User, Business & Charity Agreement
Effective as of May 8, 2017
Welcome to Charitizer.
Charitizer is a web and app-based market platform that provides users to purchase and sell items as well as donating a percentage of the price to chosen charities and causes, or receive this percentage as a charity and cause.
Charitizer provides this market platform to you (hereinafter the "User"). The User shall be subject to the following rules which are an agreement between the User and an Australian Private Company "CHARITIZER AUSTRALIA PTY LTD" with the following registry code: ABN 55617 861560, ACN 617 861 560 and address: Surry Hills, NSW 2010, Australia (hereinafter, "Charitizer") in relation to the User's commercial or non-commercial use of the Charitizer's website located at http://www.charitizer.com and/or mobile application (the "Website and/or Application") in accordance with these rules and policies (hereinafter the "Agreement").
This Agreement covers the User's use of the Website and/or Application as a purchaser, vendor, retail dealer, charity or cause.
Please read the Agreement carefully. By using or accessing the Website and/or Application, the User agrees to be bound by the Agreement. If the User does not wish to be bound to the Agreement, the User must refrain from using the Website and/or Application.
If the User represents a company or organization, the User warrants that the User is authorised to be bound by the Agreement, and acknowledges that the User's access to, or use of, the Website and/or Application binds that company or organization to this Agreement.
This Agreement shall be read in accordance with any other rules and policies regulating the use of the Website and/or Application. If the User violates this Agreement, or any other provisions, conditions or notices governing use of any portion of the Website and/or Application, Charitizer reserves any resulting legal rights Charitizer may have.
Additional provisions regarding the use of the Website and/or Application by a purchaser, vendor, retail dealer, charity or cause shall prevail over any clause under the general provisions of this Agreement.
2. Use of the Website and/or Application
The Website and/or Application allows the User to offer and accept to purchase or sell goods and services.
Charitizer has an intermediary status and is not a person who conducts auctions by accepting bids and declaring goods sold.
Charitizer is not involved in the transaction between any purchaser and vendor or retail dealer.
The User acknowledges that Charitizer does not take ownership or possession of any goods or services listed on the Website and/or Application at any time and does not transfer legal title from any vendor or retail dealer to any purchaser.
Only the User is responsible for ensuring that the User's listing, bidding and selling, and any other activities conducted on the Website and/or Application are legal. The User shall ensure that the User complies with all applicable laws in Australia and other countries where a transaction with the User is undertaken.
The User shall ensure that the User complies with this Agreement and the policies presented on the Website and/or Application. To the extent of any inconsistency between the provisions of this Agreement and any policy referred to in this Agreement, the policy will prevail.
Charitizer prohibits use of the content on the Website and/or Application in any manner other than as expressly licensed in this Agreement. With regards to the User's use of or participation in any interactive facility on the Website and/or Application, the User acknowledges and agrees that:
· the User is solely responsible for all results of the User's actions arising out of the User's use of the Website and/or Application (including all content the User submits);
· Charitizer retains the right to edit, delete or refuse to publish any content or material in its sole discretion, and without attribution of authorship, or by modifying or altering the material even if such modification may otherwise constitute derogatory treatment of the material;
· All causes and charities listed shall be registered and/or legitimate beneficiaries according to the details on their cause pages;
· under no circumstances will the User post any material, or engage in any behaviour, that is, or could reasonably be taken to be, predatory or intimidating, or in any way designed to solicit identifying information from anyone under the age of 18 years; and
· Charitizer may notify and/or cooperate with any authorities and law enforcement agencies in relation to any of the User's activities on or use of the Website and/or Application, including providing any and all information about the User held by Charitizer (whether of a personal nature or otherwise), to those entities.
The User shall comply with the Agreement and all applicable laws.
The User shall not:
· post or transmit false or misleading material or make any form of misleading or deceptive representation;
· infringe any laws, third party rights or policies published by Charitizer;
· use the Website and/or Application if the User is suspended from using the Charitizer services, under 18, or are otherwise not able to enter into binding contracts;
· post or transmit any items or content that is threatening, discriminatory, harassing, abusive, violent, defamatory, obscene, racially or sexually vilifying, offensive, pornographic or indecent, or any material in contempt of any court or parliament, or encourage any other person to do so;
· use "Charitizer" or the name/logo of a registered charity in the User's listings, account name or group name, or in any way represent that the User is affiliated with charity and/or Charitizer;
· distribute or post spam, fraudulent or missing information or any similar content;
· create multiple accounts or transfer the User's account to another user;
· infringe any third party rights including intellectual property rights;
· copy, modify, distribute any other Charitizer user’s content without consent;
- use any automated means to access the Website and/or Application and collect content for any purpose without Charitizer's express written permission;
· use the Website and/or Application in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
· bypass any measures imposed to prevent or restrict access to the Website and/or Applications, such as where Charitizer has suspended or closed the User's user account;
· compromise Charitizer’s infrastructure in a way that may interfere with the working of the Website and/or Application, or interfere with or disrupt the use and enjoyment of the Website and/or Application by others;
· distribute or attempt to distribute viruses or any other technology that could harm Charitizer or any user of the Website and/or Application, or the interests of the Charitizer community;
· make any modification, adaptation, improvement, enhancement, translation or derivative work of or to any portion of the Website and/or Application;
· use the Website and/or Application in any manner that exposes Charitizer or its users to any harm or liability of any nature;
· delete, alter or attempt to delete or alter attributions, legal notices, trademarks or copyright marks on any material uploaded to the Website and/or Application; or
· reverse-engineer, decompile, export or re-export any Charitizer tools except in compliance with the export control laws of any relevant jurisdictions, or deploy a robot, spider or scraper on the Website and/or Application.
3. Purchases and Sales
The User shall not:
- make a misrepresentation about goods, services, company or organization the User represents;
· interfere with any other user’s account in any way;
· manipulate prices of goods and services;
· refuse or fail to make payments for goods or services where the User has made an offer or counter offer that has been accepted unless the vendor has materially changed the good’s or service's description after the User bid, a clear typographical error is made or the User cannot authenticate the vendor’s identity;
· circumvent or manipulate fees, escrow or donations structure, billing process or any payments the User owes Charitizer;
- make any offers to trade offsite or outside of the Website and/or Application;
· purchase the User's own listed goods and services or act in a way that may compromise the feedback or reviews system;
· provide invalid or incomplete contact information; or
- charge surplus fees or ask for additional funds once goods or services have been sold.
At Charitizer’s request, the User shall comply with all things necessary and desirable.
4. Responsibilities and Obligations
The User agrees that the User is solely responsible for the information and content the User publishes on the Website and/or Application, as well as the consequences that arise from the User's listings.
Without limiting other remedies available to Charitizer at law, in equity or under this Agreement, Charitizer reserves the right, in its sole discretion, to:
· prohibit the User to list goods and services or publish content on the Website and/or Application that in Charitizer’s opinion breaches this Agreement, policies or applicable law;
- prohibit the User to use the Website and/or Applications temporarily or permanently; or
- prohibit the User to create an account on the Website and/or Applications,
without notice if Charitizer considers that the User have acted in a way that is inconsistent with the spirit of the Charitizer community, including without limitation if Charitizer:
· reasonably believes that the User has breached this Agreement, any policy or applicable law; or
· is unable to verify or authenticate any information the User provides; or
· reasonably believes that the User's actions may cause loss or damage to or otherwise unlawfully harm the User, other users, third parties or Charitizer; or
· reasonably believes that any of the User's content is inappropriate or of an offensive nature.
If another user reports the User, or if it appears that the User or any of the User's listings breach this Agreement or any policy referenced in it, Charitizer reserves the right to issue the User with a warning. If the User receives a warning, Charitizer may, with or without warning:
· limit or terminate the User's use of the Website and/or Applications;
· remove the User's listed goods and services, and the User's content, or refuse to publish the User's content; or
· ban the User from creating alternative user profiles or re-using the User's profile after the User's use has been limited or terminated.
Charitizer is not obliged to provide the User or other users the details of any investigation that Charitizer conducts or any action which Charitizer takes, in relation to the User's behaviour of the Website and/or Application.
5. Account Creation
The User shall create a Charitizer account to be able to use all the services provided on the Website and/or Application.
To create the account the User shall provide registration information, and answer all required fields.
The User agrees:
· that the registration information will be true, accurate, current and complete at the time the User provides it;
· to change the registration information when it is not true, accurate, current and complete; and
· that Charitizer may contact the User and require the User to verify the User's registration data prior to the use of the Website and/or Applications.
Charitizer reserves the right to refuse to provide the User with any and all current or future use of the Website and/or Applications if in Charitizer’s reasonable opinion, any of the User's registration data is, or appears to be, untrue, inaccurate, out of date or incomplete.
The User is responsible for maintaining the confidentiality of the User's account credentials, password, and for all activities, charges and/or liabilities that occur from the User's account, whether or not authorised by the User.
The User shall immediately notify Charitizer of any unauthorised use of the User's account credentials, password or any other breach of security the User becomes aware. Charitizer shall not be liable for any loss or damage arising from the User's failure to comply with this notification obligation.
7. Fees and Donations
Using Charitizer is free unless otherwise indicated on the Website and/or Application or in the Agreement.
The User shall pay to Charitizer a fee as indicated on the Website and/or Application and/or the transaction fee of the used payment organization of the sale price of each good purchased or services consumed.
The fees cover the cost of processing payments and keeping the Website and/or Application in working condition for the User.
The User shall pay donations as required by this Agreement.
Charitizer’s fees and donations to charities and causes are non-refundable, and they will be deducted from the total amount of the sale price at the time the payment is processed.
If the fees or donations are not paid in a timely manner, Charitizer may collect fees or donations owed using any payment method or payment information the User have provided to Charitizer, or by engaging a collection agency or legal counsel.
The User as a seller agrees to donate a percentage or a fixed amount of the sale price to a charity or cause mentioned in the charity and cause categories. This percentage and fixed amount may vary according to the sliding scale but once chosen is legally binding and will be upheld.
8. Escrow Payment System and Donations
The User guaranties that the User may execute this Agreement and any payment electronically. The User's account registration constitutes an acknowledgement that the User may electronically receive, download, and print this Agreement and send, receive and execute payments.
The User may refill the User's electronic wallet via available means present on the Website and/or Application. The refilled wallet will be reflected on the User's account. The User may withdraw funds at any time unless the User has violated the provisions of the Agreement.
Charitizer provides escrow services to the User to deliver, hold, or receive payment to pay for services and goods, payment processing and administration fees to Charitizer.
The User hereby authorizes and instructs Charitizer to act as escrow agent in connection with the payment, holding, and receipt of funds for each purchase or sale.
Each purchase or sale may constitute a donation to charities and causes. In case if purchase or sale is cancelled or refunded, the per cent applicable to the sum of the purchase or sale shall be treated as a payment for services and shall be not returned and refunded to the extent allowed by the applicable law.
The Website and/or Applications contain content created by Charitizer, by the User and by other users of the Website and/or Applications.
Copyright in the Website and/or Applications (including text, graphics, logos, icons, layout, design, sound recordings, video, software and advertisements) and any other intellectual rights are owned or licensed by Charitizer. Except where expressly permitted, the User may not in any form or by any means, and subject to the conditions prescribed under the Copyright Act 1968 (Cth) and similar legislation which applies in the User's location to:
· adapt, modify, download, reproduce, distribute, publicly display, perform, publish, create derivative works from or otherwise publicly make available any part of the Website and/or Application; or
· commercialise or exploit any information, goods or services obtained from any part of the Website and/or Application,
without Charitizers’ written permission or, in the case of third party content, the permission of the owner of the copyright and intellectual property rights in that content.
Unless Charitizer agrees otherwise in writing, the User is provided with access to the Website and/or Applications only for the User's personal use. The User is authorised to view, retrieve, personally store and print a copy of any information contained on the Website and/or Application for the User's personal use, unless expressly prohibited by Charitizer. Without limiting the foregoing, the User may not without written permission from Charitizer, on-sell information obtained from the Website and/or Application.
The User's content must be created personally by the User. Content displayed on the Website and/or Application is protected as a collective work and/or compilation, pursuant to copyright laws and international conventions. The User warrants that the User is the owner of, or is licensed to use and sublicense, all intellectual property rights in content the User submits to the Website and/or Application, and that such submission does not infringe the intellectual property rights or other rights of third parties (such as privacy rights).
The User agrees to indemnify Charitizer, and keep Charitizer indemnified, against any loss or damage suffered or incurred by Charitizer arising out of a third party claim in relation to the User's breach of this warranty.
When providing Charitizer with content or causing content to be listed using Charitizer’s services, the User grants Charitizer a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and other intellectual property rights the User have in the content, in any media known now or developed in the future.
If the User is the owner of copyright, trademark or other rights and the User considers there has been an infringement of the User's rights, the User shall contact Charitizer via available communication means.
Charitizer may, at its discretion, make available peer reviews on the Website and/or Applications, which are illustrated in the form of a scale system with or without written reviews.
The reviews show the overall combined average of all the reviews a user has received.
When a transaction is completed, a notification email is sent out for a user to evaluate each other. Reviews shall be honest and precisely reflect the experience of the transaction.
It is prohibited for a purchaser, or vendor or retail dealer to make demands or threats in regard to reviews, or leave an unnecessarily low review for another user.
11. Links to Third Party Websites
The Website and/or Application may provide links to third party websites. Charitizer does not control these websites or the content on these websites. Charitizer does not endorse, guarantee, represent or warrant the accuracy, legality, decency, copyright compliance or any other aspect of the content of any such website. Charitizer does not warrant that such websites will not contain viruses or otherwise impact the User's device. Charitizer does not represent any affiliation with the third party website owners.
The User shall not create or maintain any link from another website to the Website and/or Application without Charitizer’s written consent.
Where the information made available on the Website and/or Application contains opinions or judgements of third parties, Charitizer does not endorses and warrants the content of any such opinion or judgements, and will not accept liability for loss or damage caused by the User's reliance upon any information obtained through such services.
The User may not make any claim against Charitizer for any damages or losses resulting from the User's use of a link to any third party website.
The User shall report any offensive content, fraud or policy breaches to Charitizer by contacting Charitizer through available communication means.
Charitizer as an intermediary service provider shall not be liable for monitoring the Website and/or Applications.
Charitizer does not, under any circumstances, endorse or accept any responsibility for any unauthorised, unlawful, or inappropriate content published on the Website and/or Application.
Upon awareness of the unauthorised, unlawful, or inappropriate content published on the Website and/or Application, Charitizer may take reasonable steps to remove such content.
Charitizer shall not be responsible for actions or omissions of any user. When the User enters into a transaction the User creates a legally binding contract with another user of the Website and/or Application. The User must ensure that the User complies with the User's obligations to that user, and with any other obligations the User has at law as the result of being a purchaser, vendor or retail dealer, charity or cause. If another user breaches an obligation it owes to the User, the User is responsible for enforcing any rights the User has directly against that user. If a dispute arises between the User and another user of the Website and/or Application, Charitizer strongly encourages the User first attempt to resolve it directly with the other user.
If the User has a dispute with one or more other users of the Website and/or Application, the User releases Charitizer (and its officers, directors, agents, subsidiaries, joint venturers and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If the User has a dispute with Charitizer, Charitizer will attempt to provide a neutral and cost effective means of resolving the dispute quickly. Charitizer will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Please contact Charitizer at firstname.lastname@example.org to register a dispute.
The User may report the misconduct of users, third party advertisers, service and/or goods providers referenced on the Website and/or Application to Charitizer at email@example.com. Charitizer may investigate the claim and take appropriate action. Charitizer reserves the right to utilise its discretion in the exercise and implementation of its policies in order to achieve a beneficial outcome for any users engaged in a dispute.
14. Termination and Deletion of the User's Account
The User may terminate and delete the User's account at any time, provided that the User does not:
· have any outstanding goods and services listed on the Website and/or Application;
- have any unresolved disputes with Charitizer or another users of the Website and/or Application; and
· have any outstanding fees or other payments owing on the User's account.
The User shall remain liable for all obligations related to the User's account even after the User's account is terminated and deleted.
CHARITIZER’S SERVICES ARE PROVIDED “AS IS” AND CHARITIZER PROVIDES NO WARRANTIES OR GUARANTEES ABOUT THE USE OF CHARITIZER’S SERVICES, THE CONTENT OF THE WEBSITE AND/OR APPLICATION OR THEIR SPECIFIC FUNCTIONS AND THEIR RELIABILITY, AVAILABILITY OR ABILITY TO MEET YOUR NEEDS. CHARITIZER CANNOT ENSURE THAT FILES DOWNLOADED FROM THE WEBSITE AND/OR APPLICATION WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. FURTHER, CHARITIZER CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE WEBSITE AND/OR APPLICATION, AND THEIR OPERATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF CHARITIZER’S CONTROL.
CERTAIN JURISDICTIONS IMPOSE SPECIFIC WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, CHARITIZER EXCLUDES ALL WARRANTIES.
16. Notices and Communication
Any notices or other means of communication regarding the User's account and/or the User's use of the Charitizer services may be provided to the User electronically. The User agrees to receive messages and information from Charitizer in electronic form. Means of communication are available on the Website and/or Application.
Notices given by email will be deemed given 24 (twenty four) hours after an email is sent, unless the sending party is notified that the email address is invalid or that the email has not been delivered.
All notices may be sent via in-built forms or to Charitizer's email: firstname.lastname@example.org
17. Term and Termination
This Agreement shall be in force for 1 (one) year from the time the User agrees to the Agreement and shall be automatically prolonged each next year unless the Agreement is terminated by the User.
If the User terminates the Agreement the User shall send the 30-days prior notice which states that the User wishes to terminate the current Agreement.
Termination and deletion of the User's account shall not constitute the termination of this Agreement.
Charitizer may, on its discretion, terminate the Agreement with the User at any time for any reason. Such a termination shall be in force immediately.
The provisions and clauses which shall survive the termination shall survive the termination
Charitizer shall not be liable for lost profits, revenue, data, financial losses or indirect, special, consequential, exemplary or punitive damages.
The total liability of Charitizer for any claims under the Agreement, including under any implied warranties, is limited, at Charitizer’s discretion, to:
· the re-supply of the services; or
· payment of the cost of supplying the services again.
In all cases, Charitizer shall not be liable for any loss or damage that is not reasonably foreseeable.
Charitizer does not accept liability of any description for the publishing any unlawful, threatening, abusive, defamatory, obscene or indecent information, or material of any kind which violates or infringes upon the rights of any other person, including without limitation any transmissions constituting or encouraging illegal or unlawful conduct.
In some countries, including Australia, the User may have specific consumer rights if the User fall within the definition of a consumer under consumer protection laws. Nothing in these provisions limits such rights where they cannot be waived by a contract.
If the User is a consumer for the purposes of the Australian Consumer Law, especially the Competition and Consumer Act 2010 (Cth), the User may be entitled to certain warranties or protection under that legislation.
For more information please visit https://www.accc.gov.au or the applicable state fair trading website.
The User agrees to indemnify and hold Charitizer, its related bodies corporate, affiliates, officers, agents, contractors and other partners and employees, harmless from any loss (including indirect or consequential loss), liability, claim or demand, including reasonable legal fees, made by any third party due to or arising out of the User's breach of this Agreement, the User's use of the Website and/or Application, including the User's use of that the Website and/or Application to provide a link to another website or to upload content or other information to the Website and/or Application, and the User's infringement of any law or the rights of a third party in the course of using the Website and/or Application.
19. Changes to the Agreement
Charitizer reserves the right to revise this Agreement without notice at any time by posting a revised Agreement on the Website and/or Applications. If Charitizer makes a material revision to this Agreement which may negatively impact the User's use of the Charitizer services, Charitizer will email the User a notification which will include the date on which the revision will take effect. Charitizer will provide the User with at least 30 (thirty) days-notice of such a revision. The date at the top of this Agreement will indicate the date it was last revised. The User's use of the Website and/or Application following an update of this Agreement constitutes acceptance of the Agreement (as revised). Charitizer encourage the User to review this Agreement each time the User uses the Website and/or Application to make sure that the User understands the applicable provisions. If the User does not agree to any rules and policies in this Agreement, the User shall immediately terminate the User's use of Charitizer.
Charitizer may transfer or assign this Agreement, and any right or obligation under this Agreement, to a third party without the User's consent. The User may not transfer or assign this Agreement, and any right or obligation under this Agreement, to a third party without the Charitizer's consent
21. Governing Law
The governing law for the Agreement or any other provisions is the law of New South Wales, Australia, and the courts of New South Wales, Australia shall have non-exclusive jurisdiction.
22. Idea Submission
Any content sent to us, including, but not limited to, ideas, questions, comments, suggestions, feedback or the like regarding Charitizer or the Website and/or Application is non-confidential and shall become Charitizer's sole property.
Charitizer shall have no obligation to the User of any kind, monetary or non-monetary, with respect to such content and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the content to others without limitation or obligation.
In the event that any provision of this Agreement is determined to be unenforceable, such provision shall be deemed to be modified as needed to ensure its enforceability to the maximum extent permitted by law, and shall not affect the validity and enforceability of any remaining provisions.
24. Supplementary Provisions for Purchasers
The provisions presented in this clause shall be applicable only to the User which is a purchaser (a person which buys goods or services).
By agreeing to purchase goods or services on the Website and/or Application, the User assumes full responsibility for reading all information with regard to goods and services before making a commitment to purchase.
25. Supplementary Provisions for Vendors and Retail Dealer
The provisions presented in this clause shall be applicable only to the User which is a vendor or retail dealer (a person which sells goods or services).
The User shall be responsible for the User's listings and for ensuring that the User's listings are accurate and shall not include false information and shall comply with this Agreement, all Charitizer provisions and applicable law. The User acknowledges and agrees that Charitizer is not the User's agent or representative for any purpose in relation to the User's use of the Website and/or Application.
The User agrees to donate a certain and selected percentage of the sale price of each good or service to the purchaser's selected charity or cause.
The User agrees to donate a percentage of the sale price of their goods or services to their selected charity or cause.
By listing goods or services on the Website and/or Application, the User agrees to pay Charitizer’s fees for the listing. The User shall be responsible for the information of the listing and goods or services offered. The User shall acknowledge and agree that any good or service the User list for sale may be, on the discretion of the Charitizer, made available or unavailable, published, or deleted on the Website and/or Application.
The User shall be responsible for complying with all laws applicable to the sale and delivery of goods and services in accordance with conflicts of laws rules.
26. Supplementary Provisions for Charities and Causes
The provisions presented in this clause shall be applicable only to the User which is a charity or cause (an organization set up to provide help and raise money for those in need).
The User as a charity or cause is only permitted to register as beneficiaries. Charities and Causes are not allowed purchasing and selling goods, and providing and consuming services.
If a charity or cause is registered in New South Wales the Agreement shall be in force for a minimum period of 1 (one) month and thereafter from month to month for a period of 12 (twelve) months unless terminated in accordance with the Agreement, upon the expiry of the 12 (twelve) months period, a new agreement will be taken to have been agreed upon the same provisions as this Agreement unless the charity or cause informs Charitizer with 2 (two) month prior notice.