This Agreement for WHO SELLS online Listing Services (the "Agreement") is made and effective emmediately upon listing a Business on WHO SELLS
BETWEEN: WHO SELLS, organized and existing under the laws of New Zealand, with its head office located at:
AND: [THE CUSTOMER COMPANY] (the "Customer")
In consideration of the terms and covenants of this Agreement, and other valuable consideration, the parties agree as follows:
WHO SELLS owns and operates an Internet site located at www.whosells.co.nz. WHO SELLS contains graphical and/or text-based descriptions of advertised sites along with a hypertext link to the advertised sites website. When the hypertext link is selected by the party accessing the site ("User"), a new window is opened and the User is transported to the URL for the advertised site.
If a Customer does not have a website then no hypertext link will be provided. The Customer is then contacted through WHO SELLS.
1. CUSTOMER LISTING MATERIALS
After the Customer has registered with WHO SELLS the Customer can proceed to list their business/es on WHO SELLS or provide WHO SELLS with the relevant listing materials and WHO SELLS admin will list the business on behalf of the Customer.
WHO SELLS retains the right at its own discretion to approve the Customers Listing Materials submitted on/to WHO SELLS. All Listing Materials shall meet the WHO SELLS requirements described in “Listing Requirements Guide” below.
WHO SELLS maintains the right to reject or remove Listing Materials that does not meet the New Zealand’s Advertising Standards Authority requirements/codes. If WHO SELLS rejects any Adverting Materials, WHO SELLS will notify the Customer. Even after WHO SELLS accepts the Listing Materials, WHO SELLS has the right to remove it if it does not function correctly or for any of the reasons described above. WHO SELLS placing the Listing Materials on its site does not signify its approval or waiver of the right to object to it in the future.
WHO SELLS maintains the right to terminate this Agreement at any stage of the Agreement and return any unused prepaid listing fees. Unused prepaid fees are calculated on a per month basis. The Customer will not claim any damages or require any remedies from WHO SELLS for rejecting or removing Listing Materials except for the return of any used prepaid advertising fees.
WHO SELLS must approve all Customer requested changes to Listing Materials listed on the WHO SELLS site. WHO SELLS retains the right to charge a fee as per “Fee Schedules” for updating the Customers Listing Materials on their behalf only if the Customer requires more than 2 changes in a 12 month period. The Customer will provide WHO SELLS with the required changes to the Listing Materials in the format that WHO SELLS requires to be published. WHO SELLS will endeavor to update the Businesses Listing Materials on the WHO SELLS site within 3 business days. Once registered on WHO SELLS the Customer has access to their own CONTROL PANEL which enables the Customer to make as many changes as often as they like to their Listing Materials.
2. SERVICES TO BE PROVIDED
WHO SELLS does not guarantee any given amount of impressions to Customer's page as a result of its advertising services.
WHO SELLS will use reasonable efforts to make its site available for display through the World Wide Web. WHO SELLS is not responsible for periodic downtime for maintenance, backup, acts of God, and other circumstances beyond its control or which are a normal part of the Internet business.
WHO SELLS will not place links to the Customer's website or website content in newsgroups, message boards, unsolicited email and other types of spam, chat rooms and guest books or through similar Internet resources. WHO SELLS will not be held accountable for any damages suffered by the Customer if a 3rd party is responsible for such behavior.
WHO SELLS will simply list the Customer business together with the products and services that the Customer provides on the WHO SELLS site.
3. PLACEMENT OF THE ADVERTISING
WHO SELLS reserves onto its own discretion all decisions and matters concerning placement of Customer's Listing Materials on pages of WHO SELLS site, software solutions, hardware configurations and selection, system components, categories of advertising, search engine results and search parameters and other operational and administrative matters pertaining to the construction and operation of WHO SELLS site.
In consideration of its listing services, the Customer agrees to pay the Listing Fees set forth in the Fee Schedules below. The Listing Fee will be paid yearly, in advance, on or before the first day of the yearly billing cycle during the term hereof. WHO SELLS will remove a Customers Advertising Material seven (7) days after a notice of payment has been emailed to the Customer and a payment is not made. WHO SELLS reserves the right to suspend listing services until the Customer's account is brought current. WHO SELLS maintains the right to terminate this Agreement if any Listing Fee is delinquent.
5. PROPRIETARY RIGHTS
WHO SELLS will retain all proprietary rights in and to its respective sites and other proprietary materials such as copyrights, trademarks, trade secrets, patents and confidential information. WHO SELLS does not grant the other any rights in and to such proprietary material except that the Customer hereby grants WHO SELLS a non-exclusive license to use the Listing Material provided, including its trademarks and copyrights, and the right to hyperlink to the Customer's site from its site during the term of this Agreement. Upon termination of this Agreement, WHO SELLS agrees to remove the hyperlink and the Listing Materials provided from its site within a reasonable time.
6. REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants that the Listing Material provided is in compliance with all applicable laws and does not infringe upon the rights of any other party, including but not limited to copyrights, trademarks, privacy rights, moral rights, trade secrets, patents and any other rights. The Customer also warrants and represents that it has the unrestricted and exclusive right to use all such materials.
WHO SELLS makes no warranties that the Listing Material contained on WHO SELLS site will be free from errors or defects or that the use of the hypertext link or access to its site will be uninterrupted. WHO SELLS SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ON THE RIGHTS OF THIRD PARTIES. IN NO EVENT SHALL WHO SELLS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SALES OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS' FEES), EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
The Customer will indemnify and hold WHO SELLS harmless from and against any claims, suits, threats, demands, settlements, actions, causes of action, liabilities, obligations and all other matters, including but not limited to court costs, attorney fees, witness fees, settlement fees, and all other direct and indirect expenses and losses that may occur arising from the breach of any of the representations and warranties that the Customer has made to WHO SELLS and otherwise arising directly or indirectly from the placement of its Listing Materials on the WHO SELLS site.
8. FORCE MAJEURE
WHO SELLS will not be responsible for any failure or delay in performance hereunder that is directly or indirectly related to acts of God, storm, natural disaster, act of terrorism, utility outages or interruptions, system transmission failure, server failure, strike, lockout, or any other situation which is beyond its control.
The Customer may terminate this Agreement, with or without cause, by giving 2 days advance notice of its intent to terminate. WHO SELLS reserves the right to terminate this Agreement for any reason, with or without cause, upon 2 days written notice to the Customer. WHO SELLS reserves the right to terminate a FREE Business listing when the Business listing receives a proportionately high number of vists and clicks through WHO SELLS website. WHO SELLS will prior to terminating the FREE Business listing, give the Customer the opportunity to upgrade to a paid listing package within 7 days.
10. ENTIRE AGREEMENT
This Agreement constitute the entire agreement and understanding between the Customer and WHO SELLS with respect to the subject matter hereof. It supersedes and replaces all previous discussions, negotiations, and understandings between the parties. This Agreement may only be amended by a written amendment signed by authorized representative of both of the parties.
All notices called for herein shall be to the parties at the addresses contained in this Agreement and shall be by certified mail or email with return receipt requested or by reputable national overnight delivery service, such as NZ Post.
12. GOVERNING LAW
This Agreement shall be interpreted under the laws of New Zealand. Any and all legal actions relative hereto shall be in the courts of New Zealand.
13. LISTINGS REQUIREMENTS GUIDE
To ensure that WHO SELLS remains a safe advertising environment the Customers Listing Materials must not contain any offensive or prohibited data. Following is a partial list of the kind of content and behavior that is prohibited on the WHO SELLS site:
· Content that is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any animal, group or individual
· Content that harasses or advocates harassment of another person
· Information that you know to be false, misleading or that promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous
· Promotion of an illegal or unauthorized copy of another person or companies copyrighted work
· Instructional information about illegal activities or violating someone’s privacy
· Solicitation of passwords or personal identifying information for commercial or unlawful purposes from other users
· Engagement in commercial activities and/or sales of illegal products or services
14. FEE SCHEDULES
WHO SELLS will update the Customers Listing Materials twice a year free of charge if the Customer is not able to do it themselves. After that a once off fee per change of $20 is required per business listing. Otherwise the Customer can register online and manage their own listing via theit own CONTROL PANEL. See Listing Fees for the the listing packages pricing.