These terms of service apply to Blueshak’s website and mobile (“Digital Applications“) which provides an online marketplace for trading of products. You should read these Terms of Service before using the Digital Applications.
- “You” and “your” refer to all users and customers of the Digital Applications or Service, including Registered Users; and “we”, “us” and “our” refer to Blueshak. References to users must be read as being also a reference to Registered Users.
- “Service” means:
- the Digital Applications’ trading facility;
- the Digital Applications’ Content upload service for Registered Users; and
- the Digital Applications’ Content download service for you;
in all cases for use in accordance with these Terms of Service. In the case of Registered Users, references to the Digital Applications include a reference to the Service.
- “Goods” means a product offered by a Registered User for trading on the Digital Applications.
- “Registered User” means anyone who has signed up for the Service and has obtained a user ID to log onto the Service. A Registered User may set a profile by giving us certain additional information, which we may refer to as your “account”.
- “Seller” means any Registered User who publishes any Goods for sale on the Digital Applications.
- “Buyer” means any Registered User who begins or completes a purchase transaction for Goods from a Seller on the Digital Applications.
- “Content” means:
- all digital files (whether graphics, plans, illustrations, designs, images, photographs, animations, data, text and information) and products provided on the Digital Applications;
- associated metadata (including information about products, the file author and any editorial content data; and intellectual property notices); and
- other proprietary information, materials and products, and all copyright protected or otherwise legally protectable elements and functions of the Digital Applications or the Service including the selection, sequence, look and feel, layout and arrangement of items on the Digital Applications.
2. Legally Binding Contract
- These Terms of Service constitute a binding legal contract between you and Blueshak. Each Registered User is legally bound on registration on clicking an “I agree,” “I consent,” or other similarly worded “button”, check box or entry field on the Digital Applications with your mouse, finger, keystroke, or other data entry mechanism. Those actions are a legal equivalent of your handwritten signature.
- The Digital Applications and these Terms of Service may change without notice, so do check them from time to time. A revision date appears at the beginning of the Terms of Service specifying the date of the last revision.
- If Blueshak develops revised terms of service, then on their publication on the Digital Applications they will supersede those they replace. If you subsequently access or use the Digital Applications or the Service you will be taken to have accepted the revised terms of service. If you do not agree with any change or revision of applicable terms of service at any time, do not access, use, upload, submit information to or download from the Digital Applications or use the Service.
- Specific Digital Applications or Service functions, facilities, features, sections, areas, communities, discussion groups, modules, services, sections, menus, offerings and incentives may have provisions additional to these Terms of Service. Those additional provisions must be read with these Terms of Service. If there is an inconsistency between such provisions and these Terms of Service then the provisions of these Terms of Service will prevail to the extent of such inconsistency and the parties must take all necessary steps to remove that inconsistency.
- You represent that you are either 18 years of age or older and are fully qualified and empowered to enter into these Terms of Service or you represent you are a minor over the age of 16 and warrant that you have obtained parental consent.
3. Obligations, Prohibitions and Warranties
- Registration and Use
- (Registration Required) Only Registered Users are permitted to use the Service.
- (One Account) A Registered User is permitted to have only one account.
- (User ID) Each Registered User will have a unique user ID that comprises the email address and confidential password the user provides when registering to be a Registered User (or we may assign an initial password which the Registered User may change later). We may provide a Registered User with additional codes or passwords necessary to access and use specific functions, facilities and features of the Service or the Digital Applications.
- (Personal Information) A Registered User may be required to submit personal information such as full name, email address, postal address, postcode and additional information for territory and digital media rights management, security or identity verification purposes. We may also ask a Registered User to provide us with optional information about that Registered User, which will enable us to personalise and customise the Service. We will indicate what information is required and what information is optional.
- Registered User’s Obligations
- (Content Accuracy) Registered Users must ensure that any Content they upload is accurate. Each Registered User warrants that the Registered User’s details provided to the Service or Blueshak are true and accurate, including personal names, affiliations, phone number and email address.
- (Registered User Data Accuracy) Each Registered User:
- is responsible for the security and use of his or her user name and password and must take all reasonable steps to ensure they are kept confidential and secure;
- must not become involved in any negotiation or trading before having read these Terms of Service and all instructions and information published by us on the Digital Applications;
- must not allow any third party or unauthorised person to access the Digital Applications using that user name or password; and
- must immediately notify Blueshak of any unauthorised use of a user name or password or any other breach of security.
- (No Feedback Abuse) Registered Users must not abuse the feedback or rating system.
- (No Intellectual Property Breach) Registered Users must not upload files, photos or software or post messages to the Digital Applications that contain material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own the rights to them or control the rights under all necessary authority, licenses, permissions, consents and approvals. However, you may make links (ie hypertext links).
- (Liability Disclaimer) Blueshak is not liable for any loss or damage arising from a Registered User’s failure to comply with obligations in these Terms of Service.
- Seller’s Obligations
- (Listing Requirements Compliance) Sellers must comply with all Goods listing requirements set out in these Terms of Service or by reference on the Digital Applications. You must make correct and accurate Goods listing descriptions and you must categorise listings appropriately.
- (Irrevocable Offer) By uploading the Content and listing the Goods, Sellers are making an irrevocable offer to sell the Goods at the price appearing linked to the Content description.
- (Listing Content) Sellers must specify the following applicable information in their listing of Content about their Goods:
- a fixed price;
- condition of the Goods;
- any defect or flaw in the Goods;
- payment method;
- return policy;
- pick up area (for face-to-face delivery);
- delivery area (for postal delivery); and
- delivery method, costs and other related information.
- (Turnaround Time) Where applicable, Sellers must specify the turnaround time for their Goods, ie how long it will take them as a Seller to process a transaction till delivery.
- (Review Listing Content) Sellers must review and update listing Content when there is a change in the inventory status or condition of Goods.
- (No Duplicate Goods) Sellers must not upload separate listing Content onto the Digital Applications for identical Goods.
- (No Prohibited and Infringing Goods) Sellers must not use the Digital Applications for licensing, auction or buy now sales involving infringing, non-genuine, illegal or illicit goods, sales that are prohibited by applicable laws (including but not limited to any alcohol, pharmaceutical and tobacco products), sales of offensive goods (including goods with a defamatory or ethically objectionable nature), sale of stolen goods, sale of goods which infringe copyright or other intellectual property laws, sales of goods which have been illegally imported, sales of goods the export of which is illegal, or sale of goods for which necessary legal compliance or approvals have not been obtained before listing on the Digital Applications. Sellers indemnify us and will keep us indemnified against any liability which we may incur to a third party arising out of breach of your obligations in this clause.
- Buyer’s Obligations
- (Read Listing Content) Buyers must read the Seller’s listed Content before making an offer or commiting to purchase that Seller’s Goods.
- (Genuine Interest) Buyers must only make an offer on Goods if they intend and have the money and all other means to commit to purchase such Goods.
- (No Offer Retraction) An offer-making facility may be enabled in the Service for listed Goods on the Digital Applications. Such a facility allows Buyers to click a “Make an offer” or similarly labelled button in a listing of Goods. A Buyer cannot retract the Buyer’s offer once the Seller has accepted that offer.
- (No Purchase Cancellation) Buyers must pay for any Goods they commit to purchase.
- (No Unreasonable Demand) Buyers must not make any unreasonable demand to Sellers subsequent to a completed purchase or delivery of a Seller’s Goods. For example, Buyers must not demand an additional item or service from a Seller that is not specified in the listed Content of the Goods.
- (Report to Blueshak) Buyers may report to us if they have a concern about a Seller’s behaviour for us to investigate.
- Registered User’s Warranties
Each Registered User warrants and represents that: the Registered User has full power and authority to offer the Goods under these Terms of Service and perform the Registered User’s obligations under these Terms of Service; the Registered User is the sole unencumbered owner of the copyright in the Content; the Content does not infringe any rights of any third party including rights of copyright nor does it contain any matter which is unlawful and/or defamatory; and the Registered User has all necessary licences, consents and permissions for material included in the Content. The Registered User indemnifies us against all expenses, damages, costs and losses whatsoever (including legal costs and expenses) occasioned to us, our licensees and/or assignees in consequence of any breach by the Registered User of these warranties.
- Saved Listing
- The Digital Applications may enable a facility for a Registered User to save to that Registered User’s user account a Goods listing page. Such a facility allows you to click a “Save to Wishlist” or similarly labelled button on a Goods listing page.
- Saving a listing page does not prevent:
- a Seller from removing the relevant listing; or
- another Registered User from purchasing the listed Goods.
- Goods Purchase
- A Seller may specify a fixed price for Goods in the Seller’s listed Content.
- A Buyer may make an offer to negotiate with a Seller a lower price for the relevant Goods by clicking a “Make an offer” or similar worded button. The relevant Seller may respond by either accepting or declining such an offer.
- If a fixed price is available for Goods, a Buyer may instantly purchase the Goods by clicking a “Buy it now” or similarly labelled button. The relevant Seller and Buyer are both contractually bound by such instant purchase.
- Once an instant purchase is made, by email or internal message on the Digital Applications, we will then provide the Seller and the Buyer with their respective contact details.
- On receipt of notification of the Buyer’s purchase via our internal messaging service on the Digital Applications, the Seller will contact the Buyer to finalise the payment, delivery method and freight fee.
- The relevant Seller and Buyer must contact each other to make transaction arrangements as soon as possible.
- You must be 18 years or over to buy, receive or accept delivery of any Goods from the Seller or a courier or postal company.
- Prices, Delivery and Freight Fees
- We are not responsible for delivery and freight fees for Goods. A Seller is responsible for making arrangements for delivery of Goods to the Buyer.
- We recommend using Australia Post as the shipping service provider. To obtain Australia Post’s estimated freight fees and delivery time for Goods, a Seller can refer to information on the relevant Digital Applications page.
- Delivery of Goods may be subject to completion of payment by the Buyer to the Seller.
- If the Buyer has any issue with delivery of Goods please contact the Seller as soon as possible to try to rectify such issue.
- Any delivery date or time given will be on the basis that it is an estimate. Delayed or late delivery of goods does not confer on you any right of cancellation, termination or refusal of delivery. The Buyer will not be relieved of the Buyer’s obligation to accept delivery by reason of any delayed or late delivery.
- If Australia Post advises the Seller that the Buyer is not in a serviceable area, the Seller must contact the Buyer and make alternative arrangements. If alternative arrangements cannot be made, the Seller must issue the Buyer with a full refund.
- Return, Exchange and Refund
We will not be responsible for any return, exchange or refund of any Goods. Any request for a return, exchange or refund of any Goods must be made to the original Seller directly.
- Product Warranties and Warranty Claims
We will not be liable to you or any third party for any loss suffered due to product failure.
- Feedback and Performance Rating System
- The feedback and performance rating system (if any) of the Digital Applications consists of comments left by other Registered Users and a composite feedback number compiled by us. The composite number without the comments does not convey that Registered User’s full user profile.
- The overall performance rating determines a Registered User’s rating. A negative rating will decrease the rating by 1, a neutral rating will not affect the rating, a positive rating will increase the rating by 1.
- Only the Buyer who has purchased Goods may give feedback or ratings that relate to the specific Goods. Such feedback and ratings must be honest and objective.
- A Seller must not post feedback or ratings about that Seller’s Goods or any competing Goods.
- You must not include any contact details or personal information in your feedback.
- You must not take any action which may undermine the integrity of the feedback and performance rating system. We reserve the right to automatically suspend any Registered User with feedback or ratings below an acceptable minimum determined at Blueshak’s sole discretion from time to time.
- Payments Between Site Users
Any payment made outside of the Digital Applications is not under the control of Blueshak. Blueshak disclaims any and all liability with respect to such payments and will not recognise or refund, recompense or compensate for such transactions or payments. If you make a payment outside of the Digital Applications and believe you are entitled to a part or full refund, contact the relevant party directly.
All prices on the Digital Applications or for the Service are in Australian dollars. The total cost of your order is the price of the Goods and any delivery, packaging, service or credit card charges. Prices for the Goods may change at any time. The Buyer will be charged the price that is displayed on the Digital Applications or communicated by us at the time the Buyer purchases the Goods.
- Use Limitations and Prohibitions
- We will use reasonable endeavours to supply the functionality of the Digital Applications to Registered Users. However, despite our efforts, that functionality may not be continuous, accessible or available at all times, or fault free, and we may at any time change or discontinue any or all functionality. Also, events beyond our control might affect the functionality, and Registered Users agree that we are not responsible for any effects of those events.
- Registered Users are solely responsible for all Content that they upload or download. We are not responsible for any Content lost, damaged or deleted. We are not obliged to maintain a record of the Content uploaded or downloaded.
Despite anything to the contrary in these Terms of Service or in the Digital Applications, Blueshak may change or discontinue any Digital Applications function, facility, feature, section, area, community, discussion group, module, service, section, menu, offering, incentive, password, or user.
- Blueshak may issue tax invoices to Registered Users but has no responsibility for determining the necessity of or for issuing any invoice, or for determining, remitting, or withholding any tax or impost of any kind (including withholding tax, stamp duty, goods and services tax and any other type of value added tax) in connection with any use of the Digital Applications.
- Where goods and services taxation (“GST”) applies, Blueshak may deduct the GST it incurs from each user’s payment and Blueshak may issue the user with a tax invoice.
- Each Registered User is solely responsible for determining his or her own obligations and compliance responsibilities (or that of any related entity) under applicable law. You and any related entity hereby jointly and separately indemnify Blueshak with respect to all such obligations and responsibilities.
6. Licence, Permitted Use and Prohibitions
- Your use of the Digital Applications must not breach these Terms of Service.
- You may not:
- for commercial or unlawful purposes solicit personal information from anyone under 18 or solicit passwords or personally identifying information;
- harvest or collect user information or email addresses from the Digital Applications for commercial or unlawful use or unsolicited communications;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person, organisation or entity; or
- use automated scripts to collect information from or otherwise interact with the Digital Applications or its users.
- You must act in good faith and state your views or opinions in good faith. Your stated personal views or opinions must be personal views or opinions you in fact hold. Strictly prohibited are statements for or on behalf of clients or third parties by lobbyists, public relations consultants, advocates or any of their respective employees, contractors, agents or representatives. Also strictly prohibited is any activity involving any form of payment in cash or in kind for any comment you make on the Digital Applications.
7. Intellectual Property
- The Content and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications are the property of Blueshak or their respective owners, unless noted otherwise.
- The Digital Applications is protected by law including copyright in any layout, text, images, photographs, illustrations, animations, audio clips, video clips, programming and HTML code. No part of the Digital Applications may be used, copied, modified, changed, distributed, republished or transmitted, except for permitted uses. All rights not specifically and expressly granted in these Terms of Service or on the Digital Applications are reserved by Blueshak or their respective owners.
- For any written permissions, email Blueshak (see email address on the Digital Applications) or the relevant copyright owner or controller.
- All names, logos and signs on the Digital Applications are the trade marks of their respective owners. This is our trade mark: Blueshak™.
8. Licence and Consent
- By posting to the Digital Applications any Content or communication (eg comment, enquiry, rating, forum post or other message), you automatically grant to Blueshak, its licensees and assigns an irrevocable, perpetual, non-exclusive, free of charge licence throughout the world for the purposes of using, publishing and displaying that communication.
- You irrevocably consent to all Blueshak’s acts or omissions (including as an author and publisher) as they may affect any moral rights you may have in that Content or communication. Specifically you consent to Blueshak’s, or others authorised by Blueshak, carrying out any change, re-arrangement, mixing, translation, reformat, adaptation, re-purposing, re-design, addition, deletion or editing of that Content or communication and combination of it with other material.
- Blueshak accepts no liability for such Content or communication. It is the opinion, responsibility and legal liability of its maker or poster.
- It is a condition of your access to the Digital Applications, that you must not post any such Content or communication that in Blueshak’s opinion is:
- in any way unlawful, threatening, intimidating, harassing, stalking, inflammatory, fraudulent, abusive, indecent or obscene, or would inhibit use and enjoyment of the Digital Applications by others;
- involving you in contacting anyone who has asked not to be contacted;
- defamatory or derogatory of other persons;
- infringing the rights of third parties, including breach of privacy obligations, intellectual property rights of others, or their moral rights (as defined in the Copyright Act 1968 (Cth));
- untrue, misleading or deceptive;
- discriminatory, offensive or capable of inciting violence or hatred;
- in breach of any applicable laws or regulations;
- using offensive language;
- using a misleading email address or otherwise manipulates identifiers which disguise the origin of information communicated or transmitted through the Digital Applications;
- an intentional post in an irrelevant category or thread or involving an off the topic comment, a repeated post with the same or similar information unless it is a recurring activity, or an otherwise unreasonable load on the Digital Applications;
- an attempt to gain unauthorised access to Blueshak’s computer systems or activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Digital Applications; or
- a file or code containing a virus, trojan, malware or worm.
- In Australia and other countries, feedback, ratings and comments may be defamatory. Blueshak accepts no liability for any claim, demand, action, loss, damage, cost, charge, fine or expense that may arise from feedback, ratings or comments. You release forever and indemnify Blueshak from any liability for any feedback, ratings or comments by you on the Digital Applications.
- As regards your personal information, information relating to your IP address, or other data submitted or posted by you, Blueshak may in certain cases be legally obligated to disclose such data to law enforcement agencies, intellectual property owners and others. Blueshak may disclose such data as legally required or at its discretion following review by us.
9. Communications with Registered Users
If you register as a Registered User of the Digital Applications, you agree that Blueshak may from time to time send communication to you, such as alerts and enewsletters, regarding your interests, or confirmations regarding your use of the Digital Applications or Service.
10. Third Party Products and Services
No endorsement, recommendation or approval of any third party or its products, services, or websites is intended by any content, links or third party advertisements (including any banner ads containing embedded hyperlinks) on or to the Digital Applications or the Service. Links are provided only as a convenience. Some third party advertisements contain representations or offers by the third party advertiser which you can accept by linking to the advertiser’s website and executing the relevant transaction. Such offers are not made by Blueshak, and we are not responsible to you for any transactions you have with any third party.
11. Links Policy
You are welcome and encouraged to create links to the Digital Applications. If you are using frames, when they are activated you must ensure they do not continue to display your frames, or frames of others, around the Digital Applications pages.
You indemnify Blueshak from and against all demands, claims, actions, proceedings, settlements, liability, expenses, fines, damages, costs or losses (including but not limited to reasonable costs and disbursements on a solicitor and client basis) arising from or incurred due to your activities on or use of the Digital Applications, any breach by you of these Terms of Service, or any demand or complaint made by another user against you for any comment, submission, post or material made or added by you or authorised by you for the Digital Applications.
13. Disclaimers and Liability
- The Competition and Consumer Act 2010 (Cth) and other legislation confers rights and remedies in relation to the provision of goods and services which cannot be excluded, restricted or modified. Despite anything to the contrary in these Terms of Service, the disclaimers and limitations specified in these Terms of Service only apply to the maximum extent permitted by such legislation and do not exclude, limit or modify remedies under such legislation.
- The Digital Applications is provided for informational purposes only and is not intended as professional advice, or as a substitute for the professional advice. You should not act on the basis of anything contained on the Digital Applications without first obtaining any necessary or prudent professional advice.
- All care and diligence is taken to ensure the accuracy and currency of information. However, your use of the Digital Applications is at your risk. The Digital Applications is provided “as is” and you accept and use it at your own risk. You have received no promise, guarantee, representation, warranty or undertaking regarding the profitability of or any other consequence or benefit to be obtained from use of the Digital Applications, except as expressly specified in these Terms of Service.
- To the full extent it is lawful or possible to do so and except as may be expressly specified in these Terms of Service, all conditions, warranties, representations and liability, whether express or implied, are disclaimed and excluded as to the Digital Applications and its description, quality, performance or fitness for its purpose. In particular, we do not warrant that the operation or performance of the Digital Applications will be uninterrupted or error-free, except as may be expressly specified in these Terms of Service.
- Blueshak, its affiliates, related bodies corporate, directors, officers, agents, employees, contractors, editors, moderators, consultants, and authors with content on the Digital Applications, and the internet service provider hosting the Digital Applications make no representation and accept no responsibility or liability for:
- error, omission, service interruption, unreliability, lack of timeliness, inaccuracy, misleading information or anything done or not;
- loss of data, theft, delays, non-deliveries, misdeliveries, or service interruptions caused by their negligence, errors or omissions;
- demands, claims, actions, proceedings, settlements, liability, expenses, damages, costs or losses of any type which may be incurred (either actual or contingent) in the event of any loss, damage, destruction of tangible or intangible property (including equipment, computer programs and data or any loss of use of any of them), death, bodily injury, disability, sickness, disease, mental incapacity, insanity, accident or event whether relating to you or third parties, wilful, unlawful or negligent act or omission or breach of the law, violation of any statute, regulation, by-law or ordinance; or
- special, incidental, indirect, consequential, exemplary, or punitive damages of any type (including damages for loss of profits, business interruption, or loss of reputation, data or computer programs);
whether based on contract, equity, statutory law, tort, criminal law, property, bailment, trust, unjust enrichment or any other legal theory, arising out of the delivery, installation, training, use, performance or support of the Digital Applications or if you use, upload, download, or act in reliance on any representation, information or data contained, linked or distributed through the Digital Applications.
- The disclaimers, limitations of liability, exclusions of liability, and recommendations in the preceding paragraphs apply to all content on the Digital Applications and any alerts, newsletters, broadcast emails or other materials associated with the Digital Applications.
Without limitation to other provisions in these Terms of Service, Blueshak may at its discretion refuse to provide the Service, suspend or terminate any access or account you may seek or have for the Digital Applications. Blueshak may do so, for example but without limitation, if it believes you will breach or have breached these Terms of Service or have submitted false, inaccurate, untrue, unauthorised or incomplete information or Content; if a request is made by law enforcement or other government or regulatory authorities; or due to technical difficulties. This includes any access right you may have as the Registered User. Further, these Terms of Service are revocable at any time without notice and with or without cause.
In these Terms of Service, unless the context otherwise requires:
- a reference to any legislation, regulation, proclamation, ordinance, by-law, industrial award or other statutory instrument or rules includes a reference to all legislation, regulations, proclamations, ordinances, by-laws, industrial award and statutory instruments or rules amending, consolidating or replacing it or made or issued under it;
- a reference to these Terms of Service is a reference to these Terms of Service as may be varied, supplemented, novated, or replaced from time to time;
- words in the singular number include the plural and vice versa;
- headings, underlines, indexes and lists of contents are for convenience only and have no effect on interpretation;
- “including” and like terms mean “including but not limited to”;
- a failure to comply, observe or perform an obligation constitutes a breach of an obligation; and
- no rules of construction apply to the disadvantage of one party on the basis that it offered or drafted these Terms of Service or part of it.
- Relationship of Parties
Nothing in these Terms of Service is to be taken to create a fiduciary relationship or a relationship of partnership, agency, employment, trust or joint venture between any of the parties.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Digital Applications will be barred if it is not filed within one (1) year of the cause of action arising.
These Terms of Service are subject both to any agreement between you and Blueshak which expressly supersedes these Terms of Service, and, to any mandatory statutory or common law to the contrary applicable in the state of New South Wales, Australia.
These Terms of Service or any part of them may be varied, modified, amended, added to or substituted only by a document in writing executed by Blueshak.
No provision of these Terms of Service is to be taken to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.
If a provision, or part of it, of these Terms of Service is held invalid, unenforceable or illegal by a judicial authority for any reason, then that provision or part must be read down if possible but if that cannot be done then it must be severed and the balance of these Terms of Service will otherwise remain in full force.
- Governing Law and Jurisdiction
These Terms of Service must be interpreted and governed by the law of the State of New South Wales and the Commonwealth of Australia as applicable. If a dispute arises in relation to them it must be subject to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
Copyright © Blueshak 2017. All rights reserved.
Last revised: 1 December 2016