TERMS AND CONDITIONS:
1. Definitions and Interpretation
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in the state or territory in which Our principal place of business operates.
Business Hours means 9:00am – 5:00pm on Business Days.
Complaints Handling Policy means Our Complaints Handling Policy as set out at http://about.tushare.com/complaints_and_conflict_resolution.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Licence means as set out in clause 2.1.
Member Data means as set out in clause 7.1.
Member Goods means as set out in clause 5.1.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
“We”, “Our” and “Us” means TuShare Australia Pty Ltd [ACN 161 399 622] of PO Box A238, Sydney South NSW 1235 Australia.
“Website” means the website, the homepage URL of which is specified above and also includes the Member Services and any content, images, text and other information appearing on any page of the Website and any source code and object code in the Website, plus any database which forms part of or which the Website interacts with.
“You” means you, the person who accesses this Website for any reason, whether or not You are a Member of the Website.
(c) Currency refers to Australian Dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(h) A reference to time is to time in the state or territory in which Our principal place of business is located.
(i) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(j) The words “includes”, “including” and similar expressions are not words of limitation.
2. Licence to be granted to access and browse the Website
2.1. We hereby grant You a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable licence to access and browse the Website for personal, non-commercial purposes only (the “Licence”).
3.1. Certain sections of the Website are accessible to registered users only.
3.2. We reserve the right to accept or reject any person’s registration on the Website in Our absolute discretion.
3.3. If You register on the Website, You agree that during the registration process You will provide truthful and accurate information only.
3.4. Registration is only currently available to registered users of Facebook, Google+ and/or Twitter.
3.5. You must ensure, without limiting clause 3.3, that You provide a valid email address at the time of registration.
3.6. We reserve the right to send an email to You with a hyperlink which requires You to verify that You are the owner or operator of the email address entered by You during registration and to cancel/not approve Your registration on this Website if Your rights to the email address are not so verified.
3.7. If any of Your contact details or other information which You provide during the registration process changes, You must promptly update Your registration details on the Website with Your up-to-date details and information.
3.8. You must not provide Your account name or password for Your account to any person or otherwise permit any person to operate Your account on this Website. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and any use of Your registered account (including unauthorised use) on this Website.
3.9. You must immediately notify Us if You become aware of any unauthorised use of Your account on this Website.
4. Member services
4.1. Only registered users of the Website who are logged in to the Website using their facebook, Google+ or Twitter login details (“Members”) may access the Member Services.
4.2. A description of the Member Services is the provision of a website and app to assist members to give things they no longer need to one another. (“Services Description”).
4.3. You agree and acknowledge that if You become a Member:
(a) You are subscribing to the Member Services; and
(b) the Licence granted to You pursuant to clause 2.1 shall also include a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable right granted to You to access the Member Services for the purposes expressly described in the Services Description.
4.4. Each Member must pay the fees and charges set out in the Services Description (or as otherwise agreed between You and Us in writing) in consideration for the Member’s Delivery Services (“Delivery Service Charges”) at the time and in the manner set out in the Services Description, plus any GST that is applicable in respect of the supply of the Member Services to You.
4.5. If the Services Description specifies a minimum term, then the subscription of a Member for the Member Services is for that minimum term (“Minimum Term”) and, unless otherwise specified in the Services Description, cannot be cancelled or terminated by You prior to the expiry of the Minimum Term.
4.6. Upon expiry of the Minimum Term, the Member’s subscription to the Member Services shall automatically renew for subsequent successive terms equal to the Minimum Term on the same terms and conditions, unless either We or the Member provides at least 30 days written notice prior to the expiry of the Minimum Term or any renewal term, in which case the Member’s subscription to the Member Services shall terminate at the end of the Minimum Term or the then current renewal term.
4.8. You must pay all costs associated with accessing the Website, including internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if you are a Member, Service Charges.
5. Member Goods
5.1. The Member Services facilitates the entering into of transactions by Members for the supply of goods to each other in accordance with the Services Description (the “Member Goods”).
5.2. While we agree to facilitate the transport of the Member Goods in accordance with the Services Description, we are not a common carrier, and do not accept liability for the common carriage of any goods. In addition, we reserve the right (but do not accept that we have an obligation) to inspect Member Goods, open packaging in which Member Goods are or may be contained to inspect Member Goods, and to reject and/or refuse to transport any Member Goods if You or the Member Goods are in breach of our Acceptable Use Policy.
5.3. Any Member who provides Us with Member Goods (the “Sending Member”) in the course of using the Website for supply to any other Member (the “Receiving Member”) warrants and represents that:
(a) the Sending Member is the owner of the Member Goods or otherwise is lawfully entitled to supply the Member Goods to the Receiving Member;
(b) the Sending Member has accurately and fully identified and described the Member Goods in the course of using the Member Services and in doing so has not included any misleading and/or deceptive description of the Member Goods whether by the inclusion or omission of information;
(c) the Member Goods comply with, and are not prohibited under, Our Acceptable Use Policy;
(d) no security interest has been registered or will be registered over the Member Goods under the Personal Property Securities Act 2009 (Cth) and the Member Goods are not otherwise subject to any lien, charge, mortgage or other encumbrance and will not be until at least the goods have been received by the Receiving Member;
(e) the Sending Member has properly packaged the Member Goods in accordance with all laws, legal requirements and in accordance with the Services Description.
5.4. The Receiving Member accepts full responsibility for the payment of any customs, taxes and duties incurred in respect of the transport of the Member Goods to the Receiving Member and agrees and acknowledges that the Member Goods may be inspected by all relevant government organisations in charge of border protection, customs and similar.
5.5. The Receiving Member agrees and acknowledges that time is not of the essence in relation to the delivery of the Member Goods by Us to the Receiving Member, however, We agree to use reasonable endeavours to deliver the goods to the Receiving Member in accordance with the timeframes specified in the Services Description.
5.6. Other than in respect of any Non-Excludable Guarantee that binds us pursuant to the Australian Consumer Law, both the Sending Member and the Receiving Member release and discharge Us in respect of any claims, allegations or defects that arise in respect of the Member Goods or as a result of any losses caused by postage carriers.
6. Payment Gateway
6.1. We utilise a third party payment gateway provided by PayPal (“Payment Gateway”) to process payments made to Us via Our Website.
6.2. If You are a Member, when You make credit card payments on Our Website You acknowledge and understand:
(a) the Payment Gateway may be affected by delays, defects, faults and/or other matters which render the Payment Gateway unusable. These matters may be caused by factors including technical difficulties with the performance or operation of Our or the Payment Gateway’s software or hardware or due to problems or malfunctions with the Internet or other telecommunications networks;
(b) except in respect of any Non-Excludable Guarantees, We do not warrant, guarantee or represent that unauthorised access to information and data cannot occur;
(c) You have relied on Your own independent assessment and judgment in determining whether the Payment Gateway We use on this Website meets Your requirements; and
6.3. You indemnify Us in respect of any breach by You of the Payment Gateway Agreement.
7. Responsibility for and ownership of Member Data
7.1. If You are a Member, We agree that as between Us and You, You own all data that You transmit through or upload into the Member Services (“Member Data”).
7.2. You agree and acknowledge that:
(a) the Member Services and/or Member Data may be hosted by Us or Our suppliers on hardware or infrastructure located in or outside Australia; and
(b) We may not own or operate the infrastructure upon which the Member Services and/or the Member Data is hosted.
7.3. Each time a Member uses the Member Services the Member warrants, agrees and represents that:
(a) it will only upload, input and transfer Member Data into and/or via the Member Services or disclose Member Data to Us, which the Member is fully entitled and authorised to upload, input, transfer and disclose; and
(b) the Member Data and Our collection, use, storage and/or disclosure thereof in the course of performing the Member Services, will not breach any applicable law or right of any person.
7.4. You licence us on an irrevocable, non-exclusive, royalty-free, worldwide, transferable, sublicensable basis to modify, publicise, make derivative works from and incorporate into other works, your Member Data on the Website and anywhere else we deem appropriate for our business purposes.
7.5. Each Member is solely responsible for the accuracy, legality and quality of his or her Member Data and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host, transmit, store and disclose his or her Member Data in connection with the provision of the Member Services.
7.6. Except in respect of any Non-Excludable Guarantee, You agree that You, not Us, are solely responsible for backing up and archiving all Member Data.
7.7. Except in respect of any Non-Excludable Guarantee, You agree that We are not responsible for any loss, corruption or hacking of any Member Data or any other consequential or indirect loss, including loss of profits or loss of opportunity. .
7.8. You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of any claim that any of the Member Data is lost, unavailable or corrupted or the transmission, storage, disclosure, hacking or access of any Member Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
8. Availability of Member Services
8.1. We do not warrant that the Website or the Member Services will be available at all times.
8.3. You agree and acknowledge that the accessibility of the Member Services and the Member Data hosted by the Member Services is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which the Website and/or Member Services and/or Member Data operate, interface with or connect to.
8.4. Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Member Services or Member Data or access thereto will be uninterrupted or error-free and You release and indemnify Us in respect of any loss and damage we may incur and/or claims and/or complaints You or your customers may have against Us in respect of any interruption, error or unavailability of the Member Services or any Member Data.
9. Licence Restrictions
9.1. You may not make any use of the Website except as permitted by the Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights in the Website. Without limiting the foregoing provisions of the Licence, You must not, under any circumstances, sell or resell access to the Website or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicence, copy or duplicate the Website or any content You obtain via the Website. In addition, You must not, nor may You permit any person to:
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, creative derivative works from or enhance the Website and/or any content in the Website (except as expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights or those of our licensors;
(c) create a website competitive to the Website or a service competitive to the Member Services;
(d) use the Website in any way that infringes Our rights or the rights of any third party; or
(e) take any steps to circumvent any technological protection measure or security measures in the Website.
9.2. You must not use the Website or any part of the Website in any way which is in breach of any statute, regulation, law or legal right of any person.
10. Acceptable Use Policy
10.1. You agree that:
(a) using the Website to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited;
(b) using the Website in relation to crimes such as theft and fraud is strictly prohibited;
(c) using the Website in breach of laws including but not limited to laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of "pirated” software or otherwise, is strictly prohibited;
(d) using the Website to publish content or supply goods which is false, misleading, abusive, harmful, harassing, vulgar, pornographic, obscene, racist, disctiminatory or which otherwise is in breach of any law is strictly prohibited;
(e) listing or supplying Member Goods or attempting to list or supply Member Goods that are illegal is strictly prohibited;
(f) use of the Website in breach of any of our policies We publish on the Website is strictly prohibited;
(g) failure of a Sending Member to deliver his or her Member Goods to Us as and when required in accordance with the Services Description is strictly prohibited;
(h) unauthorised copying of copyrighted material is strictly prohibited;
(i) introduction of malicious programs into Our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;
(j) revealing Your account password to others or allowing use of Your account on the Website by others is strictly prohibited;
(k) using another person’s name, username or password or otherwise attempting to gain access to the Website of any other person is strictly prohibited;
(l) using the Website to make fraudulent offers of goods or services is strictly prohibited;
(m) using the Website to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which You are not an intended recipient or logging into a server or account that You are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
(n) using the Website to execute any form of network monitoring which will intercept data not intended for You is strictly prohibited;
(o) using the Website to circumvent user authentication or security of any of Our hosts, networks or accounts or those of Our customers or suppliers is strictly prohibited;
(p) using the Website to interfere with or denying service to anyone is strictly prohibited;
(q) using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons' use of the Website is strictly prohibited;
(r) sending unsolicited email messages through or to users of the Website in breach of the Spam Act 2003 is strictly prohibited;
(s) using the Website to post content in any incorrect categories or otherwise contrary to the provisions of the Services Description is strictly prohibited;
(t) using the Website if You are unable to form a legally binding contract with Us is strictly prohibited;
(u) using the Website to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages is strictly prohibited;
(v) use of the Website in breach of any person’s privacy (such as by way of identity theft or "phishing") is strictly prohibited;
(w) transferring Your account on Our Website to another person without our prior approval is strictly Prohibited;
(x) using the Website to collect personal information about any user of the Website without their express consent is strictly prohibited;
(y) using the Website to supply goods that not labeled in accordance with all relevant labeling laws and/or regulations and/or goods that have been recalled or are unsafe is strictly prohibited;
(z) use of the Website if We advise You that Your access to the Website or the Member Services has been suspended or terminated is strictly prohibited;
10.2. In addition, using the Website to list on the Website any and/or supply to any person any, flammable, offensive, dangerous or harmful goods or goods specified in The Dangerous & Prohibited Goods and Packaging Post Guide (the “Guide”) as amended from time to time is strictly prohibited. A copy of the Guide is available at http://auspost.com.au/parcels-mail/dangerous-and-prohibited-items.html
11. Intellectual Property Rights
11.2. As between You and Us, except in respect of Your Member Data, We own all Intellectual Property Rights in the Website.
11.3. You have no rights in the Website or in any part of it or in any modification or enhancement thereof, other than the rights temporarily granted to You pursuant to the Licence.
11.4. Other than in respect of Your Member Data, You agree that any Intellectual Property Rights in any content which You upload or post to the Website including any feedback, suggested improvements or other content (“User Content”) becomes Our sole and exclusive property immediately upon You uploading or posting that content, and You hereby agree to assign all Intellectual Property Rights in all and any such content to Us effective as soon as You upload or post the content to the Website, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You waive all Moral Rights that You may have to any User Content and consent to Us and any third party We authorise to infringing all and any such Moral Rights in Our absolute discretion.
11.5. You must not take any step to invalidate or prejudice Our (or Our licensors’) Intellectual Property Rights in the Website or otherwise. Without limiting the foregoing provisions, You must not register any security interest or purchase money security interest on the Personal Property Securities Register, or otherwise encumber or charge Your rights in respect of the Member Data or under the Licence.
12. Responsibility for other users
12.1. We do not accept responsibility for the conduct of any users of Our Website.
12.3. Before entering into any transaction with any other user of the Website, You should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.
12.4. Any dispute You have with another user of Our Website whether in respect of Member Goods or otherwise is between You and the other user. Except in respect of any Non-Excludable Guarantee that binds Us under the Australian Consumer Law, You release Us from any claims that You may otherwise have against Us in relation to any Member Goods or conduct of any user of Our Website.
12.5. We check content entered into or uploaded into the Website, and Member Goods, from time to time, but We do not review or moderate all content or Member Goods. If We become aware of content or Member Goods that breaches our Acceptable Use Policy We will in the case of content, remove the content and send an email to the person who uploaded or entered it explaining why it was removed, and in the case of Member Goods, refuse to supply the Member Goods to the Receiving Member and/or deal with the Member Goods in the manner set out in our Complaints Handling Policy. If You become aware of any content or Member Goods that You think breaches Our Acceptable Use Policy, please contact Us.
13. Responsibility for third party claims
13.1. You agree and acknowledge that You are solely responsible for and You indemnify Us in respect of any loss and damage We may incur in connection with any claims and/or complaints made by any user of the Website where the claim is caused directly or indirectly by:
(a) Your use of the Member Services; and/or
(b) Your Member Goods and/or your advertising and/or sales and/or marketing practices.
14. Advertising and hyperlinking
14.1. We do not represent, recommend or endorse any websites to which We have linked from the Website via hyperlink or otherwise.
14.2. We do not recommend or endorse any advertising contained on this Website. You agree that the responsibility for any advertising on the Website lies with the advertiser of the relevant advertisement.
14.3. Any advertising (whether in writing, as a sample product or otherwise) included in any parcel or packaging of, or which otherwise accompanies any, Member Goods to a Receiving Member does not constitute any recommendation or endorsement by Us of any such advertising. You agree that the responsibility for any such advertising lies with the advertiser or the manufacturer of the advertisement.
14.4. You may link to our Website via hyperlink provided that the link and the description is not misleading or deceptive, does not damage Our reputation and complies with any trademark and/or linking policy We may publish on this Website from time to time. You may not mirror any part of the Website on any other website or otherwise.
15.1. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on this Website is accurate, correct, up-to-date or error free.
15.2. The information on this Website is not professional advice. You agree that You will seek all appropriate financial, legal and other advice as applicable before relying on any information You obtain from this Website.
15.3. We are not liable for problems unrelated to Our conduct or in respect of problems unrelated to any goods or services We supply. Nor are we responsible for losses caused by something completely independent of us or after Member Goods leave our control.
Note: the following paragraphs of this clause 15 apply in respect of the Website and the services facilitated by the Website including the Member Services and the services through which we deliver items on behalf of users of the Website (our “goods” or “services”) and do not relate to the actual goods that can be supplied by users to each other via our website. Note the actual goods that are supplied by users may also be subject to similar or equivalent non-excludable guarantees that bind the supplier of the goods pursuant to the Australian Consumer Law – however any claim in respect of these goods needs to be addressed directly with the Supplying Member or in accordance with our Complaints Handling Policy.
15.4. To the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any loss or damage howsoever incurred in relation to Your inability to use the Website or in respect of the goods supplied by a Sending Member to a Receiving Member via Us and/or Our employees, agents and/or contractors.
15.5. The Website, the Member Services and the transport of the Member Goods may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether You are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where You are a ‘consumer’ for the purposes of the Australian Consumer Law, We are required to provide the following mandatory statement to You: “Our Website, the Member Services and the transport of the Member Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
15.6. If the Website, the Member Services and the transport of the Member Goods supplied by Us to You are supplied to You in Your capacity as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended You will have the benefit of certain non-excludable guarantees in respect of the Website, the Member Services and the transport of the Member Goods and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the Website, the Member Services and the transport of the Member Goods are subject to a non-excludable guarantee, implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Us to You, in respect of each of the Website, the Member Services and the transport of the Member Goods, where it is fair and reasonable to do so, at Our option, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such 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) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
15.8. Upon receipt of a valid claim from You under an non-excludable guarantee implied by the Australian Consumer Law, We will contact You to arrange a suitable remedy. You may claim reasonable expenses incurred in making a valid claim under such a guarantee by providing documentary evidence of the expenses to Us. You will be responsible for any expenses incurred in relation to an invalid claim. Where We elect to repair goods the subject of a valid claim, You agree that the goods may be replaced by refurbished goods of the same type rather than being repaired and refurbished parts may be used to repair goods. You acknowledge that where the goods are repaired and are capable of retaining user-generated data, it is possible that the repair of the goods may result in loss of data.
15.9. Any warranty against defects provided by Us to You in Your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
16.2. We may take down the Website or any part of it or take the Website or any part of it offline at any time without notice.
17.2. Any notice issued by hand shall be deemed delivered upon delivery.
17.3. Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
17.4. Any notice issued via email shall be deemed to be delivered upon the email being sent, provided that if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.