THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS ON WHICH WISHCAN OFFERS YOU ACCESS TO OUR SERVICES (USER AGREEMENT)
Welcome to Wishcan Inc's ("Wishcan's") Terms and Conditions of Access or User Agreement and. This Agreement describes the terms and conditions that govern your use of our services at http://www.Wishcan.com/ (the "Site"). If you have any questions, please contact us using the appropriate contact forms on the Site.
You must read, agree with and accept all of the terms and conditions contained in this User Agreement, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of Wishcan. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and websites referred to in this document, as they may contain further terms and conditions which apply to you as a Wishcan member.
By accepting this User Agreement, you also agree to be bound by the User Agreements and posted terms and conditions on other Wishcan websites to the extent that you use those websites.
By continuing to use the site, you are indicating your agreement to the terms of this use agreement and all revisions thereof.
We may amend this Agreement at any time in our discretion by posting the amended terms on our Site. The fact that amendments have been made to the User Agreement will also be notified on our Announcements page. Except as stated below, all amended terms shall automatically be effective 7 days after they are initially posted on our Site. If you do not agree with such changes, you must terminate your membership of Wishcan. This Agreement may not be otherwise amended except in writing signed by you and Wishcan. This agreement is effective on 1st of July 2004.
In the following document, the act of "Asking" refers to the posting of a request for an item, which could be goods, information, or services. The act of "Bidding" refers to the posting of responses to the relevant Ask to offer prices for the requested item that fit the description in the Ask, and the subsequent fulfillment of the offer. The act of both Asking and Bidding constitutes Trading. Each Trade consists of two stages. The first stage, Bidding, involves the statement of the request by the Asker and offering of Bids and price negotiation by the Bidders. The second stage, Settlement, involves the choosing of winning Bidder(s) by the Asker, the agreement to participate in the Trade by the chosen Bidder(s), the exchange of promised deliverables by the chosen Bidder(s) with payment from Asker through Wishcan as an escrow agent.
The Trades that occur or are completed on Wishcan are legally binding contracts between the Asker and the Bidder. Wishcan only acts as a passive conduit for the communication, and a fiduciary for any escrowed fund provided to Wishcan, between the Asker and the Bidder. It is the responsibility of the Asker and the Bidder, but not Wishcan, to ensure that the items traded are within the legal limits of the law in relevant regions, districts, or countries.
Wishcan is a venue and a finder. The Site functions as a venue to connect Askers and Bidders in a virtual marketplace. As a neutral facilitator, Wishcan is not directly involved in the actual transaction between users of the Site. As a result, Wishcan has no control over the truth, accuracy, quality, legality, or safety of postings made by users. Because verifying the identity of a user on the Internet is difficult, Wishcan cannot and does not confirm the identity of users. Wishcan also does not confirm or verify the qualifications, background, or abilities of users. Therefore, Wishcan recommend that you be careful and exercise common sense and good judgment when dealing with any User on the Site. Because Wishcan assists Bidders in finding Askers in need of goods, services, or information, Wishcan is considered the official finder for each trade completed through the Site and charges a transaction fee. Wishcan Bidders and Askers are responsible for meeting payroll, tax, and legal requirements for any legal entity. Wishcan also does not guarantee leads or projects.
Also, Wishcan is a distributor (and not a publisher) of content supplied by any third parties and Users of this Site. Wishcan has no editorial control over such content. Opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including all Users, are those of the respective author(s) or distributor(s) and not of Wishcan. Wishcan neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on this Site by anyone other than authorised Wishcan employee acting in their official capacities. Wishcan does not confirm or verify if a User claiming to be a professional or claiming to be qualified to provide the service or advice being requested. You understand and acknowledge that Wishcan is not responsible for, and does not monitor content for accuracy or reliability.
1. Membership Eligibility.
Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to persons under 18 years of age or to temporarily or indefinitely suspended Wishcan members. If you do not qualify, please do not use our services. Further, your Wishcan account (including feedback) may not be transferred or sold to another party.
2. Fees and Services.
Joining and bidding on Asks at Wishcan is free. When you make an Ask you have an opportunity to review and accept the fees that you will be charged for the use of our services. Our Payment and Billing Policy is incorporated into this User Agreement by reference. We may change our Payment and Billing Policy and the fees for our services from time to time. Our changes to the policy are effective after we provide you with at least seven (7) days' notice of the changes by posting the changes on the Announcements page. However, we may choose to temporarily change our Payment and Billing Policy and the fees for our services for promotional events (for example, free listing days) and such changes are effective when we post the temporary promotional event on the Announcements page. We may in our sole discretion change some or all of our services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in United States Dollars. You are responsible for paying all fees associated with using our service and our Site and all applicable taxes (including any Goods and Services Taxes, which will be added to amounts billed to you). Please Note: You cannot include Wishcan fees in the 'terms of sale' of your item or request another member to pay Wishcan these fees. However, you may wish to consider Wishcan fees when determining the price of your Ask.
3. Wishcan is not an Auctioneer.
3.1. Online Auctions.
Although we are adopt a reverse-auction trading platform, it is important to realise that we are not a traditional "auctioneer". Instead, our Site acts as a venue to allow members to ask for just about anything, at anytime, from anywhere, in a variety of formats, for a price, and for other members to offer bids to compete on price, quality, delivery, service, and other attributes. We are not involved in the actual transfer of goods, information, services or other items, between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items or content posted by Users on the Site, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure and do not guarantee that a buyer or seller will actually complete a transaction or act lawfully in using our Site.
3.2. Safe Trading.
Because User authentication on the Internet is difficult, Wishcan cannot and does not confirm each User's purported identity. Thus, we have established a User-initiated feedback system to help you evaluate the User you are dealing with. We also encourage you to communicate directly with potential trading partners through the tools available on our Site. You may also wish to consider using services that provide additional User verification.
Because we are not involved in the physical trade between buyers and sellers, in the event that you have a dispute with one or more Users, you release Wishcan (and our officers, directors, agents, affiliates, parents, subsidiaries and employees) from claims, demands and damages (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
3.4. Information Control.
We send you communications and notices regarding your transactions and your account on our Site. Our communications do not represent any endorsement, guarantee or legitimisation of your transactions. You are responsible for completing all transactions you participate in (including monitoring the status and complying with all relevant legal obligations). We do not control, endorse or approve the items, information or content provided by other Users which is made available through our system. You may find other Users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using our Site. Please note that there are also risks of dealing with underage persons or people acting under false pretence. Additionally, there may also be risks with international trading and dealing with foreign nationals.
4. Asking and Bidding.
4.1. Asking and Bidding Description.
You must be legally able to buy or sell the good(s), service(s), or information that you Ask or Bid for, respectively, on our Site. An Asker must describe the Asked item on the listing page of our Site. The Asking listings may only include text descriptions, graphics, pictures and other content relevant to the request of that item. All listed items must be listed in an appropriate category. A Bidder must describe the offer terms on the Bidding bulletin board under the listing page of our Site. Your Bidding may only include text descriptions, graphics, pictures and other content relevant to the bid of that item.
You also agree to Wishcan policy on the release of contact information between Users. An Asker is restricted from releasing his or her telephone number, email address, and other contact information directly or indirectly to Bidder(s) in an ongoing trade, or other Users of this Site, until such time as the Asker having chosen the Bidder(s) or User as winners to participate in a trade. At that time, an Asker may release his or her contact information to the chosen Bidder(s) only. A Bidder is restricted from releasing his or her telephone number, email address, and other contact information directly or indirectly to an associated Asker(s) in an ongoing trade, until such time as the Bidder having been chosen as the winner to participate in that trade. At that time, a Bidder may release his or her contact information to the associated Asker that listed trade only.
4.2. Binding Bids.
Except for items to which the Law and this Agreement forbid, if an Asker has chosen a Bidder or Bidders as winners to participate in a Trade, the Asker is obligated to complete the transaction with the Bidder(s) upon the item's completion, unless there is an exceptional circumstance, such as when the Bidder fails to meet the terms of the Asker's listing.
If a Bidder's offer is accepted by the Asker, the Bidder is obligated to complete the transaction with the Asker, unless the asked goods, services, information, or any item is prohibited by Law or by this Agreement. By Bidding on an item, and accepting an Ask, a Bidder agrees to be bound by the conditions of trade included in the item's description so long as those conditions are not in violation of this Agreement or unlawful.
Asker authorizes Wishcan to treat any person using Asker's password pair (username and password), and any resulting transactions, obligations and liabilities as if Asker used the website and/or services itself.
Asker is responsible for ensuring that the owner of the information has given all necessary permission to make the information available to other parties, whether to the general public or to specific groups or individuals. This permission must be royalty-free and grant the person(s) who see the information the non-exclusive right-to-use, transmit, modify, or display it as may be required to respond to an Ask and in order for Wishcan to review the Ask and post the information for access by Bidders.
Asker agrees not to post requests for illegal products, services, and/or information, 'free' work or work whose only compensation is profit sharing, or requests that are deemed by Wishcan to be offensive or inappropriate. Doing any of the above can result in immediate account termination and expulsion, at the discretion of Wishcan. Offensive or inappropriate matters currently include adult material and/or services.
Asker assumes sole and complete responsibility for adequate testing to determine for themselves whether or not the deliverables are 100% satisfactory to the specification or not. Asker agrees to never accept any work before deliverables have been 100% tested and they are 100% satisfied. If against the wishes of Wishcan, Asker accepts work without the above two items being true, Asker agrees that the acceptance and payment is classified as being "risky", and can result in a loss of funds for the Asker. Wishcan cannot discourage this sort of high-risk activity enough.
Bidder will provide goods, services, information, and/or quotations via Wishcan in response to Asks posted on Wishcan's website by Askers. This Agreement shall govern the business relationship between Wishcan and Bidder despite any different or conflicting terms and conditions in Bidder's forms or other documents.
Bidder authorizes Wishcan to treat any person using Bidder's password pair (username and password), and any resulting transactions, obligations and liabilities as if Bidder used the website and/or services itself.
All information provided by Bidder shall be true, accurate and up-to-date at all times. This includes, but is not limited to, information within a response to Ask documents, information concerning intellectual property ownership and rights thereto. Bidder and Asker will document on the site as to the extent and nature of any intellectual property rights which will be transferred to the Asker upon completion and payment of the Ask. Bidder is solely responsible for protecting its intellectual property rights, including works made for hire, and for negotiating all rights, title and interests therein with Askers.
Bidder agrees to post bids for the entire project. As this site is intended for commercial purposes only. Offering free services, or redirecting an Asker to a site other than Wishcan to fulfill their needs is prohibited.
Status Reports. To keep the Asker appraised of progress on longer term projects, the Bidder may be responsible for filing a weekly status report via the Wishcan site, on every Friday while work is being done. It is up to the Asker to stipulate in the original Ask the requirements for weekly report.
Deliverables. To avoid an Asker dispute over delivery, Bidder agrees to transfer the entire and complete deliverable to the Asker at the time of work completion (or each milestone's completion).
Delivery Deadlines. The Asker may set a deadline for delivery of the deliverables in some portion of the original request. By bidding, the Bidder agrees to this due date. The Bidder agrees to deliver 100% of agreed upon deliverables to the site on or before the delivery deadline. The due date is calculated as the number of days (24 hour periods) from the time work begins. Work is defined as having "begun" after all funds are completed escrowed and the Bidder(s) chosen as winners have agreed to the terms of Trade stipulated by the Asker.
Asker and Bidder may also use the bidding/comment feature of the site to negotiate a delivery deadline. If so, then the deadline must be mutually agreed upon by both Asker and Bidder. Both parties are highly advised to be clear and explicit when setting a deadline in this manner. After a new deadline is decided, the Asker should indicate the new deadline formally by extending the Settlement time. If there is a dispute over anything regarding the deadline, Wishcan (at it's sole discretion) will be the final determiner of any disputed meaning (per Wishcan's rules of arbitration).
Extending Deadlines. Managing the deadline is the Bidder's responsibility. If the Bidder cannot deliver 100% of agreed upon deliverables by the deadline but feels that the Asker may be lenient and allow the deadline to be extended, then it is the Bidder's responsibility to inform the Asker as soon as possible, negotiate the change and receive the Asker's acceptance on-site in the private message board hosted. If the Bidder is unable or unsuccessful in doing so, then the original deadline stands.
4.5. Acceptance of Deliverables
After an Ask is completed, the deliverables will be sent from the Bidder(s) to the Asker, through a pre-arranged method agreed upon by both parties.
If the deliverables are 100% satisfactory to the Asker's specification, then Asker would indicate acceptance of the deliverables via the web site. Upon this indication, Wishcan will release the pre-specified amount of fund from the Asker to the chosen Bidder(s).
Asker would assume responsibility for adequate testing to determine for themselves whether or not the deliverables are 100% satisfactory to the specification or not. The Bidder(s) will not be credited until work is fully accepted by the Asker. However, if acceptance is not indicated by the Asker within the Settlement time specified by the Asker, it would be taken as that the Asker has received the deliverables from the Bidder and has accepted the deliverables. Thus, the fund would be automatically released by Wishcan to the chosen Bidders, at the expiration of the Settlement time. Therefore, Asker agrees to do all testing and inspection in the specified Settlement time. If the Settlement time is insufficient, the Asker should extend it on Wishcan. Should the Asker not be 100% satisfied, then Asker agrees to not accept the work and instead notify the Bidder as well as Wishcan of the problem during the Settlement time so that it can be resolved. Disputes could be filed by either Bidder(s) or Asker. Upon receiving the indication of a dispute, the escrowed fund would be frozen by Wishcan until the resolution of the dispute.
Should there be any dispute by either Asker and Bidder regarding acceptance, both Bidder and Asker agree to abide by the Wishcan rules of mediation or arbitration.
During work acceptance is it occasionally possible for an Asker to accidentally accept a different amount of work than they intended to (i.e. making a typo, etc.). If Wishcan (in its sole discretion) determines that enough proof exists to demonstrate that this occurred, then Asker and Bidder agree that Wishcan may correct it to reflect the original intention.
Wishcan encourages Bidders to obtain receipt for all goods, services, or information delivered, should the unfortunate event of a dispute occur.
4.6. Copyright Negotiations.
Asker and Bidder may agree to the transfer of intellectual property rights by negotiating and/or documenting the terms in the original Ask on the site. Both parties agree to bind themselves to such an agreement and the local and international laws that may apply. Both parties also acknowledge that the agreement is exclusively between themselves and the other party and does not involve Wishcan. While Wishcan reserves the right to take action against a party that breeches a any Wishcan terms, both parties fully indemnify Wishcan of all responsibility and repercussions of a breech by the opposite party.
Bidder warrants and represents that all work produced for the Asker (including but not limited to text, code, algorithms, ideas and/or any other item used to create their deliverables to the Asker) are original works of authorship created by Bidder and that the works do not violate any rights, including but not limited to copyright rights, of any non-consenting third party. Bidder agrees to properly declare, explain and receive acceptance from the Asker via the site, of any "Third Party Material" per the following section.
4.7. Third Party Material.
If the Bidder wishes to use third party items (including but not limited to third party components, open-sourced code, etc.), then the Bidder agrees to first confer with the Asker and:
Explain which items in the Ask the Bidder wishes to use third party items for, and which third party items would be involved. This must be documented on the site via the site bidding system.
Explain to the Asker the cost, copyright, distribution and licensing issues concerned with the use of such items. (For example, many Askers do not want open-source codes in their deliverables once they understand the licensing issues involved...so it needs to be explained to them what they would be receiving). If the Bidder is unclear on any of the above issues, they can optional post the official documentation regarding the issue(s) in question directly from the official documentation or source. This allows the Asker to make their own determination. Either way, this explanation must be documented on the site via the site bidding system.
Have the Asker confirm agreement, to the use of any third party items which the two parties agree to. This must be documented on the site via the site bidding system.
Should arbitration occur and the Bidder not follow these rules, Wishcan may immediately arbitrate in favor of the Asker, as well as consider punitive actions against the Bidder.
4.8. Copyright forfeit.
Should Asker's method of payment later be found to be invalid (i.e. including but not limited to the use of a fraudulent or invalid credit card, Paypal account, or bounced check), the Asker will forfeit all copyrights to completed work and will immediately turn over all work in their possession. Copyright will return to the Bidder, unless Wishcan (at it's sole and exclusive option) chooses to pay the Bidder the outstanding amount defaulted on by the Asker íV in which case copyright will pass to Wishcan. Wishcan warns Askers that it intends to prosecute all fraudulent purchases to the fullest extent of the law.
4.9. Non-Disclosure Agreement (NDA).
The Asker may require consent to a non-disclosure agreement before allowing the Bidder to see information related to bidding, and or to the final work. Bidder agrees to the terms of such agreement if they are specified in the Ask as posted on the site, are posted to the Bidder via the site bidding system, or are otherwise communicated from the Asker to the Bidder via the site. If Bidder does not wish to abide by the terms of the agreement, then Bidder agrees not to post a bid on such work.
Wishcan does not enforce Asker Side Agreements and/or NDAs. Some Askers and Bidders may enter into additional agreements not covered by the site escrowing agreement, including "special agreements" (ex: "Bidder must deliver by x/xx/200x or they will owe Asker $1 for every day late"), or a Non Disclosure Agreement (NDA). Both Asker and Bidder understand and acknowledge that these agreements are made directly between the Asker and the Bidder and do not involve Wishcan, Wishcan or any of its subsidiaries or other legal entities. As such, Wishcan and Wishcan are not and will not be liable in any way whatsoever regarding such agreements, including enforcing such agreements.
Without limiting any other remedies available to Wishcan at law, in equity or under this Agreement, Wishcan may, in its sole discretion, suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise in our sole discretion) have engaged in fraudulent activity in connection with our Site.
4.11. Illegal Requests.
Despite Wishcan's best efforts to prohibit Asks that violate either Wishcan policy or international law, it cannot prevent all such Asks from being posted, as no system is perfect. Should an Asker, against the wishes of Wishcan, post such an Ask, choose a Bidder and escrow funds, then Asker agrees that Wishcan may cancel the project at any time. Asker also agrees that they forfeit rights to some or all of the funds (as detailed below) as well as forfeit all rights to any deliverables. Additionally, Asker will be ejected from the site under the terms of 'fraud' and may be reported by Wishcan to the proper authorities.
Neither you, nor any other Bidder or Asker may manipulate the price of any item, nor may you interfere with other Asker's Ask or Bidder's Bid.
4.13. Circumvention of Wishcan's Fee Structure
You agree not to engage in any action or activities meant to circumvent our site or our stated fees. Prohibited systems or techniques include (but are not limited to) the following:
- Services offered directly to the Asker and not through Wishcan;
- Any agreement between Asker and Bidder to mislead or defraud Wishcan by conducting a transaction at different cost than the price agreed upon through Wishcan;
- Failing to report changed bid amounts or final project prices through the Wishcan accounting system;
- Placing low value or place-holder bids, with unreasonably high final project charges;
- Advertising, spamming or offering services to buyer outside of Wishcan without receiving request for contact from buyer.
- Suggesting/ soliciting buyer contact you directly to buy services outside of Wishcan;
- Any agreement (whether stated or implied) between Asker and Bidder to conduct future transaction outside of Wishcan. Askers and Bidders who make initial contact through Wishcan are required to conduct any resulting follow-up or new transactions through Wishcan for at least twelve (12) months from the date that the first project is awarded by the Asker to the Bidder. This includes posting of the project on Wishcan as well as invoicing the service-related fees through Wishcan.
5. Your Information.
"Your Information" is defined as any information you provide to us or other Users in the registration, Bidding or Asking process, in any public message area or through any email feature. Your Information includes the descriptions of items you Ask for, Bid for, or display on our Site as well as any content you post on other web pages within our Site. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
Your Information (including but not limited to any items listed) must not:
- be false, inaccurate or misleading;
- be fraudulent or involve the sale of counterfeit or stolen items;
- infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, criminal law, anti-discrimination or trade practices/fair trading laws);
- be defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
- be obscene or contain child pornography or, if otherwise adult in nature or harmful to persons under the age of 18 years, shall be distributed only to people legally permitted to receive such content.
- contain any content that may be considered to be prohibited or potentially prohibited content for the purposes of the any appropriate laws;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information;
- create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and
- link directly or indirectly to or include descriptions of goods or services that:
- are prohibited under this Agreement;
- are concurrently Asked on a web site other than Wishcan's (this does not prevent linking to or advertising an Wishcan item from another web site); or
- you do not have a right to link to or include.
- Furthermore, you may not list any item on our Site (or complete any transaction that was initiated using our service) that, by paying to us any fee, could cause us to violate any applicable law, statute, ordinance or regulation, or that violates laws in your local district, region, or country.
6. Access and Interference.
You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of our Site or any transaction being conducted through our Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our Site is updated on a real time basis and is proprietary or is licensed to Wishcan by our Users or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our Site without the prior express written permission of Wishcan or the appropriate third party authorised to grant such permission.
As a User, you will be able to post public feedback about Users with whom you have transacted. You also agree to receive public feedback from Users with whom you have transacted. You acknowledge that your feedback may consist of comments and ratings (Marks) left by other Users and that Wishcan may calculate a composite feedback number based on these individual ratings. The rating may be based on several criteria as determined by Wishcan. Wishcan provides its feedback and rating system as a means through which Users can express their opinions publicly, and Wishcan does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability. Please note that you may be held legally responsible for damages suffered by other Wishcan Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. Wishcan is not legally responsible for any feedback or comments posted or made available on its site by any User or third parties, even if that information is defamatory or otherwise legally actionable.
You may not take any actions that may undermine the integrity of the feedback system.
You acknowledge that your feedback consists of comments left by other Users and a composite feedback number compiled by Wishcan, and that the composite number without the comments does not convey your full User profile. Because feedback ratings are not designed for any purpose other than for facilitating trading between Wishcan Users, you agree that you shall not market or export your Wishcan feedback rating in any venue other than an Wishcan operated website.
We do not provide the technical ability to allow you to import feedback from other websites to Wishcan because a composite number, without the corresponding feedback does not reflect your true online reputation within our community.
Without limiting other remedies available to Wishcan at law, in equity or under this Agreement, we may, in our sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if:
- we are unable to verify or authenticate any information you provide to us; or
- we believe that your actions may cause damages or legal liability for you, our Users or us.
10. No Warranty.
10.1. No Warranty
WE AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Furthermore we do not guarantee continuous, uninterrupted or secure access to our services, and operation of our Site may be interfered with by numerous factors outside our control.
10.2. Disclaimer 1
We are making the Website available for others to publish information without assuming a duty of care to Users. We are not in the business of providing professional advice and gives no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on the Website and/or linked sites on the World Wide Web.
To the full extent permitted by law the we disclaim any and all warranties, express or implied, regarding:
(a) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Site and/or of any linked sites; and
(b) merchantability or fitness for any particular purpose for any service or product contained or referred to on the Site and/or on any linked sites.
We will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of you:
(a) acting, or failing to act, on any information contained on or referred to on the Site and/or any of the linked sites; and
(b) using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website and/or any linked sites.
We do not warrant guarantee or make any representation that:
(a) the Site, or the server that makes the site available on the World Wide Web are free of software viruses;
(b) the functions contained in any software contained on the Site will operate uninterrupted or are error-free; and
(c) errors and defects in the Site will be corrected.
We are not liable to you for:
(a) errors or omissions in the Site, or linked sites on the World Wide Web;
(b) delays to, interruptions of or cessation of the services provided in the Site, or linked sites; and
(c) defamatory, offensive or illegal conduct of any user of the Site, whether caused through our negligence, our employees or independent contractors, or through any other cause.
You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Website.
11. Limitation of Liability.
11.1. Liability Limit.
IN NO EVENT SHALL WE, OUR AFFILIATES AND RELATED ENTITIES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). YOU AGREE TO ACCEPT SOLE RESPONSIBILITY FOR THE LEGALITY OF YOUR ACTIONS UNDER THE LAWS WHICH APPLY TO YOU. YOU AGREE THAT Wishcan AND ALL AFFILIATES AND RELATED ENTITIES OF Wishcan HAVE NO RESPONSIBILITY FOR THE LEGALITY OF OUR MEMBERS' ACTIONS.
To the extent that Wishcan and all affiliates and related entities of Wishcan are able to limit the remedies available under this Agreement, and subject to the "Liability Limit" clause of this Agreement, Wishcan and all affiliates and related entities of Wishcan expressly limit their liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Wishcan's sole discretion):
In the case of goods, any one or more of the following:
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 cost of having the goods repaired; and
In the case of services:
i. the supply of the services again; or
ii. the payment of the cost of having the services supplied again.
To the extent permitted by law, our liability, and the liability of our suppliers, to you or any third parties in any circumstance is limited to the greater of:
i. the amount of fees you pay to us in the 12 months prior to the action giving rise to liability; and
Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of Wishcan and its affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors' fees, made by any third party due to or arising out of your breach of this Agreement or the terms and policies it incorporates by reference, or your violation of any law or the rights of a third party.
13. Legal Compliance.
14. No Agency.
You and Wishcan are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notices shall be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail) to Wishcan [ADDRESS] (in the case of Wishcan) or to the email address you provide to Wishcan during the registration process (in your case). Alternatively, we may give you notice by certified airmail, postage prepaid and return receipt requested, to the address provided to Wishcan during the registration process, or as updated by you as relevant. Any notice shall be deemed given (a) if sent by email, 24 hours after email is sent, unless the sending party is notified that the email address is invalid, (b) if sent by pre-paid post, three Business Days after the date of posting, and on the seventh Business Day if sent to or posted from outside Australia. For purposes of this section, "Business Day" means a day on which banks are open for general business in Sydney, New South Wales, other than a Saturday, Sunday or public holiday.
Any controversy or claim arising out of or in connection with this Agreement may at our discretion be settled by binding arbitration by reference to a commercial disputes centre. You agree to be bound by the ruling arbitrator. The costs of the dispute are borne by the originator. Please refer to our internal Arbitration Policy available on the Site.
17. Additional Terms.
The following documents are incorporated into this User Agreement by reference, and you agree to be bound by the terms and policies outlined in these documents. Any changes to the policies set out below will be notified on our Announcements page.
17.2. Payment and Billing Policy
Our Payment and Billing Policy is available on the Site. We may change our Payment and Billing Policy from time to time and our changes are effective after we provide you with at least thirty (30) days' notice of the changes by posting the changes on the Announcements page and sending email to Users who select such notification.
17.3. Refund Policy
Our Refund Policy is available on the Site. We may change our Refund Policy from time to time and our changes are effective after we provide you with at least thirty (30) days' notice of the changes by posting the changes on the Announcements page and sending email to Users who select such notification.
17.4. Our Outage Policy is as follows:
Our highest priority is your trading success. However, Wishcan occasionally experiences outages during which bidders cannot place bids or effectively locate items via our search function. When these outages occur, Wishcan will extend the end times for all affected listings by 24 hours without any additional charge. No other compensation will be provided.
18. Scheduled downtime
Wishcan periodically schedules system downtime for maintenance and other purposes. This scheduled downtime is not covered by this policy. Listings that end during, or are otherwise affected by, scheduled downtime will not be extended nor will credits be issued, even though bidders are not able to place bids at the close of the listing.
This Agreement shall be governed in all respects by the laws of the State of New South Wales, Australia. All members of this Site irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia. The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Wishcan, in our sole discretion, to a third party in the event of a merger or acquisition. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that this Agreement may not be construed adversely against us solely because we prepared it. This Agreement and the terms and conditions incorporated herein set forth the entire understanding and agreement between us with respect to the subject matter hereof. Clause "Fees and Services" with respect to fees owed for our services, Clause "Release", Clause "License", Clause "Access and Interference", Clause "Liability Limit", Clause "Indemnity" and Clause "Arbitration" shall survive any termination or expiration of this Agreement.
The services hereunder are offered by Wishcan. Fees for our services are described on the Site.
Commercially available parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to persons under the age of 18 years. If you are interested in learning more about these protections, information is available at http://www.worldvillage.com/wv/school/html/control.htm or other analogous sites providing information on such protections. The preceding link is provided for information purposes only, and is not intended as an endorsement of WorldVillage.com's Internet site, services, or policies. Wishcan is not affiliated with WorldVillage.com. Disputes between you and Wishcan regarding our services may be reported to Wishcan through the appropriate contact pages on the Site. We encourage you to try and resolve disputes with other Users directly with them, and to use a certified mediation or arbitration entity or report disputes to your local police or law enforcement agency as appropriate.