Terms of Service
These terms and conditions comprise the terms on which we will provide services and platform access to you (Terms of Service).
1. Term
1.1. A legally binding agreement will be formed on the date you accept the Terms of Service by marking “Accept T&C’s” during sign up and will remain in full force and effect until the agreement is terminated in accordance with these Terms of Service.
2. Accepting the terms
2.1. By engaging us to provide the Service and registering for access to the Platform, you accept and agree to be bound by these Terms of Service between you and Vesta eCommerce Limited of Auckland, New Zealand (“we”, “us”, “our” and other similar expressions). 2.2. You acknowledge that these Terms of Service are between you and us only.
3. Defined terms
3.1. In these Terms of Service the following words have the following meanings: “Brand” means your brand and includes trade marks and names; “Confidential Information” means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property Rights owned by us (or our licensors). Your Confidential Information includes the Personal Information and the Price Data. “Intellectual Property Rights” has the meaning given in clause 16.2; “Personal Information” means information about an identifiable, living person that you make available to us; “Platform” means the Vesta product data distribution platform as further described on the Website; “Price Data” means any pricing information you supply us about your products; “Product Data” has the meaning given in clause 8.1; “Service” has the meaning given in clause 5.1; “Support Services” has the meaning given in clause 5.1(b); “your Site or App” means your online store, website, web or mobile application or e-commerce facility, and excludes the Website; “Website” means https://www.vesta-central.com/.
4. Variation
4.1. We may at any time vary the Terms of Service by publishing the varied Terms of Service on our Website and/or Platform. You accept that by doing this, we have provided you with sufficient notice of the variation and agree to be bound by the most current version of the Terms of Service published on the Website and/or Platform.
5. Service
5.1. The Service means: (a) utilisation of the tools, systems and various engines included in the Platform; and (b) provision of ongoing support for the Platform (“Support Services”). 5.2. Your access to, and continued use of, the Platform and Service are contingent on, and at all times subject to, payment of the subscription fees for the Service. Except as otherwise expressly stated in these service terms, no other right, title or interest in the Platform are granted to you.
6. Fees and Payment
6.1. Your subscription may be subject to a minimum initial subscription period and/or we may make available various subscription period options (e.g. 12 or 24 month subscriptions). The fees payable for the Platform and your subscription period are set out under My Account > Usage & Plan or the proposal provided. 6.2. The fees payable may vary from time to time by notice being published the Website. Changes to the fees will take effect immediately following the expiry of the subscription period in which we notify the change to you. 6.3. Unless otherwise agreed, if you are subscribed to a monthly subscription, payment terms are that our fees will be billed monthly in advance to the credit card on file on your monthly anniversary date. 6.4. If your subscription is subject to a minimum initial subscription period and/or you have selected a subscription period other than monthly: (a) unless otherwise agreed, our fees will be billed in advance of the relevant subscription period to the credit card on file; and (b) at the end of the subscription period, your subscription will automatically renew for successive subscription periods of the same length, unless you notify us at least 30 days prior to the end of the then-current subscription period that you wish to change to an alternative subscription period. 6.5. For the avoidance of doubt, you must still pay the subscription fees in accordance with this clause even if you have chosen not to use the tools and services provided by the Platform during a given month. 6.6. All pricing excludes applicable Tax and will be charged in USD/AUD/NZD depending on your currency selection (Tax includes sales tax, VAT, GST and taxes of a similar nature). All of our fees must be paid without deduction or set off.
7. Content provided by You
7.1. If the plan that you choose allows for data customisation, you may do so using the tools provided within your portal at no additional cost to you. 7.2. All content that you submit should be copies and not originals and should be of a high quality standard. 7.3. We reserve the right, in our sole discretion, to refuse to use any content we believe is objectionable, defamatory, obscene, harassing, threatening, or unlawful or which may infringe on the intellectual property or privacy rights of a third party. 7.4. Unless we have otherwise expressly agreed, we will not return any content to you, and you are responsible for maintaining back-up copies of all submitted content. Under no circumstances will we be responsible or liable for any loss or damage to any of your content. 7.5. We claim no ownership over your content. You expressly grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence to cache the entirety of the data including your content. You agree that any such caching is not an infringement of any of your Intellectual Property Rights or any third party’s Intellectual Property Rights. 7.6. Where data is used for purposes such as, but not limited to, your Site or App, we are not responsible for any content (including, but not limited to the Product Data) contained on your Site or App. You are solely responsible for ensuring that your Site or App complies with all applicable laws and regulations and does not infringe any third party’s rights at all times, and that all information on your Site or App is accurate and complete. 7.7. Before using our integration tools to make any changes to your data it is strongly recommended you have appropriate back-ups. Under no circumstances will we be responsible or liable for any loss or damage to any of your content. 7.8. You represent and warrant to us that: (a) you have full rights to use, broadcast and distribute any content that you supply; (b) the content that you supply is accurate, complete and not misrepresentative or misleading and does not plagiarise, libel, defame, or harm any party; (c) your use of the Platform will not invade the rights of privacy of any third party or otherwise infringe on or violate the rights or property interests of any third party.
8. Product Data
8.1. For the purposes of this agreement, “Product Data” means the visual and written materials in relation to products that you offer for sale or supply (and any updates to those materials from time to time) made available by you to us, including, but not limited to, photographs, descriptions, attributes, hyperlinks, screen shots, sizing, dimensions, pricing, weights for shipping calculations. 8.2. We expressly disclaim all liability to you or any third party for any infringement of intellectual property or proprietary rights. We will not be responsible for, or provide any advice or guidance in respect of, any potential Intellectual Property Rights issues which may arise from your use of the Product Data.
9. Licence and consent
9.1. You: (a) grant to us the non-exclusive right to publish, reproduce and communicate to any of our customers and the public at large, all of the Product Data (but not Price Data or Personal Information), or an extract of the Product Data (but not Price Data or Personal Information), in any format (including printed, electronic, digital or other format invented hereafter) alone or with other works; (b) grant us the non-exclusive right to disclose your Price Data to one or more of our customer retailers if you have directed us to do so through the Platform; (c) grant to us the right to gather or collect the Product Data from you by electronic or other means and store such Product Data within our own systems; (d) grants the above rights to us provided that we will only edit the Product Data to correct obvious typographical and formatting errors and to enable the Product Data to be reproduced in a format which is compatible and consistent with our Websites (and those we create for our customers) and the other materials with which the Product Data may be published; and (e) acknowledge and agree: (i) that we make no promise, and are not obliged, to exercise any of the rights that granted above; (ii) that, by exercising the rights granted above we will earn revenue for our benefit; (iii) that you will not be paid any consideration (cash or otherwise) for granting the rights in this licence and consent; and (iv) that we may exercise the rights granted above to promote our services and the Product Data and, for this purpose, you authorise us to use your name and Brand. 9.2. You represent and warrant to us that: (a) you are authorised to grant the rights set out in clause 9.1 and to authorise us to collect the Product Data; (b) you are the sole owner of the Product Data in which Intellectual Property Rights (including copyright) subsists or, to the extent that the Intellectual Property Rights in the Product Data are owned by a third party, you are authorised by the author to grant to us the rights referred to in clause 9.1; (c) you are free to licence use of the Product Data to any third party; and (d) we, by exercising the rights granted by you above, will not infringe the rights of any third party (including Intellectual Property Rights). 9.3. You represent and warrant that you, or where you are not the original author of the Product Data, you have procured the original author(s) of the Product Data to: (a) unconditionally and irrevocably consent to any act or omission which may or might otherwise constitute a breach or infringement of the owner’s or their moral rights in respect of the Product Data and, to the extent permitted by applicable law, waive all moral rights the owner or they may have in the Product Data that is conferred on them by legislation in anywhere in the world. (b) give such consent and grant such waiver for the benefit of us, our licensees, successors in title and any persons authorised by us for these purposes; (c) confirm that the consent given and waiver granted in this clause applies to an act or omission whether it occurs before or after the date of your acceptance of these Terms of Service; and (d) confirm that such consent and waiver is genuinely given and that no duress has been applied in connection with the giving of it, and that such consent and waiver operates in all jurisdictions in which such consents and waivers are enforceable.
10. Indemnity
10.1. You indemnify us and our affiliates and our and their respective officers, agents, partners, directors, shareholders, suppliers and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses, including reasonable legal fees which any such party may incur arising out of or relating to: (a) your content or your modification, display and use of the Platform; (b) claims that the products and services you offer for sale or supply are defective, injurious or harmful or violate the rights of any third party; (c) our use or our customers’ use of, or reliance on, any content (including but not limited to the Product Data, pricing information and any image, trading names, data, information, specifications, documentation, computer software or other materials) provided by you; (d) our compliance with any of your directions or instructions in relation to the provision of the Service or your use of the Platform; (e) your breach of these Terms of Service; OR (f) ANY ORDER OR CONTRACT TO BUY OR SELL PRODUCTS FACILITATED IN ANY WAY BY THE PLATFORM OR THE SERVICE. 10.2. We reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us and you agree to cooperate with our defence of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. Ownership and Use of Product Data
11.1. We will not edit, change or otherwise manipulate any Product Data other than necessary formatting or customisation to ensure that the Product Data is able to be displayed legibly. 11.2. You must ensure that the Product Data or any other content will not violate or infringe on the rights (including Intellectual Property Rights) of any other person. 11.3. Product Data can only be changed using the tools provided through your portal. 11.4. If we form the view (acting reasonably) that any Product Data breaches the Intellectual Property Rights of any third party or has been plagiarised, we reserve the right to remove such Product Data from the Platform and without notice to you. 11.5. You may, through use of the platform, provide a ‘Link back’ from the product pages for your products on the Platform to your Site or App. In this event, the provisions of clause 12 will apply.
12. Hyperlinks
12.1. You may elect to include on your product pages on the Platform links that give a user access to the communications, content, products, services or websites of a third party (“Third-Party Content”) over which we have no control. We do not monitor, investigate, sponsor, endorse, adopt, confirm, guarantee or approve the Third Party Content. We do not control and make no representation about the accuracy, integrity, or quality of Third-Party Content. 12.2. Your inclusion of links to Third-Party Content is at your sole discretion and risk. We have no liability to you in connection with your inclusion of links to the Third-Party Content.
13. Third party apps
13.1. You may elect to use third party applications in conjunction with the Platform, including third party applications made available through the app store accessible through the Platform and/or the Website (“Third Party Apps”). 13.2. If you enable Third Party Apps in conjunction with the Platform, you acknowledge that we may allow the providers of those Third Party Apps to access your data (including Product Data and Price Data) held within the Platform as required for the interoperation of the Third Party Apps with the Platform. 13.3. We do not monitor, investigate, sponsor, endorse, adopt, confirm, guarantee or approve the Third Party Apps or their providers. We do not control and make no representation about the accuracy, integrity, or quality of Third Party Apps or their providers. 13.4. Your access to and use of Third Party Apps is at your sole discretion and risk. We have no liability to you in connection with your use of any Third Party Apps. Without limiting the foregoing, we are not responsible for any disclosure, modification or deletion of your data (including Product Data and Price Data) resulting from any access to that data by Third Party Apps or their providers.
14. Analytical data
14.1. We may, from time to time, offer as optional services: (a) analytical data about the use of the Platform and Product Data (including the use of the Product Data in retailers’ site and apps) by retailers on the Platform and the end users of the retailers’ site and apps (“Analytical Data”); and (b) comparative benchmarking data as against other suppliers (on an anonymised and aggregated basis). 14.2. You will only have access to Analytical Data relating to your own products. 14.3. Retailers are able to: (a) opt out of the collection of Analytical Data; (b) opt out of us supplying the Analytical Data to any third party (which includes product supplier and manufacturers on our platform); (c) require us, when supplying the Analytical Data to any third party, to only do so an anonymised and aggregated basis (which means that, if there are not enough data points available to enable us to anonymise and aggregate Analytical Data about a particular retailer, Analytical Data about that retailer will not be provided); or (d) authorise us to provide identifiable details about the retailer to another person. 14.4. We exclude all warranties and liability in relation to any Analytical Data or benchmarking data that we may provide you, and in particular (but without limitation) as a result of the limitations above we do not warrant that Analytical Data or benchmarking data will be accurate or complete. 14.5. Where we provide Analytical Data about an identifiable retailer and/or contact details for a retailer about whom we have provided you with Analytical Data, you must keep that Analytical Data and any information disclosed to you by the retailer as a result of any contact confidential.
15. Support Services
15.1. We will supply the Support Services to you in consideration for payment of the subscription fees in accordance with clause 6 15.2. If you do not pay the subscription fees, we will immediately cease providing the Support Services. 15.3. The nature of the Support Services will vary depending on plan that you choose.
16. Your obligations
16.1. You must provide us with such co-operation and support as we may reasonably request to perform the Service including by: (a) providing accurate and prompt responses to our requests for any information or documentation reasonably required by us to perform the Service; (b) ensuring that all information that you provide to us including, without limitation, when creating any account must be accurate, current and complete and must be maintained by you on an ongoing basis. 16.2. You must not, nor cause or permit a third party to: (a) use the Platform in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s rights (including all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trademarks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields (“Intellectual Property Rights”)) or which restricts or interferes with our provision of the Service to any other customer or user; (b) reverse engineer, disassemble or decompile all or part of the Platform or attempt to derive the source code or structure of the Platform (except as and only to the extent any foregoing restriction is prohibited by applicable law); (c) modify, reproduce, or create derivative works of the Platform; (d) remove any copyright or other proprietary notices contained in the Platform; (e) directly or indirectly export or re-export the Platform; or (f) remove, circumvent, or interfere with any digital rights management or security tools or other similar technologies available on or in the Platform. 16.3. You agree that you will not use the Platform to: (a) upload or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) attempt to gain unauthorised access to, or interfere with, servers or networks connected to or used with the Platform or violate the policies of such networks, through hacking, or any other means; or (c) use the Platform or the Service to engage in any illegal or unlawful activity, whether intentionally or unintentionally. 16.4. You agree that you are solely responsible for the backup of any data, websites or information (including without limitation email files, databases, hosted files etc) which may be replaced pursuant to the provision of the Service (including, without limitation as a result of the publishing of the data). Other than in respect of any Product Data provided, you are solely responsible for ensuring that you have all requisite rights and licences to the content you publish and use.
17. Authorisations
17.1. You grant us a worldwide, perpetual, royalty-free and sub-licensable licence to create, publish and use screen shots or depictions of your Site or App and your Brand (including any content) for our marketing activities. You may withdraw consent to this use by notifying us in writing and we will take reasonable steps to process your removal request. 17.2. You agree you are responsible for obtaining agreement and/or consents required of any third parties in connection with the grant of any licences to us under these Terms of Service.
18. Intellectual Property
18.1. Nothing in this agreement transfers to either party any Intellectual Property Rights owned by the other party existing prior to the commencement of the Service. 18.2. All Intellectual Property Rights in the Platform and any content provided, other than those pre- existing Intellectual Property Rights are and will remain owned by us and you hereby assign such Intellectual Property Rights in the Platform (both present and future) to us.
19. Limitation of liability
19.1. Nothing in these Terms of Service is or should be interpreted as an attempt to modify, limit or exclude terms, conditions, warranties and guarantees which are imposed by any applicable law and which cannot be modified, limited or excluded (including statutory rights under any applicable consumer protection legislation) (a Non-Excludable Provision). To the fullest extent permitted by law, we exclude all other terms, conditions, warranties and guarantees which might be implied into these Terms of Service. 19.2. Other than any Non-Excludable Provision, you do not rely on any representation, term, warranty, condition, guarantee or other provision made by us or on our behalf which is not expressly stated in these Terms of Service. In particular, the Service and the Platform are provided on an “as-is” and “as available” basis and we make no warranty or representation that: (a) the Platform and/or Service will meet your requirements; (b) the Platform will be compatible with your mobile device or computer; (c) the Platform and/or distribution of the Product Data and other services provided by us will lead to an increase in sales for your business; (d) the Platform will be available on an uninterrupted, timely, secure, or error-free basis; (e) the Platform will not infringe the Intellectual Property Rights of any person; (f) the Platform will be accurate, reliable, complete, legal, or safe; (g) the Platform is appropriate for use in your specific country, state, region or jurisdiction; or (h) ANY PRODUCT ORDERED OR PURCHASED FROM YOU AS A RESULT OF USING THE PLATFORM OR SERVICE WILL meet THE PURCHASER’S requirements, WILL COMPLY WITH ANY SPECIFICATIONS, OR WILL NOT INFRINGE the Intellectual Property Rights of any person; OR (i) ANY PERSON WHO ORDERS PRODUCTS FROM you OR TO WHOM YOU SELL PRODUCTS AS A RESULT OF USING THE PLATFORM OR SERVICE WILL PERFORM SUCH ORDER OR CONTRACT. 19.3. If we are prohibited from modifying, limiting or excluding your remedy for a breach of the Non- Excludable Provision, then our total liability for breach of the Non-Excludable Provision is limited, at our option, to the supplying of the Service again. 19.4. Subject to clauses 19.1 and 19.3, we disclaim any liability under these Terms of Service or in connection with the Service, arising out of any breach of contract, breach of warranty, tort (including negligence and strict liability), breach of statutory duty, under an indemnity or any other theory, including but not limited to any liability arising out of or caused by: (a) any computer virus, trojan horse or other damage caused by malware or hackers; (b) any malfunction or failure of our or your software, system, hardware or connectivity; (c) improper or unauthorised use of the Platform; (d) your use of the Platform in breach of these Terms of Service; (e) any reasons beyond our reasonable control or predictability; (f) any loss of business, loss of revenues, loss of profits, loss of goodwill, loss of content, loss of data, or any other indirect, special, consequential, exemplary or punitive damages. 19.5. WE ARE NOT LIABLE TO YOU FOR ANY LOSS, LIABILITY OR DAMAGE YOU INCUR IN CONNECTION WITH ANY ORDER OR CONTRACT FOR THE SALE OR PURCHASE OF ANY PRODUCT THAT RESULTS FROM THE USE OF THE PLATFORM OR THE SERVICE, INCLUDING, BUT WITHOUT LIMITATION, ANY LOSS, LIABILITY OR DAMAGE RELATING TO: (a) THE FUNCTIONS, QUALITY OR PERFORMANCE OF THE PRODUCT; OR (b) THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER OR CONTRACT FOR PRODUCTS BY THE PURCHASER.
20. Security
20.1. You must make your own precautions to ensure that the process which you use for accessing the Platform and using the Service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your computer or mobile device.
21. Availability and support
21.1. While we intend to make the Platform available 24 hours a day, seven days a week, we may temporarily limit or suspend the availability of all or part of the Platform if it is necessary for reasons of public safety, security or maintenance of the Platform, interoperability of Platform, data protection or to perform work that is necessary for operational or technical reasons.
22. Ownership
22.1. We (and our licensors, where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to the Platform. No rights of ownership in or related to the Platform, are conveyed to you. The Vesta name and related logos belong to us (and our licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. We (and our licensors, where applicable) reserve all rights not granted in these Terms of Service. 22.2. In the event of any third party claim that the Platform or your possession and use of the Platform infringes that third party’s Intellectual Property Rights, we will be solely responsible for the investigation, defence, settlement and discharge of any such claim.
23. Privacy and confidentiality
23.1. Each of us (i.e. you and we) must comply with all applicable laws and codes dealing with an individual’s privacy. 23.2. We collect, store, use and disclose personal information in accordance with our privacy policy – available here https://www.vesta-central.com/Privacy 23.3. Each party must, unless it has the prior written consent of the other party: (a) keep confidential at all times the Confidential Information of the other party; (b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and (c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 23.3(a) and 23.3(b). 23.4. The obligation of confidentiality in clause 23.3 does not apply to any disclosure or use of Confidential Information: (a) under clause 9 or otherwise for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms of Service; (b) required by law (including under the rules of any stock exchange); (c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel; (d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or (e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than clauses 23.3 and 23.4.
24. Suspension
24.1. We may without notice suspend your access to and use of the Platform and/or the Service if: (a) you breach these Terms of Service; or (b) we reasonably believe that your access and use of the Platform and/or the Service will cause technical incapacity to the Platform and/or the Service which will continue unless access or use is suspended. 24.2. You must not object to any delay in restoring access to the Platform or the Service when a suspension is lifted. We will act promptly to restore access when we are satisfied that the reason for suspension has been removed.
25. Delivery and force majeure
25.1. Timeframes we provide for the performance of services are good faith estimates only. We will use reasonable endeavours to comply with such time frames but time is not of the essence in the adherence to such time frames. 25.2. We are not responsible for any delay in performing or failure to perform any of our obligations under the contract to the extent that failure is due to an event or circumstance beyond our reasonable control (including any failure by you to perform any of your obligations under the agreement or any of your other wrongful acts or omissions).
26. Termination
26.1. In addition and without prejudice to any other rights or remedies, we may terminate the agreement and your access to the Platform at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated any other provision of these Terms of Service. 26.2. You may terminate this agreement at any time on written notice to us 26.3. This agreement will automatically terminate and your access to the Platform and Support Services will immediately cease should you fail to pay any of the fees that become due and payable to us under these Terms of Service. 26.4. On termination of this agreement: (a) you will not be entitled to any refund of any fees already paid. (b) if the termination occurs part way through a subscription period for which the subscription fees have not been fully paid in advance: (i) you must pay the subscription fees for the remainder of the subscription period left to run as at the date of termination; or (ii) alternatively, where you have selected an optional extended subscription period (e.g. an optional 12 or 24 month subscription), we may, at our sole discretion, elect to charge you the difference between the subscription fees paid by you and the subscription fees that would have been payable to the date of termination had you selected a monthly subscription. You must pay any amount payable under this clause 26.4(b) immediately following the date of termination or, where clause 26.4(b)(ii) applies, immediately following receipt of our invoice. (c) your right to use the Platform will automatically terminate immediately. (d) ongoing support services supplied by us will cease immediately; (e) all licences granted to you under these Terms of Services will be terminated immediately. 26.5. Termination of the agreement does not affect any accrued rights or liabilities either you or we have under the agreement nor does it affect any provision these Terms of Service which is expressly or by implication intended to operate after termination. 26.6. In addition to any other obligation in these service terms, on cancellation or termination of this agreement, we may delete all data including any content, files (including without limitation email files if applicable) from our systems (including any storage media) without any liability to you whatsoever.
27. Notices
27.1. Notices given under these Terms of Service must be in writing and delivered by email. The address for delivery of a notice to you is the email address linked to your account. The address for delivery of a notice to us is: Vesta eCommerce Limited Email: [email protected]
28. General
28.1. These Terms of Service constitute the entire understanding between the parties and supersede all previous and contemporaneous communications, representations, or agreements with respect to your access and use of the Service and/or Platform. 28.2. Nothing in these Terms of Service will create an agency, partnership, joint venture, employee- employer or franchisor-franchisee relationship between you and us 28.3. No failure or delay of either party in exercising any right, power, or privilege under these Terms of Service (and no course of dealing between the parties) operates as a waiver of any such right, power of privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege. 28.4. If any provision of these Terms of Service is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision. 28.5. If any one or more of the provisions of these Terms of Service are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these Terms of Service will be unimpaired and will remain in full force and effect. 28.6. Your rights and obligations under these Terms of Service are personal and may not be assigned or dealt with in any way without our approval, which we may withhold in our absolute discretion. 28.7. Each party must do everything reasonably required by the other to give full effect to these Terms of Service. 28.8. In the interpretation of these Terms of Service, the following provisions apply unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; (c) a reference to any gender includes all genders; (d) a reference to any party to these Terms of Service or any other document or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns; (e) a reference to dollars or $ means the currency you select unless otherwise defined; (f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; (g) headings are for ease of reference only and do not affect interpretation; (h) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms of Service or any part of it; and (i) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar inclusive expressions. 28.9. These Terms of Service and all matters regarding the interpretation and/or enforcement of these Terms of Service, are governed exclusively by the laws in force in New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
