Terms And Conditions
Terms And Conditions
Please read the following terms and conditions before becoming a member of the DIGOCLUB platform.These terms and conditions set out the rules for all visitors using our web site.You are deemed to have accepted these terms and conditions by becoming a member. By accepting these terms and conditions, you agree toall policies posted on the website.For any questions regarding the terms and conditions, you can contact us by email at [email protected] .au.
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1. General
1.1 This agreement, and all schedules and appendices attached or referred hereto, if any, (“Agreement”) is an agreement between you and DIGITAL GOODS CLUB PTY. LTD.(Australian Company Number:659 355 683) having its principal office at Unit 9 20-22 Maroubra RD Maroubra NSW 2035 (“DIGOCLUB”, “we”, “us”, or “our”).
1.2 This Agreement shall govern, among others,
(a) the provision of the DIGOCLUB Services (as hereinafter defined); and
(b) your use of the Platform (as hereinafter defined).
1.3 The Services are intended for, and may only be used by:
(a) individuals who are 18 years and older who can form legally binding contracts under applicable law, and
(b) individuals who are under the age of 18 with the consent and direct supervision of his/her parent or legal guardian. All transactions carried out by any individual under the age of 18 pursuant to this Agreement shall be deemed to have been approved by his/her legal guardian or parent and such legal guardian or parent shall be responsible for any and all activities conducted by such individual under the age of 18.
2. Definitions and interpretations
2.1 In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Account means the account created and used by you to access or use the Platform;
Business Day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in Australia;
Buyer means the purchaser of any Goods and/or Services;
Goods and/or Services means the digital items, goods and/or services displayed, listed and/or offered by the Seller for sale through or on the Platform.
DIGOCLUB Services mean the services and features provided or made available by DIGOCLUB through or on the Platform from time to time, including without limitation the services provided by DIGOCLUB to facilitate the Seller and the Buyer to enter into a Sale Contract with each other;
Information means any information, details, content, dimensions, data, maps, locations, photographs, text, descriptions, specifications, audio or video clips, graphics, and/or other materials;
Intellectual Property Rights mean all rights, titles and/or interests in, to and/or under patents, registered designs, designs, copyrights, names, marks, trade names, trademarks, service marks and logos and all other intellectual, industrial and/or proprietary rights;
Sale Contract means the agreement entered into between the relevant Seller and the relevant Buyer through the Platform for the sale of any of the Goods and/or Services;
Seller means a seller registered with DIGOCLUB who displays, lists or offers any Goods and/or Services for sale through or on the Platform;
Personal Data shall have the meaning prescribed to it in the Privacy Policy;
Privacy Policy means the policy published by DIGOCLUB on the Platform governing the processing of Personal Data;
Platform means the online platform (website, mobile site or mobile application) developed and/or operated by DIGOCLUB;
Registration Process means the registration process set out by DIGOCLUB for you to register and open the Account with DIGOCLUB;
Representatives means the servants, employees, officers, agents, contractors, workmen, personnel and/or representatives of the relevant party; and
You/your means all users of the Platform, including without limitation the Sellers and the Buyers.
2.2 In this Agreement, unless the context otherwise requires:
(a) denoting the singular include the plural and vice-versa;
(b) words denoting natural persons include bodies corporate and unincorporated;
(c) references to any law, legislation or to any provision of any law or legislation shall include all relevant regulations, statutory requirements and instruments issued under such law, legislation or provision and any variation, modification or re-enactment of any of the foregoing;
(d) headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
(e) references to any party to this Agreement or any other agreement or instrument shall include that party's successors and permitted assigns;
(f) no rule of construction or interpretation applies to the disadvantage or detriment of the party having control or being responsible for the preparation of this Agreement; and
(g) any words following the terms including, include or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
3. Access to the platform
3.1 If you wish to have access to the Platform and DIGOCLUB Services, you shall create an Account with DIGOCLUB in accordance with the Registration Process. Upon successful registration, you may be given access to the Platform and DIGOCLUB Services by logging in to your Account. DIGOCLUB shall be entitled to perform a background check on you and shall have the right, in its sole and absolute discretion, to refuse to grant you access to the Platform and DIGOCLUB Services or any part thereof. You may be asked to provide additional verification or information during the registration process.
3.2 You shall be solely responsible for keeping the username and password of your Account confidential and secured at all times and shall immediately notify DIGOCLUB of any unauthorised access to your Account. Any instruction, notification or confirmation received by DIGOCLUB from your Account shall be deemed to have been issued by you notwithstanding that such notification or confirmation may have been issued by a third party, whether authorized or otherwise, and you shall be bound by such instruction, notification or confirmation. DIGOCLUB shall not be liable for acting on the instruction, notification or confirmation sent through your Account. DIGOCLUB shall not be obliged to investigate the authenticity or authority of the person sending/effecting the instruction, notification or confirmation or verify the completeness of such instruction, notification or confirmation
3.3 You shall closely monitor all activities and transactions carried out through your Account and you shall take all steps and measures to check and verify the transaction history of your Account. You shall immediately notify DIGOCLUB:
(a) of any unusual activities or transactions in connection with your Account or in the event that any of the activities or transactions are not accurately recorded in your Account;
(b) upon receipt of any incomplete, garbled or inaccurate data or information from DIGOCLUB; and
(c) upon receipt of any data or information which is not intended for you and you shall not use or disclose any such data or information without DIGOCLUB’s written consent.
3.4 Unless expressly agreed by DIGOCLUB each person is limited to one Account. No Account may be created on behalf of or in order to impersonate another person. Should DIGOCLUB discover that such a fraudulent account has been created, DIGOCLUB shall be entitled to immediately suspend the account and reserves the right to take any further remedial action, including without limitation informing the relevant authorities, without any liability on the part of DIGOCLUB.
4. Sale contract
General
4.1 All Sale Contracts are strictly made between the relevant Seller and the relevant Buyer to the full and absolute exclusion of DIGOCLUB. DIGOCLUB makes no representation and/or warranty of any kind as to the Goods and/or Services and DIGOCLUB shall not be made liable or responsible to you in any manner whatsoever for any costs, loss, damages, claims, fines, penalties, liabilities and/or expenses howsoever arising from the Sale Contract, including without limitation for any negligence, delay, failure, fault and/or breach on the part of the relevant Seller or Buyer. The Buyer acknowledges that there is a risk that the relevant game developer may modify the Buyer’s game account and its content from purchases made by the Buyer via the Platform and DIGOCLUB shall not be held liable in any manner whatsoever in such circumstances. For the avoidance of doubt, all Goods and/or Services are offered by the relevant third party Seller and DIGOCLUB is merely the facilitator of such Goods and/or Services. As such, DIGOCLUB has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings. DIGOCLUB is not obliged to conduct pre-screening on users. DIGOCLUB cannot guarantee that a Buyer or Seller will actually complete a transaction.
4.2 Notwithstanding the foregoing, the Sale Contract shall be subject to and you shall observe and comply with the following terms and conditions:
(a) You shall not modify or cancel any Sale Contract formed via the Platform except with the agreement in writing of DIGOCLUB and on the condition that you shall indemnify DIGOCLUB in full against all loss, costs, damages, charges and expenses (including loss of profit) incurred by DIGOCLUB as a result of such modification or cancellation;
(b) You shall carry out all your obligations in connection with the Sale Contract diligently in a timely manner and with due care and skill;
(c) The payment for the Sale Contract shall be made in accordance with Payment and Refund Policy,
(d) You shall comply with any instructions, guidelines and/or policies as may be published or provided by DIGOCLUB in connection with the Sale Contract from time to time.
4.3 In the event that any conflict, dispute and/or issue between you and another user or a third party in respect of the Sale Contract arises,
(a) we encourage you to contact the user or third party and use your best endeavour to resolve such conflict, dispute or issue fairly and amicably, which DIGOCLUB shall use reasonable commercial efforts to facilitate.
(b) DIGOCLUB may, but not obliged to, intervene or take part in the resolution of such conflict, dispute or issue for the benefit of users. DIGOCLUB does so in good faith and at its sole and absolute discretion, in accordance with the dispute resolution process based upon DIGOCLUB policies. DIGOCLUB has no obligation to resolve disputes between users or between users and outside parties. You shall comply with all reasonable instructions as may be made by DIGOCLUB in connection thereof.
(c) Users may approach the claims tribunal of their local jurisdiction to resolve any dispute arising from a transaction.
(d) DIGOCLUB shall have the right to retain any sums paid by the Buyer for the relevant Goods and/or Services until a mutually amicable binding resolution has been reached; and
(e) You release DIGOCLUB (and DIGOCLUB's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all demands, damages and claims (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or a third party to the maximum extent permitted by applicable law..
Seller’s representations, warranties and obligations
4.4 You may list and sell your Goods and/or Services on the Platform in accordance with the procedures set out on the Platform subject to all conditions and requirements as may be imposed by DIGOCLUB from time to time.
4.5 DIGOCLUB may at its absolute discretion:
(a) categorise the Seller into the relevant group of Sellers based on DIGOCLUB’ criteria; and
(b) determine the range of prices for the Goods and/or Services.
4.6 Each Seller warrants, represents, acknowledges and/or confirms that:
(a) it has procured all necessary permission, right, licence, consent and/or approval from the relevant third parties and/or the local laws to publish, display and offer the Goods and/or Services for sale through the Platform (including without limitation the publishing of all Information in connection with the Goods and/or Services on the Platform) and such publishing, displaying and offering will neither infringe any third party rights nor violate local laws;
(b) it shall honour and perform all the Sale Contracts and shall not engage in any conduct or carry out any action which may affect the Buyer’s entitlement to the purchased Goods and/or Services;
(c) it is able to provide, transfer or deliver the Goods and/or Services to the Buyer in a timely manner (i.e. when the Buyer has confirmed the order with DIGOCLUB or when the Buyer has made the payment for the relevant Goods and/or Services whichever earlier);
(d) the Goods and/or Services are accurately described and the Goods and/or Services delivered or provided to the Buyer will conform with its description; and
(e) it shall not directly or indirectly recruit and/or poach any Buyers or enter into any independent transaction with the Buyer other than through the Platform.
4.7 The Seller shall be solely liable for all claims in relation to and in connection with the Sale Contract, including, without limitation, non-delivery, defective quality and/or misdescription of the Goods and/or Services.
4.8 DIGOCLUB shall not in any manner whatsoever be construed, at law or otherwise, to owe a fiduciary duty to the Seller in respect of the obligations on the part of the Buyer to pay the price of the purchased Goods and/or Services.
5. Payment, security deposit and rolling reserve
5.1 Payment shall be made by you in accordance with Payment and Refund Policy.
5.2 If requested or notified by DIGOCLUB, the Seller shall deposit the sum stipulated in the relevant Policy as Security Deposit (as described in the relevant Policy) prior to listing or displaying any of its Goods and/or Services on the Platform.
5.3 DIGOCLUB shall be entitled to withhold the sum stipulated in the relevant Policy (if any) as Rolling Reserve (as described in the relevant Policy) in respect of each Sale Contract.
6. General obligations
6.1 You shall, at your own cost and expense:
(a) comply with all applicable law, statutes, bye-law, regulations, orders, delegated or subordinate legislation, regulatory policies, notices, determinations, guidelines, directives and/or any other requirements of any governmental, statutory and/or regulatory bodies and/or departments from time to time;
(b) obtain and maintain throughout the duration of this Agreement, all necessary approvals, consents, licences and permissions (statutory, regulatory, contractual or otherwise) in relation to your obligations and activities under this Agreement and the Sale Contract; and
(c) comply with all guidelines, rules, regulations, policies, instructions and procedures in connection with the Platform and DIGOCLUB Services as imposed or may be imposed by DIGOCLUB from time to time.
7. Use of the platform/DIGOCLUB services
7.1 In consideration of you agreeing to the terms and conditions contained in this Agreement, DIGOCLUB grants you a non-exclusive, non-transferable right to access and use the Platform and DIGOCLUB Services solely and to the extent necessary for the purpose of this Agreement. The Platform and/or the DIGOCLUB Services shall not be commercialised in any manner whatsoever.
7.2 The Platform, DIGOCLUB Services, and/or all Information contained on, in or made available through the Platform and/or DIGOCLUB Services shall be collectively referred to as “DIGOCLUB Platform/Services” and reference to DIGOCLUB Platform/Services shall include any part thereof. Save and except as otherwise stated in this Agreement or with DIGOCLUB’s prior written consent, you shall not and shall not attempt to, whether by yourself or by allowing any third party:
(a) copy, distribute, recreate, and/or disseminate DIGOCLUB Platform/Services except where such act is incidental to the normal use of DIGOCLUB Platform/Services, or where it is necessary for the purpose of this Agreement or other back-up and/or operational security reasons;
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify DIGOCLUB Platform/Services;
(c) make alterations or modifications to the whole or any part of DIGOCLUB Platform/Services, or permit DIGOCLUB Platform/Services to be combined with, or become incorporated in, any other programs;
(d) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of DIGOCLUB Platform/Services;
(e) provide or otherwise make available the underlying software of the Platform in whole or in part (including object and source code), in any form to any person;
(f) use DIGOCLUB Platform/Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with or not authorised by this Agreement, or act fraudulently or maliciously;
(g) collect or harvest any Information from DIGOCLUB Platform/Services or DIGOCLUB’s systems or attempt to decipher any transmissions to or from the servers running any of the DIGOCLUB Services;
(h) access any data or Information not intended for you, including without limitation logging into a server or an account which you are not authorized to access;
(i) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform and/or transmit or distribute any malicious code, viruses, or harmful data into or through the Platform or any operating system;
(j) misuse, abuse or hack into any aspect of DIGOCLUB Platform/Services in any manner whatsoever or otherwise compromise the integrity of DIGOCLUB’s software or systems;
(k) send, advertise or publish any unsolicited advertising or promotional content through or on DIGOCLUB Platform/Services; and
(l) use DIGOCLUB Platform/Services in a way that could: (i) damage, disable, overburden, impair or compromise DIGOCLUB’s systems, software and/or security; or (ii) interfere with other users’ use and enjoyment of DIGOCLUB Platform/Services.
8. Information submitted by you
8.1 You shall ensure that all Information provided to DIGOCLUB or published on the Platform by you is true, complete, accurate and up-to-date and that you have all the necessary authority and right to publish or provide such Information. You warrant that DIGOCLUB’s use of any such Information will not infringe the right (including without limitation the Intellectual Property Rights) of any third party.
8.2 You shall not transmit or post (or cause to be transmitted or posted) through or on the Platform and/or DIGOCLUB Services any Information which is or may be unlawful, technologically harmful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, which encourages or may encourage conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law or which violates or infringes or may violate or infringe the rights of others.
8.3 By submitting or uploading any Information on or through the Platform and/or DIGOCLUB Services, you automatically grant, or warrant that the owner of such Information has expressly granted, DIGOCLUB the royalty-free, perpetual, irrevocable, non-exclusive right and license to reproduce, share, publish and distribute such Information (in whole or in part) on or through the Platform save and except for the Personal Data which is to be processed by DIGOCLUB in accordance with the Privacy Notice published on the Platform.
9. Policies
9.1 You shall comply with and observe all the relevant terms, conditions and requirements contained in the policies published by DIGOCLUB on the Platform (“ Policies” ).
9.2 For the avoidance of doubt, the Policies shall form part of this Agreement and you shall be bound by the same.
10. Links
10.1 The Platform may contain links to third party sites or to resources provided by third parties (“ Third Party Sites/Content ”). The Third Party Sites/Content are linked solely for your convenience. DIGOCLUB has no control over and DIGOCLUB assumes no responsibility for the Information contained in such Third Party Sites/Content. DIGOCLUB accepts no responsibility for any loss and/or damage that may arise from your use of the Third Party Sites/Content. If you decide to access any of the Third Party Sites/Content, you hereby agree to do so entirely at your own risk.
11. Personal data
11.1 All Personal Data collected by DIGOCLUB will be processed by DIGOCLUB in accordance with the Privacy Policy published on the Platform.
11.2 To the extent that any of the data or Information extended to you by DIGOCLUB and/or collected or processed by you on behalf of DIGOCLUB, pursuant to this Agreement, consists of Personal Data, you agree to: (i) comply with the requirements of the Privacy Policy, and shall not conduct yourself in such a manner as to cause DIGOCLUB to be in breach of its obligations (as a “data user”) under the Privacy Policy, (ii) observe DIGOCLUB’s published policies on Personal Data protection from time to time, (iii) on reasonable request by DIGOCLUB, give DIGOCLUB access to any Personal Data, and (iv) immediately notify DIGOCLUB if you become aware of a breach or possible breach of your obligations in relation to the processing of the Personal Data under this Agreement. This Clause shall survive the termination of this Agreement.
12. Confidentiality
12.1 “ Confidential Information ” means all Information of any kind, whether in machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”, that are made available by or on behalf of the disclosing party to the receiving party, whether before or after the commencement of the term of this Agreement, for the purposes relating to or in connection with this Agreement. The Confidential Information shall include without limitation technical information, data, know-how, information relating to the disclosing party's or their respective affiliates’ business, trade secrets, revenue or income information, marketing strategies, financial condition and operations, and any other information that is by its nature confidential and proprietary to the disclosing Party or its suppliers/affiliates.
12.2 “Confidential Information” shall not include information that: (i) was, at the time of its disclosure, already in the possession of the receiving party free of any obligation to keep it confidential and such party can establish, through reasonably sufficient and credible competent evidence, such prior possession; (ii) is independently developed by the receiving party, (iii) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives; or (iv) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its Representatives; provided, however, that such source is not to the knowledge of the receiving party bound by a confidentiality agreement or other legal or fiduciary obligation of secrecy to the disclosing party.
12.3 Unless otherwise stated herein, the receiving party of any of the Confidential Information agrees not to disclose such Confidential Information to any person except (i) where such disclosure is required by law or the regulations of any securities exchange or court of competent jurisdiction; (ii) where such disclosure is permitted under this Agreement; (iii) to their respective Representatives and/or legal, financial and/or accounting advisors who have a definite need to know such Confidential Information; and/or (iv) with prior written approval of the disclosing party.
12.4 In the event that any of DIGOCLUB’s Confidential Information is required to be disclosed in any manner due to the requirements of any applicable law or the regulations of any securities exchange or securities trading system, or court of competent jurisdiction, you shall give prompt written notice to DIGOCLUB prior to any disclosure sufficient under the circumstances to allow DIGOCLUB to seek a protective order or other appropriate remedy. You shall: (i) only disclose such minimum information as is legally required and shall, at the request of DIGOCLUB, use commercially reasonable efforts to obtain confidential treatment for DIGOCLUB’s Confidential Information that is to be disclosed and allow DIGOCLUB, if it wishes, to also take such measures as it deems necessary or desirable to challenge any such disclosure or to otherwise redact or minimize such disclosure; and (ii) fully cooperate with DIGOCLUB.
12.5 All Confidential Information shall solely be used for the purpose of this Agreement.
12.6 Notwithstanding anything contained herein, DIGOCLUB shall be entitled to disclose your Information to the relevant Seller, Buyer or DIGOCLUB’s service providers for the purpose of providing the DIGOCLUB Services. You hereby irrevocably and unconditionally authorises DIGOCLUB to forward your contact Information to the relevant Seller or Buyer for the purpose of the Sale Contract.
12.7 This Clause shall survive the termination or expiry of this Agreement for any reason whatsoever.
13. Intellectual property rights
13.1 All existing Intellectual Property Rights of DIGOCLUB, its contractors, partners, services providers, suppliers, or licensors (if any) shall belong and remain with its respective owner. Nothing in this Agreement shall transfer or assign such Intellectual Property Rights to you.
13.2 All Intellectual Property Rights created and/or developed pursuant to this Agreement by DIGOCLUB (its suppliers, contractors, partners and/or licensors (if any)) shall belong absolutely to DIGOCLUB.
13.3 You shall not, whether by yourself or through any other person, engage in any conduct which will infringe the Intellectual Property Rights of DIGOCLUB or those of any third party in relation to your use of the Platform and/or the DIGOCLUB Services.
13.4 You shall use any Information and/or properties made available to you by DIGOCLUB under this Agreement in which any of DIGOCLUB’s Intellectual Property Rights subsist solely for the purpose of and only to the extent permitted by this Agreement. This Clause shall survive the termination of this Agreement.
14. Consumer protection
14.1 Notwithstanding anything contained herein, if the Consumer Protection Act 1999 (“Act”) applies and if you are dealing as a consumer under the Act (consumer shall have the meaning prescribed to it by the Act, “Consumer”), (a) this Agreement is only intended to exclude or limit the remedies and rights you may have to the maximum extent permitted by the Act; and (b) nothing in this Agreement is intended to exclude or limit DIGOCLUB’s liability to you for any loss or damage arising from (i) DIGOCLUB’s negligence; or (ii) DIGOCLUB’s breach of any express or implied terms of this Agreement without adequate justification.
15. Warranty, unavailability, and disclaimer
15.1 DIGOCLUB warrants that the DIGOCLUB Services will be provided with reasonable care and skill.
15.2 Information made available to you through the Platform or DIGOCLUB Services may be furnished to DIGOCLUB by third party, including without limitation the Seller and other users of the Platform. While DIGOCLUB will use reasonable endeavours to ensure that such Information is communicated to you in its original form as supplied by the third party, DIGOCLUB does not warrant that the said Information is accurate, complete, reliable, original, current, or error-free.
15.3 In relation to the use of the Platform and/or DIGOCLUB Services, DIGOCLUB does not warrant that:
(a) the functions contained in the Platform and/or DIGOCLUB Services will meet your requirements;
(b) the operation of the Platform and/or DIGOCLUB Services will be uninterrupted or error-free;
(c) any defects in the Platform and/or DIGOCLUB Services will be corrected; and
(d) the Platform is free of viruses, bugs, online interruption or other harmful threats. You shall be responsible for implementing all necessary security and virus protection measures on or in your computer or mobile device before accessing the Platform.
15.4 You understand, acknowledge and agree that:
(a) advice or recommendations are a matter of opinion and may not represent the true application, quality or feature of a particular service, as such you accept that any advice or recommendation given by DIGOCLUB, its employees or agents is followed or acted upon entirely at your own risk, and accordingly DIGOCLUB shall not be liable for any such advice or recommendation;
(b) all transactions conducted on the Platform are through telecommunication and data network. As such, your receipt of the notification from DIGOCLUB and vice versa may be delayed or prevented by factors affecting the relevant service providers and other relevant parties. You accept that DIGOCLUB cannot guarantee the prompt delivery of such notification or confirmation; and
(c) there may be certain times that the Platform or DIGOCLUB Services may not be available due to maintenance, updating or upgrading works, or such other reasons beyond the control of DIGOCLUB. DIGOCLUB makes no warranty that the Platform and/or DIGOCLUB Services will be available at all times and DIGOCLUB shall not be held responsible or liable in any manner whatsoever for such unavailability.
16. Indemnity
16.1 You agree to defend, indemnify and hold DIGOCLUB, its affiliates and each of their respective directors, officers, employees and agents harmless from and against all costs, loss, damages, claims, fines, penalties, liabilities and/or expenses, including attorneys' fees, arising howsoever under this Agreement including without limitation arising from or in connection with negligence, omission, and/or breach of this Agreement on your part. This indemnity shall be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination. For the avoidance of doubt, nothing in this clause shall prevent or restrict DIGOCLUB enforcing any other rights and obligations owed to it under this Agreement.
17. Force majeure
17.1 DIGOCLUB shall not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the DIGOCLUB’s obligations under this Agreement, if the delay or failure was due to any cause beyond DIGOCLUB’s reasonable control, including but not limited to:
(a) fire, act of God, storm, explosion, earthquake, flood, tempest, accident or other natural disaster;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) strikes, lock outs or other industrial actions or trade disputes;
(e) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
(f) telecommunication, transportation, power supply, or system disturbances or failures, or breakdown in machinery affecting the Platform, DIGOCLUB Services or any part thereof.
18. DIGOCLUB Rights and suspension
18.1 Without prejudice to any other rights DIGOCLUB may have under this Agreement or at law, DIGOCLUB shall have the right to immediately (without notice):
(a) suspend or cease your access to the Platform and/or DIGOCLUB Services;
(b) remove any Information submitted, uploaded or transmitted by you to or through the Platform;
(c) suspend or limit any or all of the activities and/or transactions in connection with your Account; and/
(d) withhold, retain or forfeit any payment due, owing to you;
in any of the following events:
(a) DIGOCLUB is of the opinion that your performance of any of the Sale Contracts is not satisfactory in DIGOCLUB’s sole discretion;
(b) DIGOCLUB is of reasonable opinion that your use of the Platform and/or DIGOCLUB Services will interfere or cause disturbances to other user’s use or enjoyment of the Platform or DIGOCLUB Services; or
(c) you are found to be in breach of any of the terms and conditions contained in this Agreement or DIGOCLUB suspects, on reasonable grounds, that you may have committed any such breach.
19. Termination
19.1 Without prejudice to any other rights that DIGOCLUB may have under this Agreement or at law, DIGOCLUB may immediately terminate this Agreement by notice in writing if:
(a) you are in breach of any of the terms and conditions of this Agreement and such breach is not remedied by you within thirty (30) days’ of DIGOCLUB’s written notice; or
(b) you shall pass a resolution for winding up or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration, including without limitation bankruptcy proceedings, or if a receiving order is made against you or you make any arrangement or composition with your creditors.
19.2 Without prejudice to any other rights and remedies DIGOCLUB may have under this Agreement or at law, upon termination:
(a) all rights granted to you under this Agreement shall cease;
(b) you shall immediately cease all activities authorised by this Agreement; and
(c) you shall immediately destroy or, at DIGOCLUB’s request, promptly return all DIGOCLUB’s Confidential Information which is in your possession and to certify to DIGOCLUB that you have done so
20. Variation
20.1 DIGOCLUB shall have the right at any time to add, delete, amend, or modify this Agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for access and use. Such addition, deletion, amendment, or modification shall be effective immediately upon notice thereof, which may be given by means of, including, but not limited to, posting on the Platform, or by electronic or conventional mail, or by any other means by which you obtain notice thereof. Any use of the Platform and/or DIGOCLUB Services by you after the issuance of such notice shall be deemed to constitute acceptance of this Agreement with such addition, deletion, amendment, or modification.
20.2 You shall immediately notify DIGOCLUB in the event that you are not agreeable to any such addition, deletion, amendment, or modification and this Agreement shall be deemed terminated upon your notification to DIGOCLUB of your disagreement unless otherwise agreed by DIGOCLUB.
20.3 DIGOCLUB shall have the right at any time to change or discontinue any aspect or feature of the Platform and/or DIGOCLUB Services, including, but not limited to, content, hours of availability, and equipment needed for access and use.
20.4 No amendment or variation of this Agreement by you shall be valid and binding unless approved in writing by both parties.
21. Notices
21.1 to the address, email address or facsimile notified by the other party or made available to the other party though the Platform. Such notice shall be deemed to have been served (a) if delivered personally, the next Business Day after it has been delivered; (b) if sent by registered mail or courier, five (5) days after dispatch; (c) if sent by facsimile, upon receiving the confirmation report stating successful transmission of the facsimile if sent before 5p.m. on a Business Day and if sent after 5p.m. on a Business Day or on a non-Business Day, the next Business Day; or (d) if sent by e-mail, upon successful delivery of the email and recorded as a sent email if sent before 5p.m. on a Business Day and if sent after 5p.m. on a Business Day or on a non-Business Day, the next Business Day.
22. Entire agreement
22.1 This Agreement (together with any documents referred to herein) constitutes the whole agreement between the parties relating to the subject matter hereof and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing relating to the subject matter hereof and no representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as set out in this Agreement.
23. Assignment, novation, delegation and subcontracting
23.1 You shall not transfer, assign, novate and/or sub-contract any of your rights and/or obligations contained in this Agreement to a third party without DIGOCLUB’s prior written consent. DIGOCLUB may transfer, assign, novate, and/or sub-contract any or all of its rights and obligations under this Agreement to any of its affiliates.
24. No waiver
24.1 No failure or delay on the part of a party in exercising any rights or remedies under this Agreement at any time or for any period of time nor any knowledge or acquiescence by a Party of, or in, any breach of any provision of this Agreement shall operate as or be deemed to be a waiver thereof nor shall a waiver by that party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of right or remedy under this Agreement may not be waived except in writing signed by the waiving party.
25. Successors and assigns
25.1 This Agreement shall be binding upon the parties and their permitted legal assigns and successors in title.
26. Severability
26.1 Any term, condition, stipulation, provision, covenant or undertaking (“Provision”, and any reference to Provision shall include any part thereof) contained in this Agreement which is illegal, invalid or unenforceable shall be fully severable and ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining Provisions contained in this Agreement which shall not be affected by the illegal, invalid or unenforceable Provision or by its severance herefrom. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable Provision had never comprised a part hereof. Where any Provision of, or the application of any provision of this Agreement is illegal or unenforceable or deemed to be illegal or unenforceable, the Provision shall continue to apply with the necessary modification in order that the Provision is legal, valid and enforceable provision.
27. No partnership/agency
27.1 Nothing in this Agreement shall create, or be deemed to create, a joint venture or partnership between/among the parties. No party has any authority to act, make representations or bind or contract on behalf of the other party.
28. Governing law
28.1 The construction, validity and performance of this Agreement shall be governed in all respects by the laws of Australia. The parties hereto submit to the exclusive jurisdiction of the courts of Australia.
29. Survival
29.1 The covenants, conditions and provisions of this Agreement which are capable of having effect and which shall by its nature survive after the termination or expiration of this Agreement shall remain in full force and effect following the termination or expiration of this Agreement.
1.4 Any payments made by DIGOCLUB to the Seller shall be in accordance with the timeframe and cut-off time determined by DIGOCLUB, subject to such variation or modification as DIGOCLUB shall in its absolute discretion determine from time to time.
DIGOCLUB Services/Administration Fees
1.5 DIGOCLUB shall be entitled to charge DIGOCLUB Services/Administration Fees for DIGOCLUB Services.
1.6 All DIGOCLUB Services/Administration Fees displayed on the Platform shall be exclusive of taxes.
General
1.6 You shall not be entitled to set off any payment due to DIGOCLUB against any claim made by or payments due to you.
1.7 In the event that DIGOCLUB has reason to suspect that you are engaged in any fraudulent or other similar activity, DIGOCLUB shall have the absolute discretion to cancel any payment request made by you.
