THE FOLLOWING SETS OUT THE TERMS ON WHICH hosbay.com Limited, ABN 91 074 444 018 ("hosbay") OFFERS YOU ACCESS TO THE hosbay.com.au ("Site") AND ITS SERVICES. BY TICKING THE "I have read and agree to hosbay's User Agreement" CHECKBOX, YOU ACCEPT THE TERMS AND CONDITIONS BELOW.
Before proceeding to use our services, you should read the User Agreement carefully. If you find yourself unable to agree to them, then you must not use the Site. If, however, you agree to them unconditionally you will be given the opportunity to click the "I accept" checkbox during the registration process, and you will then be able to use the Site to which this User Agreement applies.
This Agreement may be amended by hosbay at any time by posting the amended terms on this Site. The amended terms shall automatically be effective 7 days after they are initially posted on the Site. As such, you should periodically check to see what amendments have been made to this Agreement. Your continued use of the Site or the services provided on the Site following the posting of any amendments will mean that you accept these amendments.
Effective 18 August 2017, hosbay has the right to assign its rights and benefits you have granted to hosbay under this agreement, in favour of any party at hosbay's sole discretion.
Members who signed up to an Hosbay account prior to 18 August 2017 acknowledge and agree that on and from 18 August 2017, the rights and benefits granted by you to Hosbay were expressly assigned in favour of Hosbay Ltd ACN 620287612, who effective from 18 August 2017 will be defined as 'hosbay' for the purposes of this Agreement.
This agreement was last updated on 25th July 2017
1.1 Definition of words and phrases.
In this Agreement, the following words and expressions shall have the following meanings:
"Auction Only" means an Item offered for sale using an auction style selling format.
"Auction with BuyNow Price" means an item offered for sale using an auction style selling format with an option to purchase immediately at a fixed price set by the Seller.
"Bidder" means a person who bids for the Item in an auction pursuant to this Agreement.
"Buyer" means a Bidder who has made the highest bid in an auction or a person who otherwise places an order with a Seller for an Item pursuant to this Agreement.
"BuyNow" means a listing feature that lets a buyer purchase an Item immediately for a fixed price set by the Seller.
"BuyNow Only" means an Item offered for sale using a fixed price selling format that can only be purchased at the fixed price set by the Seller.
"Checkout" means a restricted area of the Site which provides a facility for a Buyer to inform a Seller of their transaction details.
"Item" means a good or service offered for sale at the Site pursuant to this Agreement.
"Rating" means ratings and comments to be posted by a User in relation to a transaction, involving a Seller, that has occurred using the Site.
"Score" means a total of points a User has received due to other Users leaving them Ratings.
"Seller" means a person offering an Item for sale at the Site pursuant to this Agreement.
"Services" means the online shopping and auction platform and all other services offered by hosbay at the Site.
"User" means as a User of the Site, including but not limited to its members and Buyers and Sellers, and unless the context requires otherwise includes you.
2. Formation of Contract
2.1 In order that a legally binding contract can be formed between hosbay and a member, the member is required to accept this User Agreement unconditionally by clicking the "I have read and accept hosbay's User Agreement" checkbox during the registration process.
2.2 hosbay in its absolute discretion reserves the right to refuse, suspend or cancel the membership of any member without notice.
2.3 This User Agreement shall override any contrary terms or conditions published by hosbay or appearing on this Site pertaining to members.
2.4 In consideration of hosbay agreeing to your use of the Site, you agree to comply with this User Agreement.
Any person wishing to use the Services as a Seller, Bidder or Buyer must first register as a member. Registration is free.
3.2 Registration of Membership.
You may become a member by supplying all the requisite information to hosbay and you are required to accept this User Agreement unconditionally by clicking the "I have read and accept hosbay's User Agreement" checkbox during the registration process.
4. Eligibility for Membership
4.1 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 18 years old. By registering as a member, you warrant that you can form a legally binding contract. Further, your hosbay account, User ID, Password, Scores and Ratings, may not be transferred or sold to another party.
4.2 When registering, ensure your User ID is not abusive, illegal, indecent, obscene, offensive, racist or threatening in any way and not in breach of any of hosbay policies or rules.
4.3 When creating a User Id, you may not use a term that could be confused with someone elseï¿½s trademark or brand (eg. NikeShoes), unless you have authority from the trademark owner.
4.4 No email / URL in User ID policy
You may not register a User ID or create a qshop name that is or represents an email address or a web site address (URL).
5. Fees and Payments
5.1 Once you have set up an account with hosbay, you may transfer funds into that pre-paid account in order to keep the account in credit. The balance of the account will be updated periodically in accordance with your activity on the Site. Outstanding balances will be invoiced to you periodically and may be paid either by credit card or other agreed method.
hosbay does not charge you for joining as a member, nor for bidding on Items. hosbay charges the Seller a listing fee for certain items. Listing fees are non-refundable.
5.2 hosbay reserves the right to change the fees charged for any of its services at any time. In the event that hosbay introduces a new service, the fees for that service are effective at the launch of the service, unless otherwise stated.
5.3 All fees are inclusive of GST and in Australian dollars, unless otherwise stated in this User Agreement.
5.4 Before listing an Item, you should review hosbay's fees to ensure you are aware of the fees you will incur.
5.5 Credits on your Account are not transferable between members. Transfers between accounts belonging to you will incur a transfer fee of $2.
5.6 No Refund Policy (25/07/2017)
5.6.1 Credits on your Account are non-refundable, non-transferable and not redeemable for cash.
5.6.2 An administration fee of $5 is payable where a member wishes to close their account and withdraw the balance of credits made on or before the 25th July 2017.
5.7 You agree to pay any outstanding fees within 7 days from the end of each calendar month.
5.7.1 You also agree that if you fail to do so, you will be liable for collection costs of a third party collection agency should one be required (25th July 2017).
5.8 Credit in your pre-paid account
5.8.1 Credit remains active for 180 days after your last account activity. Should your pre-paid account be in credit and inactive for 180 days any credit remaining in your pre-paid account will become inactive.
6. Functions of hosbay
6.1 hosbay is a venue for members to offer, sell or buy Items.
hosbay is not an auctioneer.
6.2 No warranty for goods offered.
You acknowledge that hosbay does not see or examine Items that are listed for sale and has no control whatsoever on the actual quantity, quality, safety, legality or the fitness for any purpose of the Item. To the full extent permitted by law, hosbay will not accept or assume any liability whatsoever in respect of the Item.
6.3 No warranty of completion of sale.
You acknowledge that hosbay makes no representation as to the ownership of title in Items or as to the ability of either a Buyer or Seller to complete a transaction. Further, hosbay does not warrant to any party that any Seller or Buyer will complete the sale or purchase of any Item. All persons are urged to be aware of the risk of dealing with foreign nationals, underage persons or people acting under false pretense or persons having no contracting capacities.
6.4 No warranty of identity of persons.
You acknowledge that hosbay cannot and does not confirm the identity of each User. You are therefore advised to be careful in dealing with other Users to avoid fraud. You are encouraged to communicate directly with such proper or competent authority or source for the purpose of evaluating the person with whom you are dealing. hosbay takes no responsibility for any action or omission of any User.
6.5 No warranty as to accuracy of information.
You acknowledge that hosbay does not control the information provided by other Users which is made available through this Site. hosbay therefore makes no warranty as to the accuracy of any information provided by any person through the use of the Services.
6.6 To the full extent permitted by law, hosbay 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.
6.7 Release of hosbay.
In case of any dispute between Users or any dispute arising from the use of the Services, hosbay shall (to the full extent permitted by law) 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.
6.8 To the extent that any liability of hosbay in connection with the supply of goods or services cannot be excluded, then, to the full extent permitted by law, that liability is limited, at hosbay' option, to (i) replacing or repairing the relevant goods, (ii) supplying goods equivalent to the relevant goods, (iii) supplying the relevant services again or (iv) paying the cost of such replacement, repairs or supply.
6.9 Costs of hosbay.
If hosbay 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 hosbay in connection with the provision of such service, including hosbay's costs for taking legal or other professional advice or representation (in all such cases, the costs shall be calculated on an indemnity basis).
6.10 For the purposes of this clause, the term hosbay will mean hosbay, its officers, employees, contractors and agents, whether individually or collectively.
6.11 This clause 6 will survive the expiration or termination of this User Agreement.
7. Provisions relating to Auction and BuyNow
7.1 Your obligations as a Buyer.
(a) If you, as a Bidder, have been notified that your bid has been successful at the end of the auction, or, in respect of a BuyNow sale you issue a purchase order with a fixed price, you must complete the transaction in the manner specified unless you have a good reason to suspect that the Seller is not who they purport to be. By making a bid or other offer to purchase, you warrant and represent to the Seller that you have the legal right to enter into and complete the transaction.
(b) The Buyer shall contact the Seller at the end of the auction or upon other sale with a view to making arrangements for the completion of the transaction.
(c) You must pay to the Seller the total due once the total due is confirmed by the Seller.
7.2 Your obligations as a Seller.
If you are a Seller, you must ensure that the Item being offered for sale is accurately described and available in sufficient quantity. By listing an Item, you are making an irrevocable offer to sell at or above your start price to the Buyer unless:
i. you have good reason to suspect that the Buyer is not who they purport to be; or
ii. the Buyer fails to meet the terms of payment as stipulated by you in your listing.
7.3 Bids are not retractable.
Bids are not retractable by the Bidder except in the following exceptional circumstances:
i. with the seller's agreement before the selling period ends; or
ii. a significant drop in the ratings of the Seller occurs after a bid has been placed as a result of adverse comments from other Bidders or Buyers conducted with the same Seller.
7.4 Forbidden biddings.
You shall not manipulate the price of the Item by using a secondary account, an alias or third party to bid for the Item.
7.5 Return and exchange policies.
The Item sold may or may not be returned depending on your agreement with the Seller. All requests for return of the Item shall be made directly to the Seller concerned and hosbay shall not be responsible for processing such requests.
7.6 Method of delivery and payment.
The method of delivery is based on the arrangements set by the Seller. The Item may be collected by the Buyer or be delivered to the Buyer by Australian Post, courier or other method specified by the Seller. Please refer to the Description and Postage Instructions of the Item. The method of payment is based on the mutual agreement between the Seller and the Buyer and depending on the method of delivery.
8. Provisions relating to Sellers
8.1 Forbidden Dealings.
8.1.1 In respect of an auction, you shall not:
(a) email or contact by any other means the Bidder in an open auction being run by a different Seller, offering similar or the same Items at any price level (bid siphoning);
(b) manipulate the price of the Item offered by you, either by using a secondary account, an alias or third party or by self-bidding, also referred to as shill-bidding.
8.1.2 You shall not offer for sale any Item:
(a) which you are not legally able to sell, or which you cannot sell to the Buyer free from all charges liens and encumbrances;
(b) which is in contravention of any law or regulations governing the sale of the same;
(c) the get-up, production and sale of which 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;
(d) which contains defamatory, trade libelous, unlawfully threatening or unlawfully harassing statements whether such statements be in the form of words, drawings, photographs, 3-dimensional representations or otherwise;
(e) which is obscene or contains child pornography.
8.1.3 By offering the Item for sale on this Site, you, as Seller, are warranting and undertaking to hosbay and all Buyers that:
(a) you do not and will not engage in the forbidden dealings set out in Clause 8.1 above;
(b) the information supplied by you is correct and accurate in all material respects and shall not (1) contain defamatory, trade libelous, unlawfully threatening or unlawfully harassing statements; (2) contain obscene material or child pornography; (3) contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (4) contain any hyperlinks unless permitted by hosbay;
(c) the Items offered by you are not within the Prohibited Item List;
(d) you will not list or offer or sell any Item which, by paying to hosbay any Fees, could cause hosbay to violate any applicable law, statute, ordinance or regulation.
8.1.4 In using the Site, you must not create any link directly or indirectly to any website other than the Site:
(a) that offers goods or services that are prohibited under this Agreement;
(b) where that other website lists the exact Item that you propose to sell;
(c) where that other website contains an offer to sell identical items to your Item that is listed for auction or BuyNow on the hosbay Site, but are priced lower that your Item's start price or BuyNow price;
(d) that you do not otherwise have a right to link to or include.
8.1.5 Selling outside hosbay:
(a) You may not use hosbay to conduct transactions outside hosbay.
(b) You may not include in your listing description, suggestions to conduct transactions outside hosbay.
(c) If you offer a potential buyer another item it must be listed and not finalised outside hosbay.
9. Ratings, Messages and Forum Boards
9.1 Ratings, Messages and Forum Boards.
9.1.1 hosbay will provide a channel on this Site for the Users of this Site to leave a Rating and comment on the trade conduct of any Seller, Bidder or Buyer with whom they have had dealings.
9.1.2 hosbay also provides a communication channel which enables Users to send messages to other Users through hosbay.
9.2 Use of the Rating system, Message system.
(a) You shall use the Rating system for leaving genuine and bona fide ratings and comments on the trade conduct of any Seller, Bidder or Buyer with whom you have had dealings. You shall not take any actions which may undermine the integrity of the Rating system, such as: leaving a Rating for yourself using secondary User ID's or third parties; leaving Ratings for other Users using secondary accounts or third parties (Rating bombing); or leaving Ratings if a User fails to perform some action that is outside the scope of the auction or purchase (Rating extortion).
(b) When using the Rating system, message system or forum boards, you are prohibited from any posting, sending, transmitting, uploading or otherwise publishing through hosbay, any materials that (i) interfere with anyone else's use of this Site; (ii) are abusive, illegal, indecent, obscene, offensive, racist or threatening in any way; (iii) encourage anyone to trade outside of hosbay; (iv) encourage anyone to break the law; (v) violate anyone's copyright or other intellectual or other property right; (vi) interfere with the privacy of any other use; (vii) contain a virus or other harmful component; (viii) contain false or misleading statements of fact or descriptions of the origin of the material or the communication; (ix) advertise a website; or (x) breach any of hosbay policies or rules.
9.3 hosbay's Disclaimer in respect of Ratings, Messages, Content and other Users supplied materials.
hosbay does not and is under no obligation to monitor or review Ratings, messages and discussions, postings, transmissions and the messages posted or sent through or on the Site and assumes no liability or responsibility arising from the contents of any such communications or for any defamation, error, inaccuracy, libel, obscenity or profanity contained in any such communication. You hereby irrevocably and unconditionally waive any claim against hosbay for defamation, libel or whatsoever arising out of any such communication. hosbay may reject or remove your material or conversations that are illegal, indecent, obscene or offensive, or that violates the terms of this Agreement in any way or request you to make suitable amendments in order to comply with the terms herein, and hosbay reserves the right to claim damages and or apply for other legal remedies in relation thereto.
10. Rights of hosbay
10.1 hosbay has the right to suspend or terminate your account without any compensation if you have:
(a) breached the User Agreement set out in this agreement; or
(b) (by conviction, settlement, insurance or escrow investigation, or otherwise) engaged in fraudulent activity in connection with this Site.
10.2 Rights as regards materials supplied by a User.
hosbay shall have the absolute and unfettered right to reject or remove any information or materials supplied by you without notice or compensation. Without derogating from this right, hosbay shall have the right to reject or remove any information or materials supplied if hosbay shall consider (without having to assign any reason therefore) that the information or material, if published or continued to be published, would cause hosbay to incur any liability to third parties or would cause hosbay to be in breach of any law or regulations of any competent jurisdiction or rights of third parties.
10.3 Right to withdraw Item.
hosbay shall have the absolute and unfettered right to withdraw any Item without notice or compensation to a Seller or prospective Buyer. Without limiting this right, hosbay shall have the right to withdraw an Item if:
(a) the Item is within hosbay's Prohibited Items List. The Prohibited Items List may be updated by hosbay from time to time;
(b) you are found to have breached the User Agreement set out in this Agreement or your account is suspended by hosbay pursuant to the terms of this Agreement;
(c) if hosbay is unable for any reason whatsoever to verify or authenticate any information provided by you; or
(d) the Item is in breach of hosbay's Listing Policy. The Listing Policy may be updated by hosbay from time to time.
10.4 Account termination.
Upon termination of the account, hosbay shall, upon your written request, return any amounts owing to you in your pre-paid hosbay account, subject to hosbay's retention of a $5.00 administration fee.
11. Specific Warnings
11.1 You must ensure that your access to this Site is not illegal or prohibited by laws which apply to you.
11.2 You must take your own precautions to ensure that the process which you employ for accessing the Site does not expose you risk of viruses or other forms of interference which may damage your computer system.
11.3 hosbay does not warrant to you that the Services will be available at all times or at any specific times.
11.4 hosbay is not responsible in the event a transaction is not processed due to technical difficulties affecting the hosbay system.
11.5 hosbay does not undertake to retain listings or to retain records of specific transactions.
11.6 hosbay is not responsible for ensuring that warranty obligations are honoured.
11.7 There is no contract of sale between hosbay and you, whether you are the Buyer or Seller. In the event that a bid is accepted by a Seller, a contract of sale will be formed directly between the Buyer and the Seller. hosbay does not act as agent for either party.
11. Restricted Use
Unless hosbay agree otherwise in writing, you are provided with access to the Site only for your personal use. Without limiting the foregoing, you may not without hosbay's written permission on-sell or otherwise on-transmit information obtained from this Site.
12. Security of Information
Unfortunately, no data transmission over the internet can be guaranteed as totally secure. hosbay 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 hosbay is transmitted at your own risk. Nevertheless, once hosbay receives your transmission, it will take reasonable steps to preserve the security of such information.
13. No Warranties
13.1 This Site is provided by hosbay on an "as-is" basis and the only obligations on hosbay are set out in this Agreement.
13.2 To the full extent permitted by law:
(a) hosbay will be under no liability to you in respect of any loss of 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 or in respect of a failure or omission on the part of a Seller to complete a sale;
(b) hosbay gives no warranty or condition, express or implied other than those expressly set out herein;
(c) hosbay 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 this Site or its servers are free of viruses or other harmful components;
(d) hosbay does not warrant or make any representations regarding the use or the results of the use of this Site; and
(e) hosbay expressly excludes all guarantees, terms, representations and warranties that would otherwise arise or be implied by law in respect of any Item.
13.3 The payment gateway and the ancillary payment processing facilities are provided to you for convenience only and hosbay gives no warranty, expressed or implied, in connection with such facilities. To the full extent permitted by law, hosbay will in no event be liable for any loss, damages, costs or expenses suffered or incurred by you arising out of or as a result of any error and/or mistake and/or misstatement in debiting or crediting your credit card account, as well as any malfunction, failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, loss or corruption of data, or any other non-performance related to the payment gateway facilities.
Copyright in this Site (including text, graphics, logos, icons, audiovisual material and software) is owned or licensed by hosbay. 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, 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 hosbay's prior written permission.
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 Agreement or the terms and policies it incorporates by reference, or your violation of any law or the rights of a third party.
17.1 System Integrity.
You must not:
(a) 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;
(b) take any action which imposes an unreasonable or disproportionately large load on the infrastructure of this Site;
(c) disclose or share your password to any third parties or use his/her password for any unauthorized purpose.
17.2 General Compliance with Laws.
You shall comply with all applicable laws, statutes, ordinances and regulations regarding his/her use of the Services and any bidding on, listing, purchase and sale of the Item herein.
17.3 No Agency.
Nothing herein contained shall constitute or create any relationship of agency, partnership, joint venture, employee/employer or franchiser/franchisee between hosbay and any Seller, Bidder or Buyer or other Users of this Site or the Services.
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 hosbay during registration process or such other address as the User shall specify, or by posting such notices on this Site. Alternatively, hosbay may give notice to the User by pre-paid ordinary post to the address provided to hosbay 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 hereto 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.
17.6 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out of these User Agreement and the remaining provisions shall remain in force. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. hosbay'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.
17.7 Please do not assume that the practices or conduct of other Users that you observe is necessarily in conformance with their obligations under this Agreement or that you may act similarly. hosbay 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.
17.8 hosbay does not accept any obligation to protect you from any unsafe merchandise, products or services that may be offered on hosbay. Please do not assume that such items offered will be harmless to people or property.
18. Governing Law and Jurisdiction
18.1 This Agreement is subject to the laws of Victoria, Australia.
This Agreement and/or your access to this site may be terminated by us at any time without notice. Where this agreement is terminated, those clauses capable of surviving such termination shall do so.