Xoobie's terms and conditions
1. TERMS AND CONDITIONS
Welcome to Xoobie, Australia’s online marketplace. It is the intention of these terms and conditions to help keep Xoobie a safe online marketplace for all .
1.1 Acceptance of terms and conditions: The terms and conditions are the terms on which Xoobie Pty Ltd offers you access to our Services and our Website. By registering as a member of Xoobie you accept these terms and conditions. If you do not accept these terms and conditions, you must refrain from using our Services.
1.2 Amendment of terms and conditions: These terms and conditions may be amended in whole or in part by Xoobie from time to time. Amendments will be effective immediately upon posting of the amended terms and conditions on this Website. You are responsible for ensuring you are familiar with the latest terms and conditions. Your continued use of the Services represents your agreement to be bound by the terms and conditions as amended.
These terms and conditions were last updated 13 December 2007.
1.3 Terminology: In these terms and conditions, the following expressions have the meanings set out:
'item', 'items' means goods or property that may be bought or sold through the auction or any selling process offered as part of our Services;
'member' means a registered member of Xoobie;
'Services' means any one or more of the services offered by Xoobie Pty Ltd from time to time, including online auctions, Buy Now, and any other service that Xoobie may offer;
'we', 'us' and 'our' are a reference to Xoobie Pty Ltd;
'you' and 'your' are a reference to you;
'Website' means any Xoobie website through which the services are offered;
'listing' means a listing on the Website through which you offer, negotiate, buy, sell or advertise any item whether by auction or Buy Now;
'seller' includes any person placing a listing. 2. SPECIFIC WARNINGS
2.1 The services: Xoobie provides a venue to introduce members who want to buy and sell items. Xoobie does not take any part in the sale of items other than by providing our Website as a venue for members. If a bid is accepted by a seller, a contract of sale will be formed between the buyer and the seller directly. We do not act as an agent for either party and do not participate in any sale or transaction between you and other members. other than assisting with payment services such as PayPal. As a result, even though some of the services are being referred to as an auction, Xoobie is not an auctioneer (whether under the Auctioneers Act 1971 or otherwise).
2.2 At your own risk: Transactions and all other contact between you and other members are conducted entirely at your own risk. You agree that Xoobie takes no responsibility or liability for any misconduct of any of its members including, without limitation, members that have registered under false pretences or who attempt to defraud you. Xoobie gives no undertakings, representations, or warranties in relation to items sold or listed on the Website, including: about ownership of any item; as to the content, safety, description, worthiness, quality, or legality of the items that are listed on the Website; as to the accuracy or truth of listings; that any item will meet your requirements or expectations; or about the ability of members to complete a transaction, including credit card transactions.
2.3 Disclaimer: You expressly understand and agree that:
a. your use of the services is at your sole risk. The Website and services are provided on an "as is" and "as available" basis. To the maximum extent permitted by law and without limiting clause 2.2, Xoobie disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement; b. Xoobie does not warrant that i) the services provided will be uninterrupted, timely, secure, or error free, or ii) that any information (including feedback) provided on the Website is error-free or reliable; c. no advice or information that is obtained by you from Xoobie or anyone else shall create any warranty by Xoobie that is not expressly stated in the terms and conditions; and d. responsibility for the content of advertisements appearing on this Website (including hyperlinks to advertisers' own websites) rests solely with the advertisers. The placement of such advertisements on the Website does not constitute Xoobie's recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement. e. while Xoobie may facilitate payment for some items, Xoobie is in no way involved in the transaction itself, and responsibility for any refund rests with the seller. f. while Xoobie has systems in place to reduce the risk of credit card fraud, Xoobie is not responsible for protecting members from credit card fraud. Xoobie’s fraud protection systems may from time to time block legitimate credit card payments. In these cases payment will need to be made by other means.
2.4 Liability: You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Xoobie to you or any other person under or in connection with these terms and conditions, or in connection with the services, this Website, another Member's acts or omissions, or your use of or inability to use, the services or this Website, is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Xoobie’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
2.5 Indemnity: You agree to release, indemnify and keep indemnified us from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by us to any person arising out of or in connection with your failure to comply with these terms and conditions, your failure to complete a transaction, your use of Xoobie's message boards, your sale or attempted sale of an item prohibited under clause 4.2(d), or arising out of any content or item you submit, post, transmit, or make available through the Services.
2.6 Breach: Without limiting any other rights and remedies available to Xoobie, Xoobie may limit your activities on the Website, remove your bids or listings, warn other members of your actions, issue a warning to you, suspend or terminate your membership, or refuse to provide our Services to you if you breach these terms and conditions or where Xoobie considers it appropriate.
3. BECOMING A MEMBER
3.1 Becoming a Member: Becoming a member is free. You may only register as a member if you are resident in Australia and can form a legally binding contract that is enforceable against you. For example, you must be 18 years old. By registering as a member, you warrant that you can form a legally binding contract.
3.2 Accurate Information: You warrant that you have provided complete, accurate and current personal information when registering as a member. You must maintain and update your personal information held by Xoobie to ensure it is kept current at all times. Xoobie may phone or mail you to verify these details. You must not register as a member under multiple identities or personas (whether false or not). However, at Xoobie's discretion, you may create a business membership in addition to your personal membership.
3.3 Termination of membership: Xoobie reserves the right to decline to register or to terminate your membership without entering into further discussions with you. Without limiting the foregoing, Xoobie may terminate your membership if a serious complaint or multiple complaints are received about you from other members, if you breach these terms and conditions, if you impersonate another member, or if we, at our sole discretion, deem your behaviour to be unacceptable. Members who have registered under multiple aliases will have all of their aliases disabled.
3.4 Security of your login information: You are responsible for keeping your login information, including your email address and password, secret and secure. Without limiting the foregoing, you agree: not to permit any other person to use your user name or membership; and not to disclose, or provide to any other person, your password, email address, date of birth or any other information in connection with your membership that may allow them to gain access to your membership.
3.5 Emails and newsletters: Xoobie will send you emails relating to your membership, transactions and other activities on the Website, and for promoting and marketing other Xoobie products and services to you. Xoobie may also send regular electronic newsletters to members. Newsletters will contain clear and obvious instructions for how you can unsubscribe from the mailing list.
4. GENERAL RULES
4.1 General All listings, bids or communications made through Xoobie shall be made in good faith. You must not damage, interfere with or harm the Website or Services, or any network, or system underlying or connected to them, or attempt to do so. You may not use a robot, spider, scraper or other automated means to access the Website or information featured on it for any purpose. You shall not list your email address, website address, phone number or any other contact detail within the description of listings, listing comments and/or questions, in your member profile, or in the Xoobie message boards. Not withstanding 4.1d above, you may enter your appropriate contact details in the relevant contact detail fields of those listing categories which specifically provide for those details. You must list auctions and classifieds in Australian dollars and include GST in the price. All tax obligations are the responsibility of the seller and/or the buyer (as the parties determine). You must not complete a transaction outside of the Xoobie process or otherwise seek to avoid Xoobie's success fees. Attempts by you to avoid fees, including through multiple memberships, premature auction withdrawal, or otherwise, may result in Xoobie suspending or terminating your membership at the discretion of Xoobie. You must not use the Services or the Website to promote items for sale outside the Services. You are responsible for any actions taken through your membership. Xoobie memberships are not transferable and therefore can not be sold, leased, lent or traded.
4.2 Your obligations as a seller
Sellers must be located in Australia. Sellers outside of Australia are not permitted to sell on Xoobie. Australian sellers can only accept payments to domestic Australian bank accounts. Sellers should not send items to an address that is outside Australia. You will only enter listings that are accurate, current, complete, and include all relevant information about the terms of sale, payment terms, shipping methods and who bears the cost of shipment. You must list an item in one category only which must be the most appropriate category for your item. You will only place listings for items that exist and are to be sold. You will not list items that you are not legally entitled to sell or that are not in your possession. You must not list anything that is illegal, offensive (including anything of a defamatory, pornographic, or racially or ethnically objectionable nature), stolen, or unsafe, anything which infringes copyright or other intellectual property rights, items which have been illegally imported or which would require illegal import or export in order to complete the transaction, or any item of which the sale is prohibited by, or violates any, law. You are responsible for ensuring that any listing by you does not breach this clause 4.2(d). You agree that Xoobie may disclose your personal information, including your name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) if we consider that you are in breach of this clause 4.2(d) at any time. When you list an item for auction on Xoobie, you should do so with the intention of selling this item through the site. Therefore you should not advertise your item through another forum. If you remove a listing for an auction you will incur a non-refundable withdrawal fee, regardless of the reason. Your listing may only contain a URL for a website that contains further information on the item you have listed. This website must not offer any items for sale, or contain contact details. You must not use Xoobie listings to promote a business or website other than one for sale in your listing. You must not use the Services or the Website to sell items that are of a speculative nature including, but not limited to, pyramid, surf-for-free, multi level marketing or similar schemes. You must not manipulate prices through ghost, shill bidding or assuming multiple roles in a single transaction. For auctions, you must sell to the highest bidder if the reserve price is met. You must only sell to a bidder who is not the highest bidder after reasonable attempts have been made to contact the winning bidder without success. You will only list adult rated content (clothing, videos, magazines, DVD's, etc) in the Adult category. Adult content listed in non-adult categories will be removed or moved to the Adult category. Listings are not pre-screened for content. Xoobie reserves the right to remove any listing that it deems unsuitable or in breach of the terms and conditions. You agree to your email address being supplied to the buyer when your auction closes. You must promptly forward the listed item to the successful buyer on completion of the transaction. You must not charge unreasonable amounts for shipping and packaging costs. The sale of films, videos, DVDs, VCDs and laser disks is covered by the Commonwealth Classification (Publications, Films and Computer Games) Act 1995. It is an offence to sell any of these items if they have not been examined and classified by the appropriate agencies. The offence carries a maximum penalty of $5,000 per publication. If any publication was sold, and deemed to be objectionable and where the seller knew the publication was objectionable, there are also imprisonment penalties. Therefore, when listing these items for sale, you must include within your listing, the Australian classification rating and all information on the classification label. The selling of any firearms whatsoever or ammunition pertaining to firearms, whether for sporting purposes or otherwise, is completely prohibited on.Xoobie. To help maintain quality listings, Xoobie reserves the right to suspend sellers who list over 500 auctions per week where the sell through rate of these auctions averages less than 10% over four weeks. Sell through rate is calculated as the auctions sold divided by auctions listed, not including classifieds.
4.3 Your obligations as a buyer You must be located in Australia to buy on Xoobie. People outside of Australia are not permitted to purchase items on Xoobie. Your bids are not retractable once the auction has closed. You must only place a bid if you intend to buy the relevant item at the bid price entered. Reasonable allowances should be made for postage where applicable. If you are notified that your bid has been successful, you must complete the transaction in the manner specified. By making a bid, you warrant and represent that you have the legal right to enter into and complete the transaction. You must make full and prompt payment for any item you buy. You agree to your username and the amount of your bid being publicly shown on the Xoobie Website. You also agree to your email address being supplied to the seller when you win an auction. If your bid is successful and you do not pay for the item, you will receive a warning from Xoobie if the seller complains about you. After 3 such complaints, Xoobie may suspend or terminate your membership. You must only access the Adult categories if you are at least 18 years old. You may not bid on an auction that has been listed by a family member, flat mate, friend or any member that is personally known to you, in order to raise the price of that auction. If you use the BuyNow facility, you agree to: attempt to resolve the issue with the Seller first, and to inform Xoobie and co-operate fully and reasonably to resolve any problem transaction before requesting a chargeback from your card issuer or bank. pay for the return of goods (with original packaging) should you seek a refund from the Seller in the event that they are not as described or arrive damaged.
4.4 Feedback
a. Feedback you provide on other members must not contain offensive, defamatory or inappropriate language. Xoobie reserves the sole right to determine what is considered offensive, defamatory or inappropriate language. b. You may only give member feedback that relates to a specific transaction. You must not post feedback on a transaction that does not relate to that specific transaction. c. You must not post feedback about yourself or include any contact details or personal information in your feedback. d. Feedback is provided for the sole purpose of facilitating trading between members on the Xoobie Website. You must not market or export any feedback to any venue other than the Xoobie Website. Linking to your Xoobie feedback from other buying and selling websites will be considered a breach of our terms and conditions.
5. FEES AND ACCOUNTS
5.1 Xoobie Listing Fees and Success Fees a. Xoobie charges fees for the use of the Website as a venue. b. Xoobie's current fees are listed on our fees page. c. Any non-commission listing fees are charged at the time of listing and are not refundable. Xoobie may (at our sole discretion) refund a commission or success fee charged on completed auctions if the sale is not successfully completed, provided that a member follows our defined refund process. Xoobie will only issue refunds in the form of credit to the Xoobie account of the member. Cash refunds will not be issued. Credits on accounts with Xoobie are not transferable between members. d. Xoobie reserves the right to change the fees charged for any of our Services at any time. In the event that we introduce a new service, the fees for that service are effective at the launch of the service, unless otherwise stated. e. If you are an Australian resident, then all fees are inclusive of GST and in Australian dollars unless otherwise stated. If you are not a Australian resident, then all fees are, unless otherwise stated, in Australian dollars and do not include GST. Unless otherwise stated in these terms and conditions, no interest or other financial charges will be applied to Xoobie account balances. f. Xoobie reserves the right to investigate queries regarding the refund of success fees with bidders, other members, Internet Service Providers, and any other relevant party. g. Before listing an item, you should review Xoobie's fees to ensure you are aware of the fees that you will incur. h. You must pay the fees immediately upon demand by Xoobie.
5.2 Xoobie Accounts
a. You must settle negative account balances within 14 days. b. Xoobie reserves the right to take action against you to recover outstanding debts. You are liable for all expenses (including legal fees) that Xoobie incurs when collecting that debt. c. If your membership is terminated you must still settle your account balance. Promotional giveaways of Xoobie credits, bonus credits, or any free credits gifted to the member on registration will not be refunded. d. If you have not logged on to the Website for a period of 24 months (two years), any unused balance on your account is forfeited to Xoobie and your membership will be suspended.
6. GENERAL PROVISIONS
6.1 System Integrity: Xoobie will use its reasonable endeavors to ensure the availability of the Website and Services, subject to any downtime required for maintenance. However, Xoobie takes no responsibility for any system unavailability, or for any loss that is incurred as a result of Website or Services being unavailable. Furthermore, Xoobie assumes no responsibility for the corruption of any data or information held by Xoobie.
6.2 Resolution of disputes: As Xoobie is not a party to any sale or transaction between you and another member, you agree not to involve, or attempt to involve, Xoobie in any dispute or in the resolution of disputes that arise between you and another member as a result of the Services provided.
6.4 Force Majeure: Without prejudice to clause 2.3(a), Xoobie has no liability for any lack of performance, unavailability or failure of the Services or the Website, or for any failure of Xoobie to comply with these terms and conditions where the same arises from any cause reasonably beyond the control of Xoobie.
6.5 No Waiver: If we do not exercise or enforce any right available to us under these terms and conditions, it does not constitute a waiver of those rights.
6.6 Partial Invalidity: If any provision of these terms and conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.
6.7 Governing Law: These terms and conditions are governed by the laws of Australia. You submit to the non-exclusive jurisdiction of the Courts of Australia.
6.8 Intellectual Property Rights: Xoobie (and its licensors or suppliers, as the case may be) owns 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. a. You may not without our prior written permission, in any form or by any means: i. Adapt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of this Website; or ii. Commercialise, copy, or on-sell any information, or items obtained from any part of this Website. 6.9 Entire agreement: These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these terms and conditions.
6.10 Privacy: Xoobie collects personal information about you through your use of the Services and the Website, including:
You agree that Xoobie may use this personal information to assist us to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other Xoobie products and Services to you, and for any other use that you authorise. You agree to your membership's trading history being published in your feedback.
We will not sell or allow third parties to access your personal information without your consent. We release account and other personal information only when we believe release is appropriate to comply with law; facilitate court proceedings; enforce or apply our terms and conditions; or protect the rights, property, or safety of Xoobie Pty Ltd, our users, or others. Please review our privacy policy.
|
