terms and conditions

Terms and Conditions

Effective from 25 January 2015

1.        Introduction

(a)            The website called www.BuyTheBusiness.com.au (Site) is owned and operated by Buy The Business Pty Ltd (ACN 165 647 245), which is registered in Victoria, Australia (Company).

(b)            In these terms and conditions (Terms), “us”, “we” and “our” refer to the Company, and references to “you” or “your” is to you, the end user of the Site (User).  The Terms will also refer to other end users of the Site (Users).

(c)            In the Terms, Content means all information, graphics, HTML, text, software and materials on the Site.  In the Terms, a reference to use of the Site also means use of the Content.

(d)            By using the Site, you agree to be bound by the Terms and the Company’s Privacy Policy, which may be viewed at www.buythebusiness.com.au/privacy (Privacy Policy).  If you do not agree with any part of the Terms or the Privacy Policy, you must stop using the Site immediately.

(e)            We may amend the Terms at our sole discretion by providing you with a period of notice that we determine to be reasonable.  If you choose to unsubscribe from our mailing list, we will not have the ability to notify you of changes to the Terms, and it will be your responsibility to regularly check the Terms at www.buythebusiness.com.au/terms-and-conditions.  By continuing to use the Site after an amendment to the Terms, you agree to be bound by the Terms as amended.

(f)              All notices, enquiries and complaints can be communicated to the Company at info@buythebusiness.com.au.

2.        Conditions of Use

(a)            You are granted a limited and revocable license to view and use the Site in accordance with the Terms if you:

(i)              are over the age of 18 years;

(ii)            are capable of forming binding contracts;

(iii)           are not breaking any law by accessing and using the Site (by reference to laws in your jurisdiction and the Company’s);

(iv)           use the Site for lawful purposes only (by reference to laws in your jurisdiction and the Company’s);

(v)             use the Site only in the way that it is designed to be used; and

(vi)           do not engage in any improper, indecent, bullying, harassing or offensive conduct while using the Site (as determined by us at our sole discretion).

(b)            Your licence to use the Site will be immediately revoked if you breach any of the conditions in clause 2(a).

3.        Account Registration

(a)            In order to access certain parts and functionality of the Site, you will need to register a membership account with the Site (Account).

(b)            Subject to the Terms, we grant you a limited and revocable license to register an Account while you remain in compliance with the Terms.

(c)            When you register your Account, you undertake to:

(i)              provide information during the registration process that is accurate and complete in all respects; and

(ii)            represent yourself only, and not to create false aliases or impersonate any other person (with or without their consent) while using the Site.

(d)            You must retain access to the username and password created during the Account registration process to access the Site.

(e)            It is your sole responsibility to keep your username and password secure.  You are solely responsible for the use of your Account, irrespective of who is using it, even if it is used without your permission.

(f)              You agree that we are able to send you emails to enable direct access to your Account without a password as part of our password reset process.  You acknowledge and agree that anyone with access to the email account specified in the Account details will indirectly have access to your Account.

(g)            You agree to indemnify us against any and all liability, loss, costs and expenses arising from or incurred in connection with unauthorised access to your Account.

4.        Relationship Between Users and the Site

(a)            The Site has two categories of end user:

(i)              Users who are selling businesses (known on the site as “Private Business Owners”, “Business Brokers” and “Franchisors”) (Sellers); and

(ii)            Users who browse the site in search of businesses to buy (Buyers).

(b)            Users agree and acknowledge that use of the Site does not constitute advice by us in any way.

(c)            We are not liable or responsible for any liability connected with any negotiation, representation or transaction that takes place as a result of or incidental to the Site or its purpose, including but not limited to, losses and claims resulting, directly or indirectly from:

(i)              the sale of a business; and

(ii)            any  legal relationship formed between a Seller and a Buyer.

(d)            No information communicated by a Seller to a Buyer using the Site represents an offer for sale.  You warrant that if you are a Buyer that the information provided on the Site in relation to a sale is merely an invitation to treat.

(e)            Each User agrees that it is his or her sole responsibility to ensure and verify that representations made on the Site by Buyers and Sellers are true and correct.

(f)              We do not make any warranties in relation to any business displayed on the site or any information provided by Buyers and Sellers.

(g)            We are not agents for any Buyers or Sellers, and we are not affiliated in any way with Buyers and Sellers other than to provide the Site as a directory of businesses for sale.

(h)            We make no warranty in respect to transactions entered into between Users of the Site.  Other than explicitly set out under the Terms, the Company has no relationship at law in respect of transactions or other interactions that may occur between Users on the Site.

5.        Buyer Obligations

(a)            Buyers (and any other User interacting with a Seller) undertake:

(i)              to ensure that the contact details entered during registration remain true and correct at all times;

(ii)            to comply with all lawful directions by a Seller, including those in respect of specified times and methods of contact;

(iii)           not to approach any Seller or any Seller’s business in person unless explicit consent has been provided by the Seller; and

(iv)           not to approach any Seller unless a genuine intention to purchase the Seller’s listed business is held at the time of contact.

(b)            No User may approach any other User to offer brokerage services in respect of business sales.

6.        Seller Obligations

(a)            Only Users with an account registration category that falls within the scope of a Seller will be able to create a business listing on the Site (Listing).

(b)            The nature, type, placement, categorisation, position and frequency (as applicable) of the Listing will be at the sole and absolute discretion of the Company.

(c)            The Seller agrees to clearly state in the Listing:

(i)              the availability of natural person contacts (Contacts) provided in respect of the Listing; and

(ii)            any special instructions surrounding the method of approach to a Contact.  For example, a Seller may not want a Buyer to approach a Contact at the Contact’s place of business.

(d)            The Seller agrees and acknowledges that:

(i)              non compliance by any individual in respect of the conditions referred to in clause (c) of this section is not the responsibility of the Company in any way; and

(ii)            as they are listing a business for sale on a public directory, the Company cannot guarantee that third parties will not discover the Seller’s listing.

(e)            The Seller undertakes to promptly:

(i)              check the Listing after it is published on the Site; and

(ii)            remedy any errors in the Listing.

(f)              The Seller warrants and represents to the Company that the Content provided for the Listing is not:

(i)              false, defamatory, misleading or otherwise deceptive or misleading in any way;

(ii)            in breach of the Competition and Consumer Act 2010 (Cth) or any equivalent legislation;

(iii)           in breach of any copyright, trade mark, obligation of confidentiality or other personal or proprietary right;

(iv)           in breach of the Privacy Act (Cth);

(v)             in breach of any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory);

(vi)           in breach of the intellectual property or moral rights of any third party;

(vii)          in breach of any agreement that the Seller has with any third party;

(viii)        connected with “spam” or the process of “spamming”;

(ix)           financial, legal, medical or other professional advice; or

(x)             in breach of any other part of the Terms.

(g)            The Seller further warrants and represents that if the Listing that contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, the Seller has obtained the authority of that person to make use of his/her name or representation or the copy.

(h)            If a business described in a Listing is sold, the Seller undertakes to mark the Listing as “Sold” using the functionality provided by the Site for that purpose, regardless of or whether or not, in the opinion of the Seller, the sale was connected with the Site.

(i)              If the Company decides that a Listing breaches any of the Terms, the Company may amend the Listing in any way without any prior notification to the Seller in order to remedy that breach.

(j)              If the Company exercises its right to amend the Listing as outlined above, this will not reduce the amount payable to the Company by the Seller in respect of the Services provided, or give rise to any claim against the Company.

(k)             The Seller acknowledges and agrees that the Company does not accept any responsibility for any errors in a Listing.

7.        Payments

(a)            You agree to pay all fees and charges, including GST in respect of site membership, as required on demand, in full and without set-off.

(b)            Unless stated otherwise, and insofar as permissible under the law, there are no refunds, including in respect of:

(i)              a User selecting the wrong kind of account during the registration process; or

(ii)            a Seller selecting the wrong settings in respect of a Listing.

(c)            Site payment transactions will take place via the Eway.com.au payment gateway and will be subject to the terms promulgated by that service provider.  The Site will only accept payment via MasterCard and Visa credit card payments.

8.        Content on the Site

(a)            All Content is for informational purposes only, and is to be used or relied on at your own risk.  We make no warranty or representations as to the accuracy of the Content.

(b)            You agree and acknowledge that there may be technical or administrative errors in the Content.

(c)            We reserve the right to correct any errors in the Content and on the Site without any notice to you.

9.        User Content

(a)            In respect of any content that you upload to the Site (Content), you warrant that it is not:

(i)              uploaded in breach of the intellectual property of any third party;

(ii)            uploaded in breach of any law under the Privacy Act 1988 (Cth);

(iii)           affected by any computer virus or malicious code;

(iv)           connected with “spam” or the process of “spamming”;

(v)             false, defamatory, misleading or otherwise deceptive in any way;

(vi)           financial, legal, medical or other professional advice;

(vii)          adult material;

(viii)        material that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age, sexual orientation; or

(ix)           in breach of any other clause of the Terms.

(b)            You agree that you are liable for and indemnify us against any and all liability, loss, costs and expenses arising from or incurred in connection with your breach of any warranty in clause 7(a).

(c)            You agree that any comments or opinions that you express in Content will be fair, accurate and genuinely held at the time of communication.

10.      Content Management

(a)            We make no warranties as to the accuracy of any Content posted by any User of the Site, and will accept no liability for errors or omissions in general.

(b)            You agree to remove any contentious Content immediately upon request by us.

(c)            We reserve the right, at our absolute discretion, to remove, amend, edit or in any other way change any Content.

(d)            By posting or uploading Content, you grant us a world-wide, non-exclusive, perpetual, assignable, sub-licensable, royalty free, unlimited and irrevocable right to use the Content for any purpose, other than personal or medical information, which is managed in accordance with our Privacy Policy.

11.      Comments, Reviews and Ratings

(a)            A comment, review and ratings system is available on the site.  Content owners accept that their content could be discussed on the Site.

(b)            Each User agrees that any comments, reviews or feedback that he or she makes will be fair, accurate and genuinely held by the User.

(c)            We reserve the right to remove any comments, feedback or ratings at our sole discretion.

12.      Data Retention

(a)            We may store any material or information that you upload to the Site (Data).

(b)            We make no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any Data.

(c)            You agree that we are not liable for any loss or damage that may occur by any loss, corruption or any other inaccessibility in respect of any Data.

(d)            We may store the Data “offsite”.  The Data storage location will not affect the laws that govern any agreement arising under the Terms.

(e)            Subject to the Terms, you own the Data you provide us, and may request its deletion at any time, unless you have shared it with others and they have not deleted it, or it was copied or stored by other Users.

(f)              The businesses that we contract with to host and operate the Site are committed to protecting the confidentiality of Data, however, you agree and acknowledge that those businesses reserve the right to access, view and review any of your Data:

(i)              if a government agency or regulatory body specifically requests them to do so;

(ii)            when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; or

(iii)           when such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server failure, remove illegal or offending (eg pornographic, violating policies, etc) content or prevent a server failure, service outage or other damage.

13.      Third Party Information

(a)            The Site contains information from third party businesses, people and websites (Third Parties).  You consent to receiving this information as part of your use of the Site.

(b)            We are not responsible for any information transmitted by Third Parties or liable for any reliance you make upon the information or statements conveyed by Third Parties (or in relation to your dealings with Third Parties), nor are we responsible for the accuracy of information provided by Third Parties.

(c)            The inclusion of any Third Party link does not imply any endorsement or recommendation of a linked website by the Company or its affiliates, directors or employees.  Those websites are not under the control of the Company, and the Company is not responsible for the contents of any linked website.

14.      Site Availability

(a)            By using the Site you agree that we accept no responsibility for the Site or any part of it being unavailable, and we make no warranties or guarantees, implied or express, as to the ongoing availability of the Site or any part of it.

(b)            You agree that we are not liable for any loss or damage that you or any other person incurs by not being able to access the Site or any part of it.

(c)            We may change, update or otherwise amend the Site or any part of it at our sole and absolute discretion without any notice to you and any other User.  This may result in the Site being offline, for which we are not obligated to provide notice.

15.      Intellectual Property

(a)            All title, ownership rights and intellectual property rights, including copyright, in relation to the Site is owned or used under licence by the Company.

(b)            Without the express written permission of the Company, you shall not:

(i)              replicate all or part of the Site in any way; or

(ii)            incorporate all or part of the Site in any other webpage, site, application or other digital or non-digital format.

(c)            The Site includes registered and unregistered trade marks.  You shall not copy, alter, use or otherwise deal in the Company’s marks without the prior written consent of the Company.

(d)            You agree that you will not copy any part of the Site for your own purposes.  You may however view the Site using your web browser and make a temporary copy of all or part of the Site for your personal use only.

16.      Complaints about the Site

(a)            In the event of a dispute with another User, you agree to work in good faith to resolve the dispute.  We accept no liability for disputes between Users, and you agree and acknowledge that any such dispute is to be resolved by Users amongst themselves directly, without the involvement of the Company in any way whatsoever.

(b)            If you have a complaint in connection with the Site for which you consider that the Company is liable (Complaint), you must report it to us within 10 days of the circumstances giving rise to the Complaint first occurring.  We may or may not investigate your complaint, depending on its nature, a choice that will be at our sole discretion.

(c)            If you are not satisfied with our action under clause 14(a) of the Terms, you must formally notify us of your complaint with a written notice (Complaint Notice) which includes, or is accompanied by, full and detailed particulars of the Complaint.

(d)            Within 10 days after a Complaint Notice is given, a representative of the Company will respond to the Complaint Notice in writing (Company Response).

(e)            In accordance with this section, you agree not to bring court proceedings against us in respect of any Complaint unless you comply with the requirements of this clause (but subject always to any rights you may have as a consumer under the Competition and Consumer Act 2010 (Cth) or any equivalent legislation).

17.      Privacy

(a)            The Company will collect and use personal information in accordance with its Privacy Policy.

(b)            You acknowledge and accept the terms and conditions of the Privacy Policy at www.buythebusiness.com.au/privacy.

(c)            You agree that you will not do anything that shall compromise the Company’s compliance with its Privacy Policy nor do anything contrary to the Privacy Policy insofar as your use of the Site is concerned.

(d)            We may amend the Privacy Policy at our sole discretion by providing you with a period of notice that we determine to be reasonable.  By continuing to use the Site after an amendment to the Privacy Policy, you agree to be bound by the Privacy Policy as amended.

18.      Exclusion of Liability

(a)            The company does not guarantee that a Seller will:

(i)              sell their business as a result of a Listing; or

(ii)            receive any enquires in relation to a Listing.

(b)            You acknowledge and agree that:

(i)              you use the Site at your own risk; and

(ii)            we are not responsible for the conduct or activities of any other User of the Site.

(c)            As a consumer, there are certain rights (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (Non Excludable Condition).  This clause is subject to those Non Excludable Conditions.

(d)            You agree that all implied guarantees, conditions and warranties are excluded from the Terms, except any Non Excludable Condition.

(e)            Subject to the application of any applicable Non Excludable Condition, all other liability to you for any costs, expenses, losses and damages suffered or incurred directly or indirectly by you in connection with the Terms, the Website, whether that liability arises in contract, tort (including by our negligence) or under statute, is excluded.  Subject to the application of any Non Excludable Condition, we will not, under any circumstances, be liable to you for any indirect or Consequential Loss.  Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

(f)              Apart from those that cannot be excluded, we exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, our liability for breach of any Non Excludable Condition is restricted, at our option to:

(i)              the re-supply of services or payment of the cost of re-supply of services; or

(ii)            the replacement or repair of goods or payment of the cost of replacement or repair.

19.      Indemnity

(a)            By using the Site, you agree to indemnify us and our directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from your use of the Site.

(b)            Without limiting the generality of the above, you agree to indemnify us and our officers, employees, contractors and agents (the Indemnified) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from your breach of the Terms and any negligent or unlawful act or omission by you in connection with the Site.

(c)            Without limiting the generality of the above, you further agree to indemnify the Indemnified against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from a contract in force between us and a third party connected with the Site.

20.      Termination

(a)            Either party may end the agreement arising from the Terms immediately for any reason by giving the other party written notice.

(b)            Where the agreement arising from these terms has been terminated you must immediately cease to use the Site.

(c)            The Company has the right, but not the obligation, to monitor the Content of this Site, to determine compliance with the Terms and any other operating rules established by the Company.

(d)            All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, disclaimers, indemnities and limitations of liability.

21.      Notices

(a)            We will send you notices and other correspondence to the details on your Account, or that you notify us of from time-to-time.  It is your responsibility to notify us of any updated contact details as they change.

(b)            Email notice from you or us is effective notice under the Terms.

22.      General

(a)            You acknowledge that you have not relied on any representation, warranty or statement made by any other party, other than as set out in the Terms.

(b)            The relationship between you and us under any agreement arising from the Terms does not form a joint venture, partnership, agency, or any form of employment relationship.

(c)            No clause of the Terms will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(d)            You cannot assign, novate or otherwise transfer any of your rights or obligations under any contract arising from the Terms without our prior written consent.

(e)            We may assign, novate or otherwise transfer any of our rights or obligations under the agreement arising pursuant to the Terms to a third party without notice to you, or your prior consent.  If we require it, you will sign any documents to give effect to an assignment, novation or transfer by us under this clause.

(f)              The agreement arising under the Terms will be governed by the laws of the state set out in the definition of Company.  You agree to submit to the non-exclusive jurisdiction of courts with jurisdiction in Queensland, and it shall be the sole forum for any proceedings.

(g)            Any clause of the Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Terms.

(h)            The termination of any agreement arising from the Terms does not affect the parties’ rights in respect of periods before the termination of the agreement.