(updated as of April 2017)
This MachineryGenie.com Services Agreement contains the terms and conditions on which you conclude online transactions for products and services on MachineryGenie.com (“the Site”).
- Application and Acceptance of Terms
1.1 Contracting Party. This Agreement is entered into between the entity whose details are entered in the membership details and in whose name a membership is registered (also referred to as “you” and/or “Member” hereinafter) and MachineryGenie.com (or “we”) for use of MachineryGenie.com’s Services as described below.
1.2 Transactional Terms.
MachineryGenie.com provides an online transaction platform and ancillary services (“Services”) on the MachineryGenie.com site which allows registered members to conclude online transactions for products or services within the MachineryGenie.com Site (“the Site”) subject to the terms of this Agreement. MachineryGenie.com may publish transaction rules, dispute rules and other rules and policies for any type of online transaction and any subsequent amendments or modifications as may be made from time to time (together, “Transactional Terms”). Such Transactional Terms (as amended from time to time) are expressly incorporated into this Agreement by reference and you agree to be bound by such rules and policies.
As some or part of the Services may be supported and provided by affiliates of MachineryGenie.com and/or third parties, MachineryGenie.com may delegate some of the Services to such affiliates and/or third parties, who you agree may invoice you for their part of the Services.
1.3 General Terms. You agree that you shall also comply with relevant rules and policies published on the MachineryGenie.com Site which are also hereby incorporated into this Agreement by reference (“General Terms”). The General Terms include without limitation:
- Membership Agreement;
- Product Listing Policy; and
1.4 Binding Agreement. This Agreement, including the Transactional Terms and the General Terms, form a legally binding agreement between you and MachineryGenie.com in relation to your use of the Services. By accessing and using the Services, you agree to accept and be bound by this Agreement.
1.5 Amendments.You acknowledge and agree that MachineryGenie.com may amend any terms of this Agreement including the Transactional Terms and the General Terms at any time by posting the relevant amended and restated version on the Site. The amended terms shall be effective immediately upon posting. By continuing to use the Services, you agree that the amended terms will apply to you. This Agreement may not otherwise be amended except in writing by an authorized officer of MachineryGenie.com.
1.6 Language Version. Unless otherwise agreed, if MachineryGenie.com has posted or provided a translation of the English version of any terms of this Agreement including the Transactional Terms and the General Terms, you agree that the translation is provided for convenience only and that the English language version will govern your use of the Services.
1.7 MachineryGenie.com Affiliates and Third Parties. Some of the Services may be performed or supported by our affiliates and/or third parties. You consent to this and agree that such affiliates and/or third parties may invoice you separately for such services, and you agree to pay such invoices. You also agree that MachineryGenie.com is not liable for any damage, loss or cost incurred or injury suffered as a result of your use of such Services supplied by third parties.
1.8 Additional Terms. In some cases, you may be required to enter into a separate agreement with MachineryGenie.com or our affiliates or third parties in connection with the Services (“Additional Terms”). If there is any contradiction between the provisions of this Agreement and the provisions of the Additional Terms, the Additional Terms shall govern the relevant types of Services or Online Transactions, as appropriate.
1.9 Membership Services. Unless otherwise stipulated in this Agreement or the Membership Agreement, in the case of inconsistency between this Agreement and the Membership Agreement, the Membership Agreement shall apply.
2.1 Services. MachineryGenie.com’s Services are designed to facilitate registered members of the MachineryGenie.com Site to place, accept, manage and fulfill orders for the provision of products and services online on the Site (“Online Transactions”), which may include certain services which will be supported by MachineryGenie.com or its affiliates. MachineryGenie.com reserves the right to change, upgrade, modify, limit or suspend the Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. MachineryGenie.com further reserves the right to introduce new features, functionalities or applications to the Services or to future versions of the Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by MachineryGenie.com.
2.2 Members Only. MachineryGenie.com’s Services are only available to registered members of the MachineryGenie.com Site. If your subscription expires or is terminated for any reason, you are not eligible to use the Services. In the event that you have a valid Online Transaction under this Agreement whilst your registration on the Site is terminated, MachineryGenie.com shall have the full discretion and authority to cancel the Online Transactions as MachineryGenie.com considers appropriate, or to allow it to proceed subject to conditions which MachineryGenie.com deems appropriate. If you are a Seller, you are required to provide a valid credit card subject to verification and confirmation by MachineryGenie.com and our affiliates. MachineryGenie.com shall not be liable to any party as a result of allowing a transaction to proceed or the cancellation of a transaction.
2.3 Types of Transactions. For any type of Online Transaction, MachineryGenie.com may limit any or all of the Services to a specified group of members in accordance with the relevant Transactional Terms. The types of Online Transactions and other benefits, features and functions of the Services available to a registered member may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all members.
2.4 Lawful Items. The products or services of an Online Transaction using the Services must be lawful items and must not be otherwise prohibited or restricted by this clause 2.4. You shall not use the Services in connection with any Online Transaction that:
(a) may infringe MachineryGenie.com’s or any third party’s legitimate rights including but not limited to copyright, trademark right, patent or other intellectual property rights;
(b) may be in breach of the Product Listing Policy or the Intellectual Property Rights Policy;
(c) may be in breach of other terms of this Agreement including the Transactional Terms and the General Terms; or
(d) may infringe any applicable law of any jurisdiction.
MachineryGenie.com shall have the right to refuse or cancel any Online Transaction which it has reasonable grounds to believe is in breach of this clause 2.4 without liability. MachineryGenie.com shall not be liable to any party as a result of allowing a transaction to proceed or the cancellation of a transaction.
2.5 Refuse or Cancel Transactions. Apart from clause 2.4, MachineryGenie.com reserves the right, at our sole discretion, to refuse or cancel any Online Transaction for any reason. Some situations that may result in an Online Transaction being rejected or cancelled include where MachineryGenie.com has reason to believe the Online Transaction is unauthorized, violates any law, rule or regulations or may otherwise subject MachineryGenie.com or any of our affiliates to liability. MachineryGenie.com may also require additional verifications or information for any Online Transaction. If an Online Transaction is cancelled both parties will be notified. MachineryGenie.com shall not be liable to any party as a result of allowing a transaction to proceed or the cancellation of a transaction.
2.6 Transactional Terms Violations. For any type of Online Transaction, MachineryGenie.com may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Transactional Terms.
2.9 Disputes between Buyers and Sellers.
Machinery.Genie.com recommends that you use the third party payment options which provide added security and dispute resolution services, including escrow for all transactions. You acknowledge the inherent risk associated with purchasing and selling goods online and that MachineryGenie.com recommends that you independently verify the identity of other parties prior to entering into any transaction. Feedback can be given in relation to a transaction within the Site. All members are responsible for the material they publish and to ensure its accuracy.
- Transactions between Sellers and Buyers
3.1 Seller and Buyer. For the purpose of this Agreement, the term “Seller” means the registered member who supplies the product(s) or service(s) under an Online Transaction, and the term “Buyer” means the registered member who purchases or acquires the product(s) or service(s) under an Online Transaction.
3.2 Online Order. Seller and Buyer shall enter into an Online Transaction for products or services by completing, submitting and accepting an order online using the applicable standard order form on the MachineryGenie.com Site. Seller and Buyer yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant online order form, including but not limited to the pricing, quantity, specifications, quality standards, inspection, shipping etc. MachineryGenie.com may refuse to process or cancel any Online Transaction which in MachineryGenie.com’s reasonable opinion, has insufficient information to constitute a binding contract. MachineryGenie.com shall not be liable to any party as a result of allowing a transaction to proceed or the cancellation of a transaction.
3.3 Online Transactions Subject to This Agreement.
An Online Transaction is additionally subject to the applicable terms and conditions set forth in this Agreement and the Transactional Terms. Seller and Buyer shall complete the Online Transaction according to the terms of the online order, the relevant Transactional Terms and this Agreement. Seller or Buyer may only cancel any Online Transaction according to the relevant Transactional Terms.
3.4 Transaction between Seller and Buyer Only. Each Online Transaction is made by and between a Seller and a Buyer only. Despite the fact that MachineryGenie.com provides the Services and, if applicable, may conduct a review of an Online Transaction, MachineryGenie.com shall not be considered a party to the Online Transaction. MachineryGenie.com does not represent Seller or Buyer in any Online Transaction. MachineryGenie.com will not be responsible for the quality, safety, lawfulness or availability of the products or services offered under any Online Transaction or the ability of either Seller or Buyer to complete any Online Transaction. You agree that you will not hold MachineryGenie.com and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Online Transactions, including any breach, partial performance or non-performance of the Online Transaction by the other party to the transaction.
3.5 Payment of Contract Price. For any Online Transaction, Buyer agrees to pay the full transaction price listed for the Online Transaction to the Seller through one or more of the options listed for that Online Transaction on the Site unless another option is made available directly by MachineryGenie.com on the MachineryGenie.com Site. The Seller agrees that the Buyer’s full payment of the transaction price listed for the Online Transaction via one or more of the Seller’s nominated methods (including any escrow service) constitutes final payment to Seller and Buyer’s payment obligation for the Online Transaction is fully satisfied upon receipt of funds by the Seller.
3.7 Third Party Vendors. You may engage one or more third party vendors for the purpose of completing and fulfilling an Online Transaction such as the warehousing and logistic service companies, shipping agents, inspection agents, insurance companies, etc. Some of such third party vendors may be partners of MachineryGenie.com and thus designated by MachineryGenie.com to you. Among such designated partners, you may be required to agree and accept the terms and conditions of their services. Notwithstanding the foregoing circumstances, for all third party vendors, you acknowledge and agree that such third party vendors are engaged at your own discretion and cost and that you will not hold MachineryGenie.com and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from the services of such third party vendors.
3.8 Your Agent. If you are required to conclude and complete an Online Transaction through an agent e.g. a Seller may be required to engage a qualified import and export agent as its export agent, such agent is merely an agent of you. If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Transaction for the non-performance or default by your agent.
4. MachineryGenie.com Service Fees
4.1 Service Fees. MachineryGenie.com charges service fees for Online Transactions and advertising according to the fee schedules posted by MachineryGenie.com on the Site. MachineryGenie.com reserves the right to charge any fees upon reasonable prior notification published on the Site. MachineryGenie.com does not have any control over, and is not responsible or liable for, the products or services that are paid for through an Online Transaction. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction. Seller Members authorise MachineryGenie.com to charge their credit card with such fees, and agrees that such fees remain payable in the event of a dispute between the parties, and if the purchase price is refunded.
4.2 Third Party Fees Not Included. The service fees charged by MachineryGenie.com do not include any fees for any service or product that you may acquire or purchase in connection with the Online Transaction or Advertising. It shall be your responsibility to settle the fees with such third party vendors including PromisePay or other Escrow service and PayPal.
4.3 Taxes, Financial Charges Not Included. All fees quoted by MachineryGenie.com are exclusive of any taxes eg GST, duties or other governmental levies or any financial charges, unless stated otherwise. You agree to pay and be responsible for any taxes, duties, levies or charges for the use of the Services in addition to our service fees. In the event MachineryGenie.com is required by any applicable law to collect or withhold any taxes or duties, you agree to pay such taxes or duties to MachineryGenie.com.
- Member’s Responsibilities
5.1 Provision of Information and Assistance. You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the completion of the Online Transactions and MachineryGenie.com’s provision of the Services. If your failure to do so results in delay in the provision of any Transaction Service, cancellation of any Online Transaction, or disposal of any funds, MachineryGenie.com shall not be liable for any loss or damages arising from such default.
5.2 Representations and Warranties. You represent and warrant to MachineryGenie.com and other members that:
(a) you will use the Services in good faith and in compliance with all applicable laws and regulations，including laws related to anti-money laundering and counter-terrorism financing;
(b) all information and material you provide in connection with the use of the Services and the products advertised is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Services to defraud MachineryGenie.com, our affiliates or partners, or other members or users of the MachineryGenie.com Site or engage in other unlawful activities (including without limitation dealing in products prohibited by law); and
(d) if you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Services and such products do not infringe any third party’s rights; and
(e) if you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and
(f) if you are a Seller of services, you will provide the services ordered with reasonable care and skill;
(g) if you are a Buyer you will make payment in accordance with the sale transaction details.
5.3 Breaches. If you are, in MachineryGenie.com’s opinion, not acting in good faith, abusing the Services, or otherwise in breach of this Agreement, MachineryGenie.com shall have the right to cancel the relevant Online Transaction(s). MachineryGenie.com also reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Services, and/or temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the MachineryGenie.com Site. MachineryGenie.com also reserves the right to temporarily suspend the transaction functionalities of your account with MachineryGenie.com for a prescribed period determined by MachineryGenie.com, or permanently terminate the use of your MachineryGenie.com account. MachineryGenie.com may also publish the findings, penalties and other records regarding the breaches on the MachineryGenie.com Site. MachineryGenie.com and its affiliates and partners shall not be liable to any party for any loss or damage suffered as a result of such action taken under this clause, or the failure of MachineryGenie.com to take any action under this clause.
5.4 Obligations to Pay Taxes. The Buyer shall be solely responsible for payment of any taxes, duties or other governmental levies or any charges or fees that may be imposed on any products or services purchased or supplied under or in connection with the Online Transactions (including any import taxes, duties and GST/VAT or like taxes), unless the listing specifies otherwise.
5.5 Feedback System. You shall not take any action which may undermine the integrity of MachineryGenie.com’s feedback system, such as providing positive feedback on oneself on the Site using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another member on the Site.
5.6 Indemnification by Member. You agree to indemnify MachineryGenie.com and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Services or from your breach of this Agreement, and any breach of this Agreement by any other Member and any action taken by MachineryGenie.com in accordance with this Agreement. MachineryGenie.com reserves the right, at our own discretion, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with MachineryGenie.com in asserting any available defences.
5.7 Collection and Use of Information.
6.1 Confidentiality Obligations. You shall keep confidential all confidential information provided by other members of the Site or MachineryGenie.com in connection with any Online Transaction or the Services.
6.2 Confidential Information. All information and material provided by another member of the Site or MachineryGenie.com will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently become public other than due to your breach of the confidentiality obligations.
- Disclaimer and Limitation of Liability
7.1 No Warranty. You expressly agree that your use of the Services is at your sole risk. To the fullest extend allowed by law the Services are provided on an ‘as is, as available” and ‘with all faults’ basis and MachineryGenie.com makes no representation or warranty that the Services will be uninterrupted, timely or error free. MachineryGenie.com makes no representation or warranty with respect to the accuracy, truthfulness and/or completeness of the information provided by any member of the SIte. You will be solely responsible for all consequences resulting from your own judgement and decision to use to otherwise rely on such information. MachineryGenie.com and our affiliates further expressly disclaim any and all warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability or fitness for a particular purpose, compliance with any regulatory requirements, (including health and safety requirements) or non-infringement even if advised of the possibility of such damage or if such possibility was reasonably foreseeable. All such warranties, representations, conditions, undertakings and terms are hereby disclaimed and excluded to the fullest extent permitted by law.
7.2 Exclusion and Limitation of Liabilities. To the fullest extend allowed by law, MachineryGenie.com shall not be liable for any indirect, consequential, incidental, special or punitive damages all including without limitation damages for loss of profits or revenues, business interruption, loss of business opportunities, loss or data, whether in contract, negligence, tort, equity or otherwise, arising from the use or inability to use the Services. The aggregate liability of MachineryGenie.com and our affiliates and agents arising from the Services in connection with any online transaction shall not exceed AUD$1000.
- Force Majeure
8.1 Force Majeure. Under no circumstances shall MachineryGenie.com and our affiliates and agents be held liable for any delay or failure or disruption of the Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9.1 Notices. Except as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on the Site. Notice shall be deemed given 24 hours after email is sent. Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing. Except as explicitly stated otherwise, legal notices shall be served on MachineryGenie.com by sending the notices to MachineryGenie.com at email@example.com.
Governing Law; Jurisdiction
10.1 Governing Law. This Agreement shall be governed by the laws of the State of Victoria, Australia without regard to conflict of laws principles.
10.2.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute between you and Machinery.Genie.com that arises out of or in connection with this agreement (including any dispute as to the validity, breach or termination of the agreement, or as to any claim in tort, in equity or pursuant to any statute).
10.2.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.
10.2.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
10.2.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: firstname.lastname@example.org; telephone: (61-2) 9251 3366, for facilitation of a mediation in Melbourne, Victoria in accordance with Resolution Institute’s Mediation Rules.
10.2.5 The parties must co-operate with Resolution Institute as facilitator.
10.2.6 If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Facilitation Rules. 10.8 This clause will remain operative after the contract has been performed and notwithstanding its termination.
10.2.7 The parties shall bear the cost of the mediation equally.
10.3 Limitation Period. In any event, you may not make any claim against MachineryGenie.com or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim or such longer period as allowed under the laws of the State of Victoria, Australia.
- General Provisions
11.1 Entire Agreement. This Agreement constitutes the entire agreement between you and MachineryGenie.com with respect to and governs the use of the Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
11.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
11.3 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
11.4 Independent Parties. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
11.5 No Waiver. Any failure by MachineryGenie.com and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
11.6 Assignment. MachineryGenie.com shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. MachineryGenie.com may delegate certain of MachineryGenie.com rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.
In this agreement MachineryGenie.com means Capital Machinery Sales Pty Ltd ACN 113 895 097.