THE FOLLOWING SETS OUT THE TERMS AND CONDITIONS ON WHICH (“PITCHSOME”) OFFERS YOU ACCESS TO THE PITCHSOME WEBSITE LOCATED AT www.Pitchsome.com (“Site”) AND ITS SERVICES. BY TICKING THE CHECKBOX ON THE JOIN PAGE, YOU ACCEPT THE TERMS AND CONDITIONS BELOW.
Before proceeding to use our services, you should read this User Agreement carefully. If you find do not agree to these terms, you must not use the Site. If, however, you agree to these terms unconditionally you will be given the opportunity to click the “I accept” checkbox during the registration process, and you will then be able to use the Site to which this User Agreement applies.
This User Agreement may be amended by Pitchsome at any time by posting the amended terms on this Site. The amended terms will automatically be effective 7 days after they are initially posted on the Site. As such, you should periodically check to see what amendments have been made to these terms. Your continued use of the Site or the services provided on the Site following the posting of any amendments will mean that you accept these amendments.
1.1 Definition of words and phrases.
In these terms, the following words and expressions shall have the following meanings:
“Item” means a good offered for sale on the Site pursuant to these Terms.
“Seller” means a person offering an Item for sale on the Site.
“Services” means the online shopping platform and all other services offered by Pitchsome through the Site.
“User” means as a User of the Site, including but not limited to its members, Buyers and Sellers, and unless the context requires otherwise includes you.
“You”means the person accepting this User Agreement to become a Member of Pitchsome.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any term.
2. FORMATION OF CONTRACT
2.1 You acknowledge that these Member Terms form a legally binding contract between you and Pitchsome.
2.2 Pitchsome reserves the right in its absolute discretion to refuse, suspend or cancel the membership of any member without notice.
2.3 This User Agreement overrides any contrary terms or conditions published by Pitchsome or appearing on the Site pertaining to members.
2.4 In consideration of Pitchsome agreeing to your use of the Site, you agree to comply with this User Agreement.
3. MEMBERSHIP AND MEMBER RESPONSIBILITIES
3.1 Any person wishing to use the Services as a Seller must first register as a member by providing the required information and accepting this User Agreement by ticking the “I have read and agree to PITCHSOME’s User Agreement” checkbox.
3.2 You may only register as a member if you can form a legally binding contract that is enforceable against you.
3.3.Your Pitchsome account, User ID, Password ratings, may not be transferred or sold to another party.
3.4 When registering as a member, you must ensure your User ID is not abusive, illegal, indecent, obscene, offensive, racist or threatening in any way and is not otherwise in breach of any Pitchsome policy or rule.
3.5 When creating a User ID, you may not use a term that could be confused with someone else’s trade mark or brand (e.g. NikeShoes), unless you have authority from the trade mark owner.
3.6 You may not register a User ID that is or represents an email address or a web site address (URL).
3.7 You must ensure that your access to and use of this Site is not illegal or prohibited by laws which apply to you.
3.8 You must take your own precautions to ensure that the process which you employ for accessing the Site does not expose you to risk of viruses or other forms of interference which may damage your computer system.
3.9 You acknowledge that Pitchsome does not act as agent for either Buyer or Seller and is not a party to any contract arising from the sale of an Item through the Site.
3.10 Unless Pitchsome agrees otherwise in writing, you are provided with access to the Site only for your personal use. Without limiting the foregoing, you may not without Pitchsome’s written permission on-sell or otherwise on-transmit information obtained from this Site.
4.1 As a member of Pitchsome, you may submit content to the Service, which may include videos, images, descriptions and ratings and comments.
4.2 You agree and acknowledge that you are solely responsible for the content you submit to Pitchsome. Furthermore, you represent and warrant to Pitchsome that:
a) the content submitted by you does not infringe any party’s intellectual property, rights of publicity or privacy, right to confidentiality or other proprietary rights;
b) you have all necessary rights, licenses and consents to submit, publish and communicate the content;
c) the content is not obscene, does not contain defamatory, libellous, unlawfully threatening or unlawfully harassing material and is not otherwise contrary to law;
d) the content is unique for the particular item which you are selling and must not be used for multiple items;
3) all persons appearing in the content have consented to the use of their image and appearance in the content; and
f) the content complies with applicable Pitchsome policies and guidelines.
4.3 By submitting content to Pitchsome you grant to Pitchsome an irrevocable, perpetual, non-exclusive, royalty-free worldwide licence to use, copy, adapt, publish, commercialise, modify, distribute and sub-licence the content. You also warrant to Pitchsome that you have the right to grant the licence contained in this term 4.3.
5. PROVISIONS RELATING TO SELLERS
5.1 You must not offer any Item for sale on the Site:
a) which you are not legally able to sell, or which you cannot sell to the Buyer free from all charges, liens and encumbrances;
b) which is within Pitchsome’s Prohibited Item List or which is in contravention of any law or regulations governing the sale of the Item;
c) the get-up, production or sale of which infringes any third party’s intellectual property, rights of publicity or privacy, right to confidentiality or other proprietary rights;
d) which contains defamatory, libellous, unlawfully threatening or unlawfully harassing statements whether such statements be in the form of words, drawings, photographs, 3-dimensional representations or otherwise;
e) which is obscene; or
f) which is contrary to law.
5.2 By offering an Item for sale on this Site, you as Seller, warrant and undertake to Pitchsome and all Buyers that:
a) you do not and will not engage in the prohibited conduct set out in term 6.1 above;
b) the information supplied by you is correct and accurate in all material respects and does not contain:
i. defamatory, libellous, unlawfully threatening or unlawfully harassing statements;
ii. obscene material
iii. any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
iv. any hyperlinks unless permitted by Pitchsome.
c) the Items offered by you are not within Pitchsome’s Prohibited Item List;
d) you will not list or offer or sell any Item which, by Pitchsome’s involvement (including through receiving any payment) could cause Pitchsome to violate any law, statute, ordinance or regulation.
5.3 In using the Site, you must not create any link directly or indirectly to any website other than the Site:
a) a) that offers goods or services that are prohibited under this User Agreement;
b) where that other website lists the exact Item that you propose to sell;
c) where that other website contains an offer to sell identical items to your Item that is listed on the Site, but are priced lower that your Item’s start price or BuyNow price; or
d) that you do not otherwise have a right to link to or include.
6. RIGHTS OF PITCHSOME
6.1 Pitchsome may, in its sole discretion, suspend or terminate your account without any compensation if, in Pitchsome’s opinion:
(a) (a) you have breached this User Agreement;
(b) you appear to have engaged in fraudulent activity in connection with this Site; or
(c) your continued use of the Site may impact on Pitchsome’s reputation or business.
6.2. Pitchsome has the absolute and unfettered right to reject or remove any information, content or materials supplied by you without notice or compensation. Without limiting this right, Pitchsome may reject or remove any information, content or materials supplied to it if Pitchsome considers (without having to assign any reason therefore) that the information, content or material, if published or continued to be published, could cause Pitchsome to incur any liability to third parties, could cause Pitchsome to be in breach of any law or regulations of any competent jurisdiction or rights of third parties, or could otherwise impact on Pitchsome.
6.3 Pitchsome may assign the rights and benefits you have granted to it under this User Agreement in favour of any party at Pitchsome’s sole discretion.
7. SECURITY OF INFORMATION AND PRIVACY
7.1 You acknowledge that no data transmission over the Internet can be guaranteed as totally secure and Pitchsome does not warrant to you and cannot ensure the security of any information which you transmit to it. Accordingly, any information which you transmit to Pitchsome is transmitted at your own risk. Nevertheless, once Pitchsome receives your transmission, it will take reasonable steps to preserve the security of such information.
7.3 Pitchsome does not undertake to retain listings or other records of specific transactions, it is your sole responsibility to ensure you maintain accurate records of your dealings on the Site.
8. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
8.1 Pitchsome provides a service through the Site where members may offer, sell or buy Items, it does not examine Items that are listed for sale and has no control whatsoever on the actual quantity, quality, safety, legality or the fitness for any purpose of any Item.
8.2 The Site is provided by Pitchsome on an “as-is” basis and the only obligations on Pitchsome are set out in this User Agreement. Pitchsome does not warrant that the functions contained in the Site and the Services provided will be uninterrupted or error free, that defects will be corrected, or that the Site or its servers are free of viruses or other harmful components
8.3 You acknowledge that Pitchsome makes no representations or warranty in respect of:
a) the availability of the Site or any Services;
b) the use or the results of the use of the Site;
c) the ownership of or title to any Item advertised on the Site;
d) the quality or authenticity of any Item advertised on the Site;
e) the manner in which an Item advertised on the Site is described or representations made by the seller;
f) the information provided by any person using the Site;
g) the identity of any person using the Site.
8.4 To the full extent permitted by law, Pitchsome excludes all responsibility for any loss or damage (including any indirect or special or consequential loss or damage), however caused (including through negligence) which you may directly or indirectly suffer in connection with your use of the Site (including but not limited to a failure of Pitchsome to process a transaction; a failure of an Item to be delivered by the Seller; or a failure on the part of a Buyer or Seller to complete the dale of an Item), nor does it accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through the Site.
8.5 In case of any dispute between Users or any dispute arising from the use of the Services, you hereby release Pitchsome to the full extent permitted by law from all liabilities claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
8.6 To the extent permitted by law, Pitchsome expressly excludes all guarantees, terms, representations and warranties that would otherwise arise or be implied by law in respect of the Site, any Services and any Item.
8.7 Pitchsome does not approve or validate transactions, advice or communications made through the Site, you accept sole responsibility for the legality of your actions under laws applying to you.
8.8 Pitchsome does not accept any obligation to protect you from any unsafe merchandise, products or services that may be offered on the Site. It is your sole responsibility to satisfy yourself of the suitability and safety of Items.
8.9 Any payment gateway or ancillary payment processing facilities provided to you are for convenience only and Pitchsome gives no warranty, expressed or implied, in connection with such facilities. To the full extent permitted by law, Pitchsome will in no event be liable for any loss, damages, costs or expenses suffered or incurred by you arising out of or as a result of any error and/or mistake and/or misstatement in debiting or crediting your credit card account, as well as any malfunction, failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, loss or corruption of data, or any other non-performance related to the payment gateway facilities.
8.10 To the extent that any liability of Pitchsome in connection with the supply of goods or services cannot be excluded, then, to the full extent permitted by law, that liability is limited, at Pitchsome’s option, to (i) replacing or repairing the relevant goods, (ii) supplying goods equivalent to the relevant goods, (iii) supplying the relevant services again or (iv) paying the cost of such replacement, repairs or supply.
8.11 If Pitchsome is required by you or by your order in any litigation in which you are involved whether under subpoena or order of the Court of any competent jurisdiction, including complying with any order for discovery or attending court for giving evidence, you shall bear all costs incurred by Pitchsome in connection with the provision of such service, including Pitchsome’s costs for taking legal or other professional advice or representation (in all such cases, the costs shall be calculated on an indemnity basis).
8.12 For the purposes of this clause, the term Pitchsome will mean carsales.com Ltd, its officers, employees, contractors and agents, whether individually or collectively, and its related bodies corporate and their officers, employees, contractors and agents, whether individually or collectively.
8.13 This clause 13 will survive the expiration or termination of this any contract.
Copyright in the Site (including text, graphics, logos, icons, audiovisual material and software) is owned by or licensed to Pitchsome. Other than for the purposes of and subject to the conditions described under the Copyright Act 1968 (Cth) and except as expressly authorised by these terms and conditions, you may not in any form or by any means adapt, reproduce, store, distribute, print, display, perform, publish, or create derivative works from, any content of the Site, or commercialise any information, products or services obtained from any part of this Site without Pitchsome’s prior written permission.
You agree to indemnify and hold Pitchsome, its subsidiaries and each of Pitchsome’s and its subsidiaries’ affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors’ fees, made by any third party due to or arising out of your breach of this User Agreement or the terms of guidelines and policies it incorporates by reference, or your violation of any law or the rights of a third party.
11.1 You must not:
a) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site;
b) take any action which imposes an unreasonable or disproportionately large load on the infrastructure of the Site; or
c) disclose or share your account details and / or password to any third parties or use any third party’s account and / or password.
11.2 You must comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site and any Services and any bidding on, listing, purchase and sale of an Item through the Site.
11.3 Nothing in this User Agreement will constitute or create any relationship of agency, partnership, joint venture, employee/employer or franchiser/franchisee between Pitchsome and any Seller, Buyer or other Users of the Site or any Services.
11.4 Except as explicitly stated otherwise, any notices shall be given by way of email, and in respect of the User, notices shall be deemed given if sent to the email address provided by the User to Pitchsome during registration process or such other address as the User shall specify, or by posting such notices on this Site.
11.5 Any term contained in this User Agreement prohibited by or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this User Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this User Agreement. Where, however, the provisions of any such applicable law may be waived, they are hereby waived by the parties hereto to the full extent permitted by such law to the end that this User Agreement shall be valid, binding and enforceable.
11.6 If any provision of this User Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining terms shall remain in force.
11.7 Pitchsome’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
11.8 All users of Pitchsome are also bound by Google’s Terms of Service
12. GOVERNING LAW AND JURISDICTION
12.1 This User Agreement are subject to the laws of Den Haag, Netherlands.
12.2 This User Agreement and/or your access to the Site may be terminated by Pitchsome at any time without notice. Where the contract between you and Pitchsome is terminated, those terms capable of surviving such termination shall do so.