1. Legally Binding Agreement
1.2. By using or accessing the Website, You agree to be bound by this Agreement. If You do not agree to the terms of this Agreement, please do not use the Website.
1.4. This Agreement is effective from the time You first use the Website and applies until:
(a) it is terminated by either party in accordance with clause 15 below; or
(b) it is expressly revoked by Bid2Fish in writing.
2. Use of the Website
2.1. Subject to Your agreeing to these Terms, We grant You a non-exclusive, non-transferable, worldwide licence to use the Website, provided that:
(a) You will not copy or distribute any part of the Website in any form without Our prior written consent; and
2.2. Failure to comply with these Terms may lead to Your licence being immediately revoked by Bid2Fish, in accordance with clause 15 below.
3. Your Account
3.1. In order to use the Website, You must register an account (“Account”) with Us in which You must enter Your personal details including personally identifying information such as Your name, phone number, address and email address (“Personal Information”).
3.2. You must not register for an Account using a false name, or any other false information.
3.3. You may not register more than one Account in Your name, or for Your own use.
3.4. You must be at least 18 years of age to register an Account.
3.5. You agree that You will keep Your account up to date. If any of Your Personal Information changes after You have registered Your Account, You must update Your Personal Information in Your Account as soon as possible after any changes which affect Your Personal Information.
3.6. Upon registering an Account you will choose a user name and password (“Authorisation Details”) which will allow you to access certain features of Our Website. It is Your responsibility to keep Your Authorisation Details secure, and You must immediately notify Us of any unauthorised use of Your Authorisation Details or Account or any other breach of security. We will not be liable for any loss or damage which arises as a result of Your non-compliance with this clause 3.6.
3.7. For the purposes of this Agreement, any use of the Website which can be attributed to Your Account is deemed to be a use of the Website by You, unless You have previously notified Us in writing of an unauthorised use of Your Authorisation Details or Account or any other breach of security according to clause 3.6 above.
3.8. You may change Your Authorisation Details at any time by updating Your Account. Your user name must not be offensive, rude, misleading, contain any form of advertising, or infringe any intellectual property rights.
3.9. You may not sell, transfer or assign Your Account or profile to any third party unless You have the prior written consent from Us.
3.10. You may not use another user’s account without their express written consent. We may require proof of their consent at any time.
3.11. We reserve the right to terminate Your Account and restrict access to all or part of the Website at any time in Our sole discretion and without notice.
4.1. You must be 18 years of age or have consent of Your parent or guardian and have a valid user Account in order to purchase goods and services listed for sale by other users on the Website (“Products”).
4.2. It is Your responsibility to ensure that you have fully read and understood both the Product description and these Terms and Conditions before purchasing or attempting to purchase a Product.
4.3. Products being sold as ‘Buy Now’ Products (which will be offered for a fixed price) on the Website for a period of time (maximum 30 days) (“Period”) specified by the user listing the Product for sale (“Seller”). Clicking the ‘Place Bid’ button for a ‘Buy Now’ Product will be considered acceptance by the user and execution of a binding contract between the Seller and the user, and the Period will be deemed to be at an end for the purposes of clause 4.8 below.
4.4. Products being sold by ‘Auction’ will be listed on the Website for a Period specified by the Seller (which shall not exceed 30 days), allowing users to bid on the Product. Clicking the ‘Place Bid’ button for an ‘Auction’ Product will be considered an irrevocable offer to purchase the Product for the bid price. At the time the auction closes, a binding contract will be formed between the Seller and the user who has placed the highest bid.
4.5. Once You have submitted a bid on a Product being sold either by ‘Auction’ or ‘Buy Now’, it is irrevocable, and binding upon You.
4.6. Bid2Fish makes no warranties whatsoever that the Website will be fully functional and free of errors, bugs or viruses at all times. Accordingly, You agree that Bid2Fish will not be held liable for any delay, disruption or interruption in your access to the Website or ability to place bids. The decision of the auctioneer is final.
4.7. If You successfully bid on a Product you must arrange for payment to be made in full to the Seller, through PayPal. You are also responsible for paying to the Seller the postage and handling costs as nominated by them in the Product description. Failure to do so may result in the Seller instituting legal proceedings against You to recover the amount owing.
4.8. Where We receive notice from the Seller that You have not paid an outstanding amount within thirty (30) days of the end of the Period (“Notice of Default”), You irrevocably consent to Us disclosing Your Personal Information to the Seller’s nominated debt collection and/or legal representative upon the Seller’s request in order that the Seller may institute proceedings against You to recover the amount owing. In addition, We may, in our sole discretion upon receipt of a Notice of Default from the Seller, cancel Your Account without notice.
4.9. Bid2Fish is not responsible for the Products, and makes no endorsement of any Products. Any defective or undelivered Products are the responsibility of the Seller and, to the extent permitted by the laws of Western Australia and the Australian Consumer Law, Bid2Fish disclaims any responsibility or liability arising from the failure of the Seller to deliver a Product, or the failure to deliver a Product that is suitable, fit for purpose, safe, as advertised, legal, or of a particular quality.
4.10. We make no warranty, guarantee or representation whatsoever concerning the Products, including without limitation, that they will be suitable, fit for purpose, safe, as advertised, adequately described, legal, of a particular quality, or delivered within a certain time.
5.1. You must be 18 years of age or have the consent of a parent or guardian who are over 18 years of age and have a valid user Account in order to list goods and services on the Website (“Listings”) for other users (“Buyers”) to purchase.
5.2. It is Your responsibility to ensure that You have fully read and understood these Terms and Conditions before selling or attempting to sell a Product.
5.3. At the time you create Your Listing, You must:
(a) nominate the time period for Your Listing;
(b) nominate whether Your Listing is to be by way of ‘Auction’ or ‘Buy Now’;
(c) if Your Listing is ‘Buy Now’, nominate a price;
(d) if Your Listing is by way of Auction, nominate a starting price;
(e) nominate which method(s) of payment you will accept;
(f) nominate the method and cost of shipment;
(g) provide detailed descriptions and photographs of the Product being offered; and
(h) agree and consent to Bid2Fish collecting 9% of the sale price plus postage and handling costs (“Total Price”) from PayPal as commission (“Commission”).
5.4. You may cancel Your Listing and remove it from the Website at any time until a binding contract has been executed. Once there is a binding contract between You and the Buyer then You must proceed with the sale according to these Terms. A binding contract will be created when:
(a) if the Listing is ‘Buy Now’, when the Buyer accepts Your offer;
(b) if the Listing is by way of ‘Auction’, when the time period You have nominated ends and a bid has been made; or
(c) if the Listing is by ‘Auction’ and no bids have been made then the Listing is passed in and no contract is formed.
At this point You will receive an email from Bid2Fish notifying You of the contract, Your obligations to the Buyer, and the details You will need to complete the transaction.
5.5. Once You have received a bid on a Product being sold either by ‘Auction’ or ‘Buy Now’, it is irrevocable, and binding upon You.
5.6. The Buyer must pay the Total Price via PayPal, from which Bid2Fish will collect the Commission. Once You have received payment in full, minus the Commission, You must ship the goods as soon as reasonably possible, and in any event, no more than four (4) days from the date that you have received cleared payment from the Buyer. You agree that you are solely responsible for arranging shipping of the product(s).
5.7. If Your Product is sold in accordance with clause 5.5 above, You must arrange for the Product to be promptly shipped (and in any event, no more than four (4) days from the date that you have received cleared payment) to the Buyer, through the method You have nominated. Where you have nominated that the Product is ‘Pick Up Only’, You must arrange an address and time of pick-up with the Buyer at You and the Buyer’s earliest convenience.
5.8. When nominating the method of shipment, You are required to offer a method that ships the Product to the Buyer using the most convenient means available at Your disposal, taking into account the physical properties of Product, the geographical location of the Product and the geographical location of the destination nominated by the Buyer into which the Product is to be shipped.
5.9. You are also responsible for obtaining tracking (where You have nominated a trackable service) and other information which identifies the shipment in order that Bid2Fish or the Buyer may identify the shipment. This is to be notified to the Buyer (“Notice of Shipment”) when the Product is despatched.
5.10. Where We receive notice from the Buyer that they have not received a Notice of Shipment within thirty (30) days of the end of the Period, or We receive notice from the Buyer that they have not received the purchased Product within ninety (90) days of the end of the Period (“Notice of Default”), You irrevocably consent to Us disclosing Your Personal Information to the Buyer’s nominated debt collection and/or legal representative upon the Buyer’s request in order that the Buyer may institute proceedings against You to recover the money paid. In addition, We may, in our sole discretion upon receipt of a Notice of Default from the Buyer, cancel Your Account without notice.
5.11. Buyers will be encouraged to provide feedback concerning Your Listings, and this feedback will be available to prospective Buyers. Bid2Fish may cancel your Account without notice based on this feedback if We deem it necessary.
5.12. Under the Australian Consumer Law, any product being sold must be, without limitation, fit for purpose; of acceptable quality; free from undisclosed defects and matching the description. The Seller is responsible for, and will take all reasonable precautions (including, without limitation, to using suitable packaging to protect, as far as possible, the Product from being damaged in transit) to ensure that the Product being sold will, as far as possible, reach the Buyer in the same condition as described in the Listing.
6. Your Content
6.1. You are responsible for any information, pictures, descriptions, material, content or comments in Your Listings (“Content”) that are submitted through Your Account, whether or not it is posted by You. You warrant that You own the Content or otherwise have the right to grant a licence to Bid2Fish to use, display, distribute, copy or otherwise exploit Your Content.
6.2. By posting Content You grant Us a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable, transferable, royalty free licence to use, display, distribute, copy or otherwise exploit that Content.
6.3. Any Content You provide to us, other than Personal Information which You provide to Us when creating a user Account with Us, or information which We agree is confidential in writing, will be treated as non-confidential and non-proprietary.
6.4. You must not submit any Content that is confidential.
6.5. You must not collect from the Website or use any other user’s Content or Personal Information, including account names or email addresses of other Website users, nor use the communication systems provided by the Website for any commercial solicitation or marketing purposes.
6.6. Unless We expressly state in writing, We do not endorse Your Content or any other user’s Content, and make no representations or warranties regarding them. You will be solely responsible for Your own Content and the consequences of posting it.
6.7. Operators of public search engines may, until such permission is revoked at Our sole discretion, use spiders (or other similar software) to copy materials from the Website, including Your Content, for the sole purpose of creating a publicly available searchable index of materials, excluding archives and caches.
7. Monitoring of Content and Product Listings
7.1. We have no obligation to accept, display, review, monitor or maintain any user’s Content or Listings. You acknowledge that You do not rely on Us to monitor or edit the Website, and that the Website may contain Content which You find offensive. You agree to waive any objections You might have with respect to viewing such Content.
7.2. Notwithstanding clause 7.1, We reserve the right to review or monitor all user Content and Listings to ensure that it complies with the ethical and legal standards set out in these Terms. We reserve the right to delete or remove user Content from Our Website without notice for any reason at any time.
7.3. The Website may contain links to third party products or websites that are not owned or controlled by us. We assume no responsibility for the content, privacy policies, or practices of any third party product and website. You agree to release Us from any and all liability arising from Your use of any third party website or product.
8. Prohibited Use
8.1. You agree to adhere to generally accepted rules of etiquette and standards of behaviour in Your use of the Website, posting of Content and interactions with other users via the Website.
8.2. You agree not to use the Website in any way which is, in Our opinion, abusive, threatening, harassing, bullying, intimidating, or hateful.
8.3. Neither You nor anyone having access to Your Account may post any Content, which is, in Our opinion:
(b) Profane, vulgar, obscene, pornographic, contain nudity, graphic or gratuitous violence, or inciting of hatred or violence.
(c) Discriminatory or vilifying of a person’s race, gender, age, religion or sexual orientation;
(d) Misleading and/or deceptive;
(e) A violation of any third party’s intellectual property rights, including, but not limited to, any trade mark, whether registered or unregistered, design; whether registered or unregistered; copyright; patent; patent application; and any other Content which is subject to intellectual property infringement proceedings anywhere in the world;
(f) Trade secrets, proprietary or confidential information;
(g) Unauthorised advertising; including promotion of software and services that deliver unauthorised and unsolicited advertisements;
(h) Information obtained through illegal means;
(j) Information which identifies or contains Personal Information of a third party without their consent, including, without limitation, to telephone numbers, full names, and email addresses;
(k) Harmful to persons under 18 years of age in any way;
(l) Soliciting Personal Information from or about other users;
(m) Alterations to other user’s Content without their consent;
(n) A violation of, or encouragement for other users to violate, any applicable law, statute, ordinance or regulation of Australia or any state or territory;
(o) A breach of any person’s privacy or publicity rights;
(p) Viruses, or any computer code, file or program designed to, or has the effect of destroying, interrupting, or limiting the functionality of any computer software or hardware, or other telecommunications equipment;
(q) Content which allows usage by others in such a way as to violate this Agreement; or
(r) Disruptive, distasteful or otherwise in bad taste, even if it does not specifically violate any of these Terms.
8.4. Neither You nor anyone having access to Your Account may do, or attempt to do, any of the following:
(b) Use the Website in a fraudulent manner, including without limitation, by offering for sale non-existent, defective or deceptive Products, or by attempting to purchase Products in bad faith or without intention to pay.
(c) Access areas of the Website which you are not authorised to access;
(d) Alter or tamper with any part of the Website except as expressly authorised;
(e) Send unsolicited advertising, email or chain letters to other users;
(f) Mislead others or otherwise misrepresent Your relationship with Us or that We have endorsed Your Content;
(g) Use any automated means or interface, including, without limitation, third party bidding software, bid tracking software, robots, spiders, or similar technological devices or programs not provided by Us to access the Website, or to extract data for whatever reason;
(h) Reverse engineer any aspect of the Website or do anything to discover the source code, or to circumvent measures put in place by Us to prevent or limit access to any area of the Website; or
(i) Send viruses, or any computer code, file or program to the Website which is designed to, or has the effect of, destroying, interrupting or limiting the functionality of any computer software or hardware, or other telecommunications equipment.
8.5. We reserve the right to take any action we deem necessary to detect, identify, prevent, stop or remove any conduct which, in Our opinion, constitutes a prohibited use under this clause 8. This includes, without limitation, the right to immediately and without notice delete or remove any Content, and the right to immediately and without notice terminate any user account.
9.1. Bid2Fish respects Your privacy and agrees to be bound by the Privacy Act 1988 (Cth); and Australian Privacy Principles in respect of all data, information, content and materials submitted by You. We warrant that We will take all reasonable steps to keep Your Personal Information secure and not disclose it to a third party except as permitted or required by law.
9.2. Bid2Fish will not collect personal financial details such as credit card details or bank account details. However, You may need to provide some personal financial details to a third party if you wish to buy or sell Products on the Website. You acknowledge and agree that Bid2Fish is not responsible for the security of Your payments, and will not be held liable for any loss suffered as a result of Your payment arrangements with a third party.
9.3. We will not share your Personal Information with third parties for marketing purposes.
9.5. You agree that We may access, preserve and share Your Personal Information in response to a lawful request (such as a warrant, court order or subpoena) where there is a legal requirement upon Us to do so. This may include legal requests from a jurisdiction outside of Western Australia and Australia where We believe in good faith that the access, preservation and sharing of information is required by the laws of that jurisdiction.
9.6. You agree that We may access, preserve and/or share Your Personal Information in circumstances where We believe in good faith that it is necessary to detect, prevent or deal with fraud, unauthorised transactions or other illegal activity.
9.7. You agree that We may access, preserve and/or share Your Personal Information in accordance with clauses 4.8 and 5.10 above.
9.8. You agree that We reserve the right, but not the obligation, to monitor the Website and Your use of it, including Content submitted by You, to identify Content which violates any of the terms in clauses 7 and 8.
10. Modification or Variation of Terms
10.1. We may change any of these Terms at any time by posting a notice on Our Website, or by email to You. You agree that You will be deemed to have notice of any modifications once We post them on Our Website or notify You by email. You agree that Your continued use of Our Website after such notice will be taken as Your acceptance of the modified Terms. It is Your responsibility to check Our Website periodically for any such modifications. If You do not agree with the modified Terms, You must close Your Account and immediately stop using Our Website.
10.2. Notwithstanding clause 10.1 above, we warrant that where You notify Us of a dispute (“Dispute”) in accordance with clause 15 below, any changes made to the Terms after You have notified Us of the Dispute will not apply to You until the Dispute has been resolved.
10.3. We reserve the right to discontinue the Website or to change the content of the Website in any way and at any time, with or without notice to You, without liability.
11. Intellectual Property
11.1. Subject to clause 11.4 below, all content on the Website, including, without limitation, to the text, graphics, and photos created by and for Us (“Content”) and the trade marks, service marks and logos contained therein (“Marks”) are owned by or licensed to us, subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions. Content on the Website is provided to You ‘as is’ for Your information and personal use only and many not be used for any other purpose whatsoever, without the prior written consent of Us or as expressly provided herein.
11.2. The intellectual property rights in any alteration or modification to the Website made as a result of the Your suggestion, comment, feedback or request will vest immediately in Bid2Fish.
11.3. You agree not to use any of the Content other than expressly permitted under this Agreement. If You download or print a copy of the Content for personal or other non-infringing use, You must retain all copyright and other proprietary legal notices contained on such Content.
11.4. The Website may include some open source software. Any and all open source code or material used by Us will be governed by the relevant open source licences (including, without limitation, to GPL, Creative Commons or equivalent open-source licensing regimes). We warrant that Our use of such material, if any, in developing the Website does not infringe any third party intellectual property or other rights and indemnify You in this respect of the same.
11.5. We do not claim any ownership of any intellectual property rights over the Content which You post through the Website. You warrant that You own the intellectual property, or otherwise are authorised or licensed to use the intellectual property in the Content which You post through the Website and agree to indemnify Us against any liability for any damage, loss, cost, expense or liability incurred arising from any claim, demand, suit, action or proceeding by any person with respect to intellectual property claims over the Content posted by You.
11.6. We have no obligation to monitor or enforce any intellectual property rights that may be associated with Your Content. However, We may remove without notice any Content where We are required by an order which We deem to be validly given by a court of competent jurisdiction. You agree that You will indemnify Us for any damage, loss, cost, expense or liability incurred as a result of such removal.
12.1. Subject to any express indemnities contained herein, We disclaim and do not accept any liability whatsoever for any damage, loss, cost, expense or liability incurred arising from any claim, demand, suit, action or proceeding by any person, however arising and whether such damage, loss, cost, expense or liability is actual or contingent, present or future, quantified or unquantified.
12.2. You agree to indemnify and keep indemnified Us and Our servants, employees or agents (“Those Indemnified”) from and against any damage, loss, cost (including, without limitation, settlement costs), expense (including reasonable legal costs and expenses) or liability incurred by any of Those Indemnified arising from any claim, demand, suit, action or proceeding by any person against Us and/or Those Indemnified, which either directly or indirectly arose from Your use of the Website or the use by those having access to Your Account, and whether such damage, loss, cost, expense or liability is actual or contingent, present or future, quantified or unquantified, including, without limitation, to losses arising from intellectual property infringement claims or defamation claims over the Content posted by Your Account.
12.3. You must pay to Those Indemnified all liabilities, costs and other expenses referred to in clause 12.2 above, whether or not Those Indemnified has already paid or satisfied them.
12.4. If a third party institutes brings any claim, demand, suit, action or proceeding against Us and/or Those Indemnified for any reason whatsoever, including, without limitation, intellectual property infringement claims, defamation claims, or any other legal action at law or in equity which either directly or indirectly arose from Your use of the Website or the use by those having access to Your Account, You agree that We and/or Those Indemnified may, at any time, serve a third party notice on You, after which You must assume the defence of such claim, demand, suit, action or proceeding at Your own expense and will pay all reasonable legal costs incurred by Us and/or Those Indemnified.
12.5. If a third party institutes brings any claim, demand, suit, action or proceeding against Us and/or Those Indemnified for any reason whatsoever, including, without limitation, intellectual property infringement claims, defamation claims, or any other legal action at law or in equity which either directly or indirectly arose from Your use of the Website or the use by those having access to Your Account, You agree to, at Your expense and at Our sole discretion of Us and/or Those Indemnified, render any and all assistance and co-operation in the defence of the matter as reasonably required by Us and/or Those Indemnified, including, without limitation, to the production of documentary documents and other evidence as required.
13. Warranties and Representations
13.1. You warrant that you are over 18 years of age and have the legal capacity to enter into legally binding contracts, or have the consent of a parent or guardian who are over the age of 18 and have the legal capacity to enter into legally binding contracts.
13.2. To the extent permissible by law, We make no representations or warranties whatsoever, whether express or implied, that the Website will be fit for purpose, free of errors or viruses, bug free, secure or compatible with any other software or hardware. We make no warranties as the quality, accuracy, or reliability of any information whatsoever provided on the Website. Further, We make no warranties that the content of the Website will be delivered in a timely or uninterrupted manner.
13.3. You acknowledge and agree that any services or information provided Website is to be provided “as is”, and that You have not relied upon any representations made by Bid2Fish other than in this Agreement.
14.1. We reserve the right to terminate this Agreement with You at any time and for any reason whatsoever by closing Your Account. If We close Your Account, You may not, under any circumstances, register a new Account without the prior written consent and approval from Us.
14.2. You have the right to terminate this Agreement at any time for any reason whatsoever. In the event that You wish to terminate this Agreement, You must contact Us to request that Your Account be closed.
14.3. The effect of terminating this Agreement with Us is that You will no longer have access to Your Account, and You will no longer be authorised to use the Website. However, Your Content will remain on the Website and may be viewed by others, unless We decide, in Our sole discretion, or by order of any court, to delete Your Content.
14.4. The terms and obligations of this Agreement, except the grant of licence in clause 2.1, are to continue in full force and effect notwithstanding termination.
15.1. This Agreement is governed by the law of Western Australia. You agree to submit to the non-exclusive jurisdiction of the courts of Western Australia.
16. Dispute Resolution
16.1. Neither You nor Bid2Fish may start arbitration or court proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute in relation to this Agreement (“Dispute”) unless this clause 16 and its relevant sub-clauses have first been complied with.
16.2. If You or Bid2Fish claims that a Dispute has arisen, then You or Bid2Fish must:
(a) Notify the other party by all reasonable means;
(b) Within seven (7) days after notice is given, both You and Bid2Fish must nominate a representative who is authorised to settle the Dispute on its behalf;
(c) During the fourteen (14) day period after notice is given (or, if You and Bid2Fish agree to a longer period, that longer period), You and/or Your authorised representative must meet with Our authorised representative to resolve the Dispute.
16.3. If the Dispute is not resolved within the time specified in clause 16.2(c) above, the dispute must be referred to mediation in accordance with the Mediation Rules of the Institute of Arbitrators and Mediators Australia (“IAMA”) in force at the time to:
(a) A mediator agreed by both parties, or if the parties do not agree to a mediator, a mediator nominated by IAMA; and
(b) Any Dispute not resolved in accordance with clause 16.3(a) above within thirty (30) days of the appointment of a mediator may then be referred to an appropriate court of competent jurisdiction.
16.4. The costs of resolving the Dispute in accordance with clauses 16.2 and 16.3 above will be borne equally between both parties.
16.5. Nothing in the preceding clause 16 will deny either party the right to seek urgent interlocutory relief (including an injunction) from an appropriate court in relation to any Dispute arising under this Agreement.
17.1. Headings in the Agreement are provided for convenience only, and shall not be used to construe meaning or intent.
17.2. If any part of this Agreement is deemed invalid or unenforceable by a court, that part shall be modified or severed as appropriate to reflect the parties’ intention, and the rest shall remain in full force and effect as if the invalid or unenforceable term had never been included.
17.3. You agree that Bid2Fish will not be held liable for any delay or failure in its performance of its obligations cause by force majeure, including without limitation act of government or state, natural disaster, fire, flood, civil commotion, epidemic, industrial action or organised protests by third parties, war, failure of payment systems, or any event beyond the reasonable control of Bid2Fish (“Force Majeure Event”)
17.4. Any failure or delay in or by Bid2Fish in enforcing any part of these Terms is not to be construed as a waiver of Our rights. Any waiver of Our rights must be given in writing.
17.5. Our rights and obligations under this Agreement may be transferred or assigned at any time.
17.6. Bid2Fish reserves all rights at law and in equity.