Clocked's Terms and Conditions of Use

Terms and Conditions of Use

Clocked is an online video game and film trading community for New Zealanders and Australians operated by Clocked Limited (New Zealand company number 2335935). These terms and conditions are intended to help keep Clocked a safe place to exchange games and DVDs (among other items). This is an agreement between Clocked Limited and its users. The Clocked website ("Website") is comprised of various web pages operated by Clocked Limited.

1. These Terms and Conditions

1.1 Acceptance of terms and conditions: These terms and conditions are the terms on which Clocked Limited offers you access to and use of the Website and the Services. By registering as a member of Clocked or by using the Website or the Services, you accept these terms and conditions in full. By accepting these terms and conditions, you agree that these terms and conditions will apply whenever you access or use the Website or Services, or whenever you use the tools we make available to you in relation to the Website or Services. If you do not accept these terms and conditions, you must refrain from using the Website and Services. By using the Website or Services you are deemed to have read, fully understood and accepted these terms and conditions in full. You must be at least 18 years of age to register as a member of Clocked or use the Website and the Services and by registering as a member of Clocked or using the Website and/or the Services, you warrant to Clocked Limited that you are at least 18 years of age. If, as between you and another person, you are registering as a member of Clocked or using the Website or Services for and/or on behalf of that person you shall nonetheless be bound by these terms and conditions, and in addition to the foregoing, you warrant that you have authority to bind that person to these terms and conditions and you further warrant that that person is at least 18 years of age and has also read, fully understood and accepted these terms and conditions in full.

1.2 Amendment of terms and conditions: These terms and conditions may be amended, altered, changed, modified or updated in whole or in part by Clocked Limited from time to time at its sole and absolute discretion including, but not limited to, the charges associated with the use of the Website and the Services. Amendments will be effective immediately upon posting of the amended, changed, modified or updated terms and conditions on this Website. You are responsible for ensuring that you are familiar with the latest terms and conditions. Your continued access and use of the Website and Services represents your agreement to be bound by the terms and conditions as amended, altered, changed, modified or updated.

1.3 These terms and conditions were last updated 12 October 2009.

1.4 Terminology: In these terms and conditions, the following expressions have the meanings set out:

"Clocked" is a reference to the Website.

“we”, “us” and “our” are a reference to Clocked Limited.

“Website” has the meaning given to it in clause 1 and includes any other website through which the Services are offered.

“you” and “your” are a reference to you and where, as between you and another person, you are registering as a member of Clocked or using the Website or Services for and/or on behalf of that person as outlined in clause 1.1, “you” and “your” include a reference to that person.

“Communication Services” has the meaning given to it in clause 4.5.

“exchange” means the process whereby an item owned by one member is, or multiple items owned by one member are exchanged for an item or items owned by another member, or any other analogous transaction through the Website.

“item” means any good that is listed on the Website for exchange.

“Linked Site” has the meaning given to it in clause 2.3(d).

“lister” includes any member placing a listing or accepting an offer for exchange.

“listing” means any listing on the Website through which you advertise any item for exchange.

“member” means a registered member of the Website.

“offering party” means a member making an offer for exchange.

“person” includes an individual, a body corporate, an association of persons (whether corporate or not) and a trust, in each case, whether or not having a separate legal personality.

“related company” has the meaning given to it in section 2(3) of the Companies Act 1993.

“Services” means any service offered on the Website or offered by Clocked Limited from time to time, including, without limitation SafeSwap.

"Submissions” has the meaning given to it in clause 4.6(a).

2.      Specific Warnings

2.1 The Services: Clocked provides a venue to introduce members who want to exchange items. If an offer for exchange is accepted by a member with a listing, the relevant contract will be formed between the parties directly. Clocked Limited is not an auctioneer (whether under the Auctioneers Act 1928 or otherwise). Clocked Limited makes no guarantee as to the content, safety or legality of the items listed or the ability of any party to complete the exchange. Clocked Limited assumes no responsibility for the timeliness of communications, the mis-delivery of information, the in-availability of the service, or the misconduct of any of its members.

2.2 At your own risk: Exchanges and all other contacts between you and other members are conducted and entered into solely and entirely at your own risk. You agree that Clocked Limited takes no responsibility and does not have any liability of any nature whatsoever for any misconduct of any of its members including, without limitation, members that have registered under false pretences or who defraud you (or attempt to do so). Clocked Limited gives no undertakings, representations or warranties in relation to members of Clocked or items exchanged or listed on the Website, including:

a. about ownership of any item;

b. as to the content, safety, description, worthiness, quality, or legality of the items that are listed on the Website;

c. as to the accuracy or truth of listings;

d. that any item will meet your requirements or expectations; or

e. about the ability of members to complete an exchange, including, without limitation, postal delivery.

2.3 Disclaimer: You expressly understand and agree that:

a. your use of the Website and Services is at your sole and absolute risk. The Website and Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by law and without limiting clause 2.2, Clocked Limited disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement in relation to the Website and Services;

b. Clocked Limited does not warrant that

i) the Services provided, or your use of the Website, will be uninterrupted, timely, secure, or error-free; or

ii) that any information (including feedback) provided on the Website is error-free or reliable;

c. no advice or information that is obtained by you from Clocked Limited or anyone else shall create any warranty by Clocked Limited that is not expressly stated in the terms and conditions;

d. the Website may contain links to other websites (“Linked Sites”) including, but not limited to, links to advertisers as outlined in clause 2.3(e). The Linked Sites have not been prepared by Clocked Limited nor are under the control of Clocked Limited and Clocked Limited is not responsible for the contents or privacy principles of any Linked Site and does not make any representations or warranties or give any undertakings concerning such content or privacy principles, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Clocked Limited is not responsible for webcasting or any other form of transmission received from any Linked Site. Links are provided to you only as a convenience, and the inclusion of any link does not imply that Clocked Limited endorses, checks or approves of the Linked Sites or that Clocked Limited has any association with its operators. Clocked Limited is not responsible for the availability of any Linked Sites. Clocked Limited requires that you request our permission to include a link from another website to the Website;

e. responsibility for the content of advertisements appearing on this Website (including hyperlinks to advertisers’ own websites) rests solely with the advertisers. The placement of such advertisements on the Website does not constitute Clocked Limited Limited’s recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement. Notwithstanding the foregoing, clause 2.3(d) (in its entirety) applies to such Linked Sites; and

f. while Clocked Limited has systems in place on the Website to reduce the risk of credit card fraud, Clocked Limited is not responsible for protecting members from credit card fraud. Clocked Limited’s fraud protection systems on the Website may from time to time block legitimate credit card payments. In these cases, payment will need to be made by other means as agreed between the parties to the relevant transaction.

2.4 Liability:

a. The information, software, products, services (including, but not limited to, the Services) and tools included in or available through the Website or otherwise from Clocked Limited may include inaccuracies or typographical errors. Changes, alterations, modifications and updates are periodically made to the information herein. Clocked Limited and/or its suppliers may make improvements, amendments, changes, alterations, modifications and/or updates to the Website and the Services at any time. Advice received via the Website or otherwise from Clocked Limited should not be relied upon for any purpose whatsoever (including, but not limited to, personal, medical, legal or financial decisions) and you should consult an appropriate professional for specific advice tailored to your situation.

b. To the maximum extent permitted by law, Clocked Limited and its suppliers make no representations about the suitability, reliability, availability, timeliness, and accuracy of the Website and information, software, products, services (including, but not limited to the Services), tools, related graphics contained on the Website or otherwise provided by Clocked Limited and its suppliers for any purpose. To the maximum extent permitted by law, the Website and all such information, software, products, services (including, but not limited to, the Services), tools and related graphics are provided “as is” without any warranty, guarantee or condition of any kind or nature whatsoever. To the maximum extent permitted by law, Clocked Limited and its suppliers hereby disclaim all warranties, guarantees and conditions with regard to the Website and such information, software, products, services (including, but not limited to, the Services), tools and related graphics, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

c. You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Clocked Limited to you or any other person (including, but not limited to, persons for and/or on behalf of whom, you are registering as a member of Clocked or using the Website or Services as outlined in clause 1.1) under or in connection with these terms and conditions, or in connection with the Services, this Website, another member’s acts or omissions, or your use of or inability to use, the Services or this Website, is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Clocked Limited’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.

d. To the maximum extent permitted by law, in no event shall Clocked Limited or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Website or the Services, with the delay or inability to use the Website or related services (including, but not limited, the Services), the provision of or failure to provide services (including, but not limited to, the Services), or for any information, software, products, services (including, but not limited to, the Services), tools and related graphics obtained through the Website, or otherwise arising out of the use of the Website, whether based on contract, tort, negligence, strict liability or otherwise, even if Clocked Limited or any of its suppliers has been advised of the possibility of damages (of any nature whatsoever). Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If you are dissatisfied with any portion of the Website or the Services, or with any of these terms of use, your sole and exclusive remedy is to discontinue accessing and using the Website and the Services.

e. To the maximum extent permitted by law, if, notwithstanding this clause 2.4, Clocked Limited is found to be liable, our liability to you or to any other person is limited to the total charges you paid to us in the 12 months prior to the action giving rise to the liability.

Service contact: admin@clocked.co.nz

2.5 Indemnity: You agree to release, fully and effectively indemnify and keep us and our related companies at all times fully and effectively indemnified from and against all actions, claims, costs (including, without limitation, legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by us to any person arising out of or in connection with your use of the Website or Services, your failure to comply with these terms and conditions, your failure to complete an exchange, your use of Clocked message boards, your exchange or attempted exchange of an item prohibited under clause 4.2(d), or arising out of any content or item you submit, post, transmit, upload or make available through the Website and/or the Services.

2.6 Breach: Without limiting any other rights and remedies available to Clocked Limited, Clocked Limited may limit your activities on the Website, remove your offers or listings, warn other members of your actions, issue a warning to you, suspend or terminate your membership and/or refuse to provide our Services to you if you breach these terms and conditions or where Clocked Limited considers it appropriate (such consideration to be in Clocked Limited’s sole and absolute discretion).

2.7 Additional rules: In addition to the terms and conditions set out in this document, all other Clocked policies or other Clocked Limited policies relating to the Website (including, without limitation, the Policy when using SafeSwap), Banned Content page, and Listing Policies on the Code of Conduct page form part of these terms and conditions.

3.      Becoming a Member

3.1 Becoming a Member: Becoming a member of Clocked is free. You may only register as a member if you are resident in New Zealand or Australia and can form a legally binding contract that is enforceable against you. For example, you must be 18 years old. By registering as a member, you warrant that you can form a legally binding contract. Where you are registering as a member of Clocked or using the Website or Services for and/or on behalf of another person as outlined in clause 1.1, you further warrant that that person can also form a legally binding contract.

3.2 Accurate Information: You warrant that you have provided complete, accurate and current personal information when registering as a member. You must maintain and update your information held by Clocked Limited on the Website to ensure it is kept current at all times. Clocked Limited may phone, email or write to you to verify these details. You must not register as a member under multiple identities or personas (whether false or not).

3.3 Termination of membership: Clocked Limited reserves its sole and absolute right to decline to register or to terminate your membership without entering into further discussions with you. Without limiting the foregoing, Clocked Limited may terminate your membership if a serious complaint is, or multiple complaints are, received about you from other members (without requiring Clocked Limited to verify such complaints prior to termination), if you breach these terms and conditions, if you impersonate another member, or if we, at our sole and absolute discretion, deem your behaviour to be unacceptable. Members who have registered under multiple aliases may have any or all of their aliases disabled. Termination of your membership shall be without prejudice to all other remedies Clocked Limited may have.

3.4 Security of your login information: You are responsible for keeping your login information, including your email address and password, secret and secure. Without limiting the foregoing, you agree:

a. not to permit any other person to use your user name, email address or membership; and

b. not to disclose, or provide to any other person, your password, email address, date of birth or any other information in connection with your membership that may allow them to gain access to your membership.

3.5 Emails and newsletters: Clocked Limited may send you emails relating to your membership, exchanges, and other activities on the Website, and for promoting and marketing other Clocked Limited products (or related companies thereof) and services to you. Clocked Limited may also send regular electronic newsletters to members. Newsletters will contain clear and obvious instructions for how you can unsubscribe from the mailing list. Clocked Limited may also send you commercial electronic messages (as that term is defined in the Unsolicited Electronic Messages Act 2007) and you hereby consent to Clocked Limited sending you such commercial electronic messages.

4.      General Rules

4.1 General:

a. All listings, offers or communications made through Clocked shall be made in good faith.

b. You must not damage, interfere with or harm the Website or Services, or any network, or system underlying or connected to them, or attempt to do so.

c. You may not use a robot, spider, scraper or other automated means to access the Website or information featured on it for any purpose, or attempt to do so.

d. You shall not list your email address, phone number or any other contact detail within the description of listings, listing comments and/or questions, in your member profile, or in the Clocked message boards.

e. You must not complete an exchange outside of the Clocked process or otherwise seek to avoid Clocked Limited’s fees (if any). Attempts by you to avoid fees may result in Clocked Limited suspending or terminating your membership at the sole and absolute discretion of Clocked Limited.

f. You must not use the Services or the Website to promote items for exchange or for sale outside the Services.

g. As a condition of your use of the Website, you warrant to Clocked Limited that you will not use the Website for any purpose that is unlawful or prohibited by these terms, conditions and notices. You may not use the Website in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of the Website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for or through the Website.

h. You are responsible for any actions taken through your membership. Clocked memberships are not transferable and therefore cannot be sold, leased, lent or traded.

4.2 Your obligations as a lister:

a. Listers must be located in New Zealand or Australia. Listers outside of these countries are not permitted to list on Clocked. Listers should not send items to an address that is outside New Zealand and Australia.

b. You will only enter listings that are accurate, current, complete, and include all relevant information about the terms of exchange, and shipping methods. You must list an item in one category only which must be the most appropriate category for your item.

c. You will only place listings for items that exist and are to be exchanged. You will not list items that you are not legally entitled to exchange or that are not in your possession. You will not sell or offer services.

d. You must not list anything that is illegal, offensive (including anything of a defamatory, pornographic or racially or ethnically objectionable nature), stolen, or unsafe, anything which infringes copyright or other intellectual property rights, items which have been illegally imported or which would require illegal import or export in order to complete the exchange, or any item of which the exchange is prohibited by, or violates any, law. You are responsible for ensuring that any listing by you does not breach this clause 4.2(d). You agree that Clocked Limited may disclose your personal information, including your name and contact details, to all relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of this clause 4.2(d) at any time.

e. You must ensure you hold the copyright or are otherwise licensed or permitted to use any images you add to your listings.

f. When you list an item for exchange on Clocked, you should do so with the intention of exchanging this item through the Website. Therefore you should not advertise your item through another forum or website.

g. Your listing may only contain a URL for a website that contains further information on the item you have listed. This website must not offer any items for sale, or for exchange, or contain contact details. You must not use Clocked listings to promote a business or website or any other product or service other than the item for exchange in your listing. Clause 2.3(d) applies to any such URLs. If your listing does contain a URL, you warrant that that URL has been prepared by you, is under your control and that you are responsible for the contents and privacy principles of that URL. You also warrant that such URL will be available at all times while contained in your listing.

h. You must not use the Services or the Website to sell or exchange items that are of a speculative nature including, but not limited to, pyramid, surf-for-free, or similar schemes.

i. You must not manipulate trades by assuming multiple roles in a single exchange.

j. You must exchange your item once the offer for exchange has been accepted. You must only re-list your item or exchange to another member after reasonable attempts have been made to contact the winning member without success.

k. As provided in clause 4.2(d), you must not list anything that is pornographic.

l. Listings are not pre-screened for content. Clocked Limited reserves the right to remove any listing that it deems unsuitable or in breach of the terms and conditions.

m. You agree to your email address being supplied to the successful member of your listing once the offer for exchange has been accepted.

n. You must promptly forward the listed item to the successful member on completion of the exchange.

o. You must not charge unreasonable amounts for shipping and packaging costs.

p. The exchange of films, videos, DVDs, High Definition DVDs, Blu-Ray Discs, VCDs and laser disks is covered by the Films, Videos, and Publications Classification Act 1993. It is an offence to exchange any of these items if they have not been examined and classified by the appropriate agencies. The offence carries a maximum penalty of $3,000 per publication. If any publication is exchanged, and deemed to be objectionable and where the lister knew the publication was objectionable, the maximum penalty consists of 10 year’s imprisonment per publication. Therefore, when listing these items for exchange, you must include within your listing, the New Zealand classification rating and all information on the classification label.

4.3 Your obligations as the offering party to an exchange:

a. You must be located in New Zealand or Australia to exchange items on Clocked. People outside of these countries are not permitted to exchange items on Clocked.

b. Your offers are not retractable once accepted by another member. You must only make an offer to exchange if you intend to exchange the relevant item for your item entered.

c. If you are notified that your offer has been accepted, you must complete the exchange in the manner specified. By making an offer, you warrant and represent that you have the legal right to enter into and complete the exchange.

d. You must make full and prompt delivery of any item you exchange.

e. You agree to your username and the items exchanged being publicly shown on the Website. You also agree to your email address being supplied to the other party to the exchange when you make a successful offer.

f. If your offer is successful and you do not make full and prompt delivery of the item, you will receive a warning from Clocked Limited if the other party complains about you. After 3 such complaints, Clocked Limited may suspend or terminate your membership.

4.4 Feedback:

a. Feedback you provide on other members must be true and correct and notwithstanding the foregoing must not contain offensive, defamatory, inappropriate, profane, obscene, indecent, unlawful or objectionable language. Clocked Limited reserves the sole and absolute right to determine what is considered offensive, defamatory, inappropriate, profane, obscene, indecent, unlawful or objectionable language.

b. You may only give member feedback that relates to a specific exchange. You must not post feedback on an exchange that does not relate to that specific exchange.

c. You must not post feedback about yourself or include any contact details or personal information in your feedback.

d. Feedback is provided for the sole purpose of facilitating trading between members on the Website. You must not market or export any feedback to any venue other than the Website. Linking to your Clocked feedback from other buying and selling websites will be considered a breach of our terms and conditions unless our permission is first obtained in accordance with clause 2.3(d).

4.5 Use of Communication Services:

a. The Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example only, and not as a limitation, you agree that when using a Communication Service, you will not:

i. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

ii. Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful or objectionable topic, name, material or information. Clocked Limited reserves the sole and absolute right to determine what is considered to be inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful or objectionable.

iii. Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.

iv. Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Website or another’s computer.

v. Advertise or offer to sell, buy or exchange any goods or services for any business purpose, unless such Communication Service specifically allows such messages.

vi. Conduct or forward surveys, contests, pyramid schemes or chain letters.

vii. Download any file posted by another user of a Communication Service that you know, or should know (having made all reasonable enquiries), cannot be legally distributed in such manner.

viii. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.

ix. Restrict or inhibit any other user from using and enjoying the Communication Services.

x. Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.

xi. Harvest or otherwise collect information about others, including, without limitation, email addresses, without their express written consent.

xii. Violate any applicable laws or regulations.

b. Clocked Limited has no obligation to monitor the Communication Services. However, Clocked Limited reserves the right to review materials posted to a Communication Service and to remove any materials in its sole and absolute discretion. Clocked Limited reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

c. Clocked Limited reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Clocked Limited’s sole and absolute discretion.

d. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Clocked Limited does not control or endorse the content, messages or information found in any Communication Service and, therefore, Clocked Limited specifically disclaims any liability of any nature whatsoever with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorised Clocked Limited spokespersons, and their views do not necessarily reflect those of Clocked Limited.

e. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are solely responsible for adhering to such limitations if you download the materials.

4.6 Materials provided to Clocked Limited or posted at any Clocked Website:

a. Clocked Limited does not claim ownership of the materials you provide to Clocked (including feedback and suggestions) or post, upload, input or submit to any Website or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Clocked Limited, its related companies and necessary sub licensees permission to use your Submission in connection with the operation of their internet businesses including, without limitation, the rights to: copy; distribute; transmit; publicly display; publicly perform; reproduce; edit; translate and reformat your Submission; and to publish your name in connection with your Submission.

b. No compensation of any nature whatsoever will be paid with respect to the use of your Submission, as provided herein. Clocked Limited is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Clocked Limited’s sole and absolute discretion.

c. By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

5. Fees

5.1 Clocked Limited Listing Fees and Success Fees:

a. Clocked Limited does not currently charge any fees for the use of the Website as a venue. Before listing an item, you should review Clocked Limited’s fees to ensure you are aware of the fees that you will incur (if any); and

b. If at any time, Clocked Limited charges fees for use of the Website, Clocked Limited’s current fees will be listed in our Fees section on the Help page. In such event:

i. Cocked Limited may (at our sole and absolute discretion) refund a fee charged on the Services (if any), provided that a member follows our defined refund process. Clocked Limited will only issue refunds in the form of credit to the credit or debit card used to pay the fees of the member. Cash refunds will not be issued. Credits are not transferable to any person (including, without limitation, between members);

ii. Clocked Limited reserves the right to change the fees charged for any of our Services at any time. In the event that we introduce a new Service, the fees for that service are effective at the launch of the Service, unless otherwise stated;

iii. If you are a New Zealand resident, then all fees are inclusive of GST and in New Zealand dollars unless otherwise stated. If you are not a New Zealand resident, then all fees are, unless otherwise stated, in New Zealand dollars and do not include GST;

iv. Clocked Limited reserves the right to investigate queries regarding the refund of fees;

v. As above, before listing an item, you should review Clocked Limited’s fees to ensure you are aware of the fees that you will incur; and

vi. You must pay fees immediately using Clocked's secure online payment gateway through DPS's Payment Express.

6. General Provisions

6.1 System Integrity: Clocked Limited will use its reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance or upgrades. However, Clocked Limited takes no responsibility for any system unavailability, or for any loss of any nature whatsoever (including, without limitation, loss of profits, loss of data, loss of business or anticipated savings and consequential and incidental loss) that is incurred as a result of the Website or Services being unavailable. Further, Clocked Limited assumes no responsibility for the corruption of any data or information held by Clocked Limited.

6.2 Resolution of disputes: As Clocked Limited is not a party to any exchange between you and another member, you agree not to involve, or attempt to involve, Clocked Limited in any dispute or in the resolution of disputes that arise between you and another member as a result of the Services provided in our Dispute Resolution Policy (if any).

6.3 Clocked Message Boards: Clocked may contain message boards for the use of Clocked members. The Message Boards may not be used to promote auctions, websites or any commercial or business activity. Clocked Limited is not responsible for any of the opinions or comments expressed in the Message Boards. By posting a message to the message board you agree to take full legal responsibility and liability for your opinions and comments, including, without limitation, for offensive or defamatory statements.

6.4 Force Majeure: Without prejudice to any other clause in these terms and conditions, Clocked Limited has no liability of any nature whatsoever for any lack of performance, unavailability or failure of the Services or the Website, or for any failure of Clocked Limited to comply with these terms and conditions where the same arises from any cause reasonably beyond the control of Clocked Limited.

6.5 No Waiver: If we do not exercise or enforce any right available to us under these terms and conditions, it does not constitute a waiver of those rights.

6.6 Partial Invalidity: If any provision of these terms and conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from these terms and conditions and such invalidity, unenforceability or illegality will not affect the remaining terms and conditions which shall continue in full force and effect.

6.7 Governing Law: These terms and conditions are governed by the laws of New Zealand. You submit to the exclusive jurisdiction of the Courts of New Zealand.

6.8 Intellectual Property Rights: Clocked Limited (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights in the Website (including, without limitation, text, graphics, logos, icons and sound recordings) and the software and other material underlying and forming part of the Services and the Website.

a. You may not without our express prior written permission, in any form or by any means:

i. Adapt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of this Website; or

ii. Commercialise, copy, or on-sell any information, or items obtained from any part of this Website.

b. Clocked is a trademark of Castilian Capital Limited and is used with the permission of Castilian Capital Limited.

c. Except content added by users of the Website, all contents of the Website are Copyright 2010 www.clocked.co.nz and/or its suppliers. All rights reserved.

d. Any rights not expressly granted herein are reserved.

6.9 Entire agreement: These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these terms and conditions.

6.10 Privacy:

a. Clocked Limited collects personal information about you through your use of the Services and the Website, including:

i. your registration details; and

ii. information relating to your use of the Website and the content you access.

b. You agree that Clocked Limited may use this personal information to assist us to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other Clocked Limited (or its related companies) products and Services to you, and for any other use that you authorise. You agree to your membership’s trading history being published in your feedback.

c. We will not sell or allow third parties to access your personal information without your consent. We release account and other personal information only when we believe release is appropriate to comply with law; facilitate court proceedings; enforce or apply our terms and conditions; or protect the rights, property, or safety of Clocked Limited, our users, or others. Government agencies with statutory roles enabling them to request information from us include but are not restricted to the Police, Inland Revenue Department and Ministry Of Economic Development. You may contact Clocked Limited to ask whether information has been provided to government agencies.

d. If you intend to take Disputes Tribunal proceedings against another member and you require that member’s contact details in order to take such proceedings, Clocked Limited may release those details to you if you make a Statutory Declaration stating that you require that member’s contact details for the sole purpose of taking Disputes Tribunal proceedings. You may obtain a Statutory Declaration for this purpose by contacting Clocked Limited or the Disputes Tribunal.

e. This clause 6.10 is subject to clause 4.2(d).

f. Please review our Privacy Policy.