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Welcome to WHINC.co.nz, a
peer-to-peer rental marketplace and online service provided by WHINC. This
Terms of Service Agreement ("Agreement") describes the terms and
conditions that govern your use of and participation in The
WHINC services. By accessing or using the Service, you signify that you
have read, understood, and agree to be bound by this Agreement. If
you do not agree to any of these terms or any future amendments, do not use or
access (or continue to access) the Service. This Agreement applies to all visitors,
users, and others who access the Service ("Users").
Please read this agreement carefully to ensure that you understand each provision. You understand and agree that The WHINC is not a party to any agreements entered into between renters and owners, nor is The WHINC an agent or insurer. The WHINC has no control over the conduct of renters or other users of the service and disclaims all liability in this regard. This agreement contains a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
This Service is intended solely for people eighteen (18) years of age or older, and any registration, use or access to the Service by anyone under 18 is strictly prohibited. WHINC reserves the right to limit or restrict access by any person, in our sole discretion.
END USER LICENSE
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable, license to use the Service for your personal, noncommercial use only. WHINC may terminate this license at any time for any reason or no reason.
You agree to defend, indemnify and hold harmless WHINC and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service or Products; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
If you choose to use the service and/or participate in a rental, you do so at your own risk. The service and any products are provided on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from WHINC or through the service will create any warranty not expressly stated herein. Without limiting the foregoing, WHINC, its subsidiaries, and its licensors do not warrant that the content is accurate, reliable or correct; that the service or any rental will meet your requirements; that the service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the service is free of viruses or other harmful components. You will be solely responsible for any damage or loss that results from your use of the service or products.
LIMITATION OF LIABILITY
Except as expressly provided in the insurance provision, to the maximum extent permitted by applicable law, in no event shall WHINC, its affiliates, agents, directors, employees, supplier, or its licensors be liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use this service, including without limitation any rental.
To the maximum extent permitted by applicable law, WHINC assumes no liability or responsibility for any (I) Errors, mistakes, or inaccuracies of content; (II) Personal injury or property damage of any nature whatsoever, resulting from your access to or use of our service or products; (III) Any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (IV) Any interruption or cessation of transmission to or from the service; (V) Any bugs, viruses, or the like that may be transmitted to or through our service by any third party; (IV) Any errors or omissions in any content or for any loss or damage incurred as a result of the us of any content posted, emailed, transmitted, or otherwise made available through the service; and/or (VII) User content or the defamatory, offensive, or illegal conduct of any third party. In no event shall WHINC, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the greater of either (a) The amounts paid by WHINC to you in the twelve (12) month period prior to the event giving rise to the liability; or (b) One hundred dollars ($100). The limitations of damages set forth above are fundamental elements of the basis of the bargain between WHINC and you. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if WHINC has been advised of the possibility of such damage. The forgoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WHINC without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
We may terminate your participation in the Service at any time, for any reason or no reason, without explanation. We maintain sole discretion to bar your use of the Service in the future, for any reason that we determine or for no reason. This Agreement will remain in effect after your participation in the Service terminates.
You agree that: (i) the Service shall be deemed solely based in Auckland; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over WHINC, either specific or general, in jurisdictions other than Auckland. This Agreement shall be governed by the internal substantive laws of Auckland. You agree to submit to the personal jurisdiction of a local court located in Auckland, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
In the unlikely event that WHINC has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any WHINC claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration in the Region of Auckland. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorney's fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing WHINC from seeking injunctive or other equitable relief from the courts as necessary to protect any of WHINC’s proprietary interests. All claims must be brought in the party’s individual capacity, and not as a class member in any purported class or representative proceeding. You agree that, by entering into this agreement, you and WHINC are each waiving the right to a trial by jury or to participate in a class action.
This Agreement, together with all amendments, all documents referenced in this Agreement, and any other legal notices and agreements published by WHINC via the Service, shall constitute the entire agreement between you and WHINC concerning the Service. If a court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of
this Agreement shall be deemed a further or continuing waiver of such term or
any other term, and WHINC's failure to assert any right or provision
under this Agreement shall not constitute a waiver of such right or
Using the services
You must not use the services in a way which:
- breaks any laws;
- infringes anyone's rights; or
- is malicious, obscene or offensive.
WHINC (we, us, our) complies with the New Zealand Privacy Act 1993 (the Act) when dealing with personal information. Personal information is information about an identifiable individual (a natural person). This policy sets out how we will collect, use, disclose and protect your personal information. This policy does not limit or exclude any of your rights under the Act. If you wish to seek further information on the Act, see www.privacy.org.nz.
CHANGES TO THIS POLICY
We may change this policy by uploading a revised policy onto the website. The change will apply from the date that we upload the revised policy.
- you, when you provide that personal information to us, including via the website and any
related service, through any registration or subscription process, through any contact with us
(e.g. telephone call or email), or when you buy or use our services and products
- third parties where you have authorised this or the information is publicly available.
HOW WE USE YOUR PERSONAL INFORMATION
We will use your personal information:
- to verify your identity
- to provide services and products to you
- to market our services and products to you, including contacting you electronically (e.g. by text
or email for this purpose)
- to improve the services and products that we provide to you
- to undertake credit checks of you (if necessary)
- to bill you and to collect money that you owe us, including authorising and processing credit
- to respond to communications from you, including a complaint
- to conduct research and statistical analysis (on an anonymised basis)
- to protect and/or enforce our legal rights and interests, including defending any claim
- for any other purpose authorised by you or the Act.
- another company within our group
- any business that supports our services and products, including any person that hosts or
maintains any underlying IT system or data centre that we use to provide the website or other
services and products
- a credit reference agency for the purpose of credit checking you
- other third parties (for anonymised statistical information)
- a person who can require us to supply your personal information (e.g. a regulatory authority)
- any other person authorised by the Act or another law (e.g. a law enforcement agency)
- any other person authorised by you.] [A business that supports our services and products may be located outside New Zealand. This may mean your personal information is held and processed outside New Zealand.