1.1. Flack provides:
- An online marketplace for peer-to-peer hiring of personally owned Goods, to facilitate and enable transactions between a “Renter” who requires Goods for hire and a “Lender” who provides such Goods for hire;
- Hosting of Member information and other materials uploaded to the Site, including (without limitation) product information, photographs, audio, video, technical and user manuals, technical and user advice and other Content;
- Booking and payment services;
- A location-based search directory;
- Free use of the Flack mobile application (“App”); and
- Other services and functions that may be offered by Flack from time to time,
- (together, referred to as the “Services”)
- subject to the following terms and conditions.
1.2. By signing up as a Member, browsing the Site or otherwise accessing or using the Services you agree to be bound by all of these terms and conditions. If you do not agree to these terms and conditions, you are not authorised to use the Services and must not use or access the Services or the Site.
1.3. Flack only provides the Services. Flack does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Goods. Members alone are responsible for their Listings and Content. When Members make or accept a booking, they are entering into a contract directly with each other. Flack is not and does not become a party to or otherwise participate in any contracts or dealings between Members.
2. Amendments to Terms and Conditions
2.1. Flack reserves the right to amend these terms and conditions from time to time.
2.2. Amendments will be effective immediately upon publication on the Site.
2.3. Your continued use of the Services following such publication will represent your agreement to be bound by the terms and conditions, as amended from time to time.
3.1. You must register as a Member to access and use certain features of the Services, such as creating a Listing or making a booking.
3.2. You must be at least 18 years of age to register a Member account with Flack.
3.3. If you are registering a Member account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses described in these terms and conditions.
3.4. You must provide accurate, current and complete information during the registration process and keep your Member account and profile page information up-to-date at all times.
3.5. You can register a Member account using an email address and creating a password, or through your account with certain third-party social networking services, such as Facebook or Google ("SNS Account"). You have the ability to disable the connection between your Flack Member account and your SNS Account at any time, by accessing the "Settings" section of the Flack Services.
3.6. You may not register more than one (1) Member account unless Flack provides express written permission for you to do so.
3.7. You are responsible for maintaining the confidentiality and security of your Member account credentials and must not disclose your credentials to any third party. You must immediately notify Flack if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of your Member account. You are liable for any and all activities conducted through your Member account.
3.8. Flack may make the access to and use of the Flack services, or certain areas or features, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting ratings or reviews thresholds, or booking and cancellation history.
3.9. Member verification on the internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Nevertheless, for transparency and prevention of fraudulent behaviour, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions (if available).
3.10. If you have not logged on to Flack for a period of 12 months (1 year), your Member account may be suspended.
3.11. You or we may terminate your Member account at any time, for any reason. If your Member account is terminated, then you must stop using the Site and the Services, although certain parts of these terms and conditions will continue to apply after termination, including clauses 6.1, 7.2, 14.1, 16, 17, 19 and 20. If we suspend or terminate your Member account, then you must not attempt to circumvent this by creating or operating another Member account.
3.12. You must be located in New Zealand to become a Member. The Services must not be used by any Persons, or for any Goods, located outside of New Zealand.
4.1. Flack may, at its sole discretion, enable Members to create, upload, post, send, receive and store Content on or through the Services; and to access and view Content uploaded by other Members and any Flack Content.
4.2. You must not upload, post or transmit or otherwise make available on the Site any Listing or Content that is:
- Fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive, including any Listing or Content that:
- uses misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of the Content, material or information; or
- impersonates any Person, including but not limited to an Flack employee, or that falsely states or otherwise misrepresents your affiliation with a Person;
- In contravention of any law or which incites or encourages the contravention of any law;
- Racist, sexist or homophobic, or that promotes discrimination, bigotry or hatred towards any Person or group;
- Pornographic, indecent, obscene, profane, vulgar or offensive;
- Defamatory of any Person;
- Abusive, threatening, offensive, harmful, harassing or ethically objectionable.
- Personal or identifying information about another Person without that Person’s explicit consent;
- Advertising, except for the sole purpose of promoting a Listing through the Site; or
- Advertising any illegal product where the promotion, use, supply or hiring of the product is prohibited or restricted by any applicable law.
4.3. Flack reserves the right (without obligation) to refuse or prevent loading of any Content or Listing, or remove any Content or Listing, at its sole and absolute discretion (including any Content or Listing that is bought to its attention and that it deems, in its sole and absolute discretion, unsuitable or in breach of these terms and conditions). Flack may, but shall not be obliged to, provide reasons for its decision and you shall have no rights to question or challenge Flack’ decision in this regard.
4.4. Flack does not pre-screen the Content and except for 4.3, Flack exercises no editorial control or oversight over the Content. For example, Flack has no responsibility for:
- the existence, quality, safety, suitability, or legality of any Listings;
- the accuracy of any Listing descriptions, ratings or reviews; or
- the performance or conduct of any Members. Any references to a Member being "verified" (or similar language) only indicate that the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement by Flack of any Member, including of the Member's identity or background or whether the Member is trustworthy, safe or suitable.
5. Member obligations
5.1. By loading Content on the Site;
- You agree to provide current, accurate and up-to-date information about yourself as required under these terms and conditions or on request from Flack;
- You acknowledge that all the Content submitted by you to Flack is and will be treated as non-confidential;
- You accept that any Content that you upload may be removed by Flack from the Services as described in these terms and conditions without notice at any time;
- You will not upload any Content which contains viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of any computer software or hardware;
- You shall ensure that Content that you upload is at all times up-to-date, accurate, and not misleading or deceptive, and warrant that you will update any obsolete Content;
- You warrant that your Content is not fraudulent, defamatory or otherwise unlawful or prohibited by these terms and conditions in any respect, and does not infringe the Intellectual Property Rights, confidentiality rights, privacy rights, property rights or any other legal rights of any Person; and
- You shall not, whether directly or indirectly, do anything which will or might lead you to defeat the provisions or intent of these terms and conditions.
6. Licence from Members
6.1. By loading Content to the Site, you automatically grant, and you represent and warrant that you have the right to grant, to Flack a non-exclusive, royalty-free, perpetual, irrevocable and transferable licence to use, copy, display and distribute such Content throughout the world via the Site (or any media promoting the Site or the Services), and to otherwise use that Content in any manner to provide and/or promote the Services (e.g. to increase the exposure of the Services and Listings to potential Members, Listings and other Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements).
7. Licence from Flack
7.1. We grant you a limited, non-exclusive, non-transferable and revocable licence to use our Site and Services in accordance with these terms and conditions.
7.2. The Site, Services and Flack Content are protected by copyright, trademark, and/or other laws of New Zealand and other countries. You acknowledge and agree that the Site (including text, graphics, logos, icons, sound recordings and software), Services and Flack Content, including all associated Intellectual Property Rights, are the exclusive property of Flack and/or its licensors or authorising third-parties. You must not:
- Adapt, reproduce, copy, store, distribute, publish or create derivative works from any part of the Site or our Services, or commercialise or on-sell any information obtained from the Site or our Services;
- Remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Flack Content; or
- Commercialise any information, Flack Content or the Services obtained from any part of this Site,
without our prior written consent.
7.3. Subject to your compliance with these Terms, Flack grants you a limited, non-exclusive, revocable, non-transferable license to access and use our Site, Services and any Flack Content in accordance with these terms and conditions.
8. Fees and Payment Terms
8.1. Flack reserves the right to charge fees for the Services.
8.2. Flack’s charges for the Services are as set by us from time to time and recorded on the Site or notified to you. Unless otherwise stated, all fees are in New Zealand (NZD) dollars and exclude GST. Flack may vary the fees for the Services from time to time. If we elect to increase fees, then you may elect to cancel your use of the Services. Continued use of the Services by you will constitute acceptance of any fee variations.
8.3. Any fees are charged at the time the Goods are obtained from the Renter, and are not refundable.
8.4. Flack reserves the right to introduce or change the fees charged for any part of the Services at any time. In the event that we introduce a new Service, the fees for that Service are effective at the launch of the Service, unless otherwise stated.
8.5. Except for fees charged through the Service, the Lender must not request or accept, and the Renter must not offer or pay, any cash or other payments (or other form of compensation or payment in kind) in connection with the hiring of Goods. Members must not:
- Use the Services or the Site to promote Goods outside of the Services;
- Complete a transaction, that started on the Site, outside of the booking process within the Services; or
- Otherwise seek to avoid our fees or the booking and payment processes within the Services.
8.6. In case of disputes over any Services usage or fees, our decision (whether based on our Services usage records, or otherwise) and will be final and binding on you.
8.7. Flack charges a booking fee every time a booking is completed. The minimum booking fee is $2.00.
8.8. For bookings of Goods with a daily Listing rate of up to $200, the amount of the fee is 15% of the daily Listing rate and will be charged for each day (or part day) of use.
8.9. For Goods with a daily Listing rate of over $200, a reduced percentage fee is charged, comprising a one-off booking fee of 10% of the daily Listing rate for the first day (or part day) of hire, and an additional 1% for second and subsequent days of hire.
8.10. Booking fees are automatically incorporated into the daily Listing rate for Goods, and will be automatically deducted from the payment to the Lender.
9. Terms applicable to Lenders
9.1. When creating a Listing you must provide complete and accurate information about your Goods (such as listing description, location, and calendar availability), disclose any deficiencies, restrictions (such as instructions and rules) and requirements that apply (such as any minimum age, proficiency or specific licence requirements). You are responsible for keeping your Listing information (including calendar availability) up-to-date at all times.
9.2. Once a Renter requests a booking of your Listing, you must not request that the Renter pays a higher price than in the booking request. You may set your own price for your listings, even though a recommended listing price may be recommended at the time of Listing.
9.3. Any terms and conditions included in your Listing must not conflict with these terms and conditions.
9.4. When you accept a booking request by a Renter, you are entering into a legally binding agreement with the Renter. You also agree to pay the applicable fee, which will be collected pursuant to the payment terms described below.
9.5. Flack recommends that Lenders obtain appropriate insurance for their listed Goods. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions and deductibles that may apply including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Renters.
9.6. Lenders are responsible for their own tax and GST (if any) for all payments received. Lenders must include GST (if any) in the listing price.
9.7. Lenders must promptly provide any further information we request about their Listings, including proof of ownership and possession of any Goods.
10. Terms applicable to Renters
10.1. Subject to meeting any requirements (such as completing any verification processes) set by Flack, Members can book a Listing available on the Site by following the Site booking process.
10.2. All applicable fees (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking made using your Member account.
10.3. Upon receipt of a booking confirmation from Flack, a legally binding agreement is formed between you and the Lender of the Goods, subject to any additional terms and conditions of the Lender that apply, and any rules and restrictions specified in the Listing. Flack will collect the total hire fee at the time the Renter obtains the Goods from the Borrower.
10.4. You understand and acknowledge that a confirmed booking of a Listing is a limited license granted to you by the Lender to use and maintain the Goods for the duration of the agreed booking.
10.5. It is your responsibility to return the Goods to the Lender on or before the expiry of the agreed booking period, or at an alternate time agreed between you and the Lender.
10.6. You agree to return the Goods to the Lender in the same working order and condition as was confirmed prior to the rental period.
10.7. Renters are fully liable for loss or damages caused to the item. Renters must therefore make sure they have the necessary funds available to replace or repair the item in the event that you're unable to return it in the condition it was rented in.
11. Booking modifications
11.1. Renters can cancel a confirmed booking at any time prior to 24 hours before the booking start time.
11.2. If a Lender cancels a confirmed booking, Flack may publish an automated review on the cancelled Listing indicating that the booking was cancelled. In addition, Flack may keep the calendar for the Listing unavailable or blocked for the dates of the cancelled booking, and/or impose a cancellation fee unless the Renter has (in Flack’s sole opinion) a valid reason for cancelling the booking.
11.3. Flack may decide, in its sole discretion, that it is necessary or appropriate to cancel a confirmed booking where Flack believes in good faith that this is necessary to avoid harm to Flack, other Members, third parties or property, or for any of the reasons set out in these terms and conditions.
12. Ratings and Reviews
12.1. Within a certain timeframe after completing a booking, Lenders and Renters can leave a public review and submit a star rating about each other. Any ratings or reviews reflect the opinion of individual Members and do not reflect the opinion of Flack. Ratings and reviews are not verified by Flack.
12.2. Ratings and reviews by Members must be fair, truthful and factual and may not contain any offensive or defamatory language.
13. Suspension and Termination of Site access
13.1. Flack reserves the right to terminate or otherwise suspend the Services, or terminate or suspend your access to or use of the Services at any time. Without limiting the foregoing, Flack may suspend, disconnect or discontinue the Services (or your access to it) in whole or in part at any time without notice if in our reasonable opinion:
- It is necessary to safeguard the provision of the Services or the integrity of our hardware or software;
- The Services or our hardware or software fails or requires modification or maintenance;
- There is or has been unauthorised, unlawful or fraudulent use of the Services or your use of the Services is causing or may potentially cause damage or interference to the Services;
- It is necessary to comply with a direction, order or request of any government authority or other competent authority; or
- You have breached these terms and conditions; or
- We deem your behaviour to be unacceptable.
14. Acceptable Conduct by Members
14.1. By using the Services, you agree:
- Not to upload, post or transmit or otherwise make available any unsolicited email advertising on the Site or through Flack’s computer systems;
- You will not attempt to damage, interfere or harm the Site or the Services, or any network or system underlying or connected to them, including by using a robot, spider, scraper or other automated means to access the Site, Content or Flack Content for any purpose; and
- You are responsible for ensuring that any Content loading or other Site postings by you do not breach these terms and conditions. You agree that Flack may disclose your personal information, including your name, contact details and your IP address to the relevant authorities, parties and applicable Intellectual Property Rights holders (or their representatives) if we consider that you are in breach at any time.
15. Important Information
15.1. You expressly understand and agree that responsibility for the Content or other postings appearing on Flack (including hyperlinks) rests solely with the Person who uploaded the Content/postings. Flack is not responsible for the Content or other postings (regardless of whether we assist with uploading the Content), or for privacy practices associated with linked websites.
15.2. The Site may contain advertisements for third parties and links to third-party websites or resources (together, referred to as “Third-Party Services”). Third-Party Services are subject to different terms and conditions and privacy practices. Flack is not responsible or liable for the availability or accuracy of Third-Party Services, or the content, products, or services available from Third-Party Services. The inclusion of Third Party Services on the Site does not constitute Flack’s endorsement, approval or recommendation of the owners or operators of those Third Party Services or of any information, graphics, materials, products or services referred to or contained on those Third Party Services.
15.3. You expressly understand and agree that your use of the Services is at your sole risk. The Site and the Services are provided on an “as is” and “as available” basis.
15.4. Flack will use its reasonable endeavours to ensure the availability of the Site, subject to any downtime required for maintenance. However, Flack takes no responsibility for any system unavailability, or for any loss that is incurred as a result of Site being unavailable.
15.5. We accept no responsibility for your inability to access or use the Site. We will use our reasonable efforts to keep the Site free from viruses and errors. However, we do not accept liability for any damage or loss caused to your computer hardware, software, internet connections or other peripherals as a result of the use of our Site.
15.6. Flack assumes no responsibility for the corruption of any Content, data or information held by Flack. You agree to maintain backups or copies of any Content, data or information uploaded to enable efficient restoration if required.
15.7. You acknowledge and agree that:
- The communications to/from the Services are not secure and may be subject to interception or loss of data.
- You are responsible for your network security.
- We do not guarantee or warrant that your existing equipment, hardware or software is compatible with the Services or the Site.
- We will not be responsible for ensuring that you comply with any Intellectual Property Rights, privacy or other laws relating to Content or your use of the Services. Such compliance will be your sole responsibility.
- The Services contain certain system-mandated rules and limitations on their operation and your use of the Services is subject to those rules and limitations.
16.1. You agree to release, indemnify and keep Flack, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees indemnified from and against all actions, claims, costs (including legal costs and expenses on a solicitor and client basis) losses, proceedings, damages, liabilities, or demands suffered or incurred to any Person arising out of or in connection with:
- Your failure to comply with these terms and conditions;
- Any Content or other material, data or information you upload, post, transmit or make available through the Services;
- Recovery of any amounts owed by you in relation to or arising from the Services; or
- Your use of the Services.
17.1. We do not make any representations or warranties that the Content or Flack Content is reliable, accurate, or complete. We are not liable for any loss or damage resulting from any action taken or reliance made by you on any Content or Flack Content on or accessed through the Site. You should make your own inquiries and seek independent advice from relevant specialists before acting or relying on any Content or Flack Content which appears on the Site.
17.2. We do not warrant that any Content you upload to the Site will be protected against loss, misuse or alteration by third parties.
17.3. If we choose to conduct identity verification or background checks on any Member, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or provide any assurance or indication that a Member will not engage in misconduct in the future.
17.4. We do not act as agent for Persons using the Services and do not participate in subsequent communications between Members. Flack gives no undertakings, representations or warranties in relation to Listings on the Site.
17.5. You agree that some Services and use of listed Goods may carry inherent risk, and by participating in those Services and use of listed Goods, you choose to assume those risks voluntarily. For example, use of some Goods may carry risk of illness, bodily injury, disability, or death, and you freely and wilfully assume those risks by choosing to participate in those Services. You assume full responsibility for the choices you make before, during and after your participation in the Services.
18. Exclusion and Limitation of Liability
18.1. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded. Where legislation (e.g. the Consumer Guarantees Act 1993) implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included.
18.2. To the maximum extent permitted by law, you assume full responsibility for any loss or damage arising from or relating to from your use of the Site and Services. We won’t be liable to you or any other Person in connection with the Services, this Site, your use of the Services or Site, or another Member’s acts or omissions, whether for negligence, breach of contract, breach of statutory duty or otherwise. We won’t be liable for any loss or damage, whether direct or indirect, or any other claim whatsoever.
19. Privacy and Data
19.1. We undertake to comply with the terms of our Privacy and Data Policy. You can review the current version at http://www.flack.co.nz/privacy-policy.
19.2. You acknowledge and accept our Privacy and Data Policy.
20. Limitation on Services
20.1. You acknowledge that Flack may establish limits or other rules concerning use of the Services, including the maximum number of days that Content will be retained by the Services, the frequency and/or maximum number and size of postings, articles, technical advice or other Content that may be transmitted or stored by the Services, and the frequency with which you may access the Services. We may vary these limits or rules at any time without notice to you.
21. Variation of the Services
21.1. We may vary the functionality and operation of the Services at any time without notice to you. We may introduce new Services, and suspend or discontinue existing Services, from time to time.
22. Governing Law
22.1. The laws of New Zealand apply to these terms and conditions and your use of the Services. You agree to submit to the exclusive jurisdiction of the New Zealand Courts. Any dispute arising in relation to these terms and conditions will be resolved in accordance with New Zealand law.
23.1. These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitute the entire agreement, between you and Flack and govern your use of the Services and the Site.
23.2. If any of these terms and conditions are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
23.3. Any notices or other communications to Members may be sent by Flack via email or messaging service (including SMS), or to any other address (physical or electronic) or device disclosed or used by the Member.
23.4. The Parties acknowledge that they are not partners, joint-venturers, fiduciaries or agents of the other.
23.5. No failure or delay by Flack to exercise any power, remedy or right in relation to these terms and conditions shall:
- prejudice, limit or affect or operate as a waiver of that power, remedy or right; or
- be deemed to waive any default or breach of any obligation, liability or agreement by any Member.
23.6. Headings are included for convenience only and shall not affect the interpretation of these terms and conditions.
23.7. In these terms and conditions:
means all information, data, text, video, messages, images, photos, sounds or other postings or material:
- uploaded to the Site by Members; and
- uploaded by (or on behalf of) third parties, including advertisers.
means any information or content that Flack itself uploads and makes available on or through the Services, including proprietary Flack content and any content licensed or authorised for use by or through Flack from a third party;
means a product, chattel or other property which is made available by a Lender for hire on the Site;
Intellectual Property Rights
means all rights conferred under statute, common law and equity in and in relation to inventions, designs, trademarks, trade names, logos, technical product literature layouts, confidential information and copyright and any other right granted by operation of law which confers protection on any written, artistic or other work created by intellectual effort and all associated intangible assets created as a by-product (including market position, brands, tradenames) in relation to any work;
means any Person that posts or uploads a Listing;
means a posting or upload of a Good for hire on the Site;
means and includes any natural person, company, corporation, firm, partnership, joint venture, society, organisation or other group or association of persons (whether incorporated or not), trust, state or agency of state, statutory or regulatory body, local authority, government or governmental or semi-governmental body or agency (in each case whether or not having separate legal personality);
means any Person that books a Listing on the Site;
has the meaning described in clause 1.1;
means our website www.flack.co.nz and all related systems, files, materials, features, components and programs;
has the meaning described in clause 3.5;
Third Party Services
has the meaning described in clause 16.2
means any Person who has registered an account to use the
we, us, our, Flack
means Lendoo Limited trading as Flack and its agents, successors and permitted assigns;
you, your or yours
means the Member or other Person using the Services and their agents, successors and permitted assigns;