Terms & Conditions

Last Updated: 4th April 2016


1. About Us

1.1 Whafish offers a comprehensive toolkit and marketplace for Users to create a unique auction experience via an Auction Platform.

1.2 The Auction Platform provides Users with the ability to buy and sell Goods and Services using a reverse auction system. This means that, when a Seller lists Goods or Services on the Auction Platform for sale, the first Buyer to purchase the Goods or Services from the Auction Platform wins the auction and a contract of sale is immediately formed between the Buyer and the Seller.

1.3 Whafish is not a party to any sale or purchase transaction and does not act as an agent for or on behalf of Users in any way whatsoever.

1.4 Although the Auction Platform is referred to as an “auction”, Whafish is not an “auctioneer” for the purposes of the Auctioneers Act 2013 or any other legislation.


2. Acceptance of Terms and Conditions

2.1 Your use of the Auction Platform is subject to Whafish’s Terms and Conditions and, by using the Auction Platform supplied by Whafish, you agree to adhere to and comply with the Terms and Conditions at all times (including any amendments).

2.2 If you do not accept the Terms and Conditions, you must refrain from using the Auction Platform.

2.3 Whafish may amend the Terms and Conditions from time to time and you are bound by any such amendments. It is your responsibility as a User to ensure that you are familiar with the most recent Terms and Conditions, which will be available on Whafish’s website. For the avoidance of doubt, by continuing to use the Auction Platform you agree to adhere to and comply with Whafish’s most recent Terms and Conditions.

2.4 Whafish will not be accountable or liable for any damage or loss caused to any User due to that User’s failure to comply with Whafish’s Terms and Conditions.

2.5 The contents of the Terms and Conditions do not limit your rights under the Consumer Guarantees Act 1993.


3. Defined Meanings

3.1 In this document, the terms noted below have the following meanings:

“Auction Platform” means Whafish’s website application, which is available on a business or personal Facebook page, Whafish’s Facebook page and Whafish’s website;

“Commercial Trading” means Sellers who list Goods and Services on the Auction Platform for commercial purposes and/or as a main part of their business rather than in a personal capacity or for personal use;

“Buyer(s)” means a buyer, purchaser, trader or dealer that purchases Goods or Services from the Auction Platform, whether in a personal or commercial capacity;

“Free Trial Period” means a limited period of time where Users are not charged for their use of the Auction Platform, listing Goods or Services and creating a Whafish Profile.

“Good(s)” means any property offered for sale by a Seller;

“Payment Method(s)” means the following methods of payment that are provided on the Auction Platform via an advance program interface: (a) Braintree Payments which shall be used for credit card and debit cards; (b) POLi which shall be used for internet banking. “Peer to Peer Trading” means trading between Buyers and Sellers who use the Auction Platform in a personal capacity or for personal use and are not selling or purchasing Goods or Services for commercial purposes or as a main part of their business;
“Seller(s)” means any seller, vendor, trader or dealer that has agreed to make Goods or Services available for sale on the Auction Platform, whether in their personal or commercial capacity;

“Service(s)” means any services offered for sale by a Seller;

“Terms and Conditions” means the terms and conditions contained herein and any other amendments to these terms and conditions that Whafish may make to these terms and conditions from time to time;

“Third Party Content” means any information or content (including all images, attachments, video or other materials) that is supplied by anyone other than Whafish;

”User(s)” means any Buyer or Seller that uses the Auction Platform;

“Whafish Profile” means an online profile established by Users which contains information about the User and their use of the Auction Platform and which may include ratings or feedback from Whafish or other Users;

“Whafish’s website” means the webpages located at www.whafish.com and/or www.whafish.co.nz and any other website Whafish may create from time to time;

“Whafish” means Whafish Limited, trading as “Whafish” and/or “Whafish Reverse Auctions”.

”You” and “your” means you, as a User of the Auction Platform.


4. Peer to Peer Trading and Commercial Trading

4.1 The Auction Platform can be used for Peer to Peer Trading and/or Commercial Trading.

4.2 Commercial Trading Users can access the Auction Platform, list Goods and Services for sale and create a Whafish Profile at no cost during the Free Trial Period. You acknowledge that Whafish can end the Free Trial Period at any time, at which time Users may be charged for using the Auction Platform, listing Goods and Services for sale and/or creating a Whafish Profile.

4.3 All Commercial Trading Users must be incorporated companies that are registered with the New Zealand Companies Office.

4.4 Whafish reserves the right to notify Buyers that a particular listing on the Auction Platform has been listed by a Commercial Trading User.

4.5 All Commercial Trading Users must comply with the relevant legislation relating to the trading of Goods and Services.


5. Whafish Profile, liability and User risk

5.1 By using the Auction Platform and creating a Whafish Profile, you acknowledge that you are over 18 years of age.

5.2 You agree that you will not allow any other User to access your Whafish Profile and will not access any other User’s Whafish Profile yourself, unless you are expressly permitted to do so as part of your employment or business.

5.3 You acknowledge that Whafish and other Users can rate and place feedback on a User’s Whafish Profile. You agree that, when placing feedback on another User’s Whafish Profile, the feedback will be honest and, where possible, will remain positive.

5.4 Whafish does not necessarily endorse or agree with the ratings or feedback placed on a User’s Whafish Profile.

5.5 If your Whafish Profile contains negative feedback from a number of Users in relation to nonpayment by you or in relation to other complaints regarding your use of the Auction Platform, Whafish reserves the right to suspend, block or delete your Whafish Profile without providing you with prior notice.

5.6 Whafish reserves the right to remove any ratings or feedback placed on a User’s Whafish Profile if Whafish deems that the rating and/or feedback is unjust or inappropriately placed.

5.7 Unless otherwise expressly stated, you acknowledge and agree that Whafish does not control, endorse or verify any of the information contained on or within the Auction Platform or Whafish Profiles, including advertisements, links, media, reviews or listings by Users.

5.8 Whafish is not accountable for any Goods or Services that have been listed incorrectly by Users or for any disputes that may arise between you and any other User.

5.9 You acknowledge that the Auction Platform operates over multiple platforms, including Facebook and Whafish’s website, and that these platforms may be operated simultaneously by Users.

5.10 You understand that online trading has inherent risks and that Whafish provides no assurances or guarantees regarding the quality or reliability of Goods or Services or of Auction Platform Users.

5.11 Whafish advises that you employ safe practice when engaging in online trading including, but not limited to, positive communication between Users, arranging to view or discuss Goods or Services with a Seller prior to an auction commencing, sourcing information via feedback ratings on Whafish Profiles and, where possible, accepting payment in person, particularly in relation to Peer to Peer Trading. Whafish suggests you may wish to familiarise yourself with your rights under New Zealand trading law and the following website may be of assistance: http://www.comcom.govt.nz/fair-trading/fair-trading-act-fact-sheets/buying-and-sellingonline/

5.12 Whafish is not liable for any loss or damage caused to Users in any way whatsoever. For the avoidance of doubt, if the Auction Platform, Whafish Profiles or Payment Methods are compromised or interrupted in any way, Whafish is not liable for any damage or loss caused to Users. Where possible, Whafish will advise you of any disruption to its services and undertake reasonable remedial work as soon as possible, however, Whafish provides no guarantees regarding timeframes or the ability to remedy any disruption.

5.13 Whafish reserves the right to edit, suspend, block or delete any listings on the Auction Platform without providing the User with prior notice.


6. User Conduct

6.1 If you buy or sell Goods or Services using the Auction Platform, you acknowledge and agree that a legally binding contract will be formed between you and the other User (whether a Buyer or a Seller) and you acknowledge that you will be required to complete the transaction, including payment.

6.2 It is your responsibility as a User to ensure, before purchasing Goods or Services, that you have the necessary knowledge about the Goods or Services, and you shall not purchase Goods or Services unless you are in a position complete the transaction, including payment.

6.3 All Users are responsible for ensuring the accuracy of any information contained in listings for the sale of Goods and Services, including, but not limited to, the advertised quality, description, safety or legality of the Goods or Services.

6.4 All Commercial Trading Users must state the initial start price on the Auction Platform as being either the recommended retail price or the highest acceptable sale price. If the initial start price has been listed incorrectly, the Commercial Trading User may be entitled, with Whafish’s prior consent, to correct the initial start price, in which case the Commercial Trading User must advise Users of the correction. Whafish will also endeavour to advise Users of the correction to the initial start price.

6.5 Commercial Trading Users are responsible for advising Buyers of any terms and conditions and/or policies that may apply to the Goods or Services being sold on the Auction Platform.

6.6 If you purchase Goods or Services from a Commercial Trading User, you acknowledge that you will be bound by that User’s independent terms and conditions and/or policies and it is your responsibility to familiarise yourself with those terms and conditions and/or policies.

6.7 By using the Auction Platform, you agree to act appropriately and in a respectful manner towards other Users. For the avoidance of doubt, you shall not use the Auction Platform to harass or disrespect other Users, solicit any form of illegal behaviour or make any claims about Whafish or Users that are untruthful, threatening or of an objectionable nature.

6.8 Racism, abuse, sexual harassment, harmful and/or negative wording is not tolerated by Whafish and may result in your Whafish Profile or listing being suspended, blocked or deleted without Whafish being required to provide you with prior notice.

6.9 You agree that you will not post any information on your Whafish Profile or the Auction Platform that:

  1. Transmits obscene, disturbing or otherwise objectionable material;
  2. Offers any class of legal or illegal drug or paraphernalia, sexual services, tobacco products, alcohol, firearms, pharmaceutical or prescription based items, stolen Goods or Goods that you are not the legal owner of;
  3. Transmits any form of unwanted advertising such as chain letters, spam, pyramid schemes, contests, sweepstakes to any other User outside of the standard advertised options that are offered exclusively by Whafish;
  4. Exposes any form of personal information about another User without their prior consent;
  5. Results in the creation of fictitious accounts or a means to mislead Users within the Auction Platform, including but not limited to a fictitious name or Facebook profile, email or other contact details that are not representative of the User;
  6. Transmits any form of infringement on another person’s rights including intellectual property rights;
  7. Uses an automated process such as a spider, robot or scraper to access any information contained on Whafish’s website or any other associated services Whafish offers;
  8. Presents any virus, malware, spyware or other negatively impacting measure to the Auction Platform or Users.

6.10 You agree to advise Whafish of any unlawful or inappropriate activity that you may encounter while using the Auction Platform.

6.11 You give Whafish authority to provide your email address to another User as part of a sale or purchase transaction in order for that User to contact you to arrange for delivery of the Goods or Services. You acknowledge that Whafish is not a party to any communication between you and any other User.


7. Payment

7.1 The Payment Methods are not available to Peer to Peer Trading Users. As such, Peer to Peer Trading Users acknowledge that they are required to arrange payment with the other User independently of Whafish and the Auction Platform. Whafish advises that Peer to Peer Trading Users arrange for payment to be made in person.

7.2 All Users acknowledge that the following terms apply to purchases from Commercial Trading Users only.

7.3 After a contract of sale has been created between a Commercial Trading User and a Buyer, Whafish will provide confirmation of the purchase price, description of the Goods or Services and terms and conditions/policies of the Commercial Trading User to both the Commercial Trading User and the Buyer and the transaction (including payment) must be completed in full.

7.4 Commercial Trading Users and Buyers agree to use the Payment Methods provided via the Auction Platform (when available) and shall not revoke any payments made.

7.5 If you do not make payment for the Goods or Services within the timeframe allocated by the Commercial Trading User, the contract will be deemed to have been cancelled and the Commercial Trading User is no longer required to offer you the Goods and Services for sale. In these circumstances, Whafish or the Commercial Trading User is entitled to place ratings or feedback on your Whafish Profile relating to non-payment.

7.6 Once a payment has been made, the Payment Method provider will issue a receipt to the Buyer and the receipt can be used by the Buyer to redeem the Goods or Services at the Commercial Trading User’s place of business. Alternatively, the receipt can be used to arrange for shipping or delivery of the Goods or Services, however, Whafish is not responsible for arranging the payment of or physical delivery of any Goods or Services purchased via the Auction Platform and Users must address this between themselves.

7.7 Whafish is entitled to deduct a success fee from the sale price of all Goods and Services sold by Commercial Trading Users via the Auction Platform. You acknowledge that the success fee may include a deduction for any third party costs incurred by the Payment Method providers.

7.8 Buyers purchasing from Commercial Trading Users shall not be entitled to a refund or exchange unless specifically provided for by the Commercial Trading User’s terms and conditions and/or policies or where required by law.

7.9 Buyers purchasing from Commercial Trading Users will not be entitled to a refund or exchange if the Buyer has made untruthful claims or has changed their mind about purchasing the Goods or Services.

7.10 If a Commercial Trading User’s business closes down after the Buyer has purchased the Goods or Services, Whafish will ensure that the Buyer is refunded in full.

7.11 If you are not completely satisfied with your purchase of certain Goods or Services from a Commercial Trading Buyer, you must contact the Commercial Trading User within five days of receiving the Goods or Services, to rectify the matter with the Commercial Trading User directly. If you require the Commercial Trading User’s contact details for this purpose, please contact Whafish at admin@whafish.com or via the contact details noted on Whafish’s website. If Whafish cannot assist with rectifying the matter, Whafish may, at its sole discretion, issue you with a refund, provided that you are responsible for the costs of any postage. If a refund or exchange is provided, Whafish is not liable for any lost, stolen or damaged Goods during delivery and advises that you arrange sufficient insurance in relation to the same.


8. Limitation of Liability

8.1 While Whafish will use its best endeavours to verify the legitimacy of Commercial Trading Users, Whafish provides no assurances regarding the reputation of a Commercial Trading User or the quality or reliability of the Goods or Services provided by that User.


9. Dispute Resolution

9.1 Where a dispute arises between you and any other User, you agree to act in good faith and to use your best endeavours to attempt to resolve the dispute amicably with the User directly through negotiation or other informal means before pursuing any formal legal action or requesting a chargeback from your card issuer or bank.

9.2 Although Whafish may provide assistance or a resolution when a dispute arises between Users, you acknowledge that Whafish is not a party to any dispute and is not obliged to become involved.


10. Third Party Content

10.1 You acknowledge that Whafish provides a platform for Third Party Content to be distributed and Whafish is not a publisher.

10.2 You acknowledge that all Third Party Content that is available on the Auction Platform is the sole responsibility of the User that posts such content.

10.3 Whafish makes no representation, warranty or assurance regarding the Third Party Content posted on the Auction Platform by Users and Whafish does not accept any liability for damage or loss incurred by Users due to any Third Party Content made available to Users on the Auction Platform. You acknowledge that any Third Party Content posted on the Auction Platform is independent of Whafish.

10.4 You provide Whafish with authority to incorporate Whafish’s logo and any other information that Whafish considers relevant (including the date and time of the auction) onto any Third Party Content you upload to your Whafish Profile of the Auction Platform.


Force Majeure

11.1 Whafish is not liable to Users for any loss or damage caused due to the performance (or nonperformance) of the Auction Platform, Whafish Profiles and/or Whafish’s website, if such performance (or non-performance) is caused by force majeure.

11.2 Force majeure means an event or circumstance beyond Whafish’s control and includes any technical difficulties.

11.3 If Whafish considers that a force majeure has occurred, it may notify Users of this fact, however, Whafish is under no obligation to do so.


12. No Waiver

12.1 No waiver of any term of condition contained herein shall be treated as a waiver of any other term or condition or any subsequent breach.

12.2 The failure of Whafish to enforce any term or condition at any time shall not be interpreted as a waiver of all or any terms and conditions.


13. Governing Law and Jurisdiction

13.1 Whafish’s terms and conditions, and any transactions contemplated by them, are governed by New Zealand law.

13.2 Users accept the jurisdiction of the New Zealand courts and any court that may hear appeals from those courts.


14. Indemnity

14.1 You indemnify Whafish and its representatives against all actions, proceedings claims, costs, losses, demands, damages, expenses or liabilities of any kind suffered of incurred by Whafish, whether directly or indirectly, as a result of any act or omission on the part of you or Whafish.


15. Intellectual Property

15.1 All information and content contained on or within the Auction Platforms is the intellectual property of Whafish and is protected by the applicable trademark and copyright law.

15.2 You agree to not copy, modify, defraud or manipulate any trademarked information and content on the Auction Platform and this includes any reverse engineering of any software contained on the Auction Platform.


© 2016 Whafish Limited