Desimarket.com.au ("Desimarket", "we", "our", "us", the "Site") offers you the content, software and services on the condition that you agree to accept and comply with the following terms.
As set out below, by your affirmative act of registering with, accessing, or using the Site, you signify electronically that you agree to the following terms and conditions (the "User Agreement") that govern your use of the Site.
Please read the User Agreement carefully before proceeding to use the Site. If you find yourself unable to agree with any part of the User Agreement, then you must not use the Site. You are only authorised to use the Site (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and the User Agreement. It is important that you note that it is our policy to respond to notices of alleged copyright infringement and to take appropriate action, including the termination of the accounts of infringers.
1.1 Definition of words and phrases.In this Agreement, the following words and expressions shall have the following meanings:
- "Listing" means a business listing.
- "Seller" means a person or organisation offering their services through the Site in accordance with the User Agreement.
- "Services" means material such as text, software, images, audio and video, including links to that material.
- "User" means anyone who accesses or uses the Site, including a Seller and, unless the context requires otherwise, includes you.
2. Contractual issues
2.1 Formation of contract
When your acceptance of the terms of the User Agreement reaches our servers through your affirmative act of registering, accessing or using the Site a binding agreement is made electronically between you and Desimarket.
The User Agreement may be amended by Desimarket at any time by posting the amended terms on this Site. The amended User Agreement shall automatically be effective 7 days after it is initially posted on the Site. You should periodically check to see what amendments have been made to the User Agreement. Your continued use of the Site following the posting of any amendments will mean that you accept these amendments. If you disagree with any posted amendments you may terminate this Agreement in accordance with clause 17.
The User Agreement shall override any contrary terms or conditions published by Desimarket or appearing on the Site.
Any person wishing to use the Site as a Seller must first register as a member. Registration is free. When you register, you must provide complete and accurate registration information about yourself and your organisation. You agree to keep this information up-to-date. Desimarket in its absolute discretion reserves the right to refuse, suspend or cancel the membership of any member without notice.
As part of the registration process, you will provide a password so that you can log on to the Site as a member. You agree to keep your password confidential. You are fully responsible for all use of your account, including the use of your account by others.
3.2 Eligibility for Membership
You may only register as a member if you can form a legally binding contract that is enforceable against you. For example, you must be older than or at least 18 years old. By registering as a member, you warrant that you can form a legally binding contract.
The Site is intended for a general audience. Parents and guardians who permit children (by which we mean people under the age of 18) for whom they are responsible to use the Site should supervise their use of the Site. Parents and guardians will be responsible for their children’s use of the Site and adherence to the User Agreement.
5. Fees and Payments
5.1 Advertising fees
Desimarket does not charge you any fees for using the Site, but can start charging fees at its own discretion without any notice.
5.2 Changes to fees
Desimarket reserves the right to change the fees charged for any of its services at any time. In the event that Desimarket introduces a new service, the fees for that service are effective at the launch of the service, unless otherwise stated.
All fees are inclusive of GST and in Australian dollars.
6. Functions of Desimarket
6.1 The website
Desimarket provides a website that publishes business details. You may need to be registered as a member before you can access some parts of the Site.
Desimarket will provide a channel on this Site for the Users of this Site to send an enquiry to any Seller.
7. User conduct
7.1 General conditions on use
You must ensure that your access to this Site is not illegal or prohibited by laws which apply to you.
7.2 Content rulesYou are prohibited from posting, sending, transmitting, uploading or otherwise publishing through the Site, any Content (including an Listing) that:
- is unlawful;
- interferes with anyone else’s use of the Site;
- is abusive, illegal, indecent, obscene, offensive, discriminatory or threatening in any way;
- contains defamatory, trade libellous, unlawfully threatening or unlawfully harassing statements whether such statements be in the form of words, drawings, photographs, 3-dimensional representations or otherwise;
- encourages anyone to break the law;
- infringes any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy or any other form of property or proprietary rights, whether intellectual or otherwise;
- interferes with the privacy of any other User;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with the Site our systems or network, or surreptitiously intercept or expropriate any data or personal information;
- contains false or misleading statements of fact;
- advocates the doing of a terrorist act;
- advertises a website; or creates a link, directly or indirectly, to any website other than the Site.
- breaches the User Agreement, or any of our policies or rules
7.3 Commercial use
You agree not to on-sell or otherwise on-transmit information obtained from this Site without Desimarket’s written permission.
7.4 Unauthorised access
You cannot attempt to gain unauthorised access to the Site, member accounts, our computer systems or networks, through hacking, password mining or any other means.
8.1 User generated content
The Site allows members to post Content ("User Generated Content"), including through the enquiry system, that can be accessed and viewed by other Users. You irrevocably and unconditionally waive any claim against Desimarket for defamation, libel or whatsoever arising from any User Generated Content.
8.2 Licence over user generated content
We do not claim ownership of any User Generated Content that you may post or communicate through the Site. However, by submitting User Generated Content to the Site you grant us, our affiliates and distributors, a royalty free, perpetual right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content worldwide in any medium.
We have no duty to monitor or pre-screen Content accessible on or through the Site and assume no liability or responsibility arising from the contents of any User Generated Content. However, we reserve the right to monitor or review the services and may, in our sole discretion, delete, modify, refuse to post or remove (without notice) any Content, in whole or in part, for any reason or no reason.
If at any time we choose in our sole discretion to review or monitor the Site, we nonetheless assume no responsibility for the Content, and no obligation to modify or remove any inappropriate Content.
8.4 Removing content
While we reserve the absolute and unfettered right to reject or remove any Content (including User Generated Content) without notice or compensation, we are not responsible for any failure or delay in removing such material.
9. Seller Terms and Conditions
9.1 Restrictions on itemsYou shall not offer any service which:
- you are not legally allowed to provide;
- is in contravention of any law or regulations governing the sale of the same; or
- is not located in Australia.
9.2 Restrictions on ListingsSellers shall not place any Listings that:
- contain any hyperlinks unless permitted by Desimarket;
- contravene the content rules set out in clause 7.2 above.
9.3 Seller warrantiesBy offering a service on this Site, you, as the Seller, are warranting and undertaking to Desimarket and all customers that:
- you do not and will not engage in the forbidden dealings set out in the User Agreement, in particular this clause 9;
- the information supplied by you is correct and accurate in all material respects;
- you will not list or offer or anu service, by paying to Desimarket any Fees, could cause Desimarket to violate any applicable law, statute, ordinance or regulation.
9.4 Right to withdraw ListingDesimarket shall have the absolute and unfettered right to withdraw any Listing without notice or compensation to a Seller or user. Without limiting this right, Desimarket shall have the right to withdraw an Listing if:
- you are found to have breached the User Agreement or your account is suspended by Desimarket pursuant to the terms of this Agreement; or
- if Desimarket is unable for any reason whatsoever to verify or authenticate any information provided by you.
10. Specific Warnings about Listings and other Users
10.1 Other Users’ conduct
Please do not assume that the practices or conduct of other Users that you observe is necessarily in conformance with their obligations under this User Agreement or that you may act similarly. Desimarket does not approve or validate transactions, advice or communications, and you accept sole responsibility for the legality of your actions under laws applying to you.
10.2 Unsafe merchandise
Desimarket does not accept any obligation to protect you from any unsafe merchandise, products or services that may be offered on the Site. Please do not assume that such items offered will be harmless to people or property.
10.3 Users’ warranty obligations
Desimarket is not responsible for ensuring that warranty obligations are honoured.
10.4 No warranty as to accuracy of information
You acknowledge that Desimarket does not control the information provided by other Users which is made available through this Site. Desimarket therefore makes no warranty as to the accuracy of any information provided by any person through the use of the Site.
10.5 No warranty for goods offered
You acknowledge that Desimarket does not see or examine goods or services that are listed and has no control whatsoever on the actual quantity, quality, safety, legality or the fitness for any purpose of the goods or services. Desimarket will not accept or assume any liability whatsoever in respect of the goods or services.
11. Privacy and Security of Information
11.2 Co-operation with law enforcement
We reserve the right to co-operate fully with any law enforcement authority in any jurisdiction in respect of a direction, request and we reserve the right to comply with a law or legal process to disclose the contents of any communication sent through the Site or user data associated with the sender or recipient of any communication.
11.3 Security of information
Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Desimarket does not warrant to you and cannot ensure the security of any information which you transmit to it. Accordingly, any information which you transmit to Desimarket is transmitted at your own risk. Nevertheless, once Desimarket receives your transmission, it will take reasonable steps to preserve the security of such information.
12. Unsolicited communications
The Spam Act 2003 prohibits the sending of Spam. "Spam" is a commercial electronic message sent without the consent of the person who receives the message including via email, SMS, MMS or Instant Messaging. You cannot use the Site or any of our communications tools to transmit, directly or indirectly, Spam or bulk communications that include Spam.
12.2 Address harvesting
You cannot harvest information about our Users for the purposes of sending, or to facilitate the sending, of Spam. You cannot forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communications sent through the Site. You cannot allow others to use your account to violate the terms of this section or any applicable law or regulation that govern unsolicited communications.
12.3 Preventing Spam
We may terminate your account immediately and take other legal action if you or anyone using your account violates the sections of this User Agreement concerning unsolicited communications. We may implement technical measures to prevent Spam from entering, utilising, or remaining within our computer or communications networks.
13.1 Copyright infringement
Copyright in the Site (including text, graphics, logos, icons, audio visual material and software) is owned or licensed by Desimarket. Other than for the purposes of and subject to the conditions described under the Copyright Act 1968 (C’th) and except as expressly authorised by these terms and conditions, you may not in any form or by any means adapt, reproduce, store, distribute, print, display, perform, publish, communicate, broadcast or create derivative works from, any content of the Site; or commercialise any information, products or services obtained from any part of this Site without our prior written permission. You must not circumvent any technical mechanisms that prevent the unauthorised reproduction or distribution of Content on the Site.
13.2 Copyright noticesYou may lodge a notice of claim of copyright or other intellectual property infringement with us by writing to email@example.com
If you reasonably believe that your work has been copied in a way that constitutes copyright infringement on or through the Site, or your intellectual property rights have otherwise been violated, please provide Desimarket with the following information:
- an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyright material or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorised by the copyright agent, its owner, or law;
- a statement that the information in your correspondence to us is accurate and that you are the copyright or intellectual property owner or authorised to act on the copyright or intellectual property owner’s behalf.
14. No Warranties
14.1 No warranties
This Site is provided by Desimarket on an "as-is" basis and the only obligations on Desimarket are set out in this Agreement. Desimarket gives no warranty or condition, express or implied other than those expressly set out in this User Agreement.
To the maximum extent permitted by law, Desimarket specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement of any rights (intellectual or otherwise) in respect of any Item.
No oral or written information or advice given by a representative of Desimarket shall create a warranty.
14.2 No technical warranties
Desimarket does not warrant that the functions contained in this Site and the Services provided will be uninterrupted or error free, that defects will be corrected, or that the Site or its servers are free of viruses or other harmful components. Desimarket does not warrant or make any representations regarding the use or the results of the use of this Site.
Desimarket does not warrant to you that the Services will be available at all times or at any specific times. Desimarket is not responsible in the event an enquiry is not processed due to technical difficulties affecting the Site.
14.4 International laws
We do not warrant that the Site complies with the laws of any country outside of Australia. If you access this site from outside Australia, you do so at your own risk and you accept responsibility for ensuring or confirming compliance with all laws that apply to you as a result of that access or any consequent transactions or dealings.
14.5 Loss or damage
Desimarket does not accept responsibility for any loss or damage, however caused (including through negligence) which you may directly or indirectly suffer in connection with you use of the Site, nor does it accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through the Site.
15. Limitation of Liability and Release
To the maximum extent permitted by law, you agree that Desimarket will be under no liability to you in respect of any loss or damage (including any indirect or special or consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of goods or services supplied pursuant to the Services offered over this Site.
To the maximum extent permitted by law, Desimarket shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort or otherwise or any other damages resulting from your use or inability to use the Service.
15.2 Release of Desimarket
In case of any dispute between Users or any dispute arising from the use of the Site, Desimarket shall be released from all liabilities claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
15.3 Liability limited to re-supplyTo the maximum extent permitted by law, liability for breach by Desimarket of any implied warranty or condition which cannot be excluded in relation to the supply of services is limited, at the option of Desimarket to:
- the re-supply of services; or
- the cost of having the services supplied again.
16.1 General indemnity
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors’ fees, made by any third party due to or arising out of your breach of this User Agreement or the terms and policies it incorporates by reference, or your violation of any law or the rights of a third party.
We reserve the right, at our own expense, but we are not obliged to, assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defences.
16.2 Costs of Desimarket
If Desimarket is required by you or by your order in any litigation in which you are involved whether under subpoena or order of the Court of any competent jurisdiction, including complying with any order for discovery or attending court for giving evidence, you shall bear all costs incurred by Desimarket in connection with the provision of such service, including Desimarket’s costs for taking legal or other professional advice or representation (in all such cases, the costs shall be calculated on an indemnity basis).
This Agreement and/or your access to this site may be terminated by us at any time without cause and without notice. You may terminate this User Agreement by discontinuing your use of the Site, or alternatively, by contacting us at firstname.lastname@example.org. In the event of termination, you are no longer authorised to access the Site, but all licences granted by you and all disclaimers and limitations of liability set out in the User Agreement will continue.
18.1 General Compliance with Laws
You shall comply with all applicable laws, statutes, ordinances and regulations regarding use of the Site and bidding on, listing, purchase and sale of items through the Site.
18.2 System IntegrityYou must not:
- use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any auction being conducted on this Site; or
- take any action which imposes an unreasonable or disproportionately large load on the infrastructure of this Site.
You must take your own precautions to ensure that the process which you employ for accessing the Site does not expose you to risk of viruses or other forms of interference which may damage your computer system.
18.4 Record keeping
Desimarket reserves the right to retain Listings or records of any User Generated Content submitted to the Site, for historical or analytical purposes.
18.5 No Agency
Nothing herein contained shall constitute or create any relationship of agency, partnership, joint venture, employee/employer or franchiser/franchisee between Desimarket and any Users of the Site.
Except as explicitly stated otherwise, any notices shall be given by way of email, and in respect of the User, notices shall be deemed given if sent to the email address provided by the User to Desimarket during registration process or such other address as the User shall specify, or by posting such notices on this Site. Alternatively, Desimarket may give notice to the User by pre-paid ordinary post to the address provided to Desimarket during the registration process. In such case, notice shall be deemed given 5 days after the date of mailing.
Any provision of this Agreement prohibited by or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement. Where, however, the provisions of any such applicable law may be waived, they are hereby waived by the parties here to the full extent permitted by such law to the end that this Agreement shall be valid, binding and enforceable in accordance with its terms.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Desimarket’s failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
18.10 Governing Law and Jurisdiction
This Agreement is subject to the laws of New South Wales, Australia.Last Updated on April 10, 2014