Client Contract

  1. This PowerHouse Client Contract (the “Agreement”) constitutes a legally binding agreement between PowerHouse Global Ltd, a New Zealand corporation (“PowerHouse”, “we” or “us”) and you (“you”, “your” or “user”).  By checking the box stating you have read and agree to the terms and conditions of this Agreement as part of your registration with PowerHouse, you agree and consent to be bound by the terms and conditions of this Agreement, including any changes to this Agreement or associated policies incorporated by reference which PowerHouse may make at its sole discretion in the future, for as long as you use the PowerHouse Services.

You affirm that you are either more than 18 years of age or possess legal parental or guardian consent, and are fully able and competent to enter into and to comply with the terms and conditions of this Agreement.  In any case, you represent that you are at least 14 years of age, as the PowerHouse Services are not intended for children under 14. If you are under 14 years of age, then please do not register for a PowerHouse account or use the PowerHouse Services.

Subject to the terms and conditions of this Agreement, PowerHouse hereby grants to you a non-exclusive, non-transferable, revocable, non-sublicensable right and license to use PowerHouse’s proprietary online platform (the “PowerHouse Platform”), including without limitation the websites located at www.PowerHouse.social, shop.PowerHouse.social, app.PowerHouse.social, www.PowerHouse.tools, send.PowerHouse.social and mail.PowerHouse.social (the “Websites”) and the applications and other services offered on or through such Websites and their supporting servers, computers and/or networks (the “PowerHouse Services”) for the purposes set forth in this Agreement.  In the event you transfer your account or ownership of any Product, as defined below, you shall ensure that any purchasers or assignees are bound by the terms and conditions of this Agreement.

In addition to any other rights or remedies afforded PowerHouse under or otherwise in connection with this Agreement, you agree and acknowledge that you have read and agree to comply with the following policies which are hereby incorporated by reference into, and made a part of, this Agreement:

Vendor and Products Requirements Policy
Copyright Policy
Return and Cancellation Policy
Accounting Policy
Privacy Policy
Affiliate Programme Guidelines

  1. You will be required to register for an account (a “Registered User”) in order to sign up for certain PowerHouse Services and thereby become a client of PowerHouse (a “PowerHouse Client”).  When you provide information during the registration process, you agree to provide only true, accurate, current and complete information and to update it as necessary to maintain its truth and accuracy.
  2. If you register for a PowerHouse account, you agree to accept responsibility for all activities that occur under your account or password, or under the password of any administrator of your account (an “Administrator”), if any, and you agree you will not sell, transfer or assign your subscription or any subscriber rights.  You are responsible for:
    1. maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable); and
    2. ensuring any Administrator maintains the confidentiality of their password, if any, and restricts access to their computer (or other Internet access device, as applicable);

so that others may not access the password-protected portion of the PowerHouse Services using your account information in whole or in part.  You must immediately notify PowerHouse of any unauthorised uses of your account or any other breaches of security. PowerHouse will not be liable for any acts or omissions by you or an Administrator, including any damages of any kind incurred as a result of such acts or omissions.  PowerHouse reserves the right to terminate your account or otherwise deny you access at its sole discretion without notice and without liability.

    1. You agree to pay PowerHouse the fees indicated in exchange for the PowerHouse Services you sign up for, whether directly or through an Administrator, subject to any applicable free use periods, trial or otherwise.  Free trial periods commence from and include the day you sign up for a service. Fees for subscription services are charged in advance on the first day of your calendar monthly or annual billing cycle. Subscriptions can be cancelled at any time.  If you wish to avoid incurring further subscription charges, you need to have cancelled your subscription via the ‘My Account’ section of your Personal Dashboard prior to the beginning of your next monthly or annual billing cycle.
    2. PowerHouse charges a 10% transaction fee (the “Transaction Fee”) on the gross value of all sales completed through the PowerHouse Platform.  The remaining 90%, net of any applicable Retail Taxes, is distributed to Vendors, who on request are required to remit any Commissions due to relevant Affiliates in accord with the percentage set by the Vendor.

 

  1. Promoting Products.

If you promote, market or otherwise advertise (“Promote” or a “Promotion”) any product submitted for sale on the PowerHouse Marketplace, either by you or an Administrator or by another PowerHouse Client (each a “Product”), whether via the PowerHouse Services or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Product sold as a result of such Promotion (“Commissions”), you will agree, acknowledge, represent and warrant that:

    1. You will abide by PowerHouse’s Return and Cancellation Policy and:
      1. if you Promote any Product submitted for sale on the PowerHouse Marketplace by you or an Administrator, you will establish your Vendor Return Policy as set forth below; and
      2. if you Promote any Product submitted for sale on the PowerHouse Marketplace by another Vendor, you will abide by the applicable Vendor’s Vendor Return Policy.

For purposes of this Agreement:

  1. “Vendor” is defined as any person or entity who submits, or on whose behalf an Administrator submits, one or more Products for sale on the PowerHouse Marketplace; and
  2. “Affiliate” is defined as any person or entity who is a Registered User who:
  • Promotes a Product listed for sale on the PowerHouse Marketplace by another Vendor; and
  • gains incentives from the Vendor for generating: (i) visitors to the PowerHouse Marketplace; and/or (2) sales completed via the PowerHouse Platform.
    1. When you Promote a Product, you will use the applicable Vendor’s trademarks, logos, trade names or service marks in accordance with such Vendor’s trademark guidelines.
    2. You will not make any unlicensed or unauthorised use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively “IP Rights”) of any entity or individual.
    3. You will not interfere with or manipulate rankings on the PowerHouse Marketplace (as defined below in Section 4(f)), tracking of Commissions, or the normal flow of traffic to, through, or from the PowerHouse Services.
    4. You will not Promote violence, sexually explicit materials, Products from any website, blog, social network, forum or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco or prescription drugs, or discrimination based upon race, sex, religion, nationality, disability, sexual orientation or any other form of discrimination prohibited under the Human Rights Act 1993:

http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304475.html

    1. You will not Promote any Products or services to children under the age of fourteen (14), and will adhere to the Children and Young People’s Advertising Code of the Advertising Standards Authority of New Zealand: http://www.asa.co.nz/codes/codes/new-children-young-peoples-advertising-code/
    2. You will not defame any person.
    3. You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
    4. You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
    5. You will not in any way imply that any Promotion belongs to, originates from, or is otherwise associated with a third party.
    6. All communications and/or representations made by you in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive.  Such disclosures and disclaimers must be made in a clear and conspicuous manner, and will otherwise comply with your country’s laws and all New Zealand laws, including New Zealand Commerce Commission and Ministry of Consumer Affairs regulations, policies and guidelines governing advertising, disclosure and consumer protection.
    7. PowerHouse reserves the right but is not obliged to review your Promotions.  You agree that PowerHouse, at its sole discretion and at any time, may require changes to Product Promotion and landing or other delivery pages, customer support or other items related to the content of your Promotions.
    8. You will provide valid contact information, including but not limited to a working email address and phone number, where PowerHouse can send enquiries and receive a non-automated reply by the end of the following New Zealand business day.
    9. PowerHouse does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Vendors, nor is it responsible for any bonuses, prizes or other incentives offered by Vendors as described in this Agreement, or otherwise offered by Vendors via the PowerHouse Services.  Your use of any information presented by a Vendor is voluntary, and your reliance is at your sole risk. You acknowledge and understand that PowerHouse does not verify statements, claims, incentives or Promotions made by Vendors via the PowerHouse Services.

 

  1. Selling Products.

If you submit any Products for sale on the PowerHouse Marketplace, you agree, acknowledge, represent and warrant that:

    1. All Products you submit for sale on the PowerHouse Marketplace must be approved by PowerHouse prior to you being able to publish or sell the Products via the PowerHouse Marketplace.  In certain circumstances, PowerHouse may at its sole discretion require you to modify your Products prior to being approved or prohibit your Products from being listed on the PowerHouse Marketplace.
    2. All Products you submit for sale via the PowerHouse Marketplace, and the offering and sale thereof via the PowerHouse Services, comply with all of your country’s laws and all applicable New Zealand laws and regulations, including:
      1. the Fair Trading Act 1986 and its regulations:

https://www.consumerprotection.govt.nz/general-help/consumer-laws/fair-trading-act/; and 

      1. the Consumer Guarantees Act 1993:

https://www.consumerprotection.govt.nz/general-help/consumer-laws/consumer-guarantees-act/..

    1. Your Products do not involve downloading computer code or software on the computer of a person or entity purchasing a Product (the “Purchaser”) unless:
      1. you have accurately described and categorised the type, nature, uses, functionality and effects of all of the software being downloaded, whether requested to do so by PowerHouse or otherwise;
      2. your content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content; and
      3. either a purchase is completed or you have obtained express consent prior to any such download.
    2. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses and other harmful or destructive content.  PowerHouse disclaims any responsibility for any harm resulting from the use by visitors of the Platform, or from any downloading by those visitors of content posted on the Websites.
    3. Your blog is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and websites, and similar unsolicited promotional methods.
    4. Without further conditions or limitations, you authorise PowerHouse to list any Product you submit for sale via the PowerHouse Services in the online, searchable marketplace of Products made available via the PowerHouse Services (the “PowerHouse Marketplace”).
    5. If you delete content, PowerHouse will use reasonable efforts to remove it from the Websites, but you acknowledge that caching or references to the content may not be made immediately unavailable.
    6. You will provide valid email addresses to which Purchasers or PowerHouse can send enquiries and, when necessary, receive a non-automated response by the end of the following New Zealand business day.
    7. You will notify PowerHouse of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Product within two business days of your receipt of such complaint.  You shall assist PowerHouse, at your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by PowerHouse to respond to and/or resolve such complaints.
    8. Taxes on Retail Transactions:
      1. Your advertised prices must include any applicable national, state or local consumption, transaction or transfer taxes for any retail transaction (including but not limited to value added or sales or use taxes) (“Retail Taxes”).  If your Item is likely to attract customs duty, you must ensure that this is clearly indicated in your listing.
      2. PowerHouse will collect and remit Retail Taxes where we believe PowerHouse is legally required to do so.
        1. The proceeds of sales completed via the PowerHouse Platform (“Platform Completions”) are distributed net of Transaction Fees and any applicable Retail Taxes to Vendors, who on request are required to remit any Commissions due to relevant Affiliates.  If we believe PowerHouse is legally required to collect and remit Retail Taxes due for Platform Completions, for example in respect of particular Products listed for sale on the PowerHouse Marketplace, PowerHouse will advise you accordingly. Unless you are expressly advised otherwise by us, PowerHouse will not collect or remit any Retail Taxes that may be due in respect of a Platform Completion.
        2. If PowerHouse agrees to sell Products as an agent on behalf of a Vendor (“Agent Sales”), PowerHouse will on behalf of the Vendor collect and remit particular Retail Taxes we believe are legally due.  PowerHouse will advise the Vendor which Retail Taxes have been so collected and remitted.
        3. Retail Taxes due in respect of sales completed outside the PowerHouse Platform are entirely the Vendor’s responsibility.
      3. Where PowerHouse does not collect and remit Retail Taxes for a transaction, you may have the legal obligation to pay such taxes.  Such obligation may arise as a result of your existing or past physical contacts with a jurisdiction (including but not limited to your provision of a “drop ship” delivery of the physical Product to a buyer located in a state).  You may wish to consult a tax professional to determine if you will have this type of obligation in any particular jurisdiction. You agree that if such an obligation arises with respect to any particular jurisdiction, you will be solely responsible for the timely payment of such tax and any interest or penalties.
    9. Communications with Affiliates:
      1. If you use the PowerHouse Services to communicate with Affiliates about your Products, you agree that all statements or messages communicated by you via the PowerHouse Services constitute Promotions under this Agreement and are subject to all applicable terms and obligations thereto.
      2. Additionally, and without limiting any other restriction contained herein, you will not use the PowerHouse Services to:
        1. make any false or deceptive statement or claim regarding your Product or sales of your Product;
        2. offer any Promotions or incentives to Affiliates unless you intend to fulfill such Promotions or incentives;
        3. offer any Promotions or incentives to Affiliates unless you affirmatively state that they are offered only by you and not by PowerHouse; or
        4. suggest in any way, whether express or implied, that your Product(s) are endorsed, approved or sponsored by PowerHouse in any way.

PowerHouse reserves the right to suspend your ability to use the PowerHouse Services at any time.

    1. If and to the extent you use third parties to provide Products or services, you and such third parties must be in compliance with all terms of this Agreement, and you are responsible for all acts and omissions of any such third party.
    2. All Vendors must include the required disclaimers and comply with the requirements set forth here: https://support.PowerHouse.com/entries/22857278-Required-Disclaimers/.
    3. If you submit one or more Products for sale on the PowerHouse Marketplace, you will establish an appropriate return, replacement and/or cancellation policy for your Products (“Vendor Return Policy”).  Your Vendor Return Policy must fall within the range of “no refunds” to allowing refunds or replacements up to sixty (60) days after the date of purchase (ie a 30-day refund policy or a 45-day refund policy would each be acceptable, if appropriate).  If you believe that a Vendor Return Policy longer than sixty (60) days after the date of purchase is appropriate for your Products, PowerHouse will review such a request, and at its sole discretion, may allow an extended Vendor Return Policy. You can only provide such an extended Vendor Return Policy with PowerHouse’s written consent.
    4. You will ensure that the Vendor Return Policy is clearly and conspicuously posted for customers to review prior to purchasing your Products.
    5. PowerHouse reserves the right to require that you alter or override your Vendor Return Policy if you abuse PowerHouse’s flexible Return and Cancellation Policy, if your Vendor Return Policy is not appropriate for the Product(s), if the charged back sales (defined in the Accounting Policy) are excessive, or for any other reason PowerHouse deems appropriate, at its sole discretion.

 

  1. Availability of Services; Suspension; Termination.

You agree and acknowledge that:

    1. Subject to the terms and conditions of this Agreement and PowerHouse’s policies and procedures, PowerHouse shall use commercially-reasonable efforts to provide the PowerHouse Services in a manner that will not disrupt your business.  You acknowledge and agree that from time to time the PowerHouse Services may be inaccessible or inoperable for reasons including, without limitation:
      1. equipment malfunctions;
      2. periodic maintenance procedures or repairs that PowerHouse may undertake from time to time; or
      3. causes beyond the reasonable control of PowerHouse or that are reasonably unforeseeable by PowerHouse, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.

You acknowledge and agree that PowerHouse is not liable for these periodic interruptions in availability of the PowerHouse Services and further acknowledge that PowerHouse does not guarantee access to the PowerHouse Services on a continuous and uninterrupted basis.

    1. PowerHouse may decline, delist or halt sales or Promotion of any Product submitted for sale on the PowerHouse Marketplace, suspend funds, adjust Commissions based on performance, close an account, and/or suspend or terminate the PowerHouse Services at any time, at its sole discretion, without cause or notice to you or any penalty or liability for doing so.  Notwithstanding the foregoing, subject to you demonstrating to our satisfaction you are endeavouring to cure a material breach of this Agreement, we may at our sole discretion withhold closure of your account for up to thirty (30) days from PowerHouse’s notice to you thereof; provided that PowerHouse can terminate the PowerHouse Services immediately as part of a general shutdown of our service.
    2. PowerHouse, at its sole discretion, may suspend or terminate your account and your rights to access, use and/or otherwise participate in the PowerHouse Services at any time, with or without cause, with or without notice, effective immediately, or retain any or all funds in your PowerHouse account, if:
      1. PowerHouse suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of this Agreement;
      2. there is no activity for an extended period of time (the account becomes dormant); or
      3. your account experiences or is reasonably anticipated to experience a negative balance.

Without limiting the foregoing, PowerHouse shall have the right to immediately terminate your access and use of the PowerHouse Services, or any portion thereof, in the event of any conduct which PowerHouse, in its sole discretion, considers to be unacceptable.

    1. Upon such termination, you agree to immediately cease all use of the PowerHouse Services and PowerHouse intellectual property licensed in Section 8(b) of this Agreement.  If you wish to terminate your account, please unsubscribe via the ‘My Account’ section of your Personal Dashboard.
    2. Following suspension or termination of an account or retaining of funds pursuant to this Section 5, PowerHouse will review your account in a manner determined by PowerHouse at its sole discretion.  You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, you agree that PowerHouse may retain funds held in your PowerHouse account as liquidated damages and/or for the benefit of PowerHouse or third parties affected by the misconduct.  You acknowledge and agree that such liquidated damages: (i) are not a penalty, and (i) are reasonable and not disproportionate to such presumed damages to PowerHouse.
    3. PowerHouse may temporarily withhold any portion of the funds in your PowerHouse account if PowerHouse, at its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness you may have incurred with PowerHouse or any other person.

 

  1. Email, Text Messages and Telemarketing.

 

    1. Promotional Emails.

If you send, or cause to be sent, any emails in connection with the direct or indirect Promotion or sale of any Product and/or your use of the PowerHouse Services, then you agree, acknowledge, represent and warrant that all such emails shall be in compliance with all applicable New Zealand laws and regulations regarding the use of electronic messages, including without limitation The Unsolicited Electronic Messages Act, The Privacy Act and the relevant Codes of Conduct as issued by the Privacy Commissioner of New Zealand.  Information on these laws can be found on:

      1. the Department of Internal Affairs website at: https://www.dia.govt.nz/Spam-Information-for-Businesses; and
      2. the Privacy Commissioner website at: https://www.privacy.org.nz/the-privacy-act-and-codes/privacy-act-and-codes-introduction/.

 

    1. Unauthorised Systems Activity.

You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine, or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.

 

    1. Unauthorised Telemarketing and Text Messaging.

You may not, directly or indirectly, send, initiate or procure the sending of any text message, or use or procure the use of any telemarketing activities, to Promote or sell Products, unless you have received prior written approval from PowerHouse.  If you receive such approval and you send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product and/or your use of the PowerHouse Services, then you represent and warrant that all such text messages or calls will be in full-compliance with all applicable New Zealand laws and regulations that apply to sending electronic messages and engaging in telemarketing activities.

 

  1. PowerHouse’s Intellectual Property Rights.
    1. Except as set forth in Section 7(b) below, you may not use PowerHouse’s name, trademarks, service marks or any other IP Right of PowerHouse in any manner whatsoever to suggest association or affiliation with or endorsement by PowerHouse without the express prior written consent of PowerHouse, which PowerHouse may withhold at its sole discretion.  Promotional use of images or reproductions of payment cheques issued by PowerHouse without the express, written consent of PowerHouse is prohibited.
    2. Subject to the following terms and conditions, during the term of this Agreement PowerHouse grants you a limited, revocable license to use PowerHouse’s name: (i) as a watermark, internet search engine description, keyword, search term or seeding element with any internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text; (iii) as a sub-domain or second- or third-level domain name identifier; (iv) to identify Products; or (v) in connection with Promotions:
      1. PowerHouse may revoke the foregoing license and/or specify restrictions upon your use of PowerHouse’s name, including requiring the use of such disclaimers as PowerHouse may provide, in connection with your use of PowerHouse’s name, at any time and for any reason at PowerHouse’s sole discretion.
      2. Failure to comply with any restrictions imposed by PowerHouse upon your use of PowerHouse’s name or failure by you to immediately cease all use of PowerHouse’s name if so instructed by PowerHouse shall constitute: (i) a breach of the limited license set forth in this Section 7(b); and (ii) a breach of this Agreement.  In such case, PowerHouse reserves the right to pursue any and all remedies available to it at law or in equity.
      3. You may not use or display PowerHouse’s name in any manner to disparage PowerHouse or the PowerHouse Services.
    3. Notwithstanding the limited revocable license set forth in Section 7(b) above, as between the parties, PowerHouse shall be and remain the sole owner of all right, title and interest in and to the PowerHouse Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed or controlled by PowerHouse, and you hereby assign to PowerHouse all right, title and interest you may be deemed to have therein.  All rights not specifically granted to you under this Agreement are expressly reserved by PowerHouse.

 

  1. Confidentiality & Non-Disclosure Obligations.
    1. In connection with this Agreement, PowerHouse may disclose to you and/or you may otherwise receive or have access to sensitive, confidential, and/or proprietary information of PowerHouse (collectively, “Confidential Information”), including, but not limited to:
      1. the identities of other Registered Users, including Vendors and/or Affiliates of PowerHouse (collectively, “PowerHouse Clients”);
      2. physical and data security information;
      3. technical data;
      4. PowerHouse Marketplace statistics and sales data; and/or
      5. know-how or business information relating to business processes, methods, or marketing strategies.

Except as required to perform your obligations under and in accordance with the terms of this Agreement, you shall not:

      1. disclose the Confidential Information to any person; or
      2. use the Confidential Information (whether for your own benefit or the benefit of any other person) without the express prior written consent of PowerHouse.  You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, PowerHouse Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with PowerHouse or the PowerHouse Services, including without limitation the functionality of PowerPages, PowerSites, PowerMail and/or of PowerLytics.

You agree and acknowledge that PowerHouse may be required to provide to governmental agencies or other third parties information in its possession regarding you or the business you conduct with PowerHouse.

    1. PowerHouse does not invite and cannot accept any ideas or information you consider to be confidential and/or proprietary.
      1. Except with respect to your personally identifiable information (as expressly provided for in the PowerHouse Privacy Policy), any suggestions, submissions, comments, ideas, concepts, know-how, techniques, material or feedback conveyed, offered or transmitted by you to PowerHouse, or otherwise in connection with the PowerHouse Services (collectively, the “Submissions”), shall be deemed to be non-confidential and non-proprietary and PowerHouse shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in writing executed by you and a duly authorised officer of PowerHouse.
      2. You hereby grant to PowerHouse and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable, sub-licensable right and license to reproduce, publicly display, distribute, perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. PowerHouse shall have no obligation to compensate you for any such Submissions in any manner.
      3. You hereby represent and warrant that:
        1. You own or otherwise have the right to grant the foregoing license to PowerHouse with respect to your Submissions; and
        2. Your Submissions and any use thereof by PowerHouse will not infringe or violate the rights of any person.

You are and shall remain solely responsible for the content of any Submissions you make and acknowledge that PowerHouse is under no obligation to respond to or use any Submission you may provide.

 

  1. Export Control.
    1. You acknowledge and agree to comply with all applicable export laws, including the New Zealand Imports and Exports (Restrictions) Act 1988.
    2. You hereby represent and warrant that any Product registered for sale, Promoted and/or provided by you via the PowerHouse Services is approved for export from New Zealand without additional authorisation or licensing from the New Zealand government.
    3. Should the export authorisation status of your Products change, you must immediately notify PowerHouse in writing.
    4. Information on New Zealand export control regulations can be found on:
      1. the New Zealand Customs Service website at: https://www.customs.govt.nz/business/export/prohibitions-and-restrictions/;
      2. the Ministry of Foreign Affairs & Trade website at: https://www.mfat.govt.nz/en/trade/trading-weapons-and-controlled-chemicals/; and
      3. the Ministry for Primary Industries website at: https://www.mpi.govt.nz/exporting/.

 

  1. Required Permits.

It is your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of your business.

 

  1. Representations and Warranties.

You represent, acknowledge and warrant that:

    1. You, your Products, your Promotions, and/or your Submissions, as applicable, do not and will not, directly or indirectly:
      1. violate the right of privacy or publicity of any person;
      2. contain any libelous, obscene, indecent or otherwise unlawful material;
      3. infringe any IP Rights in any jurisdiction or otherwise contravene any rights of any person;
      4. violate any laws, regulations, guidelines, or industry standards; or
      5. violate PowerHouse’s Privacy Policy.
    2. You may not:
      1. frame, copy or mirror any content forming part of the PowerHouse Services;
      2. reverse engineer the PowerHouse Services or otherwise attempt to derive its source materials;
      3. access the PowerHouse Services for the purpose of:
        1. building a competitive product or service; or
        2. copying any features, functions or graphics of the PowerHouse Services;
      4. interfere with or disrupt the PowerHouse Services or any data contained therein;
      5. attempt to gain unauthorised access to the PowerHouse Platform; or
      6. use the PowerHouse Services for any unlawful purpose or in violation of the rights of any person.

 

  1. INDEMNIFICATION.

To the fullest extent permitted by law, you agree that:

    1. In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever (“Claim”) in connection with your use of the PowerHouse Services, your Products or your Promotions, you shall defend, indemnify and hold harmless PowerHouse, its related parties and Affiliates, and its officers, directors, employees, representatives, agents, licensors, lawyers, heirs, successors and assignees (the “PowerHouse Parties”), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defence, reasonable legal fees and costs) (“Losses”) incurred by any PowerHouse Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
    2. Upon receiving notice of a Claim for which PowerHouse is entitled to indemnification by you, PowerHouse shall provide you with written notification and the opportunity to assume sole control over the defence or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at your sole expense; provided, however, that:
      1. any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by PowerHouse will require PowerHouse’s prior written consent;
      2. the failure to provide timely notice, control, or assistance shall not relieve you of your indemnification obligations; and
      3. PowerHouse may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at PowerHouse’s own expense, unless you fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case you shall pay all expenses related to PowerHouse’s use of such counsel.
    3. Remedies:
      1. In the event that PowerHouse incurs costs, legal fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to your Products or Promotions, including copyright infringement complaints under the Copyright Act 1994, the Digital Millennium Copyright Act (DMCA) or the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), PowerHouse reserves the right, at its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to you by PowerHouse up to a maximum of ten thousand New Zealand dollars (NZ$10,000) per event.
      2. In the event that PowerHouse incurs any Losses relating to your violation of PowerHouse’s Email/Text Message/Telemarketing policy, as set forth in Section 6 above, PowerHouse reserves the right, at its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to you by PowerHouse up to a maximum of twenty thousand New Zealand dollars (NZ$20,000) per event.

You understand and agree that the remedies set forth above are not exhaustive and that PowerHouse retains all rights to indemnification described herein.  You authorise PowerHouse to make, and release PowerHouse from any liability in connection with, any such deductions.

 

  1. LIMITATION OF LIABILITY.
    1. In no event shall any PowerHouse Party, or its heirs, successors and assigns, be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, resulting from, or in connection with this Agreement and/or any:
      1. use of or inability to use the PowerHouse Services;
      2. personal injury, property damage, or losses of any kind, resulting from your access to and/or use of the PowerHouse Service;
      3. unauthorised access to or use of any and all personal information and/or financial information stored on the PowerHouse Platform;
      4. interruption or cessation of transmission to or from the PowerHouse Services;
      5. offensive, indecent, or otherwise objectionable content, as well as content containing technical inaccuracies, typographical mistakes, and other errors;
      6. material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated; and/or
      7. bugs, viruses, worms, malware, Trojan horses or the like which may be transmitted to or through the PowerHouse Services;

whether or not PowerHouse is advised of the possibility of such damages.

    1. Limitation of Liability.
      1. Notwithstanding anything herein to the contrary, the maximum cumulative and aggregate liability of PowerHouse for all costs, losses or damages from claims arising under or related in any way to this Agreement, whether in contract, tort or otherwise, shall not exceed an amount equal to the total amounts due and payable by PowerHouse to you under this Agreement for the month immediately preceding the date upon which such damages accrue.
      2. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk.  The PowerHouse Services, and any services or information offered through the PowerHouse Services, would not be provided without such limitations and you agree that the limitations of liability and disclaimers specified herein will survive and apply even if found to have failed of their essential purpose.
      3. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, you agree that the liability of PowerHouse shall be limited to the fullest extent permitted by such jurisdiction.

 

  1. DATA PROCESSING.
    1. You agree to comply with all data protection laws and regulations, including the EU’s data protection regulation, the General Data Protection Regulation (“GDPR”).  You agree not to market to persons who have not consented to receive marketing communications.
    2. Persons subject to GDPR are entitled to demand that you take certain actions with respect to their data, including, without limitation, that you delete it, correct it, or restrict processing of it.  If you receive a data request from a person, or if PowerHouse receives any such request with respect to data you are processing, you agree to honour the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
    3. If you receive any personal data from PowerHouse or process personal data on PowerHouse’s behalf, you will:
      1. implement appropriate technical and organisational measures to ensure the security of the data;
      2. only process personal data for purposes approved by PowerHouse;
      3. cease processing such data upon request from PowerHouse;
      4. transfer such data only for purposes authorised by law, with prior notification to PowerHouse, and only pursuant to an appropriate subprocessing agreement;
      5. indemnify PowerHouse for any claim, expense, demand or cost related to your receipt or use of such data; and
      6. upon request, provide PowerHouse with information sufficient to demonstrate your compliance with this section, and allow PowerHouse to audit your data practices if necessary at PowerHouse’s sole discretion.

 

  1. NO GUARANTEE OF VALIDITY.

PowerHouse does not endorse, approve, or certify any information provided on or through the PowerHouse Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information.  Information provided on or through the PowerHouse Services may or may not be current as of the date of your access, and PowerHouse has no duty to update and maintain such information. Additionally, the information provided on or through the PowerHouse Services may be changed periodically without prior notice.  All content provided on or through the PowerHouse Services is provided “AS IS”. Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.

 

  1. NO PROFESSIONAL ADVICE.

PowerHouse provides professional information (for example, financial or compliance) for informational purposes only, which should not be construed as legal or accounting advice:

    1. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the PowerHouse Services.
    2. You understand that PowerHouse employees, representatives, and/or agents do not provide advice pursuant to the authority of professional certifications or licenses and you will not treat information provided by our employees, representatives and/or agents as such.
    3. You further understand that by receiving information, facts or opinions on or through the PowerHouse Services, you are not entering into a relationship with PowerHouse or its employees, representatives and/or agents that entitles you to client privileges that may be associated with any professional certifications or licenses.

 

  1. DISCLAIMER.

You assume all risk and responsibility for your decision to use the PowerHouse Services.  The PowerHouse Services and all related services are offered “AS IS”, and PowerHouse disclaims any express or implied warranties including, without limitation, any warranties of merchantability, fitness for a particular purpose, and non-infringement.  Neither PowerHouse nor its related parties and affiliates endorse or are responsible for the accuracy or reliability of any information, fact or opinion provided on or through the PowerHouse Services.

 

  1. GENERAL TERMS AND CONDITIONS.

 

    1. Governing Law; Dispute Resolution, Legal Fees.
      1. You agree that New Zealand law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or in relation to this Agreement must be brought exclusively in the New Zealand courts located in Queenstown, New Zealand.  You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum.
      2. You agree to indemnify PowerHouse for all of its reasonable legal fees and costs incurred as a result of any action, suit, proceeding or claim brought by you or PowerHouse in which PowerHouse is found to be the prevailing party.
      3. You hereby irrevocably waive any and all right to trial by jury in any action, suit, proceeding, claim or counterclaim arising under or in relation to this Agreement.

 

    1. English is Governing Language.

This Agreement is in English and all disputes between the parties shall be resolved in English.  You understand and acknowledge that any foreign language services provided by PowerHouse are for informational purposes only and it is your obligation to obtain independent legal advice at your own expense to ensure you understand the terms of this Agreement.

 

    1. Our Relationship.

This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties.  You are prohibited from making any promise, warranty or representation on behalf of PowerHouse or obligating PowerHouse in any way. You may not represent to any person that you are the agent of PowerHouse, or are authorised to act on its behalf.

 

    1. Assignment.

PowerHouse may freely assign or transfer any or all of the rights and obligations described in this Agreement.  You may not assign this Agreement or any of your rights and duties hereunder without the prior written consent of PowerHouse.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

    1. Severability.

If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.

 

    1. Publicity.

You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement:

      1. relating to this Agreement;
      2. using PowerHouse’s name or referencing the PowerHouse Services; or
      3. suggesting or implying any endorsement by PowerHouse of you and/or any Products;

without the prior written approval of PowerHouse, which PowerHouse may withhold at its sole discretion.

 

    1. Entire Agreement; Amendment.
      1. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof.  It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter.
      2. PowerHouse reserves the right to amend this Agreement at any time:
        1. When PowerHouse amends this Agreement, PowerHouse shall make reasonable efforts to provide you with general, not specific, notice of such changes by posting a conspicuous announcement on its website at http://www.PowerHouse.social that such changes or amendments have occurred and identifying which particular provisions have changed.
        2. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment.
        3. Your continued use of the PowerHouse Services, following the posting of such amendment, will signify and be deemed your assent to and acceptance of the revised Agreement.

You agree that you have the burden to review periodically http://www.PowerHouse.social to inform yourself of any such changes.

 

    1. Waiver.

The waiver or failure by PowerHouse to exercise any right provided for herein will not be deemed a waiver of any further right hereunder.  The rights and remedies of PowerHouse set forth in this Agreement are cumulative and are in addition to any rights or remedies PowerHouse may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.

 

    1. Equitable Actions.

You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to PowerHouse which would not be adequately compensated by monetary damages and that PowerHouse may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security.  Notwithstanding any other provision of this Agreement, any such relief may be sought in the New Zealand courts or any other court of competent jurisdiction anywhere in the world (at PowerHouse’s sole discretion), and you hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

 

    1. Force Majeure.

You nor PowerHouse shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.

 

    1. Notices.

Any notice, request, approval, authorisation, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of:

        1. actual receipt, irrespective of the method of delivery;
        2. the time of transmission from PowerHouse if sent via email, as date stamped by PowerHouse’s systems;
        3. on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or
        4. on the sixth (6th) day after mailing by registered or certified New Zealand mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.

 

    1. Addresses.

 

      1. Our mailing address is:

 

PowerHouse Global Ltd

PO Box 13

Wanaka  9343

New Zealand

 

      1. Our registered office and address for service is:

 

PowerHouse Global Ltd

Office 4

Level 1

99 Ardmore Street

Wanaka  9305

New Zealand

 

    1. Headings/Interpretation.

The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.

 

    1. Survival.

All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability:  More specifically, Sections 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17 and 18 shall survive termination of this Agreement.

 

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