Accepting these terms

By clicking the “I Agree” button at the top or bottom of this page, you confirm to us that you agree to the following terms (“Agreement”). “Smallfish”, “we” or “our” means Smallfish Limited of Wellington, New Zealand. In these terms, “you” means you. However, if you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that company or entity to this Agreement, in which case references to “you” are references to that company or entity. If you do not agree to these terms, or do not have the authority mentioned above, you are not permitted to create or use the Shop (as defined below).

Smallfish service

As long as you comply with these terms and pay all relevant fees Smallfish will provide you with a right to access and use a website from which you can sell your goods and services. In this Agreement we refer to this website, and all other related services we may provide to you, as your “Shop”. This right is not exclusive to you and cannot be transferred by you to anyone else. This right is limited by these terms (including our rights to end this Agreement) and any other limitations that we may inform you of from time to time.

Smallfish will make all reasonable efforts to ensure that your Shop is properly provided to you. However, because it’s a low-cost service, run over the internet, we do not guarantee or represent that your Shop or these services will be error-free, uninterrupted, continuously available, secure, private, or free from viruses or malicious programmes or compatible with any hardware or software you might use. Smallfish is not responsible for any delay or failure caused by anything beyond its reasonable control. From time to time, Smallfish may need to carry out maintenance that will interrupt access to your Shop. Smallfish reserves the right to make changes over time to your Shop, including to the format, layout, look-and-feel, and functionality. Smallfish reserves the right to view any part of your Shop including details of any orders.

You acknowledge that you are acquiring a Shop for the purposes of a business and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply.

Fees and payment

You must pay all applicable fees for your Shop (plus GST) in accordance with the then current fees and payment terms that are posted on Smallfish’s website or that we otherwise notify you of. We may require you to set up an automatic payment to Smallfish or provide us with your credit card details so that we can debit your account for the applicable fees. You hereby authorise Smallfish to debit your account in this way.

If you provide a refund to your customers for any reason, we don’t have to refund any transaction fees we may have charged you.

Your responsibilities

• It’s your responsibility to fill your customer’s orders promptly. You must keep your Shop current and accurate at all times, including in relation to your contact details, your products, and fulfilled orders.
• It’s your responsibility to resolve any complaints or deal with any enquiries from your customers.
• You must comply with all relevant New Zealand laws and regulations. If you’re selling to overseas customers, you must comply with the laws and regulations in those countries too.
• If the products you are selling are subject to licensing, you must comply with all applicable licences, and maintain correct and current versions of those licences.
• You must observe the Privacy Act in relation to your customers’ personal information.
• You must ensure that you’re allowed to sell what you’re selling and have and maintain all the necessary rights to supply and use the content (including text, images and data) that you supply to us or upload to your Shop.
• You must access and use your Shop in a reasonable and proper manner and never in a way that breaks any laws or regulations or infringes our or anyone else’s rights.
• You must make sure that at all times we hold your correct name and contact details.
• You must keep your login and passwords confidential to yourself.
• You must follow Smallfish’s directions and restrictions in relation to your Shop.
• Smallfish does not take responsibility for the loss or damage to any of the content (for example, images) you supply to Smallfish. So, you must keep your own copies and backups of the content that you supply to Smallfish so that you can recreate your Shop if necessary.

What you must not do

• You must not sell or display stuff that is illegal, or has sale restrictions, and/or that Smallfish at its sole discretion does not allow from time to time. For example, adult movies, pornography, firearms, etc.
• You must not advertise stuff on your Shop in a way that breaches or is likely to breach any relevant law, regulation or licence.
• You must not conduct illegal activities via your Shop.
• You must not put defamatory statements up on your Shop.
• You must not do anything that would interfere with the normal operation of your Shop, or anyone else’s use of their Smallfish shop.
• You must not let anyone else log in to your Shop or have access to your login and password.
• You must not do anything, or assist or authorise anyone else to do anything, that, in Smallfish's reasonable opinion, is likely to adversely affect Smallfish's reputation or goodwill, or any Smallfish IP (defined below in section 9).

PayPal

It’s your responsibility to create an account with PayPal in New Zealand currency. PayPal is responsible for paying you any money from sales completed through your Shop. When you set up your account, we require you to configure your PayPal account to send certain information to Smallfish. From time to time Smallfish may check that you have configured your account correctly. If you haven’t configured your PayPal account correctly Smallfish may not be able to provide you with complete order details and we are entitled, at our sole discretion, to suspend your Shop or terminate this Agreement.

Because we didn’t design and don’t fully control the PayPal service, we have no responsibility or liability for the PayPal service in any way (including as to its terms, quality, availability or security). If there is any problem with the PayPal service you agree to pursue any remedy solely against PayPal and not us.

Invoices and Shop statistics

You can create invoices for your customers in the Manage section of your Shop. Smallfish accepts no responsibility for the accuracy of these invoices, including as to whether they meet any legal requirements for tax and GST invoices. Smallfish displays certain statistics in your Shop. Smallfish does not guarantee the accuracy of these statistics.

Smallfish branding

You agree that we may include a byline and logo on your Shop, crediting the design and development of the Shop to Smallfish, and may feature your Shop on the Smallfish website or in our other advertising. For the avoidance of doubt, this is not to be taken as conferring on you any authority or licence to use Smallfish’s trade marks or logos in any manner that we have not expressly authorised from time to time.

Intellectual property

Even though we may call you a “shop owner”, except for any intellectual property in the content (including text, data and images) you supply to Smallfish, Smallfish alone (and/or our providers as applicable) owns and shall retain all rights, title and interest, including intellectual property rights (for example, copyright, patents, trademarks and designs, whether registered or not), in:

• your Shop and the Smallfish website (including in the user interface, design, and look-and-feel of these websites) and in any ideas, concepts, know-how, processes, software, documentation or materials underlying these websites or that Smallfish otherwise supplies or makes available to you; and
• as they are created, any improvements or changes to any of the above,

(collectively, “Smallfish IP”).

Your rights to use Smallfish IP are limited to the right to use your Shop as set out in section 2 (Smallfish service) and a non-exclusive and non-transferable right to use any documentation that we supply to you for the purpose of operating your Shop. You are not granted any other rights to Smallfish IP. You may not copy, distribute, or modify any Smallfish IP, nor are you allowed to reverse-engineer any aspect of the Shop or the way we provide services to you.

Indemnity

You agree to fully indemnify and keep indemnified Smallfish, and our suppliers, directors, employees, and agents against all claims, proceedings, actions, liabilities, damages, losses, costs and expenses (including full legal costs) arising out of or in any way connected to your use, or anyone else’s use, of your Shop, any breach by you of this Agreement, law, regulation or licence, or anything else you do or do not do in relation to your Shop (in each case a “Claim”). This includes any Claim that arises because your Shop, the Smallfish service or the PayPal service wasn’t working properly.

Limitation of liability

This is a low-cost service provided across the internet, consequently it’s provided on an “as is” and “as available” basis. You agree to bear the risks of conducting your business on this basis. That means, for example, we are not liable to you or anyone else if your Shop cannot be accessed for any reason, or if a customer’s order is recorded incorrectly in the Shop.

To the fullest extent permitted by law, Smallfish and our suppliers, directors, employees, and agents (“Related Parties”) will not be liable to you, or any third party, for any: loss or damage to information or data from any cause; breach of security or privacy; loss of profit, opportunity, or saving; or incidental, indirect, special or consequential loss or damage.

If Smallfish or our Related Parties are liable to you for any reason, and for any reason we have not been able to exclude that liability under this Agreement, then the maximum aggregate liability of Smallfish and our Related Parties (together) to you for anything we or Related Parties have done or not done (including any breach of this Agreement) will under no circumstances exceed NZ$35.

The maximum aggregate liability above, and any exclusions or disclaimers of liability in this Agreement, shall apply however liability arises, whether in contract, in tort (including negligence), for breach of statutory duty, or otherwise. Except as expressly set out in this Agreement, all representations and warranties, express or implied, are excluded to the maximum extent allowed by law.

Changes to these terms

From time to time, Smallfish may change the terms of this Agreement (including the fees and payment terms) or issue additional terms. We will take all reasonable steps to give you at least 5 days’ notice in writing before any changes take effect. Your use of your Shop after such notice confirms you accept the amended terms. We may notify you via the Smallfish website, an announcement in the Manage section of your Shop, or by email. Any other changes to these terms must be in writing and signed by one of our authorised representatives.

Suspending or limiting access to your Shop

Smallfish may suspend or limit access to all or any part of your Shop at any time, for any reason. We may require you to amend any aspect of your Shop, for example, we may require you to change a product description or remove an image. During the period of any suspension or limited access you must still pay Smallfish’s fees. However, we may at our sole discretion choose to credit you with a portion of the fees for the Shop that was subject to the suspension or limitation.

Terminating this Agreement

Smallfish may terminate this Agreement with immediate effect if you are in breach of this Agreement or if you have entered into receivership, liquidation, bankruptcy, or have entered into a compromise or composition with your creditors. Smallfish may also terminate this Agreement for any reason on 1 month’s written notice to you.

You may terminate this Agreement at any time by closing down your Shop.

In the event of termination for any reason, your Shop will be permanently closed and you will have no access to any information or content that was in that Shop, including any content you may have supplied to Smallfish. However, if this Agreement is terminated, you agree that Smallfish may collect any fees that are owed by you to us that have accrued as at the date of termination. If you have paid any fees in advance prior to termination Smallfish will not refund these to you.

If we terminate or suspend access to your Shop we will use our reasonable endeavours to supply you with information relating to any unfilled orders.

Termination or cancellation of this Agreement shall not: relieve either Smallfish or you from any right, liability, or claim that has accrued before the date of termination or cancellation; or affect the provisions of this Agreement which expressly, or by their nature, survive termination or cancellation (including as are set out in sections 9 (Intellectual property), 10 (Indemnity), 11 (Limitation of liability), 14 (Terminating this Agreement), 15 (General)).

General

Where there is any inconsistency between these terms and any additional terms we may notify you of, these terms shall take priority unless expressly stated otherwise in writing by Smallfish. Any variation to this Agreement will only be effective if it is issued in writing from Smallfish, including by being posted as an announcement in the Manage section of your Shop.

This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all previous agreements, arrangements, understandings or representations relating to that subject matter. If at any time any provision of this Agreement is or becomes illegal or unenforceable the remaining provisions will continue to be binding. A waiver of any of the terms of this Agreement must be in writing and signed by the General Manager of Smallfish. No delay or failure to exercise a right under this agreement prevents the exercise of that or any other right on that or any other occasion.

You may not subcontract or assign any of your rights or obligations under this Agreement. Nothing expressed or implied in this Agreement will be deemed to constitute either party as the partner or agent of the other party or in a joint venturer with the other party.

In this Agreement, words in the singular number include the plural, and vice versa. Any examples in this Agreement, and references to “including” and similar words, do not imply any limitations.

Any notices that you send to us must be sent by pre-paid post, fax or email to the contact details then listed on Smallfish’s website. Smallfish may post, fax, or email notices to you.

From time to time Smallfish may send you information about offers that Smallfish believes you may be interested in. You agree that you’re happy to receive this information electronically (for example, by email).

This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.