These Terms and Conditions (the Terms) apply to the use of the website with the domain and web address www.thegameexchanger.com owned by The Game Exchanger Limited (the website) including the purchase of any services or subscriptions (the Services) supplied to you by TGX. By using this website to use one or more of the Services or for any other purposes, you agree to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions, you must refrain from using this website.
In these Terms, The Game Exchanger Limited is referred to as ‘TGX’ and any legal person or entity using a website owned by TGX to access or use one or more of the Services is referred to as ‘you’ or the ‘Subscriber’.
Any reference to an item or a game under these Terms refers to a video game traded by the Subscriber with other Subscriber(s) using the website, facilitated by the online platform created by TGX and provided for use by the Subscriber as part of the Services.
The Subscriber’s Obligations
The Subscriber is required to:
Actively trade items on the website using the Services, by making items available for other Subscribers to obtain via their use of the website and the Services;
Comply with all applicable laws, regulations, standards and codes, including in particular (but not limited to) the Privacy Act 2020, the Copyright Act 1994, the Defamation Act 1992 and the Crimes Act 1961;
Use the Services for lawful purposes only. Transmission or storage of any information, data or material in violation of any New Zealand law is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, material protected by trade secret or other statute or substances which are illegal under New Zealand law to consume, sell or distribute. The Subscriber agrees to indemnify and hold harmless TGX from any claims resulting from the use of the Services which damages or causes any loss to the Subscriber or any other parties;
NOTE: the use of the Services to transfer illegal material/substances such as drugs or other substance or material that is prohibited under New Zealand Law. TGX will be the sole arbiter as to what constitutes a violation of this provision.
NOTE: Spamming, or the sending of unsolicited mail or instant messaging from Subscriber while using the Services is STRICTLY prohibited. TGX will be the sole arbiter as to what constitutes a violation of this provision.
Ensure that all information provided to TGX and to any other Subscriber using the Services is current and correct;
Ensure that all people who use the Services provided to the Subscriber including via the Subscriber's account on the website also complies with these Terms;
Pay all amounts to TGX where payment is required under these Terms (including any goods and services tax (GST) payable under New Zealand Law);
Comply at all times with the Rules of TGX referred to later in these Terms;
Submit feedback on all exchanges of items under the Services without delay after the completion of such exchange(s);
Promptly deliver any item exchanged via the Website to the Subscriber electing to receive the item using either delivery by hand, or a reputable carrier company and, where possible, Subscribers must deliver by carrier using track and trace courier technology; and
Maintain the confidentiality of the Subscriber's user name, login, password, and any other account information and/or identifier provided to the Subscriber in relation to the Services. The Subscriber accepts complete responsibility for all use of the account and of all identifier(s), and TGX is entitled to rely entirely upon use of any password or other identifier as evidence of the Subscriber's identity and authority.
The Subscriber agrees to pay for the Services provided to the Subscriber or under the Subscriber's account on the website, regardless of whether it is the Subscriber or another legal person who uses those Services.
Services shall not be deemed to have been purchased nor will TGX be under any obligation to provide the Services until payment required by TGX for the Services is made in full by the Subscriber. Payments must be made on-line with the Subscriber’s credit card. All payments must be in NZ dollars.
No deduction or set-off against any amount payable by the Subscriber to TGX is permitted under any circumstances.
Any Subscriber accounts on the website that remain unpaid by the due date will be in default. In the event of such default, the Subscriber’s account in default may be cancelled by TGX without notice and/or the Services may be suspended by TGX without notice.
TGX reserves the right to charge interest on any amount in default by a Subscriber under a Subscriber’s account on the website, during the period between when the payment(s) fell due and when the payments are made to TGX including any interest accrued under this part of these Terms. Interest may be charged at TGX’s sole discretion provided that the interest does not exceed an amount that is 5% above TGX’s base secured overdraft rate provided by its main trading bank from time to time.
The Subscriber acknowledges that TGX is under no obligation to retain any information held by or on an account on the website which is terminated under these Terms. The Subscriber further acknowledges that TGX will not be held liable for any costs, expenses, damages or any consequential losses or costs caused by information lost by reason of an account on the website being terminated.
The Services, Fees and a Subscriber’s account
The Subscriber acknowledges and agrees that TGX owns no intellectual property rights in the items and the Services involve no transfer of intellectual property rights in the items.
The Subscriber acknowledges that TGX does not own any of the items, and any payments received by TGX for the Services do not include any payment for the transfer of any intellectual property rights in an item to the Subscriber. In addition to other indemnities in these Terms, the Subscriber indemnifies TGX completely for any claims, costs, losses, damages, expenses (including costs & expenses on a solicitor – client basis) incurred by TGX as a result of the Subscriber’s breach of a third party’s intellectual property right(s) in the items.
The Subscriber agrees that TGX has the right to delete all data, files or other information that is stored in the Subscriber's account on the website, if the Subscriber's account with TGX is terminated, for any reason, by either TGX or the Subscriber.
TGX has the right to suspend, change, withhold, limit, restrict, replace or terminate the Services in whole or in part at any time, and for any reason, without notice. No refunds of payments made by the Subscriber to TGX under these Terms will be processed by reason of termination or suspension
TGX reserves the right to charge re-subscription fees to any Subscriber whose account on the website is terminated under these Terms.
By the Services from TGX and creating an account on the website the Subscriber certifies that he or she is at least 18 years of age.
TGX retains the right to alter its fees for the Services at any time. Subscribers will be notified of any changes to the fee structure for the Services where applicable. All fees are quoted in New Zealand dollars and are inclusive of Goods and Services Tax (GST), where GST is applicable.
TGX reserves the right to charge the Subscriber a termination fee at TGX’s sole discretion for termination of a Subscriber’s account on the website, provided that the termination fee charged by TGX (which will be at its sole discretion) is not considered a penalty under New Zealand Law.
TGX makes no warranties of any kind, whether expressed or implied, for the Services. TGX also disclaims any warranty of merchantability or fitness of items traded using the Services. TGX will not be responsible for any damage suffered by the Subscriber in using the Services. This includes any damage or loss incurred by the Subscriber resulting from delays to delivery of items, non-deliveries of items, miss-deliveries or items, poor quality of items or Services interruptions.
Use of any information or item obtained via the website and/or by using the Services is at the Subscriber's own risk. The Subscriber acknowledges that TGX gives no warranty for the accuracy or quality of information or items obtained through the Services and/or the website.
Exclusion of liability
The Subscriber acknowledges that the Services are mainly comprised of the provision of an online platform by TGX enabling the Subscriber to access items from other Subscribers, and therefore as TGX is not the supplier of such items. TGX has no liability under the Consumer Guarantees Act 1993 for the quality, fitness for purpose or functionality of the items traded between Subscribers in the course of any Services supplied to the Subscriber by TGX.
Any defect in the Services or in TGX’s website (including periods of unavailability of the Services and/or the website) shall not entitle the Subscriber to immediate cancellation of the Services or the contract formed under these Terms.
The Subscriber's sole remedy against TGX shall be limited to breach of contract and TGX sole and total liability for any such claim shall be limited to, at the option of TGX, either the re-supply of the Services by way of continued use by the Subscriber of its account on the website or the amount of the current monthly Subscriber's payments to TGX for the month during which the breach allegedly occurred.
Subject only to TGX liability for breach of contract (if any) pursuant to clause 5.3 above, TGX will not be liable to the Subscriber for any claim for breach of contract, breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law for any losses or damages whether general, exemplary, punitive, direct, indirect or consequential (including any claim for loss of profits) however caused which may be suffered or incurred by the Subscriber or any third person or which may arise directly or indirectly out of or in respect of these Terms, the Services or the website (or its maintenance) or by reason of any act or omission on the part of TGX to comply with its obligations under these Terms.
Notwithstanding anything herein whether express or implied, no employee, agent or director of TGX will be liable to the Subscriber for any breach of duty or care in contract, tort, equity or otherwise in relation to the performance of obligations under these Terms or in relation to the subject matter of the contract created by these Terms. This exclusion extends to any linked website, Google, and any other entity TGX is in a business relationship with or works with in order to deliver the Services or maintain the website.
To the maximum extent permitted by law all warranties or representations, whether statutory or otherwise and whether express or implied, oral or written as to the state, merchantability, quality, fitness for purpose or fitness of the Services and TGX’s suitability of its website to provide the Services are hereby excluded. This clause 5.6 shall survive termination of a Subscribers account on the website and/or termination of the contract formed by these Terms.
Any claim or dispute arising out of or in connection with these Terms or the provision of the Services or the website must be instituted within 60 days from the date the relevant harm/loss occurred or Service was supplied or allegedly not supplied.
Compliance with TGX’s Rules
The Subscriber acknowledges that TGX may create and maintain Rules as to Subscriber’s use of the website and the Services (TGX’s Rules). The Subscriber unconditionally accepts that the purpose of TGX’s Rules is to maintain safe, reliable, respectful and efficient Services and website.
The Subscriber agrees to do all things necessary to ensure that it complies at all times with TGX’s Rules.
TGX reserves the right to alter TGX’s Rules at any time without notice.
Relationship of the parties
The Subscriber warrants it has not relied on any representation made by or on behalf of TGX which has not been expressly stated in these Terms, including any advertising material or brochures produced by or on behalf of TGX.
These Terms constitute the complete and exclusive understanding between the parties in relation to the subject matter hereof and supersede all prior contracts, proposals, communications and representations made by either party (whether oral or written).These Terms shall prevail over any inconsistent terms and conditions in any other contract between the parties whether in correspondence or otherwise and any conditions or stipulations to the contrary are hereby excluded and extinguished.
A Subscriber’s account on the website may be terminated by either the Subscriber or TGX giving the other at least 30 days' prior written notice. Any monthly account fees to be paid by the Subscriber shall be payable in full during the 30 notice period provided for under this clause, together with any other payments in owed by the Subscriber to TGX.
Failure by any party to enforce any right or obligation with respect to any matter arising in connection with these Terms shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under these Terms shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation.
TGX shall not be liable to the Subscriber or to any other person for any loss or damage directly or indirectly arising out of or in connection with any failure to perform any obligation under these Terms or the Services where such failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or facilities and accidents, interruptions of, or delay in transportation, or any other cause outside of TGX’s reasonable control (together, the Force Majeure Events).
The Subscriber acknowledges that the occurrence of the Force Majeure Events shall be notifiable only by TGX, and that occurrence of any of the Force Majeure Events does not cause TGX to be liable in any way to the Subscriber, nor does it allow the Subscriber to stop carrying out any of its obligations under these Terms.
Should any provision of these Terms be held to be illegal, invalid, or unenforceable by a court law, the legality, validity and enforceability of the remaining provisions of these Terms shall remain unaffected thereby unless otherwise stated.
These Terms shall be governed by New Zealand law. The Subscriber agrees to submit to the exclusive jurisdiction of the New Zealand courts.
Amendments to Terms and Conditions
TGX reserves the right to amend these Terms from time to time. Amendments will be effective immediately upon placement of the updated Terms on the website. The Subscriber's continued use of the website or the Services following such placement of updated Terms will represent an agreement by the Subscriber to be bound by the Terms as amended.
Linked Web Sites
The Subscriber acknowledges that TGX may use third party suppliers to assist in delivery of the Services ("linked web sites").
TGX is not responsible for the acts or omissions or any third party owning or operating any of the linked web sites.
Advertisement by TGX of any linked web sites should not be construed as an endorsement, approval or recommendation by TGX of the owners or operators of those linked web sites, or of any information, graphics, materials, products or services referred to or contained on those linked web sites, unless and to the extent stipulated to the contrary.
The Subscriber is aware of his/her/its rights under the Privacy Act 2020 to have access to personal information held by TGX and to request correction to the information and to be informed of action taken in response to any such request and/or to request that there be attached to the information a statement which the Subscriber can supply to TGX relating to the fact that the Subscriber has requested a correction. The Subscriber agrees to pay TGX the reasonable charges requested by TGX in relation to time and attendances involved in complying with the Subscriber's request in this regard.
Security of Information
No data transmission over the internet can be guaranteed to be totally secure. While TGX will use reasonable efforts to protect such information (including any information of the Subscriber), TGX does not warrant and cannot ensure the security of any information which the Subscriber transmits to the website, to any Subscriber or to TGX. Accordingly, any information which the Subscriber transmits in any of these ways is transmitted at the Subscriber's own risk.