Terms and Conditions of use for Oktion
Provided by: DigiGround Pty Ltd
This Version: 2018-01
Previous Version: N/A
Last Update: 01st September 2018
This User Agreement is effective upon acceptance for new users, and from 1st September 2018 for new and existing users.
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This User Agreement, the Mobile devices terms, and all policies and additional terms posted on and in our sites, applications, tools and services (collectively “Services”) set out the terms on which DigiGround Pty Ltd offers you access to and use of our Services. You can find an overview of our policies here. The Mobile devices terms, all policies and additional terms posted on and in our sites, applications, tools, and services are incorporated into this User Agreement. You agree to comply with all of the terms of this User Agreement when accessing or using our Services.
The entity you are contracting with is: DigiGround Pty Ltd Suite 8.02, Level 8, 227 Elizabeth Street, Sydney, NSW, 2000
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below).
Oktion is a service that allows users to offer, sell and buy just about anything in a variety of pricing formats and locations through the organisation of event auctions. The actual contract for sale is directly between the seller and buyer. Neither Oktion, nor DigiGround Pty Ltd are traditional auctioneers.
While we may provide pricing, shipping, listing, sourcing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, DigiGround Pty Ltd has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
In connection with using or accessing the Services you will not:
- post, list or upload content or items in inappropriate categories or areas on our sites;
- breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
- use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
- fail to pay for items purchased by you, unless you have a valid reason as set out in an Oktion policy, for example, the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the seller (see our Unpaid item policy);
- fail to deliver items sold by you, unless you have a valid reason as set out in an Oktion policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
- manipulate the price of any item or interfere with any other user’s listings;
- post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- transfer your Oktion account and user ID to another party without our consent;
- distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
- distribute viruses or any other technologies that may harm Oktion, DigiGround Pty Ltd or the interests or property of users;
- use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of DigiGround Pty Ltd;
- interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- export or re-export any DigiGround Pty Ltd application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to DigiGround Pty Ltd. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to DigiGround Pty Ltd or someone else;
- infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belong to you;
- commercialize any DigiGround Pty Ltd application or any information or software associated with such application, except with the prior express permission of DigiGround Pty Ltd;
- harvest or otherwise collect information about users without their consent; or
- circumvent any technical measures we use to provide the Services.
Sellers must meet DigiGround Pty Ltd’s minimum performance standards. Failure to meet these standards may result in DigiGround Pty Ltd charging you additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing Oktion and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating the policy on Offers to buy or sell outside of Oktion, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Oktion, you may be liable to pay a final value fee applicable to that item, even if the item does not sell.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
The fees we charge for using our Services are listed on our Selling Fees page. We may change our seller fees from time to time by posting the changes on the Oktion site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
If you are a seller, you are liable for transaction fees arising out of all sales made using some or all Oktion Services, even if sales terms are finalised or payment is made outside of Oktion. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Oktion, you may be liable to pay a final value fee applicable to that item, even if the item doesn’t sell, given your usage of Oktion Services for the introduction to a buyer.
You must have a payment method on file when selling through Oktion Services and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, retain collection agencies and legal counsel. In addition, you will be subject to late fees. DigiGround Pty Ltd, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information DigiGround Pty Ltd reported to a credit bureau please contact us at DigiGround Pty Ltd Suite 8.02, Level 8, 227 Elizabeth Street, Sydney, NSW, 2000. If you wish to dispute the information a collection agency reported to a credit bureau regarding your DigiGround Pty Ltd account, you must contact the collection agency directly.
Seller fees don’t purchase exclusive rights to item exposure on Oktion, whether on a web page, mobile app, or otherwise. We may, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers, display third-party advertisements (including links and references thereto) or other content in any part of our Services.
When listing an item, you agree to comply with DigiGround Pty Ltd’s Listing policies and Selling practices policy and that:
- You are responsible for the accuracy and content of the listing and item offered
- Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). DigiGround Pty Ltd can’t guarantee exact listing durations
- Content that violates any of Oktion’s policies may be modified, obfuscated or deleted at DigiGround Pty Ltd’s discretion
- We may revise product data associated with listings to supplement, remove, or correct information
- We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- buyer’s location, search query, browsing site, and history;
- item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
- seller’s history, including listing practices, Oktion policy compliance, Feedback, and defect rate; and
- number of listings matching the buyer’s query
- Some advanced listing upgrades will only be visible on certain Services
- Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results
When buying an item, you agree to the Rules and policies for buyers and that:
- You are responsible for reading the full item listing before making a bid or commitment to buy
- You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted)
- For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer’s serious expression of interest in buying the seller’s item and does not create a formal contract between the buyer and the seller
- We do not transfer legal ownership of items from the seller to the buyer
International Buying and Selling
Many of our Services are accessible to international sellers and buyers. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
You authorise us to use automated tools to translate your DigiGround Pty Ltd content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against DigiGround Pty Ltd, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of the Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. DigiGround Pty Ltd takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including Oktion users). You may use that content solely in your Oktion listings. DigiGround Pty Ltd may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through the Services will always be available, accurate, complete, and up-to-date. You agree that DigiGround Pty Ltd is not responsible for examining or warranting the listings or content provided by third parties through the Services, and that you will not attempt to hold us or our data providers liable for inaccuracies. As a seller, you agree to ensure that content directly associated with your listings is accurate.
The name “Oktion” and other DigiGround Pty Ltd marks, logos, designs, and phrases that we use may not be used without the express written prior permission of DigiGround Pty Ltd.
Authorisation to Contact You; Recording Calls; AnalySing Message Content
DigiGround Pty Ltd may share your telephone number with its authorised service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorised by DigiGround Pty Ltd to carry out the purposes identified above.
DigiGround Pty Ltd may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with DigiGround Pty Ltd or its agents for quality control and training purposes, or for its own protection.
DigiGround Pty Ltd’s automated systems scan and analyse the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of DigiGround Pty Ltd’s User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. DigiGround Pty Ltd may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If DigiGround Pty Ltd provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in Oktion’s applications may not occur in real time. Such functionality is subject to delays beyond DigiGround Pty Ltd’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- the content you provide (directly or indirectly) using the Services;
- your use of or your inability to use our Services;
- pricing, shipping, format, or other guidance provided by DigiGround Pty Ltd;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any DigiGround Pty Ltd Service;
- the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
- a suspension or other action taken with respect to your account or breach of the Abusing Oktion Section above;
- the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
- your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from 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. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of Oktion’s Services or your breach of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DIGIGROUND PTY LTD HAVE AGAINST EACH OTHER ARE RESOLVED.
You and DigiGround Pty Ltd agree that any claim or dispute at law or equity that has arisen, or may arise, between you and DigiGround Pty Ltd (including any claim or dispute between you and a third-party agent of DigiGround Pty Ltd) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of DigiGround Pty Ltd or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New South Wales, Australia, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and DigiGround Pty Ltd, except as otherwise stated in this User Agreement.
B. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, you agree that any claim or dispute that has arisen or may arise between you and DigiGround Pty Ltd must be resolved exclusively by a state or federal court located in Sydney, New South Wales. You and DigiGround Pty Ltd agree to submit to the personal jurisdiction of the courts located within Sydney, New South Wales for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.oktion.com.au.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.oktion.com.au. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an DigiGround Pty Ltd representative who intends to amend this User Agreement and is duly authorised to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the DigiGround Pty Ltd Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and DigiGround Pty Ltd, and supersede all prior understandings and agreements of the parties.