Terms
TERMS OF USE FOR CUSTOMER
These terms and conditions govern Your use of the Website and the Service (“Terms and Conditions”), however accessed. By using the Website and the Service, You agree to be bound by these Terms and Conditions without limitation. If You do not accept these Terms and Conditions, You must cease using the Website and the Service immediately.
Items are offered for sale on the Website on behalf of the Seller. If You place a Completed Bid on the Website a Contract of Sale will be formed between the Seller and You. Fashion Bid shall have no obligations or liability to You, or the Seller, under or in respect of the Contract of Sale.
Fashion Bid reserves the right to update and amend these Terms and Conditions from time to time. Fashion Bid will communicate all changes on the Website. Unless otherwise stated, amendments will be effective thirty (30) days after posting of the amended Terms and Conditions on the Website.
1. TERMINOLOGY
In these Terms and Conditions, unless a contrary intention appears:
“Agreement” means these Terms and Conditions and all materials referred to or linked to in these Terms and Conditions including, but not limited to, Fashion Bid’s privacy policy available on the Website;
“Bid” has the meaning given in clause 5.4;
“Bid Price” means the amount of a Successful Bid;
“Business Day” means a day that is not a Saturday, Sunday or public holiday in Western Australia;
“Completed Bid” has the meaning given in clause 5.2;
“Contract of Sale” means a contract for the sale of an Item between You and the Seller;
“Fashion Bid” means Fashion Bid Pty Ltd (ACN 612 980 953);
“GST” means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999;
“Intellectual Property Rights” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered;
“Item” or “Items” means any good, or goods, listed by the Seller for sale on the Website;
“Listing” means a listing on the Website through which the Seller offers to sell an Item to You;
“Party” or “Parties” means Fashion Bid and / or You as the context requires;
“Personal Information” means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by Fashion Bid for the purposes of the Agreement;
“Seller” means the seller providing the Listing;
“Service” means one or more of the services offered by Fashion Bid including the Website and any related service or tool;
“Successful Bid” has the meaning given in clause 5.2;
“You” and “Your” are a reference to you, the customer; and
“Website” means the internet site owned by Fashion Bid and operating under the URL www.fashionbid.com.au.
2. CAPACITY
You represent and warrant that You are at least 18 years of age and that You have the legal capacity to access the Website, use the Service and to enter into a Contract of Sale under applicable law.
3. AT YOUR OWN RISK
3.1. Transactions between You and the Seller are conducted entirely at Your own risk. You agree that Fashion Bid takes no responsibility or liability for any misconduct of any Seller including, without limitation, any Seller who attempts to defraud or mislead You. Fashion Bid gives no undertakings, representation, or warranties in relation to the Items including:
a) about ownership of an Item;
b) as to the availability of any Item for sale by the Seller;
c) as to content, safety, description, worthiness, quality, or legality of Items;
d) as to the accuracy or truth of a Listing;
e) that any Item will meet Your requirements; and
f) about the ability of a Seller to complete a transaction following a Completed Bid.
4. ACCOUNT
4.1. To access and use the Service, You must register for a Fashion Bid account (“Account”) by providing Your full legal name, current address, phone number, a valid email address (“Email Address”) and any other information requested by Fashion Bid from time to time.
4.2. Fashion Bid may reject Your application for an Account, for any reason, in Fashion Bid’s sole discretion.
4.3. You acknowledge that Fashion Bid, and the Seller, will use the Email Address as the primary method of communication.
4.4. You must ensure that each username and password issued to You in connection with the Account is kept secure and confidential. You must immediately notify Fashion Bid of any unauthorised use of Your password or any other breach of security.
5. CONTRACT OF SALE AND PLACING A BID
5.1. Fashion Bid provides a venue to introduce customers who want to buy Items to sellers who want to sell Items. Fashion Bid does not take any part in the sale of Items.
5.2. If you are notified that a Bid is successful (“Successful Bid”), and You pay for the Item the subject of the Bid, (“Completed Bid”) a Contract of Sale will be formed between the Seller and You directly and Fashion Bid will not be party to that contract.
5.3. Any communication with a Seller, whether before or after the placing of a Bid, is Your responsibility. You are solely responsible for all of the terms and conditions of any transactions that may occur between You and the Seller including, without limitation, terms regarding payment, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, title and licenses, all of which must be in accordance with applicable law.
5.4. You can place a bid for an Item by completing the online form available on the Website (“Bid”). If Your Bid is a Successful Bid, You must proceed to pay to the Seller the Bid Price for that Item using PayPal and as otherwise specified on the Website. If You do not pay for the Item in the manner (and within the time) specified on the Website, the Successful Bid will lapse and the Item will be relisted on the Website.
5.5. If the Seller is unable to provide an Item after a Completed Bid, the Seller will refund the Bid Price to You.
5.6. You authorise Fashion Bid to provide Your full name, Email Address, postal address, credit card details and telephone number to the Seller following a Successful Bid.
6. DELIVERY
The Seller is under the obligation to deliver to You the Item the subject of a Completed Bid. Fashion Bid does not take responsibility for the delivery of Items listed by the Seller, including any risk of loss or damage to Items during the delivery process or any delay in delivery.
7. YOUR OBLIGATIONS AS CUSTOMER
7.1. You must be located in Australia to place a Bid.
7.2. Your Bid is not retractable once it is placed. You must only place a Bid if You intend to buy the relevant item at the Bid Price entered.
7.3. By making a Bid, You warrant and represent that You have the legal right to enter into and complete the Contract of Sale.
7.4. You acknowledge that PayPal is a third party service subject to its own terms and conditions. Fashion Bid disclaims all liability with respect to the Seller’s, or Your, use of PayPal or any other payment service provider used, from time to time, to process payment for an Item.
7.5. It is Your responsibility to:
a) ensure there is sufficient clear credit available in the nominated credit / debit card account to meet the Bid Price at the time of placing the Bid; and
b) check the amounts debited in the Your account statement provided by Your credit / debit card issuer, as if there is insufficient credit in the Your nominated account or You gave Fashion Bid incorrect details, You may be charged a fee by Your credit / debit card issuer due to the failed or incorrect payment.
8. RETURNS AND REFUNDS
If You are not satisfied with the quality of an Item You have purchased, You must contact the Seller directly. Fashion Bid does not accept returns of Items or take responsibility for Items that are damaged or lost during this process.
9. USE OF SERVICE AND LIMITATION OF LIABILITY
9.1. You acknowledge and agree that Fashion Bid does not, unless otherwise expressly stated, take ownership of Items at any time and is not involved in the transfer of legal ownership from the Seller to You.
9.2. You acknowledge and agree that:
a) it is the Seller’s responsibility to complete and maintain Listings;
b) responsibility for the content of Listings rests solely with the Seller; and
c) the Seller is solely responsible for any representation made in connection with its Listings.
9.3. If a Seller breaches any obligation to You, You (not Fashion Bid) are responsible for enforcing any rights that You may have.
9.4. You alone (not Fashion bid) are responsible for ensuring that placement of a Bid and any other activities conducted by You on the Website are lawful. You must also ensure that You strictly comply with these Terms and Conditions.
9.5. When accessing and using the Website, You must:
a) not attempt to undermine the security or integrity of Fashion Bid’s computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems or networks;
b) not use, or misuse, the Service in any way which may impair the functionality of the Service or Website or other systems used to deliver the Service or impair the ability of any other user to use the Service or the Website;
c) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Website is hosted;
d) not transmit, or input into the Website, any:
i. files that may damage any other person's computing devices or software;
ii. content that may be offensive; or
iii. material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use);
e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service or to operate the Website except as is strictly necessary to use them for normal operation.
10. FEEDBACK
Feedback is provided for the purpose of facilitating trading between the Seller and You. Feedback You provide on a Seller must not contain offensive, defamatory, retaliatory or inappropriate language or content. Fashion Bid may remove any feedback that it considers to be offensive, defamatory, retaliatory or inappropriate
11. INTELLECTUAL PROPERTY
11.1. Title to, and all Intellectual Property Rights with respect to, the Service, the Website and any associated documentation are the property of Fashion Bid (or its suppliers, as applicable) and may not be used or reproduced in full or in part without Fashion Bid’s prior written notice.
11.2. You may not, unless expressly permitted by the Agreement, use the Website, or the material contained in it (“the Material”), for any purpose. This includes:
a) the reproduction of the Material in any material form;
b) the distribution of the Material in any material form;
c) re-transmission of the Material by any medium of communication;
d) uploading and/or reposting the Material to any other site on the Internet; or
e) “framing” the Material with other material on any other Internet site.
11.3. You may not modify, copy or otherwise commercialize:
a) the layout of the Website; or
b) any computer software or code contained in the Website.
12. LIABILITY
12.1. To the maximum extent permitted by law, Fashion Bid excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss, including consequential loss, or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or the Website.
12.2. If You suffer loss or damage as a result of Fashion Bid’s negligence breach of contract or other act or omission that cannot at law be avoided pursuant to clause 12.1, any claim by You against Fashion Bid arising will be limited in respect of any one incident, or series of connected incidents, to one-thousand Australian dollars ($1,000.00).
13. INDEMNITY
13.1. You agree to release, indemnify and keep indemnified Fashion Bid from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Fashion Bid arising out of or in connection with Your:
a) failure to comply with the Agreement;
b) failure to complete a transaction;
c) use of the Website or Service;
d) purchase of an Item; and
e) infringement of the intellectual property, privacy or confidentiality rights of a Seller or any third party.
13.2. Fashion Bid cannot guarantee uninterrupted, timely, secure or error free access to the Service or the Website, and their operation may be interfered with by numerous factors outside of Fashion Bid’s control.
14. LINKS TO OTHER WEBSITES OR SERVICES
The Website may include links to other websites maintained by third parties which are not under the control of Fashion Bid (“Linked Sites”). Fashion Bid makes available Linked Sites to You solely as a convenience, and the inclusion of Linked Sites does not imply endorsement by Fashion Bid of the Linked Sites. Linked Sites are not under the control of Fashion Bid and Fashion Bid is not responsible for the material contained on any Linked Site or the consequences of accessing such sites. You access Linked Sites at Your own risk and by accessing them You leave the Website.
15. AUTHORITY
You warrant that where You have placed a Bid on behalf of another person or entity, You have the authority to agree to these Terms and Conditions on behalf of that person or entity and agree that by placing a Bid You bind the person or entity on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms and Conditions, without limiting Your own personal obligations under these Terms and Conditions.
16. NO WARRANTIES
Fashion Bid gives no warranty about the Service or the Website. Without limiting the foregoing, Fashion Bid does not warrant that the Service or the Website will meet Your requirements or that they will be suitable for any particular purpose. All implied conditions or warranties are excluded to the extent permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
17. CONSUMER GUARANTEES
To the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service or the Agreement.
18. PRIVACY
Privacy is very important to Fashion Bid. Fashion Bid use Your Personal Information only as described in the Fashion Bid Privacy Policy [ hyperlink to PP] (“Privacy Policy”). For a complete description of how Fashion Bid use and protect Your Personal Information, see the Privacy Policy. If You object to Your Personal Information being transferred or used in this way please do not use the Website or the Service.
19. RESTRICTION OF USE
19.1. Without limiting other remedies available to Fashion Bid at law, in equity or under the Agreement, Fashion Bid may, without notice to You and in Fashion Bid’s sole discretion, issue You a warning, restrict Your activities through the Website or temporarily prohibit or indefinitely prohibit Your use of the Website or the Service if:
a) You have, or Fashion Bid believes that You have, breached the Agreement, which includes any of Fashion Bid’s policies in any way;
b) Fashion Bid is unable to verify or authenticate any information You provide to Fashion Bid; or
c) Fashion Bid believes that Your actions may cause loss or damage to or otherwise unlawfully harm You, third parties or Fashion Bid, Fashion Bid’s related bodies corporate or affiliates, directors, employees or agents.
19.2. For security, confidentiality and privacy reasons, Fashion Bid is not obligated to provide You with the details of any investigation that Fashion Bid conduct or any action which Fashion Bid takes, in relation to Your use of the Website or the Service.
20. HELP AND ASSISTANCE
20.1. If You require technical help with the Website, please check the support provided by Fashion Bid on the Website or failing that email Fashion Bid at admin@fashionbid.com.au.
20.2. Whilst Fashion Bid intends that the Service and the Website should be available 24 hours a day, seven days a week, it is possible that on occasions the Service or the Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Fashion Bid has to interrupt the Service or the Website for longer periods than Fashion Bid would normally expect, Fashion Bid will use reasonable endeavours to publish in advance details of such activity on the Website.
21. ENTIRE AGREEMENT
The Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between You and Fashion Bid relating to the Website and the Service and any other matters dealt with in the Agreement.
22. WAIVER
If Fashion Bid waives any breach of the Agreement by You, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
23. GOVERNING LAW AND JURISDICTION
The Agreement is governed by the laws of Western Australia, without giving effect to any principles of conflicts of laws. You agree to the jurisdiction of the courts of Western Australia to determine any dispute arising out of the Agreement.
24. SEVERABILITY
If any part of the Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severed without affecting the validity and enforceability of the remaining provisions.
25. NOTICES
25.1. You acknowledge and agree that any notice given under the Agreement by either Party to the other must be in writing by email and will be deemed to have been given on transmission.
25.2. Notices to Fashion Bid must be sent to admin@fashionbid.com.au or to any other email address notified by email to You by Fashion Bid. Notices to You will be sent to the email address which You provided when You set up Your Account.
TERMS OF SERVICE FOR SELLER
These terms and conditions (“Terms of Service”) govern the Seller’s use of the Services including the Website. By using the Services, the Seller agrees to be bound by the Terms of Service without limitation. If the Seller does not accept the Terms of Service, the Seller must cease using the Services immediately.
Fashion Bid reserves the right to update and amend the Terms of Service from time to time. Fashion Bid will communicate all changes on the Website. Unless otherwise stated, amendments will be effective thirty (30) days after posting of the amended Terms of Service on the Website.
1. TERMINOLOGY
In these Terms of Service unless a contrary intention appears:
“Agreement” means this document and all materials referred to in this document including, but not limited to, Fashion Bid’s privacy policy available on the Website;
“Business Day” means a day that is not a Saturday, Sunday or public holiday in Western Australia;
“Customer” means a person that offers to purchase (including by placing a bid for an Item) or contracts to purchase an Item;
“Commencement Date” means the date the Seller commences using the Services;
“Completed Bid” has the meaning given in clause 5.3;
“Confidential Information” means any and all commercially sensitive information relating to a Party’s business including but not limited to know-how and trade secrets, however it does not include:
a) information already known to the receiving Party at the time of disclosure by the other Party; or
b) information in the public domain other than as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;
“Data” means any data inputted by the Seller or with the Seller’s authority onto the Website;
“Email Address” has the meaning given in clause 3.2(a);
“Fashion Bid” means Fashion Bid Pty Ltd (ACN 612 980 953);
“GST” means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999;
“Item” or “Items” means any good, or goods, listed by the Seller for sale on the Website;
“Listing” means a listing on the Website through which the Seller offers to sell an Item to a Customer;
“Listing Fee” means 5% of the Reserve Price payable by the Seller to Fashion Bid at the time the Seller places a Listing;
“Party” or “Parties” means Fashion Bid and/or the Seller as the context requires;
“Personal Information” means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by Fashion Bid in connection with the Services, Website or this Agreement;
“Reserve Price” means the price at which the Seller will sell an Item in a Listing to a Customer;
“Services” means one or more of the services offered by Fashion Bid including the Website and any related service or tool;
“Service Fee” means the monthly fee for the Services payable by the Seller in accordance with the fee schedule (as amended by Fashion Bid from time to time) set out on the Website or otherwise provided to the Seller;
“Seller” means a person or other entity that uses the Services and / or sells an Item to a Customer;
“Successful Bid” means a bid by a Customer for an Item that meets the Reserve Price for that Item;
“Term” means the term of this Agreement as defined in clause 2; and
“Website” means the internet site owned by Fashion Bid and operating under the URL www.fashionbid.com.au.
2. TERM
Subject to any rights of early termination contained in clause 15, this Agreement commences from the Commencement Date and continues until either Party terminates this Agreement by giving to the other Party thirty (30) days prior notice in writing (“Term”).
3. FASHION BID ACCOUNT AND STORE
3.1. The Seller represents and warrants that the Seller is at least 18 years of age (if the Seller is a human being) and that the Seller has the legal capacity to access the Website, use the Services and to enter into legally binding contracts under applicable law.
3.2. To access and use the Services, the Seller must:
a) register for a Fashion Bid account (“Account”) by providing the Seller’s full legal name, current address, phone number, a valid email address (“Email Address”), the Seller’s ABN / ACN and any other information requested by Fashion Bid from time to time; and
b) set up the Seller’s store (“Store”), to be used for Listings, by following the instructions on the Website.
3.3. Fashion Bid may reject the Seller’s application for an Account, for any reason, in Fashion Bid’s sole discretion.
3.4. The Seller acknowledges that Fashion Bid will use the Email Address as the primary method of communication.
3.5. The Seller must ensure that each username and password issued to the Seller in connection with the Account and/or the Store is kept secure and confidential. The Seller must immediately notify Fashion Bid of any unauthorised use of the Seller’s password or any other breach of security.
3.6. The Seller shall be liable for all activity and content such as data, graphics, photos and links that is uploaded under the Seller’s Account. Fashion Bid may require the Seller to remove or change content uploaded by the Seller.
4. PAYPAL
4.1. Upon completion of sign up for the Services (as set out in clause 3), the Seller must within two (2) Business Days create a PayPal account in the Seller’s name (“PayPal Account”) using the Email Address.
4.2. The Seller acknowledges that the PayPal Account will be the Seller’s default payment gateway, to be used for the processing of payments to the Seller following the placing of a Successful Bid. It is the Seller’s sole responsibility as the PayPal Account owner to activate and maintain this account.
4.3. The Seller shall, within five (5) Business Days of setting up the PayPal Account, provide to Fashion Bid the Seller’s “PayPal email ID”.
4.4. The Seller acknowledges that PayPal is a third party service subject to its own terms and conditions. Fashion Bid disclaims all liability with respect to the Seller’s, or a Customer’s, use of PayPal.
5. THE SERVICES
5.1. In consideration for the payment of the Listing Fee and the Service Fee Fashion Bid agrees, on the terms of this Agreement, to:
a) provide to the Seller throughout the Term, on a non-exclusive basis, the Services; and
c) grants the Seller throughout the Term a non-exclusive right to access the Website.
5.2. The Seller is responsible for ensuring the information included in a Listing is accurate. Fashion Bid disclaims all liability with respect to the Customer’s use of the information that the Seller provides, including without limitation, any illegal use of that information. The Seller indemnifies Fashion Bid for all loss suffered by Fashion Bid howsoever in relation to such use.
5.3. Fashion Bid provides an online venue to introduce customers who want to buy Items to sellers who want to sell Items. Fashion Bid does not take any part in the sale of Items. If a bid by a Customer for an Item is a Successful Bid, and payment is made by the Customer, (“Completed Bid”) a contract of sale will be formed between the Seller and the Customer directly and Fashion Bid will not be party to that contract.
5.4. Any communication with a Customer, whether before or after the placing of a Completed Bid, is the Seller’s responsibility. The Seller is solely responsible for all of the terms and conditions of any transactions that may occur between the Seller and the Customer including, without limitation, terms regarding payment, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, title and licenses, all of which must be in accordance with applicable law. The Seller indemnifies Fashion Bid for all loss suffered by Fashion Bid howsoever in relation to its dealings with its Customers.
5.5. The Seller must use its best endeavors to respond to each communication or query from a Customer within forty eight (48) hours of receipt of that communication or query.
6. PAYMENT OF THE SERVICE FEE AND THE LISTING FEE
6.1. In consideration for being permitted to use the Services, the Seller agrees to pay Fashion Bid (in accordance with clause 6.2):
a) the Service Fee on the Commencement Date and thereafter monthly until the Agreement is terminated in accordance with clauses 2 or 15; and
b) the Listing Fee at the time of placing each Listing.
6.2. The Seller agrees to provide Fashion Bid with valid and up to date credit card account information. The Seller authorises Fashion Bid to charge the Service Fee and the Listing Fee to the Seller’s credit card (“Automatic Payments”).
6.3. It is the Seller’s responsibility to:
a) ensure there is sufficient clear credit available in the nominated credit card account to meet the Automatic Payments; and
b) check the amounts debited in the Seller’s account statement provided by the Seller’s credit card issuer, as if there is insufficient credit in the Seller’s nominated account or the Seller gave Fashion Bid incorrect details, the Seller may be charged a fee by its credit card issuer due to the failed or incorrect payment.
6.4. The Service Fee and the Listing Fee are inclusive of GST.
7. LISTINGS
7.1. The Seller understands and agrees that:
a) the Reserve Price must be:
i. in Australian dollars and include GST and shipping and packaging costs for an Item;
ii. less than the recommended retail price for an Item plus GST and shipping and packaging costs;
b) if a bid by a Customer for an Item is a Completed Bid, and payment is made by the Customer, the Seller must:
i. sell that Item to that Customer for the amount of the Completed Bid;
ii. subject to any agreement with the Customer, send the Item to the Customer within two (2) Business Days;
c) if the Seller is unable to provide an Item after a Completed Bid, the Seller must refund to the Customer any monies paid to the Seller by the Customer;
d) the Seller shall be responsible for all packing and postage costs associated with the sale of an Item;
e) the Seller must use Australia Post or a registered courier for delivery of Items to Customers;
f) the Seller will provide proof of shipping of an Item if requested by Fashion Bid;
g) Fashion Bid will provide the Seller’s name, Email Address, street address for the Seller’s store and telephone number to the Customer following a Completed Bid;
h) each Item listed for sale must be brand new;
i) each Item shall be listed in Australian sizing;
j) photographs in Listings must depict the actual Item for sale;
k) it is the Seller’s responsibility to complete and maintain Listings;
l) the Seller is solely responsible for any representation made in connection with its Listings;
m) the Seller will only enter Listings that are accurate, current, complete, and include all relevant information about the terms of sale, payment terms, returns and refunds policy and shipping methods;
n) when the Seller lists an Item for sale on the Website, it should do so with the intention of selling the Item via the Website;
o) the Seller will only place Listings for Items that exist, are to be sold and that the Seller is legally entitled to sell; and
p) it is the Seller’s responsibility to ensure that a Listing of an Item does not infringe any agreement with a supplier or manufacturer of that Item.
8. SELLER’S OBLIGATIONS AND DISCLAIMER
8.1. The Seller understands and agrees that:
a) Fashion Bid:
i. cannot, and will not, confirm the identity of any Customer, the Customer’s background or credit-worthiness or their ability or willingness to pay for any Item provided by the Seller;
ii. shall have no obligation or liability to the Seller, or the Customer, under or in respect of any sale the Seller makes to a Customer;
q) the Seller must be located in Australia;
r) no advice or information that is obtained by the Seller from Fashion Bid or anyone else shall create any warranty by Fashion Bid that is not expressly stated in this Agreement;
s) it is the Seller’s responsibility to determine that the Services meets the needs of the Seller’s business and are suitable for the purposes for which they are used;
t) the Seller’s use of the Services is at its own risk;
u) the Service are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory;
v) Fashion Bid does not warrant that the Services will be uninterrupted, timely, secure or error-free;
w) The Seller must:
i. conduct itself in a diligent and responsible manner while accessing the Website;
ii. promote Fashion Bid in a positive manner and not discredit Fashion Bid in any way;
iii. not use the Website to promote items for sale other than pursuant to the Services;
iv. not defame, abuse, harass or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of confidentiality;
v. not disclose, upload, post or otherwise transmit any data or information that the Seller does not have the right to disclose, upload, post or otherwise transmit under any law or contractual relationship (such as, but not limited to, Personal Information provided by a Customer);
vi. not use any information provided by a Customer other than as expressly authorised by that Customer;
vii. comply with all relevant laws and regulatory requirements;
viii. in using the Services and the Website, not infringe any person’s right or interest with respect to any Intellectual Property, obligation of confidentiality or other proprietary right; and
ix. not engage in misleading or deceptive conduct in anyway.
9. FEEDBACK
Feedback is provided for the purpose of facilitating trading between the Seller and the Customer. Feedback the Seller provides on a Customer must not contain offensive, defamatory, retaliatory or inappropriate language or content. Fashion Bid may remove any feedback that it considers to be offensive, defamatory, retaliatory or inappropriate
10. USE OF THE WEBSITE
10.1. When accessing and using the Website, the Seller must:
a) not attempt to undermine the security or integrity of Fashion Bid’s computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems or networks;
b) not use, or misuse, the Services in any way which may impair the functionality of the Services or the Website or other systems used to deliver the Services or impair the ability of any other user to use the Services or the Website;
c) not attempt to gain unauthorised access to any materials other than those to which the Seller has been given express permission to access or to the computer system on which the Website is hosted;
d) not transmit, or input into the Website, any:
i. files that may damage any other person's computing devices or software;
ii. content that may be offensive;
iii. material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which the Seller does not have the right to use);
e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use them for normal operation.
10.2. Fashion Bid may, at its sole discretion, upload to the Website:
a) links to websites of other companies (whether affiliated or not),
b) banner advertisements; and
c) other promotional and advertising materials.
11. LIABILITY
11.1. To the maximum extent permitted by law, Fashion Bid excludes all liability and responsibility to the Seller (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services or the Website.
11.2. If the Seller suffers loss or damage as a result of Fashion Bid’s negligence, breach of contract or other act or omission that cannot at law be avoided pursuant to clause 11.1, any claim by the Seller against Fashion Bid arising will be limited in respect of any one incident, or series of connected incidents, to the aggregate of the Listing Fee and Service Fee received by Fashion Bid in the immediately preceding quarter.
11.3. If the Seller is not satisfied with the Services, the Seller’s sole and exclusive remedy is to terminate this Agreement in accordance with clause 2.
12. INDEMNITY
12.1. The Seller agrees to release, indemnify and keep indemnified Fashion Bid from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Fashion Bid arising out of or in connection with the Seller’s:
a) failure to comply with this Agreement;
b) failure to complete a transaction following a Completed Bid;
c) violation of any law, rule or regulation;
d) negligence;
e) use of the Services (including the Website);
f) sale or attempted sale of an Item;
g) infringement of the intellectual property, privacy or confidentiality rights of any third party (including a Customer); and
h) any act or omission by the Seller’s employees, officers, agents or contractors which, if done or omitted to be done by the Seller, would be a breach of the Seller’s obligations under this Agreement.
13. CONFIDENTIALITY AND PRIVACY
13.1. A Party will not, without the prior written approval of the other Party, disclose the other Party's Confidential Information.
13.2. A Party will not be in breach of clause 13.1 to the extent to which it is legally compelled to disclose the other Party's Confidential Information.
13.3. Each Party must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public, disclose or use for any purpose other than the performance of this Agreement the other Party's Confidential Information.
13.4. Fashion Bid maintains a privacy policy that sets out the Parties’ obligations with respect to Personal Information. The Seller should read that policy on the Website [ hyperlink to PP]. The Seller will be taken to have accepted that policy when the Seller uses the Services.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. Fashion Bid (and its licensors) own all proprietary and intellectual property rights in the Website (including text, graphics, logos, icons and sound recordings) and the software and other material underlying and forming part of the Services and the Website. The Seller may not:
a) adapt, reproduce, copy, store, distribute, paint, display, perform, publish or create derivative works from any part of the Website; or
b) commercialise, copy, or on-sell any information, or items obtained from any part of the Website.
14.2. Title to, and all intellectual property rights with respect to, the Data remain the Seller’s property. The Seller grants Fashion Bid a licence to use, copy, transmit, store, and back-up the Data for the purposes of enabling the Seller to access and use the Services and for any other purpose related to the provision of the Services.
15. BREACH
15.1. If:
a) a complaint or multiple complaints are received about the Seller from Customers;
b) the Seller or the Seller’s business become insolvent or bankrupt or the Seller’s business goes into liquidation or has a receiver or manager appointed over any of its assets;
c) the Seller breaches any term of this Agreement; or
d) Fashion Bid, at its sole discretion, deems the Seller’s behaviour while using the Services to be unacceptable,
Fashion Bid may take any or all of the following actions, at its sole discretion:
a) limit the Seller’s activities on the Website;
e) remove any Listing;
f) suspend for any definite or indefinite period of time the Seller’s use of the Services and the Website;
g) terminate this Agreement and the Seller’s use of the Services and the Website.
15.2. If this Agreement is terminated, the Seller’s ability to access and use the Services and the Website will end.
16. FORCE MAJEURE
Fashion Bid has no liability for any lack of performance, unavailability or failure of the Services or the Website, or for any failure of Fashion Bid to comply with this Agreement where the same arises from any cause beyond the control of Fashion Bid.
17. DISPUTE RESOLUTION
17.1. Where damages are an appropriate remedy, the Parties agree to first attempt to resolve any dispute by negotiation. If any dispute arises between the Parties regarding this Agreement which cannot be settled by negotiation:
a) the Parties will refer the dispute to senior management;
d) failing settlement of the dispute, the Parties will attempt to settle the dispute by mediation;
e) failing settlement of the dispute through mediation, either Party may commence legal proceedings against the other.
17.2. Nothing contained in this clause 17, will deny either Party the right to seek urgent interlocutory relief (including for an injunction) from an appropriate Court in relation to any dispute arising under this Agreement including in the circumstances where there has been a material breach of this Agreement by the Seller.
17.3. As Fashion Bid is not a party to any sale or transaction between the Seller and the Customer, the Seller agrees not to involve, or attempt to involve, Fashion Bid in any dispute or in the resolution of disputes that arise between the Seller and the Customer as a result of, or related to, the sale, or agreement for sale, of an Item.
18. EXPIRY OR TERMINATION
Clauses 13, 14, 17 and 18 survive the expiry or termination of this Agreement.
19. NOTICES
19.1. The Seller acknowledges and agrees that any notice given under the Agreement by either Party to the other must be in writing by email and will be deemed to have been given on transmission.
19.2. Notices to Fashion Bid must be sent to admin@fashionbid.com.au or to any other email address notified by Fashion Bid to the Seller. Notices to the Seller will be sent to the Email Address.
20. AUTHORITY
The Seller warrants that where the Seller enters into this Agreement, on behalf of another person or entity, the Seller has the authority to enter into this Agreement on behalf of that person or entity and agrees that by entering into the Agreement the Seller binds the person or entity on whose behalf the Seller acts, as well as the Seller, to the performance of any and all obligations under this Agreement.
21. INSURANCE
The Seller shall, at the Seller’s expense effect and at all times maintain with a public insurance office approved by Fashion Bid on behalf of the Seller and Fashion Bid for their respective rights a public liability policy with a cover of not less than ONE MILLION DOLLARS ($1,000,000), or any increased sum which Fashion Bid may from time to time specify, in respect of any one occurrence.
22. CONSUMER GUARANTEES
The Seller warrants and represents that the Seller is acquiring the right to access and use the Services and the Website for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or the Agreement.
23. HELP DESK
23.1. In the case of technical problems the Seller must make all reasonable efforts to investigate and diagnose problems before contacting Fashion Bid. If the Seller still needs technical help, please check the support provided by Fashion Bid on the Website or failing that email us at admin@fashionbid.com.au.
23.2. Whilst Fashion Bid intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Fashion Bid has to interrupt the Services or the Website for longer periods than Fashion Bid would normally expect, Fashion Bid will use reasonable endeavours to publish in advance details of such activity on the Website.
24. RELATIONSHIP OF PARTIES
Fashion Bid’s relationship with the Seller is that of independent contractor. Neither the Seller nor Fashion Bid has (nor may it represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name. Nothing stated in this Agreement must be construed as constituting the Seller and Fashion Bid as partners, or as creating the relationship of employer and employee or master and servant between the Parties.
25. GENERAL
25.1. Assignment
Fashion Bid may assign or otherwise transfer its rights under this Agreement. The Seller may not assign or otherwise transfer any rights under this Agreement to any other person without Fashion Bid’s prior written consent.
25.2. Independent Legal Advice
The Seller acknowledges that the Seller has had the opportunity to obtain independent legal advice before entering into this Agreement.
25.3. Governing Law
This Agreement is governed by the laws of Western Australia and the Parties submit to the jurisdiction of the courts of that State and the Commonwealth of Australia.
25.4. Severability
If any provision of the Agreement should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be affected or impaired. This Agreement must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.