Terms of use

Terms of Use for Fossick.com Limited

Version 1.2, 8 March 2010

1. Acceptance of Terms of Use

Fossick.com Limited ("we", "us", "our", "Fossick"), trading as Fossick.com, provides the services contained in this site to you under these Terms of Use.

Each time you access this internet site ("Site"), you confirm that you have read and understood the Terms of Use. We may amend these Terms of Use from time to time in our sole discretion and werecommend that you check them on a regular basis. By accessing this Site you are indicating your agreement to be bound by all of these Terms of Use, including any amendments made to them from time to time.

2. Definitions

  • A "User" (or "you") is anyone who accesses, browses, crawls, scrapes, or in any way uses the Site, including but not limited to anyone who may read or write reviews about Businesses listed on the Site, and a Business that provides information for the Site.
  • A "Business" is an entity that provides accommodation services to the public in New Zealand, Australia or the Pacific.
  • "The Site" is Fossick.com
  • "Services" means the services and functionality made available to Users by Fossick.
  • "Content" includes information, compilations, communications, images, photographs, graphics, audio, and videos.
  • "Business Content" means Content that a Business submits, posts, or transmits to the Site, including but not limited to the text, images, graphics, general information that it displays as part of its business listing, right of reply to reviews, or other commentary. Business Content does not include personally identifiable information that a Business submit when registering with the Site (which personal information is subject to our Privacy Policy).
  • "Reviewer Content" means the Content that any User of the Site may submit, post, or transmit to, or using, the Site, including but not limited to the content of reviews and ratings.
  • "Fossick Content" means Content that is created by Fossick and made available on the Site.
  • "Third Party Content" means Content that is made available on the Site by parties other than Fossick or the Users or Businesses, including but not limited to data providers who license data to Fossick for use on the Site.
  • "Site Content" means all of the Content that is made available on the Site, including Business Content, Reviewer Content, Third Party Content, and Fossick Content.

3. General Services

Fossicks’ Services include a dynamic online directory of Businesses and a forum in which customers/clients are able to post ratings and comments relating to Businesses they have used. Registered Businesses are able to respond to ratings and comments posted about them if they so wish. Fossick also provides a range of related services.

4. Eligibility

By accessing or using the Site or the Services, you represent and warrant that:

  1. You are of legal age to form a binding contract;
  2. You have the right, authority, and capacity to enter into and abide by these Terms of Use;
  3. If you access or use the Site or the Services on behalf of a company, entity, or organisation, you are an authorised representative of such company, entity, or organisation with the authority to bind it to the Terms of Use;
  4. You are not impersonating another real person; and
  5. You have not been excluded or suspended from Fossick.com.

5. General Provisions

  1. Intellectual Property
    1. Fossick.com images and logos referenced in this Site and the contents of this Site are subject to intellectual property rights belonging to us. Other product and business names mentioned herein may be the intellectual property of the respective owners.
    2. Any rights not expressly granted herein are reserved. You agree not to breach any trade mark, copyright, patent, design or other rights in relation to all trade marks, information, images, logos and other intellectual property included in this Site. No logo, graphic, sound or image from this Site may be copied or retransmitted unless expressly permitted in writing by us.
    3. You agree not to download, copy, transmit, "data-mine", "scrape" or otherwise replicate any of the information on this Site, including ratings and comments, for any business purpose, whether by electronic or any other means whatsoever, unless expressly permitted to do so by Fossick.
  2. Governing jurisdiction

    This agreement and the use of this Site and any disagreements arising in connection with either or both are governed by the laws in force in New Zealand. You irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand. We do not warrant that the Site complies with the laws of any other jurisdiction and do not authorise access to the Site from territories where its contents may be unlawful under the laws of such territories.
  3. Assignment

    We may legally assign any of our rights and obligations under this agreement at any time by giving you notice on the Site.
  4. Links to Third Party Sites

    The Site may include links to other websites ("Third Party Sites"). Fossick does not control or endorse any Third Party Site, and you agree that Fossick is not responsible for the availability or contents of any Third Party Site. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from this Site or Third Party Sites) is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such Third Party Sites does not imply any endorsement of the material on such websites or any association with their operators.
  5. Copyright Notice

    © 2010, Fossick.com Limited, 66 Heathcote Rd, Castor Bay, Auckland.
  6. Entire Agreement

    These Terms of Use constitute the entire agreement between you and us and supersede all prior representations, agreements, statements and understandings whether oral or in writing. However, Businesses and advertisers may enter into additional agreements with us.

6. No Warranties/Disclaimer

You expressly understand and agree that:

  1. Your use of the Site is at your sole risk. To the maximum extent permitted by law, Fossick 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;
  2. Fossick does not warrant that the Services provided will be uninterrupted, timely, secure, or error free, or that any information (including feedback) provided on the Site is accurate, error-free or reliable;
  3. Fossick does not warrant the accuracy, adequacy, quality, currency, validity, completeness or suitability of the Services or any other information available on this Site for any purpose. The Site and Services are provided on an "as is" and "as available" basis;
  4. Fossick does not warrant that this Site and the Services will be free of infection by viruses, worms, trojan horses or anything else containing destructive properties;
  5. No advice or information that is obtained by you from the Site or Fossick or anyone else shall create any warranty by Fossick that is not expressly stated in these Terms of Use;
  6. Fossick does not make any warranties in respect of the Businesses recommended on this Site or the services performed by those Businesses;
  7. Fossick does not represent or warrant that travel to any particular destinations mentioned on the Site is advisable or without risk. You accept that Fossick is not liable for damages or losses that may result from travel to such destinations;
  8. Fossick does not necessarily endorse, support, sanction, encourage, verify or agree with the ratings, comments or information posted by Users of the Site;
  9. Fossick takes no responsibility and assumes no liability for any material posted, stored or uploaded by you or any User or third party, or for any loss or damage thereto, nor is Fossick liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter;
  10. Responsibility for the content of advertisements appearing on this web site (including hyperlinks to advertisers' own websites) rests solely with the advertisers. The placement of such advertisements on the web site does not constitute Fossick’s recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement;
  11. In no event shall we be liable for any loss sustained by you arising out of or in connection with the use or performance of this Site by you or others, 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;
  12. Fossick reserves the right (but is under no obligation) to modify, update, or discontinue the Site or any of the Services at its sole discretion, at any time, for any or no reason, and without notice or liability;
  13. Fossick reserves the right to edit any Content on the Site, including Business Content or Reviewer Content, for legal or any other reason, at its discretion;
  14. Fossick shall not be responsible for screening, editorial, or other control over ratings, comments or other Content, irrespective of any monitoring of ratings, comments or other content on the Site which Fossick may choose to undertake;
  15. The Site may include material that could be deemed distasteful, misleading, inaccurate, offensive, or otherwise objectionable; and
  16. If any part of these Terms of Use is held to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed to be superceded by a valid, enforceable provision that most closely matches the intent of the original provision and the rest of the Terms of Use shall remain in force.

7. General Conditions for All Users

As a User of this Site and its Services you agree not to:

  1. Access or copy any Content on this Site using any robot, spider, scraper or other automated means or any manual process without written permission from Fossick;
  2. Impose in any way an unreasonable or disproportionately large load on our infrastructure;
  3. "Frame" or "mirror" or otherwise incorporate any part of this Site into another website without written permission from Fossick;
  4. Harm the Site with any viruses, corrupted data or other harmful, disruptive or destructive files;
  5. Breach any of the terms of Fossick’s Privacy Policy; or
  6. Access any information held by Fossick that is not publicly available, without written permission from Fossick.

8. Ratings and Comments on Businesses

You acknowledge that Fossick provides a forum in which the performance of Businesses can be rated by their customers/clients. In posting such ratings and/or comments, you warrant that:

  1. You are or have been a customer/client of the Business in question;
  2. You are not associated with the Business you are reviewing and have not received any substantive inducement to write your review;
  3. The details of email address, home country and month of stay you provide are accurate. You are willing to be contacted at the email address for verification purposes or if a dispute arises over your review. Your username need not be your real name;
  4. Your ratings and/or comments are your original work;
  5. The statements of fact reflected in the ratings and/or comments posted by you are true or not materially different from the truth;
  6. The opinions reflected in the ratings and/or comments posted by you are genuine and honestly held by you;
  7. You will not submit any obscene or offensive material or any material that is, or may potentially be, defamatory, unlawful, fraudulent, abusive, threatening, harrassing or hateful, an invasion of anyone's rights, including rights to privacy, confidentiality or intellectual property, harmful to the business interests of Fossick, or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any local, national or international law or regulation;
  8. You will not submit or post any material which is unrelated to the purpose of a review, including junk mail, spam, chain mail, campaign material or unauthorised advertising, including solicitation of other Users to buy or sell any products or services without the prior written consent of Fossick;
  9. You are responsible for the content of your reviews. You assume all risks associated with that content, including anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure that makes you personally identifiable or any liability to anyone else that may arise from it; and
  10. Fossick assumes no responsibility or liability for the preservation of content on the Site and may modify or remove it at its discretion. If you wish to retain a copy of any Content you supply, you must do so yourself.

9. Business Listings

If you have registered to claim your Business listing or added a Business Listing with Fossick, the additional Terms of Use set out in this clause will also apply.
Fossick, subject to these Terms of Use, will provide your Business with access to your business information and the ability to add additional business information ("Business Content").
In posting or submitting material (Business Content) about your Business on the Site, you warrant and agree that:

  1. You are authorised to act on behalf of the Business;
  2. In the event of a dispute about who is entitled to act on behalf of a business, Fossick will email the disputing parties and seek their evidence for their claims, and reserves the right to determine the dispute for the purposes of the Site in its own discretion;
  3. All Business Content you supply may be published on the Site;
  4. All Business Content you supply is truthful and accurate to the best of your knowledge, and complies with the laws of New Zealand and the relevant advertising codes;
  5. You will not submit any obscene or offensive material or any material that is, or may potentially be, defamatory, fraudulent, abusive, threatening, harrassing or hateful, an invasion of anyone's rights, including rights to privacy, confidentiality or intellectual property, harmful to the business interests of Fossick, or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any local, national or international law or regulation;
  6. You grant Fossick an unrestricted right to use, reproduce, modify, translate and distribute any material you post or submit to the Site in any medium and for any purpose, including commercial uses (see also Clause 12 below);
  7. You assume all risks associated with the use of Business Content you supply, including any reliance on its accuracy, completeness or usefulness by others, and any liability to anyone else that may arise from it;
  8. You accept that Users will review your Business, and that some of the comments posted may be critical of it. However, you will not hold Fossick liable for them;
  9. You agree not to post, or to encourage or procure others to post, ratings and/or comments about your Business on the Site, which are untrue, inaccurate or misleading;
  10. You agree not to pay, or otherwise provide consideration, to anyone else to post ratings and/or comments about your Business on the Site;
  11. Fossick reserves the right, and has absolute discretion, to remove, screen or edit without notice any Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the Site at your sole cost and expense, though you are not obliged to do so;
  12. You agree not to disclose your login details to third parties. If you do so, you are liable for any breach of these Terms of Use by third parties using your login details and the indemnity referred to in clause 10 below is extended accordingly; and
  13. You acknowledge and accept that Fossick is entitled to withdraw the benefits of registration or to remove your Business from the Site without notice or liability of any kind, including (without limitation) the suppression or removal of Business Content or Reviewer Content at its sole discretion.

10. Indemnity

You agree to indemnify Fossick and its employees, agents and representatives and to hold them harmless from any and all claims and liabilities (including fees), which may arise from your breach of these Terms of Use.

11. Termination

Fossick reserves the right (but is under no obligation) to terminate or suspend your ability to use the Site, in whole or in part, at Fossick's sole discretion, for any or no reason, and without notice or liability of any kind. Termination may include:

  1. Removal of access to all offerings within the Services;
  2. Deletion of all related information, files and materials associated with you, including your Reviewer Content or Business Content; and
  3. Barring of further use of the Services. You agree that Fossick shall not be liable to you or any third party for any termination of your access to the Site, Services and materials, including your Content.

12. Licenses

  1. You hereby grant Fossick and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, fully sublicensable, and fully transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, incorporate into other works, display, perform, and otherwise exploit your Content (including Reviewer Content and Business Content) for any purpose, including, without limitation, the sale of the Site, and promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels now known or later developed ("Downstream Distributions");
  2. You also hereby grant Users and users of any Downstream Distributions a non-exclusive license to access, use, reproduce, distribute, display, and perform your Content (including Reviewer Content and Business Content) for their personal, noncommercial use in connection with their use of the Site and any Downstream Distributions, as expressly permitted by the functionality of the Site and any applicable Downstream Distribution, and these Terms of Use and the terms of use of any applicable Downstream Distribution. In addition, you grant Fossick, its affiliates, and their respective sublicensees the right to associate and display the name you supply with your Content.
  3. You agree to waive any moral rights associated with the use of the content, including the right to be identified as author and the right to integrity in the content.
  4. By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (1) your Feedback does not contain the confidential or proprietary information of third parties; (2) we are under no obligation of confidentiality with respect to the Feedback; (3) we may have something similar to the Feedback already under consideration or in development and (4) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, world-wide licence to use, modify, publish, distribute and sublicense the Feedback.

13. Copyright Complaints

  1. Infringement of another person’s copyright is a breach of these Terms of Use.
  2. If you believe that any Content on Fossick infringes your copyright, please write to us at help@fossick.com, identifying the allegedly infringing material and its location on the Site; providing evidence of your rights in the material; and giving contact details. Fossick will investigate and respond to you. If your claim is established, the infringing material will be removed from the Site.

14. Content Feeds

We may make some of the Site Content available by feeds such as RSS ("the Feeds"). You may access and use the Feeds to display Feed content on your computer, website or blog, provided that you do not redistribute it and:

  1. your use of the Feeds is for personal, non-commercial use only;
  2. your display of the Feed content includes a link to the relevant page on Fossick.com;
  3. your display of the Feed content identifies Fossick.com as its source;
  4. your display of the Feed content contains no suggestion that Fossick.com endorses your site or any Reviewer Content or Business Content or any other site, entity or cause;
  5. your use does not overburden Fossick.com’s systems.

Fossick.com reserves all rights in the Feeds and the right to terminate the Feeds at any time at its sole discretion.