TERMS AND CONDITIONS
Welcome to Findalift, New Zealand's own online transport network community. These Terms and Conditions are intended to assist and keep Findalift a safe place to trade. If you have any questions please get in contact:
Phone: 0800 425 438
Email: info@findalift.co.nz
Address: P.O. Box 7024, Fitzroy New Plymouth 4341 NZ
1. AGREEMENT
1.1 The following terms and conditions apply to the use of the Findalift (“FAL”) Website and mobile app whether as a Member or otherwise. In registering as a Member and/or by using the services of FAL, you agree to be bound to, and abide by, these terms and conditions. These terms and conditions should be read in conjunction with any other policies of FAL in force and available on the Website from time to time. In the event of a conflict between these terms and conditions and a policy of FAL, these terms and conditions will prevail.
2. DEFINITIONS
2.1 In these terms and conditions, the following terms have the following meanings:
Account means your membership account with FAL.
Carrier means every carrier who, at any material time, is or was in possession of the following for the purpose of performing the carriage, any stage of the carriage, or any incidental service:
(i) the goods; or
(ii) any container, package, pallet, item of baggage, or any other thing in or on which the goods are or were believed by the carrier to be.
Credit Account means the facility provided by FAL to approved Members to allow those Members to make payments to FAL on terms agreed with FAL.
Findalift and FAL means Findalift Limited.
“Findatruck”, “Findaload”, “Findalift”, “Post your truck”, “Advertise a truck”, “Postaload”, “Book a pickup”, “Request a quote”, “Set your price”, “Quick Quote” means the Services referred to by those names offered on the Website.
Intellectual Property means all intellectual and industrial property rights and interests (including common law rights and interests) including, without limitation:
(a) trade-marks, applications for trademarks, trade name(s), symbols and logos;
(b) know-how, being technical and other information or experience or trade secrets;
(c) designs, whether or not registered or protected by copyright;
(d) patents and applications for patents;
(e) copyright material; and
(f) other intellectual property.
Listing means a listing posted on the Website, through which you offer, negotiate, buy, sell or advertise any item, load or cartage, whether by tender or classified and “Listed” has the same meaning.
Member means an individual or entity who has registered as a member with FAL in respect the Website or mobile app.
Mobile app means the Findalift mobile app available in the Apple and/or Google Play app store.
Period Of Exclusivity means the 48 hours from the time You accept the Transport fee for your load listing.
Seller means any person posting a Listing.
Services means any service provided by FAL on the Website from time to time, including but not limited to “Findatruck”, “Findaload”, “Post your truck”, “Advertise a truck”, “Postaload”, “Book a pickup”, “Request a quote”, “Set your price”, “Quick Quote”, online tenders, classifieds, sms alerts.
Transport means the cartage of loads and/or items and any ancillary services related to such cartage.
Transport Operator means any person or entity offering or providing cartage.
Transport User means any person or entity seeking cartage for an item or load.
Website means the FAL website located at www.Findalift.co.nz on which these terms and conditions are available.
Working Day means any day (other than a Saturday or Sunday) on which registered trading banks are open for business in Hamilton, New Zealand.
You and your means you as the individual or entity accessing and using Website and/or Services as a Member or otherwise.
3. THE SERVICES
3.1 Venue provided: FAL provides a venue by way of the Website and mobile app to allow Transport Users and Transport Operators to connect to find Transport services for the carrying of partial or full loads.
3.2 Facilitation: FAL facilitates the Transport services between Transport Operators and Transport Users by provision of the Services, and collects fees for Transport from Transport Users and pays those fees on to Transport Operators.
3.3 Registration required: You must register as a Member to use the Services on the Website or mobile app.
3.4 Country: You must be located in New Zealand or Australia to use the Services on the Website.
3.5 Scope: You agree and acknowledge that:
3.5.1 The Website is an online platform for the connection of Members offering for sale, selling and/or purchasing or seeking to purchase Transport services from other Members.
3.5.2 As a Transport User you will contract with FAL to use the Services to find Transport for the items or loads you require to be transported.
3.5.3 As a Transport Operator you will contract with FAL to use the Services to provide Transport.
3.5.4 All payments for use of the Services and for Transport will be made by you directly to FAL (and not to other Members) in accordance with these terms and conditions.
3.5.5 FAL’s liability to you for any non-performance of any Member or any other actions or conduct of any Member or any failure to act by any Member is limited as set out in these terms and conditions.
3.5.6 While FAL takes all reasonable precautions to facilitate secure payments made via the Website, FAL is not responsible for protecting Members or any other users of the Website from credit card or POLi fraud resulting from or connected with use of the Website and/or the Services and/or Transport services.
3.5.7 FAL is not in any way an agent or representative of any Member.
3.5.8 A Listing posted on the Website does not constitute a recommendation or endorsement by FAL of that Member’s Transport services.
3.5.9 FAL gives no undertakings, representations or warranties in respect of the Transport services as between Members, including:
(i) The quality, content, safety, description, fit-for-purpose, or legality of the transport provided, the Transport Operator, the Transport User, or the goods which require cartage;
(ii) The accuracy or truth of any Listing;
(iii) The ability of any Member to complete a transaction arranged between Members, including Transport services as facilitated by FAL.
3.5.10 All hyperlinks to Members’ and other advertisers own websites and the responsibility for the content of any advertisements appearing on the Website rests solely with the relevant Member and/or advertiser. FAL does not endorse any of the advertised products or services.
3.6 Disclaimer: FAL makes no representations and provides no warranties of any sort whether express or implied:
3.6.1 As to the Listings, the Transport service to be performed in respect of any Listing, or the actions or inactions of any Member on the Website, including without limitation the quality or nature of any Transport services provided by a Member, or that such Transport services will be provided with all reasonable care and skill or otherwise in accordance with any relevant legislation.
3.6.2 As to the results, outcomes or performance to be achieved or expected from the Transport service provided by a Member.
3.6.3 That the information contained on the Website is reliable, accurate, complete or otherwise error-free.
3.6.4 That you will have continuous, uninterrupted, timely or secure access to, and use of the Website.
3.6.5 That the Website will be free from any malfunctions or other failures.
4. MEMBERSHIP
4.1 Registration: In order to access the Website, you must first register as a Member. To register as a Member, you must complete the registration process on the Website, providing the information required for that process. You must be a resident of New Zealand or Australia and be 18 years of age or over to become a Member. FAL reserves the right to refuse any application for registration for any reason.
4.2 Credit Account application: Members wishing to operate a Credit Account must complete the account application form/details provided on the Website or by email. FAL reserves the right to decline any Credit Account application for any reason, and to revoke a Member’s Credit Account at any time for any reason.
4.3 Membership information: You warrant that you have provided complete, accurate and current personal and business information when registering as a Member and making a Credit Account application. You must maintain and update your personal and business information held by FAL to ensure that it is kept current at all times. FAL may store this information on: email, cloud storage, or hosted servers. FAL may contact you to verify your details. We collect and retain this information so you can use our services.
4.4 One registration: Subject to 4.4 above, you may not register as a Member under multiple identities, or otherwise create multiple profiles.
4.5 No transfer of membership: You may not assign, purport to assign or otherwise transfer your membership or Member Account, or any rights or obligations in respect of your membership or Member Account.
4.6 Termination: FAL reserves the right to terminate your membership pursuant to these terms and conditions at FAL’s sole discretion. FAL may terminate your membership for any reason, including but not limited to receipt of serious or multiple complaints regarding you from other Members, where FAL considers that you are attempting to avoid making payments due to FAL as a consequence of your use of the Website, any breach by you of these terms and conditions, where FAL considers your behaviour in any connection to the Website or other Members to be unacceptable.
4.7 Password and Account: You are responsible for keeping your password and Account information secure. This obligation means that you shall not, among other things:
4.7.1 Disclose your password or other Account details to any other person; or
4.7.2 Either directly or indirectly, allow any other person to access, gain access to, or otherwise use your Account.
4.8 Member contact: FAL will send you emails and/or SMS messages relating to your membership, transactions and other activities on the Website, and to promote and market other FAL services and products to you. FAL may also send you electronic newsletters. All electronic communication from FAL to you will clearly show how you can unsubscribe from the mailing list.
5. FAL OBLIGATIONS
5.1 In addition to the other obligations set out in these terms and conditions, but subject to 6.1:
5.1.1 FAL shall use reasonable endeavours to provide you with available and continuous access to the Website, the Services, and to your Account, subject to any downtime attributable to maintenance.
5.1.2 FAL shall where possible, provide advance notification of any maintenance/updates to the Website which may disrupt or prevent your access to Website, the Services, and/or your Account.
6. FAL RIGHTS
6.1 Notwithstanding any other right of remedy available to FAL, FAL may, in its sole discretion:
(a) Limit your activities on the Website;
(b) Remove your Listing(s);
(c) Issue warnings to other Members in respect of you or your actions;
(d) Issue you with a warning;
(e) Suspend or terminate your Account or membership; or
(f) Refuse to provide the Services to you.
7. YOUR OBLIGATIONS
7.1 Obligations of Members and Website users: In addition to the other obligations set out in these terms and conditions, as a Member and/or user of the Website you shall:
7.1.1 At all times, comply with these terms and conditions.
7.1.2 Make full and prompt payment to FAL for the use of the Services and for Transport in accordance with these terms and conditions.
7.1.3 Use the Website and your Account for lawful purposes only.
7.1.4 Ensure that all data and/or information supplied by you is valid, up to date, accurate and complete.
7.1.5 Make all your Listings, tenders, tender bids and other communications through the Website in good faith.
7.1.6 Not manipulate or attempt to manipulate prices.
7.1.7 In the case of tenders, only place a bid if you intend to buy at the bid price entered.
7.1.8 List all prices in New Zealand dollars and exclusive of GST.
7.1.9 Complete transactions entered into by using the Services in the manner agreed with FAL.
7.1.10 Not complete any transactions that were initiated on the Website outside of the FAL Website process and/or attempt to avoid payments payable to FAL from your use of the Website.
7.1.11 Not contact or approach in any manner any Member other than via the Website, in the manner contemplated by these terms and conditions, for the purposes of securing additional or on-going Transport services with any Member.
7.1.12 Not use the Services or the Website to promote services or any other items for sale apart from the relevant transport services.
7.1.13 Not list any personal or business information, including but not limited to email address, phone number, or other contact details, within the descriptions of Listings, Listing comments and/or questions, your Member profile, or the FAL message boards. You may list such information within relevant contact detail fields of those Listing categories which specifically provide for such details to be entered.
7.1.14 Ensure that any Listing shall only be in respect of Transport services or a load to the transported, and not in respect of the sale, or offer for sale, of any products or other types of services. Transport services Listed by a Member must be available in New Zealand.
7.1.15 Not attempt, do or allow anything to be attempted or done which may disable, damage, provide unauthorised access to or otherwise interfere with the proper functioning of the Website, its Services, your Account, other Accounts, or the use of the same by other Members.
7.1.16 Not use a robot, spider, scraper or other automated means of access to the Website, or information contained on the Website, for any purpose.
7.1.17 Not copy, reproduce, translate, adapt, vary, decompile, reverse engineer or modify the Website, nor communicate or make the Website available to any third party other than in accordance with these terms and conditions.
7.1.18 Inform FAL immediately if you experience any malfunction or other failure of the Website or your Account.
7.2 Warranty: As a Member and/or user of the Website you warrant that you have the legal right and capacity to use the Services, and provide Transport where you are a Transport Operator, and to enter into and complete any transaction for Transport services that arises from the use of the Services.
7.3 Further obligations of Sellers: In addition to the other obligations set out in these terms and conditions, as a Seller you shall:
7.3.1 Only enter Listings that are accurate, current, complete and include all relevant information.
7.3.2 Not list a URL for any website that contains any further information than that allowed by these terms and conditions to be provided by you on the Website or in a Listing. Where URLs are included in the Listing, the website they link to must not offer any items for sale or contain your contact details.
7.3.3 Not use any Listing to promote a business or website, or to promote any service other than the Transport service.
7.3.4 Agree to FAL forwarding your; name, email, phone number, address, and other contact details to either the Transport Operator to whom your Transport services are to be provided or to the transport user who booked the load.
7.4 Further obligations of Transport Operators: In addition to the other obligations set out in these terms and conditions, as a Transport Operator you:
7.4.1 Must be physically located in New Zealand or Australia.
7.4.2 Where you are located in Australia, must have a New Zealand bank account available to accept payments from FAL in New Zealand dollars.
7.5 Further obligations of Transport User: In addition to the other obligations set out in these terms and conditions, as a Transport User you:
7.5.1 Shall promptly complete the details of the items and/or load to be transported on our website.
7.5.2 Have or will meet all the requirements of the applicable legislation for the transport of any goods to be carried which are of a type covered by the Hazardous Substances and New Organisms Act 1996, Radiation Protection Act 1965 and/or the Medicines Act 1981.
7.6 Completion of membership registration on behalf: At FAL’s sole discretion you may be permitted to use the Services without completing a membership registration. In this case:
7.6.1 You authorise FAL to register you as a Member, and provide details of the registration to you by email.
7.6.2 You will confirm the membership registration as completed by FAL prior to any use of the Services by you or by FAL on your behalf.
7.6.3 Once you have confirmed your membership registration, all of the provisions set out in these terms and conditions apply to you, subject to such modifications as are reasonably necessary to affect their application.
7.6.4 You will make payment directly and immediately within 1 hour to FAL for the Services and Transport as set out in these terms and conditions, by way of credit card, POLi or other payment methods.
7.6.5 You acknowledge and agree that FAL has no liability to you for any errors or omissions in your membership registration.
8. CONTRACT AND COMMERCIAL LAW ACT 2017
8.1 “Carrier”: FAL is or may be a “carrier” for the purposes of the Contract and Commercial Law Act 2017 as FAL provides incidental services, by way of the Website and the Services, to facilitate the carriage of goods.
8.2 “At Owner’s Risk” for certain transport: Notwithstanding any other provision of these terms and conditions, by registering as a Member of FAL you agree and acknowledge that:
8.2.1 FAL’s risk as a “carrier” under the Contract and Commercial Law Act 2017 is limited to “at owner’s risk” as defined by section 248(2)(a) of that Act for any Transport services of; furniture, machinery, vehicles, dangerous goods, containers, and/or livestock provided by road, rail and/or sea.
8.2.2 This means that FAL is not liable for the loss of or damage to any goods, except where the loss or damage is intentionally caused by the carrier.
8.2.3 When posting a Listing to which this clause applies you will be asked to confirm a separate acknowledgement which states “These goods are to be carried at ‘owner’s risk’. This means that FAL will pay no compensation if the goods are lost or damaged, unless FAL intentionally loses or damages them.”
8.3 “At Limited Carrier’s Risk” for all other transport: Notwithstanding any other provision of these terms and conditions, by registering as a Member of FAL you agree and acknowledge that:
8.3.1 FAL’s risk as a “carrier” under the Contract and Commercial Law Act 2017 is limited to “at limited carrier’s risk” as defined by section 259(2)of that Act for any Transport services provided other than those set out in 8.2.1 above.
8.3.2 This means that FAL liability for the loss of or damage to any goods is limited in accordance with that Act and particularly in accordance with section 259 of the Contract and Commercial Law Act 2017.
8.4 Claims: Any claims that you make against FAL as a “carrier” must be made within 7 days of delivery. You must give written notice to FAL in accordance with section 274(2) of the Contract and Commercial Law Act 2017 in all cases.
9. CONSUMER PROTECTION LEGISLATION
9.1 Consumer Guarantees Act not applicable to business use: Where you use the Website and/or Services for a business purpose, you agree and acknowledge that the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 to the maximum extent permitted by law are excluded and do not apply to you.
9.2 Credit Contracts and Consumer Finance Act not applicable to business Accounts: Where you use the Website and/or Services for a business purpose, you agree and acknowledge that your Account and Credit Account where applicable is not “consumer credit finance” as defined by the Credit Contracts and Consumer Finance Act 2003 and as such the disclosure requirements of that Act do not apply to you. On registering as a Member with a business Account you will be asked to confirm a separate acknowledgement which states “I declare that this Account and related Credit Account as applicable will be used primarily for a business purpose and as such the provisions of the Credit Contracts and Consumer Finance Act 2003 are not applicable. I acknowledge that I have read and understood this declaration.”
9.3 Application of Credit Contracts and Consumer Finance Act to personal Accounts: Where you use the Website and/or Services for personal, domestic and/or household purposes the provisions of the Credit Contracts and Consumer Finance Act 2003 will not apply as FAL does not charge interest on your Account and Credit Account where applicable other than for late payment as set out in these terms and conditions. In the event that interest is charged on your Account and/or Credit Account, FAL will provide you will the information required by the Credit Contracts and Consumer Finance Act 2003.
9.4 Financial Service Providers (Registration and Dispute Resolution) Act not applicable to Accounts: As FAL does not pay or charge interest on your Account and Credit Account where applicable other than for late payment as set out in these terms and conditions, the provisions of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 do not apply to FAL or your Account and/or Credit Account.
10. TENDERS
10.1 In the case of tenders:
10.1.1 You agree that the highest or lowest tender may not be successful.
10.1.2 Your bid in respect of the Services is not retractable once the tender has closed.
10.1.3 Where you are notified that your bid has been successful you must complete the transaction in the manner specified.
11. FEES
11.1 Registration: Registration as a Member with FAL is free of charge. FAL reserves the right to impose a registration fee at any time, such fee to apply to persons who become Members following the imposition of a registration fee. Any such registration fee will be specified on the Website.
11.2 Transport fee: As a Transport User you agree to pay the fee for Transport (plus GST) to FAL in respect of each Transport service that you accept using the Services. The fee for Transport will be as specified in the email quotes, email confirmations, and in My Account under; "Pending Offers" and "Load History".
11.3 Cancellation fee: You agree to pay a cancellation fee that is equal to 20% plus GST of the Transport Fee agreed to by You to FAL where you cancel a Listing during the Period of Exclusivity, or after it has been booked with a transport operator. FAL reserves the right to amend the cancellation fees at any time.
11.4 GST: Unless otherwise stated in these terms and condition or elsewhere on the Website, all fees are listed on that page at a GST exclusive amount. You will pay GST on all fees to FAL at the time of paying the fees.
11.5 All fees or transactions are in New Zealand dollars (NZD).
12. PAYMENT WHERE NO CREDIT ACCOUNT
12.1 Payment of all fees: Where you do not have a Credit Account, all amounts payable by you to FAL are payable by; credit card, POLi or other payment methods listed on the email confirmations or my account. Any outstanding amount is due immediately upon receiving the email booking confirmation. Transport operator bookings will not be generated and loads will not be transported until payment in full has been received.
12.2 Transport users: In the event that you do not provide the agreed load for transport, you are liable for payment of the Transport (plus GST) to FAL as agreed and advised on the email confirmation. If the load results in extra transport fees as a result of the load change , FAL reserves the right to amend the transport fee.
12.3 Transport operators: In the event that you do not provide the agreed transport services, you are liable for any extra costs incurred. You agree the transport fee will be discounted to pay for the extra costs incurred. If the extra costs exceed the transport fee, this will be recouped from other transport fees owed or discounted from future transport fees or invoiced directly to the transport operator.
12.4 Refund of Transport fee on default: In the event that you have paid the Transport fee in accordance with 11.4 above and FAL does not find a Member to provide the agreed Transport services within the Period of Exclusivity or the other Member does not provide the agreed Transport services, FAL will credit the Transport fee (including GST) back to you upon FAL confirming to its satisfaction that you are not responsible for the default.
12.5 Due time for payment: The amounts payable by you must be paid as follows:
12.5.1 Transport fees are payable by you as a Transport User at the time of accepting the Transport service.
12.5.2 Cancellation fees are payable at the time of cancellation.
12.6 Invoices: FAL will issue invoices to you for all fees for Services paid by you to FAL. FAL will issue invoices to you for all fees for Transport paid by you to FAL.
12.7 No interest: FAL will not pay you interest for any credit balances held in your Account.
12.8 Overdrawn Account: You are not permitted to have a negative balance in your Account. Where for any reason your Account does have a negative balance you shall immediately make payment into your Account via credit card, POLi or other accepted payment methods to repay that negative balance. FAL reserves the right to take action against you to recover any negative balance. You are liable for all expenses (including legal fees) that FAL incurs when recovering any negative balance.
13. PAYMENT WHERE CREDIT ACCOUNT
13.1 Payment of all fees: Where you do have a Credit Account, all amounts payable by you to FAL will be charged to that Credit Account.
13.2 Invoices: FAL will issue an invoice to you at each month end for all fees charged to your Credit Account in that month.
13.3 Payment: You will pay the full amount on the invoice issued, without deduction, within 14 days following invoice. FAL reserves the right to take action against you to recover any amounts owing in your Credit Account and not paid in accordance with these terms and conditions. You are liable for all expenses (including legal fees) that FAL incurs when recovering the amounts owing.
13.4 Interest: Where you have not paid by the due date for payment as outlined on the invoice, FAL may charge you late payment penalty interest of 10% of the invoice value compounding every subsequent period the invoice is outstanding.
13.5 Security interest and PPSR registration: Where you have a Credit Account, you grant FAL a security interest over all of your present and after acquired property being all your personal property and all other property, to secure performance of your obligations under these terms and conditions, including but not limited to payment of amounts owing by you to FAL. You agree to, if required by FAL, cooperate in good faith with FAL to execute any documentation required to register this security interest in favour of FAL on the Personal Property Securities Register, and you waive any right to receive a copy of the verification statement, pursuant to section 148 of the Personal Property Securities Act 1999.
13.6 Time of refunds on default: Transport fees refundable to you on default as set out in 12.4 above will be credited to your Credit Account at the time FAL confirms to its satisfaction that you are not responsible for the default.
14. PAYMENT TO TRANSPORT OPERATORS
14.1 FAL will pay Transport fees to the relevant Transport Operator on the following basis:
14.1.1 Payment will be made by FAL at the end of the month following the month in which the Transport services were provided.
14.1.2 Payment to the Transport Operator may be delayed by FAL at FAL’s sole discretion where FAL becomes aware, by any means, of a dispute or potential for dispute between the Transport Operator and the Transport User.
14.1.3 In no circumstances will FAL pay interest or any other late payment penalty or fee of a similar nature to the Transport Operator.
14.1.4 Payment is subject to receiving a signed and dated proof of delivery containing the correct load reference (load ID number).
15. WEBSITE CONTENT
15.1 Removal of information: FAL reserves the right to monitor the content of the Website and may refuse to accept, and may remove from the Website at any time and without notice, any content which in FAL’s reasonable opinion:
(a) is unlawful or in breach of these terms and conditions;
(b) jeopardises or is likely to jeopardise or harm FAL, FAL’s reputation, or the Website;
(c) is incorrect, corrupt, or is otherwise not subject to these terms and conditions.
15.2 Linked websites: The Website may contain links to other websites operated by third parties. FAL cannot guarantee that such websites will remain current or otherwise be maintained. FAL shall not be liable to you or any third party for any content or functioning of such websites.
16. SUPPORT AND MAINTENANCE
16.1 Modifications: FAL reserves the right to make modifications to the Website at any time and is not required, but will endeavour to, provide notice of such modifications to you.
16.2 New Services: FAL reserves the right to introduce any new Services in relation to the Website. In the absence of any new terms and conditions stipulated FAL, these terms and conditions shall apply to any new Services on the Website.
17. SECURITY
17.1 Passwords: You shall keep your password confidential and maintain adequate security measures to safeguard the password from use by third parties.
17.2 Protection: FAL shall maintain protection mechanisms to minimise the possibility of any virus, spyware or other malware being introduced to the Website.
18. PRIVACY POLICY
Please refer to our privacy policy here.
19. CONFIDENTIAL INFORMATION
19.1 Confidential Information: All intellectual property and other information belonging to you or FAL which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of these terms and conditions (Confidential Information).
19.2 No disclosure: Except as provided under these terms and conditions, no party will without the prior written consent of the other party disclose any Confidential Information to any third party.
20. INTELLECTUAL PROPERTY
20.1 FAL IP: You agree and acknowledge that FAL owns the Intellectual Property in the Website or mobile app and in respect of the Services (if any) and that you obtain no rights, title, and/or interests in such Intellectual Property by virtue of your membership, access to and use of the Website or mobile app.
20.2 Maintenance: You agree:
(a) Not to adapt, reproduce, store, distribute, print, display, perform, publish or create any Intellectual Property from the Website;
(b) Not to cause or permit anything that may damage or endanger FAL’s title, interest or rights to use any of FAL’s Intellectual Property;
(c) To notify FAL of any suspected infringement of FAL’s Intellectual Property;
(d) To indemnify (including for costs on a client/solicitor basis) FAL for any use of FAL’s Intellectual Property otherwise than in accordance with these terms and conditions;
(e) Not to use FAL’s Intellectual Property otherwise than as permitted by these terms and conditions; and
(f) Not to use any name or mark similar to or capable of being confused with FAL, the Website or the Services without FAL’s prior written consent.
21. LIMITATION OF LIABILITY
21.1 Restricted liability: Notwithstanding anything else in these terms and conditions:
(a) FAL will be under no liability whatsoever to you or any third party for any loss or damage howsoever caused, (whether direct or indirect), including loss of profit, loss of bargain, loss of business opportunity, loss of information or data, loss or damage to your computer system or exemplary damages suffered by the you or any other person;
(b) flowing from any pre-contractual misrepresentation, forecast or breach of these terms and conditions, or in respect of any use of the Website or the Services or the Transport services, or any linked web site, or in arising from or connected with any information or services supplied, which arises in connection with the Website, the Services, the Transport services, or another Member’s acts or omissions;
(c) whether contemplated by these terms and conditions or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
21.2 Maximum liability cap: In the event that, despite the proviso in the 22.1 above, FAL is found liable for any loss or damage, including the loss or damage set out in the preceding 22.1, such liability will be limited to the fees paid by you at the date of such liability and is inclusive of all claims made against FAL. In the event you have paid no fees as at the date of liability, FAL’s liability shall not exceed $2000 New Zealand dollars.
22. INDEMNITY
22.1 You indemnify FAL in respect of all liabilities, costs and expenses (including full costs between solicitor and client), claims or demands incurred by FAL, or any third party, arising out of or in connection with a breach by you of these terms and conditions, your Listing or Transport services, your purchase of Transport services, the provision of Transport services by you, or otherwise arising out of any use by you of the Website or the Services or the Transport services. For the avoidance of doubt, you indemnify FAL for all liabilities, costs and expenses (including full costs between solicitor and client), claims or demands incurred by FAL, or any third party, resulting from any acts or omissions by you.
23. DISPUTE RESOLUTION
23.1 Between Members and other persons: For the avoidance of doubt, you agree and acknowledge that FAL will not be involved, nor will you seek to involve FAL in any dispute, or dispute resolution process between you and any other Member or any third person, which arises as a result of your use of the Website, or the Services, or any Transport, and/or your interactions with other Members.
23.2 You and FAL: In the event of any dispute between you and FAL in relation to these terms and conditions, Services or Transport, you and FAL shall first seek to resolve such dispute by promptly giving notice of such dispute to the each other and cooperatively endeavouring to resolve such dispute. If the dispute remains unresolved you and FAL shall then seek a resolution through the use of mediation prior to seeking resolution through the Courts.
24. NOTICES
24.1 Notice from FAL: Any formal notice required to be made or served pursuant to or under these terms and conditions (Notice), shall be provided to your e-mail address connected with your Account. Any Notice shall be deemed to be duly given and received on the transmission date of the e-mail unless you prove to the contrary that the e-mail was not transmitted, or it was not transmitted in a complete and legible state.
24.2 Notice from you: Any notice from you shall be sent electronically to FAL’s email address as shown on the Website or as otherwise directly on the Website from time to time.
24.3 Notice on non-Working Days: Notwithstanding any other provision contained in this clause, any Notice transmitted on a day which is not a Working Day, or if transmitted after 5pm in the place where it is received, shall be deemed duly transmitted at 9am on the next Working Day.
25. TERMINATION
25.1 Termination by FAL: FAL may terminate your membership and access to the Services at any time without notice.
25.2 Termination by you: You may terminate your membership at any time by notice sent to FAL in accordance with 25.2 above.
25.3 Consequences: Upon termination by either party:
(a) FAL shall immediately close your Account and your Credit Account where applicable;
(b) you shall immediately pay to FAL any amounts that you owe to FAL in respect of your Account, your Credit Account, any Services, any Transport, or for any other reason.
26. SEVERANCE
26.1 If any provision of these terms and conditions are found to be illegal, invalid or unenforceable, that provision shall be read down to the extent necessary and reasonable in all circumstances to give it valid operation. If any provision cannot be so read down, that provision will be void and severable and the remaining provisions will not in any way be affected or impaired.
27. GOVERNING BODY
27.1 Applicable law: These terms and conditions shall be subject to and must be interpreted in accordance with the laws of New Zealand but on points of patent, trade mark or copyright law or procedure is to be governed by the law of the country granting the patent or trade mark registration or copyright protection.
27.2 Jurisdiction: With respect to any legal action or proceedings which may be brought at any time in respect of these terms and conditions (other than the points of patent, trade mark or copyright law or procedure excepted in 28.1 above) each of the parties:
(a) submits to and accepts, for itself and in respect of its assets, generally and unconditionally the non-exclusive jurisdiction of any of the courts of New Zealand; and
(b) waives any objection it may have now or in the future to the venue of such action or proceedings and any claim it may have now or in the future that any such action or proceedings has been brought in an inconvenient forum.
28. VARIATION
28.1 FAL reserves the right to amend or vary these terms and conditions from time to time. Any amendments shall be effective on their publication on the Website. Your continued use of the Website shall constitute acceptance of any amendment to, or variation of, these terms and conditions. Should you disagree with any amendments made to these terms and conditions, you may close your Account and terminate your membership with FAL.
29. WAIVER
29.1 No delay, neglect or forbearance by either you or FAL in enforcing against the other party any provision of these terms and conditions will be a waiver, or in any way prejudice any right, of you or FAL as the case may be.
30. ASSIGNMENT
30.1 FAL may assign all or any of its rights or interests under these terms and conditions at any time without notice. You may not assign or purport to assign any of your rights or obligations.
31. NON-CIRCUMVENT
31.1 You will not circumvent or attempt to circumvent the provisions and/or intent of these terms and conditions.
32. FORCE MAJEURE
32.1 No failure or omission by FAL to carry out or observe any of these terms or conditions will give rise to any claim against FAL or be deemed a breach of these terms and conditions if such failure or omission arises from any cause reasonably beyond FAL’s control.
33. ENTIRE AGREEMENT
34.1 Unless otherwise agreed by FAL, these terms and conditions constitute the entire agreement and understanding between you and FAL, and supersede all prior discussions and/or agreements covering the subject matter.