Top That Terms of Trade
1. Terms Of Trade and Parties
1.1 These Terms of Trade as amended from time to time by TOP THAT are applicable to all transactions between the Merchant and Charlotte Baxter trading as TOP THAT (“TOP THAT”). By signing up to use the TOP THAT website, the Merchant agrees to be bound by these Terms of Trade in relation to all subsequent transactions.
1.2 TOP THAT may vary these Terms of Trade by replacing the link on the Site with the most recent version of the Terms of Trade.
2. Definitions
2.1 “Application” means the TOP THAT application available for download.
“Deal” means a deal offered by the Merchant and advertised on the Site whereby the Merchant’s goods and/or services will be sold at a discount or subject to promotional terms.
“Expiry Date” means the expiry date and/or time of the relevant Deal, which may not fall after the expiry of the Subscription Period of the Merchant.
“Merchant” means a business which has signed up to use the TOP THAT Site with a view to offering Deals through one or more Participating Businesses.
“Participating Business” means a business which offers a Deal through the Site.
“Site” means the TOP THAT website.
“Subscription Period” means the period for which a Merchant has contracted to offer Deals through the Site.
“User” means a person who purchases a Deal offered by any Merchant through the Site.
“Voucher” means a voucher in hard copy or electronic format that confirms purchase of a Deal by a User from a Merchant.
3. Risk and Delivery
3.1 The Merchant shall be responsible for all Deals and information uploaded on to the Site, including relevant contact information for the Merchant.
3.2 TOP THAT is not liable to the Merchant for any interruption in internet access or in access to the Site by the Merchant or by any person attempting to purchase Deals promoted by the Merchant on the Site.
3.3 TOP THAT does not warrant that access to the Site will be uninterrupted.
4. Deals
4.1 The Merchant is responsible for uploading all details relating to Deals.
4.2 The Merchant must specify the date the Deal will go live on the Site.
4.3 The purchase of a Deal by a User is a transaction between the Participating Business and the User.
4.4 A Deal may be redeemed by a User following purchase of a Deal by notifying the Participating Business at the time of redemption by double-clicking the Deal in the Application in the presence of the Participating Business, and the Participating Business can confirm purchase of the Deal through the Application or the Site on presentation by a User.
4.5 All payments for Deals shall be made via PayPal and are between the User and the Participating Business.
4.6 The Merchant may authorise any User to share a Deal with any person at the time of uploading the Deal.
4.7 TOP THAT is providing a platform for the Merchant to promote its business but is not to be regarded as acting as an agent or partner of the Merchant.
5. Price and Subscription.
5.1 All subscription prices are plus GST and other taxes payable by the Merchant.
5.2 Only Merchants who are offering Deals for business purposes may use the Site.
5.3 A Merchant may use the Site for one month free of charge on first signing up to use the Site. TOP THAT will not charge a subscription fee for the first month after a Merchant has signed up to use the TOP THAT Site.
5.4 By uploading one or more Deals, a Merchant is agreeing to make payments to TOP THAT for the relevant Subscription Period (subject to the one month free trial in clause 5.3).
5.5 The minimum Subscription Period is one month (this includes the one month free trial where the Merchant elects to trial the Site).
5.6 TOP THAT does not charge commission to a Merchant in respect of any Deal.
5.7 The subscription price will be the price displayed on the Site for the relevant Subscription Period.
5.8 Where a Merchant owns more than one Participating Business, a subscription fee is payable for each Participating Business.
5.9 TOP THAT will invoice the Merchant by email once the Merchant has signed up for a Subscription Period.
5.10 Payment may be made by direct debit or by internet banking to TOP THAT’s nominated bank account.
6. Consumer Guarantees Act 1993 and Fair Trading Act 1986
6.1 The Consumer Guarantees Act 1993, Fair Trading Act 1986 and other statutes may impose warranties, conditions or obligations upon TOP THAT which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms of Trade, TOP THAT excludes all such imposed warranties, conditions and obligations to the extent permitted by law and excludes any warranty, condition or obligation imposed or implied under the common law, equity or otherwise.
6.2 Where a supply is for business purposes, the Merchant agrees that the provisions of the Consumer Guarantees Act 1993 do not apply.
6.3 The Merchant acknowledges that, in purchasing the items, he/she/it has not relied upon any representation or warranty from TOP THAT or its agents, employees or contractors (except as provided in TOP THAT's official written material or where such representations have been made in writing).
7. Use of data
7.1 The Merchant acknowledges that by uploading Deals onto the Site, TOP THAT is collecting and storing certain data. By agreeing to upload Deals in accordance with these Terms of Trade, the Merchant accepts that all data collected by TOP THAT may be used or stored by TOP THAT for such purposes as it considers are in the best interests of TOP THAT.
7.2 The Merchant authorises TOP THAT to access location information for the Merchant’s business and to display such location information on the Site.
7.3 The Merchant authorises TOP THAT to display contact information for the Participating Business on the Site in relation to a Deal, and consents to the use of an automatic call option which enables a User to click a link on the site and call the Participating Business direct.
8. Site Content and Security
8.1 The Merchant will ensure that:
- a. any use it makes of the Site is in good faith;
- b. its user name and password is kept secure and confidential and not revealed to any other person; and
- c. it will notify TOP THAT immediately of any unauthorised use of its username and/or password of any other breach of its security on the Site.
8.2 The Merchant will not post or transmit (either directly or indirectly) any content on the Site that:
- a. infringes the intellectual property rights of any person;
- b. contains any virus or other destructive component;
- c. is, or is reasonably likely to be, defamatory, offensive, upsetting obscene, or that TOP THAT may advise from time to time is, in its opinion, in any way objectionable or unsuitable;
- d. is, or is reasonably likely to be, unsuitable for users under the age of 18 years;
- e. it knows, or suspects is, false or misleading;
- f. is prohibited by, or in violation of, any law; or
- g. otherwise breaches the Terms of Trade.
8.3 The Merchant will not, while using the Site:
- a. act in a manner that negatively affects the Site and/or any user’s enjoyment or use of the Site;
- b. transmit any unsolicited advertising, promotional materials or any other forms of solicitation, unless expressly authorised by TOP THAT;
- c. hack into any part of the Site;
- d. breach, or encourage the breach of, any applicable law or regulation;
- e. engage in any other conduct that we may advise that TOP THAT considers (in its absolute discretion) breaches the Terms of Trade or is otherwise inappropriate for the Site.
8.4 TOP THAT may at any time:
- a. refuse to post any content that it considers will breach these Terms of Trade or is otherwise inappropriate for the Site; and
- b. edit or remove content where it determines (acting reasonably) that the content breaches these Terms of Trade or is otherwise inappropriate for the Site.
8.5 TOP THAT is an advertising platform for Merchants to provide their goods and services and:
- a. TOP THAT does not endorse, warrant or make any representation about the content of any third party and the Merchant acknowledges that we have not independently verified any of the information contained in such content.
- b. TOP THAT takes no responsibility for any content of a third party (including any inaccuracy or omission).
8.6 TOP THAT is not responsible for any communication between the Merchant and any User.
9. Limitation of Liability
9.1 TOP THAT shall not be liable whether in contract, tort (including negligence) or otherwise for any loss of profits, or indirect or consequential loss or damage, suffered or incurred by the Merchant arising out of or in connection with these Terms of Trade.
9.2 To the extent that TOP THAT is liable for any reason, TOP THAT’s liability is limited to the subscription paid by the Merchant in the six month period prior to the time such liability arises.
9.3 Neither party will be liable to the other for any delays or non-performance of contractual obligation under these Terms of Trade caused by reason of flood, earthquake, war or civil strife, hurricane, industrial disturbance, fire, lockout, epidemic, failure or delays of scheduled transportation facilities, or other acts of God or any law, order, decree, law or regulation of any government authority or for any other reason with of similar or dissimilar nature beyond the control of the parties (Force Majeure Event), provided that each party has taken all reasonable steps to minimise any loss, damage or delay resulting from a Force Majeure Event.
10. Costs
10.1 The Merchant must pay TOP THAT’s costs (including legal costs, as between Solicitor and Client) of and incidental to the enforcement or attempted enforcement of TOP THAT’s rights, remedies and powers under these Terms of Trade or at law. For the avoidance of doubt, this includes the costs incurred by TOP THAT in referring the matter to a debt collection agency.
11. Privacy of Information
11.1 The Merchant authorises TOP THAT to:
- a. collect, retain and use information about the Merchant from any person for the purpose of assessing the Merchant’s creditworthiness; and
- b. disclose information about the Merchant:
-- i. to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to the Merchant’s obligations to TOP THAT;
-- ii. to such persons as may be necessary or desirable to enable TOP THAT to exercise any power, enforcement or attempted enforcement of TOP THAT’s rights, remedies and powers under these Terms of Trade; and
-- iii. for marketing purposes for goods and services provided by TOP THAT.
12. Intellectual Property Rights
12.1 The Merchant Grants to TOP THAT a non-exclusive, royalty-free license to use, copy, modify and publish the Merchant’s trademarks and the information relating to any Deal for the purpose of TOP THAT fulfilling its obligations under these Terms of Trade and to enable TOP THAT to promote the TOP THAT service.
12.2 The Merchants warrants and represents to TOP THAT that it has the right to grant the licence in clause 12.1 and that the granting of such a licence does not contravene any other agreement with, or obligation to, a third party.
12.3 The Merchant acknowledges that all intellectual property rights in any Deal (excluding the information content of any Deal which remains the property of the Merchant), the Site, and any enhancements or modifications to the Site, including the layout and the look and feel of the Site belong to TOP THAT and the Merchant will not contest or dispute such ownership rights.
13. Notices
13.1 Any notice given pursuant to these Terms of Trade must be in writing (whether by email, facsimile or otherwise) and sent to the principal place of business of the other party or to the email address or facsimile number last provided by the receiving party.
14. Email Publications
14.1 Where the Merchant signs this document, they consent to receiving commercial electronic messages from TOP THAT.
15. Governing Law
15.1 Each Order will be governed by, and construed in accordance with, the laws of New Zealand and the parties agree to submit to the jurisdiction of the New Zealand Courts.