EARLY BIRDS TERMS AND CONDITIONS
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS ("TERMS") ON WHICH EARLY BIRDS MARKETPLACE PTY LTD (COMPANY), A DULY REGISTERED COMPANY (ACN: 634599081), OFFERS YOU ACCESS TO ITS SERVICES. PLEASE READ THESE TERMS CAREFULLY.
As a condition of your participation in the Company’s Services, you (hereinafter, You), including in the capacity as a Registered User, Seller or Buyer, agree to abide by the Terms.
By accessing the Company’s Service in any manner, You agree to be bound by the following Terms. You may review these Terms by clicking on the ‘Terms and Use’ link at the bottom of any page of the Company’s Site or accessible here: https://earlybirds.io/en/infos/terms.
1. The Company is an online marketplace for connecting start-ups with early adopters based on industry, business function and expected outcomes.
2. The Terms apply to regulate where You use of any of the Company’s Services.
3. In these Terms:
(a) API means an application programming interface.
(b) App means the Company’s mobile application called [insert name of app].
(c) Buyer means a User who buys a service or product in its participation in the Company’s Site or Service.
(d) Commission has the meaning given to it in the Company’s Fee Structure.
(e) Copyright Policy means the Company’s copyright policy.
(f) Designated Payment Method means Your designated method of payment of Fees as nominated on Registration and as can be changed by accessing Your Account.
(g) Fee or Fees means all fees incurred by You in the course of using the Company’s Service which may include Subscription Fees and any Commission which may arise from time to time. It also includes any additional fees on any and all applicable sales, income, excise, import, export and other taxes or duties associated with using the Company’s Service.
(h) Fee Structure means the Company’s fee structure which is available at EarlyBirds Marketplace FAQs, accessible at https://earlybirds.io/en/infos/how_to_use and as amended from time to time.
(i) Listing Requirements means the Company’s listing requirements which are displayed to You when You attempt to list a product or service and as amended from time to time.
(j) Paid Service means any Service which requires payment to the Company.
(k) Partner means a business partner of the Company and as identified by the Company from time to time. A Partner could, but does not necessarily, connote a formal partnership in law or any other formal relationship.
(m) Registered User means where a User has undertaken Registration and use the Company’s Services in that capacity.
(n) Registration means to register as a Registered User of the Service.
(o) Related Bodies Corporate has the meaning given to it in the Corporations Act 2001 (Cth).
(p) Seller means a User who sells a service or product in its participation in the Company’s Site or Service.
(q) Service means the services offered or provided by the Company from time to time, including Company’s Site, App, accessed through any device or service including through a mobile phone, tablet smartphone and tablet, any voice assistant products, widgets, APIs and related systems, and any additional services which may be offered by the Company and its Related Bodies Corporate from time to time.
(r) Site means the https://www.earlybirds.io desktop website, mobile website, any subdomains of that website and includes any equivalent domain that is accessed through the App.
(s) Subscription Fee means any Fees incurred for a subscription to the Service as set out in the Fee Structure.
(t) User means any user of the Company’s Service, including You.
(u) User ID means the identification method for the purpose of Registration and accessing Your Account.
Application of the Terms
5. (Interpretation) Unless the contrary intention appears:
(a) Headings, including those in brackets at the beginning of paragraphs, are for convenience only and do not form part of these Terms or affect its interpretation;
(b) The singular includes the plural and vice versa, and word;
6. (Means of access) Regardless of Your means of accessing the Service, these Terms apply. By using the Service, You accept and agree to comply with these Terms.
7. (Modifications of Terms) The Company reserves the right to make changes to the Terms or policies incorporated herein at any time and at its complete discretion. The Company will notify You of any material changes to its Service, the Terms or the policies incorporated as soon as practicable by a reasonable method including by email or posting a conspicuous notice on an appropriate part of its Site. You are deemed to have accepted any such changes and agree to comply with them if You continue to use the Company’s Service after the Company makes any such change.
Use of Services
8. (Access Eligibility) The Company’s Service is available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Company’s Service is not available to:
(a) legally incapable individuals who are unable to form legally binding agreements including minors (as defined by applicable laws);
(b) to temporarily or permanently suspended Users; or
(c) or where Your Account has previously been terminated by the Company.
If You do not qualify, please do not use the Company’s Services. By using a Service, You affirm that You are legally capable and agree to be personally bound by these Terms. Additionally, the Company reserves the right to refuse Your access or use of the Company’s Service, at anytime, in its sole and absolute discretion.
9. (Registration / Your Account) To Register as a User, You will be required to provide information such as Your name, address, phone number, email address and any other information as required from the Company from time to time. Registration will create an account ("Account") consisting of a User ID and password to identify Yourself on future use of the Company’s Services. It is Your responsibility to maintain the confidentiality of Your User ID and password and You agree to accept all responsibility for any activities that occur under Your Account. You may not transfer, assign or sell Your Account (including rating and feedback) to any third party without the prior written consent of the Company.
You must not Register more than 1 (one) time. You must not impersonate or Register for anyone other than Yourself.
10. (Fees and Charges) You agree that You are responsible and liable to pay all Fees, including where relevant, Subscription Fees and any Commission owed to the Company for use of its Service.
11. (Fee Avoidance) The direct or indirect avoidance of any Fee that would otherwise have been incurred by using the Company’s Service (“Fee Avoidance”) is a violation of these Terms. You must not engage in Fee Avoidance in any form whatsoever. Where you engage in any Fee Avoidance as reasonably determined by the Company, You are in violation of these Terms the Company may exercise its right to charge You an amount as set out in clause 28 and a violation of with respect to clause 28. Without restricting this clause 11, Fee Avoidance includes:
(a) making or accepting offers, bidding or negotiating, to buy or sell products or services outside the Company’s Service where knowledge or awareness of such product or service arose from using the Company’s Service;
(b) linking or promoting other services, sites, items, catalogues that can be used to make or accept offers, bid or negotiate, to buy or sell products or services outside the Company’s Service where knowledge or awareness of such product or service arose from using the Company’s Service;
(c) requiring a person You are transacting with when using the Service to make an additional purchase of a good and/or service outside of the listing You made;
(d) cancel bids or negotiations or ending a listing early because the desired price has not been met;
(e) reduce the listing price but charge excessive charges including for postage and additional fees not already included in the price for sale; and
(f) falsely reporting unpaid items; falsely reporting the transaction amount, among other things.
The intention of the User when engaging in Fee Avoidance is irrelevant to the consideration of whether these Terms have been violated or not with respect to clause 28. The Company reserves the exclusive right to determine whether or not a User has engaged in Fee Avoidance.
12. (Credit Card Billing) Without limiting clause 28, the Company will not charge Your Designated Payment Method for any Fees unless You conduct an activity under the Company’s Service which incurs a Fee. Before incurring such Fees, You will have a reasonable opportunity to review and accept the Fees that You will be charged for use of the Company’s Services. By agreeing to a transaction with a Fee, You authorise Us to charge Your Designated Payment Method for such Fees.
13. (Processing Fees) Certain purchases made through the Company’s Service may be subject to a non-refundable per item processing fee.
14. (Amendments to Fees) Without prejudice any other provision of these Terms, the Company reserves the right to add, change or discontinue, in its sole discretion, temporarily or permanently, some or all of the Company’s Fees as reflected in the Fee Structure at any time with or without notice to You. A change to the Fee Structure is effective after the Company publishes the changes on the Company’s Service. In its complete discretion, the Company may also choose to change the Fees for its Services on a one-off basis. A change to Fees on a one-off basis as contemplated in this clause is effective when the Company posts information about this change through the Company’s Services. In the event the Company introduces a new service, the Fees for that service are effective at the launch of the service.
15. (Company is only a Venue) The Company’s Service involves acting as an open marketplace for You to buy, sell, bid and negotiate the purchase and sale of products and/or services with other Users and as such is a third party to any transaction between Users when using the Company’s Service. You warrant that You are aware of the relevant risks of using the Company’s Service with other Users including those who may be acting under false pretences. You agree that all of these risks of using the Service are borne by You, and not the Company. The Company does not control the behaviour of Users of its Service or the information provided by other Users that is made available through the Company’s Service beyond what is set out under these Terms. The Company does not guarantee or endorse the authenticity, quality, safety, or legality of any products or services offered or sold, the truth or accuracy of any listings, or the ability of sellers to sell items or of buyers to buy items, through its Service. The Company cannot assure that any or all transactions will be completed. Additionally, the Company does not guarantee the ability or intent of Users to fulfil their obligations in any transaction.
FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH THE COMPANY’S SERVICE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS, PRODUCT DESCRIPTIONS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY’S ABILITY TO PAY FOR OR DELIVER THE GOOD/SERVICE OFFERED INCLUDING WHERE APPROPRIATE SEEKING THE RELEVANT PROFESSIONAL ADVICE. YOU WARRANT TO US THAT YOU WILL EXERCISE CAUTION, COMMON SENSE, PRACTICE SAFE TRADING AND PRUDENT BUSINESS PRACTICES WHEN DEALING WITH OTHER USERS OR OTHERWISE WHEN USING THE SERVICE.
16. (Safe Trading) Because of the difficulty of authenticating a User’s identity, the Company cannot and does not represent that the User’s purported identity is in fact the User’s identity. Thus, the Company has established a feedback system to help You evaluate the user with whom You are dealing. The Company also encourage You to communicate directly with potential buyers or sellers through the features available on the Company’s Service.
Where You are of the view or have a reasonable suspicion that the User is not who they are purported to be when using the Service and/or where there is a breach of these Terms, please contact us at firstname.lastname@example.org. The Company will consider whether there are grounds for taking any action in response to the alleged misuse of the Company’s Service. The Company may contact You as to the Company’s decision.
17. (Selling) You represent and warrant that You have full authority (legal and equitable) to sell the goods or services that You are offering for sale under the Company’s Service. You must describe Your good or service and all terms of sale in Your listing in accordance with the Company’s Listing Requirements. Subject to the discretion of the Company, if You accept an offer in response to Your listing, You as the tentative Seller is obligated to complete the transaction with the tentative Buyer unless (i) the transaction is prohibited by law or these Terms, or (ii) the tentative buyer materially modifies the terms and conditions of the their offer, (iii) a typographical error exists in the offer information which materially affects the terms of sale, or (iv) the transaction is in the Company’s view a transaction against the interest of the Company. You as the Seller are also responsible for payment of the Commission. An offer to sell may be retracted at any time prior to its acceptance.
18. (Buying) If You make an offer and the offer is accepted (or You use the Company’s Buy It feature as part of the Company’s Service), You as the tentative Buyer is obligated to complete the transaction with the tentative Seller and to be bound by the conditions specified by the seller, unless (i) the transaction is prohibited by law or these Terms, (ii) the seller materially changes the item’s description or the item does not conform to the seller’s description, (iii) a typographical error exists in the offer information which materially affects the terms of sale, or (iv) the transaction is in the Company’s view a transaction against the interest of the Company. An offer to buy may be retracted for any reason at any time prior to acceptance by the seller.
19. (Delivery and returns) Delivery and returns of products are guaranteed only by using registered and insured carriers. Buyers shall enquire with the insured carrier if delivery has failed or product is damaged in transit. All items shall be returned using registered and insured carriers only. Any seller or buyer agrees that any parcel, package for consignment can be opened by any official customs authority to check content. The Company disclaims any loss, cost or any liabilities associated with any customs authority carrying out their legal duties. Parties should at all times comply with all Health and Safety regulations and laws.
20. (Cooling off periods) Sellers agree to conform to any law governing cooling off periods in any country or state that the Buyer is located. Any returns complying with cooling off period laws shall be refunded in-full by the Seller. The Buyer agrees to pay full cost of the delivery of products received, and pay full cost of returned products using carrier. All returns will be recorded and insured. If You as the party returning the product fail to register and insure the return delivery You will bear the full cost of the delivery and product for failed or non-delivery and cover full cost for product in the event of any loss or damages. The Company disclaims any loss or damages that may be incurred by either the Seller or the Buyer pursuant to this clause 20.
Representations and warranties
21. (Product Warranties) You agree product warranties including those supplied by the manufacturer and Sellers, details of warranties and clauses, are to be supplied and adhered to at all time. Any use of print media, upgrade or repair service not approved by the manufacture or supplier for that product will void any product warranty subject to exceptions expressly contained in those warranties, where relevant.
22. (General Warranties) You represent and warrant to Us that:
(a) You will comply with these Terms when using the Company’s Services without exception;
(b) You will comply with any reasonable directions the Company makes to You from time to time in relation to Your use of the Company’s Services;
(c) You will use, at all times, Your best endeavours to keep Your User ID and password by which You access Your Account secure and confidential;
(d) You accept any and all liability for any unauthorised use of Your User ID and password by which You access Your Account except where such liability arises from any negligence or omission of the Company; and
(e) You will not or attempt to undertake any conduct that amounts to Fee Avoidance.
23. (User Information) "User Information" is defined as any and all information or data You provide to the Company or other users during the Registration, offer, sale or user ranking process, and through any interactive feature of the system, including email. You represent and warrant that Your User Information (i) is not false, inaccurate, incomplete or misleading; (ii) is not fraudulent and does not involve the sale of counterfeit or stolen items; (iii) does not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iv) does not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (v) is not defamatory, libellous, unlawfully threatening or unlawfully harassing; (vi) is not obscene and does not contain child pornography; (vii) does not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) does not create liability for the Company nor cause the Company to lose (in whole or in part) the services of the Company’s ISPs or other suppliers; and (ix) does not link directly or indirectly to another web site unless authorised by the Company. Furthermore, You may not list any item on the Company’s Services (or consummate any transaction that was initiated using the Company’s Service) that, by paying to the Company the listing fee or the final value fee, could cause the Company to violate any applicable law, statute, ordinance or regulation, or that violates the Company’s current listing restrictions. You agree not to make use of any other user’s User Information other than as necessary to complete any transactions in which You and the subject of the User Information are involved.
25. (Use Restrictions) The Company’s Services may be used only for lawful purposes and where it is to the benefit of the Company. Transmission, posting, distribution or storage of material or conduct in violation of any applicable local or foreign law or regulation is strictly prohibited. This includes without limitation any unauthorised use of material protected by patent, copyright, trademark or other intellectual property right, material that is obscene, defamatory or libellous, constitutes an illegal threat, violates rights of privacy or publicity or violates export control laws. You agree to comply with any applicable laws, statutes, ordinances and regulations regarding Your use of the Company’s Services and the contractual obligations related to Your buying and selling activities. You agree not to use the Company’s Service in any manner that violates, or proposes a transaction which, if consummated, would violate any applicable laws, statutes, ordinances and regulations, expose the Company to civil or criminal liability, or violates these Terms. You agree that You are solely responsible for obtaining all necessary licenses and permissions necessary for Your transactions and for verifying that other Users with whom You transact do the same. You agree that You will not use any information provided by the Company’s Services or any information You learn about any buyer, seller or other user for any purpose whatsoever beyond those necessary to complete transactions through the Company’s Services. Any action designed to undermine the system and to alter Your user profile or the profiles of others is strictly prohibited. You further agree that you will not use any robot, spider or other automated device, process or means to access the Company’s Services, and that you will not otherwise engage in any copying of the Company’s Services for any commercial purpose. The Company reserves the right to change the path or location of a link or sub-domain, or redirect content contained within a link or subdomain as part of its Service from time to time and without prior notice to You. The Company also reserves the right to amend, suspend or terminate and engage in any or all activities it deems appropriate, including those contemplated in clause 28 where it finds, at its sole discretion, that this clause 25 has or will likely be contravened.
27. (Compliance with Intellectual Property and Rights of Publicity Laws) You represent and warrant that where You link any third party’s web site or any file or data on a third party web site in the course of using the Company’s Service that this is done so with third party’s permission and the Company’s prior written permission.
You agree that You will not use any automatic or manual process to monitor or copy any portion of the Company’s Service without the Company’s prior written permission.
You agree not to use the Company’s Service in any manner which violates, or proposes a transaction which, if consummated, would violate the trademark, copyright, patent, trade secret, trade dress, publicity or privacy rights or other proprietary rights of the Company or any third party. When accessing using the Company’s Service, You agree to comply with all relevant laws and thereby respecting the intellectual property rights of others. Your use of the Company’s Service is at all times governed by and subject to applicable Australian, and relevant foreign laws regarding copyright ownership and use of intellectual property.
You agree not to upload, download, display, perform, transmit or otherwise distribute any information, content, goods or merchandise in violation of any third party’s copyrights, trademarks or other intellectual property or proprietary rights. You agree to abide by such laws regarding copyright ownership and use of intellectual property, and You shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any information, content, goods or merchandise You provide, transmit, distribute or sell, or that is provided, transmitted, distributed or sold using Your User ID.
The sale of unauthorised, counterfeit or replica products is prohibited, and the use of a third party’s trademark in connection with non-genuine goods is prohibited. Where You are alleged to have violated any law or any party’s right, the burden of proving that any User Content does not violate any laws or their party rights rests solely with You. If You are identified as selling any goods in contravention of any law or any party’s rights, You agree that the Company reserves the right to disclose Your identity and contact information (including any aliases or alternate IDs or email addresses that You may have previously used) and credit card information, upon request of the intellectual property rights owner, and to assist in any prosecution. This disclosure may be made without notice to You in accordance with the Company’s policies including the Company’s Copyright Policy.
You agree to indemnify the Company and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, Partners and affiliates harmless against any and all claims made by or liability to any third party arising from Your violation of any trademark, copyright, patent, trade secret, trade dress, publicity or privacy rights or other proprietary rights, including where relevant any legal fees incurred by the Company.
28. (Violation) The Company may investigate reports of abuse or misuse of its Service at its discretion or where it has been notified of a possible infringement. You agree that the Company may access Your account and records on a case-by-case basis where reasonable to investigate complaints or allegations of abuse, infringement of third-party rights, or other unauthorised use of the Company’s Service.
The Company reserves the right to amend, suspend or terminate Your account or Your access to the Company’s Service immediately, with or without notice to You, if the Company believes You have violated any of the Terms, furnished the Company with false or misleading information, or interfered with use of the Company’s Service by other Users. All determinations are final and are made at the Company’s sole discretion.
The Company reserves the right to disclose the existence or occurrence of such an investigation. The Company will take each reported account into consideration during the investigation process before making a decision. In agreeing to these Terms, You agree to participate in any relevant investigations and be bound by the Company’s determinations.
If the Company believes that Your actions may cause legal liability for You, the Company’s Users or the Company, the Company may take any and all actions including pursuing any legal remedies that it believes are necessary or prudent or are in its interest, including, but not limited to, issuing a warning, filing a complaint, deleting any listings, advertisements or offending material from the Company’s Service, suspending or cancelling Your Account, releasing Your User Information, filing a report with the appropriate authorities and/or excluding any person(s) who may have violated any of the Terms.
In the event of variation of Your Account due to the violation of these Terms under this clause 28, You shall remain liable for Your outstanding account balance (including, but not limited to, Fees including final value fees) arising from Your previous use of the Company’s Service, and all outstanding Fees shall become immediately due and payable to the Company.
Where formal investigations by any court or tribunal exist with regard to any violation of the Terms, the Company intends to cooperate with any such investigation. Such cooperation may be made with or without notice to You.
Where You violate these Terms for Fee Avoidance under clause 11, the Company reserves the right to charge You any amount that You would have incurred had you not engaged in Fee Avoidance and any other reasonable fees incurred by the Company for the purpose of investigating and/or administering the Company’s rights under these Terms.
29. (Use of Software) The Company may make certain software available to You through the Company’s Service. If You download software from as part of the Company’s Service, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, "Software") are deemed licensed to You by the Company, for Your personal, non-commercial, home use only. Such download and Your use does not transfer either the title or the intellectual property rights of the Software to You, and the Company retains full and complete title to the Software as well as all intellectual property rights therein. You shall not sell, redistribute, or reproduce the Software, nor shall You decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by the Company or its licensors and You shall not copy or use them in any manner. The Company disclaims all liability to You where You incur any loss or damage in the course of relying or using any Software, including for the purpose of using any Software to access the Company’s Service.
30. (Waiver of Claims) By using the Software or the Company’s Service, You signify Your agreement to and do thereby waive all claims which have not been filed but may have accrued against the Company or its officers, directors, employees, agents, parents, subsidiaries, Partners and affiliates prior to or as of the date of said posting, regardless of the gravamen of the action, whether in law or equity, and such claims are forever barred.
31. (DISCLAIMER OF WARRANTIES) YOU AGREE THAT USE OF THE COMPANY’S SERVICE IS AT YOUR SOLE RISK. THE COMPANY’S SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTY OR CONDITION OF ANY KIND TO THE EXTENT PERMITTED BY LAW. THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND NONINTERFERENCE WITH YOUR ENJOYMENT OF THE COMPANY’S SERVICES. THE COMPANY MAKES NO WARRANTY THAT THE COMPANY’S SERVICE WILL SATISFY YOUR REQUIREMENTS, OR THAT USE OF THE COMPANY’S SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR VIRUS FREE. NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COMPANY’S SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE COMPANY’S SERVICE. YOU UNDERSTAND AND AGREE THAT OBTAINING ANY INFORMATION OR MATERIAL AND/OR GOODS OR SERVICES THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY TRANSACTION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH OR FROM THE COMPANY’S SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
32. (LIMITATION OF LIABILITY) IN NO EVENT SHALL THE COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (HOWSOEVER ARISING, INCLUDING BUT NOT LIMITED TO DAMAGES FOR NEGLIGENCE OR FOR CAUSE), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, RESULTING FROM OR IN CONNECTION WITH (I) THE COMPANY’S SERVICES OR THESE TERMS, (II) THE RECEIPT OF DATA, INFORMATION OR MESSAGES, (III) TRANSACTIONS ENTERED INTO THROUGH OR FROM THE COMPANY’S SERVICES, OR (IV) UNAUTHORISED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS, OR CAUSE OF ACTION EXCEED THE AMOUNT PAID TO THE COMPANY.
33. (Affiliated Sites) The Company has no control over, and thus disclaims all liability for any loss associated from use or reliance on third party websites or materials. The Company may work with a number of affiliates whose Internet sites may be linked with the Company’s Service. The Company makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and the Company assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Likewise, from time to time in connection with Your use of the Company’s Service, You may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that the Company makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content. You agree not to rely on such third party websites and materials without seeking all relevant and appropriate advice and warrant to the Company that all such reliance has been done so with a full and complete understanding of all risks associated with relying on third party websites and materials.
34. (Prohibited Uses) The Company imposes certain restrictions on Your permissible use of the Company’s Service. You are prohibited from violating or attempting to violate any security features of the Company’s Service, including, without limitation, (i) accessing content or data not intended for You, or logging onto a server or account that You are not authorised to access; (ii) attempting to probe, scan, or test the vulnerability of the Company’s Service, particularly the Company’s Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (iii) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Company’s Service, overloading, “flooding”, “spamming”, “mail bombing”, or “crashing”; (iv) using the Company’s Service to send unsolicited e-mail/s, including, without limitation, promotions, or advertisements for products or services; (v) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (vi) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company in providing the Company’s Service. The Company reserves the right to take any and all actions in a situation contemplated in this clause 34 including a reference to the relevant official authorities. You acknowledge that any violation of system or network security may subject You to civil and/or criminal liability.
35. (Your Indemnity) You agree to defend, indemnify and hold the Company and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, Partners and affiliates harmless against any and all loss, damage, cost, expense the Company, its officers, directors, employees, agents, parents, subsidiaries, Partners and affiliates may suffer in relation to any claims made by or liability to any other User or third party resulting from any activities conducted under Your Account, Your use or misuse of the Company’s Service, including, but not limited to, posting content on the Site, entering into transactions with other Users, contacting others as a result of their posting(s) on the Site, infringing a third party’s intellectual property or other rights, failing to deliver goods or payment to other Users or otherwise arising out of Your breach of any of the Terms.
36. (Release) Because the Company is not involved in the actual transaction between a Buyer and a Seller, in the event that You have a dispute with one or more Users involved in the transaction, You release the Company and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, Partners and affiliates from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Without prejudice to this clause 36, the Company reserves the right to step into and resolve the dispute on behalf of all parties at its discretion.
37. (Dispute Resolution) The Company encourage Sellers and Buyers to try and resolve any disagreements between themselves. However, if the Company exercises its discretion in accordance with clause 36 to step in and make a resolution decision on behalf of both parties, the Company will do so within seventeen (17) working days. All reasonable costs incurred by the Company in exercising its discretion to resolve the dispute on behalf of both parties, including any professional advice, will be split evenly between the two parties. A decision by the Company pursuant to clause 36 is final. If a mutual resolution has already been agreed between both parties before the Company’s resolution decision and in any case within seventeen (17) days, then the dispute will either be cancelled or resolved in line with the mutual agreement. In the process of resolving the dispute, the Company will consider all relevant facts and circumstances as exclusively ascertained from the communication in the platform including:
· if both parties were acting in good faith and have tried to resolve the issue between themselves before contacting the Company, including at least a second attempt made between both parties to complete or rectify the circumstance; and
· Where a product is concerned, if the product was sent by Seller and item received by Buyer.
38. (Arbitration) The Company is not liable under this Agreement for any injury You may suffer or allege to suffer as a User of the Company’s Service. In the event, however, that You wish to assert any claim against the Company for any purpose whatsoever, You expressly agree that such dispute will be settled by binding arbitration. To the extent permitted by law, You agree that notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Company’s Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. Legal action taken by the Company to collect fees and/or recover damages for, or obtain an injunction relating to, the Site operations, intellectual property, and the Company’s Services shall not be subject to the foregoing restrictions.
Statutory Consumer Guarantees
39. Where a court in law determines that a warranty against defect is provided by the Company, the Company makes the relevant disclosure with respect to reg 90(1)(c) of the Competition and Consumer Regulations 2010 (Cth).
40. With respect to reg 90(1)(c) and where a warranty against defects in relation to the supply of services is made by the Company, its services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, You are entitled:
· to cancel Your service contract with the Company; and
· to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure You are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel Your contract and obtain a refund for the unused portion of the contract.
41. (No License) Nothing as part of the Company’s Service should be understood as granting You a license to use any of the trademarks, service marks, or logos owned by the Company, without the Company’s express written consent.
42. (Unenforceable) Any provision of these Terms which are invalid or unenforceable in a particular jurisdiction may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision of these Terms in one jurisdiction does not affect the enforceability of any other provision.
43. (Waiver) No waiver of any term of the Terms, if any, is to be deemed a further or continuing waiver of such or any term of the Terms. Any failure to assert any right under the Terms by the Company shall not constitute a waiver of such right, including a breach, subsequent or similar breaches.
44. (Governing law) Without limiting clause 38, the Terms are governed by the laws in force in the Australian Capital Territory and You irrevocably submit to the exclusive jurisdiction of the Courts sitting in the Australian Capital Territory.
45. (Relationship) No Partnership, joint venture, employment, or agency relationship exists between You and the Company as a result of these Terms, or Your use of any Service.
46. (Entirety) The Terms represent the entire agreement between You and Us regarding Your use of any Service which You participate in.
LAST UPDATED: 4th July, 2020.