacks unpaid by you.

 

4.8 In the event that a Rented Item is not returned on or before the Booking Completion Date to the agreed location, the Borrower may be charged 3x the daily rate of the Rented Item for each day it is not returned. If the Rented Item is not returned within 4 days of the Booking Completion Date, the issue may be escalated to the appropriate authorities (including the Police) including supplying your Personal information.

 

5. Terms applying to Lenders

 

5.1 When you are using the Mutu System as a Lender, the terms of this section 5 will apply.

 

5.2 When listing an item on the Mutu System, you must include all relevant safety instructions or any relevant use information in respect of the item. We reserve the right to inspect or verify the information provided in respect of any item or listing. We may ask for a better quality picture or provide a better quality picture as we see fit.

 

5.3 You must not offer to lend through the Mutu System any firearms, weapons, pornography, mature content, animals or any items that it would be illegal to offer for hire in your or the Borrower's country of residence. We may remove any items offered for hire from the Mutu System if we believe such items are illegal, immoral or damaging to our reputation.

 

5.4 It is your responsibility to ensure that:

 

5.4.1 you have all necessary rights to hire out any items you advertise on the Mutu System, and that the Borrower's use of a Rented Item will not infringe any third party's rights;

 

5.4.2 you deliver any Rented Items to the Borrower in accordance with the agreement you reach with the Borrower;

 

5.4.3 any descriptions of the items you advertise for rent through the Mutu System are accurate and include all information relevant to the use of the item, including (as appropriate): (i) notice of any defects, restrictions or other requirements that may apply to the use of the item; and (ii) any instructions or notices that may reasonably be required to use the item safely; and

 

5.4.4 the items you advertise on the Mutu System: (i) conform in all material respects to any pictures or descriptions that you upload to the Mutu System; (ii) are safe to use in accordance with any reasonable instructions that you provide to the Borrower; (iii) are fit for any purpose for which such items would normally be used, or any purpose communicated to you by the Borrower; (iv) can be legally offered for hire.

 

5.5 If you offer storage space for hire, you must also ensure that the space is accessible safely and legally, that it is secure and free from leaks and/or excessive heat or cold. You will be responsible for any damage to any of the Borrower's items that are left in your storage area.

 

5.6 You will be responsible for any damage the Borrower or any other person may suffer as a result of any defect in your Rented Item, or for any failure to comply with the requirements in clauses 5.2 or 5.4.

 

5.7 You are free to agree any other terms on which you hire a Rented Item to a Borrower, including the price you wish to charge to the Borrower for hiring your item for the relevant hire period (the Rental Fee). When you post items for hire on the Mutu System, you must ensure that the Rental Fee you advertise on your listing is the total price payable for hiring your items, including any applicable taxes or costs of delivery.

 

5.8 Once you agree the terms on which you will lend a Rented Item to a Borrower, you must not try to amend those terms (including the Rental Fee) unless you have a valid, justifiable reason for doing so and the Borrower agrees to those amended terms.

 

5.9 You can remove a listing or cancel your agreement to lend a Rented Item to a Borrower at any time up to 48 hours before the Booking Start Date. If you cancel an agreement to hire an item to a Borrower less than 48 hours before the Booking Start Date, we may charge you a cancellation fee equal to 30% of the relevant Rental Fee.

 

5.10 We warrant that your Rented Items will not be damaged or stolen by a Borrower. If your Rented Item is damaged or stolen by a Borrower, you must use best efforts to obtain payment from the Borrower for the repair or replacement of the Rented Item. If, after you have used your best efforts to exhaust all available legal means of recovery from the Borrower (as determined by us in our sole discretion), the Borrower isn’t willing to pay to repair or replace the Rented Item, you may submit a request for compensation under the Mutu Guarantee, and make a claim in accordance with our Guarantee Policy. Other than any valid and approved claim made pursuant to the Guarantee Policy, we will not be responsible or any damages, theft, or destruction of items booked through the Mutu System and any losses suffered by you arising from the use of the Mutu System will not be compensated or reimbursed by us.

 

5.11 If we make a payment of compensation to you in accordance with our Guarantee Policy, you agree to assign to us the debt owed to you by the Borrower for the lost, stolen or damaged Rented Item. You agree to sign any document reasonably required by us to evidence this assignment of the debt.

 

5.12 You will also be responsible for complying with any obligations you may have under applicable law with respect to Rented Items, including giving effect to the Borrowers' rights under applicable consumer law (including the Consumer Guarantee Act 1993 and the Fair Trading Act 1986) and compensating any damage to the Borrower or any other person caused by your Rented Items, except to the extent such damage was caused by the negligence of the Borrower.

 

6. Terms applying to Borrowers

6.1 When you are using the Mutu System as a Borrower, the terms of this section 5.10 will apply.

 

6.2 On agreeing with a Lender to hire a Rented Item, the Lender grants you a limited right to use that Rented Item for the Booking period. This right is personal to you and you are not allowed to transfer this right to any other person.

 

6.3 You are responsible for ensuring that:

 

6.3.1 you are legally allowed to use any Rented Item;

 

6.3.2 you comply with all applicable law when using the Rented Item;

 

6.3.3 you comply with any reasonable directions provided by the Lender or via the Mutu System in order to use the Rented Item safely;

 

6.3.4 you return the Rented Item in the same condition as it was in when you collected it from the Lender (any reasonable wear and tear excepted).

 

6.4 You must ensure that you return any Rented Item back to the Lender on or before the Booking Completion Date, but you are free to agree with the Lender how you will return any Rented Item back to the Lender, including the location.

 

6.5 You will be responsible for any loss of or damage to a Rented Item. Please see clause 4.5 for more information about how we handle disputes between Borrowers and Lenders, including if a Rented Item is damaged, lost or stolen.

 

6.6 If you cancel a request to a Lender to borrow an item:

 

6.6.1 at any time before the request is accepted by the Lender, or no less than 48 hours before the Booking Start Date, you will receive a full refund of the Rental Charge; or

 

6.6.2 less than 48 hours before the Booking Start Date, you will be charged:

(a) 30% of the applicable Rental Fee; and

(b)100% of the applicable Transaction Fee.

 

6.7 If you do not return a Rented Item to the Lender by the Return Date, you must contact the Lender, and/or us, to notify the Lender as soon as you are aware that you are going to miss the Return Date. You will also need to book and pay for the extended Rental Period immediately. The Lender may not be able to accommodate the extension in which case it is your responsibility to get any Rented Items back to the Lender within a timeframe that suits the Lender. If you do not do so you will be liable to pay late fees, which will be double the rental fee for the Initial Rental Period (Late Fees). You agree that we can charge any Late Fees from your card or bank account without further permission.

 

6.8 If you miss the Return Date and are do not communicate with the Lender or us, or we have reason to believe you have caused damage to the Rented Item, you agree that we can take a holding deposit from your account up to the full value of the Rented Items you have rented (Holding Deposit). The Holding Deposit will be fully refundable, less any fees owed to us or the Lender, once the Rented Items are returned, replaced or repaired. Otherwise, the Holding Deposit will not be refunded.

 

6.9 You will be responsible for any Rented Items, including compensating the Lender for any loss or damage to those Rented Items. You will also be responsible for any damage you cause to other people or property when you use those Rented Items.

 

7. Access to the Mutu System

7.1 In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-sublicensable, non-exclusive licence to use the Mutu App on your Device, subject to this Agreement, the Privacy Policy and any other relevant policies notified to you by us.

 

7.2 You may download the Mutu App onto any Device to view, use and display the Mutu App for your personal purposes only. Your right to use the Mutu System is personal to you and you are not allowed to give this right to any other person.

 

7.3 This is the grant of a license, not a transfer of title, and under this license you may not:

 

7.3.1 modify or copy the materials on the Mutu System;

 

7.3.2 create any software that is substantially similar to the Mutu App;

 

7.3.3 rent, lease, sub-licence, loan, translate, or merge the Mutu App;

 

7.3.4 attempt to disassemble, decompile, reverse engineer or create derivative works based on any software contained on the Mutu System;

 

7.3.5 remove any copyright or other proprietary notations from the materials on the Mutu System; or

 

7.3.6 transfer the materials on the Mutu System to another person or "mirror" the materials on any other server.

 

7.4 This license will automatically terminate if you violate any of these restrictions and may be terminated by us at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials from the Mutu System in your possession whether in electronic or printed format and uninstall the Mutu App from any Device.

 

7.5 You must provide true, current and complete information in your dealings with us (including when setting up your Account) and must promptly update that information as required so that the information remains true, current and complete.

 

7.6 You must:

 

7.6.1 not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Mutu System, or otherwise attempt to damage or interfere with the Mutu System;

 

7.6.2 not infringe our intellectual property rights or those of any third party in relation to your use of the Mutu System or any Mutu Service;

 

7.6.3 not impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, including us;

 

7.6.4 not post, upload, distribute, store, create or publish through the Mutu System any message, data, information, text, music, sound, photos, graphics, code or any other material that is false, unlawful, misleading, libellous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, or advocates harassment of another person, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; and

 

7.6.5 unless with our written permission, only access the Mutu System via a Device. Other methods, including scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method, are prohibited.

 

7.7 There is a certain degree of risk to us and our business associated with your use of the Mutu System. Accordingly, you agree to be responsible for and indemnify us and any of our officers, directors, employees, and agents from and against all Loss that we suffer or incur as a direct or indirect result of your failure to comply with this Agreement, including any failure of a person who accesses and uses the Mutu System by using the log in details supplied to you.

 

7.8 It is assumed that you have obtained permission from the owners of the Device to download a copy of the Mutu App onto the relevant Device. You may be charged by your service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Agreement for the use of the Mutu App or any part of the Mutu System on or in relation to the Device, whether or not it is owned by you.

 

7.9 We do not claim ownership of the data, materials and/or content created, uploaded or otherwise transmitted by you through use of the Mutu System, including but not limited to item descriptions, photos, graphics, designs, drawings, electronic documents and comments (User Content). However, by using the Mutu System, you grant us a worldwide, royalty-free, non-exclusive license to collect, use, reproduce, store, display and sublicense such User Content for the purpose of operating the Mutu System.

 

7.10 You are strictly prohibited from using the Mutu System and Mutu Services to infringe the intellectual property rights of others. If you believe your copyright has been infringed, please provide us with the following information and we will forward your notice to the applicable user:

 

7.10.1 claimant’s name and address;

 

7.10.2 identify the copyright material that is alleged to have been infringed and the claimant’s interest or right with respect to that material;

 

7.10.3 specify the location data (e.g. the web address or Internet address associated with the alleged infringement);

 

7.10.4 specify the infringement that is alleged, and

 

7.10.5 specify the date and time of the alleged infringement.

 

Notices must be sent to support@mutu.freshdesk.com.

 

8 License Restrictions and User Conduct

 

8.1 We may impose certain limitations on the use of the Mutu System or Mutu Services, including, but not limited to restricting the number of accounts for which you may register, and/or imposing charges for certain features of the Mutu System. You agree to use the Mutu System and Mutu Services only for purposes as permitted by this Agreement. We reserve the right to modify or impose any limitations on the use of the Mutu System and/or Mutu Services at any time, with or without notice to you. We also reserve the right at all times to terminate any use of the Mutu System at any time without any liability whatsoever. In using the Mutu System or Mutu Services you shall not:

 

8.1.1 intentionally or unintentionally violate the terms of this Agreement, or any local, state, provincial, national or international law or regulation, including without limitation using the capabilities of the Mutu System to transmit any unlawful content, to harass or intimidate others, to spam third parties or to impersonate anyone;

 

8.1.2 license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Mutu System or Mutu Services;

 

8.1.3 upload, post, email, transmit or otherwise make available any material that:

 

(a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libellous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, encourages criminal behaviour, gives rise to civil liability, violates any law, or is otherwise objectionable;

 

(b) you do not have a right to make available under any law or under a contractual relationship;

 

(c)infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including privacy rights);

 

(d) is or contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

 

(e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any Users or viewers of the Website or that compromises a User’s privacy; or

 

(f) contains any falsehoods or misrepresentations or create an impression that you know is incorrect, misleading, or deceptive or any material that could damage or harm minors in any way;

 

8.1.4 modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Mutu System or any software provided by us;

 

8.1.5 use the Mutu System or the Mutu Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;

 

8.1.6 use automated scripts to collect information or otherwise interact with the Mutu System; or

 

8.1.7 advocate, encourage or assist any third party in doing any of the foregoing.

 

8.2 In using the Mutu System or Mutu Services as a Lender or Borrower, you agree to comply with all Booking procedures and use your best efforts to provide an enjoyable and safe experience for other users. Moreover, you agree that you will not:

 

8.2.1 create any false Dispute notifications;

 

8.2.2 Publish any false or inaccurate review or representation of another user or another user’s item;

 

8.2.3 Create more than two Accounts for yourself or on behalf of another person or business;

 

8.2.4 Create a posting for an item that is not in your possession or that you do not have permission to rent;

 

8.2.5 Allow a Booking of an item that is already confirmed by another user (double booking the item);

 

8.2.6 Solicit users to join a third-party service that may or may not be our competitor;

 

8.2.7 Use, copy or steal another user’s User Content;

 

8.2.8 Post an item with information that is false or misleading, including in the picture, description, condition rating, or pricing;

 

8.2.9 Intentionally or unintentionally cause harm or damage to another user’s item, steal an item, use any item for a purpose that is not the item’s primary purpose or use an item to commit any crime or otherwise break any applicable law, regulation or rule;

 

8.2.10 Use or promote the Mutu System to promote any illegal or violent activities;

 

8.2.11 Discriminate against any other user, including refusing to interact with another user solely based on race, gender, sexual orientation, nationality, culture, and/or religion;

 

8.2.12 Use the Mutu System in any way to harm, disrespect, or bully another user;

 

8.2.13 Attempt to intentionally cause a poor experience for another user;

 

8.2.14 Attempt to blackmail or extort another User for a personal gain or for the user’s downfall;

 

8.2.15 stalk or harass any other user or collect or store any information about any other user other than for purposes of transacting with one another; or

 

8.2.16 impersonate any person or entity or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.

 

8.3 You further agree to the following conditions in respect of any Booking where you are the Borrower:

 

8.3.1 you will not sub-lease or otherwise rent the item to any third-party during a Booking;

 

8.3.2 you will not use the Rented Item for any illegal activities;

 

8.3.3 you will use all reasonable efforts to ensure the Rented Item is not damaged, lost or stolen during the Booking; and

 

8.3.4 you will be liable for any additional costs incurred by you while using the Rented Item, including but not limited to those communicated to you at the time the Booking.

 

8.4 In relation to Booking where you are the Borrower, you remain solely liable for any damage, loss, or theft to the Rented Item during the Booking, including paying for any repairs, cleaning or replacement costs. You agree to indemnify and hold harmless both us and the applicable Lender for any damages to Rented Items, third party property, as well as injuries or death arising from your rental and use of the Rented Item.

 

9. Disclaimer

 

9.1 The Mutu Services are provided on an 'as is' basis. We make no warranties, expressed or implied, and hereby disclaim and negate all other warranties including, without limitation, implied warranties or conditions of merchantability or usability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights in relation to your use of the Mutu System. This means that we are unable to promise that your use of the Mutu System will be uninterrupted, without delays, error-free or meet your expectations and we do not give any commitment relating to the performance or availability of the Mutu System in this Agreement and, to the extent we are able to do so, we exclude any commitments that may be implied by law.

 

9.2 By using the Mutu App or any part of the Mutu System, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the Mutu App or any part of the Mutu System may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

 

9.3 As a user of the Mutu System, you understand and agree that:

 

9.3.1 Neither we nor our affiliates will have any liability to you or others for any unauthorised transactions made using your password or your Account or your Billing Information; and

 

9.3.2 The unauthorised use of your password or your Account or your Billing Information could cause you to incur liability to both us and other users.

 

9.4 When you supply us with your Personal Information, the Mutu System collects such information pursuant to our Privacy Policy. We and our affiliates will not interfere with the information arbitrarily, but we reserve the right to remove information in certain extenuating circumstances, such as when we have reasonable cause to suspect that a user may be fraudulent or fake. We also reserve the right to take steps to verify your identity.

 

9.5 If you interact with the Mutu System in any way or create an Account, you do so at your own risk and understanding of this Agreement. We are not and will not be responsible for any actions by another user, individual, business, association, entity, or group that may physically, financially, verbally, digitally harm or distress you in any way. We use commercially reasonable efforts to provide an honest, safe, and trustworthy community but cannot be responsible for the actions of third parties.

 

9.6 We have no control over the conduct of other users of the Mutu System or the truth or accuracy of the information that a user may post on the Mutu System. We cannot guarantee the true identity of any individual. You are responsible for determining the identity and suitability of any person or entity you may contact through the Platform. We do not endorse any persons who use or register for our Services. However, we reserve the right (but we are not obligated to) verify the identity of users as well as the availability and fitness of items listed for rent by Lenders. We are not responsible for any false or misleading information on the website or platform and will not be liable for any damages whatsoever resulting from your use of the platform or information provided on the platform.

 

9.7 Use of any items rented through the Mutu System is solely at your own risk. You are solely responsible for ensuring that you have adequate know-how, training, skills and abilities to use any item, including obtaining and reviewing manufacturer instructions and safe handling guides. We will not be liable for any injuries, losses, damages (including damages to individuals or personal property or death) arising from use of any item.

 

9.8 Visiting or using any third party link from the Mutu System is at your own risk. we disclaim all liability with respect to the acts, omissions, errors, representations, warranties, breaches, or negligence or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with third parties via the Mutu System.

 

9.9 We expressly reserve the right to correct any availability and pricing errors on the Mutu System.

 

9.10 To the maximum extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss suffered by you in connection with:

 

9.10.1 the Mutu System being unavailable (in whole or in part) or performing slowly;

 

9.10.2 any error in, or omission from, any information made available through the Mutu System;

 

9.10.3 any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Mutu System. For the avoidance of doubt, you are responsible for ensuring the process by which you access and use the Mutu System; and

 

9.10.4 any site linked from the Mutu System. Any link on the Mutu System to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.

 

10. Limitation of Liability

 

10.1 While we will do our best to ensure that the Mutu System itself is of a reasonable standard and quality and matches any descriptions we have provided you, the Mutu App and any other portion of the Mutu System may contain some content owned or developed by third parties. As we do not own or produce such third party content, we cannot be responsible for it in any way.

 

10.2 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this Agreement or our negligence up to the limit specified in clause 10.3. For the avoidance of doubt, we are not responsible for any unforeseeable or indirect loss or damage.

 

10.3 Our maximum aggregate liability under or in connection with this Agreement (including your use of any part of the Mutu System) whether in contract, tort, (including negligence) or otherwise, will in all circumstances be limited to downloading another copy of the Mutu App.

 

10.4 Nothing in this Agreement will limit or exclude our liability for:


10.4.1 Death or personal injury resulting from our negligence; or


10.4.2 Compulsory statutory liability under applicable law (including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986; or

 

10.4.3 Fraud or fraudulent misrepresentation.

 

 

11. Third-Party Services and App Stores

11.1 Goods and services of third parties may be advertised and/or made available on or through the Mutu System. Representations made regarding products and services provided by third parties are governed by the policies and representations made by these third parties. We will not be liable for or responsible in any manner for any of your dealings or interactions with third parties and we do not endorse such content or third party privacy policies.

 

11.2 Where the Mutu App has been downloaded from any app store or distribution platform, including the Apple App Store or the Google Play Store (App Store) this clause 11.2 applies:

 

11.2.1 you acknowledge that this Agreement is between you and us, and not with the provider of the App Store (Store Operator);

 

11.2.2 your use of the Mutu App must comply with the Store Operator’s then-current App Store Terms of Service;

 

11.2.3 the Store Operator is only a provider of the App Store where you obtained the Mutu App;

 

11.2.4 we, and not the Store Operator, are solely responsible for the Mutu App;

 

11.2.5 the Store Operator has no obligation or liability to you with respect to the Mutu App or this Agreement; and

 

11.2.6 you acknowledge and agree that the Store Operator is a third-party beneficiary to this Agreement as it relates to the Mutu App (in accordance with the Contract and Commercial Law Act 2017, Part 2, Subpart 1).

 

12. Intellectual Property Rights

 

12.1 You acknowledge that all intellectual property rights (including, but not limited to, goodwill and copyright) in the Mutu App, the Mutu name, logo and any trademarks, Mutu System and any other related technology belong to us.

 

12.2 You acknowledge that rights in the Mutu App are licensed (not sold) to you, and that you have no rights in, or to, the in the Mutu App and in the Mutu System other than the right to use each of them in accordance with the terms of this Agreement.

 

13. Suspension and Termination

13.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached this Agreement or we otherwise consider it appropriate (at our absolute discretion), we may immediately, and without notice, suspend or terminate your access to the Mutu System (or any part of it).

 

13.2 On suspension or termination, for any reason:

 

13.2.1 All rights granted to you under this Agreement will cease;

 

13.2.2 You must immediately cease all activities authorised by this Agreement, including your use of the Mutu  System;

 

13.2.3 You must immediately delete or remove the Mutu App from all Devices, and immediately destroy all copies of the Mutu App and Mutu System in your possession, custody or control and certify to us that you have done so;

 

13.2.4 We may remotely access your Device and remove the Mutu App from all of them and cease providing you with access to the Mutu System; and

 

13.2.5 You must not attempt to gain further access to the Mutu App or Mutu System.

 

14. Privacy

 

14.1 You consent to us collecting, storing and retaining your name, email, password, date of birth, phone number, bank account details, Device information, in-app usage information (such as answers to questionnaires, responses clicked and features used) and location information. You also consent to us supplying your name and contact details to the Police if we believe that you have stolen any Rented Item.

 

14.2 You have the right to be able to access, amend and delete the information you supply to us.

 

14.3 You acknowledge that you have read and understood our Privacy Policy, relating to the collection and use of your Personal Information. By agreeing to this Agreement you also agree to the information, consents and disclosures in our Privacy Policy.

 

15. General

 

15.1 If we need to contact you, we may do so by email or phone, or by posting a notice on the Mutu System. You agree that this satisfies all legal requirements in relation to written communications.

 

15.2 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by an act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks, failure of the Mutu System caused by third party access or failure of your system or hardware, or user error.

 

15.3 This Agreement, and any dispute relating to this Agreement, the Mutu Services or the Mutu System, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the exclusive jurisdiction of the Courts of New Zealand, in relation to any dispute between you and us connected with this Agreement, the Mutu Services or the Mutu System.

 

15.4 For us to waive a right under this Agreement, the waiver must be in writing.

 

15.5 We may transfer our rights and obligations under this Agreement to another entity, however, this will not affect your rights or our obligations under this Agreement.

 

15.6 Clauses which, by their nature, are intended to survive termination of this Agreement continue in force.

 

15.7 If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of the terms of this Agreement will be binding on you.

 

15.8 This Agreement sets out everything agreed by the parties relating to your use of the Mutu System or use of the Mutu Services and supersedes and cancels anything discussed, exchanged or agreed prior to you agreeing to this Agreement. You acknowledge you have not relied on any representation, warranty or agreement relating to the Mutu System or Mutu Services that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the date you agreed to this Agreement.

 

16. Defined Terms

 

16.1 Unless the context otherwise requires, in this Agreement:

 

Device and Devices means any computer, mobile phone, or handheld devices that users use to access the System.

 

Loss means loss of profits, loss of business, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.

 

Personal Information has the meaning given to that term in:

a. (before 1 December 2020) Section 2 of the Privacy Act 1993; or

b. (from 1 December 2020) Section 7 of the Privacy Act 2020.

 

Privacy Policy means our privacy policy as set out at https://www.mutu.co.nz/privacy-policy.

 

16.2 Any capitalised term defined in the body of this Agreement has that meaning throughout the entire Agreement.

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Mutu Limited

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Mutu is a Sustainable Business Awards 2020 finalist.