1.1 These Terms apply to Your use of Upstock. By accessing and using Upstock:
a You accept and agree to be bound by these Terms; and
b. where Your access and use is on behalf of another person (e.g. a company or your employer), 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 Upstock, and You must immediately stop doing so.
2.1 We may change these Terms at any time by updating them on Upstock. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring that You are familiar with the latest Terms. By continuing to access and use Upstock, You agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, Upstock without notice or liability.
2.3 Terms last updated: These Terms were last updated on 24th May 2023.
3 DEFINITIONS AND INTERPRETATION
3.1 In these Terms:
3rd Party Payment Provider means Stripe or any replacement or additional 3rd party payment platform authorised by us
Buyer means a retailer who uses Upstock to:
Content means content, data, and information (including personal information and pricing information for Products) that is owned, held, used or created by You or on Your behalf, and that is then stored, transmitted via, inputted into or displayed via Upstock including, in the case of a Seller, all content, data and information uploaded on Upstock when creating a Listing
Fees means the applicable fees (plus Sales Tax if any) payable by You to us for Your use of Upstock as set out on our fees pages at https://go.upstock.app/ext/plans-and-pricing
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property
Listing means an advertisement or post by a Seller on Upstock offering Products to Buyers, or generally promoting the Seller as a supplier of Products
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
Objectionable includes, in our sole opinion, being objectionable, defamatory, obscene, harassing, threatening or unlawful, in any way
Order (and all other grammatical forms, e.g. Ordering) means a binding agreement for a Buyer to purchase, and a Seller to supply, Products. An Order may include or cross-refer to additional terms that apply between the parties for those Products. An Order is created when a Buyer requests the Seller to supply, and the Seller agrees to supply, Products via Upstock
personal information means information about an identifiable, living person
personnel means, if applicable, Your officers, employees, contractors, and agents who access and use Upstock on Your behalf
Products means any good, food item, beverage, material, supplies, equipment, or other product or service listed on Upstock
Related Service means any related service made available by us via Upstock, including directories, evaluation services, rating and review services, and/or chat rooms
Sample means a one-off supply of a Product by a Seller to a Buyer to enable the Buyer to assess whether it wants to Order the Product
Sales Tax means sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law
Seller means a wholesaler who uses Upstock to list or make available Products for Buyers to purchase
Terms means these terms and conditions titled Upstock Terms and Conditions, and includes any additional terms and conditions for a Related Service that are agreed under clause 4.10
Underlying Systems means the IT solutions, systems and networks (including software and hardware) we use to provide Upstock, including any third party solutions, systems and networks
Upstock means the Website and/or the Upstock mobile app (as applicable), and the Ordering service and Related Services made available via the Website
User means any person who accesses and uses Upstock, including a Buyer or a Seller
User Dispute means any dispute that arises between, or relates to, You and another User, or relates to any Order or other transaction made using or via Upstock, and includes (if applicable) any dispute that arises between, or relates to, You and a third party as a result of a communication as contemplated by clause 7.3d
User ID means a unique name and/or password allocated to You to allow You to access Upstock
we, us or our means Upstock Limited, New Zealand company number 5429181
Website means www.upstock.app (or another website notified by us)
You (and all other grammatical forms, e.g. Your) means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
3.2 In these Terms:
a clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
b words in the singular include the plural and vice versa; and
c a reference to:
i. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
ii. including, e.g., and similar words do not imply any limit; and
iii. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4.1 Upstock is a New Zealand based company that provides an online marketplace through which Buyers can Order Products from Sellers.
4.2 We act as an intermediary for Users to transact. We are not a party to any Order or any other agreement between Users. We are not an auctioneer or broker. When a Buyer requests from a Seller, and a Seller agrees to supply, Products under an Order, they are entering into an agreement directly and solely with each other.
4.3 Any interaction between You and another User, including any Order or other agreement entered into between You and another User, is a matter directly between You and them only. Other than our obligations set out in these Terms, we are not liable to You for any failure by any User to comply with these Terms, to comply with any Order or other agreement entered into between You and that User, or any other legal obligation.
4.4 Clauses 4.2 and 4.3 apply, with all necessary change, to an agreement between a Buyer and third party resulting from a communication contemplated under clause 7.3d.
4.5 We will use reasonable efforts to provide Upstock in accordance with these Terms and New Zealand law.
4.6 Our provision of Upstock to You is non-exclusive. Nothing in these Terms prevents us from providing Upstock to any other person.
4.7 Subject to clauses 4.8 and 4.9, we will use reasonable efforts to ensure Upstock is available on a 24/7 basis. However, it is possible that on occasion Upstock may be unavailable to permit maintenance or other development activity to take place, or due to an event that is beyond our reasonable control.
4.8 Through the use of web services and APIs, Upstock may interact with a range of third party service features, including the 3rd Party Payment Provider. We do not make any warranty or representation on the availability or performance of those features. Without limiting the previous sentence, if:
a a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to You. To avoid doubt, if we exercise our right to cease the availability of a third party feature, You are not entitled to any refund, discount or other compensation; and
4.9 Without limiting clause 2.2, at any time, we may change, remove or add to the features and functionality of Upstock, including changing, removing or adding Related Services. Your sole and exclusive remedy against us for any change, removal or addition is to terminate these Terms and your access and use of Upstock under clause 15.1.
4.10 From time to time, we may make available Related Services on Upstock. While a Related Service forms part of Upstock and are subject to these Terms, additional terms, conditions, and Fees may apply to Your use of that Related Service. Those additional terms, conditions, and Fees will be made available when you first access the Related Service or on the page on the Website that describes the Related Service. By accessing and using a Related Service, You agree to those additional terms, conditions, and Fees, and agree that the additional terms and conditions form part of these Terms.
5.1 You and Your personnel must:
a use Upstock in accordance with these Terms solely for lawful internal business purposes; and
b not resell or make available Upstock to any third party, or otherwise commercially exploit Upstock.
5.2 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.
5.3 You must keep Your User ID secure and:
a not permit any other person to use Your User ID, including not disclosing or providing it to any other person; and
b immediately notify us if You become aware of any unauthorised use or disclosure of Your User ID, by sending an email to firstname.lastname@example.org.
5.4 You must obtain our written permission to establish a link to Upstock. If You wish to do so, email Your request to email@example.com. Any website or social media linked to Upstock must:
a comply with all applicable laws; and
b not contain any Objectionable, incorrect or misleading content.
5.5 When accessing and using Upstock, You, and Your personnel, must:
a comply with all applicable laws, including the New Zealand Privacy Act 2020 the New Zealand Unsolicited Electronic Messaging Act 2007;
b not impersonate another person or misrepresent authorisation to act on behalf of others or us;
c not attempt to undermine the security or integrity of the Underlying Systems;
d not use, or misuse, Upstock in any way which may impair the functionality of the Underlying Systems or impair the ability of any other User to use Upstock;
e not attempt to view, access or copy any material or data other than:
i. that which You are authorised to access; and
ii. to the extent necessary for You to use Upstock in accordance with these Terms;
f neither use Upstock, nor transmit, input or store any Content, that breaches any third party right (including Intellectual Property Rights and privacy rights) or that is Objectionable, incorrect or misleading; and
g unless with our agreement, access Upstock via standard web browsers 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, monitoring or input method.
5.6 You are responsible for procuring all licences, authorisations, accounts and consents required for You to access and use Upstock, including to use, store and input Content into, and display Content and Listings using, Upstock, and for You to use the 3rd Party Payment Provider.
5.7 You must procure Your personnel’s compliance with these Terms, including clauses 5.1 to 5.6, and 11.
5.8 You indemnify us against all Loss we suffer or incur as a direct or indirect result of:
a any actual or alleged claim by a third party that any Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Content is Objectionable, incorrect or misleading;
b Your, or Your personnel’s, failure to comply with these Terms, including any failure of a person who accesses and uses Upstock by using Your User ID; or
c any Loss arising from or in connection with an actual or alleged breach by You of any legal or regulatory requirements which occurs in connection with Your use of Upstock, an Order, a Listing posted by or on Your behalf, your use of the 3rd Party Payment Provider, or any other relationship established by You through Upstock, including dealings with other Users.
6.1 This clause 6 applies to Users posting Listings on Upstock.
6.2 When creating a Listing, You must:
a provide accurate information, including on any Product or Sample offered in the Listing;
b if applicable:
i disclose the price payable for any Product offered in the Listing; and
ii provide any additional terms and conditions that apply to the Product offered in the Listing;
c provide any other information reasonably requested by us, including Your profile information; and
d comply with any Listing guidelines issued by us on the Website, as updated from time to time.
6.3 All descriptions and information in a Listing must be accurate, complete, up-to-date and truthful to the best of Your knowledge and belief.
6.4 If a Product in a Listing unavailable for any reason, You must to remove or suspend the Listing as soon as practicable.
6.5 You acknowledge and agree that You are responsible for all Listings that You and Your personnel post on Upstock. You represent and warrant that any Listing You post, or a User’s use of any Product or Sample in a Listing, will:
a comply any agreement You have entered into with any third parties;
b comply with all applicable laws; and
c not conflict with the rights of third parties.
7.1 Despite anything to the contrary in these Terms, whether You are a Buyer or a Seller, You acknowledge and agree that:
a Upstock enables the placing, accepting, tracking, and (to the extent described in clause 7.2) payment of Orders, but does not enable the handling of returns. Returns the subject of the Order must be completed outside of Upstock; and
b on acceptance of an Order by a Seller, the Order is a binding agreement between the Buyer and the Seller for the supply of the Products on the terms of the Order.
7.2 Without limiting clause 4.8, Upstock enables a Buyer to pay for Products as a credit or debit card, or direct debit, transaction (or using any other payment method made available by the 3rd Party Payment Provider for this purpose), and a Seller to receive that payment, using the 3rd Party Payment Provider. If You do not wish to use the 3rd Party Payment Provider or You do not have an account with the 3rd Party Payment Provider, the payment of Products under an Order must be completed outside of Upstock. If You use the 3rd Party Payment Provider, You agree that:
b You must provide accurate payment information to the 3rd Party Payment Provider, including updating the information to keep it current;
c all payments and/or monetary transactions are handled by the 3rd Party Payment Provider, and not us. We do not access, store or handle any payment information (including payment card information) provided by You to the 3rd Party Payment Provider;
d if You are a Buyer:
I where an Order enables the Seller to modify that Order (e.g. to add freight or convert the Order from volume to weight), that may impact on the price. The amount processed through the 3rd Party Payment Provider will be the modified price if modifications have been made; and
ii without limiting clause 7.2c, where your payment card details are saved for use via the 3rd Party Payment Provider for Orders with a particular Seller, that Seller may be able to generate standing or scheduled Orders or process an Order that was made outside of Upstock (e.g. via telephone); and
f without limiting clause 16.1, if the refund or reversal of a payment made via the 3rd Party Payment Provider is agreed between the Buyer and Seller, the Seller must process that payment via any mechanism that Upstock may make available for refunds or reversals, or make the payment to the Buyer directly, and not via the 3rd Party Payment Provider (which does not enable the refund or reversal of payments); and
g despite anything to the contrary in these Terms, we are not responsible or liable for:
i any payment and/or monetary transaction made using the 3rd Party Payment Provider;
ii the 3rd Party Payment Provider’s service, including any processing failure and resulting Loss to You; and/or
iii confirming any payment made using the 3rd Party Payment Provider.
In the future, Upstock may enable other payment methods for Products. If this occurs, Your use of those methods to make or receive payment will be subject to You agreeing to additional terms and conditions relating to that method (which may be incorporated into these Terms).
7.3 If You are a Buyer, the following terms apply to You.
a When You request the supply of Products via Upstock, You must include the number of Products You wish to purchase, the requested delivery date, and any other information reasonably required by the Seller.
b The Seller may propose alternative or additional terms that will apply if it accepts the Order, e.g. revising the delivery date or removing quantities of unavailable Product. If the Seller proposes alternative or additional terms, You may:
i accept those terms, in which case the revised request (with those accepted terms) will be submitted to the Seller for approval; or
ii reject those terms, in which case Your request for the supply of Products is revoked.
c When the Seller accepts an Order, You must pay for the Products the subject of the Order in accordance with the Order and comply with all other applicable terms of the Order.
d You may use Upstock to order products from a third party wholesaler of products who is not a User. In this case, your request for the provision of products will be emailed to the third party from Upstock. All communications and agreements between the Buyer and the third party are outside of Upstock. We have no control, responsibility or liability for those communications, agreements, or for that third party or their products.
7.4 If You are a Seller, the following terms apply to You.
a You may accept or reject an Order on reasonable grounds, or propose alternative or additional terms that would apply if You accept the Order.
b On acceptance of an Order, You must supply the Products the subject of the Order in accordance with:
i the terms of the Order;
ii any additional term that applies to the Listing through which the Products were Ordered; and
iii any applicable legal or regulatory requirement relating to the supply of the Products, e.g. ensuring the Buyer is 18 years old or over for alcohol purchases and ensuring that any regulatory requirement related to a restricted Product is met.
7.5 Where a Seller makes available Samples on Upstock, a Buyer may request a Sample from the Seller. If You are a Seller and You accept that request, You must supply the Sample to the Buyer within a reasonable period of time from that request.
8.1 You must pay us all applicable Fees (which may include paying us a percentage amount of the value of an Order where the payment is made using the 3rd Party Payment Provider) plus Sales Tax (if any) in accordance with the payment terms set out on https://go.upstock.app/ext/plans-and-pricing. All Fees must be paid electronically in cleared funds without any set off or deduction.
8.2 We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or if our primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
8.3 We may, by giving at least 30 days’ notice, increase the Fees from time to time. If You do not wish to pay the increased Fees, You may cease Your access to and use of Upstock (or the applicable part of Upstock to which the Fees apply, e.g. if a Fee applies to a Listing, You may remove Your Listings). If You do not cease Your access to and use of Upstock (or the applicable part of Upstock to which the Fees apply), You are deemed to have accepted the increased Fees.
9.1 Title to, and all Intellectual Property Rights in, Your Content (as between the parties) remains Your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
9.2 Without limiting clause 9.1, You acknowledge and agree that:
a we may:
i use Content and information about Your use of Upstock to generate anonymised and aggregated statistical and analytical data (Analytical Data);
ii use Analytical Data for our internal research, reporting, analytical and product development purposes, to conduct statistical analysis, and to identify trends and insights; and
iii supply analytical Data to third parties;
b title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
9.3 You acknowledge and agree that to enable proper use of Upstock (including Ordering and establishing issues related to Orders), Your Content needs to be used in conjunction with other Users’ content and those other Users will be able to view Your Content on the Website. By accessing and using Upstock, You:
a grant other Users a non-exclusive, non-transferable and fully paid licence to use your Content for the purpose of Ordering via Upstock and for determining the terms on which an Order was made, and grant us the right to make available Your Content for the purpose of this clause; and
b agree that we may retain a copy of your Content (which may be used by Upstock for the purpose of assisting to verify Orders, determining compliance with these Terms, and for general advertising and promotional purposes).
9.4 Our and User’s rights under clauses 9.1, 9.2 and 9.3 will survive termination of these Terms. Without limiting the previous sentence, if these Terms and Your access to and use of Upstock are terminated, we may remove Website access to Your Content provided this does not prevent another User or us from exercising the rights set out in clause 9.3.
9.5 You must ensure You have obtained all necessary consents for:
a us to access, collect, hold, process, distribute, and use the Content as described in these Terms, and for other Users to use the Content in accordance with clause 9.3a; and
b if applicable, Your communication and dealings with a third party as contemplated under clause 7.3d.
9.6 While we will use reasonable efforts to back up all Content stored using Upstock, You must keep separate and regular back-up copies of all Your Content uploaded onto Upstock.
10.1 Other than Your Content, we (and our licensors) own all Intellectual Property Rights in Upstock and the Underlying Systems, including all information, data, text, graphics, artwork, photographs, trade marks, logos, icons, sound recordings, videos and look and feel.
10.2 If You provide us with ideas, comments or suggestions relating to Upstock or Underlying Systems (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
11.1 You must treat all information available and otherwise provided through Upstock (including other User’s Content) as confidential, and may only use that information for the purpose of Ordering Products (including requesting, and agreeing to, the supply of Products), or obtaining the benefit of Related Services, through Upstock.
11.2 Confidential Information includes contact details of each User, but does not include any information already in the public domain, or independently known to You.
12.1 You are not required to provide personal information to us, although in some cases if You choose to not do so then we will be unable to make certain functions of Upstock unavailable to You.
13.1 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 any Content, Listing or Order, including a failure of a User to comply with an Order to which You are a party;
b Upstock being unavailable (in whole or in part) or performing slowly;
c the failure of any User to comply with these Terms;
d any error in, or omission from, any information (including Content) made available through Upstock, or that information (including Content) breaching any third party right (including Intellectual Property Rights and privacy rights) or being Objectionable, incorrect or misleading;
e if applicable, for any communication by You as contemplated under clause 7.3d and any resulting act or omission, including any order or other arrangement entered into by You as a result of that communication;
f 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 Upstock. To avoid doubt, You are responsible for ensuring the process by which You access and use Upstock protects You from this; and
g any site linked from Upstock. Any link on Upstock to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
13.2 All Listings, Orders, arrangements and agreements to buy, sell or provide Products or Samples, and any communication as contemplated under clause 7.3d, through Upstock, and the use of the 3rd Party Payment Provider, are carried out entirely at Your own risk. To the fullest extent permitted by applicable law, we exclude all liability for any Loss arising out of or in any way connected with Your dealings with other Users, User Disputes, Orders, Listings, any Content, and/or any communication as contemplated under clause 7.3d.
13.3 Without limiting clause 13.2:
a You rely on information (including Content) provided by other Users at Your own risk;
b You acknowledge and agree that we do not:
i control, inspect, endorse, approve or check the availability, condition or nature of any Products or Sample, or the accuracy, currency, truth or completeness of the information provided by Users and it is Your responsibility to do so. Without limiting the previous sentence, we do not endorse, approve, or recommend, or have responsibility for, any Product, Sample or Listing on Upstock;
ii undertake any credit or similar check on Users of Upstock and You are responsible for assessing another User’s suitability, reputation, and credit-worthiness before you deal with them on Upstock. Without limiting the previous sentence, we do not endorse, approve, or recommend, or have responsibility for, any User; and
c it is Your responsibility to take any other necessary precautions before placing, or agreeing to, an Order, or (if applicable) communicating as contemplated by clause 7.3d.
14.1 To the maximum extent permitted by law:
a You access and use Upstock at Your own risk; and
b we are not liable or responsible to You or any other person for any Loss under these Terms or in connection with Upstock, Your access and use of (or inability to access or use) Upstock, or Your use of the 3rd Party Payment Provider. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
14.2 You agree and represent that You are accessing and using Upstock, and placing and/or accepting Orders, for the purpose of trade. You and we agree that:
a to the maximum extent permissible by law, no consumer protection laws (including the New Zealand Consumer Guarantees Act 1993) apply to Your access and use of Upstock or these Terms; and
b it is fair and reasonable that the parties are bound by these Terms, including this clause 14.2.
14.3 To the maximum extent permitted by law and only to the extent clauses 13.2, 14.1 and 14.2 of these Terms do not apply:
a our total liability to You in connection with these Terms or Your access and use of Upstock will not exceed NZD100; and
b we will not be liable to You under or in connection with these Terms or under or in connection with Your access and use of Upstock for any:
i. loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill; or
ii. consequential, indirect, incidental or special damage or loss of any kind.
14.4 Clauses 14.1 to 14.3 do not apply to limit:
a our liability under or in connection with these Terms:
i. for personal injury or death; or
ii. for fraud or wilful misconduct; or
b any liability that cannot be excluded by law.
15.1 You may cease using Upstock at any time by removing Your account from Upstock and giving us no less than 30 days’ notice. If You do this, these Terms and Your right to access and use Upstock will terminate immediately.
15.2 Without limiting any of our other rights and remedies, we may terminate these Terms and Your right to access and use Upstock by giving no less than 20 days’ notice to You.
15.3 Either party may, by notice to the other party, immediately terminate these Terms and Your right to access and use Upstock if the other party:
a breaches any material provision of the Agreement and the breach is not:
i. remedied within 10 days or the receipt of a notice from the first party requiring it to remedy the breach; or
ii. capable of being remedied; or
b becomes insolvent, liquidated, bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed or becomes subject to any form of insolvency action of external administration, or ceases to continue business for any reason.
15.4 We may, by notice to You, immediately terminate these Terms, and your access to and use of Upstock, where (in our opinion) you have done something, or are likely to do something, that may damage our reputation or our business (including damaging the reputation of Upstock).
15.5 On termination of these Terms, you must fulfil Your obligations under any Order entered into prior to the date of termination and these Terms continue to apply to that Order.
15.6 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
15.7 Clauses which, by their nature, are intended to survive termination of these Terms and Your right to access and use Upstock, including clauses 5.8, 9 to 14, 15.5 to 15.8, and 16.
15.8 Subject to clause 15.5, no compensation is payable by us to You as a result of termination of these Terms for whatever reason, and You will not be entitled to a refund of any Fee or other amount that You have already paid to us.
15.9 Without limiting any other right or remedy available to us, we may restrict or suspend Your (or a member of Your personnel’s) access to and use of Upstock if we consider You have:
a undermined, or attempted to undermine, the security or integrity of Upstock or any Underlying Systems;
b used, or attempted to use, Upstock for improper purposes or in a manner, other than for normal operational purposes, that materially reduces the operational performance of Upstock;
c transmitted or stored any Content that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is, or may be, Objectionable, incorrect or misleading;
d failed to pay any Fee or other amount when due in accordance with clause 8; or
e otherwise materially breached these Terms.
16.1 Without limiting clauses 13.2 and 14, if a User Dispute arises:
a You authorise Upstock to provide Your contact details to the other User to enable You and the other User to discuss and attempt to resolve that User Dispute (even if that other User has not advised you of the User Dispute);
b You must resolve the User Dispute directly with the other User;
c if You cannot resolve the User Dispute directly, You are responsible for taking any legal action as You consider appropriate against the applicable User to resolve that User Dispute and without reference to Upstock; and
d without limiting the remainder of this clause, except for the provision of contact details under clause 16.1a, You will not request Upstock to supply any information, express any view, provide any assistance, or otherwise be involved, in a User Dispute.
16.2 Subject to clause 16.1, these Terms, and any dispute relating to these Terms or Upstock, 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 under or in connection with these Terms.
17.1 If we need to contact You or give You notice under these Terms, we may do so by email or by posting a notice on Upstock. You agree that this satisfies all legal requirements in relation to written communications and providing notice.
17.2 We are not liable to You for any failure to perform our obligations under these Terms to the extent caused by an event that is beyond our reasonable control.
17.3 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent. You remain liable for Your obligations under these Terms despite any approved assignment, subcontracting or transfer.
17.4 You agree that any of our related companies may exercise our rights, powers and/or benefits under these Terms including, to avoid doubt, invoicing and collecting payment from You of all applicable Fees. To avoid doubt, no consent from a related company is required for these Terms to be changed or terminated. In this clause, a related company has the meaning given under section 2(3) of the New Zealand Companies Act 1993 (read as if the word “company” in that section includes a body corporate anywhere in the world).
17.5 Subject to clause 17.4, no person other than us and You has any right to a benefit under, or to enforce, these Terms.
17.5 Except to the extent that clause 2.1 applies, any change to these Terms must be in writing and signed by both parties.
17.6 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
17.7 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.
17.8 These Terms set out everything relating to Your access and use of Upstock 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 Upstock that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the date You agree to these Terms.