HarkHark User Agreement
A. HarkHarkPty Ltd ( ACN 164 719 251 ABN 69 164 719 251 ) of Brisbane QLD Australia owns and Operates the systems and That form the Online Services Platform Known as "HarkHark";
B. You ( the Customer ) Wish to purchase goods and / or Services from a Merchant who is Listed on the HarkHark website.
1. Definitions and Interpretation
In this Agreement, unless the context indicates the contrary:
'Content' means the Content of advertisements and other Material submitted to the Website by you or on your behalf INCLUDING BUT not Limited to All text, Graphics, icons, Photographs, Videos and URLs.
'Confidential Information' means All Information PROVIDED by one party to the other in Connection with this Agreement where SUCH Information is IDENTIFIED as confidential at the time of ITS Disclosure Considered confidential or ought Reasonably be based on its content, ITS Nature or the Manner of Disclosure, BUT Excluding ( a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and (b) information developed independently by a party.
'Customer' means you and, if applicable, Another person or entity That you are Purchasing Goods and / or Services throughthe Website on Behalf of.
'Fees' means the Fees and chargesspecified at clause 4.
'Force Majeure Event' means any Event beyond the Control of the Relevant party.
'GST' HAS Given the Meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other Similar Tax.
'HarkHark Rewards Club' means a service whereby a Merchant PROVIDED by HarkHark CAN Provide Incentives to Third party Users of the Website SUCH s art as you to Those Users to Buy Products and Services from That Merchant.
'Intellectual Property Rights' means All intellectual Property Rights, INCLUDING All Copyright, patents, trademarks, Design Rights, Moral Rights, TRADE secrets, domain names, Know How and other rights of a Similar Nature, WHETHER registrable or not and WHETHER registered or not, and any Applications for registration or rights to make such an application.
'Merchant' means a Business Which is Listed on the Website.
'Website' means HarkHark Located at harkhark.com.auand All Services PROVIDED by HarkHark at the domain harkhark.com.au.
Unlessthe context requires otherwise:
(A) a reference to a person Includes a Corporation or any other Legal entity;
(B) a reference to "you" Includes a Reference to "the Customer" and vice versa;
(C) Includes the plural and vice the singular versa;
(D) headings are for Convenience and do not form Part of this Agreement or otherwise affect the Interpretation of this Agreement;
(E) the term "Includes" (or any Similar Term) means "Includes without limitation"; and
(F) a reference to any Statute Includes references to any subsequently amended, or Re-enacted Consolidated Version of That Statute and All delegated legislation or other Statutory Instruments made under it.
2. Customer Registration
2.1 To be entitled to Buy Goods and Services from the Website you MUST be a registered Customer.
2.2 You must Complete and submit to HarkHark the Customer Registration Form (Schedule A) Online in the Manner prescribed by HarkHark in order to submit an application for Registration as a Customer of the Website ( Customer Registration ).
2.3 All information on the Customer Registration Form MUST be Complete and Accurate and must Comply with All Laws, Regulations and Relevant Industry Codes.
2.4 Customer Registration MUST not attempt to link to Content Which is Illegal or May Bring HarkHark into disrepute.
2.5 HarkHark may reject or cancel any Customer Registration at any time at ITS sole discretion.
2.6 All terms and Conditions CONTAINED on the Customer Registration Form, INCLUDING but not Limited to terms and Conditions for Services and payment terms Specifying price, submitted by the Customer to HarkHark form non-severable Parts of this Agreement.
2.7 Subject to the Provisions of the Australian Consumer Law, All Fees Payable by the Customer to HarkHark are non-refundable.
3. HarkHark Rewards Club
3.1 If the Customer's Registration is Approved by HarkHark, the Customer May Receive incentives from other Users of the Website to Buy Goods or Services from Them ( Rewards ).
3.2 Rewards can only be Used in the Website.
3.3 Rewards are not Able to be redeemed from promo for Cash from HarkHark.
3.4 If the Customer's account is terminated for any reason WHATSOEVER, All Rewards held are Cancelled by the Customer and are not to be redeemed from promo or transferred Able to Another Customer or Another user of the Website.
3.5 HarkHark does not Warrant or Guarantee That All Users of the Website Will recognise Rewards and as SUCH Some Users of the Website Will not Exchange Their Goods or services for Rewards.
3.6 Rewards cannot be Combined with Real currency to redeem Goods and Services from other users of the Website.
3.7 Terms and Conditions of using Rewards are specified in the Website at the time Rewards are Given to the Customer and the Customer agrees to be bound by such terms and Conditions.
4. Fees and Payments
4.1 Fees and charges Payable by the Customer to HarkHark are specified in:
(A) the Website as Updated from time to time;
(B) e-mail correspondence sent to the Customer by HarkHark from time to time;
(C) written correspondence sent by HarkHark to the Customer.
Fees and charges pursuant to this clause are incorporated into this Agreement by reference thereto.
4.2 That Fees and charges are Communicated to the Customer by HarkHark in a manner specified in clause 4.1 are Agreed to by the Customer when the Customer does one or More of the Following:
(A) Continues to use the Website after being Notified of the new Fees and charges;
(B) Clicks a hyperlink That informs HarkHark of the Customer's Agreement to the Fees and charges;
(C) Replies in writing to the Customer agrees to HarkHark That the Fees and charges.
4.3 If payment of any Fees and / or charges is not made by the Customer in accordance with the terms and Conditions of this Agreement, as specified both in the text of this Document and in any other Documents Referred to by this Agreement, terminate this Agreement in May HarkHark accordance with clause 10 herein.
4.4 the customer acknowledges and agrees That All Transaction Fees and other Fees and charges incurred by HarkHark to Facilitate the payment of Money from the Customer to a Merchant Will be passed on in full to the Merchant and from HarkHark as a Condition of membership of the Website, the Merchant HAS agreed to pay to HarkHark said fees and charges.
4.5 the customer acknowledges That Merchants have Agreed not to Pass on to their customers or any other Transaction Fees and charges the Merchant is LIABLE to pay to HarkHark.
4.6 the customer acknowledges That Merchants have Agreed That the price of Their goods and Services Offered through the Website Will not exceed the price Those same goods by Merchants and Services are Offered for Sale in Marketplaces other than the Website.
4.7 If the Customer to HarkHark ITS HAS PROVIDED Credit Card (or Visa / MasterCard debit Card or Similar) details, the Customer authorises HarkHark to the Amount of charge that credit Card Fees and charges HAS Agreed That the Customer under this clause to pay to HarkHark.
4.8 All fees and charges paid by the Customer to HarkHark are non-refundable.
5.1 All amounts Payable to HarkHark Expressed under this Agreement are exclusive of GST.
5.2 All Goods and Services The prices of Displayed for Sale by Merchants on the Website are Inclusive of GST.
6.1 A party MUST not, WITHOUT the prior written consent of the other, use or disclose the other party's Confidential Information unless EXPRESSLY Permitted by this Agreement or required to do so by Law or any Regulatory Authority.
6.2 Aparty May:
(A) use the Confidential Information of the other party solely for the purposes of complying obligations and exercising with ITS ITS Rights under this Agreement; and
(B) disclose the Confidential Information to ITS Personnel or Advisers to the extent necessary for Them to know the Information for purposes Related to this Agreement, BUT only if Reasonable Steps are taken to Ensure That the confidentiality of the Information is Retained.
6.3 Implement and Maintain Effective Each party MUST Security Measures to prevent unauthorised use and Disclosure of the other party's Confidential Information whilst Receiving it is in the party's possession or Control.
6.4 Each party MUST return, or at the other party's Option destroy, All Confidential Information of the disclosing party in the party's possession or control Receiving, on the Earlier of HarkHark's Request or on Termination of this Agreement for any reason.
7.1 the customer Represents and Warrants That it is the person specified in the customer Registration Form;
7.2 the customer Represents and Warrants That it is Authorised to use any other payment Credit cardor Method Used to Pay either HarkHark or a Merchant.
8.1 to the full extent Permitted by Law, HarkHark excludes of loss All Liability in Respect of Data, Interruption of Business or any CONSEQUENTIAL or incidental damages suffered by the Customer or any agent, assign or successor of the Customer.
8.2 to the full extent Permitted by Law, HarkHark excludes of loss All Liability in Respect of Data, Interruption of Business or any CONSEQUENTIAL or incidental damages Caused by any Third party service Provider, INCLUDING BUT not limited to payment Gateways, Data Storage Providers and Financial Institutions.
8.3 to the full extent Permitted by Law, HarkHark excludes All REPRESENTATIONS, WARRANTIES or terms (WHETHER Express or IMPLIED) other than Those EXPRESSLY Set Out in this Agreement and any Document EXPRESSLY Referred to in this Agreement.
8.4 HarkHark's total Aggregate Liability for All Claims Relating to this Agreement is limited to the Fees Payable under this Agreement.
8.5 the customer acknowledges and agrees That it Will not HOLD HarkHark LIABLE for anyloss suffered by the Customer or any Third party as a Result of the Customer's purchase of Goods and / or Services from a Merchant.
8.6 This Agreement Read is to be subject to any Legislation Which prohibits or restrictsthe Exclusion, Restriction or Modification of any IMPLIED WARRANTIES, Conditions or obligations. If SUCH Legislation Applies, to the extent Possible, HarkHark ITS Limits of Liability in Respect to any Claim, at HarkHark's option:
(A) in the Case of Goods:
. i the replacement of the Goods or the supply of equivalent Goods;
. ii the repair of the Goods;
. iii the payment of the cost of Replacing the Goods or of Acquiring equivalent Goods; or
iv. the payment of the Goods HAVING Repaired, and
(B) in the Case of Services:
. i the supply of the Services Again; or
ii. the payment of the cost of the Services Supplied HAVING Again.
9.1 the customer indemnifies and Holds HarkHark ITS Agents, Affiliates, Subsidiaries, Directors, Officers, Employees, consultants and Contractors (collectively "Indemnified Persons") from and against any and HARMLESS All Costs, Claims, Losses, DAMAGES, Liability and Expense (INCLUDING All reasonable legal fees) which may be made or brought against or suffered or incurred, directly or indirectly by the Indemnified Persons in connection with:
(A) any breach of this Agreement by the Customer or by HarkHark;
(B) any act of Fraud or wilful Misconduct by or on Behalf of the Customer;
(C) any loss suffered by the Customer as a Result of ITS We have adopted with any Third party, INCLUDING Merchants, with whom the Customer Makes contact through the Medium of the Website,
(D) any loss suffered by the Customer or by any party who purchases or otherwise receives Third Goods from a Merchant Which are Alleged to be counterfeit / piratedgoods;
11.1 A party may terminate this Agreement by written notice to the other if any ofthe following events has occurred in respect of the other party:
(A) Breach of this Agreement amaterial Which is not remediable or if capable ofremedy, where the other party fails to Remedy Within 14 days of written Notice;
(B) an insolvency Event Occurs, other than an Internal Reconstruction, with Notice tothe other party.
11.2 HarkHark may terminate the Agreement with immediate effect without notice to the Customer if any of the following events occurs:
(A) The Customer Displays Content that HarkHark considers to be:
(I) Pornographic or Sexually Explicit;
(Ii) Illegal to display in any Jurisdiction in Which the Website is viewable;
(Iii) Disparaging any Third party;
(Iv) Directing users of the Website to a Third party website INCLUDING a website under the control of the Customer;
(V) Images or Videos of pirated or counterfeit Goods or Services;
(Vi) Infringing the intellectual Property Rights of any Third party;
(Vii) Misleading or Deceptive in any Way.
The Customer uses the Website to:
(I) bring HarkHark into disrepute;
(Ii) transmit junk e-mail or SPAM;
(Iii) perform any Illegal activities.
(B) HarkHark receives a Complaint from any Third party upon Reasonable Investigation by HarkHark That Leads HarkHark to form the Opinion That the Customer HAS breached any term or condition of this Agreement.
11. Consequences of Termination
If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(A) each party retains the Rights and Claims it HAS against the other;
(B) to HarkHark any fees paid by the Customer for any reason WHATSOEVER That HarkHark has already Agreed in writing are to be paid to the Customer are forfeited by the Customer to HarkHark and to Remove Doubt HarkHark is not obliged to refund any SUCH PORTION of Fees to the Customer for any reason whatsoever;
(C) Immediately the customer MUST Pay All Outstanding Fees and charges to HarkHark;
(D) Interest HarkHark may charge to the Customer on any PORTION of Outstanding Fees until such Outstanding Fees are paid to HarkHark in full.
The parties' contact details for notices under this Agreement are as follows or as otherwise notified by one party to the other from time to time:
HarkHarkPty Ltd (ACN 164719251; ABN 69 164 719 251)
Address: 1/839 Boundary Rd, Coopers Plains, QLD, 4108
E-mail: support@ harkhark.com.au
The contact details specified in the Customer Registration Form at Schedule A.
12.1 All notices MUST be in writing and CAN be Given by:
(A) to the Customer: E-mail to the e-mail address PROVIDED by the Customer to HarkHarkat the time of signing this Agreement;
(B) To HarkHark: E-mail to the e-mail address PROVIDED in the Website's "Contact Us" Page.
(C) a notice is deemed to be Given and Received on the Next Business Day after the day of Delivery.
13.1 the customer MUST not assign or otherwise in any other Way Deal with any of its rights under this Agreement WITHOUT prior written consent of the HarkHark.
13.2 Nothing contained in this Agreement Creates Relationship of any partnership or agency between the PARTIES.
13.3 If a ProVision of this Agreement is Invalid or unenforceable it is to be Read down or Severed to the extent Necessary or enforceability WITHOUT Affecting the validity of the Remaining Provisions.
13.4 Each party MUST do at ITS own Expense Everything Reasonably Necessary to Give full effect to this Agreement and the Events contemplated by it.
13.5 This Agreement (and any Documents Executed in Connection with it) is about the entire Agreement of the PARTIES ITS subject Matter and supersedes All other representations, Arrangements or Agreements. Other than as EXPRESSLY SET out in this Agreement, no party HAS relied on any representation made by or on behalfof the other.
13.6 Notwithstanding clause 13.5 of this Agreement, HarkHark May Introduce new Services to its Website or alter Notice of Same with Existing Services to be PROVIDED to the Customerby Way of an e-mail or Notice on the Website That Includes the new terms and conditions That MUST accept the Customer if the Customer is to be permitted touse such new or altered service. The terms and conditions contained in such e-mails or notices on the Website form non-severable parts of this Agreementand are deemed to have been accepted by the Customer if the Customer does one or more of the following:
(A) Continues to use the Website after being Notified of the new terms and Conditions;
(B) Clicks a hyperlink That informs HarkHark of the Customer's Agreement to the new terms and Conditions;
(C) Replies in writing to the Customer agrees to HarkHark That the new terms and Conditions.
13.7 A provision of a right under this Agreement or May not be Waived or Varied except in writing Signed by the person to be bound.
13.8 This Agreement May be Executed in counterparts Which Will be taken Together to constitute one Document.
13.9 A party Will not be Responsible for a failure to Comply with ITS obligations under this Agreement to the extent That failure is Caused by a Force Majeure Event, PROVIDED That Keeps the party the other Closely Informed in such circumstances and uses Reasonable Endeavours to rectify the Situation.
13.10 Without limiting any other right to terminate under this Agreement, if a Force Majeure Event Affects a party's Performance under this Agreement for More than Thirty (30) Consecutive days, the other party May Immediately terminate this Agreement by written Notice.
13.11 This Agreement is governed by the Laws of Queensland and each party submits to the jurisdiction of the Courts of Queensland.
Executed as an Agreement
The parties agree that this Agreement will be considered executed and thus legally binding on the parties instantly upon the Customer clicking a button on the Website with the intention of submitting the Customer Registration Form to HarkHark.