| 1. | Definitions |
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| 1.1 |
The following expressions have the following meanings in these terms of use unless the context requires otherwise:
- "Customer" means any member of the public in New Zealand who is an end user of the Website including any person who may buy Products from you via the Website.
- "Retailer", "you" or your" means a Retailer registered by Whatsonsale as entitled to list and sell Products via the Website on the terms set out in these terms of use.
- "Product" or "Products" means a Product or Products listed by you on the Website as available for a Customer to purchase via the Website.
- "Services" means the services offered to you by Whatsonsale on the terms set out in these terms of use to provide:
- The Website as a forum for you to list Products for sale to members of the Public in New Zealand;
- The payment facilitation mechanisms referred to in these terms of use to facilitate the sale of Products by you directly to Customers via the Website.
- The incidental reporting and communications services referred to in these terms of use.
- “Whatsonsale”, “we”, “us” and “our” means Whats On Sale Limited.
- "Website” means the Website currently available at the URL Whatsonsale.co.nz.
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| 2. | Terms of use of Whatsonsale Website |
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| 2.1 | The following records the terms on which the Website owned and operated by Whatsonsale Limited at www.whatsonsale.co.nz is available for use by you. |
| 2.2 | These terms and conditions (and any later changes to them) cover all use of the Website by you, all sales of Products that you may make to Customers via the Website and all other Services. |
| 2.3 | You must apply to become a Retailer. By applying to become a Retailer you will be deemed to have accepted these terms and conditions. |
| 2.4 | You will also be deemed to have reconfirmed your acceptance of these terms and conditions (and any later changes to them that apply at the time) every time you add a new Product to the Website. |
| 2.5 | The parties to this agreement are Whatsonsale and you. |
| 2.6 | These terms and conditions are also intended to record rights and obligations as between you and each Customer to whom you may sell Products via the Website. |
| 2.7 | A reference to these terms and conditions includes any other associated policies of Whatsonsale posted on the Website. |
| 2.8 |
You acknowledge that you have read and accept the associated documents:
- Whatsonsale Customer Terms of Use;
- Whatsonsale's Delivery Policy;
- Whatsonsale's Returns Policy;
- Whatsonsale's Disputes Policy;
- Whatsonsale's Privacy Policy.
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| You accept that those documents and (and any later changes to them) form part of these terms and conditions and create obligations that bind you as the Retailer referred to in them. You will comply with all obligations of the Retailer and provide all additional information and do all other acts required of the Retailer in those documents. |
| 2.9 | You will act in good faith in all of your dealings with Whatsonsale and any Customer.You will offer services and sell Products to Customers to at least the same standard of customer care that you provide through your physical retail outlet. |
| 2.10 | You will comply with all relevant legislation relating to promoting and selling any Products or doing any other acts reasonably required to perform the Retailers obligations under these terms and conditions.That legislation may include the Consumer Guarantees Act 1993, the Sale of Goods Act 1908 and the Fair Trading Act. |
| 2.11 | You will take into account and comply with the Ministry of Consumer Affair's New Zealand Model Code for Consumer Protection in Electronic Commercewhen adding information to the Website and selling Products via the Website. |
| 3. | Changes to these terms |
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| 3.1 | These terms and conditions may be changed entirely or partially by Whatsonsale from time to time.Any changes to these terms (except changes relating to pricing - see clause 3.3 and 3.4 below) will be posted on the Whatsonsale Website and will be effective from the time that they are posted on the Website. |
| 3.2 | Itis your responsibility to keep up to date with any changes to these terms and conditions. By continuing to use Whatsonsale and adding Products for Sale via the Website you will be deemed to have confirmed your acceptance of any changes that apply at the relevant time. |
| 3.3 | Whatsonsale may change the prices stated in schedule 1 at any time.Those prices will take effect from the time that they are posted on the Website for all people who are not registered Retailers at that time. |
| 3.4 |
For Retailers that are registered Retailers Whatsonsale may change the prices stated in schedule 1 in the following manner.
- The monthly subscription fee referred to in part 1 of schedule 1 will not change during the period that the Retailer has committed to remain a Retailer.
- Whatsonsale may change the monthly subscription fee that applies from the time that the Retailers commitment to remain a Retailer expires.
- Whatsonsale may change the price of the new registration fee that may apply if a Retailer discontinues paying the monthly subscription fee at any time or these terms and conditions are terminated for any reason and the Retailer wishes later to be accepted as a Retailer.
- Whatsonsale may change the Listing Fees referred to in part 2 and the Transactions fees referred to in part 3 of Schedule 1 by giving you 15 working days advance notice of its intention to change those prices. The changes to those fees prices will then apply to all Products listed by you for sale via the Website and all sales made by you via the Websitefrom the date stated in the notice.
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| 4. | Only available in New Zealand |
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| 4.1 |
You must be:
- A Retailer of the types of products which you list for sale on the Website:
- With a physical retailing presence in New Zealand; and
- Registered for GST;
- To be eligible to register as a Retailer.
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| 4.2 | We don't accept registrations from people selling from a residential address. |
| 4.3 | All prices stated on the Website relating to Products must be in New Zealand dollars. |
| 4.4 | Products sold via the Website may only be delivered within New Zealand. |
| 4.5 | Products may only be purchased by Customers via the Website using Visa or MasterCard credit cards issued by a New Zealand registered trading bank. |
| 4.6 | You must not use the Website to advertise or trade in goods outside of New Zealand. |
| 5. | Registration, Costs and Payment for Services |
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| 5.1 | The costs of becoming a registered Retailer, the fees payable for the use of particular Services and the terms of payment are set out in Schedule 1. |
| 5.2 | You must be a registered Retailer to be entitled to sell Products via the Website. |
| 5.3 | Whatsonsale will publish acceptance criteria from time to time relating to the attributes that a trader must possess to be eligible to become registered as a Retailer. |
| 5.4 | Whatsonsale has the absolute final discretion to accept or decline an application to become registered as a Retailer. |
| 5.5 | The Retailer must complete all parts of the Retailer's Profile webpage and tender that content to Whatsonsale as part of the application process. |
| 5.6 |
The Retailer's Profile webpage must include the Retailer's policies on the matters referred to in the following sub-clauses. The policies must include, at minimum, the information set out below and must comply with the minimum standards required of Retailers by these terms and conditions. The policies must be no less favourable to the Customer than the content of Whatsonsale Customer Terms of Use and policies.The content of the policies will form part of the terms and conditions on which a Customer contracts to buy Products from the Retailer via the Website.The content must be written for that purpose:
- Delivery Policy.The policy must include:
- Specific details of how Products will be delivered to different parts of the country.
- Which courier or other delivery services will be used to deliver products if known in advance, or if not known in advance how that will be determined and communicated to the Customer,
- Whether the Customer must be physically present to receive a delivery,
- When Products will be dispatched from the Retailer and how long it will take for delivery to occur.
- How and when the Customer will be notified by the Retailer about delivery details once an order has been received.
- How Customers can make enquiries about the status of a delivery.
- Returns Policy.The policy must comply with Whatsonsale's general Returns Policy and include:
- In what circumstances the Retailer will allow defective and non-defective Products to be returned to the Retailer.
- Within what timeframes after delivery the Customer must contact the Retailer to reject a Product or arrange to return it.
- In what circumstances the Retailer will allow refunds to be paid for defective and non-defective Products returned to the Retailer
- In what circumstances the Retailer will allow replacement of Products with other Products or repair of Products, but not refunds to be paid, for defective and non-defective Products.
- Dispute Policy:The policy must be compatible with Whatsonsale's Disputes Policy and include;
- How the Retailer can be contacted (including details of the Retailers physical address) if the Customer has any problem of the sort referred to in Whatsonsale's Disputes Policy.
- Any other information or process which is not in conflict with Whatsonsale's Disputes Policy that the Retailer is prepared to offer to assist to resolve any queries or disputes with Customers.
- Privacy Policy:The policy must provide for the treatment of personal information about a Customer to at least the same level of privacyas Whatsonsale's Privacy Policy and include:
- Any other information about the Retailer's collection or use of personal information about a Customer not covered by Whatsonsale's Privacy Policy.
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| 5.7 | If you change any of your registration details or any of the polices referred to above you must update your Retailer's Profile webpage. |
| 6. | Selling through Whatsonsale |
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| 6.1 | Whatsonsale provides a service for Customers to view Products listed on the Website by a Retailer and to buy those Product from that Retailer. |
| 6.2 | The agreement to purchase the Product is made directly between the Retailer and the Customer.It is the Retailer which sells the Product to the Customer. |
| 6.3 | Whatsonsale only facilitates transactions relating to the sale and purchase of Products.Whatsonsale is never the person selling any Products to the Customer and is not the Customer's agent or the Retailers' agent. |
| 6.4 | When you list a Product for sale on the Website by completing an "Add Product Details" webpage you are offering that Product for sale to Customers. |
| 6.5 | When a Customer confirms an order to buy a Product via the Website the Customer is committing to buy the Product from you. The Customer is also authorising Whatsonsale to debit the Customer's credit card with the purchase price. |
| 6.6 | The price and other terms and conditions relevant to each transaction for the sale and purchase of a Product are ascertained, as appropriate, by reference to the Whatsonsale Terms and Conditions available to Customers, the specific content of your Retailer's Profile webpage and the content of the specific Product details webpage. |
| 6.7 |
If there is a conflict between the content of the Whatsonsale Terms and Conditions available to Customers, the specific content of your Retailer's Profile webpage and the content of the specific Product details webpage the conflict will be resolved in the following manner.
- No other terms may be less favourable to a Customer than the content of the Whatsonsale Terms and Conditions available to Customers;
- Provided that the requirement in clause 6.7.a is met;
- The content of the Retailer's Profile webpage will take priority over the Whatsonsale Terms and Conditions available to Customers; and
- The content of the specific Product details webpage will take priority over the content of the Retailer's Profile webpage.
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| 6.8 | Once a Customer confirms an order to buy a Product via the Website and Whatsonsale receives confirmation from DPS that the Customer's credit card payment has been authorised, the Retailer will be notified of the order by Whatsonsale.The Retailer will be obliged to sell that Product to the Customer for the price and on the terms and conditions referred to above. |
| 6.9 | You acknowledge that you are solely responsible to the Customer for all purchases of Products from you via the Website. |
| 6.10 | You must take steps to resolve any such problems as quickly as possible. |
| 6.11 | You acknowledge that the Whatsonsale Terms and Conditions available to Customers includes a Disputes Policy which also binds you. You acknowledge that Whatsonsale has no legal obligation to assist to facilitate a resolution to a problem. If it does so, you will co-operate with Whatsonsale and comply with all reasonable directions of Whatsonsale to resolve the problem. |
| 7. | Products and Information |
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| 7.1 | The Retailer is solely responsible for all information on the Website about the Retailer and any Product listed on the Website by the Retailer. |
| 7.2 |
The Retailer must ensure that at all times all information about the Retailer and any Product listed on the Website by the Retailer is:
- Complete and accurate; and
- That any Product listed for sale is available at the price and on the terms and conditions stated on the Retailer's Profile webpage and on any specific Product details webpage.
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| 7.3 | If the requirements set out in clause 7.4 are not met at any time the Retailer must take immediate steps to correct the relevant content of the Retailer's Profile webpage and any specific Product details webpage. |
| 7.4 | The Retailer must notify Whatsonsale in writing when it modifies any content on the Retailer's profile webpage. |
| 7.5 | If the Retailer cannot correct any inaccuracy contained on the Website, it mustcontact Whatsonsale to alert it to the error. |
| Adding Product Details |
| 7.6 | The Retailers is responsible to provide all information relating to a Product when the Retailer lists a Product for sale. |
| 7.7 | The Retailer must provide sufficient information about a Product to ensure that the Product offered for Sale corresponds with the description of it. |
| 7.8 | If the Retailer's terms of sale for a particular product are different in any way from those shown on the Retailer's Profile webpage those differences must be clearly stated within the "Product Description" field of the Add Product Details webpage. |
| 7.9 |
If a Retailer also offers any additional specific warranty or insurance with a Product, the Retailer may provide information about that within the "Product Description" field of the Add Product Details webpage.
- The Customerwill need to contact the Retailer directly to obtain that extra warranty or insurance.Contact details and an explanation of the steps the Customer needs to take to acquire the additional warranty or insurance must be included.
- Whatsonsale does not yet offer a facility to allow Retailers to sell Customers additional warranties or insurances through the Website..
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| 7.10 | Whatsonsale does not provide any information on the Website about a Product or a Retailer. Whatsonsale does not make any warranty or representation that any information on the Website is accurate or reliable or that a Product is available at any specific time that information about it is viewable on the Website. |
| 7.11 | If other reviews or specifications about Products appear on any other parts of the Website they will be provided by the Retailer or other third parties.Whatsonsale will not be responsible to the Retailer for any such information at any time. |
| 7.12 |
Whatsonsale may require the Retailer to change the content of the Retailer's Profile webpage and any specific Product details webpage if it considers the information contained on them to be incorrect, inappropriate or misleading in any way.
- Nothing done by Whatsonsale under this clause will in any way amount to:
- An endorsement by Whatsonsale of the content of any such webpage; or
- The provision of any advice by Whatsonsale that the content complies with any applicable law or requirement.
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| 7.13 | Whatsonsale will make reasonable commercial endeavours to display all information that the Retailer provides to Whatsonsale in the Website but cannot guarantee that the information will be available to Customers in any particular location or format on the Website at any particular time. |
| 8. | Price |
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| 8.1 | The price stated by the Retailer for a Product on the Website must include GST |
| 8.2 | The price stated by the Retailer for a Product on the Website must also include the full cost of delivery from the Retailer to the Customer unless the Retailer has obtained Whatsonsale's written agreement that alternative delivery arrangements are to apply. Consent will only be given in circumstances where the Product is large or has some other special delivery requirement. If the cost of delivery isn't included in the price the Retailer must provide full details of any additional delivery costs that will apply in the specific Product details webpage. |
| 8.3 | The Retailer may list Products for sale on the basis that the price includes delivery only to locations specified in the listing.This information must be clearly stated on the specific Product details webpage. |
| 8.4 | The Retailer may add a "recommended retail price" as well as a listed price for a Particular product. If the Retailer uses this option, the "recommended retail price" must be the current price recommended for retail sales of the Product in New Zealand by the manufacturer or distributor of the Product. The information must not create the possibility that a Customer may be misled or deceived about the nature of the price at which the Product is available for sale via the Website. |
| 9. | Orders and Payments |
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| 9.1 | Payments for Products bought by a Customer via the Website must be made by either Visa or MasterCard credit cards that have been issued by a trading bank registered in New Zealand. |
| 9.2 | Whatsonsale is registered as a merchant with Westpac New Zealand Limited.When a Customer confirms an order to buy a Product the Customer authorises Whatsonsale to electronically debit the Customer's credit card with the purchase price. |
| 9.3 | The electronic payment transaction is handled by DPS Limited.DPS Limited is a secure payment service provider.DPS Limited is Visa AIS (Account Information Standard) and MasterCard SDP (Site Data Protection), commonly encompassed as PCIDSS - (Payment Card Industry Data Security Standard) certified. |
| 9.4 | DPS Hosted Solutions provide the end user with encrypted (SSL) payment pages to assist to protect the security of your data. You can see DPS' privacy policy at its website www.paymentexpress.com. |
| 9.5 | The information which the Customer enters onto the Website to authorise a payment from the Customer's credit card to purchase a Product will be sent to DPS Limited. |
| 9.6 | Neither Whatsonsale nor any Retailer will receive a Customer's credit card details through this process. |
| 9.7 |
When Whatsonsale receives confirmation from DPS that the Customer's credit card payment has been authorised Whatsonsale will email the Retailer a notice of the order. The email will include:
- The Product ordered by the Customer;
- The price;
- The required delivery details,
- The Customers name and contact details.
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| 9.8 | If the Customers credit card transaction is declined or in any other way dishonoured by Visa, or MasterCard or the Customer's bank, the order will automatically be treated as void and will be cancelled. |
| 9.9 | The Customer's credit card payment will initially electronically be credited to a merchant clearing account in Whatsonsale's name (which is currently with Westpac). |
| 9.10 | Whatsonsale will hold payments received from a Customer for a minimum of 14 days. |
| 9.11 | Subject to the exceptions referred to in clause 9.20 Whatsonsale will pay to the Retailer the relevant price for each Product purchased by a Customer minus the Whatsonsale transaction fee for that sale referred to in Schedule 1,on the 14th day after Whatsonsale receives the corresponding payment from the Customers credit card provider. |
| 9.12 |
If the Customer has ordered several Products from different Retailers at the same time, Whatsonsale handles the distribution of the purchase price to each relevant Retailer.
- For that reason the Customer's credit card statement will show one item for the total value of all Products purchased by the Customer at one time listed as payment to "Whatsonsale".
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| 9.13 | The Customer's purchase remains from the Retailer. |
| 9.14 |
Once a Customer's credit card payment is authorised by DPS and made through the electronic banking system to the Whatsonsale merchant clearing account the Retailer must treat the payment as immediate payment by the Customer to the Retailer which discharges the Customers obligation to pay for the Product.
- If Whatsonsale later becomes obliged to refund any money received from a Customer or that payment is otherwise reversed or dishonoured by Visa, MasterCard or any bank before Whatsonsale make payment to you, you will have no claim for payment against Whatsonsale and your rights to claim payment will solely be against the Customer.
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| 9.15 | The Retailer must generate a GST invoice and appropriate receipting information addressed to the Customer for each item Purchased.That information must be provided by the Retailer to the Customer no later than the time at which the Product is delivered. |
| 9.16 | From the time the Customer's payment is authorised by the Customer, any claims that the Customer may have for a refund of the purchase price for a Product for any reason are claims directly against the relevant Retailer and are never against Whatsonsale. |
| 9.17 | If the Customer wants Whatsonsale to become involved in facilitating the resolution of any problem of the sort referred to in Whatsonsale's disputes policy the Customer must contact Whatsonsale directly as soon as possible after the Customer has authorised a payment. |
| 9.18 | If the Retailer becomes aware of a dispute with a Customer or a claim by a Customer for a refund of the Purchase price within 14 days of receipt of notification by Whatsonsale of that Customer's order it must notify Whatsonsale of the existence of that dispute or claim. |
| 9.19 | If Whatsonsale has been contacted in the circumstances referred to in clauses 9.17 or 9.18 Whatsonsale's Disputes Policy will apply. |
| 9.20 | If clause 9.19 applies or Whatsonsale otherwise becomes aware of any failure of the Retailer to comply with its obligations to a Customer, Whatsonsale will be entitled to withhold making any payment to the Retailer of the amount payable as the purchase price for any Product which is the subject of the failure, problem or dispute until Whatsonsale in its reasonable discretion is satisfied that the issue has been resolved. |
| 9.21 | Whatsonsale will consult with the Retailer about the circumstances of the failure, problem or dispute.The Retailer consents to Whatsonsale talking to all of the people referred to in Whatsonsale's Disputes Policy. |
| 9.22 |
If Whatsonsale still holds funds in its merchant clearing account that have been received from the Customer for that transaction the Retailer may authorise Whatsonsale to take steps to credit the purchase price for the relevant Product back to the Customer's credit card.
- If that occurs the Retailer will treat the transaction as being at an end and will accept that no further liability on the part of the Customer to purchase that product from the Retailer will exist.
- The Retailer will remain solely responsible for any other claim that the Customer may make arising from the failure of delivery of the Product.At no time will the Retailer have any claim against Whatsonsale and Whatsonsale will have no liability to the Retailer in respect of any acts or omissions of Whatsonsale occurring as a result of the operation of this clause.
- The Retailer will reimburse Whatsonsale for all costs that Whatsonsale incurs including transactional and bank fees for the initial credit card payment from the Customer and for the reversal of the payment to the Customers credit card.Whatsonsale may deduct those amounts from any further sum payable by Whatsonsale to you before making that payment to you, or claim the amount from you as a debt due and owing.
- The Retailer will remain responsible for all costs relating to the delivery of the Product to the Customer.
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| 9.23 | Whatsonsale does not hold any money in its merchant clearing account on trust for the Retailer or the Customer or in any other way on the Customer's or the Retailer's behalf.The Retailer does not have any claim of any sort to any money held in the Whatsonsale merchant clearing account at any time and will not in any circumstances acquire a security interest in respect of that money or any other asset of Whatsonsale. |
| 9.24 | Whatsonsale will be entitled to retain all interest earned on any money held in its merchant clearing account and will not in any circumstances be obliged to pay any interest to the Retailer in respect of any money payable to the Retailer by Whatsonsale. |
| 9.25 |
If for any reason Whatsonsale becomes obliged to refund any money received from a Customer or that payment is otherwise reversed or dishonoured by Visa, MasterCard or any bank, you will reimburse Whatsonsale for the full amount of all any loss that it suffers including the full value of all amounts debited from its merchant clearing account.
- Without limiting the operation of this clause it may apply if any bank or Visa or MasterCard require the Customer's credit card payment to be refunded as a chargeback from Whatsonsale as the merchant to which the credit card transaction was authorised.
- If Whatsonsale suffers any loss as a result of the circumstances referred to in this clause, it may deduct the full amount of its loss from any further sum payable by Whatsonsale to you before making that payment to you, or claim the amount of the loss from you as a debt due and owing.
- Your rights to recover any loss suffered by you from the Customer as a result of the operation of this clause will remain.
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| 10. | Delivery |
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| 10.1 | The Retailer is solely responsible for the delivery of Products that a Customer buysvia the Website. |
| 10.2 | Risk in all Products remains with the Retailer until the Product has been delivered. |
| 10.3 | The Retailer must comply with Whatsonsale's Delivery Policy and all aspects of the delivery information the Retailer includes in the relevant Product details webpage and the Retailers' profile webpage. |
| 11. | Product availability |
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| 11.1 | The Whatsonsale system incorporates measures to allow a Retailer to specify how many units of a Product are available for sale via the Website at any one time |
| 11.2 | The Whatsonsale system deducts one available unit from the product details information for each unit sold via the Website. |
| 11.3 | The Retailer must regularly check each of its Product details via the Website. It is the Retailer's sole responsibility to ensure that it does in fact have sufficient stock available to make delivery of the total number of units of each Product indicated as available via the Website at any time. |
| 11.4 | If the Retailer's does not have sufficient stock available to make delivery of the total number of units of each Product indicated as available via the Website at any time the Retailer must take immediate steps to rectify the situation by modifying the content of the relevant Retailer's Profile webpage. |
| 11.5 | If the Retailer becomes aware that orders have been placed via the Website to purchase Products that are not available the Retailer must immediately notify the Customer and the Retailer about the situation: |
| 11.6 |
If Whatsonsale still holds funds in its merchant clearing account that have been received from the Customer for that transaction the Retailer authorises Whatsonsale to take steps to credit the purchase price for that Product back to the Customer's credit card. This authority does not however create any obligation on Whatsonsale to take this step on any particular occasion
- If that occurs the Retailer will treat the transaction as being at an end and will accept that no further liability on the part of the Customer to purchase that product from the Retailer will exist.
- The Retailer will remain solely responsible for any claim that the Customer may make arising from the failure of delivery of the Product including any claim for a refund of the purchase price.At no time will the Retailer have any claim against Whatsonsale and Whatsonsale will have no liability to the Retailer in respect of any acts or omissions of Whatsonsale occurring as a result of the operation of this clause.
- The Retailer will reimburse Whatsonsale for all costs that Whatsonsale incurs including transactional and bank fees for the initial credit card payment from the Customer and for the reversal of the payment to the Customers credit card. Whatsonsale may deduct those amounts from any further sum payable by Whatsonsale to you before making that payment to you, or claim the amount from you as a debt due and owing.
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| 12. | Items that are not available |
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| 12.1 |
At this stage, you may not list any of the following items for sale on the Whatsonsale Website:
- R18 material and any other objectionable publication.
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| 12.2 | Some of these items may become available in the near future and we will keep you informed through the Website. |
| 13. | The Retailer's use of Whatsonsale |
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| 13.1 |
The Retailer must ensure that it has all necessary legal rights, including any statutory authorities and contractually granted rights from third parties to:
- Sell any Product to any person via the Website;
- Provide any Product to a Customer free of any security and on the basis that the Customer will acquire the right to undisturbed possession of the Product on delivery;
- Provide any information about any Product to Whatsonsale and Customers by publishing that information on the Website;
- Use any trademarks, copyright works, designs and other intellectual property owned by third parties and information relating to any of those things, by publishing any of those things on the Website, selling any Product or doing any other act in relation to the Website.
- Authorise Whatsonsale to use any of the things referred to in this clause by publishing those things on the Website or doing any other act to administer and operate the Website and provide the Services.
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| 13.2 |
The Retailer authorises Whatsonsale to use anything provided by the Retailer to Whatsonsale including any:
- Trademarks, copyright works, designs and other intellectual property owned by the Retailer or Third Parties; and
- Information relating to any of those things, and
- Any other information relating to the Retailer
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| By publishing those things on the Website or doing any other act to administer and operate the Website and provide the Services. |
| 13.3 | You agree to only use the Website, the information available on the Website and the purchase facilities that we provide via it for the purposes that we have intended them to be used.Without limiting those purposes, most are described on the Website. |
| 13.4 | You will not attempt to sell or advertise any Products of the type referred to in part 12 of these terms and conditions via the website. |
| 13.5 | You will not attempt to modify create links to or from the Website to any other Website or URL. |
| 13.6 | You will not attempt to copy any information available on the Website or transmit it to any other person without our authority. |
| 13.7 | You will not attempt to interfere with the operation of the Website or modify the Website in any way.You may not use a robot, spider, scraper or other automated means to access the Website or information contained on the Website.You must not damage or interfere or attempt to damage or interfere, the Website or any of the systems or networks associated with it. |
| 13.8 | You agree to comply with any other requirements that Whatsonsale may impose from time to time relating to the use of the Website, transactions available via the Website and the Services. |
| 13.9 | You acknowledge and agree that Whatsonsale will monitor use of the Website by you and may contract other service providers on its behalf to do so. |
| 13.10 | You acknowledge and agree that if Whatsonsale believes it necessary it may report activities carried out by you relating to the Website, to third party owners of intellectual property if it believes you may have breached their rights, or to relevant law enforcement agencies. |
| 14. | Termination |
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| 14.1 | Whatsonsale may change the way that the Website and the transactions available via it operate, the content of the Website and the Services at any time. |
| 14.2 |
Either of Whatsonsale and the Retailer may terminate the operation of these terms and conditions and thereby terminate the provision of the Services:
- By giving the other party at least one month’s written notice of termination specifying a date on which the performance of their obligations under this agreement will terminate; or
- Where an event of default has occurred, by giving the other party written notice of termination specifying a date on which this agreement will then terminate.
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| 14.3 |
A party commits an event of default under this document if:
- It fails to pay any money under this document when due and remains in breach of that obligation for 7 days after another party has given it notice in writing specifying the breach; or
- It does not comply with an obligation expressed to be an essential term under this document; or
- It remains in breach of any of its other representations, warranties, liabilities, or obligations under this document for 7 days after another party has given it notice in writing specifying the breach, or, after receiving that notice, it remedies the breach but commits the same or a similar breach within three months after the notice was given; or
- It is unable to pay its debts or is deemed or presumed under any law to be unable to pay its debts ; or
- It stops or suspends, or threatens to stop or suspend, payment of its indebtedness to any person; or
- A secured creditor takes possession of any of the party’s assets or exercises or takes steps to exercise its rights as a security holder; or
- Distress, attachment, or any execution is levied or carried out on any of the party’s assets; or
- A receiver, manager, liquidator, assignee in bankruptcy, statutory manager, administrator, or similar official is appointed in respect of the party, or any of its assets or steps are taken for an appointment; or
- It, or, if it is a company one of its directors, commits a criminal offence involving an element of dishonesty.
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| 14.4 |
If this agreement is terminated by Whatsonsale,
- The Retailer will have no obligation to pay any further monthly subscription fee to Whatsonsale from the date of termination but must pay any transaction fees applicable for sales authorised before or on the date of termination.
- Whatsonsale will have no obligation to refund any amount of any registration fee paid by the Retailer to Whatsonsale and will have no liability for any other claims or losses arising from the termination of these terms and condition and the termination of the provision of the Services.
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| 14.5 |
If this agreement is terminated by the Retailer,
- Whatsonsale reserves its rights to claim from the Retailer the sum of thebalance of monthly subscription fees otherwise payable by the Retailer for the balance of the period for which the Retailer has committed to remain a Retailer,
- The Retailer must pay any transaction fees applicable for sales authorised before or on the date of termination;
- Whatsonsale will have no obligation to refund any amount of any registration fee paid by the Retailer to Whatsonsale and will have no liability for any other claims or losses arising from the termination ofthese terms and condition and the termination of the provision of the Services.
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| 14.6 | Subject to clauses 14.4 and 14.5 any other rights obligations of the parties arising prior to termination will remain. |
| 15. | Control of your registration information |
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| 15.1 | It is essential that you retain control of all information which allows you or anyone else to log on to the Website using your details including your credit card information. |
| 15.2 | It is entirely your responsibility to keep that information confidential.You must not give any such information to any other person or allow any other person to log on to the Website using your registration details.If you do so you will remain entirely responsible for all actions that other person may take. |
| 15.3 | If you believe that anyone else may have obtained access to your password, you must change your password immediately. |
| 15.4 | You accept that all use of the Website, the transactions available via the Website and any other Services provided by Whatsonsale are entirely at your own risk.You have made your own assessment about using the Website and making sales of Products via the Website.You have satisfied yourself that you are prepared to use the Website and those Services before confirming these terms of use. |
| 15.5 | Whatsonsale does not guarantee that the Website will not contain any errors or defects or that the Website or the Services will be uninterrupted. |
| 16. | Intellectual Property |
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| 16.1 |
Intellectual property in this Website including:
- The structure and format of the Website;
- All works of the types referred to in section 14(1) of the Copyright Act 1994;
- All other story and content elements however conveyed (including written, dramatic, illustrated, storyboard, film, moving image, animation and web design elements);
- All software elements; and
- The trademarks, trade names and logos including the names Whats On Sale, Whatsonsale and What's On Sale (irrespective of the capitalisation and other punctuation used) and other material underlying and forming part of the Website.
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| is owned by or licensed for use by Whatsonsale. |
| 16.2 | To the extent that there are intellectual property rights associated with the content of listings or Products and other information posted on the Site by third parties, those third parties may own intellectual property rights in those elements. |
| 16.3 |
Irrespective of the ownership of intellectual property making up the Website you may not in any form or by any means:
- Adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this Website; or
- Commercialise any information, products or services obtained from any part of this Website.
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| 16.4 | You may not use any copyright works, trademarks, trade names or logos appearing on the Website for any purpose without the owners express written consent. |
| 16.5 | You will not challenge the validity of Whatsonsale's interests in or do anything that could adversely affect the interests of Whatsonsale in anything referred to in clause 16.1. |
| 16.6 |
During the time that you are a registered Retailer;
- You may refer to the fact that you are a registered Retailer of Whatsonsale in your own promotional activities and use the Whatsonsale logo for that purpose;
- You may display the Whatsonsale logo at your retail premises; and
- You may create a link from your own website to the Whatsonsale website if you have discussed creating that link with Whatsonsale and obtained their consent before doing so.
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| 16.7 | Whatsonsale may however direct that you modify or cease to use the Whatsonsale name and logo and any link to the Whatsonsale Websiteif in its sole opinion your use of those things may harm the value of the brand or reputation or the interests of Whatsonsale.All rights to use the Whatsonsale name and logo and any link to the Whatsonsale Website will cease on termination of these terms and conditions. |
| 16.8 | Whatsonsale does not warrant that anything referred to in clause 16.1or any use of the Website by you will not infringe on any third party’s intellectual property rights. |
| 17. | Privacy policy |
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| 17.1 | Whatsonsale has a privacy policy which forms part of the terms of use of this Website. That privacy policy can be viewed [by clicking here]. |
| 18. | Security of information |
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| 18.1 | The website uses SSL (Secure Socket Layer) and encryption technology when sensitive information is submitted via our website. In addition, to further protect user information, the servers on which we collect and store personal information are kept in a secure and safe environment. |
| 19. | Linked websites |
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| 19.1 | This Website may contain links to other websites ("linked websites").Those links are provided for convenience only and may not remain current or be maintained. |
| 19.2 | Whatsonsale is not responsible for the content or privacy practices associated with linked websites. |
| 19.3 | Whatsonsale's links with linked websites should not be construed as an endorsement, approval or recommendation by Whatsonsale of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary. |
| 20. | Limitation of Liability |
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| 20.1 |
Whatsonsale does not accept responsibility for any loss or damage (including through negligence) whether direct or consequential or costs of any nature whatsoever incurred or suffered by you arising from or in connection with:
- Your use of the Website;
- Any transaction attempted or actually entered into by you via Website;
- Any Product sold by you via the Website; or
- Any other services provided by Whatsonsale; or
- Any breach on the part of Whatsonsale of these terms and conditions.
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| 20.2 | Whatsonsale also does not accept any responsibility for any such loss or damage arising out of your use of or reliance on any information contained on or accessed through this Website. |
| 20.3 |
Whatsonsale makes no representation or warranty about:
- The Products listed on the Website for sale;
- The Retailers who have offered them for sale;
- Any information available on the Website about those Products, prices, or Retailers including information relating to the suitability or fitness of any Product for any particular purpose or use.
- The placement of such information or the listing of a Product on the Website does not constitute a recommendation or endorsement by Whatsonsale of the Product or the Retailer and each Retailer is solely responsible for any representations made.
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| 20.4 | All other statutory warranties which may be implied are expressly excluded by Whatsonsale to the extent allowed by the applicable law. |
| 20.5 | Whatsonsale makes no guarantees under the Consumer Guarantees Act 1993 as the Retailer is receiving the Services for the purposes of the Retailers business. |
| 20.6 | Whatsonsale and any director or agent of Whatsonsale shall not be liable to you in any circumstances for any consequential loss suffered by you. |
| 20.7 |
Whatsonsale and its directors and agents liability for the following is excluded so far as the law allows except where it is caused by their wilful dishonesty:
- Any breach of any remaining statutory condition, warranty, guarantee, or duty; or
- Any misrepresentation (whether contractual or otherwise); or
- Any tort (including negligence); or
- Any breach of an equitable duty.
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| 20.8 | You may not make a claim against Whatsonsale or any director or agent of Whatsonsale for any matter more than 12 months after the cause of action arises. |
| 20.9 | Without limiting the operation of the above clauses, if Whatsonsale or any director or agent of Whatsonsale is liable to you for any reason (including through negligence) the total liability of Whatsonsale or any director or agent of Whatsonsale may have to you is limited to a maximum amount of two hundred and fifty dollars ($250.00). |
| 20.10 |
You will indemnify Whatsonsale and its directors and agents against any loss or liability whether direct or consequential or costs of any nature whatsoever incurred or suffered by any of them arising from or in connection with:
- Your use of the Website;
- Any transaction attempted or actually entered into by you via Website;
- Any Product sold or listed by you via Website;
- Any claim by any person that any use by Whatsonsale of any of the things referred toin clause 13.2 breaches their rights in any way;
- Any other services provided by Whatsonsale to you or any Customer who buys any Products or receives any information from you; or
- Any claim by a Customer against Whatsonsale for repayment of all or any part of any purchase price paid by the customer to Whatsonsale's merchant clearing account under these terms and conditions and the Whatsonsale Customer terms of Use;
- Any claim or allegation that Whatsonsale is involved directly or as your agent, in any transaction conducted by you in relation to the Website or any Product,
- Any action taken or representation made by you in relation to the Website or any Product;
- Any breach on your part of these terms and conditions.
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| 20.11 | The provisions in this part are intended to confer benefits on the directors and agents of Whatsonsale for the purposes of the Contracts Privacy Act 1981. |
| 21. | Specific technology issues |
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| 21.1 | You must take your own precautions to ensure that the process which you use for accessing this Website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.Whatsonsale do not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of this Website or any linked website. |
| 21.2 | Whatsonsale do not warrant the accuracy, adequacy or completeness of information accessible via the Website, nor do we undertake to keep this Website updated or free from errors. |
| 21.3 | Whatsonsale may restrict or prevent your access to or use of the Website at any time. Whatsonsale does not warrant that the Website will operate fully, be free from errors or be available for use at all times. Whatsonsale will not be liable to you for any such failures, errors or interruptions.Your obligation to make payment to Whatsonsale arising under these terms and conditions will continue during any period during which the Website does not operate fully, is subject to errors, or is otherwise not available for use. |
| 21.4 | Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whatsonsale does not warrant and cannot ensure that the security of any information which you transmit to us.Accordingly, any information which you transmit to us is transmitted at your own risk.Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information by using the security procedures referred to above. |
| 22. | Notices |
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| 22.1 |
All notices under this document must be sent by registered mail (postage prepaid), by hand delivery, or by emailtransmission as follows:
- In the case of Whatsonsale to the addresses shown on the Website at the webpage containing Whatsonsale's contact details.
- In the case of the Contractor to:
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|
Whatsonsale Ltd
PO Box 8485 Riccarton 8440
213 Blenheim Road
Christchurch
Email: admin@whatsonsale.co.nz
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| 22.2 | A party may, by giving written notice to the other or others change its address for notices to another address in New Zealand. |
| 22.3 |
All notices will be deemed to have been given:
- If mailed, two days after being deposited in the mail by the sender;
- If delivered by hand, upon delivery;
- If emailed, upon a satisfactory transmission report being generated by the sender.
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| 23. | Mediation |
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| 23.1 | If a dispute arises between Whatsonsale and you, then the parties must promptly give full written particulars of the dispute to each other and promptly meet and try to resolve the dispute. |
| 23.2 | If the dispute is not resolved that way a party may refer the dispute to mediation. |
| 23.3 | If this happens the parties must use the mediation procedure to try to resolve the dispute. |
| 23.4 | The mediation must be conducted by a LEADR panel mediator. |
| 23.5 | The mediator may be agreed on by the parties. If they cannot agree, then, at the request of a disputing party, the then President of the New Zealand Law Society or the President's nominee may appoint the mediator. |
| 23.6 | The procedure and time frame for the mediation will be determined by the mediator. This will be binding on the parties. |
| 23.7 | Each of the disputing parties must pay its own costs and an equal share of the mediator's costs. |
| 23.8 | If the dispute is not resolved by the mediation the parties may then issue legal proceedings through the Courts.This part does not apply to any party seeking urgent relief from the other. |
| 24. | Governing law |
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| 24.1 | These terms of use are governed by New Zealand law and any purchases made through Whatsonsale will be governed by New Zealand law.You agree to submit to the exclusive jurisdiction of the courts of New Zealand. |
| 25. | Interest and Costs |
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| 25.1 | The Retailer is not entitled to withhold payment, or make any deductions from any amount payable to Whatsonsale, or set-off any amount owed by Whatsonsale to the Retailer whether by equitable setoff or otherwise, without the prior written consent of Whatsonsale. |
| 25.2 | Interest at the rate of 14% per annum will be paid by the Retailer to the Whatsonsale on all money owing by the Retailer to Whatsonsale for any reason from the date payment is due until all that money and interest payable under this clause is paid.The Retailer and Whatsonsale agree that the interest rate specified in this clause reasonably reflects by way of liquidated damages the cost to Whatsonsale of being held out of the sums owing to it by the Retailer in the circumstances of default.The operation of this clause is without prejudice to any other rights of Whatsonsale in respect of late payment or non-payment. |
| 25.3 |
Interest payable under clause 25.2 shall be calculated;
- As accruing from day to day; and
- May be compounded to and become part of the principal debt at the end of each month of default; and
- May be claimed in the same manner both before and after any judgement.
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| 25.4 | The Retailer is also liable to pay all actual expenses and legal costs of Whatsonsale in relation to taking any steps to enforce the terms and conditions and obtaining payment if the Retailer breaches its payment obligations. |
| 26. | General |
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| 26.1 | Whatsonsale may assign or transfer any of its rights and benefits arising from these terms of use to any other person.If we do so we will not be liable for anything that the person that we transfer or assign our benefits to does after that date and we will have no liability to you for that person's acts or omissions. |
| 26.2 | The Retailer may not assign or transfer any of its rights and benefits arising from these terms of use to any other person without Whatsonsale's prior written consent which may be withheld for any reason. |
| 26.3 | Whatsonsale do not accept liability for any failure to comply with these terms of use where such failure is due to circumstances beyond Whatsonsale's reasonable control. |
| 26.4 | Failure to exercise or delay in exercising any rights of Whatsonsale against you will not operate as a waiver of those rights.No waiver by Whatsonsale of any default by you shall constitute a waiver in respect of any default previously or later occurring. |
| 26.5 | If any of these terms of use are held to be invalid, enforceable or illegal for any reason, the remaining terms of use shall nevertheless continue in full force. |
| 26.6 | None of the terms of use constitute any partnership, agency or joint venture relationship between Whatsonsale and you or any Customer. |
| SCHEDULE 1 |
| FEES AND PAYMENT TERMS FOR SERVICES |
| 1. | Registration as a Retailer |
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| 1.1 | The tier1 registration fee of $1,495.00 incl GST or tier2 registration fee of $995.00 incl GST is payable by the Retailer to Whatsonsale when the Retailer's application to become a registered Retailer is accepted. Whatsonsale also has the right to offer registration special pricing offers. |
The Retailer may elect to pay that fee:
- In one lump sum immediately; or
- Monthly in three equal instalments commencing immediately;
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| by direct credit to Whatsonsale's nominated bank account or by credit card. |
| 1.2 | A Retailer will pay a monthly subscription fee to Whatsonsale to be entitled to remain a Retailer from the date that the Retailer's application to become a registered Retailer is accepted or 1 August 2008 whichever is later. |
| 1.3 | The Retailer may elect to commit to remain a Registered Retailer for periods of one, two or three years from the date that the Retailer's application to become a registered Retailer is accepted. |
| 1.4 |
The monthly subscription fee is currently $99.95.
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| The monthly subscription fee will be paid by the Retailer by direct credit to Whatsonsale's nominated bank account on the 1st day of each month. |
| 1.5 | If the Retailer continues to pay the monthly subscription fee at the rate that applies at the relevant time after the expiry of the period for which the Retailer has committed to remain a Retailer no additional registration fee will be payable by the Retailer to Whatsonsale. |
| 1.6 | If the Retailer discontinues paying the monthly subscription fee at any time or these terms and conditions are terminated for any reason the Retailer must pay an additional registration fee at the rate that then applies if the Retailer wishes to again be accepted as a Retailer. |
| 2. | Listing Products for Sale on the Website |
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| 2.1 |
There is no charge for listing Products for sale on the Website unless the Retailer elects to have the product details featured in the following categories.
- For the Product to be listed in the "1 hour " section of the Website: $0.00 plus GST per listing. The listing shall be displayed for one hour. No more than 10 product details will be displayed in the "1 hour " section of the Website at any one time
- For the Product to be listed in the "1 day " section of the Website: $0.00 plus GST per listing. The listing shall be displayed for one day. No more than 20 product details will be displayed in the "1 day " section of the Website at any one time.
- For the Product to be listed in the "1 week " section of the Website: $0.00 plus GST per listing. The listing shall be displayed for one week. No more than 20 product details will be displayed in the "1 week " section of the Website at any one time
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| 2.2 | The Retailer must authorise Whatsonsale to debit the Retailer's Visa or MasterCard credit card on the authorization screen provided with the cost of listing a Product in the specific sections referred to above when the Retailer lists that Product for sale. |
| 3. | Transaction fees |
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| 3.1 | Each Retailer will pay Whatsonsale a transaction fee of $0.50 for each order of Products received from a Customer via the Website irrespective of the number if items purchased in that one order. |
| 3.2 | An order will be received when Whatsonsale notifies the Retailer of the contents of an order under clause 9.7 of the main part of these terms and conditions. |
| 3.3 | Whatsonsale may deduct the transaction fee from any amount owed to the Retailer by Whatsonsale in respect of the purchases of Products. If the transaction fee is not paid by deduction the amount will become a debt due and owing by the Retailer to Whatsonsale. |
| 3.4 |
The transaction fee referred to in this part remains payable irrespective of whether:
- A refund is later given to the Customer, or
- The Product is not delivered by you to the Customer for any reason; or
- The Customers payment via the Whatsonsale merchant clearing account is reversed or otherwise dishonoured, or
- The customer later returns the Product to the Retailer or rejects the Product.
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