TERMS & CONDITIONS

(Last Updated: August 20, 2009)

The following terms and conditions govern your use of services provided by www.DineSmart.co.nz (the "Site") operated by ID Limited (the "Company").

BY CLICKING ON THE "I ACCEPT" BUTTON OR BY ACCESSING, BROWSING, OR OTHERWISE USING THE SITE YOU AGREE TO BE BOUND BY THESE TERMS AND ANY OF THE RELATED POLICIES OR GUIDELINES, INCLUDING ANY SUBSEQUENT CHANGES OR MODIFICATIONS TO THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE OR ANY CHANGES, DO NOT ACCESS OR OTHERWISE CONTINUE TO USE THE SITE

1:     Introduction

In these Conditions and in any Contract to which these Conditions apply the following words shall have the following meanings:

1. "Company" means ID Limited;
2. "Site" means www.dinesmart.co.nz
3. "Customer" means the purchaser of Products and/or Services from the Company;
4. "Contract" means a binding agreement following acceptance by the Customer of the company's quotation; and you must be at least 18 years old. In addition, you may not use the Services or accept the Terms of Service if
   1. you are not of legal age to form a binding contract, or
   2. you are prohibited by law from receiving or using the Services. By accessing or using the Site, you represent and warrant that you have the right, authority, and capacity to enter into the Terms of Service and to abide by all of the terms and conditions set forth herein. If you access or use the Site on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to the Terms of Service.
5. "Products" means the production services sold by the Company to the Customer under a Contract including but not limited to creative, production, programming and other services.
6. "Services" means the services supplied by the Company to the Customer under a Contract and the services and functionality made available to Users on the Site.
7. "Content" means text, images, photographs, graphics, audio, and videos.
8. "Member Content" means Content that you submit, post, or transmit to, or using, the Site, including but not limited to the ratings, reviews, compliments, information that you display as part of your account profile, invitations, or other commentary that you may submit, post, or transmit to, or using, the Site. Your Member Content does not include personally identifiable information that you submit when creating an account on the Site (which personal information is subject to our Privacy Policy).
9. "DineSmart Content" means Content that is created by The Company and made available on The Site.
10. "Third Party Content" means Content that is made available on the Site by parties other than DineSmart or the Users, including but not limited to data providers who license data to DineSmart for use on the Site.
11. "Site Content" means all of the Content that is made available on the Site, including Your Member Content, User Content, Third Party Content, and DineSmart Content.
12. A "User" is anyone who accesses, browses, crawls, scrapes, or in any way uses the Site, including but not limited to you and others who may read or write reviews about restaurants listed on the Site.
13. A "Member" is anyone who as registered and created a Personal Account as per 2.b.i, or a Business Account as per 2.b.ii
14. An "Advertisement" means all Advertisements and notices ("Advertisements") from any person ("Advertiser") for publication on The Site. This will apply to:
    1. online banner and display advertising on The Site ("Banner Advertising");
    2. online advertising on The Site other than Banner Advertising ("Online Advertising"); and
    3. all other advertising services provided to the Advertiser by The Company in relation to Advertisements ("Other Advertising"), (together referred to as "Advertising").
15. "Advertiser" means where any company or individual who places an Advertisement on The Site. Where Advertising has been placed with The Company by an advertising agency (subject to clause 18n), includes that agency.
    

2:     Terms of Use

The Company reserves the right to update and modify this Terms of Use at any time without giving you prior notice and it is your responsibility to make sure that you are familiar with the up to date Terms of Use.

1. New features that may be added to The Site shall be subject to these Terms of Use. Should you continue to use the web site after any such modifications have been made, this shall constitute your agreement to such modifications.
2. The Company is not liable to you or any other person for anything in connection with any aspect of The Site or your use of it. In particular, The Company is not liable to you or any other person on any basis for any loss or damage caused to you directly or indirectly by use of The Site.
3. You use The Company's services and The Site entirely at your risk. The Company takes no responsibility for any system unavailability, or for any loss or damage that is incurred as a result of the site or services being unavailable. Further, The Company assumes no responsibility for the corruption of any data or information held by The Company.
4. The Company makes no warranties regarding
   1. your ability to use the Service,
   2. your satisfaction with the Service,
   3. that the Service will be available at all times, uninterrupted, and error-free
   4. that bugs or errors in the Service will be corrected.
5. The Company provides no warranty or guarantee that The Site or services will be error free or reliable.
6. The Company provides no warranty or guarantee for the accuracy of information provided by The Company.
7. Users of The Company business accounts are solely responsible for the content of their listings.
8. The failure of The Company to exercise any right provided for herein shall not be deemed a waiver of any right hereunder. The Terms of Use set forth the entire understanding between you and The Company as to the Service and supercedes any prior agreements between you and The Company (including, but not limited to, prior versions of the Terms of Use).
9. This Terms of Use constitutes the entire agreement, between the parties, relating to the subject matter of these Terms of Use.
10. No agency, partnership, joint venture, or employment is created as a result of the Terms of Service, and you do not have any authority of any kind to bind The Company in any respect whatsoever.
11. The Company may provide you with notices, including those regarding changes to the Terms of Service by email, regular mail or postings on the Site.
12. The Terms of Service contain the entire agreement between you and The Company regarding the use of the Site, and supersede any prior agreement between you and The Company on such subject matter.
13. The failure of The Company to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
14. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable.
15. The Terms of Service are not assignable, transferable or sublicensable by you except with The Company's prior written consent, but may be assigned or transferred by The Company without restriction. Any assignment attempted to be made in violation of the Terms of Service shall be void.
16. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect
17. Your use of the Service, including any content, information or functionality contained within it, is provided "as is" and "as available" with no representations or warranties of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You assume total responsibility and risk for your use of this Service.
18. The Company its affiliates and its sponsors are neither responsible nor liable for any direct, indirect, incidental, consequential, special, exemplary, punitive or other damages arising out of or relating in any way to your use of the Service. Your sole remedy for dissatisfaction with the Service is to stop using the Service.

3:     Restrictions for Users

You agree that you will not (and will not permit others to):

1. use the Site to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with a User's enjoyment of the Site;
2. use the Site to transmit or post spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
3. use the Site for promotional or commercial purposes, unless expressly allowed to do so by The Company ;
4. use the Site in a manner that creates the appearance of a conflict of interest, including trading reviews with other business owners and writing or soliciting shill reviews;
5. use the Site to promote bigotry or discrimination;
6. use the Site to violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
7. use the Site to transmit or post illegal materials, including material that is pornographic or obscene;
8. use the Site in connection with the solicitation of personal information from minors;
9. use the Site in violation of the Terms of Service or any applicable local, state, national or international law;
10. modify, adapt, appropriate, reproduce, distribute, translate, create derivative works of, publicly display, sell, trade, or in any way exploit the Site, the Services, or any of the Site Content (other than Member Content), except as expressly authorized by The Company ;
11. reverse engineer any portion of the Site;
12. remove any copyright, trademark or other proprietary rights notices contained on the Site or in any Site Content;
13. collect or record information about Users;
14. use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any Site Content or information from the Site;
15. access, retrieve or index any portion of the Site for purposes of constructing or populating a searchable database of business reviews;
16. reformat or frame any portion of the Site;
17. take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on The Company's technology infrastructure; or
18. attempt to gain unauthorized access to the Site, User accounts, computer systems or networks connected to the Site through hacking, password mining or any other means; use the Site or any Site Content to transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; use any device, software or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site; use the Site to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Site or any Services or Site Content; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.

4:     Availability of Service

The Company reserves the right (but is under no obligation) to modify, update, or discontinue the Site or any of the Services at its sole discretion, at any time, for any or no reason, and without notice or liability.

5:     Changes to the Terms of Service or the Site

The Terms of Service may be modified by The Company at any time. When these changes are made, The Company will notify you by making a new copy of the Terms of Service available on this. Any such modification will be effective upon The Company's posting of new Terms of Service. Your continued use of the Site after any posted modification to the Terms of Service indicates your acceptance of the modification. Unless expressly stated otherwise by The Company , any new Services or Site Content implemented after your initial access to the Site shall be subject to the Terms of Service.

6:     Unauthorised Access

The Company reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorised access to or use of the Site, including, but not limited to, technological barriers, IP mapping, and contacting your Internet Service Provider (ISP) regarding such unauthorized use.

7:     Investigations

The Company , in its sole discretion, may (but has no obligation to) monitor or review the Services and Site Content at any time. If The Company becomes aware of any possible violations by Users of the Terms of Service or any law or third party right, The Company reserves the right to investigate such violations. If, as a result of such investigation, The Company believes that criminal activity has occurred, The Company reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable law, The Company is entitled to disclose any information or Site Content, including Member Content, in The Company's possession in connection with your use of the Services to

1. comply with applicable law, legal process or governmental request,
2. enforce the Terms of Service,
3. respond to any claims that Member Content violates the Terms of Service or any law or third party right,
4. respond to User requests for customer services, or
5. protect the rights, property or personal safety of The Company , its Users or the public, and law enforcement or other government officials, as The Company in its sole discretion believes to be necessary or appropriate.

8:     Feedback

1. Dissatisfaction. If you are dissatisfied with the Site, please let us know by providing feedback to the customer support team through our contacts page here. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with
   1. the Site,
   2. the Terms of Service,
   3. any policy or practice of The Company in operating the Site, or
   4. any content or information transmitted through the Site, is to terminate the Terms of Service and your account.
2. Suggestions and Improvements. By submitting ideas, suggestions, documents and/or proposals ("Feedback") to The Company through its suggestion, feedback, forum or similar web pages, you acknowledge and agree that
   1. your Feedback does not contain the confidential or proprietary information of third parties,
   2. The Company is not under any obligation of confidentiality, express or implied, with respect to the Feedback,
   3. The Company , in its discretion, shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide,
   4. The Company may have something similar to the Feedback already under consideration or in development,
   5. the Feedback automatically becomes The Company's property without any obligation to you, and
   6. you are not entitled to any compensation or reimbursement of any kind from The Company under any circumstances.

9:     Third Parties

1. The Site Content may include links to other websites (the "Third Party Sites"). The Company does not control or endorse any Third Party Site, and you agree that The Company is not responsible for the availability or contents of any Third Party Site.
2. The Site's mapping feature is powered by Google Inc. Your use of the mapping feature is governed by Google Inc.'s terms of use located at http://maps.google.com/help/terms_maps.html (or such other URL as may be updated by Google Inc.).
3. Some images on The Site are provided from free sources including http://www.dreamstime.com/free-photos

10:     Content Feeds

1. The Company makes some of the Site Content (the "Feed Content") available via Real Simple Syndication and Atom feeds (the "Feeds"). You may access and use the Feeds in order to display Feed Content on your personal computer, website, or blog, provided that
   1. your use of the Feeds is for personal, non-commercial purposes only,
   2. your display of the Feed Content links back to the relevant pages on the Site and attributes The Company as the source of the Feed Content,
   3. your use or display of the Feed Content does not suggest that The Company promotes or endorses any third party causes, ideas, web sites, products or services,
   4. you do not redistribute the Feed Content, and
   5. your use of the Feeds does not overburden The Company's systems.
2. The Company reserves all rights in the Feed Content and may terminate the Feeds at any time. Please contact our business development team through our contacts page to inquire about other possible uses of the Feeds.

11:     Copyright and Ownership

1. The Company or its suppliers own the intellectual property rights to any and all protectable components of the Service, including but not limited to the name of the Service, artwork and end-user interface elements contained within the Service, many of the individual features, and the related documentation. You agree not to copy, modify, adapt, resell, duplicate, reproduce, distribute, reverse engineer, decompile, dissemble any aspect of the Service which The Company or its suppliers own.
2. You agree not resell, duplicate or publicly display any content from The Sitewithout prior written permission from The Company.
3. The Company claims no intellectual property rights over the Content you upload or provide to the Service. However, by using the Service to upload Content, you agree that others may view and share your Member Content.

12:     Prices

1. Unless otherwise specified, all prices quoted are for Products, Services and/or Advertising only. All charges for freight, insurance, duties and taxes are additional and payable by the Customer.
2. Prices agreed at time the Contract is made shall remain firm.
3. The Company reserves the right to correct any typographical or manifest errors contained in the prices or specifications in the Contract.

13:     Acceptance and Approval

Subject to these Conditions shall apply once the Customer has placed an order for the purchase of the supply of Products, Services and/or Advertising. Placing an order shall be effected by either:

1. the Customer signing and returning the quotation to the Company; and
2. paying the deposit (if any) referred to in the quotation; and/or
3. communicating its order to the Company in a manner otherwise than in accordance with (a) above and paying the deposit (if any) referred to in the quotation.

14:     Payment

1. Payment shall be made by the Customer for all Advertising, Products and Services in accordance with the terms of the Contract but in the event that the Contract does not stipulate terms of payment, then no later than 7 days following the date of invoice. Any monies for which an account or invoice has been furnished to the Customer and which remains unpaid by the due date, shall bear interest in the amount and manner set out in clause 23b Such interest shall be payable upon demand and shall accrue on a daily basis from the due date of payment. The Company reserves the right to require the Customer to pay for Products and/or Services prior to their supply by the Company.
2. Time for payment shall be of the essence of the Contract and, without prejudice to any other rights of the Company, if the Customer fails to pay any sum payable pursuant to any Contract when due:
   1. the Company may treat the Contract as repudiated by the Customer or may until payment in full is made, suspend delivery of Products which are the subject of the Contract and any Products the subject of any other contract with the Company without incurring any liability whatsoever to the Company in respect thereof;
   2. the Customer shall (if so required by the Company) pay interest to the Company in the amount and manner set out in clause 23b
3. The Customer shall not be entitled to make any deduction from the price of the Products in respect of any set-off or counterclaim.

15:     Members and Advertisers

1. MembershipTo access or use some of the Services, you may be required to register on the Site and become a member by creating an account and providing information about yourself to The Company . You are solely responsible for maintaining the confidentiality of any passwords that you create in connection with the Site, and are solely responsible for all activities that occur in connection with your account. You agree to notify The Company immediately of any unauthorized use of your account. The Company reserves the right to close your account at any time for any or no reason. There are two types of member accounts:
   
   1. A "Personal Account" is an account for your personal, non-commercial use only, and may be used (among other things) to submit, post, and transmit reviews, ratings, messages, compliments, invitations, commentary, photographs, and other types of User Content as allowed by the functionality of the personal account. In creating or updating a Personal Account, we ask that you provide complete and accurate information about yourself in order to bolster your credibility as a contributor to the Site, though you may instead choose not to provide information that makes you personally identifiable. Notwithstanding the foregoing, you may not impersonate someone else, provide an email address that is not your own, or create multiple Personal Accounts.
      
   2. A "Business Account" is an account for use on the Site as a representative of a business that is listed on the Site. In creating or updating a Business Account, you must be an authorized representative of the business in question, and you must provide complete and accurate information about yourself and the business you represent. You may not provide an email address that is not your own or create multiple Business Accounts for the same business.
      
2. Member Content
   1. Responsibility for Your Member Content You are solely responsible for Your Member Content. You assume all risks associated with use of Your Member Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure by you of information in Your Member Content that makes you personally identifiable. You hereby affirm, represent, and warrant that you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize The Company to use, Your Member Content as described herein. You may not imply that Your Member Content is in any way sponsored or endorsed by The Company .
      1. Because you alone are responsible for Your Member Content (and not The Company ), you may expose yourself to liability if, for example, Your Member Content violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
   2. Use of Your Member Content
      1. The Company makes no representations that it will publish or otherwise use Your Member Content in any way. DineSmart may or may not use Your Member Content in its sole discretion. You understand that The Company does not guarantee any confidentiality with respect to Your Member Content. The Company has no obligation to store or provide you with copies of Your Member Content.
      2. The Company reserves the right (but has no obligation) to remove or suppress or modify Your Member Content from the Site at its sole discretion for any or no reason and without notice or liability of any kind, including without limitation, the suppression or removal of User Content that The Company deems untrustworthy or in violation of the Terms of Service or guidelines for reviews, photos, or talk threads (as posted at http://www.DineSmart.co.nz/faq.php).
      3. The Company and its licensees may display advertisements and other information adjacent to or included with Your Member Content on the Site and any Downstream Distributions. You agree that you are not entitled to any compensation for any such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
   3. Copyright Dispute Policy
      1. The Company has adopted the following policies and procedures toward copyright infringement in accordance with the Copyright Act 1994. It is The Company's policy to (i) respond to notices of alleged copyright infringement that comply with the Copyright Act 1994; and (ii) terminate the accounts of those who The Company determines to be "repeat infringers".
      2. Procedure for Reporting Copyright Infringements. If you are a copyright owner or agent thereof, and believe that your copyright is being infringed in connection with the Site, please send a written notification to the The Company detailing the alleged infringement. Your written notification must include:
         1. Identification of the copyrighted work that you claim has been infringed;
         2. Identification of the content on the Site that allegedly infringes upon the copyrighted work at issue, and information reasonably sufficient to permit The Company to locate such content on the Site;
         3. A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
         4. A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
         5. Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).

         Please note that you may be subject to liability if you materially misrepresent that content on the Site infringes your copyright.

3. Membership Terms i)
   1. You must provide your full legal name, a valid email address, and any other required information to complete the sign-up process.
   2. You are responsible for maintaining the privacy and security of your account. The Company will not be held liable for any damage or loss that may result from your failure to protect your login information, including your password.
   3. You agree to keep your membership information, including email address, residential address, and telephone number, current at all times.
   4. You may not use the service to store, host, or send unsolicited email (spam) or SMS messages.
   5. You understand that the Service can be used for transmission of your Member Content, and that during processing, your Member Content, including restaurant menus, and personal messages, may be transferred unencrypted over the Internet.
   6. You may not use the service to transmit any viruses, worms, or malicious content.
   7. If you do not comply with any part of the Terms of Use, The Company may, without notice or warning, remove your listing, issue you a warning or suspending or terminating your membership.
   8. Subject to the restrictions set forth herein, The Company grants you permission to access and use the Services, including but not limited to the ability to:
      1. search for local business and services,
      2. read, write, and share reviews about restaurants,
      3. announce local events,
      4. post messages on talk boards,
      5. send messages to other Users, and
      6. invite people you know to register with The Company.

      More broadly speaking, the Site allows Users to submit, post, and transmit reviews, ratings, messages, invitations, commentary, photographs, and other types of User Content.

   9. You will be exposed to User Content and Third Party Content. You understand that User Content and Third Party Content may be offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. The Company does not endorse User Content or Third Party Content, including but not limited to the opinions, recommendations, or advice expressed therein.

   10. You hereby grant The Company and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, fully sublicensable, and fully transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, incorporate into other works, display, perform, and otherwise exploit Your Member Content for any purpose, including without limitation promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels now known or later developed ("Downstream Distributions") for ten (10) years.
   11. You also hereby grant Users and users of any Downstream Distributions a non-exclusive license to access, use, reproduce, distribute, display, and perform Your Member Content for their personal, noncommercial use in connection with their use of the Site and any Downstream Distributions, as expressly permitted by the functionality of the Site and any applicable Downstream Distribution, and the Terms of Service and terms of use of any applicable Downstream Distribution. In addition, you grant The Company , its affiliates, and their respective sublicensees the right to associate and display your account name with Your Member Content.
   12. The Company reserves the right (but is under no obligation) to terminate or suspend your account or your ability to use the Site, in whole or in part, at The Company's sole discretion, for any or no reason, and without notice or liability of any kind. Termination of your account may include:
       1. removal of access to all offerings within the Services;
       2. deletion of your password and all related information, files and materials associated with or inside your account (or any part thereof), including Your Member Content; and
       3. barring of further use of the Services.

       You agree that The Company shall not be liable to you or any third party for any termination of your account, or access to the Site, Services and Materials, including Your Member Content.

4. Advertisers' Terms
   1. Submission of Advertising:
      If submitting any Advertisements, the Advertiser must comply with the submission requirements and deadlines set out in the The Company's relevant Publication, or on the The Company's relevant website, or otherwise notified to the Advertiser by The Company. The Company will not be obliged to accept any Advertisement for publication which has not been submitted in this manner.
   2. Publication:
      1. The Company will use its reasonable endeavours to publish Advertisements submitted by Advertisers in the format submitted by the Advertiser and in accordance with the placement instructions of the Advertiser.
      2. The Company will publish classified Advertisements under the classification heading that it reasonably believes is most appropriate.
      3. Without limiting the above, if The Company, in its sole discretion, believes that the placement instructions of the Advertiser for an Advertisement are inappropriate for any reason, The Company may offer the Advertiser alternate placements. If the Advertiser does not accept the alternate placements, clause 15d.iv.5 will apply.
   3. Cancellation:
      The cancellation by the Advertiser of any Banner Advertising or Online Advertising for which a booking has been completed in accordance with clause 15d.iv.5, must be in writing. Upon cancellation, the Advertiser agrees to pay The Company the following cancellation fees:
      1. if cancellation occurs 28 days or less but more than 10 working days before the Advertisement goes live, a sum equivalent to 50% of the total booking cost;
      2. if cancellation occurs 10 days or less but more than 5 working days before the Advertisement goes live, a sum equivalent to 75% of the total booking cost;
      3. if cancellation occurs 5 working days or less before the Advertisement goes live, a sum equivalent to 100% of the total booking cost; and
      4. if cancellation occurs at any time after the Advertisement goes live, a sum equivalent to 100% of the total booking cost.
   4. Advertiser Undertakings:
      The Advertiser undertakes and warrants to The Company that no Advertisement will:
      1. or will be likely to be misleading or deceptive or otherwise infringe the Fair Trading Act 1986;
      2. infringe copyright, trade mark or other intellectual or moral property rights of any person;
      3. contain material that is obscene, offensive, defamatory, or otherwise unsuitable for publication;
      4. breach or infringe any laws relating to therapeutic goods, financial services, anti-discrimination, political publication, publication of court or tribunal materials, or any other legislation, regulation, rule or ordinance; or
      5. give rise to any liability on The Company, cause The Company to be in breach of any law by virtue of publishing the Advertisement, or result in a claim being made against The Company.
   5. The Company's Rights:
      The Company may in its absolute discretion:
      1. without notice to the Customer alter or abbreviate any Advertisement or insert the word "Advertisement" above or below any Advertisement which in The Company's opinion resembles editorial matter;
      2. monitor incoming calls for training purposes;
      3. at any time and without notice to the Advertiser cancel, reject or refuse to publish or continue publishing any Advertisement without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertisement, provided this right will not be unreasonably exercised;
      4. re-publish an Advertisement in The Company's other publications and media (for example The Company may publish Online Advertising in its newspapers, or vice versa), which subject to clause 15d.iv.5 will be without further cost to the Advertiser; or
      5. in relation to an Advertisement submitted to The Company for publication in print, also publish each listing contained in the Advertisement on The Company's relevant website as Online Advertising unless the Advertiser advises The Company at the time of submission that it does not wish to have the Advertisement published on the website. The Advertiser may be required to pay all related website publication charges (if any); and
      6. the Advertiser agrees that any personal information about internet users that is obtained by The Company as a result of internet users accessing The Company's content pages will only be made available to the Advertiser if to do so would not breach any of The Company's obligations to its Advertisers which are set out in any other agreement.
   6. Indemnity:
      By submitting or authorising submission of an Advertisement for publication or Advertising, the Advertiser indemnifies The Company (and its employees, officers and agents) against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by The Company (and/or its employees, officers and agents) in connection with the Advertisement or any Advertising.
   7. No Guarantee or Warranties:
      1. The Company does not guarantee that the Advertiser's product featured in an Advertisement will be the only product of that type featured in Advertisements on any one page. The Company will not be responsible or liable to the Advertiser in any way if the Advertiser's request cannot be granted, or the product featured in the Advertiser's Advertisement is not the only product of that type featured in Advertisements on any one page.
      2. Online Advertising will be published via internet accessible Advertisement serving software ("Software"). The Company makes no warranties of any kind, whether express or implied of the fitness of this Software for a particular purpose. The Company shall not be liable for any loss, damage, or expense incurred in connection with The Company's use of the Software, including without limitation, for any technical malfunction, computer error or loss of data or other injury, damage or disruption of any kind other than as a result of The Company's gross negligence or fraud.
   8. Payment: The Advertiser must pay The Company for Advertisements:
      1. in accordance with the rates set out in the relevant rate cards (which may be varied at any time by The Company without notice) unless otherwise agreed in writing by The Company;
      2. by prepayment, if so required by The Company;
      3. if payment is agreed by The Company to be on account, on the credit terms supplied by The Company to the Advertiser; and
      4. on the basis of booked space or advertising material (whichever is larger) provided that if the actual space is reduced, The Company will not be liable to the Advertiser for any credit for such reduction.
   9. Production Services (Products): If the Advertiser requires any creative, production, programming, or other services ("Products") from The Company, the Advertiser must pay The Company additional charges for such services, as notified in writing to the Advertiser by The Company at the time (or shortly after) the Advertiser requests the Product Services. The Company may charge the Advertiser for these Product Services on a case by case basis.
   10. Liablilty:
       1. Except as expressly provided in these Terms and Conditions, The Company excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. Where The Company is liable to a Advertiser for a breach of implied warranty or condition that may not be excluded, The Company's liability will, to the extent permitted by law, be limited to any one or more of the following (at The Company's option):
          1. in the case of the supply of goods under these Terms and Conditions (if any),:
             1. the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
             2. the repair of the goods or the payment of the cost of having the goods repaired; or
          2. in the case of the supply of services under these Terms and Conditions:
             1. the supplying of the services again; or
             2. the payment of the cost of having the services supplied again.
       2. In no circumstances will The Company (its employees, officers or agents) be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Advertiser or any other person, even if such loss or damages are foreseeable and whether or not The Company had been advised of the possibility thereof.
       3. The liability of The Company (including The Company's officers, employees and agents) to the Advertiser, or any other person, for any and all loss or damage arising in relation to these Terms and Conditions and/or Advertisements (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, mis-classifications, early, late or non-insertion of Advertisements, or loss or delay in the delivery of replies) will be limited to an amount equal to the cost of the space of the relevant Advertisement, provided that if the Advertiser does not advise The Company of any error within five days of publication of the Advertisement The Company will have no liability whatsoever.
       4. The Company will not be liable to the Advertiser or any other person for any loss of whatever kind suffered as a result of Other Advertising, or an Advertisement not being available for publication or not published where such loss arises from any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of The Company's operation or network, any technical malfunction, computer error or loss of data will be deemed to be an event beyond The Company's control. Should such an event occur, The Company will take responsibility to resurrect sites and links, and the Advertiser has the right to cancel the particular contract for the affected advertising at no penalty if such an occurrence results in the site being down for more than 7 working days (working days being Monday to Friday inclusive, but excluding statutory holidays). In addition, The Company will not be liable to the Advertiser for any error or inaccuracy in Advertisements placed by telephone.
       5. The guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where the Advertiser acquires or holds itself out as acquiring goods or services from The Company for the purposes of a business. The provisions of that Act do not apply to the goods or services provided under this Agreement or under any other written agreement the Advertiser may have with The Company.
   11. Return of Advertising Material: If the Advertiser requests the return of any material submitted to The Company in relation to Advertising ("Advertising Material"), the Advertiser must collect Advertising Material submitted to The Company immediately after publication. The Company will endeavour to take reasonable care of Advertising Material in its custody and control, but will not be responsible for any loss or damage to Advertising Material (even if caused by The Company's (its employees', officers' or agents') negligence).
   12. No Waiver: If at any time The Company does not enforce any of these terms and conditions or grants the Advertiser time or other indulgence, The Company shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
   13. Assignment:
       The Advertiser may not: (a) assign any of its rights under any agreement or any part of an agreement to which these Terms & Conditions apply (including the rights to advertising space allocated in accordance with such an agreement) to any third party; or (b) place Advertisements (whether directly or indirectly) on behalf of third party advertiser(s) (whether as an agent or otherwise), except on terms previously agreed with The Company. Advertisements are placed by a Advertiser on behalf of a third party advertiser where, for example (but without limitation), the Advertisement promotes or otherwise notifies readers as to the goods or services of the third party advertiser rather than the Advertiser.

16:     Ownership of Production Services (Products)

1. Until payment in full of all indebtedness to the Company in relation to the sale of supply of Products and/or Services and/or Advertising under all Contracts, the Company and the Customer agree that:
   1. the title to the final Products & Services supplied remains with the Company;
   2. copyright in the Products & Services supplied remains with the Company;
   3. the Customer hereby irrevocably gives the Company, its agents and servants, license upon giving reasonable notice to enter on and into premises occupied by the Customer to search for and remove any of the Products supplied without in any way being liable to the Customer or any person claiming through the Customer;
   4. if the Company exercises its right to reclaim the Products & Services it shall be entitled to dispose of them for its own benefit and the Customer shall indemnify the Company for:
      1. any loss in price incurred by it on realisation against the price at which such Products & Services were contracted to be bought by the Customer;
      2. any costs incurred by the Company in exercise of its right to reclaim the Products whether relating to the repossession, storage or resale of the Products & Services (including legal costs as between solicitors and own client);
   5. nothing in this clause shall be construed as permitting the Customer to return the Products & Services or any part of it for any reason.
2. Notwithstanding clause 5a and payment in full by the Customer, the Company shall at all times retain all rights, title and interest in the following:
   1. All copyright contained in any application software, source code and/or library code, and pre-existing templates and data contained in any product sold to the Customer;
   2. All copyright contained in any field film, photographic and digital material produced by the Company in the process of making any video, film or image Product for the Customer, which is not utilised in the final Product;
   3. All copyright and ownership contained in all digital design files and/or digital file elements contained in any digital design file and/or digital file sold to the customer;
   4. All moral rights in respect to design, video, film and images created by the Company in relation to sale of final products.
3. In respect of any application software, source and/or library code, templates and data referred to in clause 5b(i)above, the Company shall grant the Customer a non-exclusive licence to use the software code, templates and data.
4. Notwithstanding clause 5c and payment in full by the customer, the company shall, at all times, retain all rights, title and interest in the digital files and digital file elements that constitute the final digital file supplied to the customer unless agreed to in writing prior to the commencement of the job.
5. The Customer acknowledges that the Company may maintain from time to time digital files of design and artwork undertaken on the Customers behalf. The property in such digital files shall remain the property of the Company (unless otherwise agreed). In the event that the Customer requests a copy of the digital file, the Company may at its discretion provide a "locked" or "protected" file only.

17:     Personal Properties and Securities Act 1999

1. The Customer agrees to sign all documents, give all authorities and do all things necessary to allow registration and perfection of the Company's security interest in the in the form of the reservation of title clause contained in Clause 6, under the Personal Property Securities Act 1999 ("Act").
2. The buyer waives its right to receive a copy of a verification statement under Section 148 of the Act.
3. The parties agree to contract out of Section 114(1)(a) of the Act and the debtor rights referred to in 107(2) of the Act.

18:     Consumer Guarantees Act 1993

The Customer acknowledges that in the event the products and/or services are being purchased for business purposes, the implied guarantees under the Consumer Guarantees Act 1993 do not apply pursuant to Section 43 of that Act.

19:     Indemnity

The Customer shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, claims for consequential loss (including loss of profits) ("liabilities") which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the production, supply or use of the Products or Services. Without limiting the generality of the foregoing, the Customer shall keep the Company indemnified against all such liabilities incurred as a result of the following:

1. any misrepresentation or breach of the Fair Trading Act 1986 by the customer;
2. any other breach by the Customer of any other New Zealand legislation regulating or relating to the customer's products and/or services, or advertising material supplied by the Customer to the Company;
3. any fine or penalty imposed by the Broadcasting Standards Authority on the Company or fine or penalty incurred by the Company as a result of a breach of the Advertising Code.
4. any infringement of third party intellectual property rights.

20:     Default

1. In the event that:
   1. the amounts payable by the Customer to the Company are overdue, or the Customer fails to meet any other obligation to the Company, under this or any other Contract or agreement or in the Company's opinion the Customer is likely to be unable to meet its payment or other obligations to the Company; or
   2. the Customer becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management; or
   3. the Customer no longer carries on business or threatens to cease carrying on business; or
   4. the ownership or effective control of the Customer is transferred or the nature of the Customer's business is materially altered;

   then

   1. the Company shall be entitled to cancel all or any part of any Contract or Contracts with the Customer which remains unperformed, in addition to and without prejudice to its other remedies; and
   2. the Customer irrevocably gives the Company and its agents and servants, without prejudice to any other right it has at law or in equity, leave and licence to enter on and into any premises or property occupied by the Customer or any property on which the Products are stored or held without notice, in order to inspect, search for and remove the Products supplied and the Company shall not be liable to the Customer or any third party for any damage of any kind whatsoever which may result from the exercise of its rights under this clause; and
   3. all amounts outstanding under this Contract or any other contract shall, whether or not due for payment, immediately become due and payable; and
   4. the Company shall be entitled to re-sell the Products on commercially reasonable terms and apply the proceeds derived in or towards payment of the contract price and other monies owing pursuant to this Contract and all costs and expenses of or incurred by the Company as a result of and incidental to any such action shall be payable to the Company by the Customer upon demand including without any limitation of the aforementioned any loss in price incurred by the Company on realisation against the price at which the products were contracted to be bought by the Customer.
2. Without prejudice to any other remedies of the Company at law or under these Conditions, the Customer shall at the Company's discretion pay interest to the Company on any amount that is not paid on the due date at the default interest rate of three per cent per annum above the current base lending rate set from time to time by the Company's bankers in Christchurch. Interest shall be payable on a daily basis from the date when the payment is due until the date when payment is actually made and the Purchaser shall be liable to pay all expenses and costs (including legal costs) in relation to the Company obtaining or attempting to obtain a remedy for the failure to pay. The charging of interest shall in no way imply the granting of an extension of credit by the Company to the Customer. The Customer shall make all payments to the Company under this clause 23a upon demand.

21:     General Conditions

1. Any questions regarding the Terms of Service should be addressed to angela@id.co.nz.
2. Any notice to be given to the Customer shall be deemed to be given forty eight hours after it being posted by ordinary post or immediately if sent by e-mail, facsimile or telegram to the physical address, e-mail address or appropriate facsimile number of the Customer set out in the Contract or to the Customer's registered office or to the Customer's last known address.
3. If any Condition or part of any Condition is held to be invalid or unenforceable the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent necessary to make the remainder of the Conditions enforceable.
4. Failure by the Company to insist upon strict performance by the Customer of any of the Conditions shall not be a waiver of any rights of the Company on any subsequent occasion.
5. The Company from time to time review its terms and conditions and the Customer agrees to be bound by any such variation or change to the terms and conditions on receipt of written notice of the same from the Company.
6. The Customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person whatsoever.
7. The Company reserves the right to sub-contract the performance of the Contract or any part thereof to any other party or person it may determine.

22:     Contact and Violations

Please contact us with any questions regarding the Terms of Service. Please report any violations of the Terms of Service to our legal team through the contacts page here.