BITIFY PTY. LTD. – MARKETPLACE TERMS AND CONDITIONS
Bitify Pty. Ltd. (ABN 33 613 066 676) (referred to as Bitify) provides a service where individuals can buy (Buyer) or sell (Seller) goods or services via the Bitify website at https://bitify.com (Site).
Acceptance of Terms
- These Marketplace Terms and Conditions (Terms) form a binding legal agreement between Bitify, its directors, officers, employees, successors and assignees, and each person, organisation or entity using the Services including but not limited to each Buyer and Seller (each referred to as a User, collectively the Users). By ticking the ‘I Agree’ option on registration and using the Site and Services, each User agrees to comply with and be legally bound by these Terms. Please read the Terms carefully. If there are any questions, the User is encouraged to contact Bitify using the contact details at the end of these Terms.
- The User’s use of the Site and the Services indicates that the User:
- has had sufficient opportunity to access these Terms and contact Bitify;
- has read, accepted and will comply with these Terms;
- has legal capacity to enter into a contract for sale; and
- is 18 years or older.
If this is not correct, or if the User does not agree to these Terms, the User is not permitted to use any of the Services.
- These Terms may be amended from time to time. Use of these Services following any such amendments will be deemed to be confirmation that the User accepts those amendments. Although Bitify will use reasonable endeavours to notify Users regarding amendments to these Terms via email, Bitify recommends that each User checks the current Terms before continuing use of the Services. Bitify’s agents, employees and third parties do not have authority to change the Terms.
- Bitify provides the following services via the Site:
- an introductory service where Sellers list their goods or services for Buyers to purchase (Introductory Service); and
- a payment service provider for transactions conducted between Buyers and Sellers (Transaction) using bitcoin or litecoin (Cryptocurrency) where Bitify acts as a: limited payment collection agent to facilitate payment; or payment moderator for escrow transactions (Payment Services),
(the Introductory Service and Payment Services collectively referred to as Services).
- To access all Services and features on the Site, a User must register on the Site and create an account (Account) and a public profile visible to all Users setting out the information as requested on the Site (Profile). Each User is responsible for its own Account, Profile and obtaining their own Cryptocurrency wallet as required to receive the Services and pay the applicable fees on the Site.
- Users with an Account will be able to use the Site and Services as a Buyer or a Seller and access the Site to communicate with other Users and (i) use the Introductory Service to obtain goods or services from other Users; and (ii) use the Payment Service to carry out self-managed escrow transactions.
- Bitify provides the following services via the Site:
- Sellers can create listing(s) (Listing) on the Site to advertise the sale of the Seller’s goods (Seller Products) and/or the availability of the Seller’s services (Seller Services).
- A Seller must set out all relevant information in a Listing such as the time, date and location of any Seller Service, the fee for any Seller Service, the purchase price of any Seller Product, any delivery fees in respect of any Seller Product, any refund and exchange policy in respect of any Seller Product, any refund policy in respect of any Seller Service and any other terms and conditions applicable to the sale of any Seller Product or the supply of any Seller Service.
- Sellers can view the Profiles of Buyers, and contact Buyers via: the private messages system available on the Site (Bitify Private Messages) to enter into a Transaction with Buyers. Bitify recommends Users communicate strictly via the Bitify Private Messages to undertake and complete Transaction(s). Each User acknowledges and agrees if they communicate outside the Bitify Private Messages, they do so at their own risk.
- Buyers will be able to: view Listings, request Seller Services and/or Seller Products, contact Sellers, book and pay for Seller Services and/or order and pay for Seller Products, through the Site. When a Buyer orders any Seller Product and/or books any Seller Service, they accept any terms and conditions as set out in the relevant Listing.
- Buyers can view the Profiles of Sellers, and contact Sellers via the Bitify Messenger and commence Transactions with the Seller.
- When a Buyer makes an offer to purchase the Seller Product and/or Seller Service as set out in a Listing (Purchase), the Buyer accept the Cryptocurrency amount due and payable by the Buyer to the Seller (Purchase Price) and the Seller agrees the Purchase Price will be locked for 48 hours (Price Lock). If the Buyer does not make full payment of the relevant fees including the Purchase Price within those 48 hours, then the Price Lock will expire and your Purchase will be cancelled.
- Each User understands and agrees that the Site is an online introductory platform only, and that Bitify’s responsibilities are limited to facilitating the availability of the Site and the Services.
- Subject to the provision of Payment Services, Bitify is not a party to any Transaction or agreement entered into between a Buyer and a Seller. If a Buyer contacts a Seller and requests Seller Services and/or Seller Products, the Transaction and any agreement entered into is solely between the Buyer and Seller. It is strictly and expressly not part of the User’s agreement with Bitify.
- Bitify is not a referrer or booking agent, and provides no such related services. Bitify has no control over the conduct of Buyers, Sellers and any other Users of the Site and the Services. Bitify disclaims all liability in this regard, as set out in these Terms.
- Each User agrees and appoints Bitify to be the provider of Payment Services for the duration of these Terms and act as limited payment collection agent in accordance with clause 11.
- A Buyer may elect to pay for Seller Products or Seller Services using Cryptocurrency directly (Direct Payment) or in escrow (Escrow Payment).
- Each User acknowledges that the use of the Services may result in charges to them when they commence a Transaction including:
- the Purchase Price;
- Bitify’s service fee payable by the Seller to Bitify for facilitating the payment in Cryptocurrency from Buyer to Seller (Seller Transaction Fee); and
- Bitify’s service fee payable by the Buyer to Bitify if the Buyer elects to pay a Purchase Price using Escrow Payment (Escrow Fee).
(the Purchase Price, Seller Transaction Fee and Escrow Fee collectively referred to as Fees). The Fees are as set out on the Site at the time a User makes an offer to purchase the Seller Product and/or Seller Service set out in the Listing.
- If a Buyer elects to pay the Purchase Price using Direct Payment:
- the Buyer will pay the full Purchase Price in Cryptocurrency directly to Bitify’s Cryptocurrency Wallet address as set out on the Site at the time Purchase (Bitify Cryptocurrency Wallet) and the Purchase Price will be collected by Bitify on behalf of the Seller as the Seller’s limited payment collection agent; and
- upon receipt of the Purchase Price, Bitify will immediately pay to the Seller the value of the Purchase Priceless less the Transaction Fee.
- If a Buyer elects to pay the Purchase Price using Escrow Payment:
- the Buyer will pay to the Bitify Cryptocurrency Wallet the full Purchase Price and the Escrow Fee;
- Bitify will hold the full Purchase Price for the benefit of the Seller in escrow (Escrow Funds) for up to a period of 30 days commencing from the day of Purchase (Determination Period). For the avoidance of doubt, if the Buyer makes full payment of the Purchase Price 24 hours after Purchase, Bitify will hold the Escrow Funds for 29 days from the time of payment;
- the Buyer acknowledges and agrees that Bitify does not directly debit any amount from the Buyer’s Cryptocurrency wallet and all payment must be initiated by the Buyer; and
- the Users to the Transaction acknowledge and agree the Escrow acceptance and rejection process set out in clause 5 apply.
- Each User may only have one (1) Account on the Site including a Profile. Users will choose a username and password for their Account.
- Basic information is required when registering on the Site for an Account. Each User is required to provide certain information including name, email address, location and select a username and password.
- Each User agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Bitify reserves the right to suspend or terminate any User’s Account and his/her access to the Site and Services if any information provided to Bitify proves to be inaccurate, not current or incomplete.
- It is the User’s responsibility to keep its Account details, username and password confidential. The User is liable for all activity on its Account, including purchases made using its account details. The User agrees that it will not disclose its password to any third party and that it will take sole responsibility for any activities or actions under its Account, whether or not it has authorised such activities or actions.
- The User will immediately notify Bitify of any unauthorised use of its Account.
Users and User Profiles
- Users who have created an Account are permitted to create Profiles. The User’s Profile for its use of the Site is created from the personal information it provides to Bitify.
- A Seller will be required to provide valid form(s) of identification as requested on the Site and contact details to create a Listing to advertise certain Seller Products and/or Services as set out on the Site, including but not limited to digital gift cards.
- Each User acknowledges and agrees that it is responsible for its own Profile.
- Each User acknowledges and agrees that any communications entered into with another User is at his or her own risk. Bitify does not provide a User with and cannot guarantee that other Users have genuine intentions.
- Each User should report to Bitify any activities or requests of Users which are, or which the User reasonably believes to be:
- illegal; or
- likely to have a negative effect on the reputation of Bitify, the Site, Services and/or a User.
- Each User acknowledges and agrees that while the Site allows Users to communicate with each other, Users are not permitted to share the contact information of other Users.
- Each User represents and warrants that any content that it provides and Profile and Listing that it posts:
- will not breach any agreements it has entered into with any third parties;
- will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any User in its local area and country; and
- will not conflict with the rights of third parties.
- For the avoidance of doubt, Bitify assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.
- Bitify reserves the right, at any time and without prior notice, to remove or disable access to any Account, Profile and/or Listing for any reason, including Accounts, Profiles and/or Listings that Bitify, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.
- Shipping of Seller Products and/or delivery of Seller Services: Bitify will provide notice to the Seller upon receipt of the Escrow Funds. Upon receipt of such notice, the Seller agrees: (i) to arrange to ship the Seller Products or deliver the Seller Services; (ii) within 72 hours of receipt of such notice, to mark the Seller Product and/or Services as “delivered” via the Site; and (iii) clause 9 will apply.
- Buyer Process: During the Determination Period the Buyer must accept the Delivery of the Seller Product and/or Seller Services or request a refund if there is a problem with the Seller Product and/or Seller Services. If the Buyer:
- accepts the delivery of Seller Product(s) and/or Seller Service(s) (Buyer Acceptance), they must click the “Release Escrow” button on the Site and Bitify will immediately disburse to the Seller the Escrow Funds less the Seller Transaction Fee and the Transaction will be deemed complete;
- has a problem with the Seller Services or otherwise requests a refund (Escrow Refund Request), Bitify will notify the Seller of such request and: if the Buyer has purchased Seller Products, the Buyer must promptly return the Seller Product to the Seller at the Buyer’s own expense; or if the Buyer has obtained Seller Services, Bitify will notify the Seller of such dispute and the dispute resolution process as set out in clause 13 will apply; or
- does not accept or reject the Seller Product(s) and/or Seller Service(s), Bitify will release Escrow Funds less the Seller Transaction Fee to the Seller upon expiry of the Determination Period.
The Buyer acknowledges and agrees the Escrow Fee is payable when the Buyer elects Escrow Payment, even if they accept or reject a Transaction or otherwise submits an Escrow Refund Request.
- Seller Process for Escrow Refund Request: Bitify will notify the Seller immediately of Bitify receiving notice of an Escrow Refund Request. Within 72 hours of receipt of such notice (Notice Period), the Seller must notify Bitify whether it accepts or disputes the Escrow Refund Request. If the Seller disputes the Escrow Refund Request, the Seller must open a dispute within the Notice Period (Dispute Notice) only by replying to the Escrow Refund Request notice and the dispute resolution process set out in clause 13 will apply. The Seller agrees Bitify will return to the Buyer the Escrow Funds held for the benefit of the Seller If the Seller:
- accepts the Escrow Refund Request; or
- does not provide a Dispute Notice prior to the expiry of the Notice Period.
- Bitify reserves the right to remove Escrow Payment from its Site and Services, to amend its procedure for Escrow Payment or to terminate its role as a limited payment collection agent at its discretion.
Ratings and Reviews
- Users may rate a Profile (Rating), which determines the popularity of individual Profiles. Buyers may also provide feedback to Sellers regarding Seller Products or Seller Services purchased by that Buyer (Review). Buyers may only leave Ratings and Reviews for the Seller’s Profile once they have purchased the products and/or services of the Seller.
- Ratings and Reviews of a Seller can be viewed by any User. Ratings and Reviews will remain viewable until the relevant Seller’s Account and Profile is removed or terminated.
- Buyers must provide true, fair and accurate information in their Review.
- If, in Bitify’s reasonable assessment, the Review is untrue, unfair, inaccurate, offensive or inappropriate, Bitify may delete the Review or ban the Buyer from posting the Review. Bitify does not undertake to review each Review made by a Buyer.
- To the fullest extent permitted by law, Bitify is not responsible for the content of any Reviews.
Delivery of Seller Products
- The Seller is to arrange delivery of any Seller Product to the Buyer. Bitify is not involved in the delivery process.
- A Buyer is required to refer to delivery information provided by the Seller or contact the Seller directly to confirm:
- that they are within the delivery area;
- the applicable delivery fees;
- when the Seller Product is likely to be dispatched;
- the method of delivery;
- when risk of loss, damage or deterioration to any Seller Product will pass to the Buyer; and
- what to do if a Seller Product is delayed, damaged or goes missing in the delivery process.
Fees and Payments
- Buyers and Sellers acknowledge that use of the Services including undertaking a Transaction may result in charges to them including the Fees, insurance, delivery fees and taxes but may be required to pay fees for any other Services that they request which are available on Bitify’s Site.
- Each User agrees to pay the applicable Fees for a Transaction as set out on the Site.
- As the Seller’s limited payment collection agent, Bitify will collect from the Buyer the Seller Fees on behalf of the Seller.
- Bitify will process and facilitate payment to a Seller’s Cryptocurrency wallet the total Seller Fees accrued for the Seller Services provided and/or Seller Products delivered to a Buyer under the applicable Transaction less any applicable fees payable by that Seller to Bitify.
- The User must pay for the Services in Cryptocurrency. The User must not pay, or attempt to pay, for the Services or a Transaction through any fraudulent or unlawful means. (f) Subject to clause 15, all payments made are final and the User shall not have the right to cancel its purchase for any reason and further each User agrees to satisfy all such payments made, with exception to action taken under the Refund Policy set out in these Terms.
- Bitify is not responsible for the payment of any sales, use, personal property or other governmental tax or levy imposed on any Seller Product or Seller Services supplied via the Services or otherwise arising from any Transaction undertaken by the Users.
- Bitify’s pricing structure or payment methods may be amended from time to time at its sole discretion.
Limited Payment Collection Agent
- Each Seller appoints Bitify as the Seller’s limited payment collection agent solely for the purpose of accepting the Seller Fees from the Buyer.
- Each User agrees that payment of Seller Fees in respect of a Seller by a Buyer to Bitify, as that Seller’s limited payment collection agent, shall be considered the same as a payment made directly by that Buyer to the relevant Seller and the Seller will provide the relevant Seller Services and/or Seller Product to the Buyer, as outlined in the relevant Listing, as if the Seller had received payment directly.
- Each User agrees that Bitify, as the Seller’s limited payment collection agent, may permit a Buyer to cancel a Transaction and provide the Buyer with a refund in accordance with the cancellation and refund policy set out in the Seller’s Listing or these Terms.
- For Direct Payments, Bitify, as limited payment collection agent for the Seller, agrees to facilitate the payment of any Seller Fees for Seller Services provided and/or Seller Products delivered unless otherwise agreed between Bitify and the Seller. For Escrow Payments, the process set out in clause 5 will apply. In the event that Bitify does not remit such amounts, the Seller will have recourse only against Bitify.
- Notwithstanding Bitify’s appointment as limited payment collection agent of each Seller, Bitify explicitly disclaims all liability for any acts or omissions of the Seller or any other third parties.
Offers and Promotions
- Bitify may, from time to time, make offers or promotions which may be applicable to the Services.
- The conditions of such offers or promotions will be specified on the Site.
- The User acknowledges and agrees that Bitify may, at its sole discretion, remove or extend any offers or promotions, and Bitify will not be responsible or liable for any potential loss or damage which the User incurs as a result of the removal or extension of any offers or promotions.
- By using our Site and Services, each User agrees that any legal remedy or liability that they may seek to obtain for actions or omissions of a Buyer, Seller, or other third party, will be limited to a claim against the Buyer, Seller or other third party, who caused harm to him or her. Bitify encourages Users to communicate directly with the relevant Buyer, Seller or third party to resolve any disputes.
- Bitify welcomes feedback from its Users. Bitify seeks to resolve concerns quickly and effectively. If any User has any feedback or questions about the Services, please contact any member of the staff.
- In any other circumstances, if there are any complaints from a User, Bitify will aim to respond and provide a suitable solution within 45 days. If a User is not satisfied with Bitify’s response, the User and Bitify agree to the following dispute resolution procedure:
- the complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The User and Bitify agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- if a resolution cannot be agreed upon at the Initial Meeting, either the User or Bitify may refer the matter to a mediator. If the User and Bitify cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.
- The User acknowledges that notwithstanding the procedure set out in clause 10(c), dispute resolution will take place electronically over email communication.
- Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
Cancellation of Registration
- If a User wishes to cancel its registration, it will need to do so by writing an email to [email protected] Users cannot cancel or deactivate their Account otherwise.
- No refunds will be made upon cancellation except as specified in the Refund Policy set out in these Terms.
Cancellation and Refund Policy
- If a Seller cancels a Transaction, is subject to an Escrow Refund Request or fails to deliver the Seller Products or Seller Services as set out in clause 7, Bitify will provide to the Buyer a full refund of the Purchase Price.
- Any cancellation, exchange or refund of a Seller Product and/or Seller Service: (i) after the expiry of the Determination Period, or (ii) where a Buyer pays the Purchase Price by Direct Payment, is strictly a matter between the Buyer and the Seller. The terms and conditions agreed to between the Buyer and Seller should be set out clearly in the Listing in respect of the Seller Product or Seller Service.
- Consumer legislation in Australia including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) provides consumers with guarantees that cannot be excluded, restricted or modified (Rights). Similar consumer protection laws and regulations in other countries may provide consumers with similar guarantees.
- If the User is a consumer as defined in the ACL, the following notice applies to the User from Bitify: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
- All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trade marks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site and Services, the layout, appearance and look of the Site, together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms and whether used or contained in the Site is owned, controlled or licensed to Bitify (or its affiliates and/or third party licensors as applicable).
- The User agrees that, as between the User and Bitify, Bitify owns or holds the relevant licence to all Intellectual Property rights in the Site and Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property, Site and Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by Bitify or the owner of the content.
- Some Intellectual Property used in connection with the Site and Services are the trademarks of their respective owners (collectively Third Party Marks).
- Bitify’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Bitify or the applicable trademark holder or Intellectual Property owner.
- Users of the Site do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of Bitify or the applicable Intellectual Property owner. Users may not do anything which interferes with or breaches the Intellectual Property rights.
- Subject to these Terms, Bitify grants the User a personal, non-exclusive, non-transferable, limited and revocable licence to use the Site and Services for its own personal and/or non-commercial use only on a computer or mobile device owned or controlled by the User as permitted in accordance with these Terms (User Licence), and not to use the Site and Services in any other way or for any other purpose, apart from local fair dealing legislation in accordance with the Copyright Act 1968 (Cth). All other uses are prohibited without Bitify’s prior written consent.
- The right to use the Site and Services is licensed to the User and not being sold to the User. A User has no rights in the Site and Services other than to use it in accordance with these Terms.
- This Agreement and User Licence governs any updates to, or supplements or replacements for the Site and Services, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.
- Each User is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to its use of the Site and Services. In connection with the User’s use of the Site and Services, the User may not and agrees that it will not:
- use the Site or Services for any commercial or other purposes that are not expressly permitted by these Terms;
- use the Site or Services in connection with Transactions that are illegal, which involve any illegal goods or services, or is for an illegal purpose as set out on the Site;
- register for more than one Account or register for an Account on behalf of another individual and/or entity;
- use the Services to find a Seller and then complete, or assist another individual to complete or transaction independent of the Services in order to circumvent the obligation to pay any fees related to Bitify’s provision of the Services;
- post any Review or upload any content (including but not limited to User Content) that is offensive, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames another User, Profile or Listing;
- submit any false or misleading information;
- as a Seller, offer any Seller Services or Seller Products that it does not intend to honour or cannot provide;
- as a Buyer, make any offers to the Seller that it does not intend to honour;
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
- copy, store or otherwise access any information contained on the Site and Services or content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- use the Site or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use the Site or Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
- stalk or harass any other user of the Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a User on the Site;
- use, display, mirror or frame the Site, or any individual element within the Site, Services, Bitify’s name, any Bitify trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page, without Bitify’s express written consent; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
- Each User is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to its use of the Site and Services. In connection with the User’s use of the Site and Services, the User may not and agrees that it will not:
- The Site, Services and Intellectual Property are protected by copyright, trademark, and other laws of Australia and international countries. The User acknowledges and agrees that the Site, Services and Intellectual Property, including all associated intellectual property rights are the exclusive property of Bitify and its licensors. The User will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Services, or Intellectual Property.
- The User must not post, upload, publish, submit or transmit any content that:
- infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- is fraudulent, false, misleading or deceptive;
- denigrates Bitify, the Site, Services, a Buyer, or a Seller;
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person; or
- promotes illegal or harmful activities or substances.
- Users are permitted to post, upload, publish, submit or transmit relevant information and content (User Content). By making available any User Content or any Intellectual Property on or through the Site and Services, the User grants to Bitify a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content and Intellectual Property on, through, or by means of the Site and Services.
- The User agrees that it is solely responsible for all User Content and Intellectual Property that it makes available through the Site and Services. The User represents and warrants that:
- it is either the sole and exclusive owner of all User Content and Intellectual Property that it makes available through the Site and Services, or that it has all rights, licences, consents and releases that are necessary to grant to Bitify the rights in such User Content or Intellectual Property, as contemplated under these Terms; and
- neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content or Bitify’s use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- Bitify may at its sole discretion remove or delete any User Content including but not limited to if the User Content is offensive or in breach of these Terms.
- Bitify does not guarantee that Seller Products and/or Seller Services will be requested by any Buyer, nor does Bitify guarantee that Buyers will be able to find desirable Sellers, Seller Products and/or Seller Services.
- Bitify does not endorse any Buyer, Seller, Profile, Listing or Seller Services and Seller Products. Bitify requires Buyers and Sellers to confirm that they have provided accurate information. Bitify does not perform any sort of background checks of Buyers and Sellers, and does not confirm any Buyer or Seller’s identity, Profile, Listing, Seller Services and/or Seller Products.
- Bitify cannot and does not control the content contained in any Profiles or Listings or the condition, legality or suitability of any Seller or Seller Services or Seller Products. Buyers are responsible for determining the identity and suitability of Sellers that they contact via the Services and the Seller Services and Seller Products.
- Bitify accepts no responsibility for and makes no representations or warranties to the User or to any other person or entity as to the reliability, accuracy or completeness of the information contained on the Site. Bitify disclaims any and all liability related to any and all Buyers, Sellers, Profiles, Listings, Seller Services and Seller Products.
- By using the Site or Services, the User agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of other Buyers or Sellers or other third parties will be limited to a claim against the Buyer or Seller or other third party who caused it harm. Bitify encourages the User to communicate directly with the relevant Buyer or Seller on the Site and Services regarding any communications or arrangements made between them and to resolve any dispute between them.
- To the fullest extent allowable under applicable law, Bitify disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Site or Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
- For the avoidance of doubt, Bitify is not responsible for any duties, fees, taxation, visa or immigration matters associated under these Terms. Bitify advises that all Users using the Site and Services should seek advice in relation to these matters.
- Each Buyer and Seller who uses the Site and the Services does so at their own risk.
- Bitify excludes all express and implied conditions and warranties, except for the User’s Rights, to the fullest extent permitted by law, including but not limited to:
- Bitify expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in these Terms;
- Bitify does not warrant that the Site, the Services, content on the Site (including pictures, videos, sound clips, resumes, links etc.), or the User’s access to the Site, the Services will be error free, that any defects will be corrected or that the Site or the server which stores and transmits material to the User is free of viruses or any other harmful components;
- Bitify takes no responsibility for, and will not be liable for, the Site, the Services, the Buyer, the Seller, Seller Services and Seller Products being unavailable, of a particular standard of workmanship, failing to meet the Profile description, failing to meet the Listing description, failing to meet the User’s needs, or being of less than merchantable quality; and
- Bitify will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the User’s information systems or costs of replacement goods, or otherwise, suffered by the User or claims made against the User, arising out of or in connection with the Site, Services, content on the Site, inability to access or use the Site, the Services, any Profile, any Listing, the Seller Services, the Seller Products or the Terms, even if Bitify was expressly advised of the likelihood of such loss or damage.
- The User agrees not to attempt to impose liability on, or seek any legal remedy from Bitify with respect to such actions or omissions.
Limitation of Liability
- Bitify’s total liability arising out of or in connection with the Site, the Services or the Terms, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by the User to Bitify in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
- The limitations of damages set forth above are fundamental elements of the basis of the bargain between Bitify and the User. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to the User.
- This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms inure to the benefit of Bitify.
- Each User agrees to defend and indemnify and hold Bitify (and Bitify’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Services; any breach by the User of these Terms; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
- Bitify reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
- This defence and indemnification obligation will survive these Terms and the User’s use of the Site or Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the User, but may be assigned by Bitify without restriction.
- Accuracy: While Bitify will endeavour to keep the information up to date and correct, Bitify makes no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site for any particular purpose. The User hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and Bitify expressly excludes any liability for such to the fullest extent permissible by law.
- Security: Bitify has a secured business system with an SSL connection to protect all User transactions and to ensure maximum security. Bitify also uses individually ‘salted’ passwords. Bitify stores information across different servers, including multiple servers in Germany. Daily backups are in place for security purposes.
- Termination: Bitify reserves the right to refuse supply of the Services required by any User, terminate any User’s Account, terminate its contract with any User, and remove or edit content on the Site at its sole discretion, without incurring any liability to the User. If Bitify decides to terminate a User’s Account any of the following may occur, with or without notice to the User:
- the User’s Account will be deactivated, its password will be disabled and it will not be able to access the Site, Services, its Account or its User Content;
- any pending or future Transaction (in respect of a Seller or Buyer) will be immediately terminated;
- Bitify may communicate to the relevant Seller or Buyer that the Transaction has been cancelled;
- Bitify may refund the Buyer in full, regardless of the cancellation and refund policy; and
- Bitify may contact Buyer to inform them of potential alternative Seller Services or Seller Products available from different Sellers on the Site and Services.
- Fraudulent and Illegal Activities: Each User acknowledges and agrees that, in the event Bitify reasonably suspects that there are fraudulent or illegal activities occurring within the Site and Services, Bitify reserves the right to immediately terminate any Accounts involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations. Such activities include the publication of illegal content, spam, scam and phishing.
- Force Majeure: Bitify will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
- Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
- Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by Bitify of any of the Terms shall be effective unless Bitify expressly states that it is a waiver and Bitify communicates it to the User in writing.
- Assignment: A User must not assign any rights and obligations under the Terms whether in whole or in part without Bitify’s prior written consent.
- Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- Jurisdiction and Applicable Law: These Terms, use of this Site, the Services and any dispute arising out of any User’s use of the Site or Services is subject to the laws of New South Wales, Australia, and subject to the exclusive jurisdiction of the New South Wales courts. The Site may be accessed throughout Australia and overseas. Bitify makes no representation that the content of the Site complies with the laws (including intellectual property laws) of any country outside Australia. If a User accesses the Site from outside Australia, it does so as its own risk and are responsible for complying with the laws in the place where he/she accesses the Site.
- Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between Bitify and each User, and supersede any prior agreement, understanding or arrangement between Bitify and each User, whether oral or in writing.
For questions and notices, please contact:
BITIFY PTY. LTD. (ABN 33 613 066 676)
Level 2/341 Barrenjoey Road
Newport Beach NSW 2106
Email: [email protected]