Dragon Bay Group Pty Ltd (ACN 638 026 623) (Dragon Bay) holds an exclusive, Australia-wide licence to the application known as “Feng Xiang Jie Long”. Dragon Bay also owns a payment gateway application that is accessible within and supports the payment functionality of the Feng Xiang Jie Long application, known as “Dragon Bay Payment”. These two applications are collectively referred to in these terms of use (Terms of Use) as the Application.
These Terms of Use set out the terms and conditions on which you, as a person located in Australia, may access and use the Application (BuyersCircle). Other terms and conditions contained in the privacy policy (Privacy Policy), elsewhere on our Application and as otherwise advised to you via electronic communication such as email also form part of our agreement with you.
Please note that other terms and conditions may apply to your use of the Application, including any terms and conditions that may exist between you and the Licensor, the owner and operator of the application. It is your responsibility to be fully informed of and comply with those other terms and conditions, in addition to all terms and conditions that form part of your agreement with us.
Please carefully read these Terms of Use including the disclaimer in clause 13. By using the Application, you agree to be bound by these Terms of Use and our Privacy Policy. If you do not agree to be bound by these Terms of Use or our Privacy Policy, you must not use the Application. These Terms of Use may be updated by us from time to time, and the updated Terms of Use will apply from the date they are published on the Application unless otherwise stated. Each time you use our Application you should revisit these Terms of Use.
1. Definitions & Interpretation
1.1 Definitions
In these Terms of Use unless inconsistent with the context or subject matter the following terms have the corresponding meanings:
(a) Account: a User’s online account to use our Services, which may be a specific account created to use the Application.
(b) Additional Terms: any terms specified by the E-Tailer for a Product as shown on the Application or as otherwise advised by the E-Tailer in writing (which may include Mandatory Terms).
(c) Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
(d) Buyer: any User who uses the Application to search and place an order for Products.
(e) Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise published by you on the Application.
(f) Fees: any fees or charges that Dragon Bay charges E-Tailers in accordance with these Terms of Use.
(g) GST: has the meaning provided in the GST Act.
(h) GST Act: A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(i) Intellectual Property: includes but is not limited to copyright, trademarks, patents, processes, know-how, designs and other like rights whether recorded in writing or otherwise and includes any of the following:
(i) the Application;
(ii) information or data, source codes and other information technology relating to or connected with the Application;
(iii) books and records relating to or connected with the Application;
(iv) advices (including without limitation verbal advices) relating to or connected with the Application;
(v) marketing information relating to or connected with the Application;
(vi) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Application;
(vii) licences, certificates and authorisations relating to or connected with the Application;
(viii) agreements relating to or connected with the Application;
(ix) ideas or models relating to or connected with the Application, even if not reduced to material form; and
(x) all present and future copyright, trade marks, patents, processes, know-how, designs and other like rights which are developed by us or acquired by us.
(j) Licensor: Hangzhou Aoyunhui Technology Co. Ltd. Business Registration Number: 91330106MA2H0G9C5X, being a company incorporated in China.
(k) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(l) Mandatory Terms: any terms and conditions that Dragon Bay requires an E-Tailer to comply with in the sale of Products, as notified by Dragon Bay to the E-Tailer from time to time.
(m) our, us and we: Dragon Bay.
(n) Products: any products made available for sale by an E-Tailer on the Application from time to time.
(o) Purchase Price: the purchase price for a Product and any associated costs, such as delivery fees, as published by the E-tailer on the Application or as otherwise agreed by the E-Tailer and the Buyer.
(p) Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth), our officers, directors, agents, and employees, and the Licensor.
(q) Services: any services that we provide to you, including the Application.
(r) State: New South Wales.
(s) E- Tailer: any User who markets and/or sells their Products on the Application.
(t) User: any person located in Australia who uses the Application, and includes an E-Tailer and Buyer.(w) you and your: a User, Buyer or E-Tailer (as the case may be).
1.2 Interpretation
In these Terms of Use, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(d) headings are for reference purposes only and must not be used in interpretation;
(e) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(f) a reference to a statute includes all regulations and subordinate legislation and amendments;
(g) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
(h) a reference to a monetary amount is a reference to an Australian currency amount unless otherwise stated;
(i) an obligation of two or more parties binds them jointly and each of them severally;
(j) an obligation incurred in favour of two or more parties is enforceable by them severally;
(k) references to time are to local time in the capital city of the State;
(l) where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
(m) a reference to a business day means any day on which trading banks are open for business in the capital city of the State;
(n) if any time period specified in this document expires on a day which is not a business day, the period shall expire at the end of the next business day; and
(o) a reference to a month means a calendar month.
2. Using the Application
2.1 By accessing, downloading, installing, or using the Application, you as the user are deemed to be:
(a) legal person or entity under the Laws of Australia who can register and create a user account on a mobile application (“the App”) therefore establish a legally binding relationship with the Company.
(b) fully understand and agree to be bound by the Terms and Conditions set out in this Agreement.
(c) fully understand the Company acts merely as a middle agent to link you as the consumer User to the E-Tailers (“the sellers”) and other suppliers via the Application to order items to be delivered to your address. Dragon Bay is an independent party to the E-Tailers and does not provide any warranty as to the quality or suitability of the products offered in the App listings.
(d) fully understand the Company does not provide actual delivery service, which means all delivery services are conducted by independent couriers arranged by our E-Tailers. The Company only facilitates the delivery service via the App so that your order can be delivered to your address. Please refer to clause 5 for more information about the delivery service.
(e) relying on your own judgement of the choice of any products. Your such decision is not made based on the information or advertisement presented on the App.
2.2 The Application provides an online marketplace that allows E- Tailers to offerProducts for sale on the Application to other Users who may wish to purchase those Products.
2.3 Users of the Application who make Products available for sale are referred to as E-Tailers and the specific provisions contained in clause 4 apply to them.
2.4 Users who browse and place orders for Products are referred to as Buyers and the specific provisions contained in clause 5 apply to them.
2.5 Although we operate the Application, the contract for sale of any Products is directly between the E-Tailer and the Buyer and the E-Tailer and the Buyer are solely responsible for fulfilment of their obligations under that contract. We merely act as a middle agent that connects E-Tailer and Buyers.
2.6 Our Services are available only to, and may only be used by, persons over the age of 18 or entities who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services. In any event that a contract is not binding, we may, at our discretion, terminate the contract without further notice.
2.7 Subject to you complying with these Terms of Use, we agree to provide our Services to you on the terms contained in these Terms of Use.
3. Your Account
3.1 To access some of the features of the App, you must register an account with us (“Account”). To register for an Account, you may register and set up an Account with your mobile telephone number and other personal information. You should not create an Account if you are under 13 years old.
3.2 To place Orders using an Account you must be at least 18 years old, and have the capacity to enter into a legally binding agreement with us. If you are under 18, you may only place an Order with the involvement of a parent or guardian – we do not sell products for purchase by children.
3.3 You must not use another person’s Account without our, and/or the other person’s express permission.
3.3 You are solely responsible for the activity that occurs on your Account (including Orders placed using your Account), and you must keep your Account password secure. We are not responsible for any unauthorised activity on your Account, including if you fail to keep your Account login information secure.
3.4 Please contact us immediately if you believe your Account has been compromised or misused in any way. We may refer fraudulent or abusive or illegal activity to the relevant authorities.
3.5 If we enable you to connect to the Application with a third-party service (e.g.Facebook), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our Privacy Policy.
4. E-Tailers (Sellers)
4.1 General
If you are listing and selling Products on the Application then the terms of this clause will apply to you.
4.2 Applying to sell Products
E-Tailers may be required to submit an application to us to join the Application and list Products for sale. We may in our sole discretion accept or reject any application to register as an E-Tailer, without any obligation to provide reasons.
4.3 Listing & Selling Products on the Application
(a) Once you have been registered and accepted as an E-Tailer on the Application, you will be able to list your Products for sale on the Application.
(b) Without limitation to the other terms contained here, if you submit an application to us and/or list a Product for sale on the Application, you represent and warrant at all times that:
(i) the listing and sale of the Product is not in breach of these Terms of Use (ii) all information provided about the Products is true and correct in all respects, and you have not engaged in misleading or fraudulent conduct; and
(iii) you have the legal right, title, licence or interest to sell the Products on the Application and that the sale of the Products on the Application will not infringe any third party’s intellectual property rights or cause any liability for us, or any other User.
(c) You acknowledge and agree that by offering a Product for sale on the Application, you are offering to enter into a legally binding contract with a Buyer. Once a Buyer purchases a Product and pays for that Product, you acknowledge and agree that you have entered into a legally binding contract to sell the Product to the Buyer for the agreed Purchase Price.
(d) You may include Additional Terms on our Application in respect of your Product, such as the delivery and return terms that apply to the Product. Once the Buyer has paid the Purchase Price for the Product, you agree to deliver the Product to the Buyer in accordance with the delivery terms stated in respect of the Product or as otherwise agreed with the Buyer and otherwise comply with any other Additional Terms.
(e) We reserve the right to reject, revise, or discontinue any Product listing at any time and for any reason, and redirect or delete any URL used in connection with the Product at any time and without notice.
(f) The Purchase Price for Products must be inclusive of GST. For example, if the purchase price is being set at AUD $10.00, the actual selling price will be AUD $9.00 and the GST will be AUD $1.00. Please refer to clause 15 for more GST information.
(g) Dragon Bay respects the intellectual property rights of others. The sale of fake products, replicas or counterfeits and the creation of any content that violates any intellectual property rights is illegal and prohibited on our Application. Counterfeit goods will be taken down and the accounts selling counterfeit goods will be subject to a range of enforcement actions, including restrictions and permanent suspensions to the accounts.
(h) The Company is not responsible for the Goods supplied by the E-Tailer and has no responsibility or liability for acts or omissions by any E-Tailer. We have no responsibility or liability for acts or omissions by any E-Tailers other than as stated in this Agreement.
(i) The E-Tailers, and at times, BuyersCirclewarrants that the products are safe to use in accordance with Australian standards.
4.4 Payment Process
(a) The Buyer will pay the agreed Purchase Price for any Products that they purchased on the App.
(b) We will then transfer the Purchase Price to you (less any Fees, if any) for the relevant Product by way of the payment method approved by us (such as through WeChat or Stripe) at the time specified on our Application. You are solely responsible for any currency conversion fees, bank fees or other administrative charges incurred by us or you in respect of this transaction.
4.5 Fees
(a) In consideration of us providing the Services to you and enabling you to list your Products on the Application, we may implement one or more Fees from time to time in respect of various matters, such as sales of Products through the Application.
(b) In the event that we implement or modify Fees, we will notify you of this either through the Application,or by way of another form of electronic communication such as email (Fee Notification).
(c) Any Fees are payable on and from the date indicated in the Fee Notification (however Fees will not apply retrospectively).
(d) By continuing to use the Application you are deemed to have agreed to pay the Fees notified to you in a Fee Notification. If you do not agree to the Fees, then you must not continue to use the Application. The Fee Notification will indicate when and how the Fees must be paid. Without limitation, you authorise us to set-off any Fees payable by you to us from the Purchase Price paid by a Buyer for a Product without notice.
(e) Fees are subject to change at any time.
4.6 Mandatory Terms
(a) We may implement Mandatory Terms from time to time in respect of various matters, such as delivery and refunds. Mandatory Terms are terms on which E-Tailers must sell their Products to Buyers.
(b) In the event that we implement or modify Mandatory Terms, we will notify you of this either through the Application, through electronic communication such as email (Mandatory Terms Notification).
(c) By continuing to use the Application you are deemed to have agreed to supply your Products on the terms set out in the Mandatory Terms Notification and you must publish these Mandatory Terms on the relevant Product pages or otherwise publish them in the manner notified by us. If you do not agree to supply Products on the Mandatory Terms, then you must not continue to use the Application.
4.7 Refunds
(a) We have no liability or obligation to you if a Buyer cancels an order for a Product any time after you have accepted or if they fail to pay the Purchase Price.
(b) If the refund must go through our nominated payment system. If the refund is not made through our nominated payment system, you are responsible for notifying us that a refund has been made through the Application or such other notification method reasonably required by us.
(c) We are not obliged to refund any Fees paid to us which we deducted from the Purchase Price that you are refunding, however we may do so at our discretion. If the discretion has not been exercised by us, then you will be responsible for refunding the entire Purchase Price to the Buyer (if you agree or are required to do so).
(d) In the event that we are required by law to provide a Buyer with a refund of any amount collected by us in respect of a Product supplied by you, you must immediately on request pay us the amount that we are required to refund. In that case we may also at our discretion and without notice withhold any other amounts that we owe to you and set off any amounts that you owe to us against those amounts withheld.
4.8 Arrangements and Communications with other Users
(a) You acknowledge that any arrangement or communication entered into with another User is solely at your own risk and you are solely responsible for the supply of any Product. We are not a party to any arrangement entered into (except to the extent that we are your agent in collecting the Purchase Price). We have no control, influence or involvement in such arrangements.
(b) We do not guarantee the completeness, accuracy or reliability of any information provided by Buyers. You must make your own investigations in this regard.
4.9 Legal rights of E-Tailers
Your legal rights in connection with the sale of the Products are against the Buyer and not us.
5. Buyers
5.1 General
Buyers can access the Application to view Products and place orders to purchase those Products from E-Tailers. If you are buying Products on the Application then the terms of this clause will apply to you.
5.2 Placing an order for Products on the Application
(a) Buyers acknowledge that any order for a Product placed on the Application is subject to availability.
(b) Any order placed by a Buyer may be subject to Additional Terms. By placing an order, you agree to those Additional Terms. Terms relating to delivery and returns may be contained in the Additional Terms. If they are not, you should confirm these terms with the E-Tailer and at times, BuyersCircle, before purchasing the Product.
5.3 Price and Payment
(a) The Purchase Price for Products is as displayed on the Application at the time the Buyer places an order. Prices and other details are subject to change without notice.
(b) The Buyer agrees to pay the Purchase Price for a Product at the time the order is placed. Payment must be made to us via a method accepted by the Application. We collect the Purchase Price on behalf of the E-Tailer as the E-Tailer’s agent.
(c) The Buyer agrees that they will not make payment directly to the E-Tailer(s).(e) All payments made to us as the E-Tailer’s agent through the Application will be held by us solely for the purpose of facilitating the sale between the E-Tailer and the Buyer and solely for the benefit of the E-Tailer (although we reserve the right to receive a Fee from the E-Tailer which will be paid from that amount received by us).
(f) You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
(g) Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card). You agree to pay such fees at the same time as paying the Purchase Price, The Purchase Price must be paid in cleared funds.
(h) The Purchase Price includes GST.
5.4 Refunds
(a) When you purchase an item from one or more E-Tailers, we charge your credit card and pass on payment, less a commission, to your E-Tailer. For you to secure a refund equivalent to your initial purchase price and delivery costs, your E-Tailer should assist their customer to request a refund via the Application.
(b) If a refund is necessary, such as when your E-Tailer or BuyersCircle is out of stock and can’t dispatch, or when you return an item, as the customer, it’s your responsibility to request the refund to BuyersCircle and if possible, inform your e-Tailer.
(c) We have no liability or obligation to you if an E-Tailer cancels your order for a Product, or if the Product is faulty, or they fail to supply a Product to you or comply with any Additional Terms. This includes any obligation to provide you with a refund. If you have rights in respect of your order under Applicable Laws, then your rights (including in respect of refunds) are against the E-Tailer and not us.
5.5 Arrangements and Communications with other Users
(a) An E-Tailer is a third party that is unrelated to us. When you place an order for a Product, you are entering into a contract directly with the E-Tailer. We are not a party to any contract between you and an E-Tailer and are not responsible for ensuring that an E-Tailer fulfills any order for a Product or complies with these Terms of Use, any Applicable Laws or Additional Terms.
(b) We do not supply, provide, manage or control the E-Tailers on the Application or their Products and are not responsible for their marketing, preparation, delivery, supply, packaging or otherwise. The E-Tailer is solely responsible for supplying the Products to you. If you have any enquiries about Products you must contact the relevant E-Tailer. We take no responsibility for the quality of Products supplied on the Application.
(c) The information about E-Tailer and their Products contained on the Application is provided to us by E-Tailer and other third parties and we cannot, and do not, guarantee the completeness, accuracy, currency or reliability of such information. You must make your own investigations as to the accuracy of the information.
6. Delivery
6.1 We do not provide Delivery service directly and only act as an agent on behalf of the E-Tailer to conclude your order from the App and to manage your experience via the order process. Once you place an order, your Items will be delivered to you by our Delivery Partner. Our Delivery Partners are third party contractors who provide delivery services between our E-Tailers and the Buyers. Some of our E-Tailers may operate independently for delivery service by having their own Delivery means for their supply.
7. Returns
7.1 Change of Minds Returns
(a) If the buyer is requesting to return an item for “change of mind” (or “remorse”) reasons, the seller’s and at times, BuyersCircle’s return policy as stated in the application will apply – including which party is responsible for return postage costs. BuyersCircle may exercise their discretion to accept or deny a remorse return request if it falls outside their return policy.
(b) You are required to notify BuyersCircle and the E-Tailer of change of mind items using the Application or via email within 30 days from receipt of delivery.
7.2 Faulty Returns
(a) If an item purchased from an E-Tailer is faulty, any related return and refund rights that the E-Tailer offers you will apply in addition to, and do not limit, other rights and remedies you may have under law, including under the Australian Consumer Law.
(b) You are required to notify BuyersCircle and the E-Tailer of faulty items using the Application or via email within 14 days from receipt of delivery.
(c) Faulty items do not have to be returned in their original packaging, but must be packaged appropriately to avoid damage during the return shipping process.
7.3 Non-Returnable Items
(a) Certain items (such as hazardous materials and food) are not returnable to the E-Tailers. In some circumstances, these items may be eligible for a refund or a replacement (for example, if you receive the wrong item or if the item is faulty). Please refer to the non-returnable items below,
(i) Items classified as hazardous materials or use flammable liquids or gases;
(ii) Any product missing the serial number or universal product code (UPC);
(iii) Downloadable software products;
(iv) Online subscriptions after they have been accessed;
(v) Gift cards (except as required by law);
(vi) Some jewellery orders;
(vii) Some health and personal care items (for example, where packaging, seal or hygiene strip have been broken or tampered with);
(viii) Food and grocery products; and
(ix) Open software.
7.4 Customer Damage
(a) E-Tailer and Dragon Bay are not required to accept any returned item that, as a result of customer negligence, misuse or tampering, is damaged, missing parts or in unsellable condition.
7.5 To ensure the safe return of the products, please package your item with care. Items valued over AUD $35 should be returned to the E-Tailer using the lowest cost trackable – signed-for, delivery service. If the order is valued over AUD $100, we recommend you use a signature required and insurance covered delivery service.
7.6 (i) Buyers and E-Tailers agree to comply with the return policy and acknowledge that we, Dragon Bay, may automate some aspects of the returns process.
(ii) You also acknowledge and agree that we may exercise our reasonable discretion to make a final decision in any case – including an item returned for remorse reasons – where a buyer and seller cannot come to agreement.
(iii) If we resolve a case in the buyer’s favour, the E-Tailer will be required to issue a full refund to the buyer (including original postage costs), either by reversal of the transaction processed by Dragon Bay Pty Ltd for managed payments transactions, by automatic reversal of the transaction from the seller’s PayPal account, or by reimbursing Dragon Bay in cases where we refunded the buyer directly.
(iv) If we resolve a case in the E-Tailers favour, the Buyer will be required to pay the agreed purchase price to the E-Tailer (including return postage costs) via original payment method.
7.7 Buyers can request a return or report that they didn’t receive an item from their Purchase history in the Application.
8. Currency & Payments
8.1 Prices shown on the Application are shown in AUD, unless otherwise stated.
8.2 In the event that payment of the Purchase Price is made via WeChat, the Buyer will make payment in RMB however the E-Tailer will be paid in AUD. In the event that payment of the Purchase Price is made via a method other than WeChat, the Buyer will make payment in AUD and the E-Tailer will be paid in AUD.
8.3 We make no representations or warranties as to the currency conversion rates that will apply to any payments made and we are not responsible for any Loss suffered by a party in the event of unfavourable currency conversion rate, including where our delay in processing a payment results in an unfavourable currency conversion rate applying to the payment.
8.4 We may use third-party payment providers (Payment Providers) to collect payment of the Purchase Price and our Fees and to process payments to Buyers and E-Tailer. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policy of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting or making any payment made in connection with these Terms of Use.
8.5 You are solely responsible for any payment details (such as bank account and account identification information) that you provide to us. We will not be liable for any Loss that you suffer in connection with the incorrect payment details being provided to us.
8.6 All amounts paid to us under these Terms of Use are non-refundable to the extent permitted by law.
9. Prohibited use
9.1 You represent, warrant and covenant that when accessing or using the Service or Application, you will not:
(a) violate the Terms of Use;
(b) act for any fraudulent or unlawful purpose;
(c) provide inaccurate, false, misleading or deceptive information;
(d) infringe any third party’s rights (including intellectual or other proprietary rights);
(e) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity;
(f) damages the credibility of the Application or us or that creates liability for us;
(g) distribute any virus, trojan horse, worms or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Application;
(h) distribute or post spam or harass another User;
(i) use any robot, spider, scraper, data mining tools, data gathering an extraction tools or other automated means to access our Services; or
(j) violate any Applicable Law (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices).
(k) reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purposes, any portion of, use of, or access to our Application;
(l) modify, adapt, translate, reverse engineer, decompile or disassemble any portion of our Application;
(m) frame or mirror any part of the Application without our express prior written consent;
(n) infringe any copyright, design right or Intellectual Property Right on the Application.
10. Non-Circumvention
You acknowledge and agree that you will not contact another User directly outside of the Application after becoming aware of such User following use of the Application for the purpose of directly or indirectly circumventing Fees. You are strictly prohibited from directly or indirectly attempting to circumvent payment of our Fees in any way.
11. Access and Termination
11.1 We reserve the right, at any time and without prior notice to remove or disable:
(a) access to this Application or any part of it for any reason; and
(b) any Account or User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms of Use or otherwise harmful to the Application or the interests of other Users, and we will not be liable to you for any Loss that you incur in the event that we do this.
(c) if the E-Tailer is in breach of any of the terms and conditions of the Application and that the party fails to remedy the breach. Please refer to our service agreement for more information [ insert link here ]
11.2 The termination of your access to the Application is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us.
12. Intellectual Property Rights and data
12.1 You acknowledge and agree that:
(a) we, or the Licensor (as applicable), own all right, title and interest in and to the Application and the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms of Use;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display the Intellectual Property except with our or the Licensor’s prior written permission and when doing so you must adequately acknowledge us and, in the case of websites or applications, include a link from your website or application to the Application;
(c) you grant to us a worldwide, sub-licensable perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content (such as information in respect of Products) in order to provide our Services;
(d) you warrant that any Content you provide us with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
(e) we are not liable or responsible for any Loss that you may incur in submitting Content to us or for our use of your Content in accordance with the licence granted; and
(f) you must not falsely express or imply a relationship between you and us.
13. Disclaimer
13.1 You acknowledge and agree that your use of our Services (including any arrangement or communication entered into with another User) is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Application (including Products being sold) for any purpose.
13.2 You acknowledge and agree that:
(a) Dragon Bay does not take any steps to confirm the identity of Users. Dragon Bay cannot and does not confirm nor warrant or guarantee each User’s purported identity, licences or location. We encourage you to use the Application to conduct your own enquiries to vet other Users to your satisfaction;
(b) Users are a third party unrelated to us. We are not a party to any agreement arising or entered into between Users and Users are solely responsible for the supply of Products on the terms and conditions as may be agreed between the Users. Your legal rights in connection with the supply of the Products are against the other Users and not us;
(c) we do not supply, provide, manage or control the Users on the Application or their Products and are not responsible for their advertising (including Contents), preparation, supply, packaging or otherwise. If you have any enquiries about Products you must contact the relevant User. We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
(i) any Products (including without limitation that such Products will be suitable to your specific requirements);
(ii) any information provided by Users to each other; or
(iii) the ability of Users to undertake their respective obligations.
Because of the foregoing, in the event that you have a dispute with one or more Users, you release and hold us (and our Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes;
(d) no information provided by us constitutes legal or financial advice, particularly in respect of your obligations to comply with any Applicable Laws;
(e) we do not guarantee that the Application or any Content will be error-free or uninterrupted, or that your use of the Application will provide any specific results;
(f) we reserve the right to share any information provided by you to us, and to store such information in accordance with our Privacy Policy; and
(g) we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not.
13.3 This disclaimer applies to the fullest extent permitted by law, and shall survive any termination or expiration of these Terms of Use or your use of this Application.
14. Exclusion and Limitation of Liability
14.1 Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms of Use to the maximum extent permitted by law.
14.2 Without limitation to clause 14.1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
(a) your use or inability to use this Application in any way;
(b) your reliance on the Application;
(c) any Products;
(d) any Content; or
(e) any action taken on your Account.
14.3 Subject to the other terms of this clause, our maximum aggregate liability to you in any 12-month period for any Loss or damage or injury arising out of or in connection with these Terms of Use, including any breach by us of these Terms of Use, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual Fees paid by you under these Terms of Use to us in the 3-month period preceding the matter or event giving rise to the claim (if any).
14.4 We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services.
14.5 For the limitation of liability by Dragon Bay to the E-Tailers, please refer to clause 28 of the service agreement.
14.6 Nothing in these Terms of Use is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
14.7 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
14.8 Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms of Use, you must:
(a) use your best endeavours to recover that sum before making the claim;
(b) keep us informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
14.9 This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Use or your use of our Services.
14.10 In this clause “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
15. Indemnity
15.1 You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
(a) your use or inability to use this Application in any way;
(b) any Products purchased or sold by you;
(c) any User’s breach or negligent performance or failure or delay to provide any Products;
(d) any Loss, damage or claim made against us by a third party:
(a) your use or inability to use this Application in any way;
(b) any Products purchased or sold by you;
(c) any User’s breach or negligent performance or failure or delay to provide any Products
(d) any Loss, damage or claim made against us by a third party:
(i) for actual or alleged infringement of a third party’s intellectual property rights arising out of the supply or use of the Application by you;
(ii) for death, personal injury, illness or damage to property resulting from Products sold or purchased by you; or
(iii) to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms of Use by you;
(e) any fine or penalty imposed for a breach of any Applicable Law in connection with the supply of the Products by you;
(f) any breach of any of these Terms of Use or any act or omission by you; or
(g) any action taken on your Account.
15.2 Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counterclaim.
15.3 If a payment due under this clause 15 is subject to tax (whether by way of direct assessment or withholding at its source), we will be entitled to receive from you such amounts as will ensure that the net receipt, after tax, to us in respect of the payment is the same as it would have been where the payment not subject to tax.
15.4 Except where expressly stated to the contrary in these Terms of Use, the rights of a party under this clause15 are in addition to any other rights available to that party whether those rights are provided for under these Terms of Use or by law.
15.5 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause 15.
15.6 The indemnities in this clause 15:
(a) are continuing obligations on you, independent from your other obligations under these Terms of Use and survive termination or expiry of these Terms of Use; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
16. Confidentiality
16.1 The User(s) undertake that they shall at all times keep confidential the terms and contents of this Agreement and any confidential information concerning the other Party (“Confidential Information”). Each user shall not, without the prior written consent of the other user, use or disclose the Confidential Information to any person save and except for the proper performance and discharge of its obligations and responsibilities under this Agreement or where such disclosure is required by law or by the rules, regulations, directives or orders of the regulatory body having jurisdiction over the disclosing User or required for any legal proceedings or process or if such disclosure is made by a User to its auditors or other professional advisers or required to be made pursuant to the rules of a stock exchange.
17. Reviews
17.1 Users may be given an opportunity to review other Users whom they have purchased or sold Products from/to on the Application.
17.2 Reviews must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, reviews containing defamatory, libellous, abusive offensive or obscene language.
17.3 We reserve the right not to publish reviews, to amend the content of reviews at any time and to remove reviews from the Application without notice at our discretion.
17.4 We are in no way responsible or liable for the information that is contained in any reviews published and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review. We are under no obligation to remove any review published by or about you, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews on the Application.
18. GST
18.1 Words used in this clause that have a defined meaning in the GST Law (as defined in the in the GST Act) have the same meaning as in the GST Law unless the context indicates otherwise.
18.2 Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.
18.3 To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
19. Miscellaneous
19.1 Accessing information from the Application is at your own risk and you will be responsible for compliance with the laws within your jurisdiction.
19.2 These Terms of Use are governed by the laws of the State, and the parties submit to the jurisdiction of the Courts of State and relevant federal/Commonwealth courts competent to hear appearances from them.
19.3 These Terms of Use shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
19.4 If a clause of these Terms of Use is void or unenforceable it must be severed from these Terms of Use or read down to the extent necessary and the clauses that are not void or unenforceable shall be unaffected by the severance.
19.5 We may assign our rights and obligations under these Terms of Use upon giving you written notice. You must not assign your rights or obligations under these Terms of Use without our prior written consent.
19.6 Our failure to enforce a provision of these Terms of Use or act with respect to a breach by you or others does not constitute a waiver of that provision or breach or a waiver of our right to act with respect to that breach or subsequent or similar breaches. The waiver of any such provision or breach will be effective only if in writing and signed by a duly authorised representative of Dragon Bay.
19.7 You agree that these Terms of Use may not be construed adversely against us solely because we prepared them.
19.8 These Terms of Use and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof.
19.9 Nothing in these Terms of Use or your use of the Application establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between Dragon Bay and Users.
19.10 The rights and remedies of a party to these Terms of Use are in addition to the rights or remedies conferred on the party at law or in equity.
19.11 Time is in all cases and in every respect of the essence of these Terms of Use.