1. Introduction

1.1 Welcome to NextMinute, a mobile work force management application designed for use by businesses and organisations on desktop and mobile phones (“NextMinute”). On using NextMinute, you or the organisation on whose behalf you use NextMinute (in either case “You”) agree to be bound by these Terms and Conditions (“Terms”).

1.2 You acknowledge that these Terms have important legal consequences for You, and it is Your responsibility to seek advice in relation to your rights and obligations under these Terms.

1.3 NextMinute Limited and any of its related companies or subsidiaries (“NM”, “We” or “Us”) reserve the right to update and change these Terms from time to time with or without notice to You, and to add new features of functionality to, or remove existing features of functionality from, NextMinute, that will be subject to the Terms. If You continue to use NextMinute after any changes, You will be taken to have agreed to the changes, whether or not you have been notified of the changes. The current version of the Terms will be available at any time on the NextMinute website at www.nextminute.com (“Website”).

1.4 Any reference in these Terms to the “parties” shall mean You and NM and any reference to a “party” shall mean either You or Us (as the case may be).

2. NextMinute

2.1 You understand and agree that NextMinute is provided on an “ as is ” and “as available” basis. NM disclaims any and all responsibility and liability for the availability, timeliness, security or reliability of NextMinute.

2.2 We reserve the right to modify, suspend or discontinue NextMinute (or any part of it) with or without notice at any time. We will not be liable to You or to any third party for any modification, price change, suspension or discontinuance of NextMinute.

2.3 We do not provide you with any warranties or representations about NextMinute. For example, We do not warrant, represent or undertake that

(a) NextMinute will meet Your specific requirements;

(b) NextMinute will be uninterrupted, timely, secure or error free;

(c) Results that may be obtained from the use of NextMinute will be accurate or reliable;

(d) The quality of any products, services, information or other material purchased by You through NextMinute will meet your expectations; or

(e) Any errors in NextMinute will be corrected.

2.4 To avoid doubt, all express or implied conditions, warranties or representations are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness or suitability for purpose, title, and no infringement.

2.5 You agree for the purposes of section 5D of the Fair Trading Act 1986 that:

(a) You and We are in trade;

(b) NextMinute is made available by Us, and used by You, in trade;

(c) these Terms are an agreement in writing between You and Us;

(d) these Terms are fair and reasonable; and

(e) sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply to, or directly or indirectly in connection with, Your use of NextMinute.

3. Your Use of NextMinute

3.1 You agree that You are responsible for any and all activity that results from Your use of NextMinute.

3.2 You warrant, represent and agree that you are acquiring the right to access and use NextMinute and are agreeing to these Terms for the purposes of a business and in trade and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non business consumers in any jurisdiction does not apply to the supply of NextMinute, the NM Website and / or these Terms. Without limitation, for the purposes of the Fair Trading Act 1986, You warrant, represent and agree that You are not a “consumer” and that these Terms are not a “consumer contract” for the purposes of the Fair Trading Act 1986.

3.3 You agree that You will use NextMinute in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Your country of residence.

3.4 You agree not to, and will not permit or encourage any third party to

(a) Use NextMinute for any illegal or malicious means or to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains a virus or that is otherwise objectionable (as determined by NM in its sole discretion),

(b) Upload, transmit or otherwise distribute content that infringes upon another parties’ intellectual property rights or other proprietary, contractual or fiduciary rights or obligations,

(c) Prevent others from using NextMinute,

(d) Copy, reproduce modify, adapt, reverse-engineer or decompile NextMinute in whole or in part, or

(e) Use NextMinute for any form of emergency service or law enforcement.

3.5 We reserve the right, but shall have no obligation, to investigate Your use of NextMinute in order to determine whether a violation of these terms has occurred or to comply with any applicable law, regulation, legal process or Governmental request.

4. Your Account with Us

4.1 You agree to provide true, accurate and current information in respect of your account with Us (“Account”), and to promptly notify Us of any changes to such information.

4.2 You are responsible for maintaining the security of your Account and the password for Your Account. We will not be liable for any loss or damage if you fail to comply with this obligation.

5. NextMinute Availability and Support

5.1 We aim to have NextMinute available for use 99.9% of the time, and will act as soon as reasonably practicable to restore your access to NextMinute in the event of any partial or total breakdown of, or inability to use, NextMinute. Importantly, while the previous sentence reflects our intention, it is not, nor is it intended to be, a legally enforceable obligation. As noted in clause 2.4, We provide no warranty, representation or undertaking that NextMinute will be uninterrupted, timely, secure or error free.

5.2 While We take reasonable steps to prevent any disruption to NextMinute during any update, upgrade or maintenance of NextMinute, there may be times when NextMinute is inaccessible. Updates, upgrades and maintenance of NextMinute are usually scheduled by Us during non-peak usage times.

5.3 We are committed to providing excellent customer service and, although We cannot guarantee response times, We aim to respond to most technical support issues within hours.

5.4 In the event that urgent support is required, We will take reasonable steps to assist You. Email support is generally available 24 / 7 and phone support available 9.00am to 5.00pm Monday to Friday based on Pacific time GMT plus 12.

5.5 Notwithstanding anything in this clause 5, We will not be liable to You or to any third party for any inability to use, or failure to provide support for, NextMinute and / or the Website.

6. Fees and Payment

6.1 The fees charged for use of NextMinute are as set out on the Website or otherwise agreed between You and Us in writing (“Fees”). Fees are charged in advance either on a monthly or annual basis (depending on the plan you have signed up for) and are non-refundable. We will not be held liable in any way for any lack of refunds in connection with NextMinute.

6.2 If you are carrying out a free trial of NextMinute (as offered) the free trial will begin on the day your Account is opened and end 14 days later. At the end of the free trial period, You will need to provide a valid credit card number and or provide authority for payment by way of ongoing direct credit, in order to future use NextMinute. You may terminate your Account by sending an email to us at support@nextminute.com within 14 days with the subject line “cancel”.

6.3 We will charge your credit card for any upgrade You subscribe to in respect of NextMinute at the start of the next monthly or annual billing cycle for your Account.

6.4 Monthly Fees are subject at all times to change by Us giving 30 days’ notice, which will be posted on the Website. We will not be liable to You or any third party for any modification to the Fees.

6.5 Annual Fees are subject to a change by Us giving 30 days’ notice before the end of the 12 month period, posted on the Website. We will not be liable to You or any third party for any modification to the Fees.

6.6 Fees for New Zealand or Australian subscriptions exclude GST. If purchased in New Zealand or Australia You must pay Us any applicable GST amount in addition to the Fees.
Purchases outside New Zealand or Australia will be established in local currencies and exclude local taxes. You agree to indemnify and hold Us harmless against any and all claims by any tax authority for any under payment of any sales, use, goods and service, value added or other tax or levy, and any penalties and / or interest.

7. Our Intellectual Property Rights and Your Data

7.1 You agree that title to, and all intellectual property, proprietary or other industrial rights (whether registered or unregistered, registerable or unregisterable) (“Intellectual Property Rights”) in connection with NextMinute and / or the Website, including any improvements, enhancements, modifications or adaptations to the same, shall be and at all times remain the property of NM.

7.2 At no time will We have any ownership interest in or to any of the data inputted by You into NextMinute, whether through your mobile device, an application programming interface or otherwise (“Your Data”). All title to, responsibility for and control over the Your Data will remain with You. It is Your responsibility to maintain copies of all Your Data inputted into NextMinute. We adhere to our own best practice policies and procedures to prevent Data loss but do not make any guarantee that there will be no, and will have no liability of any nature to You or any other person for any, loss of Your Data.

7.3 If you enable third party applications for use with NextMinute, You agree that We may allow, and You irrevocably consent to us allowing, providers of those third party applications to access Your Data as required for the inter-operation of such third party applications with NextMinute.

7.4 We will not be liable to You or to any third party for any inaccuracy, incompleteness or error in or concerning Your Date or any modification or deletion of Your Data, no matter how caused.

7.5 You acknowledge that We do not have any ownership interest in or to any of the data inputted into NextMinute, or otherwise made available through NextMinute, by a third party who is not You (“Third Party”), whether through that Third Party’s mobile device, an application programming interface or otherwise (“Third Party Data”) or to that Third Party’s Intellectual Property Rights. All title to, responsibility for and control over the Third Party Data and that Third Party’s Intellectual Property Rights will remain with the relevant Third Party.

7.6 You access and use Third Party Data through NextMinute solely at Your own risk. We do not, and will not, provide any warranty, representation or undertaking of any nature about Third Party Data and, without limitation, we do not, and will not, warrant or represent that:

(a) Third Party Data is accurate, complete or error free;

(b) any application programming interface used to access Third Party Data will be uninterrupted, virus-free or error-free or that defects will be corrected.

7.7 We will not be liable to You for any claim, loss, demand or damages of any kind (including but not limited to direct, indirect, incidental, special or consequential loss) arising out of or in connection with Your access to, use of or reliance on any Third Party Data.

8. Confidentiality and Privacy

8.1 Subject to this clause 8, the Parties each agree to keep confidential, and not disclose to any third Party, any information that is exchanged between the Parties (whether in writing, verbally or electronically) (“Confidential Information”), unless the disclosure

(a) Has been authorised in writing by the other Party,

(b) Is required in order for the Party to comply with or exercise its rights and obligations under these Terms;

(c) Is made to the relevant Parties personnel, representatives or professional advisors so long as they agree to be bound by the same standards of confidentiality as contained in these terms; or

(d) Is required by law or any legislative or regulatory authority.

8.2 Each Party’s obligations under this clause 8 will survive termination of these terms.

8.3 The obligations in clause 8.1 shall not apply to any information which

(a) Is or becomes public knowledge other than by any breach of these Terms;

(b) Is received from a third Party who lawfully acquired it and who is under no obligation restricting its disclosure;

(c) Is in possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party; or

(d) Is independently developed without access to the Confidential Information.

8.4 We maintain a Privacy Policy on Our Website that sets out the Parties’ privacy obligations in respect of Your Data. You should read that Policy. By accepting these Terms through the use of NextMinute, You accept and agree to comply with that Policy.

9. Limitation of Liability

9.1 You agree that, to the maximum extent permitted by law, We will not be liable for any claim, loss, demand or damages of any kind (including but not limited to any direct, indirect, incidental, special or consequential loss, or loss of Your Data, profits and anticipated savings) or damage resulting from the use of, or reliance on, NextMinute and / or the Website.

9.2 Without limiting clause 9.1, if You suffer loss or damage as a result of NM’s negligence or failure to comply with these Terms or other act or omission of NM, Your sole claim and recourse against NM arising from NM’s negligence, failure, act or omission will be limited in respect of any one incident, or series of connected incidents, to the credit balance of Your Account. If you are not satisfied with NextMinute and / or the Website, You may terminate Your Account in accordance with clause 11.

10. Indemnity

10.1 You agree to indemnify, and will keep indemnified, NM against all forms of liability, actions, proceedings, demands, costs, charges and expenses which NM may incur or be subject to or suffer as a result of, or in connection with, Your use of NextMinute and / or the Website.

11. Termination

11.1 If you breach any provision in these Terms, NM may at its discretion terminate or suspend for any period of time Your Account and Your use of NextMinute and the Website.

11.2 You may terminate Your Account at any time on 30 days’ notice by sending an email to us at support@nextminute.com with the subject line “cancel”.

11.3 NM is not liable for any loss or damage following, or as a result of, the termination of suspension of Your Account, and it is Your responsibility to ensure that any content or Data which you require is backed up or replicated before termination.

11.4 Where Your Account is terminated under these Terms, the value of any unused subscription or other credit in relation to Your Account is non-refundable.

11.5 Clauses 7 to 10 and 12 shall survive the expiry or termination of these Terms.

12. General Provisions

12.1 These Terms represent the entire agreement between the Parties in relation to the use of the Website and NextMinute and supersede any prior agreement, understanding or arrangement between the Parties in relation to such matters, whether oral or in writing.

12.2 We will not be bound by, and by accepting these Terms You irrevocably agree that you have not relied on and will not rely on, any warranty or representation which is not expressly included in these Terms.

12.3 No person who is not NM (including a person described as a “NextMinute Partner” or any other person who is not NM and who is involved in the selling, marketing or onboarding of NextMinute) is authorised by Us to bind us or to provide any warranty, representation, undertaking, statement or guarantee on behalf of Us.

12.4 Clauses 12.2 and 12.3 are additional to, and do not limit, clause 12.1.

12.5 You may not assign or transfer, or agree to assign or transfer, any of Your rights and obligations in relation to NextMinute, the Website and / or these Terms to any other person with NM’s prior written consent.

12.6 You may not publish or use NM’s brand, branding or logos except with our prior written consent.

12.7 If any part or provisions of these Terms is found by a Court or other competent Authority to be invalid, unenforceable, or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplished the original purpose of that part or provision. The remainder of the Terms will be binding on the Parties.

12.8 If NM waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

12.9 A person who is not a party to these Terms has no right or benefit under or to enforce any of the provisions of these Terms.

13. Jurisdiction

13.1 These Terms will be governed by and construed in accordance with the laws of New Zealand and the Parties submit to the exclusive jurisdiction of the Courts of New Zealand for any matter arising under or relating to these Terms. NextMinute is a New Zealand owned and operated business.