TERMS OF USE OF WEBFAIR

Index

These Terms are divided into 6 sections

 

Clauses 1 to 4                   Introductory provisions that apply to all Users.

 

Clause 5                            Privacy Policy that applies to all Users

 

Clauses 6 to 16                 Provisions that are directed at those Users (referred to in these Terms as “Organisations”) that are using                                                Webfair to facilitate the raising of funds

 

Clauses 17 to 32               Provisions that are directed at those Users (referred to in these Terms as “Gifters”) that are disposing of  items                                        using Webfair and donating the proceeds (if any) to their chosen Organisation.

 

Clauses 33 to 42               Provisions that are directed at Users (referred to in these Terms as “Buyers”) that are buying or otherwise                                              obtaining an Item using Webfair. 

 

Clauses 43 to 47               Provisions required by our lawyers including definitions and limitations of liability.     

 

WebFair recommends that all first time Users read all of these Terms to ensure that all Users understand how WebFair works.    Users should also review these Terms from time to time as changes will be made.  These Terms were last amended on [22] May 2017.

 

Introduction to WebFair                                               

 

WebFair is the modern electronic version of the traditional school or church fair but uses the power of the internet to raise money for the fund raising Organisation while WebFair takes care of the administrative tasks.  

 

All items will be displayed in NZD only. 

 

Organisations enter into an agreement with Us to run a WebFair.   Organisations promote the WebFair among their supporters, and the general public, requesting that those people both

  • put forward Items to be sold at the WebFair, and
  • buy Items at the WebFair.   

 

Organisations pay Us a fee for the running of the WebFair.  That fee is $1 plus GST for each donation made to them (for GST registered Organisations) and $1 including GST for each donation made to them (for Organisations that are not GST registered).

 

Gifters (Users that are disposing of an Item) electronically load the Item that they wish to dispose of in an Organisation’s WebFair in the weeks prior to the WebFair being conducted (similar to delivering the Item to the school or church in the weeks prior to a traditional fair). In a WebFair the Gifter holds the Item until it is collected by a Buyer.   All Items are auctioned with a $1 reserve.     Gifters authorise US to collect the proceeds from the sale of the Item.    Gifters authorise Us to pay to the Organisation nominated by the Gifter, and on behalf of the Gifter, the proceeds from selling an Item as a donation to the Organisation.   Gifters make arrangements with the Buyer, for the Buyer to collect the Item from the Gifter.

 

Buyers (Users that are buying an Item) attend the electronic WebFair during the fixed period that it is open and bid on an Item.    If successful the Buyer pays for the Item by making the payment to the Gifter via WebFair.   After payment has been made the Buyer contacts the Gifter and makes arrangements to collect the Item from the Gifter.     WebFair will provide an email to both the Gifter and the Buyer recording when a payment has been processed.

      

SECTION 1 – INTRODUCTORY PROVISIONS                                                                                            

 

  1. APPLICATION OF TERMS

1.1         These Terms apply to your use of the Website. By accessing and using the Website:

a             you agree to these Terms; and

b             where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

 

1.2         If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.

 

2             CHANGES

 

2.1         We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.

 

2.2         We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.

 

3             YOUR OBLIGATIONS

 

3.1         You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.

 

3.2         You will be given a User ID and password.    You must keep your password secure and:

a             not permit any other person to use your User ID, including not disclosing or providing your Password to any other person; and

b             immediately notify us if you become aware of any disclosure or unauthorised use of your User ID, by sending an email to Info@WebFair.co.nz.

 

3.3         You must:

a             not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and

b             unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.

 

3.4         You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.

 

 

 

4             INTELLECTUAL PROPERTY

 

4.1         We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems

 

4.2         Any Giftee loading details of an item onto the Website undertakes that they have all necessary intellectual property rights to use any images, trademarks, brandnames or similar property rights used in the description of the item.

 

4.3         Any person may use our logo, brandname or trademark or provide a link to the Website provided that they do so solely to promote Us or a particular Webfair or group of Webfairs and provided that they do not alter the logo or trademark in any way.  

 

SECTION 2 – PRIVACY POLICY

 

5.1         You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of the Website available to you. For example, we may need to have your contact information in order to provide you with updates from our Website.

 

5.2         When you provide personal information to us, we will comply with the New Zealand Privacy Act 1993.

 

5.3         The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.

 

5.4         We may also collect technical information whenever you log on to, or visit the public version of, our Website. This may include information about the way users arrive at, browse through and interact with our Website. We may collect this type of technical information through the use of cookies and other means. Cookies are alphanumeric identifiers that we transfer to your computer’s hard drive to enable our systems to recognise your browser. If you want to disable cookies, you may do so by changing the settings on your browser. However, if you do so, you may not be able to use all of the functions on the Website. We use the technical information we collect to have a better understanding of the way people use our Website, to improve the way it works and to personalise it to be more relevant and useful to your particular needs.

 

5.5         Generally, we do not disclose personal information to third parties for them to use for their                               own purposes. However, some of the circumstances in which we may do this are:

a             to service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);

b             in relation to the proposed purchase or acquisition of our business or assets; or

c             where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.

 

5.6         Any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand. This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.

 

5.7         You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at Info@WebFair.co.nz.

 

SECTION 3 - WEBFAIR AND THE ORGANISATION

 

  1. Organisations wishing to conduct a Webfair must fully complete an application form requesting that We run a WebFair for the Organisation. We recommend that the Organisation contact Us at Info@WebFair.co.nz to discuss the proposal prior to completing the application form.

 

  1. We reserve the absolute Discretion to accept or reject any application to run a WebFair.

 

  1. Our notification to the Organisation of acceptance of an application creates a contractual relationship between Us and the Organisation on the terms recorded in (in order of priority) any correspondence between Us and the Organisation, the contents of the Application Form and these Terms.

 

  1. We will run a “WebFair” for the Organisation for a specified period of time (or between two specified dates). We reserve the Discretion to amend any of the relevant dates as we determine is necessary or desirable.

 

  1. The Organisations shall pay Us a fee for the running of the WebFair. That fee is $1 plus GST for each donation that is made (for GST registered Organisations) and $1 including GST for each donation that is made (for Organisations that are not GST registered).   Each Item sold results in a separate donation (even if the same Gifter sells multiple Items in the same WebFair for the benefit of the same Organisation).

 

  1. We will

make space available on Our website for the Organisation to promote their fundraising objective;

make the Website available to Gifters to offer to sell items with the money being donated by the Gifter to the Organisation;

Enable the Gifter to load their items onto the Website including a description of the item, a photograph and indication of where it can be collected after the completion of the Webfair.

Use Our best endeavours, but with no legal liability, to moderate all content to protect the reputations and images of Us, WebFair, Organisations and other users.

 

  1. We will pay to the Organisation the amount paid for the Item less:-

Any amounts refunded to Buyers in accordance with clause 39 of these Terms;

Any collection costs, transaction fees and other charges deducted by the banks, credit card companies, transaction processing companies or other similar third parties; and

Our fee as determined in accordance with Clause 10.  We will provide a GST invoice to the Organisation for Our fee.

 

  1. We will make the payment to the Organisation no later than 40 working days after the completion of the WebFair. We will use Our reasonable endeavours to make interim payments to the Organisation as funds become cleared and non-reversable in the WebFair Trust Account.

 

  1. We reserve the right to, in our absolute Discretion, and with no obligation to pay any compensation or costs or losses:-

remove any Item or other content whether loaded by the Organisation or a Gifter;

remove any bid for any Item; or

terminate the contract at any time with no prior notice.

 

  1. If We terminate the contract with the Organisation prior to the WebFair going live (accepting bids) or prior to any Item having been sold then:-

no money will have been received by WebFair; and

Any Items loaded on the Organisation’s WebFair will be cancelled and the Gifter notified of the cancellation of the WebFair (and therefore the cancellation of the listing of the Item).

 

  1. If We terminate the contract with the Organisation after any Item has been sold then WebFair reserves the right to either:-

Pay to the Organisation the amount specified in clause 12 in accordance with the payment provisions in clause 13; or

Where WebFair determines in its discretion that it is likely that We, a Buyer and or Gifter has been misled as to the purpose of the fund raising or the bona fides of the Organisation; then WebFair may at its choice:-

divide the amount collected between any other WebFairs running at the same time; or

pay the money to the Gifter.    

 

 

SECTION 4 - WEBFAIR AND THE GIFTER

 

  1. We will make the WebFair website available for anyone to offer to sell an Item, but excluding any Prohibited Item, with the sale proceeds being donated by the Gifter to the Organisation.

 

  1. We reserve the right to, in our absolute discretion, and with no obligation to pay any compensation or costs or losses:-
  • remove any content loaded by a Gifter; or
  • remove any bid for any item.

 

  1. Gifter must provide to Us all the information required by the Secondhand Dealers and Pawnbrokers Act 2004 (and any amendment or replacement of that legislation).

 

  1. Gifter must advise Us which Organisation is to receive the net sale proceeds (being the proceeds of the auction less the amounts specified in clauses 12.1 and 12.2 of these Terms).

 

  1. The Gifter is to be legally liable for all of the Gifters obligations under the Sale of Goods Act, Fair Trading Act, Income Tax Act, Goods and Services Tax Act, Consumer Guarantees Act or any other similar legislation.

 

  1. We accept no liability under the Sale of Goods Act, Fair Trading Act, Income Tax Act, Goods and Services Tax Act, Consumer Guarantees Act or any other similar legislation.

 

  1. We will on your behalf use reasonable commercial endeavours to collect payment for the goods sold by you. Gifters agree not to collect any payment due directly and to require the Buyer to make payment via WebFair.

 

  1. Any amounts collected will be held in a bank account with a Bank registered in New Zealand and that bank account shall only be used to:
  • collect the net amounts paid for Items;
  • process any refunds required
  • pay to Us our fee as specified in clause 10 of these Terms and
  • pay the balance to the relevant Organisation in accordance with clauses 12 and 13 above.

 

  1. The bank account referred to in clause 24 may be used for multiple WebFairs at any one time.

 

  1. We will notify the Gifter when payment has been received and confirm the amount received (net of any amounts specified in clause 12.2).

 

  1. If any amount is reversed or refunded then We shall use reasonable endevours to advise you of that fact within a reasonable time of Us becoming aware of the reversal.

 

  1. We are not liable to the Gifter if payment is subsequently reversed (before or after possession of the Item is delivered to a Buyer). Title and Risk to the Item transfers when possession of the Item passes from the Gifter to the Buyer.

 

  1. We shall be under no obligation to take proceedings to recover any items or enforce payment of any amount owing. The Gifter may take such actions and We shall, to the extent reasonably possible assist the Gifter.  

 

  1. Any Gifter who is “in trade” or is otherwise subject to the provisions of the Sale of Goods Act, Fair Trading Act and Consumer Guarantees Act contracts out of those Acts to the maximum extent possible, and if not possible, limits its liability to any Buyer to the sum of $10 and, if that is not possible, acknowledges that the statutory provisions apply to the sale of any Item via WebFair.

 

  1. The Gifter acknowledges that section 36ZE of the Fair Trading Act 1986 applies to a WebFair auction and any bid can be withdrawn at any time by the bidder prior to the ending of the auction.

 

  1. We recommend that you obtain from the Buyer a written acknowledgement that they have collected the Item from you and that they accept that the Item matches the description of the item on the Website. A suitable form is attached as Schedule 1.

 

 

 

SECTION 5 - WEBFAIR AND THE BUYER: 

 

  1. We shall use our reasonable endeavours to make the Website available so that Buyers can enter bids or accept Buy Now.

 

  1. Buyers acknowledge that any bid they make or any Buy Now offer that they accept creates a legally binding contract between the Buyer and the Gifter under which the Buyer has to pay the Gifter for the Item (by way of making a payment to WebFair).

 

  1. Buyers accept that We have no liability to the Buyer if it any particular time WebFair is not available or does not accept a bid.

 

  1. Buyers acknowledge that payment is due on the earlier of:-
  2. 3 working days after the ending of the Web Fair (for an Item purchased in an auction)
  3. 3 working days after acceptance of a Buy Now offer (for an Item purchased by way of accepting a Buy Now offer); and
  4. 24 hours prior to picking up the Item from the Gifter.

 

  1. Buyers acknowledge that the Buyer is responsible for picking up the Item from the Gifter.

 

  1. We recommend that Buyers collect Items from the Gifter within 10 working days of the earlier of:-
  2. the ending of the Web Fair (for an Item purchased in an auction) and
  3. the acceptance of a Buy Now offer (for an Item purchased by way of accepting a Buy Now offer) .

 

  1. If a Buyer makes a payment to Us and prior to the termination of the earlier of the time periods referred to in clause 38 notifies Us that
  • the Gifter has refused to hand over the Item; or
  • that there is an issue as to the description or quality of the Item; or
  • that there is some other reason why the payment shouldn’t be made to the Organisation on behalf of the Gifter and

that the Buyer is seeking a refund of the payment made then:-

 

39.1       If the refund sought is less than $100 then We shall make the refund; and

39.2       If the refund sought is $100 or more then We shall approach the Gifter and seek their consent to refund the payment.  

  • If they consent or fail to respond within 5 working days then the refund shall be made.
  • If they refuse to consent to the refund and provide to us an acknowledgement of delivery and acceptance signed by the Buyer substantially in the form specified in Schedule 1 then the application for a refund shall be denied (but the Buyer may seek a payment from the Gifter).
  • If they otherwise refuse to consent to the refund then the payment shall remain in Our Trust Account until the earlier of both parties provide consistent instructions as to what should be done with the payment; or either of the parties provides a copy of the Disputes Tribunal or Court order directing what should happen to the funds or 12 months have passed from the date of the payment. WebFair shall make the payment in accordance with the instructions or order, or after 12 months make the payment to the Organisation nominated by the Gifter.       

 

  1. If a Buyer makes a payment to Us and doesn’t prior to the termination of the earlier of the time periods referred to in clause 38 notify Webfair that:-

the Gifter has refused to hand over the Item; or

that there is an issue as to the description or quality of the Item; or

that there is some other reason why the payment shouldn’t be made to the Organisation on behalf of the Gifter

               then

Webfair may make such payment to the Organisation and

if the Buyer is or subsequently becomes entitled to cancel the agreement between the Buyer and the Gifter, or becomes entitled to compensation from the Gifter and becomes entitled to obtain a full or partial refund of the purchase price then that is a matter between the Buyer and the Gifter; and

the payment that the Buyer made to WebFair shall be deemed to be a donation by the Buyer to the Organisation.

 

  1. Buyers acknowledge that Webfair has no obligations under Sale of Goods Act, Consumer Guarantees Act, Fair Trading Act or any similar legislation in respect of the items being sold. WebFair is only an internet auction provider and any liability on WebFair must be based on the provision of that service not the items sold by Gifters using that service. 

 

  1. Buyers acknowledge that Webfair is collecting the money on behalf of the Gifter, that Webfair will then donate that sum to the Organisation chosen by the Gifter and charge the Organisation a fee (to be deducted from the donation) as agreed between Webfair and the Organisation.

 

SECTION 6 - DEFINITIONS

 

  1. In these Terms: including and similar words do not imply any limit
  • Buyers means a person who is using WebFair to buy an Item on the understanding that the Gifter is donating the sale proceeds to an Organisation.
  • Discretion means a decision to be made in Our absolute discretion without any requirement to have or provide reasons.
  • Gifter means a person who is using WebFair to sell an Item on the basis that they have agreed to donate the sale proceeds to an Organisation.
  • Item means a chattel or service that a Gifter is offering for sale on WebFair.
  • Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
  • Organisation means a person who is using WebFair to raise money for a particular purpose or for the Organisation’s general operations.
  • Person means any legal entity including a human, a company, a partnership and an incorporated body (including charities)
  • personal information means information about an identifiable, living human
  • Prohibited Items include firearms, any X-rated or adult only material, animals of any kind including pets and livestock, used undergarments including socks and hosiery, stained ripped or unclean bedding and clothes, safety equipment (including helmets, life jackets and harnesses); alcohol and cigarettes and any similar products which require a licence to sell.
  • Terms means these terms and conditions titled Website Terms of Use
  • Underlying System means any network, system, software, data or material that underlies or is connected to the Website
  • Users means Organisations, Gifters and Buyers
  • User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website
  • We, us or our means Winds of Change Limited
  • Website means webfair.org.nz
  • You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

 

44 DISCLAIMERS

44.1       To the extent permitted by law, we have no liability or responsibility to you or any other person for any Loss in connection with:

a             the Website being unavailable (in whole or in part) or performing slowly;

b             any error in, or omission from, any information made available through the Website;

c             any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and

d             any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.

 

44.2       We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.

 

  1. LIABILITY

45.1       To the maximum extent permitted by law:

a             you access and use the Website at your own risk; and

b             we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

45.2       Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.

45.3       To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed NZD100.

 

46          SUSPENSION AND TERMINATION

46.1       Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).

46.2       On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.

 

47          GENERAL

47.1       If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

47.2       These Terms, and any dispute relating to these Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Website.

47.3       For us to waive a right under these Terms, the waiver must be in writing.

47.4       Clauses which, by their nature, are intended to survive termination of these Terms.

47.5       If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

47.6       These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.  

 

 

 

 

 

Schedule 1

 

Acknowledgement of Delivery and Acceptance of Item

 

The Buyer hereby acknowledges receipt from the Gifter of the Item referred to below and confirms that the Buyer has had an opportunity to examine it and it matches the Description and quality specified in the WebFair listing.

 

 

Item description

 

 

Gifter signature

 

 

 

Buyer signature

 

 

Date