Term
of use
XYZed.com
Terms of Use Agreement
This
Terms of Use Agreement (the "Agreement") describes the terms
and conditions applicable to your use of the XYZed web site which is identified
by the uniform resource locator www.XYZed.com (the"Site").
This Agreement is entered into between you as the user of the Site (the" User")
and XYZed.com E-Commerce Corp. ("XYZed").
1.
Application of and Acceptance of Terms and Conditions.
1.1
For purposes of this Agreement, a "User" is any person who
accesses the Site for whatever purpose, regardless of whether said User has
registered with XYZed as a registered User or whether said User is a paying
customer for a specific service provided by XYZed.com. A User includes the
person using this Site and any legal entity, which may be represented by such
person under actual or apparent authority.
1.2
By accessing or using the Site, you hereby agree to accept the terms and
conditions set forth in this Agreement as a User. You shall be bound by the
terms and conditions of this Agreement with respect to your access or use of
this Site and any further upgrade, modification, addition or change to this
Site. If you do not accept all of the terms and conditions of this Agreement,
please do not use this Site.
1.3
This Agreement applies to each Premium Service (as defined below) in addition
to any terms and conditions that may be applicable to such specific Premium
Service provided, however, that (a) in the event of any conflict or
inconsistency between any provision of the terms and conditions that may be
applicable to such Premium Service and any provision of this Agreement, such
conflict or inconsistency shall (except as otherwise expressly provided or
agreed) be resolved in a manner favorable to XYZed.com and/or its affiliates;
and (b) only to the extent that such conflict or inconsistency cannot be so
resolved, the provisions of the terms and conditions applicable to such
specific Premium Service shall prevail.
1.4
XYZed.com may amend this Agreement at any time by posting the amended and
restated Agreement on the Site. The amended and restated Agreement shall be
effective immediately upon posting. This Agreement was last amended on October
1st, 2006. Posting by XYZed of the amended and restated Agreement
and your continued use of the Site shall be deemed to be acceptance of the
amended terms. This Agreement may not otherwise be modified, except in writing
by an authorized officer of XYZed.com.
2.
Premium Services.
2.1
Access to the Site and certain of its features are provided to all Users free
of charge. However, XYZed.com reserves the right, without prior notice, to
restrict access to certain areas or features of the Site ("Premium Services")
to paying Users or Users who undergo a specific registration process. Access to
and use of these Premium Services are governed by additional terms and
conditions under separate agreements in addition to this Agreement.
2.2
XYZed reserves the right to deny Premium Services to any User for whatever
reason in order to protect the interests of XYZed.com.
3.
Users Generally.
3.1
Users may use this Site solely for their own personal or internal purposes.
Each User agrees that it shall not copy, reproduce or download any information,
text, images, video clips, directories, files, databases or listings available
on or through the Site (the "XYZed Content") for the purpose of re-selling or
re-distributing the XYZed.com Content, mass mailing (via emails, wireless text
messages, physical mail or otherwise), operating a business that competes with
XYZed.com, or otherwise commercially exploiting the XYZed.com Content.
Systematic retrieval of XYZed.com Content from this Site to create or compile,
directly or indirectly, a collection, compilation, database or directory
(whether through robots, spiders, automatic devices or manual processes)
without written permission from XYZed.com is prohibited. In addition, use of
the content or materials for any purpose not expressly permitted in this
Agreement is prohibited.
3.2
Some of the XYZed.com Content displayed on this Site is provided or posted by
third parties ("Third Party Content"). XYZed.com is not the author of
third-party content, whether contributed by anonymous users or paid content
providers. Neither XYZed.com nor any of our affiliates, directors, officers or
employees has entered into any sales agency relationship with such third party
by virtue of our display of the Third Party Content on the Site. Any Third
Party Content is the sole responsibility of the party who provided the content.
XYZed.com is not responsible for the accuracy, propriety, lawfulness or
truthfulness of any Third Party Content, and shall not be liable to any User in
connection with such User's reliance of such Third Party Content. In addition,
XYZed is not responsible for the conduct of any User's activities on the Site,
and shall not be liable to any person in connection with any damage suffered by
any person as a result of such User's conduct.
3.3
XYZed.com may allow Users access to content, products or services offered by
third parties through hyperlinks (in the form of word link, banners, channels
or otherwise) to such Third Party's web site. You are cautioned to read such
sites' terms and conditions and/or privacy policies before using such sites in
order to be aware of the terms and conditions of your use of such sites. User
acknowledges that XYZed.com has no control over such third party's web site,
does not monitor such sites, and XYZed.com shall not be responsible or liable
to anyone for such web site, or any content, products or services made
available on such a website.
3.4
Messages or information sent by a User through communication systems provided
by the Site, or through emails, fax or letters to addressees obtained from the
Site, shall not contain any of the materials described in the provisions of
Section 5.5 below.
3.5
XYZed.com reserves the right to limit, deny or create different access to the
Site and its features with respect to different Users, or to change any of the
features or introduce new features without prior notice. Each User acknowledges
that inability to use the Site wholly or partially for whatever reason may have
adverse effects on its business. Each User hereby agrees that in no event shall
XYZed.com be liable to the User or any third parties for any inability to use
the Site (whether due to disruption, limited access, changes to or termination
of any features on the Site or otherwise), any delays, errors or omissions with
respect to any communications or transmission, or any damage (direct, indirect,
consequential or otherwise) arising from the use of or inability to use the
Site or any of its features.
3.6
No User shall undertake any scheme to undermine the integrity of the computer
systems or networks used by XYZed.com and/or any other User and no User shall
attempt to gain unauthorized access to such computer systems or networks.
3.7
We urge that you read XYZed.com's Privacy Policy which governs the protection
and use of each User's information in XYZed.com's possession. Each User hereby
accepts the Privacy Policy and any updates and amendments thereto. Each User
acknowledges that XYZed.com may change the Privacy Policy from time to time
provided that XYZed.com shall make available the updated version of the Privacy
Policy on the Site at all times. Your continuation of use of the Site shall be
deemed to be your acceptance of the Privacy Policy which is then displayed on
the Site at the time of such use.
3.8
As a condition of your access to and use of XYZed.com, you agree that you will
not use the XYZed.com service to infringe the intellectual property rights of
others in any way. XYZed.com will in appropriate circumstances terminate the
accounts of members or users who are repeat infringers of the copyrights, or
other intellectual property rights, of others. In addition, XYZed.com reserves
the right to terminate the account of a user upon any single infringement of
the rights of others in conjunction with use of the XYZed.com service, or if
XYZed believes that user conduct is harmful to the interests of XYZed.com, its
affiliates, or other users, or for any other reason in XYZed.com's sole
discretion, with or without cause.
4.
Registered Users
4.1
Each User who has filled out an on-line registration form on the Site by giving
its information (such as name, address, telephone and fax number, email
address, details of its business, etc.) is a registered user of XYZed.com (a
"Registered User"). XYZed.com will establish an account ("Account") for each
Registered User and each Registered User will be assigned a user alias ("User
ID") and password ("Password") for log-in access to its own Account.
4.2
XYZed.com may assign a web-based email account with limited storage space for
the User to send or receive email (the "Email Account"). The User shall be
responsible for all users and the content of all the messages communicated
through the Email Account, as well as the consequences of any such message.
4.3
If the Registered User is a business entity, you represent that (a) you have
the authority to bind the entity to this Agreement; (b) the address you use
when registering is the principal place of business of such business entity;
and (c) all other information submitted to XYZed.com during the registration
process is true, accurate, current and complete. For purposes of this
provision, a branch or representative office will not be considered a separate
entity and its principal place of business will be deemed to be that of its
head office.
4.4
By becoming a Registered User, you consent to the inclusion of your personal
data in our Global Buyer Database and authorize XYZed.com to share such
information with other Users.
4.5
XYZed.com may suspend or terminate a Registered User's Account or Email Account
at any time by giving no less than 24-hour notice to the Registered User;
provided, however, that notice is not required for such termination if (a) in
XYZed.com's determination, there is any breach of the provisions of this
Agreement by the Registered User; or (b) XYZed.com has reasonable grounds to
suspect that such information provided by a Registered User is untrue,
inaccurate or is not current or complete, or (c) XYZed believes that the
Registered User's actions may cause financial loss or legal liability to such
Registered User, XYZed.com's other Users, or XYZed.com or its affiliates.
4.6
The Registered User shall not use the Email Account for junk mail, chain
letters or spamming or the transmission of any unlawful, harassing, libelous,
abusive, threatening, harmful, vulgar, obscene or otherwise objectionable
material or any kind or nature. Further, the Registered User shall not use the
Email Account to publish, distribute, transmit or circulate any unsolicited
advertising or promotional information or any content that is obscene,
indecent, seditious, offensive, defamatory, threatening, or which incites or
results in causing racial hatred, discrimination, menace or breach of
confidence.
4.7
A Registered User may not sell, attempt to sell, offer to sell, give, assign or
otherwise transfer an Account, User ID or Password to a third party without the
prior written consent of XYZed.com. XYZed.com may suspend or terminate the
Account of a Registered User or the transferee of a Registered User in the
event of a sale, offer to sell, gift, assignment or transfer in violation of
this Section.
4.8
Notwithstanding Section 4.1 above, XYZed.com may refuse registration and deny
the issuance of an Account and/or Email Account and associated User ID and
Password to any User for whatever reason.
5.
Users Who Post Information on XYZed.com
5.1
You must be a Registered User in order to post information on the Site using
the self-help submit and edit tools provided through the Site. Your status as a
Registered User is governed by the provisions of Section 4 above.
5.2
No sales agency relationship is created between any User and XYZed.com, our
affiliates, directors, officers or employees by virtue of XYZed.com's display
of any of the User's information on the Site.
5.3
Each User hereby represents, warrants and agrees to (a) provide XYZed.com with
true, accurate, current and complete information to be displayed on the Site
and (b) maintain and promptly amend all information to keep it true, accurate,
current and complete. Each User hereby grants an irrevocable, perpetual,
worldwide and royalty-free, sublicensable (through multiple tiers) license to
XYZed.com to display and use all information provided by such User in
accordance with the purposes set forth in this Agreement and to exercise the
copyright, publicity, and database rights you have in such material or
information, in any media now known or not currently known.
5.4
Each User hereby represents, warrants and agrees that it has obtained all
necessary third party copyright, trademark trade secret or patent licenses and
permissions, or such other licenses or permissions as may be required in
connection with any other personal or proprietary rights of any third party
(including but not limited to rights of personality and rights of privacy), for
any material or information it posts on the Site or provides to XYZed.com or
authorizes XYZed.com to display. Third party copyrights, trademarks, trade
secret rights, patents and other personal or proprietary rights affecting or
relating to material or information displayed on the Site, including but not
limited to rights of personality and rights of privacy, or affecting or
relating to products that are offered or displayed on the Site, are hereafter
referred to as "Third Party Rights." Each User hereby represents, warrants and
agrees that it shall be solely responsible for ensuring that any material or
information it posts on the Site or provides to XYZed.com or authorizes
XYZed.com to display does not, and that the products represented thereby do
not, violate any Third Party Rights, or is posted with the permission of the
owner(s) of such rights. Each User hereby represents, warrants and agrees that
it has the right to manufacture, offer, sell, import and distribute the
products it offers and displays on the Site, and that such manufacture, offer,
sale, importation and/or distribution of those products violates no Third Party
Rights.
5.5
Each User hereby represents, warrants and agrees that information submitted to
XYZed.com for display on the Site shall not:
a.
contain fraudulent information or make fraudulent offers of items or involve
the sale or attempted sale of counterfeit or stolen items or items whose sales
and/or marketing is prohibited by applicable law, or otherwise promote other
illegal activities;
b.
be part of a scheme to defraud other Users of the Site or for any other
unlawful purpose;
c.
relate to sale of products or services that infringe or otherwise abet or
encourage the infringement or violation of any third party's copyright, patent,
trademarks, trade secret or other proprietary right or rights of publicity or
privacy, or any other Third Party Rights;
d.
violate any applicable law, statute, ordinance or regulation (including without
limitation those governing export control, consumer protection, unfair
competition, anti-discrimination or false advertising);
e.
be defamatory, libelous, unlawfully threatening or unlawfully harassing;
f.
be obscene or contain or infer any pornography or sex-related merchandising or
any other content or otherwise promotes sexually explicit materials or is
otherwise harmful to minors;
g.
promote discrimination based on race, sex, religion, nationality, disability,
sexual orientation or age;
h.
contain any material that constitutes unauthorized advertising or harassment
(including but not limited to spamming), invades anyone's privacy or encourages
conduct that would constitute a criminal offence, give rise to civil liability,
or otherwise violate any law or regulation;
i.
solicit business from any Users in connection with a commercial activity that
competes with XYZed;
j.
contain any computer viruses or other destructive devices and codes that have
the effect of damaging, interfering with, intercepting or expropriating any
software or hardware system, data or personal information;
k.
link directly or indirectly to or include descriptions of goods or services
that are prohibited under this Agreement; or
l.
otherwise create any liability for XYZed.com or its affiliates.
5.6
XYZed reserves the right in its sole discretion to remove any material
displayed on the Site which it reasonably believes is unlawful, could subject
XYZed.com to liability, violates this Agreement or is otherwise found
inappropriate in XYZed.com's opinion. XYZed.com reserves the right to cooperate
fully with governmental authorities, private investigators and/or injured third
parties in the investigation of any suspected criminal or civil wrongdoing.
Furthermore, XYZed.com may disclose the User's identity and contact
information, if requested by a government or law enforcement body, an injured
third party, or as a result of a subpoena or other legal action, and XYZed.com
shall not be liable for damages or results thereof and User agrees not to bring
any action or claim against XYZed.com for such disclosure. In connection with
any of the foregoing, XYZed.com may suspend or terminate the Account of any
User as XYZed.com deems appropriate in its sole discretion. User agrees that
XYZed.com shall have no liability to User, including no liability for
consequential or any other damages, in the event XYZed.com takes any of the
actions mentioned in this Section, and that User agrees to bear the risk that
XYZed.com may take such actions.
6.
Transactions between Buyers and Suppliers
6.1
Through the Site, XYZed.com provides an electronic web-based platform for
exchanging information between buyers and suppliers of products and services.
XYZed.com represents the seller and the buyer in specific transactions. As a
result, XYZed.com is liable and responsible for the quality, safety, lawfulness
or availability of the products or services offered for sale on the Site or the
ability of the suppliers to complete a sale or the ability of buyers to
complete a purchase in those transactions. In a case of default XYZed has the
ability to shift liability and hold the supplier or manufacturer responsible
for the unsatisfactory delivery of the goods and services.
6.2
Each User acknowledges that it is fully assuming the risks of purchase and sale
transactions when using the Site to conduct transactions, and that it is fully
assuming the risks of liability or harm of any kind in connection with
subsequent activity of any kind relating to products or services that are the
subject of transactions using the Site. Such risks shall include, but are not
limited to, mis-representation of products and services, fraudulent schemes,
unsatisfactory quality, failure to meet specifications, defective or dangerous
products, unlawful products, delay or default in delivery or payment, cost
mis-calculations, breach of warranty, breach of contract and transportation
accidents. Such risks also include the risks that the manufacture, importation,
distribution, offer, display, purchase, sale and/or use of products or services
offered or displayed on the Site may violate or may be asserted to violate
Third Party Rights, and the risk that User may incur costs of defense or other
costs in connection with third parties' assertion of Third Party Rights, or in
connection with any claims by any party that they are entitled to defense or
indemnification in relation to assertions of rights, demands or claims by Third
Party Rights claimants. Such risks also include the risks that consumers, other
purchasers, end-users of products or others claiming to have suffered injuries
or harms relating to product originally obtained by Users of the Site as a
result of purchase and sale transactions in connection with using the Site may
suffer harms and/or assert claims arising from their use of such products. All
of the foregoing risks are hereafter referred to as "Transaction Risks.". Each
User agrees that XYZed shall not be liable or responsible for any damages,
liabilities, costs, harms, inconveniences, business disruptions or expenditures
of any kind that may arise a result of or in connection with any Transaction
Risks. XYZed assures you that in such cases it will work towards resolving any
problems and mediate any conflict resolution and will not lack in the service
provided to every customer and transaction.
6.3
Users are solely responsible for all of the terms and conditions of the
transactions conducted on, through or as a result of use of the Site,
including, without limitation, terms regarding payment, returns, warranties,
shipping, insurance, fees, taxes, title, licenses, fines, permits, handling,
transportation and storage.
6.4
In the event that any User has a dispute with any party to a transaction, such
User agrees to release and indemnify XYZed (and our agents, affiliates,
directors, officers and employees) from all claims, demands, actions,
proceedings, costs, expenses and damages (including without limitation any
actual, special, incidental or consequential damages) arising out of or in
connection with such transaction.
7.
Limitation of Liability
7.1
THE FEATURES AND SERVICES ON THE XYZED.COM SITE ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS, AND XYZED.COM HEREBY EXPRESSLY DISCLAIMS 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. ALL SUCH WARRANTIES,
REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
7.2
XYZED MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY,
CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF
ANY INFORMATION PROVIDED ON OR THROUGH THE SITE. XYZED DOES NOT REPRESENT OR
WARRANTY THAT THE MANUFACTURE, IMPORTATION, DISTRIBUTION, OFFER, DISPLAY,
PURCHASE, SALE AND/OR USE OF PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE
SITE DOES NOT VIOLATE ANY THIRD PARTY RIGHTS; AND XYZED MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ANY PRODUCT OR SERVICE
OFFERED OR DISPLAYED ON THE XYZED.COM SITE.
7.3
Any material downloaded or otherwise obtained through the Site is done at each
User's sole discretion and risk and each User is solely responsible for any
damage to its computer system or loss of data that may result from the download
of any such material. No advice or information, whether oral or written,
obtained by any User from XYZed.com or through or from the Site shall create
any warranty not expressly stated herein.
7.4
Under no circumstances shall XYZed.com be held liable for an delay or failure
or disruption of the content or services delivered through the Site resulting
directly or indirectly from acts of nature, forces or causes beyond its
reasonable control, including without limitation, Internet failures, computer,
telecommunications or any other equipment failures, electrical power failures,
strikes, labor disputes, riots, insurrections, civil disturbances, shortages of
labor or materials, fires, flood, storms, explosions, Acts of God, war,
governmental actions, orders of domestic or foreign courts or tribunals or
non-performance of third parties.
7.5
Each User hereby agrees to indemnify and save XYZed.com, its affiliates,
directors, officers and employees harmless, from any and all losses, claims,
liabilities (including legal costs on a full indemnity basis) which may arise
from such User's use of the Site (including but not limited to the display of
such User's information on the Site) or from its breach of any of the terms and
conditions of this Agreement. Each User hereby further agrees to indemnify and
save XYZed.com, its affiliates, directors, officers and employees harmless,
from any and all losses, claims, liabilities (including legal costs on a full
indemnity basis) which may arise from User's breach of any representations and
warranties made by User to XYZed.com, including but not limited to those set
forth in Sections 5.3, 5.4 and 5.5 above. Each User hereby further agrees to
indemnify and save XYZed.com, its affiliates, directors, officers and employees
harmless, from any and all losses, claims, liabilities (including legal costs
on a full indemnity basis) which may arise, directly or indirectly, as a result
of any claims asserted by Third Party Rights claimants or other third parties
relating to products offered or displayed on the Site. Each User hereby further
agrees that XYZed.com is not responsible and shall have no liability to it, for
any material posted by others, including defamatory, offensive or illicit
material and that the risk of damages from such material rests entirely with
each User. XYZed.com reserves the right, at its own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you shall cooperate with XYZed.com in
asserting any available defenses.
7.6
XYZed.com shall not be liable for any special, direct, indirect, punitive,
incidental or consequential damages or any damages whatsoever (including but
not limited to damages for loss of profits or savings, business interruption,
loss of information), whether in contract, negligence, tort, strict liability
or otherwise or any other damages resulting from any of the following:
a.
the use or the inability to use the Site;
b.
any defect in goods, samples, data, information or services purchased or
obtained from a User or a third-party service provider through the Site;
c.
violation of Third Party Rights or claims or demands that Users' manufacture,
importation, distribution, offer, display, purchase, sale and/or use of
products or services offered or displayed on the Site may violate or may be
asserted to violate Third Party Rights; or claims by any party that they are
entitled to defense or indemnification in relation to assertions of rights,
demands or claims by Third Party Rights claimants;
d.
unauthorized access by third parties to data or private information of any
User;
e.
statements or conduct of any User of the Site; or
f.
any matters relating to Premium Services however arising, including negligence.
8.
Intellectual Property Rights
8.1
XYZed.com is the sole owner or lawful licensee of all the rights to the Site
and the XYZed Content. The Site and XYZed.com Content embody trade secrets and
intellectual property rights protected under worldwide copyright and other
laws. All title, ownership and intellectual property rights in the Site and
XYZed.com Content shall remain with XYZed.com, its affiliates or licensors of
the XYZed.com Content, as the case may be. All rights not otherwise claimed
under this Agreement or by XYZed.com are hereby reserved.
8.2
"XYZED", "XYZED.COM and related icons and logos are registered trademarks or
trademarks or service marks of XYZed.com Corporation in various jurisdictions
and are protected under applicable copyright, trademark and other proprietary
rights laws. The unauthorized copying, modification, use or publication of
these marks is strictly prohibited.
9.
Notices
9.1
All notices or demands to or upon XYZed.com shall be effective if in writing
and shall be duly made when sent to XYZed in the following manner: to GPO BOX
200, Sydney, New South Whales 2001, Australia, Attn: Legal Department.
9.2
All notices or demands to or upon a User shall be effective if either delivered
personally, sent by courier, certified mail, by facsimile or email to the
last-known correspondence, fax or email address provided by the User to
XYZed.com, or by posting such notice or demand on an area of the Site that is
publicly accessible without a charge. Notice to a User shall be deemed to be
received by such User if and when
a.
XYZed.com is able to demonstrate that communication, whether in physical or
electronic form, has been sent to such User, or
b.
immediately upon XYZed.com's posting such notice on an area of the Site that is
publicly accessible without charge.
10.
General
10.1
This Agreement and the Privacy Policy constitute the entire agreement between
the User and XYZed.com with respect to access to and use of the Site,
superseding any prior written or oral agreements in relation to the same
subject matter herein.
10.2
XYZed.com and the User are independent contractors, and no agency, partnership,
joint venture, employee-employer or franchiser-franchisee relationship is
intended or created by this Agreement.
10.3
If any provision herein is held to be invalid or unenforceable, such provision
shall be struck and the remaining provisions shall be enforced.
10.4
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section.
10.5
XYZed.com's failure to enforce any right or failure to act with respect to any
breach by a User under these terms and conditions will not waive that right nor
waives XYZed's right to act with respect with subsequent or similar breaches.
10.6
XYZed.com shall have the right to assign its obligations and duties in this
Agreement and in any agreement relating to Premium Services to any person or
entity.
10.7
This Agreement shall be governed by the laws of the
Australia
("
Australia
") without regard to its conflict of law provisions. The
parties to this Agreement hereby submit to the exclusive jurisdiction of the
courts of
Australia
.