Bazaar Global Ventures Pty Ltd
ACN 637 178 431 ABN 53 637 178 431
This Software License Agreement (this “Agreement”) is between you and Bazaar Global Ventures Pty Ltd A.C.N. 637 178 431 which owns the Software that you are accessing or using (“Bazaar Global”or “we” or “us”).
The “Effective Date” of this Agreement is the date of your initial access to or use of the Software.
By clicking on the “I agree” (or similar button or checkbox) or by using or accessing the Software, you indicate your agreement to be bound by this Agreement. If you do not agree to this Agreement, you must not use or access the Software.
1. Scope of Agreement
2. Accounts; Authorized Users
3. Use of the Software
5. New Releases
6. License Term, Returns and Payment
8. Confidentiality. You agree that the architecture and functionality of the Software, its Documentation, Bazaar Global’s pricing and any other information disclosed to you by Bazaar Global which is of a confidential or sensitive nature, constitutes the confidential information of Bazaar Global (Confidential Information). You agree to only use the Confidential Information for the purposes of using the Software and participating in the Marketplace (Authorised Purpose). You agree that you will not use or disclose the Confidential Information to any person, or for any purpose other than the Authorised Purpose. The forgoing obligations however will not apply to Confidential Information, which you can prove by documentary evidence:
9. Term and Termination
10. Warranties and Disclaimer
11. Limitations of Liability
14. Dispute Resolution
16. Changes to this Agreement.
17. General Provisions
If you are agreeing to this Agreement not as an individual but on behalf of your company, employer, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you”means both you and your entity and you are binding both you and your entity to this Agreement.
The Software provides a marketplace (Marketplace) whereby suppliers (Suppliers) of goods and/or services (Products) and purchasers of Products (Purchasers) may interact and enter into agreements for the supply of Products (Supply Agreement). The Software does not process payment (that is, Suppliers and Purchasers process payment separately).
You may use the Software both as a Supplier and separately as a Purchaser. This Agreement will apply to you both in your capacity as a Supplier and as a Purchaser.
1.1. Software. This Agreement governs your initial purchase of Software as well as any future purchases made by you that reference this Agreement. The term “Software” includes Documentation unless otherwise specified.
1.2. Cloud Products.
You acknowledge that the Software is cloud based and agree as follows:-
a. Subject to this Agreement, you may access and use the Software for your own business purposes, as applicable, in accordance with this Agreement. These rights granted to you in this sub-clause are non-exclusive, non-sublicensable and non-transferable.
b. You retain all right, title and interest in and to your own data in the form submitted to the Software. Subject to this Agreement, and solely to the extent necessary to provide the Software to you, you grant to Bazaar Global a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display your data. Solely to the extent that reformatting your data for display in the Software constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. Bazaar Global may also access your accounts in order to respond to your requests.
c. Bazaar Global retains the right to use your data in aggregate format for any lawful purpose. We undertake not to use your name or any part of it. Whilst we can use your data we cannot sell it except in aggregate format without private identifiers such as first or last names.
d. In the event that you post or submit any content to or via the cloud using the Software, subject to clause c above, you grant to Bazaar Global the following non-exclusive, irrevocable, royalty-free licence in perpetuity:-
(i) to use the content.
(ii) to reproduce the content.
(iii) to communicate the content.
We may delete, modify, delete, remove or take down any content at any time, irrespective of whether such content is in breach of this Agreement or not, and without notice to you and without incurring any liability.
e. You are responsible for ensuring the accuracy and completeness of your content. Bazaar Global will not be liable for any mistake or misrepresentation in connection with your content and you indemnify Bazaar Global for and against any loss, cost, damage, expense or claim suffered or incurred by Bazaar Global in connection with your misrepresentation, mistake, infringement of any person’s rights or breach of law in connection with your content.
f. Bazaar Global has no responsibility for the acts or omissions of any Purchaser or Supplier through the Software or the Marketplace. Without limiting the forgoing, you acknowledge that Bazaar Global has no responsibility for:
(i) any failure of a Supplier to supply any Products in accordance with their description or particulars of any order or agreement reached via the Software;
(ii) any error or defect in any Products supplied;
(iii) any failure of a Purchaser to pay in whole or in part for the supply of Products; and/or
(iv) any other conduct whatsoever of a Purchaser or Supplier.
g. You indemnify Bazaar Global, its employees, agents and Associates (together the “Indemnified”) against any loss, cost, damage or expense (including full legal costs), which any of the Indemnified suffer or incur, as a result of or in connection with any action, claim, demand or legal proceedings, made, instituted or claimed against Bazaar Global, by a Purchaser, Supplier or other third party, due to:
(i) your breach of this Agreement or any negligence in relation to this Agreement;
(ii) your breach of a Supply Agreement;
(iii) any failure in supply of any Products by you; or
(iv) any failure to make payment as required under a Supply Agreement to which you are a party.
h. You warrant and represent to us that:-
(i) you have and will obtain all necessary right, title, consent and authority to use and provide any content you supply.
(ii) all information supplied by you from time to time to us or third parties is accurate, current, complete and correct in every respect.
(iii) you will not engage in any illegal or fraudulent conduct.
(iv) you will not engage in any defamatory, offensive, insulting, embarrassing or injurious conduct or breach the rights of any person or contravene any applicable laws.
You indemnify Bazaar Global from and against all loss, cost, damage or claim suffered or incurred by Bazaar Global in connection with your breach or misrepresentation in connection with this clause (h).
2.1. Account Registration. You must register for an account with us to access the Software:-
(a) if you are registering to use the Software as a Supplier, in order to manage your on-line store where Purchasers may place orders with you;
(b) if you are registering to use the Software as a Purchaser, in order for you to purchase products from Suppliers who have on-line stores using the Software.
Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements, invoices and other information to you by email or through your Software account. You are responsible for all actions taken through your account.
2.2. Authorized Users. Only Authorized Users may access and use the Software. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Associates and must be within the Scope of Use.
3.1. Your License Rights. Subject to the terms and conditions of this Agreement, Bazaar Global grants you a non-exclusive, non-sublicensable and non-transferable license to use the Software during the License Term for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation and all Laws. Your licence is conditional upon you:-
(a) following and complying with this Agreement and with all reasonable directions from Bazaar Global concerning access to and use of the Software; and
(b) refraining from using the Software, or permitting any other person from using the Software for any purpose or activity of an illegal or fraudulent nature or which is obscene, inappropriate, defamatory, disparaging, indecent, abusive, discriminatory, in breach of confidence or in breach of privacy.
3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.
3.3. System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software. Bazaar Global will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Bazaar Global.
3.4. Indemnification by You. You will defend, indemnify and hold harmless Bazaar Global from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating, directly or indirectly to:-
(a) any breach of this Agreement by you; and
(b) any information or data which you submit to the Software or which you load onto your virtual store using the Software.
4. Privacy Terms. Bazaar Global will collect and may aggregate certain data and information from you. All such data and information will be collected and used by Bazaar Global in accordance with the applicable provisions of the Privacy Act 1988 (Cth), the SPAM Act 2003 (Cth), the GDPR and any other applicable law, in dealing with your information and data.
5.1. New Releases. You acknowledge that as the Software is cloud based, Bazaar Global provides support, bug fixes and maintenance for the Software including access to New Releases, if and when available, and any references to “Software” in this Agreement include New Releases. For clarity, any new releases or amendments to the Software which contain new features may require you to pay additional fees to us.
6.1. License Term. The License Term will commence on the Effective Date and will terminate at the earliest of the following times:
(a) you terminating your account in the Software or by providing written notice to Bazaar Global of your termination of this Agreement. If you terminate this Agreement under this clause 6.1(a) you will not be entitled to a refund of any pre-paid licence fees;
(b) you terminating your account in the Software or by providing written notice to Bazaar Global of your termination of this Agreement, after the occurrence of one or more of the following events:
(i) Bazaar Global breaches this Agreement and fails to remedy the breach after the provision of 7 days written notice by you, requiring Bazaar Global to remedy the breach; or
(ii) Bazaar Global becomes subject to or suffers an Insolvency Event.
If you terminate this Agreement under this clause 6.1(b) then you should contact Bazaar Global to determine whether you are entitled to a pro-rata refund of any prepaid licence fees.
(c) Bazaar Global terminating your use of the Software (either by written notice to you, or by disabling or terminating your user account) following:
(i) your failure to pay any amounts due to Bazaar Global by their due date, or following any other breach of this Agreement by you (irrespective of whether or not the breach is remedied); or
(ii) you become subject to or suffer an Insolvency Event; or
(iii) Bazaar Global terminating this Agreement (either by written notice to you, or by disabling or terminating your user account) for any reason whatsoever. If Bazaar Global terminates your use of the Software under this clause 6.1(c)(iii), then Bazaar Global will refund the proportion of any unused licence fee which has been prepaid by you as at the date of termination.
You agree that Bazaar Global will have no liability to you for exercising its right of termination under this clause, other than any specific refund rights described in this clause, or other rights arising from such termination which you may have under the Australian Consumer Law, and which cannot be excluded from this Agreement under clause 10.
6.2. Access. You are responsible for accessing your account to determine that we have received payment. All deliveries under this Agreement will be electronic.
6.3. Payment. You must pay our fees (if you are registered as a Supplier) on a month to month basis, the first payment being on the first day of the calendar month after the Effective Date. You agree that we may automatically bill your credit card or other payment method for our month to month fees. Our monthly fees will be charged on the first day of each calendar month commencing after the date of your registration. You acknowledge agreement to our tiered pricing structure as set out in our website which may be accessed after you have registered with us, and which will determine the amount of fees you must pay on an ongoing basis. You also acknowledge that our pricing structure may change from time to time. Any such change will be notified to you before it is implemented. For clarity, you may register as both a Purchaser and a Supplier. You must pay our fees unless you only register as a Purchaser.
6.4 Taxes. Apart from where expressly indicated by Bazaar Global to the contrary, your fees under this Agreement exclude any taxes or duties payable in respect of the Software (including GST). To the extent that any such taxes or duties are payable by Bazaar Global, you must pay to Bazaar Global the amount of such taxes or duties in addition to any fees owed under this Agreement.
6.5. Future Functionality; Separate Purchases. You acknowledge that the Software is being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products. You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software or any New Releases), or dependent on any oral or written public comments made by Bazaar Global regarding future functionality or features.
7. Ownership and Feedback. The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Bazaar Global and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Bazaar Global Technology (including the Software). From time to time, you may choose to submit Feedback to us. Bazaar Global may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Bazaar Global’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
(a) was rightfully in you possession or known to you prior to your receipt of the Confidential Information;
(b) is or has become public knowledge through no fault by you or your Associates;
(c) is rightfully obtained by you from a third party without breach of any confidentiality obligation;
(d) is independently developed by your employees who had no access to such information; or
(e) you are required to disclose by law or pursuant to the rules of a recognised stock exchange.
You acknowledge that wrongful disclosure of Confidential Information would cause substantial harm to Bazaar Global for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by you, Bazaar Global will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law
9.1. Term.This Agreement is effective as of the Effective Date and continues until the conclusion of the Licence Term described in clause 6.1.
9.2. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of Bazaar Global in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
9.5. Export Of Data. If you terminate this Agreement, you may elect to request us to export your data from the system and it will be delivered to you in CSV file format. If you make this election, you will first be required to pay our then standard fee for such exporting of your data.
9.6. User Data On Termination. Upon any expiration or termination of this Agreement we reserve the right to delete all user data or leave a copy on our servers for audit and other purposes.
9.7.Survival. The following clauses will survive any termination or expiration of this Agreement: 3.2 (Restrictions), 3.4 (Indemnification by You), 6.3 (Payment), 6.4 (Taxes), 8 (Confidentiality), 9 (Term and Termination), 10 (Warranty Disclaimer), 11 (Limitations of Liability), 12 (IP Indemnification by Bazaar Global) (but solely with respect to claims arising from your use of the Software during the License Term) and 17 (General Provisions).
10.1. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
10.2. Virus Warranty. Bazaar Global further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Bazaar Global’s sole obligation, is to rectify the relevant fault as soon as is practicable.
10.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN CLAUSE 10.1 (GENERAL WARRANTIES) AND 10.2 (VIRUS WARRANTY), AND SUBJECT TO CLAUSES 10.5, 10.6 AND 10.7, ALL SOFTWARE IS PROVIDED “AS IS,” AND BAZAAR GLOBAL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. BAZAAR GLOBAL WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BAZAAR GLOBAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BAZAAR GLOBAL NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) THE SOFTWARE WILL BE BUG FREE; (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN CLAUSE 10.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10.4. Disclaimer On Information Provided By You. SUBJECT TO CLAUSES 10,5, 10,6 AND 10.7, BAZAAR GLOBAL EXPRESSLY DISCLAIMS ANY LIABILITY IN RELATION TO ANY INFORMATION OR DATA WHICH YOU SUBMIT TO THE CLOUD OR WHICH YOU LOAD ONTO YOUR VIRTUAL STORE USING THE SOFTWARE.
10.5 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of Bazaar Global is limited, at the option of Bazaar Global, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again;
10.6. If the consumer guarantees under the Australian Consumer Law apply to the provision of any goods or services by Bazaar Global to you, then Bazaar Global provides the following notice to the extent required by the Australian Consumer Law:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
10.7. Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Bazaar Global will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), AND SUBJECT TO CLAUSES 10.5, 10.6 AND 10.7, NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, AND SUBJECT TO CLAUSES 10.5, 10.6 AND 10.7, BAZAAR GLOBAL’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO BAZAAR GLOBAL UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11.3. Excluded Claims. “Excluded Claims” means (1) either party’s express indemnification obligations in this Agreement, and (2) your breach of clause 3.2 (Restrictions).
11.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this clause 11 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. IP Indemnification by Bazaar Global. We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorized under this Agreement, infringes any Australian third-party patent, copyright or trademark, or misappropriates any third-party trade secret which arises in Australia or is registered in Australia (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Bazaar Global (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any license fees pre-paid by you for use of the Software for the terminated portion of the applicable License Term. Bazaar Global’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Bazaar Global with respect to your license to Software in the twelve (12) month period immediately preceding the Claim is less than AUD $50,000; (2) if the Software is modified by any party other than Bazaar Global, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Bazaar Global product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in clause 3.4 (Indemnification by You) or (z) any third-party deliverables or components contained with the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without Bazaar Global’s prior written consent. THIS CLAUSE 12 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY BAZAAR GLOBAL UNDER THIS AGREEMENT.
13. Publicity Rights. We may identify you as a Bazaar Global customer in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
14.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to clause 14.2 (Governing Law; Jurisdiction). All negotiations pursuant to this clause 14.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
14.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State of Victoria, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in the State of Victoria, Australia.
14.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of clause 14.1 (Informal Resolution) and clause 14.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Bazaar Global from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
14.3. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.
15. Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software.
Modifications Generally. We may modify the terms and conditions of this Agreement from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications.
Paid Licenses: Typically, when we make modifications to the main body of this Agreement, the modifications will take effect as from the beginning of the next calendar month. In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective immediately. If the effective date of such modifications is immediate and you object to the modifications, then (as your exclusive remedy) you may terminate your use of the Software, with effect from the commencement of such modifications.
17.1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by email to email@example.com. Your notices to us will be deemed given upon our receipt.
17.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a pandemic, COVID-19, government restriction imposed in relation to COVID-19 or other pandemic, a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
17.3. Assignment. You may not assign or transfer this Agreement without our prior written consent which may be withheld in our discretion. Any attempt by you to transfer or assign this Agreement except as expressly authorized by us will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Associates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
17.4. Entire Agreement. This Agreement is the entire agreement between you and Bazaar Global relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Bazaar Global with respect to the Software or any other subject matter covered by this Agreement.
17.5. Conflicts. In event of any conflict between the main body of this Agreement and any other document, the terms of this Agreement shall prevail.
17.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in clause 16 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of Bazaar Global and you.
17.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
17.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
18. Definitions. Certain capitalized terms are defined in this clause 18, and others are defined contextually in this Agreement.
“Associate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Authorized Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees. Authorized Users may be your or your Associates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Associates’ benefit or on your or your Associates’ behalf.
“Documentation” means any published documentation for the Software which may be displayed or referred to on our Website from time to time.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software.
“Insolvency Event” means the occurrence of any of the following events: a person becomes bankrupt, commits an act of bankruptcy, becomes insolvent, is wound up or ceases to exist legally, reaches an arrangement with its creditors generally, or the person has a liquidator, receiver, administrator appointed over it or its assets, or an event similar to the forgoing occurs in the jurisdiction where the person is located.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“License Term” means the license term specified in clause 6.1.
“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Bazaar Global makes available to you.
“Scope of Use” means your use of the Software as a Supplier, Purchaser or both, for the purposes of participating in the Marketplace.
“Software” means Bazaar Global’s software as may be amended from time to time.
BAZAAR provides users with access, via its web, PC and mobile applications and other websites and software, to a real estate auction and sales platform (our “services” and “products”).
What information do we collect?
We collect and hold Your Information, which may include your name, phone number, email, mailing address, age, sex, gender, location, preferences, qualifications, licenses, certifications, application usage and device information, and other information relevant to the supply of our products and services that is collected by our products or that you choose to provide to us. We may also collect information about properties which you are bidding on or selling, including prices paid and offers or bids made.
If you use our services, we may also collect your bank or credit card details for payment and details of your credit history and creditworthiness.
How we collect Your Information
We collect Your Information as part of supplying our services and products. This includes when you provide Your Information to us in person, via our products (including our BAZAAR applications and our website), during phone and skype calls, by email, via social media, or otherwise via customer enquiries or communications.
Generally, we collect Your Information directly from you but we may also collect Your Information from other people or organisations, if you have given your consent.
Why do we need Your Information?
We only collect or hold Your Information where it is reasonably necessary for our business functions or activities.
In particular, we need Your Information to provide you with our products and/or services, which includes allowing you to bid or sell your property via auction or private sale on our platform, internal record keeping, communicating with you about our products and/or services, creating and updating our database(s) and other records, ensuring compliance with our contractual and other legal obligations to you, and administering our relationship with you by responding to your enquiries (Main Purposes).
If you do not provide us with your Information we may not be able to carry out some or all of the Main
How do we use or disclose Your Information?
By submitting Your Information to us, you consent to us using or disclosing Your Information for:
(a) the Main Purposes;
(b) any purpose related to the Main Purposes that could be reasonably anticipated at the time Your Information was collected (Secondary Purpose);
(c) any purpose to which you otherwise consent (including as disclosed to you in an information collection statement at the point where we collect Your Information); and
(d) any other purpose required or authorised by law (including the Australian Privacy Laws).
Secondary Purposes may include: improving our products or services; sending you direct marketing messages about our products or services, deals, and promotions; conducting customer surveys;
managing our relationship with you; monitoring how you interact with us on our applications, website or other contact points; or helping you to complete a transaction or activity that you have chosen to undertake.
We may also use certain non-personally identifiable information (such as anonymous usage data, IP addresses, browser or platform type etc.) to improve the quality and design of our products and services, and to create new features, promotions, functionality and services by storing, tracking,
analysing and processing user preferences and trends as well as user activity and communications.
Can you remain anonymous or use a pseudonym?
We will, if practicable, allow you to use a pseudonym or to not identify yourself (unless this is impractical or against the law (including the Australian Privacy Laws)).
In some instances, if you do not provide us with some of Your Information we may not be able to provide you with the relevant product, service or information. This may have an effect on whether we can begin or continue a relationship with you.
Do we disclose Your Information overseas?
We may disclose Your Information to our partners, suppliers and distributors in order to assist us in providing our products or services to you. Some of our service providers, or the services they provide (like cloud storage services), may be based outside Australia. In order to protect Your Information, we take care where possible to work with service providers whom we consider maintain acceptable standards of data security compliance, and we do our part to meet those standards as they apply to
us. By providing us with Your Information, you consent to Your Information being used, stored and disclosed overseas (and acknowledge that no additional obligations that may apply to the overseas disclosure of personal information under Australian Privacy Laws will apply).
Is Your Information confidential and secure?
We take all reasonable steps to keep Your Information secure and to ensure it is protected against misuse, loss, unauthorised access, modification or inappropriate disclosure. We may hold Your Information in both hard copy and electronic forms, but will store it in secure systems accessible only
to authorised personnel.
Using other sites
of any website, platform, or application that asks you to provide Your Information.
responsibility to review our privacy regularly and make sure you keep up to date with any changes.
Managing Your Information
You are responsible for ensuring that Your Information is accurate, current and complete and we encourage you to contact us to update Your Information if it changes.
You may ask us to access Your Information in accordance with Australian Privacy Laws (as applicable), including by asking us to provide you with a summary of Your Information that we hold, subject to certain limitations under the Australian Privacy Laws.
For your protection, we may require you to confirm your identity before access to Your Information is granted.
In most cases, we can provide you with a summary of Your Information free of charge. However, in some circumstances, reasonable costs may be charged to you in accessing Your Information in accordance with and subject to the Australian Privacy Laws, including any costs limitations contained
in applicable Australian Privacy Laws.
Queries and complaints
If you have a question or want to make a complaint about how we handle Your Information please contact us using the details below. We will review any question, complaint or concern you may have and will respond to you after we have carefully considered it. We will, where reasonably possible,
take steps to investigate and resolve complaints within 30 days. Please note, we may require further information from you in order to resolve any complaints. If we need more time, we will notify you about the reasons for the delay and seek to agree a longer period with you (if you do not agree, we may not be able to resolve your complaint). If we cannot resolve a complaint related to your privacy information, you may contact the Office of the Australian Information Commissioner (“OAIC”) directly.
We can be contacted via:
Or for more information about privacy issues in Australia and protecting your privacy, please visit the OAIC website at www.oaic.gov.au.
Last date updated: 21/10/2020