1. PLUCKA GENERAL TERMS & CONDITIONS
1.1 This User Agreement (the Agreement) govern your use of Plucka located at www.plucka.co (the Site) and form a binding contractual agreement between you, the user of the Site and us, Plucka Pty Ltd, ABN: 42 535 645 605 (Plucka). For that reason, this Agreement position is important and you should ensure that you read it carefully and contact us with any questions before you use the Site.
1.2 By completing the registration process, you acknowledge that you have had sufficient chance to read and understand this Agreement, and that you agree to be bound by this Agreement.
1.3 By using the Site, you expressly warrant that you are of legal age and you are legally capable of entering into binding contracts under Australia law. If you are accessing the Site on behalf of another person, you expressly warrant that you are authorized to accept this Agreement on that person’s behalf.
1.4 If you do not agree to this Agreement, you may not access or otherwise use the Site and the Services offered on the Site.
In this Agreement:
Content means any and all data, text, software, images, audio or video material and other content, in any medium, provided by Plucka to you.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether register able or not and whether registered or not, and any applications for registration or rights to make such an application.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Personal Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought to be reasonably considered confidential based on its content, nature or the manner of its disclosure, but excluding: (a) Information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and (b) Information developed independently by a party.
Services means the e-business portal services provided by Plucka through the Site. This includes Services currently offered by Plucka and any Services or products that Plucka may choose to offer in the future.
Site means the website accessible at www.plucka.co.
Terms mean this Agreement and conditions of use and the documents referred to on it.
User Generated Content means any and all data, text, software, images, audio or video material and other content in any medium produced and provided on the Site by a User.
User means a person who gains access to the Site and Services by completing the membership registration process and/or paying the relevant membership fee applicable. This definition also includes casual browsers of the Site and Services, regardless of membership status.
You means you, the User.
Us, We, Our means Plucka.
3.ACCESSING THE SITE
3.1 The User acknowledges and agrees that although Plucka will use all reasonable efforts to ensure that the Site and Services are available, temporary interruptions of the Services available through the Site may occur. We will not be liable for any reason our Site is unavailable at any time or for any period. We may also restrict access to some parts of or the entire Site, from time to time.
3.2 All Content and Services provided on or through this Site are provided on an “AS IS” and “AS AVAILABLE” basis for the User. The Content and Services are provided without warranties of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose, or non-infringement. The User’s use of the Site and Services are solely at the User’s risk.
3.3 We reserve the right to withdraw or amend the Services and Content, including User Generated Content we provide on the Site without notice.
4. USER ACCOUNT, PASSWORD, AND SECURITY
4.1 When you register for membership to the Site for the Services, you are provided with a User account and password. You must treat such information as confidential and you must not disclose it to any third party. If you have reason to believe that someone else without your consent has obtained your user name or password, you must inform us immediately to disable your account.
4.2 We will not be liable for any losses associated with your account being hacked and your User Generated Content being made publicly available.
4.3 We have the right to disable any User or User Admin account or password, at any time, if we consider that you have failed to comply with any of the provisions of this Agreement.
4.4 By subscribing to the Site and Services, the User agrees that all information provided during the registration process is true and accurate and the User will update this information in order to keep it current, complete, and accurate.
5. SCOPE OF THE SERVICES
5.1 You acknowledge and agree that Plucka is not an auctioneer and does not become a party to any contracts or transactions entered into by a User with other Users. The Site and Services are provided as an e-business portal and platform allowing Users to communicate, provide User Generated Content to offer, sell, and buy Products and Services.
5.2 Users have the sole control and risk over the quality, safety or legality of items or User Generated Content posted by Users on the Site using the Services, the truth or accuracy of any of the User Generated Content, the ability of the Users to buy or sell items. WE CANNOT ENSURE AND DO NOT GUARANTEE THAT A USER WILL COMPLETE A TRANSACTION OR ACT LAWFULLY IN USING THE SITE AND SERVICES.
5.3 If Users enter into a transaction, the Users understand that they are creating a legally binding contract with each other, subject to applicable law and our Policies. Users are responsible for complying with any obligations to other Users. Any breach of such a contract will give rise to a liability from the other User. In the event that another User breaches an obligation to you, you are responsible for enforcing any rights you may have.
5.4 Users acknowledge and agree that they are aware of any laws applicable in the relevant jurisdiction to them as buyers or sellers.
5.5 Users acknowledge that Plucka does not offer or provide any form of insurance or other buyer or seller protection because the Site and Services only provides the platform on which such communications and transactions occur.
6. TRADING SAFETY
6.1 Plucka cannot confirm all Users purported identity. As such, Users acknowledge and agree that they must undertake their own research and due-diligence prior to entering into a transaction with another User. Plucka encourages the use of the Site’s Feedback Mechanism in order to evaluate the credibility of the User in question. We also encourage the use of a third party escrow service or services that require additional user verification.
6.2 All Plucka Policies, as amended from time to time, form part of this Agreement. By reading this Agreement, the User agrees to all the Plucka Policies. Users must familiarize themselves and continue to be updated on any changes to the Plucka Policies, as a condition of remaining a user of the Site.
7. OUR INTELLECTUAL PROPERTY RIGHTS
7.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights. You acknowledge and agree that, as between you and us, we own all Intellectual Property Rights, including Trade Marks, in the Site, excluding any User Generated Content posted or added by you.
7.2 You must not modify the physical or digital copies of any Content you print off or download in any way, and you must not use any illustrations, photographs, video or audio, or any graphics separately from any accompanying text.
7.3 You must not use any part of the Content on the Site for commercial purposes without first obtaining a license to do so from us.
7.4 Unless expressly stated, all persons, third party trademarks and images of third party products, services or locations on the Site are in no way associated, linked or affiliated with us and you should not rely on the existence of such a connection. Where a trademark or brand name is used, it is solely used to describe or identify products and or services.
8. USER GENERATED CONTENT
8.1 You must not add any Content to the Site:
(i) unless you hold all necessary rights, licenses and consents to do so;
(ii) that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
(iii) that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
(iv) that is unsolicited, undisclosed or unauthorized advertising;
(v) that are software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(vi) that would bring us, or the Site, into disrepute; or
(vii) that infringes the Intellectual Property or other rights of any person.
8.2 You agree to keep all records necessary to establish that your User Generated Content does not violate any of the requirements under clause 6.1 and make such records available upon our reasonable request.
8.3 You acknowledge that the Site does not have any “digital rights management” or other security technology features to restrict someone who receives or has access to the User Generated Content from copying and distributing it.
8.4 You retain ownership of your Copyrights and other Intellectual Property and proprietary rights in any User Generated Content you post to the Site. This Agreement does not prevent you from granting non-exclusive rights to use your User Generated Content to others.
8.5 We are under no obligation to regularly monitor the accuracy or reliability of User Generated Content appearing on the Site. We reserve the right to modify or remove any User Generated Content at any time. 8.6 Any opinions, advice, statements, services, offers, or other information or User Generated Content expressed or made available by User Admin or third parties, including other Users, are those of the respective author(s) or distributor(s) and not of Plucka.
9. LIMITATION OF LIABILITY AND INDEMNITY
9.1 You agree that we shall not be liable for any damages suffered as a result of using, copying, distributing, or downloading Content from the Site.
9.2 In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.
9.3 You have sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the Site and Services and will not make a claim against us for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Site and Services.
9.4 We do not endorse the contents of any User Generated Content and expressly disclaim any and all liability in connection with them. We do not pre-screen or monitor User Generated Content. In no event shall we be liable for any claims by a User or any third party pursuant to the Competition and Consumer Act 2010 (Cth) including, but not limited to, any misleading or deceptive statements and/or misrepresentations incorporated into any User Generated Content. It is the User’s sole responsibility to ensure the accuracy of the data inputted into User Generated Content.
9.5 Without limiting the foregoing, in no event will our aggregate liability to you exceed, in total, the amounts paid by you to us or $100.00.
9.6 To the extent that Plucka or any of its affiliates are able to limit the remedies available under this Agreement, Plucka and any of its affiliates expressly limit their liability for a breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies, the choice of which is to be at our discretion:
(a) for goods:
(i) replacement of goods or supply or supply of equivalent goods;
(ii) repair of goods;
(iii) payment of the costs of replacing goods or of acquiring equivalent goods;
(iv) payment of cost of having goods repaired, and
(b) for services:
(i) resupply of services;
(ii) payment of cost of resupply of services.
9.7 As a condition of your access to and use of the Site, you agree to indemnify PLucka and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related
(a) Your access to and use of the Site and Content; and
(b) Your violation of this Agreement and any applicable law or the rights of another person or party.
10. PROHIBITED USE
10.1 You acknowledge and agree that you are responsible for your own conduct and User Generated Content while using the Site and for any consequences thereof. You agree to only use the Site for purposes that are legal, proper, and in accordance with this Term and the documents referred to in it. Prohibited conduct and use includes, but is not limited
(a) defamation, abuse, harassment, stalking, threatening or otherwise violating the legal rights of others;
(c) impersonation of another person or entity, or falsification or deletion of any attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
(d) restrict or inhibit any other user from using and enjoying the Services;
(e) use the Services for any illegal or unauthorized purpose;
(f) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(g) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information or data contained within site about users for any unauthorized purpose;
(h) create user accounts by automated means or under false or fraudulent pretences;
(i) promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
(j) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
11.1 Unless expressly stated, the Services and Content on the Site are provided “as is” and are for Users only, and all express or implied conditions, representations and warranties, including any implied warranty of fitness for a particular purpose, or non-infringement, are disclaimed, except to the extent that such disclaimers are held to be legally invalid.
11.2 We make no representations, warranties, guaranties as to the quality, suitability, truth, accuracy, or completeness of any of the Content and User Generated Content available on the Site.
11.3 We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice, information, or statement made on this Site by anyone other than authorised Plucka employees acting in their official capacities.
11.4 We are in no way associated, linked or affiliated with the entities that own the third party trademarks and the products used in the creation of the Services and Content for the Site. Where a trademark or brand name is used, it is solely used to describe or identify products.
11.5 The Site may be linked to other websites, which are not under the control of and are not maintained by Plucka. We are not responsible for the content of those sites. We only provide links to external websites as a convenience, and the inclusion of such a link to external websites does not imply our endorsement of those sites.
11.7 User Generated Content produced and provided on the Site by a User has not been individually authenticated and endorsed in whole or in part by Plucka. We are committed to respecting others’ Intellectual Property Rights, and we ask that Users to do the same. We may, in our sole discretion, remove User Generated Content that may infringe or otherwise violate others’ Intellectual Property Rights.
12. CUSTOMER SUPPORT
12.1 We will provide the following customer support services to you:
(a) Instructions for operating the Services;
(b) Online Frequently Asked Questions section on the Site; and
(c) Email customer support service link for troubleshooting and general inquiries.
12.2 You acknowledge and agree that we have no further obligation to provide you with any other customer support of any kind. However, we may, at our sole discretion, change or amend our customer support services from time to time
13. TERMINATION OR CANCELLATION
13.1 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate this Agreement, your access to the Site, and/or your registration, or suspend or block your access to the Site.
13.2 If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site or by sending a communication to any address (email or oth