Terms and Conditions
This Agreement describes the terms and conditions that govern your use of our services at www.boatM8.com and also w ww.skyM8.com.
Before you may become a member of our Site/s you must read, agree with and accept all of the terms and conditions contained in this Agreement.
This Agreement is effective on the earlier of your registration date or 11 November 2010 for all members registered prior to that date.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
"Business Day" means a day on which banks are open for general business in Brisbane, Queensland, other than a Saturday, Sunday or public holiday.
“Our Site” means the ONLINE BUSINESS conducted by SkyM8 Pty Ltd at both websites: www.boatM8.com and also w ww.skyM8.com.
“You” means you as a member, and includes anyone acting on your behalf with your express of implied authority.
"Your Information" means any item you list as well as any information you give to us or other members in the registration, bidding or listing process, in any public message area (including the discussion boards and in feedback) or through any email feature. Your Information also includes the descriptions of items you list for sale or display on our Site, as well as any content you post on other web pages within our Site (including photographs or other images).
1. ONLINE SERVICES
1.1. Relationship with ONLINE BUSINESS
No agency, partnership, joint venture, employee-employer, franchisor-franchisee or other similar relationship is intended to be or is created by this Agreement. In particular members have no authority to bind SkyM8 Pty Ltd, its related entities or affiliates in any way whatsoever.
1.2. Not an Auctioneer
SkyM8 Pty Ltd and its related businesses are not an "auctioneer". Our Site merely acts as an online venue to allow members to communicate and offer, sell, and buy boats at any time, from anywhere, in a variety of formats.
You acknowledge and agree that SkyM8 Pty Ltd and its related entities are not involved in the actual transaction between buyers and sellers. As a result, SkyM8 Pty Ltd has no control over the quality, safety or legality of items or content posted by members on our site, the truth or accuracy of listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure and do not guarantee that a member or browser of our site will actually complete a transaction or act lawfully in using our site.
1.3. No Liability
SkyM8 Pty Ltd specifically disclaims all liability for any loss or damage, (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your transaction.
SkyM8 Pty Ltd is not involved with or a party to any transactions that take place between members. SkyM8 Pty Ltd does not accept any liability in respect of your involvement in any mediation, arbitration, tribunal hearing, court proceeding or other proceedings (of whatever nature) with a buyer or a seller (as the case may be) in any way arising out of or in any way connected with your transaction. SkyM8 Pty Ltd may plead this Agreement in bar to any claim, action, proceeding or suit brought by you, against SkyM8 Pty Ltd for any matter arising out of any SkyM8 Pty Ltd transaction or otherwise in respect of this Agreement.
1.4. No Insurance
Except as specifically advised otherwise on our Site, SkyM8 Pty Ltd does not offer any form of insurance or other buyer or seller protection which will assist you, because our Site merely provides the online venue for members to offer, sell, and buy and we are not otherwise involved in the transactions and interactions between buyers and sellers.
1.5. Restriction to Disclaimers
This agreement does not affect any rights you may lawfully have against SkyM8 Pty Ltd itself for its own acts or omissions.
SkyM8 Pty Ltd offers membership to any natural person who is 18 years of age or older and has legal capacity to enter into a Contract. Any person who does not fulfil these criteria is not eligible for membership.
2.2. Assignment of Membership
Membership is not assignable or transferable. Valid membership must only be used by the approved member and cannot be sold, or given a license without express permission from SkyM8 Pty Ltd. The member is at all times responsible for the conduct of their profile.
2.3. Entering into Transactions
When you enter into a transaction you create a legally binding contract with another member. You are responsible for ensuring that you comply with your obligations to that other member. If you do not, you may become liable to him or her. You must ensure that you are aware of any laws relevant to you as a buyer or seller, or in any other uses you make of our Site. If another member breaches any obligation to you, you - not SkyM8 Pty Ltd - are responsible for enforcing any rights that you may have.
2.4. Termination or Suspension of Membership
SkyM8 Pty Ltd offers its services to its members, and reserves its rights to change its service and suspend, terminate or restrict your membership at any time if there is any reasonable reason to believe that a member is in breach of the terms and conditions of this Agreement.
In the event that SkyM8 Pty Ltd changes its services, suspends, terminates or restricts your membership in the circumstances outlined above or in this Agreement, you may not be able to access our services temporarily or permanently and you are prohibited from applying for a new account.
Without limiting any other remedies available to SkyM8 Pty Ltd at law, in equity or under this Agreement, SkyM8 Pty Ltd may, in its sole discretion, suspend or terminate your membership pursuant to condition 2.4 if SkyM8 Pty Ltd reasonably suspects or believes, or are informed by a government authority, that a member (by conviction, settlement, insurance or otherwise in our sole discretion) have engaged or may engage in fraudulent activity using, or otherwise in connection with your use of our Site, and you will have no claim whatsoever against SkyM8 Pty Ltd in respect of any such suspension or termination of your membership.
2.6. Internet Security
Internet fraud is difficult to monitor and SkyM8 Pty Ltd cannot confirm each member’s purported identity. All members agree to practice safe trading at all times, and remain aware of internet fraud. If a member is suspicious or does not comply with the terms of this agreement, each member is bound to advise SkyM8 Pty Ltd in writing of their concerns or experience. All members acknowledge and accept the risk of contracting with underage persons or fraudulent foreign entities.
SkyM8 Pty Ltd will send members communications and notices regarding transactions and accounts. These communications do not represent any endorsement, guarantee or legitimisation of the transactions being made. All members are solely responsible for maintain their own accounts, and should not rely on communications from SkyM8 Pty Ltd to confirm progress of transactions, or rely on account reminders.
3. FEES AND SERVICES
3.1. The member agrees to and is bound to pay each of the following fees and service charges amounts:
METHOD OF PAYMENT
|Applying for Membership
||Free of Charge
||Free of Charge
|Bidding on Website
||$5 bidding deposit
||Via Credit Card, Direct Debit or Paypal
|Buying an Item
||price as negotiated between vendor and purchaser
||Via Credit Card, Direct Debit or PayPal on the successful completion of a Purchase
|Listing an Item for Sale
||$27 or $57 for premium advert
||Via Credit Card, Direct Debit or PayPal, on confirmation of your listing and before being listed on website.
|Advertising Your Business
$16.40 + $2 accout keeping fee/ month*
*all accounts are annual subscriptions
|Via Credit Card, Direct Debit or PayPal at the commencement and renewal of advertising on a monthly recurring basis until cancelled.
3.2. Variations to Fees
SkyM8 Pty Ltd reserves its rights to vary any fees and charges for services provided. Any change in the fees and charges will be notified to all members VIA EMAIL at least 7 days prior to varying the fees and charges.
3.3. New Fees and Service Charges
SkyM8 Pty Ltd reserves their rights to introduce any new fees and charges.
3.4. Restriction on Assigning Increase in Fees
Members are responsible for paying all fees associated with using SkyM8 Pty Ltd services and all applicable taxes (including any goods and services or value added taxes if applicable). Members are not permitted to charge a buyer any fees as an additional charge to the purchase price for an item.
All currency is quoted and required to be paid in Australian Dollars.
4. BUYING / BIDDING
4.1. Binding Contract
By bidding on an item you agree with the seller to be bound by the conditions of sale included in the items description, subject to any exceptions set out here, such as where the conditions of sale are in breach of this Agreement or unlawful.
If you purchase an item through one of our fixed price formats or are the highest bidder on an item listed in auction format, you are obliged to complete the transaction with the seller, unless the item or transaction falls within the scope of the Non-Binding Bid Policy, or is prohibited by law, by this Agreement or by our Policies.
If you do not complete a transaction without lawful excuse or without the express permission of SkyM8 Pty Ltd you may be in breach of your obligations to both SkyM8 Pty Ltd and the seller and you may be liable to each.
4.2. Retraction of Bids
You cannot retract a bid except in exceptional circumstances, in which case you are required to make your request in writing to SkyM8 Pty Ltd within 48 hours of winning the bid. SkyM8 Pty Ltd will decide whether the bid may be retracted within 72 hours, during which time the requesting member’s account will be temporarily suspended.
5.1. Listing Items
You must be legally entitled to sell any item you list for sale on our Site. You must describe your item fully and accurately and include all terms of sale on the listing page of our Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item, including any information that you are required to provide by any applicable law. The listing and the content of the listing must be your own work or work that you are legally entitled to use.
5.2. Binding Bids
If you are a seller and receive at least one bid at or above your stated minimum price you are obligated to complete the transaction with the highest bidder upon the items completion, unless there is an exceptional circumstance, such as if the buyer fails to meet the terms of your listing (such as payment method).
5.3. Restrictions to Selling
You are solely responsible for Your Information. Your Information must not, in any way whatsoever, be potentially or actually harmful to SkyM8 Pty Ltd or any third party. Without limiting any provision of this Agreement, Your Information must be up to date and kept up to date and must not:
||be false, inaccurate or misleading or deceptive;
||be fraudulent or involve the sale of counterfeit or stolen items
||infringe any third partys copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
||violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export and import control, consumer protection, unfair competition, criminal law, antidiscrimination and trade practices/fair trading laws);
||be defamatory, libellous, threatening or harassing
||be obscene or contain any material that, in ONLINE BUSINESSs sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images and, if otherwise adult in nature, shall be distributed only to people legally permitted to receive such content;
||contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any ONLINE BUSINESS website, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information;
||create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; or
||link directly or indirectly to or include descriptions of goods or services that are prohibited under this Agreement or that you do not have a right to include.
You agree to grant SkyM8 Pty Ltd a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, assignable and licensable right to do and authorise the doing of all acts comprised in the copyright and to exercise the publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information.
5.5. Listing Breach
Without limiting other remedies available to SkyM8 Pty Ltd at law, in equity or under this agreement, we may, without notice to you and in our sole discretion (which shall be exercised reasonably, having regard to the circumstances), delay listing your item, issue you a warning, restrict your activities through our site (including but not limited to buying and selling, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if:
5.5.1. you have, or we believe that you have, breached this Agreement, which includes any of our Policies in any way (including those Policies referred to in Clause 18 below);
5.5.2. we are unable to verify or authenticate any information you provide to us;
5.5.3. we believe that your actions may cause loss or damage to or otherwise unlawfully harm you, our members, third parties or us, our related bodies corporate or affiliates, our directors, employees or agents; or
5.5.4. if we reasonably believe that any of Your Information (which includes an item listed on the Site) is inappropriate or of an offensive nature.
6. WARRANTY AND GUARANTEES
SkyM8 Pty Ltd provides their services without any warranty or condition, express or implied, to the extent permitted by law, we specifically disclaim any implied warranties.
SkyM8 Pty Ltd does not guarantee continuous, uninterrupted or secure access to our services, and operation of our Site may be interfered with by numerous factors outside our control. To the extent that such factors are outside of our control, SkyM8 Pty Ltd shall not be liable.
You agree to indemnify and hold us and (as applicable) our related entities, affiliates, and our and their respective officers, directors, agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement or your violation of any law or the rights of a third party.
7. DISPUTE RESOLUTION
Where there is a dispute that the parties cannot resolve within 7 days from the date that the dispute arises, the matter is to be referred to a certified mediation or an arbitration entity. Alternatively, for disputes of a criminal nature, a report is required to be made to your local police or law enforcement agency as appropriate.
Any controversy or claim arising out of, or in connection with, this Agreement between SkyM8 Pty Ltd and its related entities and you may be settled by independent, confidential mediation by reference to a commercial disputes centre, at either partys election. You and SkyM8 Pty Ltd agree to be bound by the outcome of such mediation. Each party will bear its own costs (and split equally any joint costs) of mediating the dispute
8. GENERAL TERMS OF AGREEMENT
This Agreement may be assigned by SkyM8 Pty Ltd to a third party without your consent in the event of a sale or other transfer of some or all of the assets of SkyM8 Pty Ltd. In the event of any sale or transfer you will remain bound by the Agreement.
8.2. Liability Limit
You agree to accept sole responsibility for the legality of your actions under the laws which apply to you. You agree that SkyM8 Pty Ltd and all affiliates and related entities of SkyM8 Pty Ltd have no responsibility for the legality of our members actions.
To the extent permitted by law, and subject to any contrary requirements arising under any applicable law, our liability, and the liability of our related bodies corporate, affiliates or suppliers, to you or any third parties in any circumstance is limited to the greater of:
I) The amount of fees you pay to us in the 12 months prior to the action giving rise to liability; or
Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of SkyM8 Pty Ltd and its affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Trade Practices Act 1974 (Cth) and relevant state fair trading legislation.
8.3. Continuation of Binding Agreement
By accepting this Agreement (including the Policies) you agree to be bound by it and also the User Agreements and posted terms and conditions on other websites operated by SkyM8 Pty Ltd and its related and affiliated companies, to the extent that you use those websites.
Each time you use our services you confirm your agreement to be bound by and acknowledge any changes to the Agreement (including the Policies). You also undertake to familiarise yourself with and comply with the Policies relevant to your use of our Site and the services provided under this Agreement (as may be amended from time to time).
8.4. Legal Compliance
In addition to this Agreement, you must familiarise yourself with, and comply with the Policies, domestic laws (including common law) international laws, statutes, ordinances and regulations regarding your use of our services including bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
Except as stated otherwise, any notices must be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail) or by email to:
SkyM8 Pty Ltd
Airlie Beach 4802
Alternatively, we may give you notice by certified airmail, postage prepaid and return receipt requested, to the address provided to SkyM8 Pty Ltd during the registration process, or as updated by you as relevant.
Any notice shall be deemed given:
(a) if sent by email, 24 hours after email is sent, unless the sending party is notified that the email address is invalid,
(b) if sent by pre-paid post, three Business Days after the date of posting, and on the seventh Business Day if sent to or posted from outside Australia, and
(c) if sent by facsimile transmission, on the Business Day the transmission is sent (as long as the sender has a confirmation report specifying the facsimile number listed above, the number of pages sent and the date of the transmission).
8.6. Variation of Terms and Conditions
We may amend the terms and conditions of this Agreement from time to time. Amended terms will be posted on our Site. The fact that amendments have been made to this Agreement will also be notified by email. All amended terms will automatically be effective 7 days after they are initially notified on our Site.
If you do not agree with such changes to this Agreement you must terminate your membership with SkyM8 Pty Ltd.
If, after any such changes to this Agreement or any of our Policies you continue to be a member of our Site, you will be considered by us to have accepted the varied terms as part of the Agreement.
8.7. Governing Law
This Agreement is governed by the laws of Queensland and the parties submit to the jurisdiction of the courts of that State and the Commonwealth of Australia.
If any provision of the Agreement should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be affected or impaired. This Agreement must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
8.9. Force Majeure
SkyM8 Pty Ltd will not be liable for any breach of Contract due to any matter of thing beyond their control (including but not limiting to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots, intervention or public authority).
8.10. Waiver of Breach
No failure by ONLINE BUSINESS to insist on strict performances of any of the terms in this agreement is a waiver of any right or remedy which they may have, and is not
Each member acknowledges the existence of the Privacy Act 1988 (Cth) (“the Privacy Act”) and respects each members rights under this legislation.
SkyM8 Pty Ltd is not responsible or liable for any breach by any member for any breach whatsoever under the Privacy Act. SkyM8 Pty Ltd will only use or disclose member information in accordance with the authorized purposes or as otherwise agreed in writing between SkyM8 Pty Ltd and the member.
You acknowledge and accept that use of this service indicates your acceptance of these terms and conditions.