Terms of Business
These Terms of Business apply to all Deliverables, while additional terms may apply to specific Deliverables (Additional Terms). Except with respect to Clause 23, in the event of any conflict between these Terms of Business and any Additional Terms, the Additional Terms shall take priority.
These Terms of Business were last updated on 7 June 2018. Italicised text is provided for illustrative purposes only, and does not form part of the Terms.
In the Terms, unless the context requires otherwise:
Account means your account with us;
Additional Terms has the meaning given to it in the Introduction;
Charges means any charges payable in respect of a Deliverable;
Confidential Information means all information we provide to you in respect of any Order Form or Deliverable, regardless of form;
Deliverable means any of our products and/or services;
End-user means any third party user of our products or services or any Deliverable;
Fixed Term means an Initial Term or Renewal Term (as the case may be);
Initial Term has the meaning given to it in clause 4.1;
Insolvency Event means where you have entered into, or propose, any arrangement, compromise or composition with your creditors; go into liquidation or have a receiver, administrator, statutory manager or similar officer appointed in respect of you; have an order made, resolution passed or other step taken against you by any person for your dissolution; cease to carry on your business or threaten to cease trading in a normal manner; or are unable to pay your debts as they become due;
Intellectual Property has the meaning given to it in clause 14.1;
Losses has the meaning given to it in clause 23.1;
Order Form means any document provided by us from time to time which enables you to order Deliverables (including, without limitation, Yellow's Advertising Order & Schedule or Order Form, and Finda's Sales Contract) or any analogous functions of our self-service website;
Package means two or more Deliverables that are provided together, either as contingent to each other or as part of a promotion;
Packages are priced as a whole, and any Charges specified for a Deliverable in a Package are indicative only, or for our internal purposes. Where a Package has an Initial Term, this commences on the first date of availability of any of the Deliverables. Consequently, not all Deliverables may be available for the full Initial Term, but this is reflected in the Charges.
Renewal Term has the meaning given to it in clause 4.1;
Representative means any director, officer, employee, contractor or agent;
Terms means these Terms of Business together with any Additional Terms;
Yellow, we, us or our means Yellow NZ Limited (formerly named Yellow Pages Group Limited), having its registered office at 604 Great South Road, Ellerslie, Auckland, together with its related companies (as that term is defined in the Companies Act 1993);
You or your means each party to whom we provide Deliverables, together with its Representatives; and
Your Material means all information and/or material provided to us by you, or on your behalf, and/or sourced by us from your publicly available collateral, advertising, website, social media or other publications, including logos, trade marks, images, text and audio or visual elements.
- We may change any Terms by adding, removing or amending provisions at any time. Any change we make applies from the date it is published at ypg.co.nz/terms (or any successor URL). You should review these Terms from time to time.
- No other change to the Terms shall be effective, and no other terms shall apply to any Deliverable, unless it is approved in writing by Yellow's Chief Executive Officer.
- If any provision of the Terms is declared to be illegal, invalid or unenforceable, that provision will be considered modified to the extent necessary to remedy the illegality, invalidity or unenforceability or, where this is not possible, will be deemed to be severed from the Terms. In either case, the remaining Terms will not be affected and will continue in full force and effect.
3. Ordering Deliverables
- To order a Deliverable, you must approve an Order Form for that Deliverable, as directed by us, including, as applicable, by signing and returning a printed or electronic copy, sending us an email in the required form, entering a verification code online where provided to you by email, recording your approval via our voice authorisation process, accepting an online order generated via one of our websites, or by such other means as we may advise from time to time. Only Order Forms prepared by us, and not subsequently amended, may be approved by you. You agree that certain Deliverables have deadlines by which we must receive an Order Form, and we shall have no liability where Order Forms are received by us after such deadlines or not at all.
- By approving an Order Form, you are deemed to have made an irrevocable offer to purchase the applicable Deliverable(s) on the Terms and warrant and represent that you have full legal capacity and power to enter into the Order Form and accept the Terms, and that your approval of any Order Form does not breach any existing agreement or arrangement between you and any other person, or infringe the rights of a third party. You acknowledge and accept that we may rely on the apparent authority of anyone who purports to approve an Order Form on your behalf. We may, at our absolute discretion, accept an Order Form (in whole or in part) by providing the applicable Deliverable to you.
- Each Order Form, together with the Terms, contains the entire agreement between you and us regarding the applicable Deliverables, and supersedes all previous agreements, arrangements and understandings between you and us regarding those Deliverables, whether written or verbal. You acknowledge and agree that you waive any claim you may otherwise have, to the extent permitted by law, under sections 9, 12A, 13 or 14(1) of the Fair Trading Act 1993 in respect of any Deliverables.
- We may reject any Order Form in whole or in part without further notice to you, even if you have approved it. For the avoidance of doubt, where we do not provide any Deliverable set out in an Order Form within a reasonable time period, we shall be deemed to have rejected the Order Form in respect of that Deliverable.
As an example, if you wish to purchase any of our advertising services, we would have a discussion with you regarding your needs, and then provide you with an Order Form setting out the relevant Deliverables. If you are satisfied with the Deliverables, and all the information on the Order Form is correct, you may then approve the Order Form. We accept approval by a number of methods, including physical or electronic signed copies of the Order Form, and via email or phone. You may also order Deliverables via any self-service website that we make available.
When you approve an Order Form or place an order on one of our self-service websites, you accept our Terms, and are offering to purchase the applicable Deliverables. If we wish to accept your offer (in whole or in part), then we will provide the relevant Deliverables. Please note that until we choose to accept your offer by actually providing Deliverables, we are not obliged to provide any Deliverables, even if you have signed an Order Form or placed an order on our self-service website, and even if we have otherwise communicated our intention to provide any Deliverables.
- You must provide us with current, complete and accurate information when submitting an Order Form or otherwise applying for an Account, including by specifying the legal entity (such as whether the business constitutes a sole trader, company, trust or limited partnership) and detailing the ownership structure of your business (such as the name of directors, shareholders, trustees or partners). You agree to update your details should they subsequently change.
- It is your responsibility to keep your Account credentials and details secure. We may assume that any activity undertaken with your credentials (such as a password) or otherwise accompanied by suitable verification (such as your billing account number), including the submission of Order Forms or changes to Deliverables, is authorised by you. If you think that your Account has been compromised, you must notify us immediately.
- Deliverables are provided for your own use, and are not to be transferred, assigned or re-sold. We may immediately suspend or terminate any Deliverable that you purport to transfer, assign or re-sell.
4. Term and automatic renewal
- Except as specified in an Order Form or any Additional Terms, we may provide all Deliverables on a continuing, monthly basis unless or until they are terminated in accordance with the Terms. Where a Deliverable is provided for an initial fixed term (Initial Term), then on expiry of the Initial Term, we may provide the relevant Deliverables for a further equal fixed term (a Renewal Term) and thereafter on the expiry of each Renewal Term, or on a continuing, monthly basis unless or until they are terminated in accordance with the Terms. We may (but are not obligated to) give you prior written notice of such renewal. The term of each Deliverable commences on our provision of that Deliverable or, in the case of a Package, the term of the Package commences on our provision of any of the Deliverables in that Package.
Some Deliverables in a Package may not be available for the full term, but this is reflected in our Charges.
- We are not obligated to renew any Deliverable, and we may require you to approve a new Order Form before renewing a Deliverable. We shall have no liability to you where we do not renew any Deliverable, even where you have requested that we do so or we have represented that we would do so.
- Except as specified in an Order Form or any Additional Terms, you may terminate any Deliverable:
- where the Deliverable is subject to a Fixed Term, at the end of that Fixed Term, by giving us prior written notice; or
- where the Deliverable is not subject to a Fixed Term, at any time by giving us 1 month's written notice,
via the contact methods specified in clauses 16.2(b) through (e).
- We will use reasonable endeavours to cease providing Deliverables on the termination date, or as soon after that date as is reasonably practicable. If you terminate a Deliverable that is part of a Package, we may also terminate all other Deliverables in that Package.
- We may terminate any Deliverable at any time, for any reason. We may (but are not obligated to) give you prior written notice of such termination.
6. Effect of termination
- Where you terminate a Deliverable in accordance with clause 5.1, or we terminate a Deliverable because you breach any Terms or enter into an Insolvency Event, you must pay on demand:
- all Charges for that Deliverable up to the later of the termination date or the end of any Fixed Term for that Deliverable; and
- all costs incurred by us prior to and as a result of such termination that are not otherwise included in the Charges.
- Where we terminate a Deliverable at our convenience:
- you must pay on demand all Charges for that Deliverable up to the termination date; and
- we will credit your Account in respect of any Charges pre-paid by you in respect of any period beyond the termination date.
- Termination of any Deliverables by either party will not affect clauses 9 (Payment), 10 (Late payment), 13 (Syndication), 14 (Intellectual Property), 17 (Disputes resolution), 18 (Confidentiality), 19 (Privacy), 20 (Electronic messages), 21 (Your indemnity), 22 (Our exclusion of warranties) and 25 (Your covenants) of these Terms of Business or any clause in the Additional Terms which is intended to continue after termination.
7. Suspension of Deliverables
- We may suspend any Deliverable, or any functionality of any Deliverable, at any time for any reason. Further to clause 23, we will not be liable to you for any loss of profit, business or opportunity resulting from such suspension.
- Where we suspend a Deliverable, or a functionality of a Deliverable, at our convenience or as required by any lawful authority:
- we may (but are not obligated to) give you prior written notice of such suspension;
- we will not charge you for the period of such suspension; and
- you must pay all Charges for that Deliverable up to, and following, the period of such suspension.
- Where we suspend a Deliverable, or a functionality of a Deliverable, because you breach any Terms:
- we may (but are not obligated to) give you prior written notice of such suspension;
- you must pay all costs incurred by us as a result of such suspension that are not otherwise included in the Charges;
- you must pay all Charges for that Deliverable, including during the period of such suspension; and
- we may reinstate that Deliverable if we determine that such breach has been remedied to our satisfaction, or we may exercise our termination rights under the Terms.
8. Changes to Deliverables or Charges
- We may change any Deliverable at any time, and:
- we may (but are not obligated to) give you prior written notice of such change; and
- you must pay all Charges for that Deliverable regardless of such change.
We continually update our products and services based on our insights, business requirements, market research, and feedback from customers, End-users and third parties.
- We may change our Charges at any time on written notice to you, provided that no such change will apply during a Fixed Term.
- Payment of Charges may be required at the time you order certain Deliverables (for example, when ordering online via one of our websites), in which case you must follow any payment instructions provided to you. Otherwise, we will invoice you in respect of any Charges or other amounts payable by you under the Terms. You must pay all invoiced amounts in full by the specified due date, or if none is specified, by the 20th day of the calendar month following the date you received the invoice.
- You must let us know of any errors in invoiced amounts prior to the due date for payment.
- If you have ordered any Deliverables via an agent, you will be liable to us for the applicable Charges if the agent does not pay us for any reason (even if you have already paid the agent).
- All prices or amounts stated by us are exclusive of GST and other taxes (if any), except where expressly provided otherwise.
- Where you incur any liability to us, whether under an Order Form or otherwise, we may without notice to you deduct from or set-off the amount of such liability against any amount that is or may become payable by us to you.
- You may choose to provide information for us to store and use to initiate recurring payments on your behalf (Recurring Payments), in accordance with our Recurring Credit/Debit Card Terms and Conditions
or Direct Debit Terms and Conditions
- As an ongoing condition of our providing any Deliverable, or the ability to pay Charges by instalments, we may require you to:
- pay by Recurring Payments;
- provide satisfactory evidence that you will be able to pay our Charges as they fall due; and/or
- provide security for payment.
Where you do not meet any such condition (including, in respect of Recurring Payments, by removing any credit/debit card or direct debit authority), we may require you to immediately pay all Charges in one lump sum.
10. Late payment
- Where you do not pay any invoiced amount by the date it is due then, in addition to any of our other rights, we may:
- charge interest on the unpaid amount from the date it is due until it is paid in full, at a rate which is 5% per annum above the current commercial overdraft rate charged by our trading bank. Interest will be calculated and charged monthly, and will be payable as soon as it is charged;
- require you to pay any costs we incur internally or which we pay to any third party (including agents) in recovering the unpaid amount or in exercising any other rights, including lost commissions to our sales staff, and legal costs on a solicitor and client basis. You acknowledge and accept that we use an external collection agency, and that their charges (being 25% of the unpaid amount) are recoverable against you;
- report your late payment or non-payment to credit reference agencies or take other action which may negatively affect your credit rating;
- immediately suspend or terminate any or all of our Deliverables to you; and/or
- require you to immediately pay all amounts in one lump sum.
11. Your contingent obligations
- You acknowledge and accept that you must perform certain actions within specified timeframes, as advised by us from time to time, to enable us to provide any Deliverables. This may include but is not limited to:
- providing us with Your Material;
- providing initial or ongoing feedback on a Deliverable; and/or
- approving the draft, final or updated form of a Deliverable (which may take the form of a proof or similar material).
- We shall not be liable for any failure to provide, or delay in providing, any Deliverable that results from your failure to perform any such action within the specified timeframe. Further, we may:
- deem any applicable Deliverable to be accepted by you;
- publish any applicable Deliverable; and/or
- charge you for any applicable Deliverable, regardless of whether that Deliverable was provided.
12. Your Material
- You warrant and represent that, unless notified by you in writing, we may use, reproduce, modify, adapt, communicate to the public, syndicate, distribute or otherwise make available and/or sub-licence Your Material to:
- provide you with any Deliverable or otherwise meet any obligation we owe you;
- improve, or inform you about, our products and services; and
- generally operate our business.
- You grant to us, or shall otherwise procure the granting to us of, a non-exclusive, irrevocable, sublicensable and transferable, royalty free licence to use Your Material as described in the Terms.
- You acknowledge that, whether or not we review any of Your Material, we are not responsible for confirming the accuracy or legality of Your Material, nor do we ratify it as such, and you warrant and represent that Your Material, and in particular, any information or material that we use as part of our provision of any Deliverable:
- complies with the Fair Trading Act 1986, the Trade Mark Act 2002, the Copyright Act 1994, the Defamation Act 1992, the Financial Advisers Act 2008, and all other applicable laws;
- complies with all applicable codes of the New Zealand Advertising Standards Authority;
- does not violate or infringe the moral, intellectual property, privacy or other rights of any third party;
- is complete and accurate, and meets any other quality or procedural requirements as advised by us from time to time; and
- is free of worms, viruses and other disabling devices or code.
- You must notify us if any of Your Material:
- becomes inaccurate or out of date; or
- infringes, or is alleged to infringe, any law, advertising code, or any moral, intellectual property, privacy or other right of any third party.
- We may edit or refuse to publish Your Material at any time if we consider it to be unauthorised, in breach of our policies, misleading, offensive, defamatory, illegal or detrimental to the standing of our Deliverables in the community. We may (but are not obligated to) contact you before doing any of these things.
- agree that we may, without further notice to you, syndicate, distribute, publish, display or otherwise make available some or all of Your Material, or other material relating to your business, in directories, products, promotional materials, websites and mobile phone or tablet applications owned and controlled by us or third parties;
- acknowledge that such material may be displayed by us or third parties together with other content; and
- agree that we are not responsible for any loss, damage, claim or demand arising in connection with any such syndication, distribution, publication, display or availability.
14. Intellectual Property
- As between you and us, we own all intellectual property rights, title and interest (Intellectual Property) in:
- the Deliverables;
- any material that we (or our suppliers) create for you or on your behalf as part of any Deliverable, whether or not such material has been created in conjunction or cooperation with you;
- any material created by us modifying, amending, adapting or otherwise dealing with Your Material;
- any software, hardware or other technology underlying any Deliverable;
- our trade marks; and
- other intellectual property (whether registered or not) which we develop independently of the Deliverables.
- Such Intellectual Property will vest absolutely and exclusively in us on its creation in material form and without the need for any further act by us except as required by law. If, despite the Terms, any Intellectual Property does not vest in us, you will hold such Intellectual Property on trust for us and, at our direction, assign to us or our nominee absolutely all of your rights, title and interest in or to such Intellectual Property. You will execute and deliver, or procure that the relevant person executes and delivers, any and all such documents required to vest the Intellectual Property in us absolutely. We are free to exploit all of our Intellectual Property as we consider fit and without payment of any kind to you.
- You may not use our Intellectual Property, or permit our Intellectual Property to be used, other than as expressly authorised by us in writing.
- We may include our trade marks and copyright notices on or in relation to certain Deliverables. This does not mean we endorse you or your products or services.
- You acknowledge and agree that nothing in the Terms or any Order Form, or in any Deliverable or manner of delivery of that Deliverable by us to you is intended to, or has the effect of, granting you a licence or any rights of ownership in any of the Intellectual Property unless expressly provided otherwise in writing.
- We are not your agent and are not involved, on behalf of either you or End-users, in any dealings resulting from the use of our products or services or any Deliverable. You are solely responsible for any risks associated with your dealings with End-users, and you must communicate and deal with End-users directly to complete transactions or resolve problems arising between you and any End-user.
- You acknowledge and agree that:
- you will not use any information provided to you by End-users for an unlawful or immoral purpose;
- you will not engage in unsolicited communications to any End-user;
- End-users may access our products or services via different websites, services, applications, technologies and devices, the underlying technology, functionality and features of which may affect their presentation, appearance and functionality. We do not guarantee how our products or services or any Deliverables will be presented to End-users, or that all features will be accessible by End-users; and
- our products or services may include facilities for End-users to submit certain content (such as photographs, ratings or reviews of businesses and their products and services). We may publish such content in connection with our use of Your Material, or in connection with certain Deliverables. Although we will use reasonable endeavours to moderate such content, we do not endorse any such content, we are not the agent of any End-user, and you shall not hold us liable for any such content.
For example, End-users can rate and review businesses listed on Yellow.co.nz, Finda.co.nz and Menus.co.nz.
16. Contacting us
- For information about our Deliverables, please see our website at ypg.co.nz.
- Unless otherwise specified in the Terms, you may contact us via our Customer Assistance Team:
- by phone within New Zealand on 0800 803 803 during the hours of 8 am to 5:30 pm, Monday to Friday (excluding public holidays);
- by email to email@example.com;
- via the online submission form at help.yellow.co.nz/yellow/contact-us;
- by post to Customer Assistance Team, Yellow, P.O. Box 17157, Greenlane, Auckland 1546; or
- by facsimile to 0800 114 753 within New Zealand.
You may use these methods to contact us with general queries, problems with any Deliverables, disputes, with respect to a proposed sale of your business, or to terminate any Deliverable. Per clause 20.1, if you wish to unsubscribe from receiving commercial electronic messages, you must do so via the electronic facility we specify.
- We may send bills and notices to the last postal address, fax number or email address you have given us, or to any other point of contact that you publicly designate. Any notice sent by mail is deemed delivered 3 days after it is posted, and any notice sent by fax or email is deemed delivered when transmission is successfully completed (if that is before 5 p.m. on a business day or, if not, then on the next business day), unless the sending party receives notice to the contrary during that period.
17. Disputes resolution
- Where you believe we have made a mistake in providing a Deliverable to you, you must notify us within 3 months of the date the applicable Deliverable was first delivered. For all other disputes you must notify us immediately when you become aware of the issue in question. Notice must be given via the contact methods specified in clause 16.2.
- You acknowledge and accept that disputes will be resolved as follows:
- if we determine that we have met our responsibilities to you, we will provide you with a written notice setting out our reasons, and the dispute shall be deemed resolved. You must still pay any invoiced amounts by their due date;
- if we determine that we have made a mistake in respect of any Deliverable, but there are no Charges applicable to that Deliverable, we will use reasonable endeavours to correct the mistake and the dispute shall be deemed resolved;
- if we determine that we have made a mistake in respect of any Deliverable, and we correct the mistake promptly, the dispute shall be deemed resolved and no Charges will be credited; and
- if we determine that we have made any other mistake, you will work with us in good faith to determine the ways in which we can help you. We may, at our election, provide a credit to your Account for an amount we think is appropriate and the dispute shall be deemed resolved. A credit is only available once in respect of any given mistake.
- You will keep the existence and details of any dispute confidential, and not disclose the same, except to your professional advisors upon obtaining a similar undertaking of confidentiality from such advisors. You shall be deemed to have waived your right to seek redress of any dispute if you breach this clause.
- Except with our prior written approval, you will not:
- use any Confidential Information (nor allow it to be used) for any purpose other than to perform your obligations under the Terms; or
- disclose any Confidential Information, except to your employees, officers, agents or professional advisors (on a need to know basis) upon obtaining a similar undertaking of confidentiality from such persons.
- You agree that we may collect information about you and your business. The information may be obtained from you and others, generated when you use our Deliverables, or generated when End-users use our products and services. If you decide not to provide any information that we seek from you, we may not be able to provide Deliverables to you.
- We may collect and use your information to:
- provide you with, and improve, our Deliverables;
- inform you about our Deliverables, including any changes thereof;
- administer our contests, promotions, surveys and other services;
- obtain your feedback or views about our Deliverables;
- respond to any queries, feedback or other correspondence from you;
- gain an understanding of your needs;
- provide data matching, verification and appending services;
- invoice you, process your payments (including by direct debit or credit card) and review payments received into our accounts;
- generally operate our business;
- prevent and detect any misuse of, or fraudulent activities involving, any of our products or services; and
- maintain and develop our business systems and infrastructure, including testing and upgrading of these systems.
- We may share your information:
- as required by law, court order, regulatory authority or the listing rules of any stock exchange;
- to exercise our legal rights, or to defend against legal claims;
- with the public to the extent necessary to provide you with the Deliverables; and
- with our officers, employees, contractors, agents, professional advisors and joint ventures or third parties (such as customers or suppliers) in relation to the uses described in clauses 13.1(a) and 19.2 or elsewhere in the Terms, and to our assignees and/or subcontractors described in clause 24. We take reasonable steps to ensure that any third parties are bound by confidentiality and privacy obligations in relation to the protection of your information.
- Where you provide us with any third party's personal information (including personal information of your Representatives), you warrant and represent that you have collected that personal information in accordance with the Privacy Act 1993, that you are entitled to provide that personal information to us and that we may use and disclose this personal information in connection with providing you with the Deliverables and as set out in the Terms.
- We may collect and use non-personal information to provide our customers or suppliers with marketing or promotional materials regarding our products or services, or to assist our staff in providing tailored sales offerings to our customers.
- Under the Privacy Act 1993, natural persons have rights of access to and correction of personal information that we hold, where such information can readily be retrieved. We reserve the right to require payment of our reasonable costs in relation to such access or correction. To protect your privacy and the privacy of others, we may require you to submit access or correction requests in writing, or take steps to verify your identity.
- You acknowledge and accept that:
- in addition to the uses described in clause 19.2, we may collect personal information from you or about you from third parties, including without limitation, collection and credit reference agencies, for the purposes of conducting credit checks on you and determining your eligibility to open and maintain an Account;
- we may share information about you and your business, including but not limited to your payment history with us, with collection and credit reference agencies for the purposes of carrying out credit checks from time to time as we deem necessary; and
- credit reporters and credit reference agencies may include the credit checks conducted on you, your repayment history and any defaults in payment to us in their databases and share this information with others who wish to conduct credit checks on you.
- You authorise all persons, companies and other entities to provide us with information as we may at any time request about you, including where applicable, your Representatives, in relation to any of the purposes listed in this clause 19 and/or any directly related purposes.
20. Electronic messages
- By approving an Order Form or otherwise using any of our products or services, you consent to receiving commercial electronic messages from us or on our behalf, or from our related companies and/or certain third parties. You may unsubscribe from, or re-subscribe to, such commercial electronic messages at any time, via the electronic facility that we specify. You acknowledge that such facility is necessary for us to keep an appropriate record of your subscription status.
- We may always send you non-commercial electronic messages, including but not limited to those containing billing information or information that relates to any Deliverable you have ordered.
21. Your indemnity
- You warrant and represent that you will comply with all applicable laws, codes of conduct and industry standards when exercising your rights or complying with your obligations under any Order Form or the Terms.
- You indemnify and hold us harmless against all actions, proceedings, losses, liabilities, damages, claims, demands, costs and expenses (including legal costs on a solicitor and client basis) suffered or incurred by us:
- resulting from any breach or threatened breach of your warranties or obligations under the Terms;
- in relation to any actual or threatened claim that any of Your Material infringes the rights of any third party;
- resulting from our provision of any Deliverable to you; and/or
- resulting from you not meeting your legal responsibilities to us or anyone else, including, for the avoidance of doubt, to any End-user.
22. Our exclusion of warranties
- All Deliverables are provided on an "as is" and “as available” basis and, to the extent permitted by law, we exclude all representations or warranties of any kind, including as to merchantability or fitness for any particular purpose, and we do not warrant that any Deliverable will be complete, accurate, free from transcription, transmission or other errors, or that it will be continuously available or fault-free. For the avoidance of doubt:
- where we provide you with any estimations or projected returns from a Deliverable, these are indicative only and we do not guarantee their accuracy. We will not be liable in the event that actual returns do not match projected returns; and
- we do not guarantee any particular placement of Your Material in any of our products or services.
23. Limitation of our liability
- Notwithstanding anything to the contrary in the Terms, we shall not be liable to you (under the law of contract, tort, equity or otherwise) for any damages arising out of or in connection with any Deliverable, Order Form, other product or service, or otherwise, whether direct or indirect (meaning not arising in the ordinary course as a direct, natural or probable consequence of the act or omission complained of), consequential or special, and regardless of the cause of such damages or whether we had been advised of the possibility of such damage (Losses). Further, to the extent permitted by law, sections 6 to 10 of the Contractual Remedies Act 1979 are expressly excluded. These exclusions also apply for the benefit of our related companies, and our Representatives.
- To the extent that the above exclusions are declared to be illegal, invalid or unenforceable, then to the maximum extent allowed by law, our liability to you for any Losses will be limited in the aggregate to one month’s worth of our Charges for the Deliverable(s), Order Form(s), or other product(s) or service(s) to which the Losses relate.
- Without limiting the foregoing, you waive any liability that we may have to you (whether under the law of contract, tort, equity or otherwise):
- where you do not notify us of a mistake or dispute within the timeframes specified in clause 17.1, or you contributed to that mistake or dispute; or
- for any damages arising out of or in connection with any Deliverable that we have not provided to you; or
- for loss of profit, business or opportunity, or wasted expenditure; or
- caused by loss or corruption of data.
- We may assign all or any part of our rights or obligations, or subcontract all or any part of our obligations, under the Terms to any of our related companies or any third party, without notice to you.
- You may assign all, but not part of, your rights and obligations under the Terms provided we have given you our prior written consent. For the avoidance of doubt, this clause applies to a sale of your business (whether by share or asset sale), or a change in the effective control or management of your business. We may withhold, delay or condition our consent at our absolute discretion, but in any event our consent shall be subject to the proposed assignee providing us with:
- their written agreement to fully perform and be bound by the Terms, in such form as we may require; andfor any damages arising out of or in connection with any Deliverable that we have not provided to you; or
- sufficient evidence, to be determined in our sole opinion, that the assignee is able to pay any Charges as they become due and payable.
- Any assignment in breach of this clause shall be ineffective, and you must pay all applicable Charges as they become due and payable and/or we may require you to immediately pay all Charges in one lump sum.
If you are considering selling your business, please contact us. Please be aware that you will remain liable for all Charges unless both you and the purchaser of your business complete all paperwork that we may require, and we subsequently consent to the transfer of the Charges. We have no obligation whatsoever to provide our consent, and in any event, will only do so if we are satisfied that the purchaser can pay the Charges as they fall due.
25. Your covenants
- You undertake to us that you will not, during the term of any Deliverable, or for a period of six months following termination or expiry of the term of any Deliverable, solicit, engage or employ any of our employees, contractors or consultants with whom you have had dealings, nor encourage or persuade any such employee, contractor or consultant to terminate their contract or agreement with us. You acknowledge that the restrictions in this clause are reasonable in the circumstances to protect us. If any of the restrictions contained in this clause are judged to go beyond what is reasonable in the circumstances and necessary to protect us, but would be judged reasonable if any activity were deleted or the period would be reduced, then the restrictions apply with that activity deleted or that period reduced by the minimum amount necessary.
- You acknowledge that, except for the publication of residential listing information, our Deliverables are not intended for consumers, as defined in the Consumer Guarantees Act 1993, or for personal, domestic, or household use or consumption. You therefore acknowledge that, where you are acquiring Deliverables for the purposes of a business, the provisions of that Act do not apply, including, for the avoidance of doubt, any guarantee as to delivery.
- No waiver of any breach of the Terms will be deemed to be a waiver of any other or subsequent breach. The failure by us to enforce any provisions of the Terms at any time will not be interpreted as a waiver of that provision.
- The Terms will be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the Disputes Tribunal and/or the Courts of Auckland, New Zealand.