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Effective as of July 10, 2017
Welcome to MusicEtrade.com, the service for buying/selling anything music related, operated by Creative Online Auctions, trading as MusicEtrade, herein referred to as (the “Company” or “MusicEtrade.com”).
b. By accessing the Website, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein and consent to have this Agreement and all notices provided to you in electronic form. Please print a copy of this Agreement for your records. This Agreement may be modified by the Company from time to time, such modifications to be effective upon posting by the Company on the Website.
c. By using the Website, you consent to receive this Agreement in electronic form. To withdraw this consent, you must cease using the Website and terminate your account.
You must be at least 18 years of age to access to use the Website. Any use of the Website is void where prohibited. By accessing and using the Website, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. Using the website may be prohibited or restricted in certain countries. If you use the Website from outside of the United States or Australia, you are responsible for complying with the laws and regulations of the territory from which you access or use the Website.
3. Your Member Account.
You may register an Account at no cost. As a registered user, you may buy or sell any musical instrument, music related item or memorabilia item on the website.
4. Term and Termination.
a. This Agreement will remain in full force and effect while you have an account in good standing.
b. You may delete your account at any time, for any reason, by following the link at the bottom of the “My Account” page. If you delete your account, you are still responsible for any transactions that occurred during the time your account was active.
c. The Company may terminate or suspend your MusicEtrade.com account at any time without notice if the Company believes that you have breached this Agreement. Reasons for termination of account may include: (i) failure to pay for agreed upon purchases, (ii) failure to ship or complete transactions, (iii) failure to work with buyer/seller to reach agreements on disputes, (iv) failure to deliver merchandise as described, (i.e. damaged or unusable, etc.). The Company is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
d. After your membership or subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
5. Non-Website related Use by Members.
The Website and Service is for personal and company use only. Members may not use the Service in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services not listed on the Website or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the Website may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses are allowed to have an account on the Website for the purpose of buying/selling musical instruments and/or memorabilia, etc. The Company may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Website, including collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Website.
6. Account Security.
You are responsible for maintaining the confidentiality of the username and password you designate during the registration process, and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify the Company of any disclosure or unauthorized use of your username or password or any other breach of security, and ensure that you log out from your account at the end of each session.
7. Your Interactions with Other Registered Account Holders.
a. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT THE COMPANY ONLY FACILITATES THE INITIAL INTERACTION OF USERS REGARDING THE SELLING OR BUYING OF AN ITEM LISTED ON THE WEBSITE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, USABILITY OR VALIDITY OF ANY LISTED ITEM. THE COMPANY RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT IF THE USER IS REPORTED TO BE UNRELIABLE, OR FOR ANY CONDITION LISTED ABOVE IN 4c, OR FOR ANY OTHER REASON DEEMED APPROPRIATE BY THE COMPANY.
b. The Company is not responsible for the conduct of any Account Holder. As noted in and without limiting Sections 16 and 18 below, in no event shall the Company, its affiliates or its partners be liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Website or Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other users you choose to meet as a result of using the website. You agree to take all necessary precautions in all interactions with other Members, particularly if you decide to communicate off the Website or meet in person. In addition, you agree to review and follow the Company’s Seller and Buyer’s Guides, located on the Website, prior to using the Service. You should never provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money to other Members, outside of the Website.
8. Proprietary Rights.
The Company owns and retains all proprietary rights in the Website and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. The Website contains the copyrighted material, trademarks, and other proprietary information of the Company and its licensors, if any. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Website or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
9. Listings Posted by You on the Website.
a. This website is only for the sale of musical instruments, or anything related to music. You are solely responsible for the content and information on any items that you list, post or display, or otherwise make available (hereinafter, “post”) on the website or transmit to other Members, including emails, videos (including streaming videos), photographs, voice notes, recordings or profile text, whether publicly posted or privately transmitted (collectively, “Content”). You may not use on the Website or as part of the Service, or transmit to the Company or any other Member (either on or off the Website), any offensive, inaccurate, abusive, obscene, profane, sexually oriented, threatening, intimidating, harassing, racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity). You represent and warrant that all information that you submit upon registration is accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
b. You understand and agree that the Company may, but is not obligated to, monitor or review any Content you post on the Website or as part of a Service. The Company may delete any Content, in whole or in part, that in the sole judgment of the Company violates this Agreement or may harm the reputation of the Website or the Company.
c. By posting a listing on the Website you represent and warrant that you are the legal owner of the item listed and that your listing on the Company website will not infringe or violate the rights of any third party.
d. In addition to the types of Content described in Section 9(a) above, the following is a partial list of the kind of Content that is prohibited on the Website. You may not post, upload, display or otherwise make available Content that:
- that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
advocates harassment or intimidation of another person;
requests money from, or is intended to otherwise defraud, other users of the Website or Service;
- involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming” (or “spamming”, “phishing”, “trolling” or similar activities);
- promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated music or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
- contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
- impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
solicits passwords or personal identifying information for commercial or unlawful purposes from other
users or disseminates another person’s personal information without his or her permission; and
- publicizes or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
The Company reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates this provision, including removing the offending content from the Website and terminating or suspending the account of such violators.
e. Your use of the Website and Service, including all Content for listings you post through the Service, must comply with all applicable laws and regulations. You agree that the Company may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any listing violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Website in the future; or (v) protect the rights, property or personal safety of the Company or any other person.
f. You may not post any telephone numbers, street addresses, last names, URLs or email addresses in areas of your listing that may be viewed by other Members. You agree that any listing content you place on the Website to be viewed by other account holders may be viewed by any person visiting the Website or participating in the Service.
10. Prohibited Activities.
The Company reserves the right to investigate and/or terminate your membership if you have misused the Service or behaved in a way the Company regards as inappropriate or unlawful, including actions or communications the occur off the Website but involve Members you meet through the Service. The following is a partial list of the type of actions that you may not engage in with respect to the Service. You will not:
- impersonate any person or entity.
- solicit money from any Members.
- post any Content that is prohibited by Section 9.
- “stalk” or otherwise harass any person.
- express or imply that any statements you make are endorsed by the Company without our specific prior written consent.
- ask or use Members to conceal the identity, source, or destination of any illegally gained money or products.
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Website, Service or its contents.
- collect usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Website.
interfere with or disrupt the Service or the Website or the servers or networks connected to the Service or the
- email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Website or Service (either directly or indirectly through use of third party software).
“frame” or “mirror” any part of the Service or the Website, without the Company’s prior written authorization.
use meta tags or code or other devices containing any reference to the Company, the Website or the Service (or any trademark, trade name, service mark, logo or slogan of the Company) to direct any person to any other website for any purpose.
- modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or the Website or any software used on or for the Service or the Website, or cause others to do so.
- post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Website or the Service other than solely in connection with your use of the Service in accordance with this Agreement.
11. Customer Service.
The Company provides assistance and guidance through its customer care representatives. When communicating with our customer care representatives (whether over the telephone, or via email or letter), you agree to not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or to not otherwise behave inappropriately. Telephone calls or internet chat between you and our customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your account.
12. Listing Fees
When a seller purchases an item that you list on the Website, they will make a payment through PayPal. Upon receipt of their payment, you will receive an account notification. At that time, you are required to ship the item. The PayPal payment will be retained until the item is delivered successfully and can be confirmed through a tracking number that you will provide or by receiving confirmation of receipt by the buyer. Upon delivery, the Company will deduct a Two Percent (2%) Listing fee from the PayPal Payment, and then release the balance to your PayPal Account.
In the event that an item is returned, the Company retains the Two Percent (2%) fee,
The terms of your payment will be based on your PayPal account funding method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen funding method. If you initiate a chargeback or otherwise reverse a payment made with your funding method, the Company may in its discretion terminate your account immediately. If the Company successfully disputes the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your account reinstated.
- You must provide current, complete and accurate information for your Account Profile and your PayPal Account. You must promptly update all information to keep your Account with MusicEtrade.com and PayPal current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notifyPayPal if your Payment Method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). Changes to such information can be made at “My Account” settings on the Website.
13. Modifications to Service.
The Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Website or the Service (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. To protect the integrity of the Website or the Service, the Company reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Website or Service.
14. Copyright Policy; Notice and Procedure for Making Claims of Copyright Infringement.
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Website (and such description must be reasonably sufficient to enable the Company to find the alleged infringing material, such as a url);
your address, telephone number and email address;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Notice of claims of copyright infringement should be provided to the Company’s Copyright Agent
at [email protected] or the following address: P.O Box 318, Coburg 3040 Victoria, Australia
The Company will terminate the accounts of any infringers.
15. Communications and Test Profiles.
You acknowledge and agree that neither the Company nor its affiliates and third party partners are responsible for and shall not have any liability, directly or indirectly, for any loss or damage, including personal in jury or death, as a result of or alleged to be the result of (i) any incorrect or inaccurate listing on the Website or provided in connection with the Service, whether caused by account holders or any of the equipment or programming associated with or utilized in the Website or Service; (ii) the timeliness, deletion or removal, incorrect delivery or failure to store any Content, communications or personalization settings; (iii) the conduct, whether online or offline, of any account holder; (iv) any error, omission or defect in, interruption, deletion, alteration, delay in operation or transmission, theft or destruction of, or unauthorized access to, any user communications; or (v) any problems, failure or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to account holders or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Internet and/or in connection with the Service. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY PROVIDES THE WEBSITE AND THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OR THE WEBSITE (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, SECURE OR THAT ANY DEFECTS OR ERRORS ON THE WEBSITE OR IN THE SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OR CORRUPTION OF DATA THAT RESULTS OR MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL. IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO DOWNLOAD OR OBTAIN.
The Website may contain, and the Service or third parties may provide, advertisements and promotions offered by third parties and links to other web sites or resources. You acknowledge and agree that the Company is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such websites or resources. Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Website or Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials available on or through any such website or resource.
18. Limitation on Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $1.00 USD AS THIS IS A FREE SERVICE AND THE ONLY FEES COLLECTED ARE UPON THE SUCCESSFUL SALE OF A LISTED ITEM. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE WEBSITE OR SERVICE OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
19. Arbitration and Governing Law.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Service, or the Website shall be BINDING ARBITRATION administered according to the ACICA (Australian Centre for International Commercial Arbitration) Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English The number of arbitrators shall be one.
By using the Website or the Service in any manner, you agree to the above arbitration agreement.
In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the
arbitrability of the dispute. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court.
a. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company may be commenced only in the Department of Justice and Regulation in Victoria, Australia. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
b. This Agreement, and any dispute between you and the Company, shall be governed by the laws of Victoria, Australia, without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the ACICA.
20. Indemnity by You.
You agree to indemnify and hold the Company, its subsidiaries, and affiliates, and its and their officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your breach of or failure to comply with this Agreement (including any breach of your representations and warranties contained herein), any postings or Content you post on the Website or as a result of the Service, and the violation of any law or regulation by you. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in connection therewith.
The Company may provide you with notices, including those regarding changes to this Agreement, using any reasonable means now known or hereafter developed, including by email, SMS, MMS, text message or postings on the Website. Such notices may not be received if you violate this Agreement by accessing the Service in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Service in an authorized manner.
22. Entire Agreement; Other.
This Agreement is subject to change by the Company at any time. If you are not a current account holder at the time of any change, the revised terms will be effective upon posting on the Website and your use of the Service after such posting will constitute acceptance by you of the revised Agreement. If you are a current account holder at the time of any change, the then-existing Agreement will continue to govern your account Alternatively, if you delete your account at such time, your use of the Service after your termination will constitute acceptance by you of the Agreement.