These terms of service govern your access to the services and websites of Club Barter Australia Pty Ltd, and your use of the Club Barter and Club Barter Marketplace as (defined in Section 1.1 below).
Club Barter Australia Pty Ltd is a limited company ABN 88 619 592 737 Registered Office: Level 6, 162 Goulburn St, Surry Hills NSW 2010 Australia
Please read your Member Agreement carefully. By using the Club Barter Services (defined in Section 1.2 below) or accessing or using our website, including the domain and subdomains of https://www.clubbarter.com and its related sites and services (our "Website"), you accept this Member Agreement and agree to these terms of service. Your use of the Club Barter Services, or access or use of the Website is governed by the then current version of the Member Agreement in effect on the date of use.
This Member Agreement is effective on 1st January 2017, for current Members, and upon acceptance for new Members.
1.1.1. Marketplace Terms and Conditions describe the terms and Conditions applicable to your use of the Club Barter Marketplace, which is the forum in which Members can trade products and services without exchanging cash, including, without limitation, our trading community, our Members, our Brokers, our payment systems, our Services, our Website and our social media pages (together, the "Marketplace"). Our Fee Policy is set forth as a part of the Marketplace Terms and Conditions (see Section 3 below). One of the purposes of the Marketplace Terms and Conditions is to enable and facilitate fair transactions among and between Club Barter Marketplace Members ("Members") and other authorized parties by fostering a system of good business practices. The Marketplace Rules set forth the means by which Club Barter provides you with Services and the way in which you must conduct transactions and other business with other Members or parties who are authorized to transact in the Marketplace.
1.2. "Services" means the services provided by Club Barter in providing a Marketplace for barter business transactions and acting as a third-party record-keeper and administrator of the clearinghouse function of the Marketplace, as well any services directed toward or for the benefit of Members or provided through our Marketplace, our Website, our social media pages, and by our franchisees and brokers ("Brokers"). Club Barter may, in our sole and absolute discretion, contract with others to provide all or part of such record keeping, administrative or payment processing or other services.
1.3. "Member" or "You" means: (a) the business entity (whether a corporation, limited liability company, partnership or sole proprietorship) or approved individual signing the Membership Application; or (b) in the case of the online version of the Member Agreement, the business entity or approved individual accessing and accepting the Member Agreement. (c) Private individual wishing to participate in the Barter exchange. Member desires to exchange its products and services with other Members of the Marketplace, accepting "Club Barter virtual currency" as payment, and subscribes to Club Barter's Services.
1.4. "Club Barter currency" means: (a) the Club Barter virtual currency selected by the user when signing up to "Club Barter"
1.5. “Club Barter Currency Exchange” means: the conversion made between Club Barter virtual currency used in the execution of trades between members whose Club Barter Currency is based on a different notional value, e.g. AUD and THB. Club Barter will use the rate provided by ExchangeRateAPI.com for the conversion between Club Barter virtual currencies.
1.6. Marketplace means the online auctions and / or online ability from our websites to buy or sell goods.
Club Barter reserves the right, in our sole discretion, without any obligation and without any notice requirement, to change, improve or correct the information, materials and descriptions on the Website and to suspend and/or deny access to any portion of the Website for scheduled or unscheduled maintenance, upgrades, improvements or corrections or outages that are outside our control. The information and materials on the Website may contain typographical errors or inaccuracies. Any dated information is published as of that date only and we do not undertake any obligation or responsibility to update or amend any such information. We may discontinue or change any product or service described in or offered on our Website at any time. We further reserve the right, in our sole discretion, to block or otherwise discontinue your access and use of the Website at any time and for any reason. You agree that Club Barter and its affiliates, Brokers and Agents will not be liable to you or to any third party for any such modification, suspension or discontinuance.
- Fees and Services. Club Barter charges fees for using its Services. The fees charged for using our Services are listed in our Fee Policy, which we may change from time to time. Changes to our Fee Policy are effective after we provide you with at least 28 days notice, either in writing, by email notice or by posting the changes on our Website. Unless otherwise stated all fees quoted are cash and not Barter. You are responsible for paying all fees and applicable taxes associated with your use of the Marketplace, our Services or the Website with a valid payment method by the payment due date. Should you fail to make payment of any fees owing to Club Barter greater than 60 days then we reserve the right to close your account without further notice. Should we close your account any Barter credits will be forfeited.
- Representations and Covenants of Member
4.1. You represent and warrant that:
4.1.1. If you are an individual, you are at least 18 years old and have all required legal capacity to enter into this Member Agreement as a binding agreement. If you are accepting these terms on behalf of a company or other legal entity, you have full authority to act for and bind that entity to this Member Agreement;
4.1.2. The personal, business and other information provided by you on the Membership Application and in connection with this Member Agreement is true, accurate and correct;
4.1.3. If there are any changes to the information provided by you on the Membership Application, you will promptly notify Club Barter of any such changes;
4.1.4. You have provided Club Barter a valid method for payment of fees as required by our Fee Policy; and
4.1.5. You will comply with all applicable laws in performing your obligations under the Member Agreement and your use of the Marketplace and Website. Your obligation to comply with all applicable laws includes, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, regulatory requirements, and the procurement of permits, certificates, approvals, inspections and licenses, when needed.
4.2. You understand, acknowledge, and agree that:
4.2.1. Club Barter currency (Barter Credits) are not considered legal tender, securities, or commodities by Club Barter and may not be redeemed for cash;
4.2.2. Transactions involving Club Barter currency are generally treated as taxable events for federal, state, provincial, and local tax purposes, and you will seek independent professional tax advice if you need or desire it;
4.2.3. We reserve the right to accept or reject your application as a prospective Member of the Marketplace for any reason, at our sole discretion. Your acceptance as a Member may be subject to our approval.
4.2.4. You authorize us to debit Club Barter currency from your Account for the amount of any purchase transaction, to credit Club Barter currency to your Account for the amount of any sale transaction, and charge you all applicable fees specified in our Fee Policy; and
4.2.5. Without limiting other remedies, for violation of the Member Agreement we may limit, suspend or terminate our Services to you, limit, suspend or terminate your Member Account or your right to transact in the Marketplace, prohibit access to our Website, delay or remove posted content and your information, and take technical and legal steps to keep you off the Website if we think that you are acting illegally, creating problems, creating possible legal liabilities, or acting inconsistently with the letter or spirit of our Marketplace Terms and Conditions. We also may reverse disputed transactions and close accounts that are delinquent, abandoned or in default.
4.3. Indemnification. You will defend, indemnify and hold us (and our subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) harmless from any and all losses, liabilities, actions, damages, expenses, costs, penalties, fines and fees (including reasonable attorneys' fees and costs) incurred by us due to any Member or third party claims, demands, or legal proceedings (including government agencies), in connection with or arising from:
4.3.1. Your actions, omissions, or conduct in violation of (or in breach of) this Member Agreement, or your violation of any law or the rights of a third party;
4.3.2. Your disputes with other Members or with third parties
4.3.3. Any actions we take to comply with federal, state, provincial, and local tax laws;
4.3.4. Any Marketplace transaction wherein you are a buyer or seller;
4.3.5. Any Club Barter currency debit to your account utilizing your Member password on the Website;
4.3.6. Any breach of your representations and warranties contained in the Membership Application or this Member Agreement;
4.3.7. Your offer to sell, sell, or your purchase of any prohibited product or service through the Marketplace;
4.3.8. Your negligence and willful misconduct relating to the Marketplace;
4.3.9. Your use of the information accessed on or through the Website;
4.3.10. Any information posted or listed by you which infringes upon the copyright, trademark or other intellectual property rights of third parties; and
4.3.11. With respect to Club Barter only (together with its subsidiaries, affiliates, directors, officers, employees, and agents), any transaction or attempted transaction with a Club Barter Broker or its employees when the Broker is acting as a principal to the transaction.
- Disclaimers and Limitations; Release of Club Barter
5.1 You acknowledge that Club Barter is merely a third-party record-keeper and administrator of the clearing house function of the Marketplace, and not involved in any actual transaction between Members, or between a Member and a third party through the Marketplace. You will not hold Club Barter responsible for the content, actions or inactions, or listed items by Members, Brokers, or third parties. We are not involved directly in the trade between buyers and sellers.
5.2 Disclaimer of warranties and Liability on Marketplace Transactions Club Barter is not a guarantor of any transaction conducted in the marketplace or on its websites. Club Barter does not guarantee, warrant, or make any representations regarding any of the following:
5.2.1. The quality, quantity, delivery, value, condition, safety, legality, merchantability, fitness for a particular use or purpose, timeliness or accuracy, or any other characteristics of any products or services placed into or purchased through or otherwise advertised on or through the marketplace by a member, broker or third party;
5.2.2. The accuracy, reliability, or integrity of any information provided to Club Barter by a selling member, broker or third party and disseminated by Club Barter on behalf of that selling member, broker or third party;
5.2.3. The ability of any selling member, broker or third party to sell products or services;
5.2.4. The availability of products or services within the marketplace, or the ability of any buying member or third party to buy products or services;
5.2.5. The volume of business that any member will derive from participation in the Marketplace or through the use of Club Barter currency;
5.2.6. The value of Club Barter currency or of the future existence or viability of the Marketplace;
5.2.7. That there will be adequate Club Barter currency reserves to cover all outstanding claims in the Marketplace;
5.2.8. That the member will be satisfied with the selection of products or services offered through the Marketplace at any given time, or with the prices for such products or services; or
5.2.9. The accuracy, reliability, integrity, or legality of any offer, proposal, statement, data, opinion, or other content displayed or distributed through the Marketplace. Club Barter makes no representation or warranty; either expressed or implied, and disclaims all liability, as to the fitness, quality, delivery date, merchantability, price, or any term of any transaction.
5.3. Release. In the event that you have a dispute with one or more Members or with one or more third parties (including government agencies), you release Club Barter (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature (including, but not limited to, attorneys’ fees and costs), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. You agree that if a seller fails to deliver products or services pursuant to agreed-upon terms, buyer's only recourse shall be against the seller, and not against us or against our subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and other agents. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favour at the time of agreeing to this release.
5.4. Limitation of Liability. Club Barter (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) will not be liable for any incident, indirect, consequential, or special damages arising out of or in connection with your use of our Website, our Services, the Marketplace, or this Member Agreement, including loss of revenue or income, pain and suffering, emotional distress or similar damages, even if Club Barter has been advised of the possibility of such damages. Regardless of the disclaimers and limitations of this Section, if we are found to be liable, in no event will the collective liability of Club Barter (and its subsidiaries, affiliates, directors, officers, employees, Brokers, independent contractors, and agents) to you or to any third party (regardless of the form of action, whether in contract, tort or otherwise) exceed the amount Member has paid to Club Barter in connection with Member's use of the Marketplace for the 12 months preceding the date that the incident giving rise to liability occurred.
6.1. No Waiver of Right. Club Barter's failure or delay in exercising any right will not operate as a waiver of that right, nor shall the partial exercise of a right preclude any other or further exercise of any right. Club Barter's remedies in this Member Agreement are cumulative and are not exclusive of any other remedies provided at law or in equity to which Club Barter may be entitled.
6.2. Entire Agreement / Severability. This Member Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter herein. If any provision of this Member Agreement is determined by any court to be invalid, illegal, or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Member Agreement and the remainder of this Member Agreement shall be enforced as if such invalid, illegal, or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Member Agreement.
6.3 Binding Arbitration. Any dispute, claim or other litigable difference between the parties arising out of or relating to this Member Agreement or its subject matter will be (except as stated below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall bind the other.
6.4. Attorneys' Fees. If either party submits a claim for arbitration or commences an action against the other relating to this Member Agreement (including the Attachments referred to herein), including, without limitation, to enforce any of its terms or for failure to abide by any of its terms, the prevailing party in such action will be entitled to recover all costs including, without limitation, reasonable attorneys' fees associated with the action to be fixed by the arbitrator, trial court, and/or appellate court, in the action and on appeal. Such relief is in addition to any other relief that may be awarded to the prevailing party. Any sums, which may be awarded to Club Barter in arbitration or by judgment, shall be payable in local cash currency only not Barter currency.
6.5 Governing Law; Jurisdiction and Venue. This Member Agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of, or relate to this Member Agreement, or the negotiation, validity, execution, interpretation or performance of this Member Agreement (collectively, "Causes of Action") will be governed by, construed under, and resolved exclusively in accordance with the laws of Australia, without regard to its principles of conflicts of law which would require or permit the application of the laws of another jurisdiction. The parties hereby irrevocably submit to the exclusive personal jurisdiction of the courts located in Australia, for purposes of any dispute, suit, action or other proceeding based on a Cause of Action or any of the transactions contemplated under this Member Agreement, and each party hereby irrevocably agrees that all Causes of Action shall be heard and determined exclusively in Australia. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection, which they may now or hereafter have to the laying of venue of any such dispute brought in Australia or any defense of an inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto hereby waives any right to trial by jury. Notwithstanding the above, if Club Barter has assigned its cause of action against Member to any debt collector or collection agency, such action may be brought in a judicial district or under the jurisdiction of the court having the venue where Member resides, or is doing business, or is situated.
6.6. Assignment. Members may not assign any of its rights under this Member Agreement without the consent of Club Barter, which consent Club Barter may withhold at its sole discretion. Only the Member entering into this Member Agreement or authorized users designated by Member and approved by Club Barter may utilize the Services provided by Club Barter. Club Barter may, in its sole discretion, assign and transfer its rights under this Member Agreement, including without limitation, all right, title and interest in and to Member's accounts receivable, and all proceeds and collections relating thereto, which outstanding receivables arose from fees billed to, and cash and Club Barter currency balances owed by the Member.
6.7. Relationship of the Parties. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Member Agreement. The parties are independent contractors and Member will be solely responsible for any costs and expenses it may incur in the performance of its obligations under this Member Agreement, or in Member's use of the Marketplace. Neither party nor its employees will be eligible for any employment benefits provided by the other to its employees.
6.8 For legal purposes the English language version of this Agreement will take precedence over any regionalized translated versions.