UNIXMO MARKETPLACE TERMS AND CONDITIONS
Welcome to Unixmo! We are an online marketplace that works with businesses and individuals to give Buyers access to hundreds of Goods in one place. We hope you enjoy your time on our site.
1 Acceptance and Site Summary
1.1 This marketplace (Site) is operated by Unixmo Ltd NZBN 9429041607510 (we, our or us). It is available at: https://unixmo.co.nz/and may be available through other addresses or channels.
1.2 We provide a platform via the Site where individuals looking to sell goods (Casual Sellers) and businesses looking to sell or advertise goods (Traders), together Sellers, and those looking to purchase Goods (Buyers) can connect and transact.
1.3 In these Terms, you means (as applicable) (1) the person buying boutique Goods on the Site as a Buyer; (2) the person or entity listed on the Site as a Seller; or (3) the individual accessing or using the Site.
1.4 If you are using the Site on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
1.5 By accessing or using the Site you:
(a) warrant to us that you have reviewed these terms and conditions (Terms);
(b) warrant to us that you have the legal capacity to enter into a legally binding agreement with us and are over 18 years old; and
(c) agree to use the Site in accordance with the Terms.
1.6 You acknowledge and agree that our services under or in connection with this agreement are limited to:
(a) providing the Site to users;
(b) providing the Site to allow Sellers to market and advertise their Goods; and
(c) providing the Site to allow Buyers and Sellers to form contracts for the sale of Goods by Sellers to Buyers,
and we expressly exclude all other acts, omissions or services that do not form part of the services as defined in this clause 1.6
1.7 We are not party to any agreement entered into between a Buyer and a Seller and we have no control over the conduct of Buyers, Sellers or any other users of the Site or over the availability, pricing, quality or any aspect of the Goods a Seller offers. We are not the seller of any Goods offered by a Seller and we are not acting for or on behalf of a Buyer in relation to payment for Goods. We do not accept any Liability for the services provided by Sellers or any third party delivery company.
1.8 These Terms will apply from the date that you accept these Terms in accordance with their terms, until the date on which these Terms are terminated in accordance with their Terms (Term).
2 Buyer Registration (applicable to Buyers only)
2.1 You may purchase Goods from Sellers without an account (if you pay by debit or credit card) or you may choose to create an account with us which allows you to review your order history, save your wish list and store your details such as your shipping address and payment details (Account). If you would like to pay for Goods by electronic funds transfer you must create an Account to do so.
2.2 When you make a purchase, you will be asked to input basic contact information such as your name, email, shipping address, billing address and payment details and if you choose to create an account, you will need to choose a password.
2.3 You must ensure that any personal information you give to us when creating an Account is accurate and up-to-date.
2.4 It is your responsibility to keep your Account details confidential. You are liable for all activity on your Account, including any purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.
2.5 You acknowledge that you order Goods on the Site, but that you enter into a contract for the sale of Goods with the chosen Seller. It will be the relevant Seller who provides the Goods and arranges for delivery of the Goods in your order.
2.6 In order for the Seller to enter into the contract for sale with you and to deliver the Goods to you, you consent to us providing the Seller with your name, delivery address, contact details and any other relevant order details.
3 Seller Accounts (applicable to Sellers only)
3.1 If you do not run a business and you would like to sell or advertise Goods on a casual basis (less than 25 items per month, and if you are advertising automotive motor vehicles, less than 5 automotive motor vehicles per month) you can register for a free account on the Site as a Casual Seller (Casual Account).
3.2 If you want to be listed as a Trader on our Site and sell or advertise your Goods to Buyers and other users of the Site for commercial purposes, you must register your interest through the Site (Expression of Interest). You must also provide us with any information we request about your business, including your company and contact details, a description of your business and the details of your website. Then you can select a membership plan (Membership).
3.3 We will review your Expression of Interest and determine whether your business will be suitable for our Site.
3.4 We may, at our absolute discretion, accept or reject your Expression of Interest.
3.5 If we reject your Expression of Interest, we will provide you with a written notice of such rejection and you will not be able to become a Trader.
3.6 If we accept your Expression of Interest and we approve you as a Trader on the Site, we will create a login for you for your profile on our Seller panel based on the sign-up information you provide us with and you will receive an email requesting you to choose a password which will allow you to access and use the Site as a Trader (Seller Panel).
3.7 Once you access the Seller Panel, you may tailor your publicly facing profile. You can integrate your Account with third party inventory manager platforms (as set out on the Site) to help you manage product information and inventory.
3.8 You may only have 1 Account as a Seller and 1 Account as a Buyer on the Site. If, as a Trader, you would like to sell general goods, parts and advertise automotive vehicles, you will need to select a Membership for each category, as set out on the Site.
3.9 You agree to provide accurate, current and complete information in your Account (including the Seller Panel if applicable) and regularly update such information, to keep it accurate, current and complete.
3.10 You are responsible for keeping your login details and your username and password confidential and you will be liable for all activity on your profile on your Account (and the Seller Panel if applicable), including any Listings (as set out below). You agree to immediately notify us of any unauthorised use of your Account (including unauthorised activity on the Seller Panel).
4.1 Sellers may use their Account to post an accurate and complete description of any Goods that they wish to sell through the Site (Listing). The Listing may be for a fixed-fee (Buy Now), or, Sellers may choose to sell Goods through a bidding process (Place a Bid), or a combination of both.
4.2 Buy Now Listings of Goods should include the price payable by the Buyer that is inclusive of all costs, including any payment processing fees and other fees, applicable delivery costs and applicable GST (can be displayed separately). These amounts, collectively, are the “Purchase Price”. All amounts are to be stated in New Zealand dollars.
4.3 For Place a Bid Listings, the Seller will set the starting price, the reserve price, and if they would also like to provide an instant purchase option, a Buy Now price. Unless otherwise set out on the Site, Auctions run for 2 weeks (Bidding Period). A Seller is not obligated to accept a bid unless the reserve price is met. Where a Seller turns the “Place a Bid” feature on for a Listing, the Seller agrees that we may notify them about any bids made on the Listing. For Place a Bid Listings, the Purchase Price is the amount of the highest bid (subject to the reserve price being met), plus any payment processing fees and other fees, applicable delivery costs and applicable GST (which the Seller must set out in the Listing).
4.4 As a Seller, you agree:
(a) that you are legally entitled to, and capable of, supplying the Goods described in any Listing (including, that you have good title to the Goods and they are free from any encumbrances);
(b) to provide all details requested by us about the Goods in a Listing, including an accurate description, up to date photographs and the price of the Goods (as reasonably determined by you), and any other details requested by us;
(c) that we may at any time and for any reason reject the Listing, or remove the Listing from our Site, in our reasonable discretion; and
(d) that the Goods will be available for Buyers to order on our Site, unless the Listing for the Goods are removed by you or marked as out of stock.
4.5 As a Seller, you may choose to purchase a featured listing, as set out on our Site, so that your Goods appear on certain banners, pages or positions on our Site, to help you promote your Goods (Featured Listing). Any order placed through the Site by you is an offer by you to purchase a Featured Listing for the price notified, including any taxes (Featured Listing Price) at the time you place your order. It is your responsibility to check the inclusions in the Featured Listing, including positioning, length of time that the Featured Listing will be live and Featured Listing Price. We may, at our absolute discretion, accept or reject an offer by you to purchase a Featured Listing. When you order and pay on the Site and your payment has been validated, we will provide you with an order confirmation email. If we reject your order after you have paid for the Featured Listing, we will refund you the Featured Listing Price.
5 Automotive vehicles
5.1 We are not a seller or reseller of any automotive vehicles and our services are limited to providing a Site for Sellers to advertise automotive vehicles, generate leads and for other purposes set out in clause 1.6.
5.2 If you are a Seller selling automotive vehicles, you will only be able to list Goods on the Site to advertise and promote them and generate leads.
5.3 Buyers can express interest for automotive vehicles on the Site but cannot order an automotive vehicle through the Site.
5.4 All sales of automotive vehicles must occur independently of the Site and we do not accept any Liability for any part of the sale.
5.5 If you are a Seller, you must comply with all laws in relation to the sale and/or resale of automotive vehicles.
5.6 If you are a Seller, you agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with a breach you or any of your personnel of any part of this clause 5.
6.1 A Buyer may order Goods, or place a bid for Goods, from Sellers as set out in Listings on the Site. Any order or bid placed through the Site is an offer by the Buyer to purchase a particular Good or Goods from the Seller for the Purchase Price specified in the Listing or the amount of the relevant bid, and in accordance with any terms and conditions set out in the Listing, at the time the Buyer places the order or bid.
6.2 It is the Buyer’s responsibility to check the Listing details, including selected Goods and pricing, before submitting an order or making a bid through the Site.
6.3 For “Buy Now” purchases, when the Buyer orders and pays on the Site the order is deemed accepted by the Seller and results in a separate binding agreement between the Seller and the Buyer for the supply of Good in accordance with the Terms (Order). Once the payment by the Buyer has been validated, we will provide the Buyer with an Order confirmation email, which may include an Order number, an Order ID, the delivery and billing addresses and a description of what was ordered.
6.4 If you are a Buyer and the relevant listing has the “Place a Bid” feature activated, you may either purchase the Good for a fixed-fee through the “Buy Now” feature (if activated) or, place a bid to buy the Goods for less than the Buy Now price (Bid). If there is no Buy Now price, you may place a Bid for any amount you like (subject to the starting price and reserve price). We may limit the number of Bids Buyers can make. You must not place a Bid for an amount you are not willing or able to pay for the Good, as you will not be able to withdraw your Bid once you have made it. If you have the highest Bid at the end of the Auction period for that Good (provided it meets the reserve price), you will be deemed to have made an Order, and you will be liable to pay the price for that Good in accordance with your Bid and we will charge your nominated card for the Order.
6.5 You must not engage in bid manipulation. Bid manipulation is any practice which unfairly induces other users to make bids or controls the bid price. This includes (but is not limited to) bidding in a way that pulls other bidders to their maximum bid, retracting the high bid, and then re-bidding at a small increment above the legitimate high bidder or employing shill bidding, which is, the use of secondary registrations, associates or aliases to artificially raise the bidding on an item). Buyers are also prohibited from communicating with each other for the common purpose of manipulating the final purchase price of a Good.
7.1 We may contact you via the Site using in-account notifications, or via off-Site communication channels, such as text message or email.
7.2 You may contact other Buyers and Sellers through an in-app messaging functionality.
8 Fees and payment
8.1 We make available the Site and help Sellers to process payment for orders through our payment processor, currently Stripe.
Applicable to Buyers only
8.2 You must pay the Seller, at the time you place your Order (or for Place A Bid Listings, at the end of the Bidding Period if you have placed the highest Bid), the Purchase Price.
8.3 You must pay the Purchase Price using one of the methods set out on the Site (debit/credit card or electronic funds transfer). Only once the Purchase Price has been paid in full, will your Goods be dispatched to you by the Seller.
8.4 You agree to comply with the relevant third party payment processor’s terms and conditions.
8.5 You must not pay, or attempt to pay, the Purchase Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Purchase Price.
Applicable to Sellers only
8.6 When you set up your Account, you will be required to register for an account with our third party payment provider, currently Stripe, to process and receive payments from Buyers (Payment Account).
8.7 Once you have set up the Payment Account, you will be able to link this to your Account and any time a Buyer makes a payment of the Purchase Price for a Good, you will be able to receive such payments from Buyers directly.
8.8 You may also choose to set up your Account so that you can receive payments from Buyers via electronic funds transfer, in which case any terms you agree with your banking institution will apply.
8.9 If you choose to purchase a Featured Listing, you must pay us the Featured Listing Price at the time of your order, in accordance with this clause 8. You must pay the Featured Listing Price using one of the methods set out on the Site, such as Stripe. You must not pay, or attempt to pay, the Featured Listing Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Featured Listing Price.
Applicable to Casual Sellers only
8.10 It is free for Casual Sellers to create an Account. Casual Sellers are limited in the number of Listings they can create per month (as set out on the Site). If you would like to sell or advertise a commercial quantity of Goods on the Site, then you will need to apply to be a Trader (as set out in clause 3).
8.11 Some categories of Listings are free for Casual Sellers, and other categories require payment of a fee in order to create a Listing, as set out on the Site (Listing Fee).
8.12 If applicable, you must pay the Listing Fee at the time you create your Listing, using one of the methods set out on the Site, such as Stripe. You must not pay, or attempt to pay, the Listing Fee by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Listing Fee.
8.13 Where a Listing Fee is required for a Listing, we will also charge the services fees (including any third-party payment processing fees) to Casual Sellers as set out on the Site (Service Fee). The Service Fee will be deducted from the Purchase Price, and will be paid to us at the same time as the Buyer pays the Purchase Price through the Platform. The Purchase Price minus the Service Fee will be deposited in your merchant account as linked in your Account upon payment by the Buyer, in accordance with clause 8.7.
Applicable to Traders only
8.14 Once you have created an Account and chosen a Membership, you agree to pay the membership fee set out on the Site (Membership Fee) and any other amounts payable to us under these Terms, without set-off or delay, via the payment method set out in your Membership, to access the Seller Panel, create Listings and benefit from your Membership.
8.15 The payment method in your Membership may be subject to additional terms and conditions imposed by our applicable third party payment processor, currently Stripe (including direct debit payments, as set out below). By making payment through a third party payment processor, you accept the applicable terms and conditions. We are not responsible for any payments processed by a third party payment processor.
8.16 The Membership Fee is payable in advance of the next billing cycle for your Membership (Payment Date) and any additional charges will be billed in arrears at the end of the relevant Membership billing cycle (unless otherwise agreed between the Parties).
8.17 The Membership Fees are non-refundable. To the maximum extent permitted by law and unless specified otherwise in these Terms, there will be no refunds or credits for any unused part of your Membership (or part thereof).
8.18 If your Membership requires you to pay the Fees via direct debit, you expressly consent to, authorise and instruct us to deduct the Membership Fees from your nominated account as an automatic payment in accordance with the relevant Payment Date. If required, you agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or by a third-party provider on our behalf.
8.19 You must ensure your chosen payment method has sufficient funds to pay the Membership Fees on the relevant Payment Dates.
8.20 Memberships automatically renew for periods of the same length as your current Membership, unless you cancel your Membership in accordance with the termination clause below.
8.21 If you are paying the Membership Fees via direct debit, you are liable for any fees charged by our third party payment processor as a result of a late payment, except to the extent these are as a result of our error or our system failure and where this is the case you should provide us with a copy of the relevant records so that any issue can be resolved.
8.22 If any payment has not been made within 5 days of the Payment Date, in accordance with these Terms and as specified in your Membership Plan, we may (at our absolute discretion):
(a) immediately cease or suspend the provision of our services to you and remove your access to your Account, and recover as a debt due and immediately payable from you, our additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of New Zealand cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.
8.23 If you rectify such non-payment within a reasonable time after your access has been suspended, then we may, at our discretion, recommence your Membership as soon as reasonably practicable.
8.24 You may upgrade or downgrade your Membership to another tier at any time in the Seller Panel or by sending us an email.
8.25 If you upgrade your Membership, the upgrade will happen immediately and the payment method linked to your Account will automatically be charged the pro-rata Membership Fee for your new Membership.
8.26 If you downgrade your Membership, the downgrade will become effective on the following Payment Date.
9 Availability and Cancellation (applicable to Buyers only)
9.1 All orders made through the Site are subject to availability. While we do our best to require that Sellers keep Goods (including available volumes) up to date so that the Site reflects the Goods that are actually available for purchase, this may not always be the case.
9.2 We or the relevant Seller reserves the right to cancel, at any time before delivery and for whatever reason, an order that we or the Seller has previously accepted, including where there is a considerable delay in dispatching your order, if for any reason a Seller cannot supply the Goods you order (for example due to an event beyond our or a Seller’s reasonable control) or if the Goods ordered were subject to an error on our Site (for example in relation to a description, price or image). We or the Seller will contact you using the details you provided when you placed your order and offer you a refund.
10 Delivery, Title and Risk (applicable to Buyers only)
10.1 If possible, the relevant Seller will deliver the Goods to the delivery address you provide when making your order. The Seller will set out their delivery area in the relevant Listing or through their Account. If you are not in the delivery area please contact the Seller to discuss delivery options.
10.2 Delivery costs are set out on the Site, may vary from Seller to Seller, and will depend on the type of delivery you choose.
10.3 You may need to sign for certain deliveries. If neither you nor your authorised representative is at the delivery address to accept delivery, the Seller’s delivery company’s policies will apply.
10.4 Sellers will set out the expected delivery timeframe on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the Seller and the Seller’s courier.
10.5 You will receive a tracking number for all orders which will enable you to see the delivery status of your order. Where you have purchased more than one Good or you have Goods re coming from different Sellers, you will receive multiple tracking numbers (one for each delivery).
10.6 Title to the Goods will remain with the Seller until you have paid the Seller the Purchase Price in full in accordance with the Terms. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the Goods.
10.7 Risk in the Goods will pass to you as soon as they are delivered to the delivery address you provided in your order. Once risk in the Goods passes, you will be solely responsible for them.
11 Delivery (applicable to Sellers only)
11.1 When a Buyer has made an order through the Site, the order will be sent to you via email or where you are a Trader, through the Seller Panel. You agree to deliver the Good(s) in accordance with these Terms.
11.2 You must prepare the Goods for delivery by packing the Goods in appropriate and good quality packaging (including to protect against loss or damage to the Good during delivery).
11.3 You must arrange for delivery of the Goods, as set out in the order (for example, standard or express post).
11.4 You must dispatch the Good within the timeframe set out in your Listing on the Site.
11.5 You must notify us when the Goods have been dispatched and provide us and the Customer with the tracking number for the delivery of the Good(s).
11.6 Without limiting any provision of these Terms, you must provide us with notice as to any matter which may change the nature, scope or timing of the delivery of the Good(s), as applicable.
12.1 As a Buyer, you are not entitled to return Goods or receive a refund for change of mind or other circumstances, unless otherwise set out in the Listing or on the Site (in which case you will be responsible for any delivery costs).
12.2 In New Zealand, goods come with guarantees which cannot be excluded under the Consumer Guarantees Act 1993. If you believe that you have a claim under the Consumer Guarantees Act 1993 you may have the right to a replacement or refund.
12.3 Where you as a Buyer wish to return the Goods and/or to seek a remedy under the Consumer Guarantees Act 1993, you must complete the returns form on our Site and provide all requested details, including your order number, a photograph of the Goods and a description of the issue.
12.4 As we are a marketplace and you as a Buyer have purchased your Goods from a Seller listed on our Site, we are not responsible for any returns under the Consumer Guarantees Act 1993, however we will use reasonable efforts to help you to liaise with the relevant Seller in the event of any dispute.
12.5 Where you wish to return Goods to seek a remedy under the Consumer Guarantees Act 1993, you will need to cover any associated costs (for example, delivery costs) of you returning the Goods. Where your claim is a valid claim under the Consumer Guarantees Act 1993, the Seller will refund your return delivery costs and either dispatch a new or repaired replacement Good or refund you the Purchase Price of the relevant Good.
12.6 Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or any other obligations that cannot be restricted or modified at law (Statutory Rights). Any and all other warranties or conditions which are not guaranteed by Statutory Rights are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
12.7 For disputes between Buyers and Sellers, we encourage the parties to attempt to resolve disputes (including claims for returns or refunds) with the other party directly and in good faith, either on the Site or through external communication methods. In the event that a dispute cannot be resolved through these means, the parties may choose to resolve the dispute in any manner agreed between the parties or otherwise in accordance with applicable laws.
12.8 This clause will survive the termination or expiry of these Terms.
13 Reviews (applicable to Buyers only)
13.1 We may allow you to review your experience with a Seller and the Goods you have bought from them (Review).
13.2 You agree to provide true, fair and accurate information in your Review. If we consider that a Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
13.3 You can write a Review about a Seller if you have had an experience with that Seller, which means that you have purchased goods from the Seller through the Site (a Buyer Experience).
13.4 You may not write a review about a Seller if you are an employee of that Seller, work for the Seller or are an immediate family member of the Seller. Similarly, you may not write a Review about a direct competitor to the Seller you are employed by or work for.
13.5 Your Buyer Experience must have occurred in the 12 months prior to you writing a Review.
13.6 You may only write about your own Buyer Experience. You are not permitted to write a Review about somebody else’s Buyer Experience, such as that of a family member or friend.
13.7 You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a Seller to write a Review, you should include information about this in your Review. Incentives include the Seller offering you a gift, reward, discount or advantage for writing a Review about the Seller on the Site.
14 Intellectual Property and Content
14.1 We may allow you to, on or through our Site:
(a) post, upload, publish, send or receive relevant content and information, including posting Listings and leaving Reviews (User Content); and/or
(b) access and view User Content and the content and information we make available on the Site (UNIXMO Content),
(together, the Content).
14.2 Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Site and all of the Content. Your use of our Site and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Site or the Content.
14.3 You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms:
(a) copy or use, in whole or in part, any Content;
(b) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content designated as paid, exclusive or non-shareable content to any third party; or
(c) breach any Intellectual Property Rights connected with our Site, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
14.4 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Site and access and view any Content for your personal use, and any other purpose contemplated by these Terms, in accordance with these Terms. All other uses are prohibited without our prior written consent.
14.5 You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Site and promote the Site, and if you are a Seller, your Listings and/or Goods, in any media, marketing or promotional material.
14.6 You agree that you are solely responsible for all User Content that you make available on or through our Site. You represent and warrant that:
(a) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and
(b) neither the User Content nor the posting, uploading, publication, sending or receiving of the User Content or our use of the User Content on, through or by means of our Site will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
14.7 Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Site, including as a result of an Intellectual Property Breach.
14.8 The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Site up-to-date and we are not liable if any Content is inaccurate or out-of-date.
14.9 This clause will survive the termination or expiry of these Terms.
15.1 You represent, warrant and agree that:
(a) you will not use our Site or services in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) all information and documentation that you provide to us in connection with these Terms, is true, correct and complete, is in accordance with all laws and is not false or misleading;
(d) you will not introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;
(e) to the extent permitted by law, you have not relied on any representations or warranties made by us in relation to the services and Site (including as to whether the services or Site is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms; and
(f) you must not use the services or Site: (1) to break any law or infringe any person’s rights (including Intellectual Property Rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Site or our services.
15.2 If you are a Seller, you represent, warrant and agree that:
(a) other than where you have a Featured Listing, Listings, as a default, will be presented on the Site in an order of presentation to be determined by us in our sole discretion;
(b) all Goods that you provide through the Site will be of merchantable quality, free from defects, free from encumbrances and supplied in accordance with all relevant laws;
(c) you will update any changes to the Goods in your Listings, including any changes to the price, specifications and inventory levels as soon as you become aware of such changes;
(d) unless otherwise noted in the Listing, Goods will be new and not second-hand, and if they are second-hand, will be in a saleable condition;
(e) you are solely responsible for selling, pricing, packaging, delivering and providing Goods offered to Buyers on the Site in accordance with all applicable laws and regulations (including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986) and you are responsible for any permits or authorisations you need to supply the Goods; and
(f) we do not set your fees, work hours, your schedule or location. We do not provide you with training, equipment or tools or any materials to provide or manufacture your Goods. You are responsible for any taxes payable on any fee you receive for your Goods.
16 Exclusions to liability
16.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your or your personnel’s acts or omissions;
(b) loss of, or damage to, any property or any injury to or loss to any person;
(c) any use or application of the Site or our services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(d) any aspect of the Buyer and Seller interaction, including the Goods offered by the Seller, the description of the Goods offered by the Seller, the description of the Goods purchased, or the supply and delivery of the Goods by the Seller;
(e) the Computing Environment;
(f) any works, services, goods, materials or items which do not form part of our services (as expressed in these Terms), or which have not been provided by us;
(g) any third parties or any goods and services provided by third parties, customers, suppliers, delivery, transportation or logistics providers or other subcontractors which the provision of the Site may be contingent on, or impacted by;
(h) the Site or our services being unavailable, or any delay in us providing the Site or our services to you, for whatever reason; and/or
(i) any event outside of our reasonable control (including a Force Majeure Event).
16.2 This clause will survive the termination or expiry of these Terms.
17 Limitations on liability
17.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will only be liable to perform the Services as particularised in clause 1.6;
(b) we will not be liable for Consequential Loss;
(c) each Parties’ liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of that party’s personnel), including a failure to mitigate; and
(d) our maximum aggregate liability arising from or in connection with the Terms (including the Goods and/or the subject matter of the Terms) will be limited to, and must not exceed: (i) in the case of a Buyer, $100; (ii) in the case of a Seller: the Membership Fees paid by you to us in the previous month (or, if you have annual membership, the previous month on a pro rata basis); or (iii) in all other cases including where there are no amounts paid, $100.
17.2 This clause will survive the termination or expiry of these Terms.
18.1 Your Account (including your access to the Seller Panel (as applicable)) and these Terms may be terminated by you at any time, using the ‘cancel account’ functionality (or similar) in the settings page of your Account or the Seller Panel, or by emailing us.
18.2 Where you are a Buyer and do not have an Account, if you do not agree to these Terms, you should cease using the Site immediately.
18.3 Where you are a Trader, any cancellation you make to your Membership will apply to the next month for month to month Memberships or the next year for annual Memberships if you cancel your Membership before the next Payment Date.
18.4 We may suspend your Account or terminate these Terms immediately upon written notice to you, if:
(a) you (or any of your personnel) breach any provision of these Terms and that breach has not been remedied within 10 business days of being notified by us;
(b) as a Seller, you repeatedly receive negative reviews;
(c) there is any reason outside our control which has the effect of compromising our ability to provide the Site or our services; or
(d) you are unable to pay your debts as they fall due.
18.5 These Terms will terminate immediately upon written notice by you, if we:
(a) are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or
(b) are unable to pay our debts as they fall due.
18.6 Upon expiry or termination of these Terms:
(a) we will remove your access to the Site (including your access to any Account or Seller Panel);
(b) we will immediately cease providing our services to you;
(c) to the extent permitted by law and unless specified otherwise in these Terms, you agree that any payments made by you to us are not refundable to you;
(d) where you are a Seller, you will fulfil any existing orders or refund the relevant Buyer;
(e) any amounts paid to us are non-refundable; and
(f) where we terminate the Terms for any reason you also agree to pay us our additional costs arising from, or in connection with, such termination.
18.7 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
18.8 This clause will survive the termination or expiry of these Terms.
19 Collection Notice
19.2 We may disclose that personal information to our partners if you link your membership with them to your Account, to third party service providers who help us deliver our services (including inventory management software, information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. Where you are a Buyer, we will disclose your personal information to Sellers so that they can fulfill your order. Sellers may disclose that information to courier companies that help them deliver Goods. If you do not provide this information, we may not be able to provide our services and/or the Site to you and Sellers may not be able to provide you with the Goods you order. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside New Zealand.
19.3 We will only disclose your personal information to overseas recipients if:
(a) you have authorised the disclosure after we expressly informed you that the overseas recipient may not be required to protect the personal information in a way that, overall, provides comparable safeguards to those in the Privacy Act 2020;
(b) we believe the overseas recipient is subject to the Privacy Act 2020;
(c) we believe that the overseas recipient is subject to privacy laws or is otherwise required to protect personal information in a manner that, overall, provides comparable safeguards to those in the Privacy Act 2020; or
(d) we are otherwise permitted to under applicable law.
20 Capricorn Society Members
20.1 In this clause 20, Capricorn Society means the Capricorn Society Limited (ACN 008 347 313), a membership-based organisation that offers members benefits, including instant credit for the Capricorn Society’s range of preferred suppliers.
20.2 We have partnered with the Capricorn Society so that their members can receive additional benefits when they use our Site (additional features are set out on the Site).
20.3 If you are a member of the Capricorn Society and a Buyer or Trader, you may choose to link your Capricorn Society membership to your Account. To link your Capricorn Society membership to your Account, you will need to upload your Capricorn Society membership card as an image for our approval. We will notify you if your request to link your Capricorn Society membership has been successful. Following a successful verification with the Capricorn Society, we will send you a confirmation email. If you are a Trader, we will display an icon on your profile and in your Listings to indicate that you are a Capricorn Society supplier.
20.4 If you are a Buyer and have successfully linked your Capricorn Society membership in accordance with clause 20.3, when you are ordering Good(s), you will be able to request for the Capricorn Society to pay the relevant Purchase Price on your behalf, in accordance with your membership terms with the Capricorn Society.
20.5 If you are a Trader, you acknowledge that Capricorn Society members may request for the Capricorn Society to pay the relevant Purchase Price on their behalf, in which case once the Buyer has submitted an order, you agree to (1) verify through your Capricorn Society account that the transaction was validated and to contact us immediately and not supply the Goods if it was not validated; (2) send an invoice to the Capricorn Society for payment of the Purchase Price; (3) to fulfill the relevant order within your standard time frame; and (4) that the Capricorn Society is solely liable to you for paying you the Purchase Price on the terms of your agreement with them and we do not accept any Liability for any debt you accrue from the Capricorn Society.
20.6 Our integration with the Capricorn Society is live and if at any time a Buyer or Seller ceases being a Capricorn Society member, any order that a Buyer tries to make using their Capricorn Society benefits will fail.
20.7 Despite anything to the contrary, if both the Buyer and Seller are Capricorn Society members and the Buyer chooses to purchase Goods through their Capricorn Society membership:
(a) when the Buyer orders on the Site, the order is deemed accepted by the Seller and results in a separate binding agreement between the Seller and the Buyer for the supply of Good in accordance with the Terms;
(b) notwithstanding a Buyer’s obligation to pay the Capricorn Society for any Goods ordered, the Buyer’s obligation to pay the Purchase Price directly to the Seller at the time of ordering is waived (and such Purchase Price will be paid by the Capricorn Society to the Seller in accordance with the Seller’s arrangement with the Capricorn Society);
(c) title in the Goods will pass from the Seller to the Buyer on delivery of the Goods; and
(d) we reserve the right to cancel any order, at any time before the Seller has dispatched the Good(s), if the order was subject to a technical issue or an error on our Site (for example, in relation to verification of a Capricorn Society membership). If a technical issue or error occurs, we will contact both the Buyer and Seller using the details provided when on registration and we may, in or sole discretion, cancel the order, in which case the Buyer will not receive the order and the Seller agrees not to supply the Good(s) and that they will not be compensated by us or the Capricorn Society for the Purchase Price.
20.8 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any aspect of your interaction, agreements or membership with the Capricorn Society, including their arrangement where they assist Buyers to pay Sellers upfront for Goods.
21.1 Access: The Site may be accessed in New Zealand and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of New Zealand. If you access the Site from outside New Zealand, you do so at your own risk and are responsible for complying with the laws in the place you access the Site.
21.2 Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Where you are a Buyer, you must cease to use the service and Site and may terminate these Terms in accordance with clause 17.1 (Termination) if you do not agree to the amended Terms. As a Buyer, prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by a Seller, the terms and conditions that apply to that order will be the ones that were in effect (and which you as a Buyer agreed to) when you as a Buyer placed your order. Where you are a Trader, the new Terms will apply from the date your Membership next renews. If you do not agree to the amended Terms, you should terminate these Terms and delete your Account.
21.3 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
21.4 Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Buyer and us, or a Seller and us, a party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the President of the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive expiry or termination of these Terms.
21.5 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
21.6 Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.
21.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
21.8 Governing law: These Terms are governed by the laws of New Zealand. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
21.9 Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address last provided to us (whether through your Account, the Seller Panel, or your last order). Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
21.10 Photographs: If you provide us with photographs of the Goods, including via email or by tagging us on social media, you consent to us publishing such photographs and details (including but not limited to your name, location and date) for our marketing purposes including on the Site and social media.
21.11 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Payment clause as limited payment collection agent) between the parties.
21.12 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
21.13 Third Party Links: Our Site may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites.
21.14 Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
21.15 Seller insurance: Where you are a Trader, we may request that you provide evidence of your insurance. Where we do so, we are not confirming that the insurance you have is sufficient or suitable for the Goods you choose to provide to Buyers. If we do not ask you to provide evidence of insurance this does not indicate that we believe you do not require insurance. You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require.
For the purposes of these Terms, capitalised words have the following meanings:
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
System means all hardware, software, networks and other IT systems used by a party from time to time, including a network.
For any questions or notices, please contact us at:
Unixmo Ltd NZBN 9429041607510
Last update: 16 March 2021
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