Acknowledgement & Acceptance of Terms and Conditions


1. Acknowledgement & Acceptance of Terms and Conditions

1.1 Access to and use of the Find My Equipment Service (“FMES”) is provided to you subject to these Terms and Conditions. By accepting these Terms and Conditions during the initial online registration process and by subsequently subscribing, advertising, posting, accessing or using the FMES, you agree to be bound by these Terms and Conditions.

1.2 All users of the FMES, are also bound by the Site Terms of Use # and Privacy #. By accepting these and Conditions you further acknowledge and

indicate you have read, understood and accepted both the Site Terms of Use and Privacy Policy (collectively the “Terms”.)

1.3 References in the Terms to:

(a) “Australian Consumer Law” means the Australian Consumer Law pursuant to the Competition and Consumer Act 2010 (Cth);

(b)“ buyer” or “potential buyer” are references to individuals, businesses or companies who may enquire, deal with you, or complete a sales contract directly with you, in relation to equipment you advertise;

(c) “Site” refers to www.findmyequipment.com.au;

(d) “you”, “yours” and “yourself” are references to you as an individual and you as an officer, director or representative of any business or company you list as a dealer; and

(d) "we", "us" and "our" are references to Find My Equipment, Pty Ltd ACN 600 600 066, ABN 78 600 600 066.


2. Modification or Amendment to Terms

2.1 We reserve the right to modify and amend these Terms at any time. Once any modified or amended terms and conditions are displayed on our Site you will be bound by them. We urge you to regularly check all the terms and conditions displayed on our Site to ensure you are aware of any such changes. Your continued use of the FMES or access to the Site following the posting and notification of changes will indicate your acceptance and agreement of the changes. If you do not agree with or accept the modified Terms, you must refrain from using the FMES and Site.


3. The Find My Equipment Services

3.1 The FMES is an online service that enables you to advertise your equipment online to potential buyers. We do not provide online auctions and do not have any dealings with any equipment on any party’s behalf, nor do we ever take possession or title to any equipment.

3.2 The FMES enables you to create a microsite for your listings, advertisement and dealer business.

3.3 You accept absolute responsibility, legal liability and risk for all material and information provided and advertised, and any sales transactions including pre-contractual dealings with potential buyers.

3.4 You acknowledge and accept that any disputes between you and any third parties, including, without limitation, any buyer or potential buyer, are to be resolved solely between you and that party. All responsibility, risk, legal liability, expenses and costs, for any dealings with third parties are borne solely by you.


4. Registration Requirements

4.1 You need to register online to be able to use the FMES. To be entitled to register, you must be at least 18 years age, have a physical address in Australia and a registered Australian Business Number (“ABN”).

4.2 You warrant and represent that in using the FMES as a dealer that you hold all relevant and legally required licences, accreditation, titles and certificates and are registered with any Federal, State or Territory authorities or bodies required of a dealer selling the type of equipment you provide information regarding for the purposes of advertising and selling.

4.3 You agree to provide true, accurate, current and complete information about yourself and your business as part of your registration and to promptly update your registration and profile information to keep it true, accurate, current and complete.

4.4 If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information may be untrue, inaccurate, not current or incomplete, we may in our sole discretion suspend or terminate your FMES and refuse any and all current or future use of the FMES (or any other service we may offer from time to time) and notify you.

4.5 As part of the registration process your email address will be used as your username and you will be asked to choose a unique password. You must not share your username and password with any other person, and you must ensure that it remains secure. Your username and password are non-transferable.

4.6 You are solely responsible for any use and consequences arising from the use of your username and password, whether or not such use has been undertaken or authorised by you. You agree to immediately notify us of any unauthorised use or suspected unauthorised or fraudulent use or any potential or actual breach of security. You must ensure that you log out from your FMES at the end of each session.

4.7 You warrant and represent that you will not engage in any conduct, or provide or fail to provide any information, that may mislead or confuse potential buyers regarding the nature, purpose, title, history or price or any other relevant facts regarding the equipment you advertise.

4.8 You warrant and represent that you will abide by all requirements of the Australian Consumer Law, and any other applicable laws and regulations, in your dealings with potential buyers and buyers you undertake sales transactions with.

4.9 You warrant and represent that you will comply with the Listing Requirements, detailed in clause 5, at all times.

4.10 We reserve the right to remove any listings we believe may fail to abide by these requirements.


5. Listing Requirements

5.1 These requirements have been established to enhance the Site for the benefit of all users. The Listing Requirements must be adhered to by all dealers and advertisers on the site. We reserve the right to remove any advertisements, hyperlinks, or postings we believe may fail to abide by these requirements.

5.2 You are soley responsible for ensuring any and all documentation, pricing information, transactions and sales are compliant with all Federal, State and Territory laws and regulations, pertaining to the equipment, documentation and transactions, including without limitation the Personal Property Securities Act 2009 (Cth), The Australian Consumer Law, The Corporations Act 2001 (Cth) and the Privacy Act 1988 (Cth) and any other relevant equipment, vehicle, road and transport laws and regulations.

5.3 All equipment published, posted or listed by you must be currently available for sale and purchase. Any equipment advertised or listed that is subsequently sold must be unpublished or removed from the Site by the seller within 2 days [48 Hours] of the equipment being no longer available for sale or purchase.

5.4 Duplicates of advertisements or postings are prohibited. In the case of new equipment where there are varying specifications of a single model of equipment available, the seller is to list those variants in the description field(s), opposed to creating duplicate advertisements or postings.

5.5 We do not manipulate search results or rankings via preferential paid advertisements. Search results are determined by users individual preferences and selections and internal site ranking criteria. It is strongly recommended therefore that potential sellers provide as much accurate detail as possible in order to assist in search rankings, these include but are not limited to:

Providing details in as many of the available listing fields as applicable; Ensuring accurate spelling for keyword searches; Full and comprehensive description of equipment; Quality photos that are clear and accurate (seeclause5.11); and Transparent price details.

5.6
an accurate representation of the equipment. If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasons to suspect that such information may be untrue, inaccurate, not current or incomplete, we may in our sole discretion suspend or terminate your FMES and refuse any and all current or future use of the FMES (or any other service we may offer from time to time) on written notice to you.

All information provided regarding the equipment must be true, up to date and

5.7 You may provide additional information about your business services under the “About Dealer” field. You warrant and represent that all information provided about you and your business is true, current and not misleading or deceptive in any way.

5.8 Any information, content or material placed on this Site, whether directly or indirectly or via a hyperlink, including listings, posting and advertisements must comply with all relevant laws and regulations, and must not include any of the following:

offensive, obscene, defamatory, discriminatory, unlawful, harassingor unsuitable information, remarks or materials; intellectual property rights of third parties that you have not been authorised or licensed to use;

any salacious, sexual or sexually suggestive or inappropriate content; Web links or URL’s to external advertisings ites other than your own findmyequipment.com.au microsite; and Notation,comments or referrals to any other website, address or business other than that of the seller or Find My Equipment.

5.9
property rights, licences, consents and moral rights in the materials you provide or post, and that you indemnify us in full against the costs and expenses related to any allegation, claim or action taken by a third party in relation to information, materials, hyperlinks, advertisements or listings provided or posted by you.

5.10 You acknowledge and understand that we have absolute discretion regarding the editing or removal of any information, hyperlinks, content or material posted or provided, including placement and position.

5.11 Photos are an important aspect of any listing or advertisement, sellers must provide users of the Site with quality images providing accurate and clear representations of the equipment. Images provided, linked to and posted must:

  1. (a) be clean, with no watermarks or advertising material;

  2. (b) not contain images of any person(s);

  3. (c) to be inappropriate (see clause 5.8); and

  4. (d) not promote any other Site, address or business other than that of the seller

    or Find My Equipment.

5.12 Dealers with multiple locations must hold an account for each location they deal from. You must not advertise equipment that is located in another location.


6. From August 1st 2015 Dealer subscriptions will be free of subscription charges

FMES will provide all dealers free access to findmyequipment.com.au with all inclusions as per set out in these terms and conditions.

Any subscription fees incurred up to and including July 31st 2015 still remain payable and due.

Should FMES introduce any subscription costs for services after August 1st 2015 no dealer account will be required to maintain their subscription and will be provided 30 days notice of any fees introduced. Any Dealer subscription can be cancelled without obligation to fees within the 30 day period.

 

7. Intellectual Property Rights

7.1 Using the FMES does not give you ownership or any intellectual property rights in the FMES or the content you access. You may use the FMES for your own use only.

7.2 You grant us a non-exclusive, irrevocable, worldwide and royalty free licence to host and reproduce the information, material or content you provide us for the purposes of providing the FMES and the Site, including any trademarks you provide. Except as permitted under the Copyright Act 1968 (Cth) or other applicable laws, no part of the information contained on the Site may be otherwise reproduced, adapted, performed in public or transmitted in any form by any process (including all forms of communications to the public) without our prior written consent.


8. Indemnity, Disclaimer & Australian Consumer Law

8.1 You agree to indemnify us and our directors, employees, agents, advisors and representatives from any claim or demand, including reasonable legal costs, made by any third parties against us due to or arising out of your wilful, negligent or fraudulent acts or omissions and any breach of these Terms by you, or the infringement by you of our or a third party's intellectual property rights.

8.2 We will not be liable for any failure to perform or any delay in performing our obligations under these Terms if that failure or delay is caused or due to anything beyond our reasonable control, including without limitation any natural disaster, unavoidable incident, actions of third parties (including without limitation, government or regulatory authorities, suppliers, software providers, telecommunication providers, or hackers), software or equipment failure, regardless of whether the circumstances in question could have been foreseen.

8.3 For consumers, our goods and services come with non-excludable guarantees under The Australian Consumer Law ("Consumer Guarantees"), including that services will be provided with due care and skill. You are entitled, at your option, to various remedies under The Australian Consumer Law if these guarantees are not complied with, such as the resupply of services and you may also be entitled to compensation. Nothing in these Terms excludes, restricts or modifies any of the Consumer Guarantees.

8.4 Subject to clause 8.3, we make no warranty that the FMES will be uninterrupted or error free. Specifically, we do not warrant that you will have continuous access to the FMES, and we will not be liable in the event that the FMES is unavailable to you due to computer or device downtime attributable to malfunctions, upgrades, viruses, malicious computer code, preventative or remedial maintenance activities or interruption in telecommunications supply.

8.5 Subject to clause 8.1, we will in no way be liable for any loss or damage, including indirect, incidental, special or consequential damages (such as damage for loss of profits, use or data) or the cost of procurement of substitute goods or services, even if we have been advised of the possibility of such loss or damage, arising or resulting from:

a) your failure to comply with these Terms
b) your use or your inability to use the FMES, or

c) any goods or services purchased or obtained or of any information provided in connection with the FMES.

8.6 Where the services are not being acquired for personal, domestic or household use of consumption, our liability for breach of any Consumer Guarantee is limited, at our option, to the following:

i. the supply of the services again; or
ii. the payment of the cost of having the services supplied again.


9. Termination

9.1 We may terminate, limit your access to or suspend your FMES and access to the Site. We will attempt to provide you with reasonable written notice where possible. We may not provide prior notice where you have breached the Terms in any way. The grounds for such termination, limitation of access or suspension will include, but not be limited to,

a) a breach of these Terms;
b) a request by law enforcement or other government agencies; c) discontinuance of FMES,
d) unexpected technical or security issues or problems; and

f) engagement by you in fraudulent or illegal activities. Further, you agree that any termination, limitation of access or suspension will be made in our sole discretion and that, except as specified in clause 8, we will not be liable to you or any third party for any termination of your FMES.

9.2 Upon termination of your FMES for any reason, we will (a) remove access to all or part of the listings, postings and advertisements, (b) delete your password and all related information, files and content associated with or inside your FMES (or any part thereof), and (c) bar further use of all or part of the FMES.


10. Interpretation & Miscellanous

10.1 These Terms are governed by and are to be construed in accordance with the laws of Victoria, Australia. You agree to submit to the exclusive jurisdiction of the Courts of Victoria (and appeal Courts) in relation to any unresolved disputes.

10.2 If any provision of these Terms is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the Terms which will continue in full force and effect.

10.3 All rights not expressly granted in these Terms are reserved.

10.4 We shall not be deemed to have waived any of our rights or remedies under these Terms. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies.

10.5. These Terms constitute the entire agreement and understanding between you and us and supersede any and all prior communications, representations, agreements or understandings between you and us with respect to the subject matter of these Terms.

10.6 You hereby authorise us to disclose your listings, advertisements , information and postings, and grant access to your FMES, to law enforcement and government authorities and agencies in accordance with their lawful requests.

10.7 We may assign or otherwise deal with our rights and subcontract and novate our obligations under these Terms by written notice to you without your prior written consent.