Last Revised: 10th March 2014
These terms and conditions of use ("Terms") form a legal agreement between you and Floktu Pty Limited ("Floktu") and they govern your access to and use of the services provided by Floktu ("Services"). The following documents also form part of the Terms:
Your right to use the Services and to operate a user account ("Account") is subject to your agreement to these Terms. Please carefully read each document before deciding whether to join Floktu. If you click on the "Agree" button, you agree to be bound by these Terms.
1.1 Floktu reserves the right to change its practices and/or these Terms at any time and such new terms and conditions will (regardless of the notice given to you) become immediately binding on you once the changes are posted on the Services.
1.2 If you continue to use the Services after the Terms are varied, you are deemed to have agreed to be bound by the variation. It is therefore important that you review these Terms and Floktu's policies regularly.
3. USE OF THE SERVICES
3.1 The key ways a user may interact with the Services are:
- Seller: a user may post a listing about an event on the Services ("Listing") and use the tools of the Services to administer the planning and conduct of an event, to create web or mobile phone applications and to sell tickets or other goods or services on the Services and state the price and any conditions that apply.
- Buyer: a user may purchase a ticket to an event listed by a Seller or purchase a good or service from another user by clicking through a Listing or an Ad displayed on the Services or a third party's service.
- Advertiser: a user may post advertising material ("Ad") for goods or services on the Services and state the price and any conditions that apply to those goods or services.
3.2 A reference to "You" in these Terms refers to a user of the Services whether as a Seller, Buyer, Advertiser or Affiliate. It also includes anyone acting on your behalf or with your express or implied authority.
3.3 Unless otherwise stated, a reference to these Terms also includes any related policies.
3.4 While Floktu invites the public to use the Services, such use is not an entitlement and the right to use the Services is not transferable.
3.5 Floktu may exercise its discretion to alter, suspend, terminate or restrict the Services or a particular user's use of the Services ("Service Restriction").
3.6 A Service Restriction could result in the affected user either temporarily or permanently being unable to access the Services and a user subject to a Service Restriction is prohibited from applying for a new Account.
3.7 As you are responsible for all use of the Services through your Account, it is a condition of use that you maintain control of your Account and not allow others to use your Account without your explicit permission.
3.8 Use of the Services and registration to be a user is void if prohibited under these Terms or any applicable law.
4. CORE REPRESENTATIONS
4.1 If you agree to these Terms you represent to Floktu that you:
- are 18 years old or older; and
- are capable of entering into a legally binding agreement; or
- have parental consent to enter into this contract with Floktu; and
- you agree to be legally bound by any transaction conducted under your username and password.
4.2 If you are a business entity, you also represent that:
- you are duly authorised to do business in the jurisdictions where you trade;
- any employee, officer, representative and agent that accesses the Services is duly authorised to act on behalf of your business; and
- your business agrees to be legally bound by any transaction conducted under your username and password or under an Account that your business controls.
5. ADDITIONAL REPRESENTATIONS AND WARRANTIES
5.1 You also represent and warrant that:
- all information you have provided to Floktu to enrol as a user is correct and current;
- you have the power and authority necessary to enter into the agreement formed under these Terms and to perform the acts required under these Terms;
- you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation anti-spam laws and any relevant data protection or privacy laws);
- you will not and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories.
6. TRANSACTIONS PARTIES
6.1 You agree that neither Floktu nor any Related Bodies Corporate (as defined in the Corporations Act 2001) of Floktu is a party to any transactions that you enter whether as a Seller or Buyer.
6.2 Although Floktu may have its own legal relationship, rights and obligations with other third parties, Floktu is not an agent, buyer nor seller in a transaction between you and a third party unless the contrary is specifically stated on the Services.
6.3 The Services are merely a communication facility that enables users to offer, buy and sell goods and/or services. Floktu does not offer any insurance or other seller or buyer protection unless the contrary is specifically stated on the Services.
6.4 It is a condition of your use of the Services that you accept that Floktu:
- is not involved in any actual transaction between you and a Seller or Buyer;
- has no control over the truth, accuracy, quality, safety and legality of any material posted on or advertised on the Services by a user in any event information, any Listing or any Ads, or in any third party information or other content posted on the Services or the goods or services bought or sold in relation to such content;
- has no control over a Seller's ability to manage and conduct an event or a Buyer's conduct at an event or elsewhere; and
- cannot guarantee that any user of the Services will act honestly, complete a transaction or act lawfully.
6.5 ALL CLAIMS ARE THE RESPONSIBILITY OF THE RELEVANT PARTIES AND FLOKTU, TO THE EXTENT PERMITTED BY LAW, HAS NO RESPONSIBILITY TO YOU.
6.6 It is the responsibility of a Seller to accurately and comprehensively state the price and any conditions that apply to an event or any other good or service that the Seller posts or advertises on the Services.
6.7 A legally binding contract will be formed with another Floktu user if you enter into a transaction unless such a transaction is prohibited either by law, these Terms or any policy issued by Floktu.
6.8 You must fulfil your contractual obligations to the other Floktu user and it is your responsibility to inform yourself of the relevant laws related to the transaction and to ensure that you fully comply with those laws.
6.9 If a dispute arises between you and a Seller or Buyer, Floktu may help resolve the dispute. Regardless of Floktu's assistance, the dispute will at all times remain a dispute between you and the other Floktu user and Floktu will not bear any responsibility.
6.10 If another Floktu user breaches an obligation to you, it is your responsibility and not Floktu's responsibility to enforce your rights.
6.11 Limited protection (or chargeback protection) may be obtained by the use of credit card or PayPal payment processes and you should inform yourself of the merits and applicability of such options and decide which means of completing the transaction best suits you.
6.12 Any amount payable to you may be set-off against any amount you owe Floktu.
7.1 You are responsible for the reporting and payment of all applicable taxes that relate to your use of the Services and you must comply with all applicable tax laws.
7.2 GST will apply to all goods and services sold in Australia and each Seller must ensure all prices advertised on the Services are in Australia Dollars (unless otherwise stated) and are inclusive of any applicable GST.
7.3 If the goods or services sold in another jurisdiction where a value added tax or consumption tax ("VAT") is levied on such transactions then it remains the responsibility of the Seller to ensure all prices advertised on the Services are in the correct currency and are inclusive of any applicable VAT.
8. OTHER RIGHTS AND OBLIGATIONS
8.1 Subject to any third party agreements and the following subclause, you may at any time cancel an event you have posted as a Seller or an Ad you have posted as an Advertiser or you may terminate the agreement formed under these Terms with or without cause by sending written notice of that termination to Floktu.
8.2 The financial or legal consequences of a Seller advertising, conducting or cancelling an event are the responsibility of the Seller and the Seller fully indemnifies Floktu and will keep Floktu indemnified in relation to any related claim from a Buyer, Advertiser, Affiliate or any other Seller or other person.
9. NO ENDORSEMENT
9.1 Floktu does not endorse the safety, quality, accuracy, reliability, integrity, legality or completeness of any information or product displayed, distributed or sold through the Services ("Content").
9.2 Nor does Floktu give any warranty regarding the availability, fitness for purpose of such Content or whether such Content fits the description a Seller or an Advertiser or other third party has provided.
9.3 Floktu does not endorse nor does it control or monitor third party websites or applications that may be linked from the Services ("Link").
9.4 Your use of a Link is at your own risk and you should evaluate the safety and the merits of its content or services before continuing to interact.
9.5 Floktu, to the full extent permitted by law, disclaims all liability or responsibility for any errors or omissions in any Content or in the Services.
9.6 Floktu also reserves the right, but has no responsibility, to edit, amend, reject or delete any Content that Floktu considers in its sole and absolute discretion to be, in whole or in part, offensive, incorrect, inaccurate, illegal or fraudulent or that violates these Terms.
9.7 Floktu may plead these Terms in bar to any claim, action, proceeding or suit brought by you against Floktu in relation to any Content or the Services or otherwise in respect of these Terms or your use of the Services. This does not affect any rights you may lawfully have against Floktu for Floktu's own acts or omissions.
10. PROHIBITED USE
10.1 The Services may only be used for legal and legitimate transactions.
10.2 You must not use the Services to process payments related to the sale of any illegal goods or services or for any illegal transaction.
10.3 You must not:
- display any Content with any pornographic, hate-related, violent, or illegal material;
- use any third party's intellectual property in any Content or in the display of any Content unless such use is specifically authorised by the relevant third party;
- modify, adapt, decompile, reverse engineer, disassemble, develop derivative works;
- attempt to derive source code from any Floktu services, software or documentation;
- copy, reproduce, alter or modify or create derivative works of any Content or information included in the Services unless you have received specific written authorisation from Floktu;
- create or attempt to create a substitute or similar service or product through your use of or access to the Services or any of Floktu's proprietary information;
- remove, obscure, or alter Floktu's brand or Floktu's copyright notice or other notices on the Services;
- "crawl", "spider", index or in any non-transitory manner store or cache information obtained from all, part of a Listing an Ad or Content or any copy or derivative of a Listing or an Ad;
- disseminate malware or other malicious code that harms or subverts the Services or a user's enjoyment of the Services by damaging, modifying, deleting, accessing (without express consent) or expropriating any data or functionality directly or indirectly related to the Services or users of the Services;
- use any adware software that is unacceptable to Floktu (N.B. adware software is defined by Floktu entirely at Floktu's sole discretion and the definition may vary from time to time);
- create a new account to use the Services after Floktu has terminated your Account due to your breach of these Terms;
- act in any way that violates these Terms; or
- engage in any action or practice that reflects poorly on Floktu or otherwise disparages or devalues Floktu's reputation or goodwill.
10.4 Floktu reserves the right to investigate, at its own discretion, any activity that it considers may violate these Terms including, but not limited to, the use of any software to access the Services, the Ads in an unauthorised manner or any other activity prohibited under these Terms.
10.5 If you participate in any attempted or actual violation of any of these Terms, it will be a material breach of this legal agreement and Floktu may:
- refuse to render any payment or reimbursement to you or require the return or cancellation of any monetary sum that you may have accumulated;
- limit or suspend your use of the Services; and
- pursue any and all applicable legal and equitable remedies against you, including the immediate suspension of your Account, termination of these Terms, and pursuit of any available civil or criminal remedy.
10.6 Floktu will attempt to notify you by email if your use of the Services is suspended, but Floktu is under no obligation to take further action to notify you.
10.7 Suspension of your use of the Services or cancellation of your Account will not diminish or affect your rights and obligations that arose under these Terms before or after your suspension.
11. RESERVED RIGHTS
11.1 Floktu may refuse to approve or decide to terminate an existing Account at our sole discretion and that decision may be made without cause or notice (other than any notice required by any applicable law).
11.2 Floktu reserves the right to, from time to time and without seeking your consent:
- alter the format, look and feel of the Services;
- alter the format, look and feel of an Ad or any Content;
- delete an event posting from the inventory of available events;
- delete any Listing, Ad or Content;
- establish general practices and limits concerning use of the Services;
- limit or amend individual or aggregate transaction limits whether that limit is on the monetary amount or the number of such transactions in a specified period;
- change, suspend or discontinue (without notice and/or without incurring any liability) any aspect of the Services (or any Service features) at any time, including the hours the Services are operational or available;
- restrict access to all or part of any Service (without notice and/or without incurring any liability); and
- decline to process any transaction without prior notice to the relevant Seller or Buyer.
11.3 This agreement formed under these Terms will be deemed to terminate within ten business days of Floktu's receipt of your termination notice.
11.4 Floktu also reserves the right to terminate without notice any Account that has been inactive over a period of two years.
12. FLOKTU'S RIGHTS
12.1 The trademarks, trade names, service marks and other Floktu logos and brand features, and product and service names are the property of Floktu ("Floktu Marks") and you must not, without prior written permission, display or use in any manner the Floktu Marks.
12.2 Floktu owns all right, title and interest, including without limitation all Intellectual Property Rights related to your use of the Services including Floktu's technology and brand and any implied licenses, but excluding any items Floktu has licensed from third parties.
12.3 You will not acquire any right, title, or interest in or to the Services except as expressly set forth in these Terms.
13. INFRINGEMENT NOTIFICATION
13.1 We expect our users to respect the intellectual property rights of others.
13.2 Floktu may, in appropriate circumstances and at its discretion, suspend and/or terminate the Accounts of any user who infringes such rights.
13.3 If you believe your work has been copied in a way that constitutes copyright infringement ("Disputed Use"), or your intellectual property rights have been otherwise violated, please contact us and provide the following information ("Notice"):
- an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that is the Disputed Use;
- a description of where the Disputed Use is located on our Services;
- your contact details such as your address, telephone number and email address;
- a statement by you that you have a good faith belief that the Disputed Use is not authorised by the copyright owner, its agent or the law;
- a statement by you, made under penalty of perjury, that :
- the above information in your Notice is accurate; and
- you are the copyright or intellectual property owner; or
- you are authorized to act on the copyright or intellectual property owner's behalf.
14. INFORMATION RIGHTS
14.2 We urge you to carefully consider:
- the information, statements, data and content (such as ideas and photographs) that you submit;
- the confidentiality of any information that you wish to protect from misuse, infringement or misappropriation; and
- how you interact with the Services as your actions may reveal information about your gender, ethnicity, nationality, age and/or other personal information to others.
14.3 Floktu may:
- transfer and disclose to third parties personally identifiable information about you in order to approve and activate your participation as a user of the Services or to facilitate a transaction including the purchase of any goods or services;
- provide such information to third parties that reside in jurisdictions with less restrictive data laws than your own jurisdiction;
- share information about you that does not personally identify you, including URL and URL-specific statistics and other similar information collected by Floktu with Floktu's advertisers, business partners, sponsors and other third parties; and
- provide information to courts or other authorities in response to a valid legal process or to establish or exercise Floktu's legal rights or defend against legal claims.
14.4 In particular, your use of the Services is conditional on Floktu being deemed to have a right to post or transmit data from your online shopping cart or any other source.
14.5 Floktu will not be liable to you for any disclosure of that information by any third party.
14.6 All communication, material or information you transmit or post using the Services and any other information that is otherwise collected through the Services ("Platform Data") will be treated as non-confidential, non-proprietary information.
14.7 Your use of the Services will be deemed to constitute the grant to Floktu of a worldwide, irrevocable, non-exclusive, royalty-free, fully paid, sub-licensable and transferable licence to use, copy, edit, modify, reproduce, distribute, display, perform, produce derivative works and otherwise fully exploit the Platform Data ("Data Licence").
14.8 Under the Data Licence, Floktu may use the Platform Data in connection with the Services and Floktu's business, including the business of Floktu's successors and assigns, and at Floktu's sole discretion to:
- promote and distribute the Platform Data, including any derivative works, in any way in any format and through any media channel;
- incorporate the Platform Data into marketing materials, advertisements, promotions and other works;
- create derivative works from the Platform Data; and
- allow other users to use the Platform Data in the same manner in connection with their own websites, media platforms, and applications.
14.9 You represent and warrant that you have right to grant the Data Licence to Floktu without infringement or violation of any third party's rights, including without limitation, any rights related to privacy, publicity, copyrights, contract, or any other intellectual property or proprietary rights.
14.10 If you close your account, that data will be removed from the Services, but we stress that your content may persist in backup or cached copies for a reasonable period of time or may be retained by other users who have previously accessed or downloaded your content.
15. BUSINESS ACCOUNTS
15.1 While you are only permitted to have one account, we understand that business entities may wish to aggregate the billing information of various Account holders who are officers, employees, contractors, agents or representatives of that business entity ("Representatives").
15.2 If you are a business entity, you agree that any Representative that uses the Services and operates an Account:
- is duly authorised to act on behalf of your business;
- has been granted access to the Account; and
- is vested with the authority from you to use the Services and legally bind the relevant business entity.
15.3 It is an essential condition of any use of the Services by your Representative that your business:
- agrees to be legally bound by any transaction conducted under your Account;
- accepts full responsibility and liability for all acts of any current or former Representative regardless of whether use of the relevant Account was authorised.
15.4 Despite anything to the contrary in these Terms, each provision in these Terms equally binds the holder of an Account and any business entity for which that person is a Representative.
16. FLOKTU IS NOT A BANK
16.1 While Floktu may calculate and distribute a Commission, Floktu is not a bank or a financial institution.
16.2 No interest will be paid in relation to Account balances.
16.3 The funds held by Floktu or its service providers are not deposit obligations and such funds are not insured by any governmental agency.
17. PASSWORD PROTECTION
17.1 You remain responsible for:
- keeping your username and password protected and confidential;
- each transaction conducted by any persons using your username or password if you provided your details to that person;
- the consequences of any use or misuse of your username and password.
17.2 You must immediately notify Floktu if you become aware of any security breach or any unauthorised use or misuse of your Account, username or password.
17.3 While Floktu may attempt to provide assistance, you bear sole responsibility for the care and protection of your important information and we are not obliged to supply you with your user name or Account password if it is misplaced, forgotten or lost.
18. ELECTRONIC COMMUNICATIONS
18.1 You agree that Floktu may use electronic means such as email and notices posted on the Services to communicate with you concerning:
- changes to the Services;
- amendments to the Terms;
- payment authorisations;
- notices or other disclosures;
- any other matter related to the Terms and/or Services.
18.2 Please retain copies of any electronic communication by either saving a 'soft' copy or printing the document.
18.3 You will be deemed to receive the communication once it is sent to you at your email address or posted on the Services.
18.4 You agree to receive electronic communication even in circumstances where you may have a statutory right to receive such communication in paper form and you agree to waive such rights on the basis that you are entitled to request an electronic communication to be resent or to order a paper copy, but Floktu reserves the right to charge a reasonable fee for such additional service.
18.5 Please promptly notify Floktu of any change to your email address.
18.6 You may also notify us if you withdraw your consent to receive electronic communication, however Floktu reserves the right to suspend or terminate your access to the Services if you withdraw that consent.
19. INAPPROPRIATE CONTENT
19.1 Please notify us if you consider any content inappropriate and it will be removed if it breaches Floktu's content guidelines.
20. NO GUARANTEE
20.1 The Services are provided on an "as is" and "as available" basis and your use of the Services is at your sole risk.
20.2 Floktu is not obliged to notify you of any malfunction in the Services, or if any Service feature is limited, restricted or ceases, nor if any Ad is being properly displayed or is functioning incorrectly.
20.3 Although Floktu intends to take reasonable steps to protect the integrity and reliability of the Services, Floktu does not warrant nor does Floktu give you any guarantee or representation that:
- the Services or any information or other material accessible through the Services will be uninterrupted, timely, reliable, secure, error-free or is free of any virus, worm, trojan horse or other harmful component;
- there will be any operational stability, availability or continuation of the Services;
- any message, email, notice, post, answer or transmission of user generated content will be successfully delivered or displayed;
- your use of the Services will not infringe the rights of any third party; or
- that there will be any continuation of the agreement formed under these Terms.
- Floktu warns you that the Service may be discontinued at Floktu's sole and absolute discretion or that the Services may be inoperable at times due to:
- down time and scheduled maintenance;
- outages to any public Internet backbones, networks or servers;
- equipment failure including the failure of third party systems such as international or local access systems; or
- a Force Majeure Event.
20.5 Floktu will have no liability related to:
- the display of an event posting or an Ad to the extent an event posting or an Ad is based on or displayed in connection with non-Floktu content;
- the accuracy or suitability of any user-generated content as Floktu does not control or vet such content;
20.6 Please carefully consider what information and content you provide to other users as Floktu does not verify the identity of users and does not undertake to monitor user interaction and we disclaim any liability for identity theft or any other misuse of your identity or information.
20.7 To the maximum extent permitted by applicable law, Floktu disclaims all warranties, either express or implied, including but not limited to:
- uninterrupted or continuous availability of the Services; and
- implied warranties of merchantability, fitness for a particular purpose with respect to the Services.
21. LIMITATION OF LIABILITY
21.1 NEITHER PARTY WILL BE LIABLE UNDER THESE TERMS FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, unless:
- such an exclusion is prohibited under your local laws;
- you are subject to an indemnity or confidentiality obligation to Floktu under these Terms;
- you have breached Floktu's Intellectual Property Rights and/or proprietary interests related to the Services.
21.2 Subject to the following LOCAL LAWS clause, Floktu, to the full extent permitted by law:
- excludes all warranties, conditions, terms, representations and undertakings, other than an undertaking set out in these Terms (whether express or implied), including without limitation with respect to advertising or other services;
- limits Floktu's obligation to provide any services, to the obligation to supply the services again, or to pay the cost of having the services supplied again;
- limits the aggregate liability of Floktu and Floktu's officers, directors, members, parents, affiliates, subsidiaries, licensees, assigns, successors, agents, representatives, employees or licensors to you to A$100:
- in relation to any event or transaction; or
- for any damages whatsoever (including, without limitation, damages arising out of an action under contract, negligence or any other theory and damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, incidental damages, consequential loss, punitive damages, exemplary damages).
21.3 The limitations set out in this clause apply regardless of whether the liability or damage is directly or indirectly related to a breach of these Terms or negligence or any other tort or for any other common law or statutory cause of action arising in relation to these Terms, the website or the content available through the website.
21.4 Each party that enters into an agreement under these Terms relies on the stated liability limits and those limits are an essential basis of the bargain between the parties.
21.5 Without limiting the foregoing and except for payment obligations, neither party has any liability for any Force Majeure Event.
22. LOCAL LAWS
22.1 If the laws of the jurisdiction where you reside and confer rights and remedies and imply terms into these Terms that cannot be excluded, those implied terms will, to the extent that their exclusion is prohibited, be deemed to be included in these Terms.
22.2 If a jurisdiction does not allow an exclusion or limitation of liability, but allows a limitation to a certain maximum extent, then Floktu's liability is limited to that extent.
22.3 These limits will not apply to you if your use of the Services is considered to be in the role of a consumer and to be for personal, domestic or household use as defined under Australian consumer protection law.
23.1 If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
24. NO WAIVER
24.1 Floktu's failure to act with respect to a breach by you or any third party does not waive Floktu's right to act with respect to subsequent or similar breaches.
25.1 Floktu has the right to assign these Terms in whole or in part to any person or business entity.
25.2 You may not assign your rights or delegate your obligations under these Terms without the prior written consent of Floktu.
26. ENTIRE AGREEMENT
26.1 These Terms constitutes the entire agreement between the parties with respect to this subject matter.
27.1 These Terms may only be amended by:
- written agreement between you and Floktu;
- your online acceptance of amended Terms evidenced by your continued use of the Services after the Terms have been amended.
28.1 Your relationship with Floktu is not a partnership and you and Floktu are independent contractors.
29. GOVERNING LAW
29.1 The laws of New South Wales govern any agreement formed under these Terms and the parties irrevocably submit to the jurisdiction of the courts of that State.
30.1 "Force Majeure Event" means an event including, without limitation, an act of God, storm, tempest, war, terrorism or threat of terrorism, revolution, civil strife, plague or epidemic, industrial action, strike, fire, flood, public disaster, failure or delays of scheduled transportation, interruption of essential services or public utilities, governmental intervention or exercise of authority, which is outside Floktu's control.
30.2 "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements of those rights, now or later that are in force and effect worldwide.