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Terms of Use Agreement

1 Introduction

Welcome to eMarket.nz.
This Agreement is designed to ensure a positive, family-friendly, informative and safe experience for all our users.
Throughout this Agreement, “we” “us” or “our” refers to “eMarket” and its divisions, subsidiaries, or assigns. This Agreement is effective 1 January, 2020.

2 Application of Agreement

Before accessing or using the eMarket.nz website services, tools, or applications (collectively, our “Services”), you must read and accept the terms of this Agreement.

3 License

If you are the legal age of majority in your home jurisdiction, we offer to grant you a limited, revocable, nonexclusive, nonassignable, nonsublicensable license to access and use our Services in compliance with this Agreement.

4 Included Policies

The following policies are incorporated into and form a part of this Agreement:

  1. Posting Policy
  2. Prohibited Items & Services Policy
  3. Privacy Policy

[the “Policies”]
As a condition of your use of our Services, you agree to abide by the terms of this Agreement and the included Policies.

5 Using Our Services

Without limiting the application of this Agreement and the included Policies, as a condition of accessing or using our Services you agree that you will not:

  1. Violate any laws, third party rights or our Posting Policy
  2. Post any item or service listed in our Prohibited Items & Services Policy
  3. Continue to use our Services if you have been suspended from using our Services;
  4. Interfere with any other user’s posts;
  5. Post infringing, unlawful, false, inaccurate, misleading, defamatory or obscene content;
  6. Collect other users’ personal information, including but not limited to email addresses, IP addresses and telephone numbers;
  7. Solicit other users except by posting content in compliance with this Agreement and the included Policies; or
  8. Send a message to a seller for any reason other than expressing genuine interest in purchasing their item or service.

6 Privacy

Our Privacy Policy explains how we handle your personal information and protect your privacy. As a condition of using our Services, you consent to our collection, use and disclosure of your personal information in accordance with our Privacy Policy.

7 Services and Fees

Using our Services is generally free of charge. We may charge a fee for certain services, and when we do, you will have the opportunity to review and accept that charge. Any fees are non-refundable and payable when due. All fees and items are listed in New Zealand dollars.

8 Content

By using our Services to post content, you automatically grant and assign to us, and you represent and warrant that you have the right, power and authority to grant and assign to us, a non-exclusive, unlimited, fully paid, worldwide, perpetual, irrevocable, royalty-free, fully sublicensable licence to exercise any and all copyright, trademark, publicity, and database rights you have in such content, in any media known now or in the future, and you waive any and all moral rights in such posted content.
You also expressly grant and assign to us all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use, or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

9 Advertising, Third Party Content and Links to other Websites

Some of our Services are supported by advertising revenue and we may permit third parties to display advertisements and promotions to you when you use our Services. In addition, our Services may utilise or contain links to other third party sites, including social networking sites.
We have no control over, and assume no responsibility for, such third party advertisers or third party sites or the content, privacy policies, or practices of such advertisers or sites. You are subject to the policies of such third parties when and where applicable.
By using our Services, you agree that we may place advertising in our Services and that you will not hold us responsible or liable for any loss or damage of any sort incurred by you as a result of the presence of such advertisers, your subsequent dealings with advertisers, or your use of any third party site accessed through our Service.

10 Disclaimer of Warranties

We try to keep our Services safe, secure, and functioning properly. You acknowledge that we cannot guarantee the continuous operation of or access to our Services. You further acknowledge that operation of and access to our Services may be interfered with as a result of technical issues or numerous factors outside of our control.
YOU AGREE THAT YOU ARE MAKING USE OF OUR SERVICES AT YOUR OWN RISK, AND THAT THEY ARE BEING PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL EXPRESS OR IMPLIED WARRANTIES, TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

11 LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD US RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM THE USE OF OUR SERVICES, WHICH INCLUDES, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FOLLOWING:

  1. YOUR USE OF OR YOUR INABILITY TO USE OUR SERVICES;
  2. DELAYS OR DISRUPTIONS IN OUR SERVICES;
  3. VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY USING OUR SERVICES OR ANY SITE, SERVICES, APPLICATIONS OR TOOLS LINKED TO OUR SERVICES;
  4. GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM;
  5. DAMAGE TO YOUR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE USE OF OUR SERVICES;
  6. THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION:
      1. ITEMS OR SERVICES OFFERED OR PROVIDED BY THIRD PARTIES USING OUR SERVICES; OR
      2. PAGES CACHED BY THIRD PARTIES.
  7. A SUSPENSION, TERMINATION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT;

REGARDLESS OF THE ABOVE, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES IN DISPUTE NOT TO EXCEED THE TOTAL FEES, WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (B) $100

12 INDEMNITY

YOU WILL INDEMNIFY AND HOLD US (AND OUR AFFILIATES AND SUBSIDIARIES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE LAWYERS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF OUR SERVICES, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.

13 RELEASE

IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE US (AND OUR AFFILIATES AND SUBSIDIARIES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) FROM CLAIMS, DEMANDS, AND DAMAGES (WHETHER DIRECT, ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOUR AT THE TIME OF AGREEING TO THIS RELEASE.

14 Access and Interference

You agree that you will not use any robot, spider, scraper, crawler, or any other automated means to access our Services for any purpose without our express written permission.
Additionally, you agree that you will not:

  1. Take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
  2. Copy, reproduce, aggregate, reverse engineer, modify, create derivative works from, distribute, sell, transfer, or publicly display any of our Services, any content posted on our websites (except for your content) or any of our copyrights or trademarks without prior express written permission from us and any appropriate third party, as applicable;
  3. Interfere or attempt to interfere with the proper working of our Services, or any activities conducted on or with our Services; or
  4. Bypass any measures we may use to prevent or restrict access to our sites.

Exception for Internet Search Engines and Public Archives
As a limited exception to paragraph (b) above, general purpose Internet search engines and non-commercial public archives may access our Services without a separate written agreement provided that they:

  1. Provide a direct hyperlink to the relevant website, forum, content or other Services;
  2. Access our Services from a stable IP address using an easily identifiable agent; and
  3. Comply with our robot.txt file.

However, we may terminate this limited exception as to any search engine or public archive (or any person or entity relying on this limited exception to access our Services without a separate written agreement with us) at any time and in our sole discretion, upon written notice, including, without limitation, by email notice
Exception for RSS Feeds
As a limited exception to paragraph (b) above, you may download information from one of our RSS Feeds provided that either:

  1. You only do so for personal use or in conjunction with a non-commercial website (a website that generates no revenue), or
  2. You enter into a separate written agreement with us.

15 Modification or Termination of Service

We reserve the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Services.
In addition to all other rights and remedies available to us under this Agreement or by law, we may, in our sole discretion, terminate or suspend your access to and use of the Services (or any part thereof) without cause and without notice.

16 No Agency

No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

17 Notice

You agree to send all legal notices to us by email to the following address:

[email protected]

You consent to us sending you legal notices to the email address you provide to us. Legal notices by email will be deemed received 24 hours after sending. We may also send you legal notices by registered mail. Notices sent by registered mail will be deemed received five days following the date of mailing.

18 General

Severability

If any provision of this Agreement is found invalid or unenforceable, such provision shall be severed from this Agreement without invalidating the remainder of the Agreement, and the Agreement shall be interpreted so as to give effect, to the extent possible, to the original intent of the Agreement including the offending provision.

Assignability

This Agreement is personal to you and your rights and obligations under this Agreement may not be assigned, sub-licensed or otherwise transferred. We may assign this Agreement to a third party.

No third party beneficiaries

You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to the Terms.

Governing Law

This Agreement shall be governed and construed in accordance with the laws of New Zealand and applicable therein.
Notwithstanding the above, for our exclusive benefit, we retain the right to bring proceedings in connection with this Agreement in the courts of the country of your residence or, if applicable, your principal place of business.

Non-Waiver

Our delay or omission in requiring performance of your obligations under this Agreement shall not operate as a waiver of any of our rights under this Agreement.

Amendments

We may amend this Agreement or the included Policies from time to time. When we do so, we will put a notice on our websites. All amendments shall become effective within 30 days of such notice.

Entire Agreement

This Agreement, including the incorporated Policies, sets forth the entire understanding and agreement between you and us with respect to the subject matter of this Agreement. 

Survivability

Sections 6 (Privacy), 7 (Service and Fees), 8 (Content), 9 (Advertising, Third Party Content and links to other Web Sites), 10 (Disclaimer of Warranties), 11 (Limitation of Liability), 12 (Indemnity), 13 (Release), 15 (Modification or Termination of Service), 17 (Notice), and 18 (General) shall survive any termination of this Agreement.

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