Terms and conditions |

SMARTSPOTTER END USER LICENCE AGREEMENT & TERMS OF USE
SmartSpotter Australia Pty Ltd ABN 25 602 319 933

INTRODUCTION

A. This End User Licence Agreement & Terms of Use constitutes a legally binding agreement (“Agreement”) between you as a User (also called a “Spotter”) and SmartSpotter Australia Pty Ltd ABN 25 602 319 933, a company incorporated in Australia, which governs your use of the SmartSpotter Software in New Zealand and your undertaking of Tasks.

B. By creating an account, or by downloading, accessing or using the Software, you agree to be bound by the terms and conditions of this Agreement as set out below. You agree that this Agreement may be entered into, and Notices under it may be given, electronically, in accordance with Part 4 of the Contract and Commercial Law Act 2017.

C. If you do not accept the terms of this Agreement, you are not authorised to create an account or use the SmartSpotter Software.

D. Nothing in this Agreement excludes, restricts or modifies any rights you have under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or any other law that cannot be excluded (see clause 7).

E. Before accepting this Agreement, you have had a reasonable opportunity to seek independent advice about it.

OPERATIVE PART

1. Meaning of words

In this Agreement:

(a) Approved Balance means the total of the Fees for your Submissions that we have approved under clause 6 and not yet paid to you, less any amount we are entitled to deduct under this Agreement;

(b) CGA means the Consumer Guarantees Act 1993;

(c) Client means any client of SmartSpotter (such as a brand owner, supplier or retailer) who commissions Tasks accessed by you through the Software;

(d) Confidential Information has the meaning given in clause 19(a);

(e) Content means all information and content within, accessed through or generated by the Software, other than Submissions;

(f) Fee and Fees means the amount payable to you by SmartSpotter for a Task that we approve, as shown in the Software and in accordance with clause 6 and Schedule 1;

(g) GST means goods and services tax under the Goods and Services Tax Act 1985;

(h) Intellectual Property means, whether registered or not, all copyright, designs and industrial designs, circuit layouts, trade marks, service marks and commercial names and designations, trade secrets, know-how, confidential information, patents, inventions and discoveries, literary, artistic and scientific works, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

(i) Moral Rights means the rights conferred by Part 4 of the Copyright Act 1994 (including the right to be identified as author, the right to object to derogatory treatment of a work and the right not to have a work falsely attributed), and any similar rights anywhere in the world;

(j) Notice includes a disclaimer, a disclosure or other statement and a consent provided in writing;

(k) NZ$ and $ mean New Zealand dollars;

(l) Privacy Policy means our privacy policy as published on our website and in the Software from time to time;

(m) related body corporate means a related body corporate of SmartSpotter Australia Pty Ltd within the meaning of the Corporations Act 2001 (Cth) of Australia;

(n) SmartPoints means the reward points that may be credited to your account for approved Tasks, as described in clause 6(k);

(o) SmartSpotter, we, us and our refer to SmartSpotter Australia Pty Ltd ABN 25 602 319 933, a company incorporated in Australia. SmartSpotter Australia Pty Ltd is the only party contracting with you under this Agreement and is solely responsible for paying Fees to you. Our related bodies corporate are not parties to this Agreement and have no obligations to you under it. For the purposes of subpart 1 of Part 2 of the Contract and Commercial Law Act 2017, clauses 8 (Indemnity) and 12 (Intellectual Property) are intended to confer a benefit on our related bodies corporate, to the extent those clauses refer to them, and may be enforced by them. No other clause confers a benefit on, or is enforceable by, any person who is not a party to this Agreement. We do not share your personal information with our related bodies corporate (see clause 10);

(p) Software means the SmartSpotter mobile application and related online services, as licensed, developed and amended by us from time to time;

(q) Submission means all photos, answers, data, recordings and other material that you create, capture or submit in connection with a Task, including any associated metadata (such as time, date and location data);

(r) Task means an assignment commissioned by a Client and made available by us through the Software, which you may view, apply for, accept and complete;

(s) Task Instructions means the instructions, questionnaire and quality criteria for a Task as shown in the Software at the time you accept the Task;

(t) User, Spotter and you mean you, the individual end-user of the Software;

(u) website means www.smartspotter.com/en-nz and any variation or tailored version of the website created for your use;

(v) Working Day means a day other than a Saturday, a Sunday, a public holiday in New Zealand, or a day in the period from 25 December to 2 January (inclusive); and

(w) the singular includes the plural and vice versa.

2. Licence to use the Software

(a) We grant you a limited, non-exclusive, non-transferable licence to download and use the Software on a mobile device you own or control in order to:

(i) view, apply for, accept and complete Tasks as available from time to time;

(ii) view and amend your account information, including submitting payment requests; and

(iii) access the Content.

(b) The licence granted under clause 2(a):

(i) continues until this Agreement is terminated;

(ii) does not constitute a sale of the Software;

(iii) does not include any right to sublicense the Software; and

(iv) is subject to your compliance with the terms of this Agreement.

3. User obligations

(a) You are responsible for your use of the Software. This includes but is not limited to:

(i) keeping your log-in details and password secure;

(ii) keeping your mobile device reasonably secure (for example, by using a screen lock) to prevent unauthorised or inappropriate use of the Software; and

(iii) keeping your mobile device’s operating system and the Software reasonably up to date, and meeting your own mobile data and device costs.

(b) Subject to clause 7(a), you acknowledge that you have relied on your own skill, knowledge, experience and judgement to decide that the Software meets your requirements.

(c) You confirm that you undertake Tasks as a private hobby or recreational pursuit, and not in carrying on a business. You are not an employee of SmartSpotter or any Client, and this Agreement is not an employment agreement. You are free to choose whether, when and how often to accept Tasks; you are not required to perform Tasks, or to be available, at any particular time, on any particular day or for any minimum period; you are under no obligation to accept any Task; and, except while you are performing a Task, you are free to work for anyone else. We will not close or restrict your account because you decline, or do not accept, any Task. Before your first payment you must confirm in the Software, by ticking the hobby declaration, that you undertake Tasks as a private hobby or recreational pursuit and not as a business. We keep a record of your declaration. Inland Revenue generally treats income from a genuine hobby as not taxable, but whether an activity is a hobby or a business depends on your own circumstances, and you are responsible for your own tax affairs. If your circumstances change and you begin carrying on a business, you must tell us and provide your IRD number and, if you are registered for GST, your GST number. Nothing in this Agreement prevents us from making any deduction from a payment to you where required by law.

(d) You are responsible for any fines, taxes and other payments due to public authorities directly or indirectly incurred by you through your use of the Software and your undertaking of Tasks. This includes reporting any income to the relevant taxation bodies and other government authorities where required.

(e) You must not submit photos to SmartSpotter using the Software that are not relevant to the completion of a Task. This includes but is not limited to:

(i) sexually suggestive photos;

(ii) photos that depict violence; or

(iii) photos whose main subject is third-party copyright material (such as artworks, posters, books or screens) unless the Task Instructions require it. The incidental capture of product packaging, labels, shelf displays, price tickets, promotional material and store signage in the course of completing a Task is permitted.

You must not deliberately take photos of other persons while using the Software (see clause 10(h)).

(f) You must comply with any conditions of entry of retail stores entered while using the Software, including any reasonable directions of retail store owners, employees, security or shopping centre staff.

(g) While using the Software, you must comply with any request or direction by relevant persons, including but not limited to those referred to in clause 3(f), to stop taking photos or to leave the premises of a retail store, shopping centre or related area. You must also comply with clause 20 (Safety).

(h) We may withdraw or amend a Task at any time before you have submitted it, without the payment of any Fee or other amount to you. A Task that you have already submitted will be reviewed under clause 6 on the basis of the Task Instructions that applied when you accepted it.

(i) You must complete each Task personally and honestly. You must not sub-contract, outsource or otherwise arrange for the completion of a Task by another person or agent.

4. User accounts

(a) To access and use the Software, you will need to download the SmartSpotter mobile application and open an account with SmartSpotter.

(b) To use our Software, you must be located within New Zealand and be 18 years or older.

(c) You are responsible for maintaining the security and confidentiality of your user credentials and password and ensuring that your account details remain accurate and up to date.

(d) You are responsible for all activities that occur under your account. You agree to notify us immediately of any unauthorised use of your account or any other breach of security.

(e) We are not liable for any loss you incur as a result of someone else using your password or account, unless that use was caused by our failure to take reasonable steps to keep our systems secure. You are liable for losses incurred by us or another party due to someone else using your account or password, to the extent that use was caused by your failure to keep your account, log-in details or device secure.

(f) Subject to clause 14, we may suspend your account if we reasonably believe that:

(i) you are committing fraud;

(ii) you are trying to influence or manipulate the results generated by the completion of a Task; or

(iii) you have breached this Agreement.

(g) You may not use anyone else’s account at any time, nor assign or transfer your account to any other person.

(h) You agree to maintain and update your user information, data and password as required to keep them accurate, current and complete.

(i) You agree that we may store and use the information and data you provide to us. All personal information will be held and used in accordance with clause 10 and our Privacy Policy.

(j) You agree that your payment information (including your bank account details) will be held by us for use in maintaining your account and for the payment of Fees to you.

(k) You acknowledge and agree that we may establish general practices and limits for the use of the Software, including without limitation:

(i) the maximum period for which Content is retained in the Software;

(ii) the maximum number of Tasks you may accept or hold at any one time; and

(iii) the maximum number of times (and the maximum duration for which) you may access the Software in a given period.

(l) Subject to clause 7, we are not responsible for the deletion of, or failure to store, any Content maintained or transmitted by or via the Software.

5. Software updates and modifications

(a) We do not make any warranty that we will release updates, patches or fixes in relation to any defects in the Software. Any updates to the Software will be made at our discretion.

(b) We may modify the Software at any time in accordance with our normal maintenance and update release process. Subject to clause 7(a), if you are dissatisfied with a modification, your remedy is to stop using the Software and delete your account under clause 14(a).

6. Fees, SmartPoints and payment

(a) Before you accept a Task, the Software will show you the Fee and/or SmartPoints for that Task and the Task Instructions. The Fee and/or SmartPoints shown when you accept a Task are the Fee and/or SmartPoints you will receive if your Submission is approved.

(b) The Fees payable to you by SmartSpotter are paid in accordance with this clause 6 and Schedule 1.

Review of Submissions

(d) We may only reject a Submission if:

(i) it does not meet the Task Instructions or quality criteria shown in the Software; or

(ii) we reasonably suspect fraud or manipulation (including that the Task was not genuinely completed by you in person as instructed).

(e) If we reject a Submission, we will tell you the reason in the Software.

(f) You may request a review of a rejection by contacting us through the Software or by email to the address in clause 18 within 7 days after we notify you of the rejection. We will consider your request and respond with our decision and reasons within 10 Working Days.

(g) If we approve a Submission, the Fee is credited to your Approved Balance and any SmartPoints are credited to your account. If we later reasonably determine that a Submission for which Fees or SmartPoints were credited or paid was fraudulent or manipulated, we may reverse the credit, deduct the relevant amount from your Approved Balance or future Fees, or require you to repay it. We will tell you the reason, and you may request a review under clause 6(f).

Payment

(h) We make payments on the Friday following the receipt of a payment request. You may choose to be paid:

(i) automatically once your Approved Balance reaches NZ$20 or more; or

(ii) by submitting a manual payment request.

(i) A flat transaction fee of NZ$2.00 applies to every payout of your Approved Balance, regardless of the amount withdrawn and whether the payout is made automatically or on a manual payment request. We deduct this transaction fee from the amount paid to you. The transaction fee will never exceed the amount paid to you: if the Approved Balance to be paid is NZ$2.00 or less, no payout is made and no fee is charged, and the balance stays in your account until it exceeds the fee. No transaction fee applies to a payment under clause 6(n) or 14(g) (closure of your account by us) or to a withdrawal under clause 17(c) (if you do not agree with a change to this Agreement); those payments are made in full, whatever the amount.

(j) We pay Fees by transfer to the New Zealand bank account you nominate in the Software. Transfers can take up to 5 Working Days to reach your account.

SmartPoints

(k) SmartPoints may be credited for approved Tasks, as shown in the Software before you accept the Task. SmartPoints:

(i) have no cash value and cannot be exchanged for money, except as stated in the Software;

(ii) cannot be transferred or sold to any other person; and

(iii) do not expire while your account is open. What happens to SmartPoints when your account is deleted or closed is set out in clauses 6(m) and 6(n).

GST

(l) Fees are stated exclusive of GST. If you are registered for GST in New Zealand and have given us your GST number, we will pay you an additional amount equal to the GST payable on the Fee, on receipt of the taxable supply information required under the Goods and Services Tax Act 1985.

Deletion or closure of your account

(m) If you delete your account, clause 14(b) applies. This means that any Approved Balance you have not withdrawn before deletion, and all of your SmartPoints, are forfeited or lapse on deletion and cannot be recovered.

(n) If we close or terminate your account for any reason (including under clause 14(c), 14(f) or 14(h)), we will pay your Approved Balance on the next payment date, with no transaction fee, except for any amount relating to a Submission that we reasonably determine was fraudulent under clause 6(g). Any SmartPoints that the Software states can be converted into money will be converted and paid with your Approved Balance; all other SmartPoints lapse on closure.

7. Limitation of liability

(a) If you acquire the Software or our services as a consumer, they come with guarantees under the CGA that cannot be excluded. Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee or other term, under the CGA, the Fair Trading Act 1986 or any other law, which cannot lawfully be excluded, restricted or modified.

(b) Subject to clause 7(a), to the extent permitted by law, we exclude the application of all terms, conditions, warranties and representations, express or implied, by statute or otherwise.

(c) Subject to clause 7(a), we do not warrant that the Software or Content is free from defects or that it will perform in compliance with any specifications or your requirements. We do not guarantee uninterrupted access to and use of the Software and Content at all times.

(d) Subject to clauses 7(a) and 7(e), neither we nor any of our employees, agents or officers are liable to you for any loss, harm or liability, or any costs, charges or expenses you or a third party may incur in connection with or arising from us providing the Software or Content or your undertaking of Tasks (including any interruption, inaccuracy, error or omission), except to the extent caused or contributed to by our negligence, our breach of this Agreement or our wilful misconduct (or that of our employees, agents or officers). This applies whether a claim arises in contract, in tort (including negligence), under statute or otherwise.

(e) Nothing in this Agreement excludes or limits our liability for death or personal injury caused by our negligence, or for our fraud or wilful misconduct.

8. Indemnity

(a) You agree to indemnify SmartSpotter and its related bodies corporate against any claims, actions, damages, losses, costs (including reasonable legal costs) or demands to the extent they arise out of:

(i) your breach of this Agreement;

(ii) your breach of any law; or

(iii) any wilful or negligent act or omission by you in using the Software or undertaking Tasks.

(b) Your liability under clause 8(a) is reduced to the extent that the relevant claim, loss or cost was caused or contributed to by us, our related bodies corporate or our or their employees, agents or officers (including by our negligence, our breach of this Agreement or the content of the Task Instructions).

9. Software security

(a) We take reasonable steps to keep all data and information secure while it is in our systems. However, no information or media transmitted over the internet or through a mobile application is completely secure, and we cannot guarantee that it is secure.

(b) Subject to clause 7, we do not guarantee that our Software is free from viruses or that access to our Software will be uninterrupted.

10. Information about you & your privacy

(a) When you download and use our Software, we collect personal information about you, including:

(i) your name and contact details (such as your email address, phone number and postal address);

(ii) your profile details, including your profile picture, gender, date of birth and whether you have a car available;

(iii) details of people you refer to us as new Spotters (such as their name and email address);

(iv) your bank account details and any tax information you give us (such as your IRD number or GST number, if you provide them, and your hobby declaration);

(v) identifiers of the device you use to access the Software;

(vi) location data while the Software is in use (for example, to show you nearby Tasks and to verify that a Task was completed at the correct store); and

(vii) photos and other Submissions, including their metadata (such as time, date and location).

(b) We use this information to manage your account, offer you Tasks, review and verify Submissions, pay you, deliver results to Clients, show the Spotter ranking, invite people you refer, send you marketing emails if you have agreed to receive them, maintain and improve the Software, and comply with the law. We will only send you marketing emails with your consent, as required by the Unsolicited Electronic Messages Act 2007, and every marketing email will include a functional unsubscribe facility.

(c) We do not share your personal information with Clients, our related bodies corporate or anyone else, except as set out in clause 10(d). Clients receive only the results of a Task (the photos and answers in your Submission). Clients never receive your name, contact details, bank details or any other details that identify you.

(d) We share your personal information only with:

(i) Amazon Web Services (AWS), which hosts the Software and our data on servers located in the Netherlands (see clause 10(e));

(ii) our bank and our payment platform provider, Payment Logic, to process payments to you;

(iii) service providers that help us run the app and website (such as analytics providers);

(iv) other Spotters, who can see only your first name, profile picture and ranking position in the Spotter ranking; and

(v) any person to whom we are required by law to disclose it.

(e) Our Software and data are hosted by Amazon Web Services (AWS) on servers located in the Netherlands. This means your personal information is stored outside New Zealand. AWS stores and processes the information only on our behalf and not for its own purposes, so under section 11 of the Privacy Act 2020 we remain responsible for it. We take reasonable steps to ensure that it is protected in a way that is consistent with the information privacy principles in the Privacy Act 2020, and AWS is also subject to the European Union’s General Data Protection Regulation. Some of our other service providers may also process information outside New Zealand, as described in our Privacy Policy. To the extent that information privacy principle 12 (disclosure of information outside New Zealand) applies to any disclosure, we will only make that disclosure as permitted by that principle. As SmartSpotter is an Australian company, your personal information may also be accessed by our staff in Australia.

(f) Submissions (including photos and answers) belong to SmartSpotter (see clause 12) and are kept indefinitely as business records and Client deliverables, including after your account is deleted or closed. Where reasonably practicable, we de-identify Submissions from your account when it is deleted. When your account is deleted, we delete your other personal account data, except records we must keep by law (such as payment and tax records and, where applicable, your hobby declaration, which we keep for 7 years as required by the Tax Administration Act 1994).

(g) We handle personal information in accordance with the Privacy Act 2020. If we collect personal information about you from someone other than you, we will tell you about it as required by information privacy principle 3A, unless an exception applies. Our Privacy Policy, available on our website and in the Software, explains in more detail how we collect, use, hold and disclose personal information, how you can access and correct your personal information, and how you can make a privacy complaint. If you are not satisfied with our response to a privacy complaint, you may complain to the Privacy Commissioner (www.privacy.org.nz).

(h) If any person is identifiable in a photo you take for a Task, you must retake the photo where reasonably possible so that no person can be identified. We may blur, crop or delete any image of a person in a Submission before it is provided to a Client.

(i) You must not make any audio recording of any person (including video with sound) unless the Task Instructions expressly instruct you to do so, doing so is lawful (including under Part 9A of the Crimes Act 1961) and all consents required by law have been obtained.

11. Third party websites

(a) The Software may contain links to other products and services of third parties. We do not endorse or otherwise approve the owners or operators of any third party business or website, the information, graphics and material on those websites, or the goods or services (including software) offered on those websites.

(b) Subject to clause 7, we are not responsible or liable for, and give no warranty in respect of, any third party website, application or the goods and services (including software) offered by a third party.

(c) We may receive payments from third parties in relation to goods or services supplied or received as a result of users accessing third party services or any links to third party applications or websites contained in our Software or website.

(d) Third party applications and websites are not subject to our privacy standards, so you should review the privacy policy and any other relevant notice that appears on a third party application or website.

12. Intellectual Property

(a) You acknowledge that all Content and Intellectual Property held, located within and related to our Software is the property of SmartSpotter, its related bodies corporate or their licensors and is protected by Intellectual Property law. Nothing in this Agreement conveys or vests to you any interest or ownership in SmartSpotter’s Content or Intellectual Property.

(b) Any improvements, suggestions, ideas, enhancement requests, feedback, recommendations or other information you provide to or jointly develop with SmartSpotter that becomes a part of the Software belongs solely to SmartSpotter.

(c) Other than as permitted under the Copyright Act 1994, you must not reproduce, upload to a third party, link to, frame, store in a retrieval system or transmit any part of the Software or Content without our prior written consent.

(d) Our Software and Intellectual Property includes trade marks owned by us or our related bodies corporate. You must not use any of these trade marks in any way without our prior written consent.

(e) You must not, without our prior written consent, redistribute or resell the Software or Content or the Intellectual Property in the Software or Content.

(f) You agree that you will not do or cause to be done any act or thing that may impair any of SmartSpotter’s Intellectual Property rights in connection with the Software or Content.

(g) You agree that you must not:

(i) copy, sell, market, license, sublicense, lend, distribute, transmit, rent, lease, upload, post, electronically transfer or otherwise assign or transfer, or directly or indirectly permit any third party to use, access, exploit or copy, any part of the Software or Content;

(ii) copy ideas, features, functions or graphics of the Software or Content for use in another product or service; or

(iii) incorporate or use the Software or Content in whole or in part in any other software, service or product.

Submissions

(h) You assign to SmartSpotter all Intellectual Property in every Submission, with effect on and from its creation. To the extent that any Intellectual Property in a Submission does not vest in SmartSpotter on creation, you agree to assign it to SmartSpotter on request.

(i) To the extent that any Intellectual Property in a Submission cannot be assigned, you grant SmartSpotter an exclusive, perpetual, irrevocable, worldwide, royalty-free licence to use, reproduce, modify, adapt, publish and communicate that Submission for any purpose, with the right to sublicense those rights (including to Clients).

(j) SmartSpotter may provide Submissions to Clients and grant Clients rights to use them.

(k) For the purposes of section 107 of the Copyright Act 1994, you consent to SmartSpotter, its related bodies corporate, Clients and anyone authorised by them doing any act or making any omission in relation to a Submission that would otherwise infringe your Moral Rights, including: not identifying you as the author; cropping, editing, altering, blurring or adapting a Submission; and combining it with other material or using it in any context. You agree not to assert your right to be identified as the author of any Submission.

(l) You warrant that each Submission is your own work, created by you personally while completing the relevant Task, and that (except for incidental capture permitted under clause 3(e)) it does not infringe the Intellectual Property or other rights of any person.

13. Permitted use and licence

(a) You agree not to use the Software or Content:

(i) for any purpose that is unlawful or prohibited by this Agreement;

(ii) in any manner that could damage, disable, overburden or impair our servers or the networks connected to our servers, or interfere with any other party’s use and enjoyment of the Software;

(iii) to attempt to gain unauthorised access to any service, other accounts, computer systems or networks connected to our servers through hacking, password mining or any other means;

(iv) to attempt to obtain any materials or information through any means not intentionally made available through our Software;

(v) to offer or provide a commercial bureau or application service provider service;

(vi) to transmit or otherwise make available any content or media that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

(vii) to impersonate any person or entity;

(viii) to transmit or otherwise make available any content that you do not have a right to make available under any law or which infringes any patent, trade mark, trade secret, copyright or other proprietary rights of any party;

(ix) to transmit or otherwise make available any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation;

(x) to stalk or otherwise harass another person; or

(xi) to collect or store personal data about other users.

(b) You agree not to:

(i) modify, customise, reverse engineer or disassemble the Software;

(ii) input or store materials in the Software containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;

(iii) interfere with or disrupt the integrity or performance of the Software; or

(iv) circumvent, alter or modify any security or access-control mechanisms in the Software.

(i) refuse the transmission of any Content via the Software;

(ii) subject to clause 14, refuse access to or use of the Software;

(iii) move any Content that is available via the Software;

(iv) remove any Content that breaches this Agreement or is otherwise reasonably considered by us to be objectionable; and

(v) preserve or disclose Content or Submissions if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (A) comply with legal process; (B) enforce this Agreement; (C) respond to claims that any content violates the rights of third parties; or (D) protect our rights or property or the personal safety of our staff, other users and the public. Any disclosure of personal information under this clause 13(c)(v) is limited to disclosures permitted by clause 10.

14. Suspension, termination and modification of Software

Deletion of your account by you

(a) You may delete your account at any time in the Software (or, if you cannot access the Software, by asking us to delete it by email to the address in clause 18).

(b) Before you delete your account, the Software (or, for a request by email, we) will prompt you to withdraw any Approved Balance of NZ$20 or more. If you choose to delete your account without withdrawing that balance, you acknowledge and agree that you voluntarily forfeit any remaining Approved Balance and all SmartPoints, and that these cannot be recovered. Any Approved Balance below the NZ$20 payment threshold, and all SmartPoints, lapse on deletion.

Suspension or closure of your account by us

(c) We may suspend, limit or close your account if we reasonably believe that you have breached this Agreement or our Privacy Policy, have committed fraud or have tried to manipulate the results of a Task, or if we are required to do so for legal or regulatory reasons.

(d) Except where we reasonably believe that you have committed fraud or a serious breach of this Agreement (including a breach of clause 3(f), 3(g), 19 or 20), or where we must act immediately for legal or regulatory reasons, before we close or deactivate your account we will give you notice with our reasons and at least [14] days to respond, and we will consider any response you give us.

(e) Where we suspend or close your account immediately under the exception in clause 14(d), we will notify you by email, with our reasons, within five (5) Working Days, and you may respond to us. If, after considering your response, we decide the suspension or closure was not justified, we will reinstate your account.

(f) If you have not logged in to the Software for [12] months, we may close your account for inactivity after giving you at least 14 days’ notice by email. Your account will stay open if you log in during the notice period. Declining or not accepting Tasks is not, by itself, inactivity for this purpose if you continue to log in.

(g) If we close or terminate your account for any reason, we will pay your Approved Balance in accordance with clause 6(n), unless the relevant amount relates to fraud.

Modification or discontinuance of the Software

(h) We may modify or discontinue the Software or Content (or any part of it), temporarily or permanently. We will give you reasonable notice of any permanent discontinuance where practicable, and if we close your account as a result, clause 14(g) applies. Subject to clause 7, we are not liable to you or to any third party for any modification, suspension or discontinuance of the Software, Content or our related services.

Effect of deletion or closure

(i) When your account is deleted or closed for any reason, your licence to use the Software ends, and your personal information is dealt with as described in clause 10(f). Clauses 3(d), 6(g), 6(m), 6(n), 7, 8, 10, 12, 14(b), 14(g), 16, 19 and 21 continue to apply after deletion or closure.

15. Notice

(a) SmartSpotter may give Notice under this Agreement by means of a notice in the Software, on our website, or by email to the address registered in your account, except where this Agreement requires a particular method.

(b) You may give Notice to SmartSpotter under this Agreement by email to the address in clause 18.

16. Jurisdiction, severability and waiver

(a) This Agreement is governed by the laws of New Zealand, and we both agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.

(b) If any provision of this Agreement is or becomes void, voidable or unenforceable, that provision is deemed to be severed and the remaining provisions will continue to have full force and effect.

(c) Any failure or delay by SmartSpotter in exercising any right, power or privilege available to us will not operate as a waiver of that right, power or privilege.

17. Changes to this Agreement

(a) This document sets out our current End User Licence Agreement & Terms of Use for our Software. It replaces any previous version which we have issued.

(b) We may change this Agreement (including Schedule 1 and the SmartPoints rules) from time to time. We will give you at least 30 days’ notice of any change, by email and by notice in the Software, before the change takes effect. If a change is required by law, we will give you as much notice as is reasonably practicable.

(c) If you do not agree with a change, you may withdraw your Approved Balance and delete your account under clause 14(a) at any time before the change takes effect. For this purpose, you may withdraw your full Approved Balance even if it is less than NZ$20, and no transaction fee will apply. Clause 14(b) applies to any balance you do not withdraw.

(d) A change does not affect any Task you accepted before the change takes effect. Those Tasks (including their Fees and SmartPoints) remain governed by the terms that applied when you accepted them.

(e) If you continue to use the Software after a change takes effect, the changed Agreement will apply to you.

(f) Task listings and other general information in the Software may be updated at any time, but this does not affect Tasks you have already accepted.

18. Contacting us

If you have any questions regarding this Agreement, or wish to give us a Notice, please contact us at info‑au@smartspotter.com.au or write to SmartSpotter Australia Pty Ltd, 64 Talevera Road, Macquarie Park NSW 2113, Australia.

19. Confidentiality and anonymity

(a) Information about Tasks, Clients, stores, questionnaires and Task Instructions, your Submissions and the results of any Task (Confidential Information) is confidential to SmartSpotter and its Clients.

(b) During this Agreement and after it ends, you must keep Confidential Information confidential and use it only to complete Tasks. You must not disclose it to anyone, including on social media, forums, websites or messaging groups, or to other Spotters, except:

(i) information that is already public other than through your breach;

(ii) where you are required to disclose it by law; or

(iii) to your professional advisers (such as your tax adviser) on a confidential basis.

(c) You must not keep copies of Submissions outside the Software and must delete any photos taken for a Task from your device once they have been uploaded through the Software.

(d) You must not disclose to store staff, or to anyone else at the store, that you are performing a Task or that you are a SmartSpotter Spotter, unless the Task Instructions say so. This does not prevent you from complying with clauses 3(f), 3(g) and 20.

20. Safety

(a) Your safety comes first. No Task requires you to put yourself or anyone else at risk. We take our responsibilities under the Health and Safety at Work Act 2015 seriously, and nothing in this Agreement limits or transfers any duty we have under that Act.

(b) While undertaking a Task, you must take reasonable care for your own health and safety, take reasonable care that what you do (or do not do) does not adversely affect the health and safety of others, and comply with any reasonable health and safety instructions given by us or by the store. In particular, you must not:

(i) climb on shelving, fixtures, displays, ladders or stands;

(ii) enter any restricted, staff-only, storage or back-of-house area;

(iii) lift, move, open or handle products in an unsafe way, or handle products that are hazardous, sharp or too heavy to handle safely;

(iv) confront, argue with or obstruct any staff member, security officer, customer or other person; or

(v) use your phone (including the Software) while driving or riding a vehicle.

(c) If at any time a situation feels unsafe, you must stop the Task and leave, and tell us through the Software or by email to the address in clause 18 as soon as practicable. You must also tell us as soon as practicable about any injury, incident or near miss that happens while you are undertaking a Task. You will not be penalised for stopping a Task for genuine safety reasons.

(d) You must comply with clauses 3(f) and 3(g) and with all laws (including road rules) while travelling to, from and undertaking Tasks.

(e) You are responsible for your own insurance (including motor vehicle insurance) while travelling to, from and undertaking Tasks.

(f) Nothing in this clause limits clause 7(e).

21. Complaints and disputes

(a) If you have a complaint or dispute about this Agreement, a Task or a payment, please contact us first by email to the address in clause 18, with details of your complaint. If your complaint is about the rejection of a Submission, please first use the review process in clause 6(f).

(b) We will respond to your complaint in writing within 20 Working Days.

(c) If the complaint or dispute is not resolved within 20 Working Days after our response, either of us may refer it to mediation by a mediator agreed between us or, failing agreement, appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). Each party bears its own costs of the mediation, and the mediator’s fees will be shared equally between the parties.

(d) Except as set out in clause 21(e), neither of us may commence court proceedings about a dispute under this Agreement until the steps in this clause 21 have been followed, except to seek urgent interim or injunctive relief.

(e) This clause does not limit your right to bring a claim in the Disputes Tribunal at any time, or to make a complaint to a regulator, such as the Commerce Commission or the Privacy Commissioner.

Schedule 1 – Fees and payment

1. The Fee and/or SmartPoints for each Task are shown in the Software before you accept the Task.

2. In the Payment section of the Software you can choose how you would like to be paid: automatically, or by manual payment request.

3. Once your Approved Balance reaches NZ$20 or more, you can choose to have it paid out automatically, or to let it build up and request payment when you choose.

4. A flat transaction fee of NZ$2.00 is deducted from every payout, regardless of the amount withdrawn and whether the payout is automatic or manually requested (except as set out in clauses 6(n), 14(g) and 17(c)). The fee will never exceed the amount paid: if the Approved Balance to be paid is NZ$2.00 or less, no payout is made and no fee is charged, and the balance stays in your account until it exceeds the fee.

5. We make payments on the Friday following receipt of a payment request.

6. Money transfers can take up to 5 Working Days to reach your bank account.

General terms and conditions for Spotters