End User License Agreement
Last modified: 1 September 2021
This end-user licence agreement (Terms of Use) is a legal agreement between you (you) and Mutu NZ Limited (NZCN 8037498) (us or we) for the use of the Mutu xChange system at www.info.mutu.co.nz/xchange (xChange).
Terms of Use
Please read and review these Terms of Use carefully before accessing or using the xChange. By accessing or using the xChange, you acknowledge that you have read, understand and agree to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the xChange.
About the xChange. The xChange is a collaborative marketplace that allows users of the xChange (each a User), among other things, to list, offer, exchange, trade, and donate supplies, equipment and services (Service). We do not have, and will not take, title to, or an ownership interest in, any of the listings on the xChange. Any contract for exchange, trade or donation on the xChange is strictly between Users. We are not and will not be directly involved in any transaction between Users. We do not guarantee and can not and do not exercise any control over the existence, quality, safety, or legality of listings on the xChange. Users are responsible for verifying the existence, quality, safety, and legality of the listings on the xChange. We cannot and will not ensure that Users complete a transaction.
Transactions. As an express condition to listing or otherwise transacting on the xChange, you agree: (a) to accurately describe the items or services listed on the xChange; (b) to not manipulate or attempt to manipulate third party listings on the xChange; (c) to maintain accurate user account information and to be responsible for your User Content (as defined below); (d) to complete transactions once listings are validly exchanged, traded or donated on the xChange by you; and (e) to otherwise comply with these Terms of Use and applicable law in the jurisdiction in which you reside.
Registration and Account. Accessing the xChange requires registration and the creation of a user account. You agree to be responsible for maintaining the confidentiality of user names, passwords, security questions and answers, or other account identifiers associated with your user account, and for all activities that occur under your user account. You agree to promptly notify us of any unauthorized use of your User account.
User Content. The xChange allows you to upload certain content to the xChange (User Content). You agree and consent to our use of User Content in our sole discretion (including the decision to delete such User Content), and you agree that any such User Content will comply with all applicable laws and will not include any obscene, indecent, defamatory, abusive, libellous or other similar languages. We do not endorse and are not responsible for the quality, accuracy or appropriateness of any User Content, and make no representations concerning the accuracy of any User Content. Mutu is not responsible for actively monitoring the User Content, and, for this reason, it is essential that you promptly report any abuse, misuse or violation of these Terms of Use to: contact@mutu.co.nz
Links to Other websites. The xChange may include links to other websites or other sources of information. We have neither reviewed the contents of these third-party websites nor claim any responsibility for the content or suitability of these third-party websites. We make no express or implied warranty about the accuracy, copyright compliance, legality, merchantability, or any other aspect of the content of such links. The inclusion of links does not imply endorsement of the websites by us or any association with us.
Copyright Infringement. Allegedly infringing materials on the xChange may be removed or suspended in our discretion or as required by law. Repeated infringement by a user of the xChange may result in a termination of that user’s access to and use of the xChange. If you believe that items, information or other materials appearing on the xChange infringes your copyright, you may send a notice requesting that the item, information or material be removed, or access to it blocked, to: contact@mutu.co.nz
Intellectual Property Rights. All material on the xChange is owned or licensed by Mutu and is protected by New Zealand and international intellectual property laws. The text, images, graphics, and their arrangement on the xChange are all subject to copyright and other intellectual property protection. The xChange contains copyrights, trademarks, and other intellectual property rights owned by us or third parties that have licensed their materials to us. We reserve all of our intellectual property rights in the xChange, and these Terms of Use do not grant you any right or license with respect to any such intellectual property. You may not copy, reproduce, modify, republish, transmit or distribute any such intellectual property without our express written permission.
Interference. As a condition of your use of this xChange, you agree not to interfere with the operation of the xChange or to attempt to circumvent any technical measures of the xChange. Use of bots or other automated means to access or use the xChange is strictly prohibited.
Disclaimer Of Warranty. Except as otherwise expressly provided herein, the xChange, all content of the xChange and the Service are provided on an “as is” and as available with all faults basis. To the fullest extent permitted by applicable law, we disclaim all representations and warranties of any kind in connection therewith, either express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, we do not warrant that your use of the xChange, or the operation or function of the xChange, any component thereof, or any services offered in connection therewith: will be uninterrupted or error-free; that defects therewith will be corrected; or that the xChange or its server are free of viruses or other harmful elements. Although we endeavour to provide current, accurate, and reliable information on the xChange, we do not warrant or make any representations regarding the accuracy, reliability or any use of User Content or other information on the xChange. We expressly disclaim any responsibility for the accuracy, content, availability of user content or information, products, services, privacy or security practices or merchandise found on third party sites that link to or from the xChange. We cannot be held responsible for the material contained on third party xChange.
Release. We can not and do not exercise any control over the quality, safety, or legality of the items or services listed on the xChange. Users are responsible for verifying the quality, safety, or legality of the listings on the xChange. We only provide the Service, and we are not party to any actual transaction between Users whether or not arising from the use of the xChange. In the event of any legal action or proceeding arising from or related to the xChange, including any such action or proceeding between Users arising from or related to the xChange or any transaction initiated based on the use of the xchange, each user hereby expressly releases Mutu and its officers, directors, employees, independent contractors, stockholders, agents, and affiliates, from all claims, liabilities, losses, expenses, damages and costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connection with such dispute.
Limitation Of Liability. Under no circumstances will we or our officers, directors, employees, independent contractors, stockholders, agents, or affiliates be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, based on claims arising out of or related to the xchange or any items listed on the xChange (including, but not limited to, unauthorized access, damage, or theft of your data, claims for loss of goodwill, claims for loss of data, use of or reliance on the Service, stoppage of other work or damage caused to equipment or programs from any virus or other harmful application), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. In the event of any problem with the xChange, you agree that your sole and exclusive remedy is to cease using the xChange. Under no circumstances shall we be liable in any way for your use of the xChange, including, but not limited to, any errors or omissions, any infringement of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of, or related to, the use of the xChange or the Service. This limitation of liability is part of the basis of the bargain between the parties and without it the terms would be different. The limitations, exclusions and disclaimers set forth in this clause will not apply only if and to the extent that the law or a court of competent jurisdiction requires liability under applicable law beyond and despite the limitations, exclusions and disclaimers herein. We reserve the right to alter or remove the content of the xChange or suspend or terminate your use in any way, at any time, for any reason, without prior notification, and will not be liable in any way for possible consequences of such changes.
Indemnification. As a condition of your use of this xChange, you agree to indemnify and hold harmless us and our officers, directors, employees, independent contractors, stockholders, agents, and affiliates, from and against all claims, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees and costs) resulting from any violation by you of these Terms of Use, any violation by you of the rights of any third party, your User Content or your use of or inability to use the xChange.
Privacy Policy. By accessing or using the xChange, you acknowledge that you have read, understand and agree to this Privacy Policy. If you do not agree to this Privacy Policy, you may not access or use the xChange. This Privacy Policy applies to all information we may collect from you or that you may provide to us when you use or access the xChange (including your User Content). We may use all such information for any lawful purpose in connection with the promotion, marketing, sale, and operation of the xChange and the Service. Moreover, we may use such information where disclosure is necessary to: (a) comply with legal process (such as a court order) or other legal requirements or institutional rules, practices and policies; (b) protect our rights or property; or (c) protect the interest of users of the xChange, other than you, or any other person. We may share all information about you or which you provide us with our affiliates and service providers who we use to support our Service and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them. Furthermore, we and others may collect information about your activity on the xChange using tracking technologies such as cookies. Examples of this type of information include information about your computer and Internet connection, such as your operating system and browser type, and details of your visits to the xChange, including traffic data, location data, logs and other communication data and the resources that you access and use on the xChange. Your use of the xChange indicates your consent to this Privacy Policy.
Data Security. No security program is impenetrable and criminals have proven adept at circumventing widely-adopted security safeguards, so we cannot guarantee the security of the personal information you transmit to us. Accordingly, you acknowledge that you do so at your own risk.
Disputes. As a condition of your use of this xChange, you agree that any dispute of any kind arising from your use of the xChange or the enforceability of these Terms of Use, the parties will make reasonable personal endeavours to resolve the dispute by negotiation. If such efforts are unsuccessful after 20 working days of the dispute arising the parties will submit the dispute to mediation in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc (or any successor organisation) with a mediator appointed by the President of the New Zealand Law Society if the parties are unable to agree on such appointment within 2 days. In the event of the mediation referral being unsuccessful after 30 working days from submission of the dispute, the parties may agree to further dispute resolution procedures or commence legal proceedings.
Severability. If any provision of these Terms of Use is found to be invalid, void, or unenforceable, such provision will be construed in such a manner that would make such provision valid or enforceable. If it is not possible to construe such provision in such a manner, then only such provision will be stricken without affecting the enforceability of the remaining provisions of these Terms of Use.
Modification. We reserve the right to change or revise these Terms of Use at any time without prior notice. We will notify you of any changes or modifications by posting the modified Terms of Use on the xChange. Your use of the xChange after a change has been posted constitutes your acceptance of and consent to the amended Terms of Use.
Termination. We reserve the right, without notice and in its sole discretion, to terminate your license to use the xChange, and to block or prevent your future access to and use of the xChange.
Complete Agreement. These Terms of Use constitute the entire agreement between you and us relating to the xChange and your use of the xChange, and supersede any prior agreements or understandings.
Contact Information. Please contact us if you have any questions or concerns about these Terms of Use: contact@mutu.co.nz
