ABOUT THIS DOCUMENT
This document explains the basis on which Toldy Ltd (“Toldy”, “we”, “us”, “our”) provides Toldy’s services to you. This is the agreement between us and you (being the account holder) (Agreement) and is made up of this page, the general terms and conditions below, our Privacy Policy (available here https://www.toldy.com/privacy-policy) and our Website Terms & Conditions (available https://www.toldy.com/terms-conditions) (in that order of priority). Those documents are to be read together and to be given a consistent meaning but, in the event of a conflict, the general terms & conditions apply to the extent of the inconsistency.
The Agreement applies to all Services supplied by us to you. This Agreement also applies to all steps taken towards opening an Account, even if an Account is not opened. The Agreement is important so please read it carefully.
ABOUT OUR SERVICES
The services we provide (including the service levels) are our described in this Agreement as well as on our website (https://www.toldy.com )and our app (together the “Services”). You can ask to use particular Services once we have accepted you as a customer and opened your Account. You can only use any of the Services after we first approve your use of the Services, even after you have opened an Account. We can withhold that approval at our absolute discretion and without having to provide a reason.
Without limiting any of our other rights in the Agreement, we have the right, from time-to-time:
· to update the Services including to remove, add to, change, or suspend or disable access to, any part of any the Services and related functionality (we have no obligation to notify you of such changes); and
· to close your Account by notice to you.
However, subject to our rights in this Agreement, we will not update any Services, or close your Account, while we are providing any of such Services to you, except in limited circumstances (for example, because of we are not permitted to do so by law, because it is no longer practicable to do so or because you fail to make a required payment).
We do not offer or provide financial, legal, tax or any other advice.
CONTENT
ABOUT THIS DOCUMENT
ABOUT OUR SERVICES
1. DEFINITIONS & INTERPRETATION
2. ACCOUNT APPLICATION
3. PLATFORM
4. COMMUNICATION WITH US
5. PROHIBITED MESSAGES
6. RECEIPT AND STORAGE OF MESSAGES
7. DELIVERY OF MESSAGES
8. PROHIBITED GOODS
9. RECEIPT AND STORAGE OF ITEMS
10. DELIVERY OF ITEMS
11. FEES, CHARGES & PAYMENT
12. INTELLECTUAL PROPERTY
13. REPRESENTATIONS & WARRANTIES
14. LIMITATION OF LIABILITY
15. INDEMNITY
16. NOTICES
17. TERMINATION & SUSPENSION
18. CONFIDENTIAL INFORMATION
19. GENERAL
GENERAL TERMS & CONDITIONS
Our general terms and conditions are described below.
1. DEFINITIONS & INTERPRETATION
1.1 Definitions: In the Agreement the following terms have the following meanings, except where the context requires otherwise:
Term
Meaning
Account
Your account with us maintained on the Platform that records key information.
Agreement
Has the meaning given to that term above under “About this Document”.
App
The mobile application made available from authorised app stores for the purposes of accessing the Services (the features of which we may vary from time to time).
Business Day
Monday to Friday, other than any public holiday within the meaning of section 44 of the Holidays Act 2003 that occurs in Auckland.
Business Hours
24 hours a day or the hours during which we provide the Services as specified in a Platform.
CGA
Consumer Guarantees Act 1993
Confidential Information
Any information that is not public knowledge and that is obtained from the other party in the general course of, or in connection with, this Agreement. Our Confidential Information includes the Platform and the Documentation.
Data
All data and information (including Personal Information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Platform (excluding data and information, we own, hold, use or create), or otherwise sent to us using means we approve, and includes Messages.
Delivery Date
The delivery date for the delivery of a Message or Item you nominate on a Platform, and updated delivery date you notify to us and we accept, being a date within the range of delivery dates we accept.
Documentation
The user and technical documentation designed to enable you to properly use and operate the Platform (if any), and includes any update of the documentation.
Event of Default
Has the meaning given to that term in clause 17.5.
Fees
Has the meaning given to that term in clause 11.1.
Force Majeure Event
An event that is beyond the reasonable control of a party, excluding:
· an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
· inability to pay (for any reason) to the other party an amount due and payable.
Goods
All physical property of any kind including storage devices and excludes all intangible property including computer code, cryptocurrency.
GST
Any form of value added tax anywhere, including the goods and services tax within the meaning of the New Zealand Goods and Services Tax Act 1985.
Intellectual Property Rights
Includes copyright, and all worldwide rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Item
A Good that we agree to receive, store and deliver for you in accordance with this Agreement.
Law
Includes any international, national or local law, by-law, Act of Parliament, regulation, other enactment, or any rule, code, sanction or other requirement promulgated by a reputable public authority in New Zealand or elsewhere.
Loss
Includes loss, damage, liability, charge and expense.
Message
Has the meaning given to that term above under “About Our Services”.
Objectionable
Includes objectionable, threatening, coercive, exploitative, banned, abusive, defamatory, pornographic, indecent, illegal.
Personal Information
Means information about an identifiable individual.
Platform
Any electronic platform provided by us or a third party to support provision of the Services, together with the Systems, and includes the App and the Website.
Privacy Policy
Our privacy policy published on the Website from time-to-time.
Premises
Any place where we store Items or Messages
Prohibited Message
Has the meaning given to that term in clause 5.2.
Prohibited Goods
Has the meaning given to that term in clause 8.2.
Recipient
The person you notify us is the recipient of a Message or Item.
Recipient Address
The relevant email, physical or other permitted address of a Recipient selected by you when ordering Services with respect to that Recipient and any updated address you notify to us and that we accept.
Security Interest
Includes a mortgage, security interest, charge, lien and other encumbrance or adverse interest.
Services
Has the meaning given to that term above under “About Our Services”.
Systems
Software, IT solutions, systems and networks (including software and hardware) used in connection with the provision of the Platform and the Services, including any third party solutions, systems and networks.
Tax
Includes:
· all forms of taxation and all other statutory, governmental or local governmental withholdings, duties, dues, imposts, levies, whether imposed or payable in New Zealand or elsewhere, including income tax, withholding tax, value added tax (including GST), customs or excise duties, regional or local taxes;
· all interest, penalties or fines relating to, or arising in connection with, the imposition of non or late or under-payment of any such taxes and other amounts due.
Toldy Box
Has the meaning given to that term in clause 9.2.
Website
Our website at https://www.toldy.com .com.
Year
A 12 month period commencing on the date you first receive Services from us or any anniversary of that date.
You, your
Our customer, being the person in whose name we opened an Account.
1.2 Interpretation: In this Agreement, except where the context requires otherwise., a reference to:
a a clause or a Schedule is to a clause in or a schedule to the Agreement;
b a person includes an individual, body corporate, an association of persons (whether corporate or not), a trust, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal personality;
c personnel includes officers, employees, contractors, and agents;
d including and similar words do not imply any limit;
e a statute includes references to that statute as amended or replaced from time to time, and any subsidiary legislation made under that statue (including regulations);
f a party is a reference to a party to the Agreement, and includes that party’s permitted assigns; and
g NZD, NZ$ is to New Zealand currency, USD, US$ is to the currency of the United States of America, CAD, CA$ is to Canadian currency, AUD, A$ to Australian currency.
h headings in the Agreement are for convenience only and have no legal effect.
i the singular includes the plural and vice versa.
2. ACCOUNT APPLICATION
2.1 Before we can provide Services to you must open an account with us and provide all information requested by us including your full legal name, email address, and a unique password. The legal name you provide must match the legal name in the identity verification document(s) you provide to us.
2.2 We reserve the right to decline to open an Account, at our absolute discretion, including where:
a you are under 18 years old;
b you are resident in certain countries or territories;
c you do not comply with any criteria or conditions we specify from time-to-time in connection with opening an Account.
We have no obligation whatsoever to provide reasons, and we will have no liability to you whatsoever, or howsoever arising, for declining to open an Account.
2.3 Except with our prior written approval:
a Only individuals may open an Account, access the Platform and use the Services.
b You can only use the Services for personal, non-commercial, purposes.
c You may not access the Platform or use the Services on behalf of any other person, or impersonating any other person.
d You must not, directly or indirectly, open more than one Account except with our prior written consent. If you and one or more associated persons each have an Account we may limit or prohibit use of some or all of those Accounts.
2.4 To open an Account you must meet all conditions in this Agreement and that we otherwise specify from time-to-time, including the following conditions:
a you must provide all information, documents and confirmations requested by us;
b you must download the App and register to use the App;
c respond to a verification email, where relevant,
Despite that we can decline to open an Account for any reason at our absolute discretion.
2.5 Without limiting the foregoing, you must provide all information and documents, including with respect to our obligations under anti-money-laundering Laws, and tax information exchange Laws that we request. Information we can request includes information on:
a you and any other relevant persons, including beneficial owners and persons acting on your behalf;
b your (and others) source of wealth and funds;
c details of your (and others) tax status in New Zealand and elsewhere (including taxpayer identification numbers).
2.6 You acknowledge and agree that we can provide, exchange, hold and use information and documents you provide in connection with this Agreement (including under this clause 4), or that is otherwise held by us about you or any related person, for compliance purposes, including providing that information to:
a third party service providers who support us to meet our obligations at Law, including to verify the identity of you and other persons;
b New Zealand and overseas governments (including tax, regulatory & enforcement authorities).
2.7 You acknowledge and agree that:
a We may, without notice, not open an Account, suspend or close your Account, cease providing Services to you, and terminate this Agreement, in connection with information you provide (or that you fail to provide) to us or that we hold about you or any related person.
b We may not be able, and we are not obliged, to disclose to you any matters relating to our use or disclosure of such information.
2.8 Opening an Account for you does not entitle you to access the Services and we can withhold access to the Services at our absolute discretion.
3. PLATFORM
3.1 We grant to you, and you accept, a non-exclusive and non-transferable licence for the duration of the Agreement to use the Platform and Documentation solely for the purpose of using Services on the terms and conditions of this Agreement.
3.2 In addition to and without limiting your other obligations under this Agreement, you must:
a use the Platform and the Documentation for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the Platform (including data on the Platform) or the Documentation except as expressly provided for in the Agreement;
b ensure that your software is free of all forms of malicious software at all times;
c keep all information relating to the Platform and Documentation, including your password and user name, secure and free from unauthorised use;
d not transfer, assign or otherwise deal with or grant a Security Interest in the Platform, any of your rights under this Agreement;
e not challenge our (or any other persons) ownership of (including the Intellectual Property Rights in) the Platform, the Documentation or any other item or material created or developed by us under or in connection with the Agreement; and
f notify us in writing immediately after you become aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of a Platform or the Documentation, in part or whole.
3.3 When accessing a Platform, you must:
a not impersonate another person or misrepresent authorisation to act on behalf of others;
b correctly identify the sender of all electronic transmissions;
c not attempt to undermine the security or integrity of the Systems;
d not use the Platform in any way which may impair the functionality of the Systems or impair the ability of any other user to use the Platform;
e not attempt to view, access or copy any material or data other than:
i that which you are authorised to access; and
ii to the extent necessary for you to use the Platform in accordance with this Agreement; and
f not use the Platform in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or Law, or that is Objectionable, incorrect or misleading.
3.4 We will take standard industry measures to back up all Data stored using the Services and you acknowledge and agree that it is advisable for you to keep a separate back-up copy of all Data.
3.5 Through the use of web services and APIs, the Platform may interoperate with third party service features. To the maximum extent permitted by Law we do not make any warranty or representation on the availability of those features or of information provided through the Platform. Without limiting that, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. If we exercise our right to cease the availability of a third party feature, to the maximum extent permitted by Law you are not entitled to any refund, discount or other compensation.
3.6 You acknowledge that:
a we may require access to the Data to exercise our rights and perform our obligations under this Agreement;
b to the extent that this is necessary but subject to clause 18 (Confidential Information), we may authorise a member or members of our personnel to access the Data for this purpose; and
c you must arrange all consents and approvals that are necessary for us to access the Data.
3.7 You agree that we may store Data (including any Personal Information) in secure servers in countries outside New Zealand and may access that Data (including any Personal Information) in countries outside New Zealand and in New Zealand from time to time.
3.8 You acknowledge and agree that, to the extent Data contains Personal Information, in collecting, holding, using and processing that Personal Information through the Services, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. You must obtain all necessary consents from the relevant individuals to enable us to collect, use, hold and process that information in accordance with the Agreement.
3.9 Our provision of the Platform and Services to you is non-exclusive. Nothing in this Agreement prevents us from providing the Platform and Services to any other person.
3.10 We will use our reasonable endeavours to make the Platform and Services available during Business Hours. However, we may stop, suspend or alter access to the Platform, or access may otherwise become unavailable, without notice, including because of technical difficulties such as telecommunication failures or disruptions, non-availability of any third party services and unforeseen maintenance. Subject to obligations we cannot contract out of by law, we have no liability to you whatsoever, and howsoever arising, for any Losses that you incur or suffer in connection those matters.
3.11 You are responsible for ensuring that you, and you agree to, comply with all applicable Law in connection with the Platform and the Services and. That includes obtaining any necessary licences, consents, authorisations and exemptions required to enter into this Agreement, to access the Platform and to use the Services.
4. COMMUNICATION WITH US
4.1 You must ensure all information you provide to us is complete and correct in all respects. You must notify us immediately if you identify any error or inaccuracy in relation to a request for Services, or your Account.
4.2 We have no obligation whatsoever to check or verify that:
a the person communicating with us in relation to this Agreement, the Account or the Services is the holder of the Account or is authorised to provide information on your behalf;
b the information you provide is accurate, complete and correct.
4.3 Without limiting the rest of this clause 4, we may (but we are not obliged to), at our absolute discretion, decline to take action with respect with information you provide, if:
a the information is unclear or incomplete;
b you do not provide all information or documents requested by us;
c we believe that to act on the information may be illegal;
d we have reasons to doubt the validity of the information.
5. PROHIBITED MESSAGES
5.1 Except with our prior and express written agreement:
a you are not permitted to send to us;
b we have no obligation whatsoever to provide Services to you with respect to;
c we have no obligation whatsoever to receive, store, deliver to a Recipient (or any other person) or return to you,
a Prohibited Message (see clause 8.2).
5.2 The following Messages are prohibited (Prohibited Message):
a Classes and categories of Messages we specify as prohibited on any Platform.
b Illegal Messages.
c A Message that breaches any third party right (including Intellectual Property Rights and privacy rights) or Law.
d A message that contains any Objectionable content.
5.3 For the purpose of clause 5.2, an entire Message is deemed to be a Prohibited Message even if only part of the Message contains or is subject to any of the prohibitions specified in clause 5.2.
6. RECEIPT AND STORAGE OF MESSAGES
6.1 Except as expressly permitted by the Agreement, once we have received a Message you cannot cancel or terminate our Services with respect to the Message.
6.2 Messages must comply with the standards and limitations we specify on a Platform and any specific standards and limitations that apply in connection with the Services including those applicable to the particular Service selected by you.
6.3 You are responsible for sending the Message to us using the means we provide for that purpose. We are not responsible or liable to you if, for any reason, we do not receive the Message for reasons outside of our control.
6.4 We do not have any obligations with respect to Messages, and we do not have any possession or control of Messages, until they are received and accepted by us or by a third party on our behalf.
6.5 We will not insure the Messages on your behalf while in our possession. You must obtain any insurance required on your own behalf. To the maximum extent permitted by law you do not have claims over, or rights to, any insurance proceeds we receive including any connected with your Messages.
6.6 Except as expressly provided otherwise in this Agreement, at all times while Messages are in our possession or control:
a the Messages are, and will remain, your property and we have no right, title or interest in or to the Messages;
b we will hold and store the Messages on your behalf;
c we will not allow any Security Interest or claim in favour of another party to arise in, or to be created over, the Messages;
d we will not at any time have, assert or exercise any Security Interest over the Messages in our possession or control.
6.7 You have no rights to (directly or indirectly) at any time to enter the Premises or any land on which the Premises is located, or any Systems, to inspect or remove your Messages.
6.8 We reserve the right to inspect a Message at any time while it is in our possession or control (including in the possession of control of any third party service provider) to check whether it is or contains Prohibited Messages or for any other reasonable reason including to comply with our obligations at Law.
7. DELIVERY OF MESSAGES
7.1 Subject to any specific timeframe confirmed at the time you request our Services with respect to a Message (including any shorter Delivery Date timeframe that applies to Services obtained as part of a free trial period), you may select a Delivery Date between 1 day and 30 years from the time you place an order in relation to the Message with us. However, we have:
a no obligation to deliver a Message until the Message is received and accepted by us or by a third party on our behalf; and
b no responsibility or liability whatsoever if delivery is delayed because of the time required to receive or accept an order.
7.2 We will use our reasonable endeavours to deliver a Message by the Delivery Date. However, we do not guarantee the Delivery Date including due to delays caused by a Force Majeure Event or loss or destruction of a Message in transit.
7.3 You may request us to deliver the Message on a date prior to the Delivery Date. In that case we will use our reasonable endeavours to deliver the Message by the Delivery Date. To the maximum extent permitted by law, we shall have no obligation to refund any part of Fees paid or payable to us in connection with delivering any Message before the Delivery Date at your request.
7.4 A Message shall be deemed to be delivered, and we shall cease to have any risk or responsibility, for the Message, upon completion of delivery of the Message.
7.5 If a Message cannot be delivered because:
a the Recipient Address is incorrect (in part or whole) or is no longer valid;
b the Recipient does not accept the Delivery, expressly or impliedly (including where the Recipient cannot be contacted);
c the Recipient does not access the Message within 90 days of us providing them with rights to access the Message;
d it is otherwise not possible to deliver the Item to the Recipient Address within a reasonable time (including because of a Force Majeure Event),
we will use our reasonable endeavours to (as applicable) return the Message to you, to deliver the Message to any alternative address you notify within 5 Business Days of our request for an alternative Recipient Address. In those cases we reserve the right to charge you additional Fees (including for the reasonable time and effort of our personnel), and for the costs and expenses, we incur to arrange such matters.
7.6 If we cannot complete a delivery of a Message within 90 days after the Delivery Date (or any earlier date for delivery agreed by us) we reserve the right to return the Message to you (if reasonably possible) and to delete the Message, and our obligations to you with respect to the Message shall end.
8. PROHIBITED GOODS
8.1 Our Services are provided only with respect to Items that we approve. Without limiting that, except with our prior and express written agreement:
a you are not permitted to send to us;
b we have no obligation whatsoever to provide Services to you with respect to;
c we have no obligation whatsoever to receive, store, deliver to a Recipient (or any other person) or return to you,
a Prohibited Good (see clause 8.2).
8.2 The following Goods are prohibited (Prohibited Goods):
a Goods with a market value of more than NZ$2,000 (comprising all Goods you provide to us with respect to one order of Services).
b Classes and categories of Goods, and specific Goods, we specify as prohibited on any Platform from time-to-time.
c Goods that are (or have the potential to be, including on exposure to water) explosive corrosive or toxic including agrichemicals and solvents.
d Goods that are illegal to transport by a general courier (excluding specialist couriers) and Goods that are illegal to hold or store in a non-specialist facility or premises.
e Goods that ignite easily or that have a tendency to oxidise.
f Food of any kind.
g Liquids of any kind.
h Organisms of any kind (whether or not living) including insects, animals, animal products (but excluding leather goods).
i Medicines, medial health products and devices.
j Fireworks.
k Weapons and ammunition.
l Illegal Goods.
m Goods from, or owned by (in part or whole, and whether directly or indirectly), a sanctioned or banned person, organisation or government.
n Goods that are prohibited to import into New Zealand (where Goods are sent from outside New Zealand).
o Goods that are prohibited to export from New Zealand (where the Recipient is outside New Zealand).
p Money, currency, stored value cards, credit cards, credit and debit cards, cheques, travellers’ cheques, money orders, bankers’ drafts or any other store of value.
q Gold and other precious metals, diamonds and other gems, jewellery.
r Goods, or information accessible directly or indirectly from Goods, that contain any Objectionable content.
s Banned publications and material (and any information that supports accessing them).
t Fragile Goods.
8.3 For the purpose of clause 8.2, an entire Item is deemed to be a Prohibited Good even if only part of the Item contains or is subject to any of the prohibitions specified in clause 8.2.
8.4 Any reference in this Agreement to illegal, prohibited or banned matters or Goods or Messages includes illegal, banned or prohibited in New Zealand, and any jurisdiction in which you or the Recipient Address is located.
8.5 We reserve the right to inspect an Item (including any container in which the Item is located) at any time while it is in our possession or control (including in the possession of control of any third party service provider) to check whether it is or contains any Prohibited Goods or for any other reasonable reason including to comply with our obligations at Law. If we identify any actual or potential Prohibited Good we may open and examine the container in which the Item is located and inspect (and remove for inspection) the relevant Item.
8.6 If we identify a Prohibited Good we may (but have no obligation to) do one or more of the following:
a Remove the Prohibited Good including any part of an Item that is a Prohibited Good;
b Destroy or provide to any relevant public authority any Prohibited Good as well as the Item the Prohibited Good is attached or forms part of.
c Return the Prohibited Good (including the Item, where the Prohibited Good is part of an Item) to you and/or any other Items we have received from you.
d Continue to provide Services with respect to any remaining Items (including an Item from which a Prohibited Good has been removed).
8.7 Where any of your Items is a Prohibited Good:
a We have the right to charge you additional Fees (including for the reasonable time and effort of our personnel) for the costs and expenses we incur in relation to all of our actions in relation to the Prohibited Goods, and for our costs and expenses checking all of your other Items (whether or not we find any Prohibited Goods).
b We are not required to refund to you any part of the Fees in the event we continue to store one or more Items for you after removing Prohibited Items.
c To the maximum extent permitted by law we shall have no liability to you whatsoever (and howsoever arising) for the loss of any Items (and any related Losses you suffer or incur) as a result of, or in connection with, any of the actions we take under clause 8.6.
8.8 You must notify us immediately with full details of the Prohibited Good and its location upon becoming aware that an Item is or contains a Prohibited Good.
9. RECEIPT AND STORAGE OF ITEMS
9.1 You may only send Items to us that are not Prohibited Goods or that may become Prohibited Goods at any time. Items must otherwise comply with the standards and limitations we specify on a Platform and any specific standards and limitations that apply in connection with the Services including those applicable to the particular Service selected by you.
9.2 You must send Items to us in the box we provide to you (Toldy Box). We will send the Toldy Box to you once we receive your order and payment. We will advise the expected delivery date for a Toldy Box when you place your order. We will use our reasonable endeavours to deliver the Toldy Box to the address you provide by that date. However, we do not guarantee the delivery date including due to delays caused by a Force Majeure Event or loss or destruction of a Toldy Box in transit.
9.3 You must send each Item to us in the Toldy Box we provide to you for that purpose. If you do not send the Item in the correct Toldy Box we reserve the right to either:
a Reject the Item and the non-complying packaging and, if reasonably practicable to do so, to return them to you, subject to you paying our reasonable costs to do so. If we are unable to return them, or cannot complete delivery of them within a reasonable time, we reserve the right to (at our absolute discretion) destroy, sell or keep the Item or to provide the Item to a charity or other not for profit organisation. You hereby irrevocably confirm and agree that we shall all of the rights, title, interest and powers with respect to the Item to give effect to such destruction, sale, keeping, or provision.
b Unpack the item and to place it in a Toldy Box.
To the maximum extent permitted by law, Toldy shall have no responsibility or liability whatsoever, and howsoever arising, for any damage to, or loss of the Item, in connection with any of the matters above.
9.4 You are responsible for sending Items, in the correct Toldy Box, to us to the address we nominate including arranging for transport of the Items to us and for paying all related Taxes. We are not responsible or liable if an Item is not received by us at that address or if we refuse to the accept the Item (acting reasonably).
9.5 You hereby irrevocably appoint us as your agent to arrange for receipt, storage and delivery of Items including to discuss the Items (and any Taxes payable) and our related Services with any Government authority including a customs service.
9.6 Once we have received an Item you cannot cancel or terminate our Services with respect to the Item and any cancellation or termination by you before receipt of the Item shall have no force or effect and the Agreement shall remain in full force and effect with respect to that Item.
9.7 You must ensure that you comply with all Law with respect to the sending of Items to us including all customs requirements. You must pay all costs, expenses, charges and Taxes in connection with sending Items to us. We have the right to reject any Items, and to recover from you all Losses we incur, if you fail to comply with those obligations.
9.8 Subject to any specific timeframe confirmed at the time you request our Services with respect to a particular Item (including any shorter Delivery Date timeframe that applies to Services obtained as part of a free trial period), you may select a Delivery Date between 1 day and 30 years from the time you place an order in relation to the Item with us. However, we have:
a no obligation to deliver an Item until the Item is received and accepted by us at our Premises or by a third party on our behalf; and
b no responsibility or liability whatsoever if delivery is delayed because of the time required to receive or accept an order.
9.9 We do not have any obligations with respect to Items, and we do not have any possession or control of Items, until they are received and accepted by us at our Premises or by a third party on our behalf.
9.10 We will not insure the Items on your behalf while in our possession. You must obtain any insurance required on your own behalf. To the maximum extent permitted by law you do not have claims over, or rights to, any insurance proceeds we receive including any connected with your Item.
9.11 Except as expressly provided otherwise in this Agreement, at all times while Items are in our possession or control:
a the Items are, and will remain, your property and we have no right, title or interest in or to the Items;
b we will hold and store the items on your behalf as bailee;
c we will not allow any Security Interest or claim in favour of another party to arise in, or to be created over, the Items;
d we will not assign, sell, lend, lease, dispose of or part with possession of the Items;
e we will not at any time have, assert or exercise any Security Interest over the Items in our possession or control.
9.12 You have no rights to (directly or indirectly) at any time to enter the Premises or any land on which the Premises is located to inspect or remove the Items.
10. DELIVERY OF ITEMS
10.1 We will use our reasonable endeavours to deliver an Item to the Recipient Address on the Delivery Date. However, we do not guarantee the Delivery Date including due to delays caused by a Force Majeure Event or loss or destruction of an Item in transit.
10.2 You may request us to deliver the Item on a date prior to the Delivery Date. In that case we will use our reasonable endeavours to deliver the Item prior to the Delivery Date. To the maximum extent permitted by law, we shall have no obligation to refund any part of Fees paid or payable to us in connection with delivering any Item before the Delivery Date.
10.3 We do not guarantee that we will deliver an Item by the Delivery Date including because of delays caused by a Force Majeure Event or loss or destruction of an Item in transit. To the maximum extent permitted by law, we do not accept any responsibility or liability whatsoever (and howsoever arising) for any delay in delivery, or any loss or destruction of an Item during delivery (in part or whole).
10.4 An Item shall be deemed to be delivered, and we shall cease to have any risk or responsibility, with respect to the Item, upon Delivery to the Recipient Address.
10.5 If an Item cannot be delivered because:
a the Recipient Address is incorrect (in part or whole) or is no longer valid;
b the Recipient does not accept the Delivery, expressly or impliedly (including where the Recipient cannot be contacted or is not available to take delivery of the Item);
c it is otherwise not possible to deliver the Item to the Recipient Address within a reasonable time (including because of a Force Majeure Event),
we will at our absolute discretion use our reasonable endeavours to either return the Item to you or to deliver it to any alternative address you notify within 5 Business Days of our request for an alternative address. In those cases we reserve the right to charge you additional Fees for the costs and expenses we incur (including for the reasonable time and effort of our personnel) to arrange such matters.
10.6 If we cannot complete a delivery of an Item by the Delivery Date or by a reasonable period after that date, we reserve the right to (at our absolute discretion) destroy, sell or keep the Item, or to provide the Item to a charity or other not for profit organisation. You hereby irrevocably confirm and agree that we shall all of the rights, title, interest and powers with respect to the Item to give effect to such destruction, sale, keeping, or provision.
10.7 We will pay to you the residual value (if any) from a sale of an Item, after deducting our outstanding Fees and costs in connection with the disposal of the Item, and for the costs of payment of the residual value.
11. FEES, CHARGES & PAYMENT
11.1 You agree to pay the following to us in connection with our provision of the Services:
a the fees, charges and related amounts payable for the Services that we specify in this Agreement together with the fees, charges and related amounts we specify on any Platform or that we notify to you from time-to-time (together the “Fees”);
b all Taxes payable by us on your behalf in connection with this Agreement or that we otherwise suffer or incur in connection with your breach (in part or whole) of this Agreement; and
c all costs and expenses we incur as a result of your breach of any of your obligations in this Agreement, including all legal costs and expenses on a solicitor/client basis.
11.2 All Fees and other amounts payable by you under this Agreement exclude GST (unless we state otherwise in writing), which you must pay to us on taxable supplies under this Agreement at the same time as you make payment for those amounts.
11.3 All funds you transfer to us, or that we collect on your behalf, must be:
a in cleared funds;
b in the currency we notify to you from time to time;
c free of all Security Interests;
d without set-off, deduction or withholding of any kind by you whatsoever; and
e paid into a bank account nominated by us.
11.4 You are responsible for the payment of all fees and charges (including bank fees and foreign exchange fees) payable in connection with funds paid from you to us. If any such fees or charges are deducted from an amount received by us, we are entitled to recover those fees and charges from you.
11.5 If we are required by Law to make any deduction from the funds transferred, you must pay to us any additional amount we require that is necessary to ensure receipt by us of the full amount that we would have received but for the deduction.
11.6 You may only make payment using means we notify to you from time-to-time. We reserve the right to reject, and to return, any payment not made using such means. However, to the maximum extent permitted by law, we have no liability to you whatsoever (and howsoever arising) if we are unable to return a payment to you that was received by means not approved by us.
11.7 We will arrange for you to pay Fees and other amounts payable under this Agreement using the means of payment you select on a Platform. You irrevocably authorise us to charge all payments due from you to us under or in connection with this Agreement (including Fees). You agree to provide us with all information required for us to process payments using that means of payment and to keep it up to date at all times. That information must be complete, correct and up-to-date. Despite any other provision of this Agreement, we have the right to suspend provision of our Services (in whole or part, including with respect to Messages or Items held by us,) if you fail to comply with those requirements.
11.8 Except as expressly provided otherwise in this Agreement, or as agreed otherwise by us in writing, all amounts payable to us under this Agreement, including Fees, are payable immediately.
11.9 We will allocate payments in such order as we shall determine in our absolute discretion.
12. INTELLECTUAL PROPERTY
12.1 Subject to clause 12.2, title to, and all Intellectual Property Rights in the Platform, the Services and Systems is and remains the property of us (and our licensors). You must not dispute that ownership.
12.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant to us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with the Agreement.
12.3 If you provide us with ideas, comments or suggestions relating to a Platform, the Services, the Documentation (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
12.4 You acknowledge that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds, or their content or operators. To the maximum extent permitted by Law, we exclude all responsibility or liability for those websites and feeds.
13. REPRESENTATIONS & WARRANTIES
13.1 Each party represents and warrants that the party has full power and authority to enter into, and perform its obligations, under this Agreement.
13.2 To the extent the CGA applies to the Agreement, no provision in this Agreement is intended to have the effect of limiting or restricting your rights under the CGA, except to the extent permitted by Law. However, if you are in trade you agree to contract out of the CGA, that the CGA shall not apply to you, and that it is fair and reasonable that it does not do so.
13.3 You represent, warrant and agree that, from the date of this Agreement and on each following day:
a you will provide us with all information and documents we reasonably require in connection with this Agreement;
b each of your application for an Account, your access to a Platform and your use of the Services comply with all Laws to which you are subject;
c all information you provide to us about you and anyone else is true, complete and up-to-date; and
d you will promptly notify us with any new information, if the previous information provided ceases to be true, complete or up-to-date.
13.4 To the maximum extent permitted by Law, but subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA):
a our warranties are limited to those expressly set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract & Commercial Law Act 2017) are expressly excluded; and
b we make no representation concerning the quality of the Platform or the Services and do not promise that they will:
i meet your requirements or be suitable for a particular purpose;
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
14. LIMITATION OF LIABILITY
14.1 To the maximum extent permitted by Law, subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), we shall have no liability to you whatsoever, whether in contract, tort (including negligence), equity or otherwise, for any Losses you suffer or incur as a result of our breach of this Agreement or otherwise in connection with the Agreement.
14.2 To the maximum extent permitted by Law, subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), and without limiting clause 14.1, our maximum aggregate liability under or in connection with this Agreement or the Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise must not exceed:
a for a claim in relation to an Item, the lesser of the market value of the Item and NZ$2,000;
b for any other claim, in any Year, an amount equal to the Fees paid by you to us relating to the Platform and the Services in the previous Year (which in the first Year is deemed to be the total fees paid by you from the date of this Agreement to the date of the first event giving rise to liability).
14.3 In addition to and without limiting clauses 1.1 and 14.2, subject to our obligations to you at Law that we are not permitted to contract out of (including those arising under the CGA), neither party is liable to the other under or in connection with this Agreement for any:
a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill;
b consequential, indirect, incidental or special damage or loss of any kind;
c delay in the communication of instructions, communications or notices due to any breakdown or failure of third party transmission communication facilities, or a Force Majeure Event.
14.4 Clauses 1.1 to 14.3 do not apply to limit or exclude a party’s liability for that party’s wilful default, fraud or dishonesty.
14.5 Each party must take reasonable steps to mitigate any Loss it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.
15. INDEMNITY
15.1 To the maximum extent permitted by Law, but subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), you indemnify us, and keep us indemnified, against any Losses we suffer or incur in connection with:
a any Event of Default by you or to which you are subject;
b the exercise by us of our rights and powers under this Agreement including upon the occurrence of an Event of Default by you or to which you are subject (or where there is a risk of an Event of Default occurring);
c any actual or alleged complaint, claim, proceeding or other action against us by a third party (other than related person of us or a supplier to us) arising out of or in connection with the provision of the Platform and of the Services including any claim that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading,
except to the extent such Losses arise from our negligence, wilful default, fraud or dishonesty.
16. NOTICES
16.1 We will send to you, and you agree to receive, any notices, documents, or other communications from us using one or more of the following means:
a by electronic delivery via a Platform;
b by email to an email address provided by you when you opened the Account or that we otherwise accept after that;
c by delivery to your place of residence.
We are not required to use any particular messaging service and you should monitor relevant communication portals at all times for communications from us.
16.2 By giving us your email address with your application for an Account you irrevocably confirm that we can use, but are not obliged to use, that email address (or any other email address we approve for that purpose) for any communications with you (including to provide notices).
17. TERMINATION & SUSPENSION
Suspension
17.1 We may restrict or suspend your access to, and use of, your Account, the Services and/or the Platform, and delete, edit or remove the relevant Data, if we consider that you or any of your personnel or representatives have:
a undermined, or attempted to undermine, the security or integrity of the Platform or any Systems;
b used, or attempted to use, a Platform:
i for improper purposes; or
ii in a manner that materially reduces the operational performance of a Platform;
c transmitted, inputted or stored any Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights of a third party), or that is or may be Objectionable, incorrect or misleading.
Termination
17.2 Subject to clause 17.3, either Party may terminate this Agreement without cause by providing five (5) Business Days prior written notice to the other, provided that this does not limit any other rights of termination under this Agreement or at Law.
17.3 Subject to this Agreement, the Agreement cannot be terminated under clause 17.2 while any of the Services are outstanding including while we are storing any Message or Item on your behalf.
17.4 A party may, by notice to the other party, immediately terminate this Agreement if the other party:
a has an official manager, official assignee, trustee, receiver, voluntary administrator, liquidator or provisional liquidator, or anyone in a similar role, appointed for all or a material part of a party’s assets or undertaking;
b being an individual, is at risk of being declared, or is declared, bankrupt, or enters into the no asset procedure;
c has any distress, attachment, or execution levied, issued, enforced or obtained on or against all or substantially all of that party’s assets;
d ceases carrying on business.
17.5 A party may, by notice to the other, immediately terminate this Agreement if the other party commits (or is subject to) an Event of Default (whether or not on-going at the time the notice of termination is given). In this Agreement an “Event of Default” means where:
a a party is in breach of this Agreement, and the party fails to remedy the breach within 10 Business Days of being notified by the other party of full details of the breach (where the breach is capable of remedy);
b any representation or warranty made by a party is incorrect, untrue or misleading in any material way, with the result that Loss is, or is likely to be, suffered by the other party;
c a party commits or is subject to any of the events in clause 17.4;
d for any length of time we consider reasonable in the circumstances, you are not contactable or you do not respond to communication;
e a party commits an act of serious misconduct, including fraud or dishonesty.
17.6 If you commit or are subject to an Event of Default (whether or not continuing at that time), we can immediately take or refrain from taking any action we consider reasonable, including:
a restrict or suspend your access to, and use of, your Account, the Services and/or a Platform
b cancel any pending orders for the Services.
17.7 If you validly terminate in accordance with clause 17.2 this Agreement because we commit or are subject to an Event of Default, or clause 19.1, we shall promptly, at our cost, either return all of your Messages and/or Items to you or send them to the relevant Recipient at the Recipient Address, and clauses 7 and 10 respectively shall otherwise apply.
17.8 A party will have no liability to the other whatsoever, and howsoever arising, in connection with the exercise that party’s rights or remedies under, and in compliance with, this clause 17.
17.9 Termination or expiry of this Agreement shall not affect:
a any rights of a party against any other party which accrued up to and including the date of termination or expiry;
b the provisions of this Agreement which, by their nature, are intended to survive termination or expiry, including clauses 12, 14, 15 and 18.
18. CONFIDENTIAL INFORMATION
18.1 Each party must, unless it has the prior written consent of the other party:
a keep confidential at all times the Confidential Information of the other party;
b not use the Confidential Information of the other party;
c disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and only where those persons are subject to confidentiality undertakings at least as strong as those in this clause.
18.2 The obligations in clause 18.1 do not apply to any:
a disclosure or use of Confidential Information for the purpose of performing a party’s obligations, or exercising a party’s rights, under this Agreement;
b disclosure or use of Confidential Information to the extent expressly permitted under this Agreement;
c disclosure of Confidential Information to any law enforcement, regulatory agency or court where required by any such Law (including under the rules of a stock exchanges) in New Zealand or elsewhere;
d disclosure or use of Confidential Information which it is generally publicly available through no fault of the recipient of the Confidential Information or its personnel;
e disclosure or use of Confidential Information which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
f disclosure of Confidential Information by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part), provided that we enter into a confidentiality agreement with the third party on terms at least as strong as those in this clause.
19. GENERAL
19.1 Amendments: This Agreement may be amended by agreement of the parties in writing. In addition, we may, acting reasonably, amend, supplement, vary, or replace the terms of this Agreement at any time, with effect from a date determined by us. We do not need your consent to make such a change. We will notify you of any changes to this Agreement before those changes take effect. You may terminate this Agreement if the changes cause you material Loss, provided you first notify us of the basis for the Loss and we do not, within 10 Business Days of receipt of the notice, modify the relevant changes to avoid a material Loss.
19.2 Force Majeure: Despite any other provision in this Agreement, neither party is liable to the other for any failure to perform its obligations (except an obligation to make payment) under the Agreement to the extent caused by a Force Majeure Event. On becoming aware of the occurrence of a Force Majeure the affected party must:
a promptly notify the other party about the Force Majeure Event;
b uses reasonable efforts to overcome the Force Majeure Event; and
c continue to perform its obligations to the extent reasonably practicable.
19.3 Rights and remedies are not mutually exclusive: To the fullest extent permitted by law, a party's powers, rights, discretions and remedies, whether provided for in this Agreement, at law or otherwise, are not mutually exclusive, can be exercised more than once, and are cumulative and not alternative, and may be exercised independently, or in any combination, at any time by that party.
19.4 Joint and Several Liability: If any party consists of more than one person then any obligation or liability of those persons under this Agreement shall be joint and several and obligations and liabilities to be observed or discharged by two or more parties shall be observed by them jointly and severally.
19.5 Non-Waiver: No waiver of any breach, failure to enforce any provision, or failure to exercise or delay in exercising any right or remedy, of this Agreement at any time by a party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with this Agreement.
19.6 Entire agreement: The Agreement contains all of the terms agreed between the parties relating to the matters dealt with in the Agreement and supersedes all prior discussions and agreements covering the subject matter of the Agreement.
19.7 Further assurances: The parties must each sign all further documents, pass all resolutions and do all further things as may be necessary or desirable to give effect to the Agreement.
19.8 No partnership: Except as expressly provided otherwise in this Agreement, nothing contained in the Agreement will be deemed or construed to constitute any party to be a partner, agent or representative of any other party, or to create any trust or commercial partnership.
19.9 No assignment: You may not assign any of your rights or obligations under this Agreement without our express written consent. We may assign any or all of our rights or obligations under this Agreement without your consent.
19.10 Subcontracting: Our obligations under this Agreement may be performed by, or subcontracted to, other persons. We shall remain responsible for the performance of our obligations by such persons.
19.11 Costs: Except as expressly provided otherwise in the Agreement, the parties must meet their own costs relating to the negotiation, preparation and implementation of the Agreement.
19.12 Partial invalidity: If any provision of the Agreement becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by Law.
19.13 Signature: The Agreement may be executed in two or more counterparts, each of which is deemed an original and all of which constitute the same Agreement. A party may enter into the Agreement by signing and sending (including by email) a counterpart copy to each other party. Alternatively, this Agreement takes effect and binds the parties once you have agreed to be bound by clicking the “I agree” (or similar) checkbox on a Platform in relation to this Agreement.
19.14 Governing law and jurisdiction: The Agreement is governed by New Zealand Law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
This document explains the basis on which Toldy Ltd (“Toldy”, “we”, “us”, “our”) provides Toldy’s services to you. This is the agreement between us and you (being the account holder) (Agreement) and is made up of this page, the general terms and conditions below, our Privacy Policy (available here https://www.toldy.com/privacy-policy) and our Website Terms & Conditions (available https://www.toldy.com/terms-conditions) (in that order of priority). Those documents are to be read together and to be given a consistent meaning but, in the event of a conflict, the general terms & conditions apply to the extent of the inconsistency.
The Agreement applies to all Services supplied by us to you. This Agreement also applies to all steps taken towards opening an Account, even if an Account is not opened. The Agreement is important so please read it carefully.
ABOUT OUR SERVICES
The services we provide (including the service levels) are our described in this Agreement as well as on our website (https://www.toldy.com )and our app (together the “Services”). You can ask to use particular Services once we have accepted you as a customer and opened your Account. You can only use any of the Services after we first approve your use of the Services, even after you have opened an Account. We can withhold that approval at our absolute discretion and without having to provide a reason.
Without limiting any of our other rights in the Agreement, we have the right, from time-to-time:
· to update the Services including to remove, add to, change, or suspend or disable access to, any part of any the Services and related functionality (we have no obligation to notify you of such changes); and
· to close your Account by notice to you.
However, subject to our rights in this Agreement, we will not update any Services, or close your Account, while we are providing any of such Services to you, except in limited circumstances (for example, because of we are not permitted to do so by law, because it is no longer practicable to do so or because you fail to make a required payment).
We do not offer or provide financial, legal, tax or any other advice.
CONTENT
ABOUT THIS DOCUMENT
ABOUT OUR SERVICES
1. DEFINITIONS & INTERPRETATION
2. ACCOUNT APPLICATION
3. PLATFORM
4. COMMUNICATION WITH US
5. PROHIBITED MESSAGES
6. RECEIPT AND STORAGE OF MESSAGES
7. DELIVERY OF MESSAGES
8. PROHIBITED GOODS
9. RECEIPT AND STORAGE OF ITEMS
10. DELIVERY OF ITEMS
11. FEES, CHARGES & PAYMENT
12. INTELLECTUAL PROPERTY
13. REPRESENTATIONS & WARRANTIES
14. LIMITATION OF LIABILITY
15. INDEMNITY
16. NOTICES
17. TERMINATION & SUSPENSION
18. CONFIDENTIAL INFORMATION
19. GENERAL
GENERAL TERMS & CONDITIONS
Our general terms and conditions are described below.
1. DEFINITIONS & INTERPRETATION
1.1 Definitions: In the Agreement the following terms have the following meanings, except where the context requires otherwise:
Term
Meaning
Account
Your account with us maintained on the Platform that records key information.
Agreement
Has the meaning given to that term above under “About this Document”.
App
The mobile application made available from authorised app stores for the purposes of accessing the Services (the features of which we may vary from time to time).
Business Day
Monday to Friday, other than any public holiday within the meaning of section 44 of the Holidays Act 2003 that occurs in Auckland.
Business Hours
24 hours a day or the hours during which we provide the Services as specified in a Platform.
CGA
Consumer Guarantees Act 1993
Confidential Information
Any information that is not public knowledge and that is obtained from the other party in the general course of, or in connection with, this Agreement. Our Confidential Information includes the Platform and the Documentation.
Data
All data and information (including Personal Information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Platform (excluding data and information, we own, hold, use or create), or otherwise sent to us using means we approve, and includes Messages.
Delivery Date
The delivery date for the delivery of a Message or Item you nominate on a Platform, and updated delivery date you notify to us and we accept, being a date within the range of delivery dates we accept.
Documentation
The user and technical documentation designed to enable you to properly use and operate the Platform (if any), and includes any update of the documentation.
Event of Default
Has the meaning given to that term in clause 17.5.
Fees
Has the meaning given to that term in clause 11.1.
Force Majeure Event
An event that is beyond the reasonable control of a party, excluding:
· an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
· inability to pay (for any reason) to the other party an amount due and payable.
Goods
All physical property of any kind including storage devices and excludes all intangible property including computer code, cryptocurrency.
GST
Any form of value added tax anywhere, including the goods and services tax within the meaning of the New Zealand Goods and Services Tax Act 1985.
Intellectual Property Rights
Includes copyright, and all worldwide rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Item
A Good that we agree to receive, store and deliver for you in accordance with this Agreement.
Law
Includes any international, national or local law, by-law, Act of Parliament, regulation, other enactment, or any rule, code, sanction or other requirement promulgated by a reputable public authority in New Zealand or elsewhere.
Loss
Includes loss, damage, liability, charge and expense.
Message
Has the meaning given to that term above under “About Our Services”.
Objectionable
Includes objectionable, threatening, coercive, exploitative, banned, abusive, defamatory, pornographic, indecent, illegal.
Personal Information
Means information about an identifiable individual.
Platform
Any electronic platform provided by us or a third party to support provision of the Services, together with the Systems, and includes the App and the Website.
Privacy Policy
Our privacy policy published on the Website from time-to-time.
Premises
Any place where we store Items or Messages
Prohibited Message
Has the meaning given to that term in clause 5.2.
Prohibited Goods
Has the meaning given to that term in clause 8.2.
Recipient
The person you notify us is the recipient of a Message or Item.
Recipient Address
The relevant email, physical or other permitted address of a Recipient selected by you when ordering Services with respect to that Recipient and any updated address you notify to us and that we accept.
Security Interest
Includes a mortgage, security interest, charge, lien and other encumbrance or adverse interest.
Services
Has the meaning given to that term above under “About Our Services”.
Systems
Software, IT solutions, systems and networks (including software and hardware) used in connection with the provision of the Platform and the Services, including any third party solutions, systems and networks.
Tax
Includes:
· all forms of taxation and all other statutory, governmental or local governmental withholdings, duties, dues, imposts, levies, whether imposed or payable in New Zealand or elsewhere, including income tax, withholding tax, value added tax (including GST), customs or excise duties, regional or local taxes;
· all interest, penalties or fines relating to, or arising in connection with, the imposition of non or late or under-payment of any such taxes and other amounts due.
Toldy Box
Has the meaning given to that term in clause 9.2.
Website
Our website at https://www.toldy.com .com.
Year
A 12 month period commencing on the date you first receive Services from us or any anniversary of that date.
You, your
Our customer, being the person in whose name we opened an Account.
1.2 Interpretation: In this Agreement, except where the context requires otherwise., a reference to:
a a clause or a Schedule is to a clause in or a schedule to the Agreement;
b a person includes an individual, body corporate, an association of persons (whether corporate or not), a trust, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal personality;
c personnel includes officers, employees, contractors, and agents;
d including and similar words do not imply any limit;
e a statute includes references to that statute as amended or replaced from time to time, and any subsidiary legislation made under that statue (including regulations);
f a party is a reference to a party to the Agreement, and includes that party’s permitted assigns; and
g NZD, NZ$ is to New Zealand currency, USD, US$ is to the currency of the United States of America, CAD, CA$ is to Canadian currency, AUD, A$ to Australian currency.
h headings in the Agreement are for convenience only and have no legal effect.
i the singular includes the plural and vice versa.
2. ACCOUNT APPLICATION
2.1 Before we can provide Services to you must open an account with us and provide all information requested by us including your full legal name, email address, and a unique password. The legal name you provide must match the legal name in the identity verification document(s) you provide to us.
2.2 We reserve the right to decline to open an Account, at our absolute discretion, including where:
a you are under 18 years old;
b you are resident in certain countries or territories;
c you do not comply with any criteria or conditions we specify from time-to-time in connection with opening an Account.
We have no obligation whatsoever to provide reasons, and we will have no liability to you whatsoever, or howsoever arising, for declining to open an Account.
2.3 Except with our prior written approval:
a Only individuals may open an Account, access the Platform and use the Services.
b You can only use the Services for personal, non-commercial, purposes.
c You may not access the Platform or use the Services on behalf of any other person, or impersonating any other person.
d You must not, directly or indirectly, open more than one Account except with our prior written consent. If you and one or more associated persons each have an Account we may limit or prohibit use of some or all of those Accounts.
2.4 To open an Account you must meet all conditions in this Agreement and that we otherwise specify from time-to-time, including the following conditions:
a you must provide all information, documents and confirmations requested by us;
b you must download the App and register to use the App;
c respond to a verification email, where relevant,
Despite that we can decline to open an Account for any reason at our absolute discretion.
2.5 Without limiting the foregoing, you must provide all information and documents, including with respect to our obligations under anti-money-laundering Laws, and tax information exchange Laws that we request. Information we can request includes information on:
a you and any other relevant persons, including beneficial owners and persons acting on your behalf;
b your (and others) source of wealth and funds;
c details of your (and others) tax status in New Zealand and elsewhere (including taxpayer identification numbers).
2.6 You acknowledge and agree that we can provide, exchange, hold and use information and documents you provide in connection with this Agreement (including under this clause 4), or that is otherwise held by us about you or any related person, for compliance purposes, including providing that information to:
a third party service providers who support us to meet our obligations at Law, including to verify the identity of you and other persons;
b New Zealand and overseas governments (including tax, regulatory & enforcement authorities).
2.7 You acknowledge and agree that:
a We may, without notice, not open an Account, suspend or close your Account, cease providing Services to you, and terminate this Agreement, in connection with information you provide (or that you fail to provide) to us or that we hold about you or any related person.
b We may not be able, and we are not obliged, to disclose to you any matters relating to our use or disclosure of such information.
2.8 Opening an Account for you does not entitle you to access the Services and we can withhold access to the Services at our absolute discretion.
3. PLATFORM
3.1 We grant to you, and you accept, a non-exclusive and non-transferable licence for the duration of the Agreement to use the Platform and Documentation solely for the purpose of using Services on the terms and conditions of this Agreement.
3.2 In addition to and without limiting your other obligations under this Agreement, you must:
a use the Platform and the Documentation for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the Platform (including data on the Platform) or the Documentation except as expressly provided for in the Agreement;
b ensure that your software is free of all forms of malicious software at all times;
c keep all information relating to the Platform and Documentation, including your password and user name, secure and free from unauthorised use;
d not transfer, assign or otherwise deal with or grant a Security Interest in the Platform, any of your rights under this Agreement;
e not challenge our (or any other persons) ownership of (including the Intellectual Property Rights in) the Platform, the Documentation or any other item or material created or developed by us under or in connection with the Agreement; and
f notify us in writing immediately after you become aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of a Platform or the Documentation, in part or whole.
3.3 When accessing a Platform, you must:
a not impersonate another person or misrepresent authorisation to act on behalf of others;
b correctly identify the sender of all electronic transmissions;
c not attempt to undermine the security or integrity of the Systems;
d not use the Platform in any way which may impair the functionality of the Systems or impair the ability of any other user to use the Platform;
e not attempt to view, access or copy any material or data other than:
i that which you are authorised to access; and
ii to the extent necessary for you to use the Platform in accordance with this Agreement; and
f not use the Platform in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or Law, or that is Objectionable, incorrect or misleading.
3.4 We will take standard industry measures to back up all Data stored using the Services and you acknowledge and agree that it is advisable for you to keep a separate back-up copy of all Data.
3.5 Through the use of web services and APIs, the Platform may interoperate with third party service features. To the maximum extent permitted by Law we do not make any warranty or representation on the availability of those features or of information provided through the Platform. Without limiting that, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. If we exercise our right to cease the availability of a third party feature, to the maximum extent permitted by Law you are not entitled to any refund, discount or other compensation.
3.6 You acknowledge that:
a we may require access to the Data to exercise our rights and perform our obligations under this Agreement;
b to the extent that this is necessary but subject to clause 18 (Confidential Information), we may authorise a member or members of our personnel to access the Data for this purpose; and
c you must arrange all consents and approvals that are necessary for us to access the Data.
3.7 You agree that we may store Data (including any Personal Information) in secure servers in countries outside New Zealand and may access that Data (including any Personal Information) in countries outside New Zealand and in New Zealand from time to time.
3.8 You acknowledge and agree that, to the extent Data contains Personal Information, in collecting, holding, using and processing that Personal Information through the Services, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. You must obtain all necessary consents from the relevant individuals to enable us to collect, use, hold and process that information in accordance with the Agreement.
3.9 Our provision of the Platform and Services to you is non-exclusive. Nothing in this Agreement prevents us from providing the Platform and Services to any other person.
3.10 We will use our reasonable endeavours to make the Platform and Services available during Business Hours. However, we may stop, suspend or alter access to the Platform, or access may otherwise become unavailable, without notice, including because of technical difficulties such as telecommunication failures or disruptions, non-availability of any third party services and unforeseen maintenance. Subject to obligations we cannot contract out of by law, we have no liability to you whatsoever, and howsoever arising, for any Losses that you incur or suffer in connection those matters.
3.11 You are responsible for ensuring that you, and you agree to, comply with all applicable Law in connection with the Platform and the Services and. That includes obtaining any necessary licences, consents, authorisations and exemptions required to enter into this Agreement, to access the Platform and to use the Services.
4. COMMUNICATION WITH US
4.1 You must ensure all information you provide to us is complete and correct in all respects. You must notify us immediately if you identify any error or inaccuracy in relation to a request for Services, or your Account.
4.2 We have no obligation whatsoever to check or verify that:
a the person communicating with us in relation to this Agreement, the Account or the Services is the holder of the Account or is authorised to provide information on your behalf;
b the information you provide is accurate, complete and correct.
4.3 Without limiting the rest of this clause 4, we may (but we are not obliged to), at our absolute discretion, decline to take action with respect with information you provide, if:
a the information is unclear or incomplete;
b you do not provide all information or documents requested by us;
c we believe that to act on the information may be illegal;
d we have reasons to doubt the validity of the information.
5. PROHIBITED MESSAGES
5.1 Except with our prior and express written agreement:
a you are not permitted to send to us;
b we have no obligation whatsoever to provide Services to you with respect to;
c we have no obligation whatsoever to receive, store, deliver to a Recipient (or any other person) or return to you,
a Prohibited Message (see clause 8.2).
5.2 The following Messages are prohibited (Prohibited Message):
a Classes and categories of Messages we specify as prohibited on any Platform.
b Illegal Messages.
c A Message that breaches any third party right (including Intellectual Property Rights and privacy rights) or Law.
d A message that contains any Objectionable content.
5.3 For the purpose of clause 5.2, an entire Message is deemed to be a Prohibited Message even if only part of the Message contains or is subject to any of the prohibitions specified in clause 5.2.
6. RECEIPT AND STORAGE OF MESSAGES
6.1 Except as expressly permitted by the Agreement, once we have received a Message you cannot cancel or terminate our Services with respect to the Message.
6.2 Messages must comply with the standards and limitations we specify on a Platform and any specific standards and limitations that apply in connection with the Services including those applicable to the particular Service selected by you.
6.3 You are responsible for sending the Message to us using the means we provide for that purpose. We are not responsible or liable to you if, for any reason, we do not receive the Message for reasons outside of our control.
6.4 We do not have any obligations with respect to Messages, and we do not have any possession or control of Messages, until they are received and accepted by us or by a third party on our behalf.
6.5 We will not insure the Messages on your behalf while in our possession. You must obtain any insurance required on your own behalf. To the maximum extent permitted by law you do not have claims over, or rights to, any insurance proceeds we receive including any connected with your Messages.
6.6 Except as expressly provided otherwise in this Agreement, at all times while Messages are in our possession or control:
a the Messages are, and will remain, your property and we have no right, title or interest in or to the Messages;
b we will hold and store the Messages on your behalf;
c we will not allow any Security Interest or claim in favour of another party to arise in, or to be created over, the Messages;
d we will not at any time have, assert or exercise any Security Interest over the Messages in our possession or control.
6.7 You have no rights to (directly or indirectly) at any time to enter the Premises or any land on which the Premises is located, or any Systems, to inspect or remove your Messages.
6.8 We reserve the right to inspect a Message at any time while it is in our possession or control (including in the possession of control of any third party service provider) to check whether it is or contains Prohibited Messages or for any other reasonable reason including to comply with our obligations at Law.
7. DELIVERY OF MESSAGES
7.1 Subject to any specific timeframe confirmed at the time you request our Services with respect to a Message (including any shorter Delivery Date timeframe that applies to Services obtained as part of a free trial period), you may select a Delivery Date between 1 day and 30 years from the time you place an order in relation to the Message with us. However, we have:
a no obligation to deliver a Message until the Message is received and accepted by us or by a third party on our behalf; and
b no responsibility or liability whatsoever if delivery is delayed because of the time required to receive or accept an order.
7.2 We will use our reasonable endeavours to deliver a Message by the Delivery Date. However, we do not guarantee the Delivery Date including due to delays caused by a Force Majeure Event or loss or destruction of a Message in transit.
7.3 You may request us to deliver the Message on a date prior to the Delivery Date. In that case we will use our reasonable endeavours to deliver the Message by the Delivery Date. To the maximum extent permitted by law, we shall have no obligation to refund any part of Fees paid or payable to us in connection with delivering any Message before the Delivery Date at your request.
7.4 A Message shall be deemed to be delivered, and we shall cease to have any risk or responsibility, for the Message, upon completion of delivery of the Message.
7.5 If a Message cannot be delivered because:
a the Recipient Address is incorrect (in part or whole) or is no longer valid;
b the Recipient does not accept the Delivery, expressly or impliedly (including where the Recipient cannot be contacted);
c the Recipient does not access the Message within 90 days of us providing them with rights to access the Message;
d it is otherwise not possible to deliver the Item to the Recipient Address within a reasonable time (including because of a Force Majeure Event),
we will use our reasonable endeavours to (as applicable) return the Message to you, to deliver the Message to any alternative address you notify within 5 Business Days of our request for an alternative Recipient Address. In those cases we reserve the right to charge you additional Fees (including for the reasonable time and effort of our personnel), and for the costs and expenses, we incur to arrange such matters.
7.6 If we cannot complete a delivery of a Message within 90 days after the Delivery Date (or any earlier date for delivery agreed by us) we reserve the right to return the Message to you (if reasonably possible) and to delete the Message, and our obligations to you with respect to the Message shall end.
8. PROHIBITED GOODS
8.1 Our Services are provided only with respect to Items that we approve. Without limiting that, except with our prior and express written agreement:
a you are not permitted to send to us;
b we have no obligation whatsoever to provide Services to you with respect to;
c we have no obligation whatsoever to receive, store, deliver to a Recipient (or any other person) or return to you,
a Prohibited Good (see clause 8.2).
8.2 The following Goods are prohibited (Prohibited Goods):
a Goods with a market value of more than NZ$2,000 (comprising all Goods you provide to us with respect to one order of Services).
b Classes and categories of Goods, and specific Goods, we specify as prohibited on any Platform from time-to-time.
c Goods that are (or have the potential to be, including on exposure to water) explosive corrosive or toxic including agrichemicals and solvents.
d Goods that are illegal to transport by a general courier (excluding specialist couriers) and Goods that are illegal to hold or store in a non-specialist facility or premises.
e Goods that ignite easily or that have a tendency to oxidise.
f Food of any kind.
g Liquids of any kind.
h Organisms of any kind (whether or not living) including insects, animals, animal products (but excluding leather goods).
i Medicines, medial health products and devices.
j Fireworks.
k Weapons and ammunition.
l Illegal Goods.
m Goods from, or owned by (in part or whole, and whether directly or indirectly), a sanctioned or banned person, organisation or government.
n Goods that are prohibited to import into New Zealand (where Goods are sent from outside New Zealand).
o Goods that are prohibited to export from New Zealand (where the Recipient is outside New Zealand).
p Money, currency, stored value cards, credit cards, credit and debit cards, cheques, travellers’ cheques, money orders, bankers’ drafts or any other store of value.
q Gold and other precious metals, diamonds and other gems, jewellery.
r Goods, or information accessible directly or indirectly from Goods, that contain any Objectionable content.
s Banned publications and material (and any information that supports accessing them).
t Fragile Goods.
8.3 For the purpose of clause 8.2, an entire Item is deemed to be a Prohibited Good even if only part of the Item contains or is subject to any of the prohibitions specified in clause 8.2.
8.4 Any reference in this Agreement to illegal, prohibited or banned matters or Goods or Messages includes illegal, banned or prohibited in New Zealand, and any jurisdiction in which you or the Recipient Address is located.
8.5 We reserve the right to inspect an Item (including any container in which the Item is located) at any time while it is in our possession or control (including in the possession of control of any third party service provider) to check whether it is or contains any Prohibited Goods or for any other reasonable reason including to comply with our obligations at Law. If we identify any actual or potential Prohibited Good we may open and examine the container in which the Item is located and inspect (and remove for inspection) the relevant Item.
8.6 If we identify a Prohibited Good we may (but have no obligation to) do one or more of the following:
a Remove the Prohibited Good including any part of an Item that is a Prohibited Good;
b Destroy or provide to any relevant public authority any Prohibited Good as well as the Item the Prohibited Good is attached or forms part of.
c Return the Prohibited Good (including the Item, where the Prohibited Good is part of an Item) to you and/or any other Items we have received from you.
d Continue to provide Services with respect to any remaining Items (including an Item from which a Prohibited Good has been removed).
8.7 Where any of your Items is a Prohibited Good:
a We have the right to charge you additional Fees (including for the reasonable time and effort of our personnel) for the costs and expenses we incur in relation to all of our actions in relation to the Prohibited Goods, and for our costs and expenses checking all of your other Items (whether or not we find any Prohibited Goods).
b We are not required to refund to you any part of the Fees in the event we continue to store one or more Items for you after removing Prohibited Items.
c To the maximum extent permitted by law we shall have no liability to you whatsoever (and howsoever arising) for the loss of any Items (and any related Losses you suffer or incur) as a result of, or in connection with, any of the actions we take under clause 8.6.
8.8 You must notify us immediately with full details of the Prohibited Good and its location upon becoming aware that an Item is or contains a Prohibited Good.
9. RECEIPT AND STORAGE OF ITEMS
9.1 You may only send Items to us that are not Prohibited Goods or that may become Prohibited Goods at any time. Items must otherwise comply with the standards and limitations we specify on a Platform and any specific standards and limitations that apply in connection with the Services including those applicable to the particular Service selected by you.
9.2 You must send Items to us in the box we provide to you (Toldy Box). We will send the Toldy Box to you once we receive your order and payment. We will advise the expected delivery date for a Toldy Box when you place your order. We will use our reasonable endeavours to deliver the Toldy Box to the address you provide by that date. However, we do not guarantee the delivery date including due to delays caused by a Force Majeure Event or loss or destruction of a Toldy Box in transit.
9.3 You must send each Item to us in the Toldy Box we provide to you for that purpose. If you do not send the Item in the correct Toldy Box we reserve the right to either:
a Reject the Item and the non-complying packaging and, if reasonably practicable to do so, to return them to you, subject to you paying our reasonable costs to do so. If we are unable to return them, or cannot complete delivery of them within a reasonable time, we reserve the right to (at our absolute discretion) destroy, sell or keep the Item or to provide the Item to a charity or other not for profit organisation. You hereby irrevocably confirm and agree that we shall all of the rights, title, interest and powers with respect to the Item to give effect to such destruction, sale, keeping, or provision.
b Unpack the item and to place it in a Toldy Box.
To the maximum extent permitted by law, Toldy shall have no responsibility or liability whatsoever, and howsoever arising, for any damage to, or loss of the Item, in connection with any of the matters above.
9.4 You are responsible for sending Items, in the correct Toldy Box, to us to the address we nominate including arranging for transport of the Items to us and for paying all related Taxes. We are not responsible or liable if an Item is not received by us at that address or if we refuse to the accept the Item (acting reasonably).
9.5 You hereby irrevocably appoint us as your agent to arrange for receipt, storage and delivery of Items including to discuss the Items (and any Taxes payable) and our related Services with any Government authority including a customs service.
9.6 Once we have received an Item you cannot cancel or terminate our Services with respect to the Item and any cancellation or termination by you before receipt of the Item shall have no force or effect and the Agreement shall remain in full force and effect with respect to that Item.
9.7 You must ensure that you comply with all Law with respect to the sending of Items to us including all customs requirements. You must pay all costs, expenses, charges and Taxes in connection with sending Items to us. We have the right to reject any Items, and to recover from you all Losses we incur, if you fail to comply with those obligations.
9.8 Subject to any specific timeframe confirmed at the time you request our Services with respect to a particular Item (including any shorter Delivery Date timeframe that applies to Services obtained as part of a free trial period), you may select a Delivery Date between 1 day and 30 years from the time you place an order in relation to the Item with us. However, we have:
a no obligation to deliver an Item until the Item is received and accepted by us at our Premises or by a third party on our behalf; and
b no responsibility or liability whatsoever if delivery is delayed because of the time required to receive or accept an order.
9.9 We do not have any obligations with respect to Items, and we do not have any possession or control of Items, until they are received and accepted by us at our Premises or by a third party on our behalf.
9.10 We will not insure the Items on your behalf while in our possession. You must obtain any insurance required on your own behalf. To the maximum extent permitted by law you do not have claims over, or rights to, any insurance proceeds we receive including any connected with your Item.
9.11 Except as expressly provided otherwise in this Agreement, at all times while Items are in our possession or control:
a the Items are, and will remain, your property and we have no right, title or interest in or to the Items;
b we will hold and store the items on your behalf as bailee;
c we will not allow any Security Interest or claim in favour of another party to arise in, or to be created over, the Items;
d we will not assign, sell, lend, lease, dispose of or part with possession of the Items;
e we will not at any time have, assert or exercise any Security Interest over the Items in our possession or control.
9.12 You have no rights to (directly or indirectly) at any time to enter the Premises or any land on which the Premises is located to inspect or remove the Items.
10. DELIVERY OF ITEMS
10.1 We will use our reasonable endeavours to deliver an Item to the Recipient Address on the Delivery Date. However, we do not guarantee the Delivery Date including due to delays caused by a Force Majeure Event or loss or destruction of an Item in transit.
10.2 You may request us to deliver the Item on a date prior to the Delivery Date. In that case we will use our reasonable endeavours to deliver the Item prior to the Delivery Date. To the maximum extent permitted by law, we shall have no obligation to refund any part of Fees paid or payable to us in connection with delivering any Item before the Delivery Date.
10.3 We do not guarantee that we will deliver an Item by the Delivery Date including because of delays caused by a Force Majeure Event or loss or destruction of an Item in transit. To the maximum extent permitted by law, we do not accept any responsibility or liability whatsoever (and howsoever arising) for any delay in delivery, or any loss or destruction of an Item during delivery (in part or whole).
10.4 An Item shall be deemed to be delivered, and we shall cease to have any risk or responsibility, with respect to the Item, upon Delivery to the Recipient Address.
10.5 If an Item cannot be delivered because:
a the Recipient Address is incorrect (in part or whole) or is no longer valid;
b the Recipient does not accept the Delivery, expressly or impliedly (including where the Recipient cannot be contacted or is not available to take delivery of the Item);
c it is otherwise not possible to deliver the Item to the Recipient Address within a reasonable time (including because of a Force Majeure Event),
we will at our absolute discretion use our reasonable endeavours to either return the Item to you or to deliver it to any alternative address you notify within 5 Business Days of our request for an alternative address. In those cases we reserve the right to charge you additional Fees for the costs and expenses we incur (including for the reasonable time and effort of our personnel) to arrange such matters.
10.6 If we cannot complete a delivery of an Item by the Delivery Date or by a reasonable period after that date, we reserve the right to (at our absolute discretion) destroy, sell or keep the Item, or to provide the Item to a charity or other not for profit organisation. You hereby irrevocably confirm and agree that we shall all of the rights, title, interest and powers with respect to the Item to give effect to such destruction, sale, keeping, or provision.
10.7 We will pay to you the residual value (if any) from a sale of an Item, after deducting our outstanding Fees and costs in connection with the disposal of the Item, and for the costs of payment of the residual value.
11. FEES, CHARGES & PAYMENT
11.1 You agree to pay the following to us in connection with our provision of the Services:
a the fees, charges and related amounts payable for the Services that we specify in this Agreement together with the fees, charges and related amounts we specify on any Platform or that we notify to you from time-to-time (together the “Fees”);
b all Taxes payable by us on your behalf in connection with this Agreement or that we otherwise suffer or incur in connection with your breach (in part or whole) of this Agreement; and
c all costs and expenses we incur as a result of your breach of any of your obligations in this Agreement, including all legal costs and expenses on a solicitor/client basis.
11.2 All Fees and other amounts payable by you under this Agreement exclude GST (unless we state otherwise in writing), which you must pay to us on taxable supplies under this Agreement at the same time as you make payment for those amounts.
11.3 All funds you transfer to us, or that we collect on your behalf, must be:
a in cleared funds;
b in the currency we notify to you from time to time;
c free of all Security Interests;
d without set-off, deduction or withholding of any kind by you whatsoever; and
e paid into a bank account nominated by us.
11.4 You are responsible for the payment of all fees and charges (including bank fees and foreign exchange fees) payable in connection with funds paid from you to us. If any such fees or charges are deducted from an amount received by us, we are entitled to recover those fees and charges from you.
11.5 If we are required by Law to make any deduction from the funds transferred, you must pay to us any additional amount we require that is necessary to ensure receipt by us of the full amount that we would have received but for the deduction.
11.6 You may only make payment using means we notify to you from time-to-time. We reserve the right to reject, and to return, any payment not made using such means. However, to the maximum extent permitted by law, we have no liability to you whatsoever (and howsoever arising) if we are unable to return a payment to you that was received by means not approved by us.
11.7 We will arrange for you to pay Fees and other amounts payable under this Agreement using the means of payment you select on a Platform. You irrevocably authorise us to charge all payments due from you to us under or in connection with this Agreement (including Fees). You agree to provide us with all information required for us to process payments using that means of payment and to keep it up to date at all times. That information must be complete, correct and up-to-date. Despite any other provision of this Agreement, we have the right to suspend provision of our Services (in whole or part, including with respect to Messages or Items held by us,) if you fail to comply with those requirements.
11.8 Except as expressly provided otherwise in this Agreement, or as agreed otherwise by us in writing, all amounts payable to us under this Agreement, including Fees, are payable immediately.
11.9 We will allocate payments in such order as we shall determine in our absolute discretion.
12. INTELLECTUAL PROPERTY
12.1 Subject to clause 12.2, title to, and all Intellectual Property Rights in the Platform, the Services and Systems is and remains the property of us (and our licensors). You must not dispute that ownership.
12.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant to us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with the Agreement.
12.3 If you provide us with ideas, comments or suggestions relating to a Platform, the Services, the Documentation (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
12.4 You acknowledge that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds, or their content or operators. To the maximum extent permitted by Law, we exclude all responsibility or liability for those websites and feeds.
13. REPRESENTATIONS & WARRANTIES
13.1 Each party represents and warrants that the party has full power and authority to enter into, and perform its obligations, under this Agreement.
13.2 To the extent the CGA applies to the Agreement, no provision in this Agreement is intended to have the effect of limiting or restricting your rights under the CGA, except to the extent permitted by Law. However, if you are in trade you agree to contract out of the CGA, that the CGA shall not apply to you, and that it is fair and reasonable that it does not do so.
13.3 You represent, warrant and agree that, from the date of this Agreement and on each following day:
a you will provide us with all information and documents we reasonably require in connection with this Agreement;
b each of your application for an Account, your access to a Platform and your use of the Services comply with all Laws to which you are subject;
c all information you provide to us about you and anyone else is true, complete and up-to-date; and
d you will promptly notify us with any new information, if the previous information provided ceases to be true, complete or up-to-date.
13.4 To the maximum extent permitted by Law, but subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA):
a our warranties are limited to those expressly set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract & Commercial Law Act 2017) are expressly excluded; and
b we make no representation concerning the quality of the Platform or the Services and do not promise that they will:
i meet your requirements or be suitable for a particular purpose;
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
14. LIMITATION OF LIABILITY
14.1 To the maximum extent permitted by Law, subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), we shall have no liability to you whatsoever, whether in contract, tort (including negligence), equity or otherwise, for any Losses you suffer or incur as a result of our breach of this Agreement or otherwise in connection with the Agreement.
14.2 To the maximum extent permitted by Law, subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), and without limiting clause 14.1, our maximum aggregate liability under or in connection with this Agreement or the Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise must not exceed:
a for a claim in relation to an Item, the lesser of the market value of the Item and NZ$2,000;
b for any other claim, in any Year, an amount equal to the Fees paid by you to us relating to the Platform and the Services in the previous Year (which in the first Year is deemed to be the total fees paid by you from the date of this Agreement to the date of the first event giving rise to liability).
14.3 In addition to and without limiting clauses 1.1 and 14.2, subject to our obligations to you at Law that we are not permitted to contract out of (including those arising under the CGA), neither party is liable to the other under or in connection with this Agreement for any:
a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill;
b consequential, indirect, incidental or special damage or loss of any kind;
c delay in the communication of instructions, communications or notices due to any breakdown or failure of third party transmission communication facilities, or a Force Majeure Event.
14.4 Clauses 1.1 to 14.3 do not apply to limit or exclude a party’s liability for that party’s wilful default, fraud or dishonesty.
14.5 Each party must take reasonable steps to mitigate any Loss it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.
15. INDEMNITY
15.1 To the maximum extent permitted by Law, but subject to our obligations to you at Law that we cannot contract out of (including those arising under the CGA), you indemnify us, and keep us indemnified, against any Losses we suffer or incur in connection with:
a any Event of Default by you or to which you are subject;
b the exercise by us of our rights and powers under this Agreement including upon the occurrence of an Event of Default by you or to which you are subject (or where there is a risk of an Event of Default occurring);
c any actual or alleged complaint, claim, proceeding or other action against us by a third party (other than related person of us or a supplier to us) arising out of or in connection with the provision of the Platform and of the Services including any claim that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading,
except to the extent such Losses arise from our negligence, wilful default, fraud or dishonesty.
16. NOTICES
16.1 We will send to you, and you agree to receive, any notices, documents, or other communications from us using one or more of the following means:
a by electronic delivery via a Platform;
b by email to an email address provided by you when you opened the Account or that we otherwise accept after that;
c by delivery to your place of residence.
We are not required to use any particular messaging service and you should monitor relevant communication portals at all times for communications from us.
16.2 By giving us your email address with your application for an Account you irrevocably confirm that we can use, but are not obliged to use, that email address (or any other email address we approve for that purpose) for any communications with you (including to provide notices).
17. TERMINATION & SUSPENSION
Suspension
17.1 We may restrict or suspend your access to, and use of, your Account, the Services and/or the Platform, and delete, edit or remove the relevant Data, if we consider that you or any of your personnel or representatives have:
a undermined, or attempted to undermine, the security or integrity of the Platform or any Systems;
b used, or attempted to use, a Platform:
i for improper purposes; or
ii in a manner that materially reduces the operational performance of a Platform;
c transmitted, inputted or stored any Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights of a third party), or that is or may be Objectionable, incorrect or misleading.
Termination
17.2 Subject to clause 17.3, either Party may terminate this Agreement without cause by providing five (5) Business Days prior written notice to the other, provided that this does not limit any other rights of termination under this Agreement or at Law.
17.3 Subject to this Agreement, the Agreement cannot be terminated under clause 17.2 while any of the Services are outstanding including while we are storing any Message or Item on your behalf.
17.4 A party may, by notice to the other party, immediately terminate this Agreement if the other party:
a has an official manager, official assignee, trustee, receiver, voluntary administrator, liquidator or provisional liquidator, or anyone in a similar role, appointed for all or a material part of a party’s assets or undertaking;
b being an individual, is at risk of being declared, or is declared, bankrupt, or enters into the no asset procedure;
c has any distress, attachment, or execution levied, issued, enforced or obtained on or against all or substantially all of that party’s assets;
d ceases carrying on business.
17.5 A party may, by notice to the other, immediately terminate this Agreement if the other party commits (or is subject to) an Event of Default (whether or not on-going at the time the notice of termination is given). In this Agreement an “Event of Default” means where:
a a party is in breach of this Agreement, and the party fails to remedy the breach within 10 Business Days of being notified by the other party of full details of the breach (where the breach is capable of remedy);
b any representation or warranty made by a party is incorrect, untrue or misleading in any material way, with the result that Loss is, or is likely to be, suffered by the other party;
c a party commits or is subject to any of the events in clause 17.4;
d for any length of time we consider reasonable in the circumstances, you are not contactable or you do not respond to communication;
e a party commits an act of serious misconduct, including fraud or dishonesty.
17.6 If you commit or are subject to an Event of Default (whether or not continuing at that time), we can immediately take or refrain from taking any action we consider reasonable, including:
a restrict or suspend your access to, and use of, your Account, the Services and/or a Platform
b cancel any pending orders for the Services.
17.7 If you validly terminate in accordance with clause 17.2 this Agreement because we commit or are subject to an Event of Default, or clause 19.1, we shall promptly, at our cost, either return all of your Messages and/or Items to you or send them to the relevant Recipient at the Recipient Address, and clauses 7 and 10 respectively shall otherwise apply.
17.8 A party will have no liability to the other whatsoever, and howsoever arising, in connection with the exercise that party’s rights or remedies under, and in compliance with, this clause 17.
17.9 Termination or expiry of this Agreement shall not affect:
a any rights of a party against any other party which accrued up to and including the date of termination or expiry;
b the provisions of this Agreement which, by their nature, are intended to survive termination or expiry, including clauses 12, 14, 15 and 18.
18. CONFIDENTIAL INFORMATION
18.1 Each party must, unless it has the prior written consent of the other party:
a keep confidential at all times the Confidential Information of the other party;
b not use the Confidential Information of the other party;
c disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and only where those persons are subject to confidentiality undertakings at least as strong as those in this clause.
18.2 The obligations in clause 18.1 do not apply to any:
a disclosure or use of Confidential Information for the purpose of performing a party’s obligations, or exercising a party’s rights, under this Agreement;
b disclosure or use of Confidential Information to the extent expressly permitted under this Agreement;
c disclosure of Confidential Information to any law enforcement, regulatory agency or court where required by any such Law (including under the rules of a stock exchanges) in New Zealand or elsewhere;
d disclosure or use of Confidential Information which it is generally publicly available through no fault of the recipient of the Confidential Information or its personnel;
e disclosure or use of Confidential Information which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
f disclosure of Confidential Information by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part), provided that we enter into a confidentiality agreement with the third party on terms at least as strong as those in this clause.
19. GENERAL
19.1 Amendments: This Agreement may be amended by agreement of the parties in writing. In addition, we may, acting reasonably, amend, supplement, vary, or replace the terms of this Agreement at any time, with effect from a date determined by us. We do not need your consent to make such a change. We will notify you of any changes to this Agreement before those changes take effect. You may terminate this Agreement if the changes cause you material Loss, provided you first notify us of the basis for the Loss and we do not, within 10 Business Days of receipt of the notice, modify the relevant changes to avoid a material Loss.
19.2 Force Majeure: Despite any other provision in this Agreement, neither party is liable to the other for any failure to perform its obligations (except an obligation to make payment) under the Agreement to the extent caused by a Force Majeure Event. On becoming aware of the occurrence of a Force Majeure the affected party must:
a promptly notify the other party about the Force Majeure Event;
b uses reasonable efforts to overcome the Force Majeure Event; and
c continue to perform its obligations to the extent reasonably practicable.
19.3 Rights and remedies are not mutually exclusive: To the fullest extent permitted by law, a party's powers, rights, discretions and remedies, whether provided for in this Agreement, at law or otherwise, are not mutually exclusive, can be exercised more than once, and are cumulative and not alternative, and may be exercised independently, or in any combination, at any time by that party.
19.4 Joint and Several Liability: If any party consists of more than one person then any obligation or liability of those persons under this Agreement shall be joint and several and obligations and liabilities to be observed or discharged by two or more parties shall be observed by them jointly and severally.
19.5 Non-Waiver: No waiver of any breach, failure to enforce any provision, or failure to exercise or delay in exercising any right or remedy, of this Agreement at any time by a party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with this Agreement.
19.6 Entire agreement: The Agreement contains all of the terms agreed between the parties relating to the matters dealt with in the Agreement and supersedes all prior discussions and agreements covering the subject matter of the Agreement.
19.7 Further assurances: The parties must each sign all further documents, pass all resolutions and do all further things as may be necessary or desirable to give effect to the Agreement.
19.8 No partnership: Except as expressly provided otherwise in this Agreement, nothing contained in the Agreement will be deemed or construed to constitute any party to be a partner, agent or representative of any other party, or to create any trust or commercial partnership.
19.9 No assignment: You may not assign any of your rights or obligations under this Agreement without our express written consent. We may assign any or all of our rights or obligations under this Agreement without your consent.
19.10 Subcontracting: Our obligations under this Agreement may be performed by, or subcontracted to, other persons. We shall remain responsible for the performance of our obligations by such persons.
19.11 Costs: Except as expressly provided otherwise in the Agreement, the parties must meet their own costs relating to the negotiation, preparation and implementation of the Agreement.
19.12 Partial invalidity: If any provision of the Agreement becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by Law.
19.13 Signature: The Agreement may be executed in two or more counterparts, each of which is deemed an original and all of which constitute the same Agreement. A party may enter into the Agreement by signing and sending (including by email) a counterpart copy to each other party. Alternatively, this Agreement takes effect and binds the parties once you have agreed to be bound by clicking the “I agree” (or similar) checkbox on a Platform in relation to this Agreement.
19.14 Governing law and jurisdiction: The Agreement is governed by New Zealand Law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.