Terms & Conditions
Luxify.com and its related sites, services, applications, and tools (each and collectively, the “Site”) are owned and operated by Luxify Pty Ltd (“Luxify,” “Us” or “We”). These terms and conditions (“Terms”) govern your (“Buyer”) use of the Site and your conduct on the Site.
We may modify these Terms from time to time without notice to you. The provisions contained herein supersede all prior notices or statements regarding our Terms with respect to this Site. We encourage you to check the Site frequently to see the current Terms in effect and any changes that may have been made. By using the Site following any modifications to the Terms you agree to be bound by the modifications.
Any inquiries concerning these Terms should be directed to us at the address below.
2. Consent to Processing; International Use
We control and operate the Site from our offices in New South Wales, Australia, and all information is processed within the state of New South Wales, Australia or at the location of our service providers. We do not represent that materials on the Site are appropriate or available for use in locations outside the state of New South Wales, Australia. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Buyers agree to comply with all applicable laws, rules and regulations in connection with their use of the Site. The Site may be used only for lawful purposes and in a lawful manner. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of data exported from the state of New South Wales, Australia or the country in which you reside as well as the restrictions on import or export of Items from the Seller’s country to your country.
3. Operation of the Site and the Role of Luxify
The Site provides an online marketplace for appropriately qualified sellers (“Seller”) to offer to sell goods (“Items”) to Buyers. The sale is directly between the Buyer and the Seller.
The role of Luxify is expressly limited to making the Site available and maintaining the Site. Luxify is an intermediary and not an agent or fiduciary for either the Buyer or the Seller for any purpose. Luxify is not responsible for the actual sale of Items and does not control the information provided by Sellers or Buyers nor their acts or omissions. Luxify is independent from the Buyer and Seller and no partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the operation of this Site by Luxify.
The provisions of the Commercial Agents Directive (86/653/EC) as implemented in any European jurisdiction (for example, in the UK via the Commercial Agents Regulations 1993) are expressly excluded from these Terms and our agreement. By using the Site, Buyers select and purchase goods marketed by Sellers, solely of their own initiative, placing orders via the Site. You acknowledge that Luxify.com has no control over the ultimate price Items are sold at or any sales terms ultimately entered into between you and a Seller.
We are not responsible for the delivery of or transfer of legal ownership of Items from a Seller to you. We are not responsible for the delivery of payment from you to the Seller unless we explicitly agree to be. We have sole control over the look, feel, content, operations and evolution of the Site, and may modify the Site and any content in our sole discretion.
Luxify may, but is not obligated to, provide intermediary services between the Buyer and Seller in connection with customer service or dispute resolution matters. In the event Luxify elects in its sole discretion to provide intermediary services, then the decision of Luxify is final and binding on all parties and cannot be appealed, challenged or reversed.
4. Relationship of the Parties
The Seller is responsible for accurately describing the Items it is offering to sell and for delivering the Items to the Buyer in accordance with the arrangements made between Buyer and Seller, including transfer of title and payment of sales tax or VAT or import/export duty to the appropriate authority.
The Buyer is responsible for determining the value, condition and authenticity of the Items being purchased, to pay the purchase price to the Seller including any sales tax, VAT or import/export duties, and to arrange for shipping of the Items purchased.
The agreements between the Buyer and the Seller shall not be governed by the U. N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
5. Eligibility to Use the Site
You must be 18 years of age or older to use this Site. This Site is not directed at children under the age of 13 and does not knowingly collect information from such children. The Site is designed for persons with experience with, and who are accustomed to, buying Items based on photographs and the Buyer represents having such experience.
6. Site Use Termination
Luxify expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Site by any person or entity, at the sole discretion of Luxify, for any reason or no reason at all, and without prior notice.
7. Registration and Account Access
Registration may be required in order to use the Site.
Registrants are required to provide certain information and to select a password to be used to create and access their accounts. This password and other registration details should be kept safe and not shared with anyone. Registrants may voluntarily provide additional information in the registration process to personalize their accounts. Registrants may access their accounts to view their profile information as well as transaction information by clicking the icon on the home page of the Site after logging in.
Buyers may cancel their registration and account at any time. For your security, requests to terminate accounts MUST originate from the registered email account at Luxify addressed to support@Luxify.com. Under no circumstances will a cancellation request received via the phone or otherwise be accepted.8. Item description, pricing and availability; Site unavailability
Sellers are responsible for the accuracy in describing and pricing the Items on the Site. Luxify relies on the Sellers for such information and is not responsible in any way for the description or pricing of Items on the Site provided by the Seller.
However, due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause unintended inaccuracies to appear on the Site. Luxify has the right to correct inaccuracies or mistakes that come to its attention and to void any purchases of Items that display an inaccurate price or description.
You acknowledge that temporary interruptions in the availability of the Site may occur from time to time as normal events.
Also, we may decide to cease making available the Site or any portion of the Site at any time and for any reason. Under no circumstances will Luxify or the Sellers be held liable for any damages due to such interruptions or lack of availability.
Because some of the Items displayed on the Site are unique and are offered by Sellers that usually have retail opportunities for the sale of the Item independent from Luxify, all Items displayed on the Site are offered for sale strictly subject to availability.
The Buyer is aware that unless otherwise stated, the Items are not new nor in perfect condition and may require touch-up or repairs prior to use and that the available information about these Items may be limited. The Site is designed to provide the Buyer access to Items as the Sellers present them. Accordingly, Luxify does not verify any information provided by the Seller (or its representative selling an Item) and Luxify makes no representations or warranties with respect to the Seller, the Item or the information related to the Item.
9. The Sale Process
Purchases through Site and by telephone. When a Buyer identifies an Item for purchase, the Buyer may make an offer to purchase the Item directly through the Site’s checkout page or by contacting Luxify through any method listed on the Site. At that time the Buyer shall submit valid payment information to Luxify for payment of the Total Purchase Price. The “Total Purchase Price” is the price agreed to on the Site between Buyer and Seller and includes (i) the agreed price of the Item (the “Purchase Price”); (ii) if applicable, shipping fees; and (iii) sales tax, use tax, VAT, Internet sales tax and/or any other taxes or levies that the Seller is required to collect from the Buyer under applicable law at the time of sale. By making an offer to purchase, the Buyer irrevocably agrees to pay the Total Purchase Price and the Seller agrees to sell the Item for the Total Purchase Price once a Sale Confirmation is issued to the Buyer. Once made, an offer may not be canceled or revoked by the Buyer unless the offer was made at a time when the Total Purchase Price was yet to be confirmed e.g. because the shipping fees were unknown at the time of placing an offer (and subject to any statutory rights a Buyer may have).
Negotiable Prices; Counter-offers by Seller. If the Seller posting an Item has indicated that the price is negotiable, the Buyer may make an offer through the Luxify Site to the Seller to purchase the Item at a price selected by the Buyer or opt to contact the Seller directly using a telephone number (operated by Luxify) displayed on the Site. Such calls may be recorded by Luxify to log transactions and for training and quality assurance purposes. If a Seller or Buyer does not agree to this when notified of this fact at the beginning of a call, the call should be terminated.
Once made, an offer may not be canceled or revoked by the Buyer unless the offer was made at a time when the Total Purchase Price was yet to be confirmed e.g. because the shipping fees were unknown at the time of placing an offer (and subject to any statutory rights a Buyer may have). The Buyer or the Seller or Luxify may place a time limit on the effectiveness of the offer and each acknowledges that the offer will lapse at the end of the offer period. By making an offer, the Buyer irrevocably agrees to pay the Total Purchase Price if his/her offer is accepted by the Seller. The Seller may decline or accept the Buyer’s offer or make a counter-offer to the Buyer. By making a counter-offer, the Seller, unless otherwise noted in the counter-offer, agrees to sell the Item to the Buyer at the counter-offered price and represents that the Item is available for immediate sale as long as the Buyer agrees to the counter-offer within 24hrs or such time set by the Seller. If the Buyer agrees to pay the counter-offered price Buyer shall acknowledge that acceptance by confirming the purchase on the Buyer’s “offer status section” page of Buyer’s Luxify account or by confirming this over the telephone.
In certain circumstances, Buyer will be required to post a “reserve” to support its offer. This reserve shall be authorized to Luxify by credit card at the time the initial offer is made. In the event the Buyer and Seller are unable to agree upon the sale price or other terms of the transaction then Luxify will cause the reserve to be credited back to Buyer’s credit card account. In the event Buyer and Seller consummate the sale transaction, the amount of the reserve, up to the Total Purchase Price, will be charged and Luxify will remit the funds to Seller.
For custom made orders, Buyers will be required to post a non-refundable “deposit”. This deposit shall be paid by credit card or other acceptable payment methods upon order confirmation. This deposit amount will be held by the Seller and shall be applied against the final purchase price.
Sales Confirmation. An offer or counteroffer is deemed “accepted” by the Seller and the sale is confirmed between the Buyer and the Seller when a confirmation (“Sale Confirmation”) is posted to the Buyer’s account in the “offer status section” that (a) the Buyer’s offer or subsequent counteroffer to purchase the Item has been accepted and confirmed by the Seller, or (b) the Buyer’s acceptance of the Seller’s counteroffer has been acknowledged, accepted and confirmed by the Buyer. Notwithstanding anything to the contrary contained herein, in the event(s) of an error by Seller as to availability of the Item or an error by the Seller or Luxify as to acceptance of the Buyer’s offer or counter-offer, or any other error on Seller’s or Luxify’ part with respect to a Sale Confirmation or the operation of the Site, the Seller and/or Luxify reserve the right in their sole and absolute discretion to rescind that Sale Confirmation without penalty to any party.
Once a Seller and Buyer agree on the terms of the sale of an Item, a binding contract between the Buyer and the Seller with respect to the sale and purchase of that Item is created.
10. Offers to Buy or Sell Outside of Luxify Site
Luxify does not allow the Buyers or Sellers to use Luxify to contact each other to make offers to buy or sell items outside of the Site. Also, Buyers and Sellers are not permitted to use information obtained from the Site to contact each other about buying or selling outside of the Site.
Sellers are liable for all fees due to Luxify arising out of all sales made using some or all of the Site’s services, even if sales terms are finalized or payment is made outside of the Site.
In particular, Sellers are liable for final value fees due to Luxify if they offer or reference their contact information, or ask for a buyer’s contact information, in the context of buying or selling outside of the Site, even if the item does not sell and the Site was used to communicate with the Buyer.
Please make sure to follow these guidelines. If a Buyer breaches these guidelines, Luxify may limit, restrict, or suspend the Buyer from using Site features. The Buyer may also forfeit special account status and any discounts. The Buyer may be subject to the application of fees and recovery of Luxify expenses in policy monitoring and enforcement.
11. Payment for Products Purchased
Immediately upon receipt of the Sale Confirmation, the Buyer shall remit an amount equal to 100% of the Total Purchase Price. In the event Buyer has previously posted a reserve with Luxify for the Item, then the amount of the reserve shall be credited against the Total Purchase Price and Buyer shall remit the remaining balance of the Total Purchase Price.
The Buyer hereby irrevocably authorizes Luxify upon Sale Confirmation to charge the Buyer’s credit card or other payment methods for an amount equal to the Total Purchase Price.
If for any reason after receipt of the Sale Confirmation, Buyer cancels a payment made by credit card or any other means or the Buyer otherwise fails to make any payment(s) with respect to the Total Purchase Price, Buyer shall remain liable to the Seller for the full Total Purchase Price and any costs related to the sale of the Item including but not limited to taxes, storage and handling fees if applicable and any costs incurred by Luxify associated with collecting any amount due to the Seller including but not limited to legal fees and costs related to currency fluctuations.
Without limitation to the preceding sentence and in addition to any other remedies at law or equity, in the event of Buyer default, Luxify reserves the right, at its election, to retain any and all payments paid by Buyer prior to Buyer default with respect to the Item and to cancel the sale of the Item without any further obligation to Buyer. The Buyer acknowledges and agrees that damages to Luxify and/or the Seller in the event of Buyer Default will be difficult or impossible to prove and that the paid amount is reasonable compensation to Luxify and/or the Seller for damages suffered and constitutes liquidated damages and not a penalty.
12. Right of Cancellation
Where the EU Consumer Rights Directive (2011/83/EU) as implemented into national law in the various EU jurisdictions applies to a Buyer, unless one of the exceptions below applies, such a Buyer has the right to cancel its order without giving reason within 14 days from the day on which that Buyer or a third party indicated by the Buyer receives an Item. The Buyer must inform the Seller of its decision to cancel the order in writing within this period. The Seller must reimburse all payments received from this Buyer/Luxify for the Items purchased and the Buyer will incur no fee as a result of such reimbursement. However, reimbursement may be withheld until the Seller has received the Items back from the Buyer. The Buyer must send back the Items following the instructions of the Seller. The Buyer will bear the cost of returning the Items to the Seller. The Buyer may lose this right if the value of the Items returned diminishes due to the handling of the Items. The right of cancellation does not apply to: (a) the supply of Items made to the Buyer’s specifications; (b) the supply of Items which may deteriorate or expire rapidly; (c) the delivery of Items which are not suitable for return due to health protection or hygienic reasons if unsealed by the Buyer after delivery, or which are, after delivery, mixed with other items; (d) the delivery of sealed video or audio recordings or of sealed software if unsealed by the Buyer after delivery; and (e) the supply of digital content if the Buyer accepted when it placed the order that delivery could be started and that the Buyer could not cancel once delivery had started.
13. Sales are “As-Is”
All Items displayed on the Site are sold “AS IS”. Neither the Seller nor Luxify makes any guarantee, warranty or representation, expressed or implied, to any Buyer with respect to any Item, including without limitation, its condition, merchantability, fitness for a particular purpose, quality, rarity, importance, provenance, designer or creator, exhibitions, literature, historical relevance or otherwise. No statement anywhere, whether oral or written, shall be deemed any such guarantee, warranty or representation. Luxify makes no representation or warranty as to whether the Buyer acquires any reproduction rights or other intellectual property rights in any Item.
14. Outside of Australia Buying and Selling; Translation
Many of Luxify Services are accessible to Sellers and Buyers outside of Australia. Luxify may offer certain programs, tools, and site experiences of particular interest to those Sellers and Buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and Buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
Buyers authorize Luxify to use automated tools to translate the Buyers’ Site content and Buyer-to-Seller communications, in whole or in part, into local languages where such translation solutions are available. Luxify may provide Buyers with tools which will enable the Buyers to translate content upon request. The accuracy and availability of any translation are not guaranteed and Luxify is not liable in any way to the Buyer or the Seller for any loss suffered where the automated tools are used.
15. Expert Review
If the Buyer is purchasing an Item based partially or entirely on its stated provenance, designer or creator, the Buyer may at its option and at its own cost arrange with the Seller to have Buyer’s selected expert review the Item prior to purchase. Selection of the expert is the sole responsibility of the Buyer. Any arrangements for inspection shall be made between the Buyer and Seller. Buyer expressly acknowledges that the Buyer’s use and/or reliance on any expert is at the Buyer’s own risk and cost. Luxify only recommend additional services such as Trustlux or Entrupy.
16. Taxes and Import/Export Duties
The Buyer is entirely responsible for paying all sales and use taxes, VAT, export and/or import taxes and duties and all transactional taxes or levies related to the purchase of each Item purchased (collectively, “Taxes”). The Buyer shall pay the Seller such Taxes as the Seller is required to collect, but failure of the Seller to collect the Taxes will not relieve the Buyer’s obligation. It is the Buyer’s responsibility to establish and/or document any applicable exemption from Taxes. The Buyer must determine, pay, collect, remit and report to the appropriate taxing authority the correct amount of all export and/or import taxes or duties payable upon export of the Item from its country of origin and import into the state of New South Wales, Australia or any other country.
17. Import/Export Restrictions
Some of the Items sold on the Site may require cultural, customs and endangered species permits for export from the country where they are located and import into the Buyer’s country. Items may also be subject to a right of the country from which they are exported to purchase the Items from the Buyer, sometimes called a “right of preemption”. Neither the Seller nor Luxify makes any representation, gives any warranty or shall have any liability to the Buyer in respect of the requirement for, or the availability, or issuance of valid export or import permits or the existence or exercise of preemption rights to purchase by governmental or regulatory authorities anywhere.
If the listing of any Item on the Site discloses that the Item requires a cultural export permit or the Seller, or Luxify discloses such requirement after confirmation of the sale but before the shipper picks up the Item, or the Buyer first learns that an export permit is required after the Item has been picked up by the shipper, and the Seller is unable to obtain the export permit within thirty (30) days after the later of confirmation of the sale or disclosure of the requirement for the export permit, the Buyer may rescind the sale of such Item by giving written notice to Luxify and the Seller within seven (7) business days after expiration of the applicable thirty (30) day period. In no event shall the Buyer be entitled to rescind a sale more than ninety (90) days after the date of the sale to the Buyer.
If the sale is rescinded, the Buyer shall cause the affected Item to be returned to the Seller at the Buyer’s cost unless otherwise agreed. Upon such return, Luxify and/or the Seller shall return to the Buyer the Total Purchase Price. The benefit of this right of rescission is not assignable and belongs solely to the Buyer.
18. Transfer of Title/Risk of Loss
The Seller of each Item sold on the Site represents that the Seller will convey clear title of each Item to the Buyer upon receipt by the Seller or his/her agent of their Total Purchase Price for the Item. In the event the Seller has requested that Luxify collect and remit payment of the Total Purchase Price, then the Seller will convey clear title to the Item upon receipt of the Sales Confirmation by the Buyer and receipt by Luxify of the Total Purchase Price.
In the case of Buyer-arranged shipping, risk of loss and title for such Items pass to Buyer upon Seller’s delivery of the Item to the carrier selected by the Buyer for shipment or when the Buyer picks up the Item from the Seller. In the case of Seller arranging shipping, risk of loss and title for such Items pass to Buyer upon Buyer’s receipt of the Item. The Seller represents that the Seller is the sole owner of each Item the Seller is offering for sale on the Site or that the Seller is duly authorized by the owner of the Item to sell the Item and that the Seller will transfer ownership of the Item to the Buyer free from any claims by third parties.
Buyer-arranged shipping. Buyer is in every instance free to arrange Buyer’s own shipping and may elect to use any shipping company of its choice. The crating/shipping/insurance companies designated by the Buyer are the Buyer’s agents and the Buyer will bear all applicable costs and pay such costs directly to the agents. Buyer may also ask Luxify to arrange for shipping of Items on Buyer’s behalf which may be subject to pre-advertised shipping prices.
Seller-arranged shipping. Buyer may elect to have the Seller arrange for crating, packaging, shipping and freight insurance. Upon Buyer’s request Seller shall provide shipping information including the name of the freight carrier, the complete cost of shipment from Seller to Buyer’s designated receiving address, the cost of any duty or other charges to be paid by Buyer, the cost of freight insurance and the name of such insurance provider, as well as any costs or fees to be charged by Seller for crating or packaging the Items for shipment. Buyer and Seller shall mutually agree on shipment terms and Buyer shall prepay all shipment costs for Seller-arranged shipping.
20. Refusal of Transaction
Luxify reserves the right to withdraw any Item from the Site or to amend any content on the Site at any time in its sole discretion. Luxify may refuse service to anyone at any time in its sole discretion. Luxify will not be liable to any Buyer or any other third party because it has withdrawn any Item from the Site, amended any of the content or denied access to the Site.
21. Copyright Infringement. Notice and Take Down Procedures.
We respond to notices of alleged copyright infringement as required by the state of New South Wales, Australia Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following written information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your address, telephone number, and e-mail address; (v) a 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 (vi) 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. Our copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
4 Hickson Rd Dawes Point 2000 NSW, Sydney, Australia
If you become aware that material appears on this site in violation of a copyright please notify us by email at firstname.lastname@example.org.
22. Modification to Site; Monitoring
We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, products, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
Site Monitoring. Luxify reserves the right, but accepts no obligation, to monitor any activity and content on the Site. Luxify may investigate any reported violations of applicable law, rule or regulation applicable to Buyers or transactions on the Site and take action that it deems appropriate, including but not limited to issuing warnings, suspending or terminating service, denying access or removing any content from the Site. Luxify may also investigate the use of a credit card by a Buyer and take such action as Luxify deems appropriate, including but not limited to canceling any offer placed by such Buyer.
23. Prohibited Site Use; Security Rules and User Submitted Content
Prohibited Conduct. The Site may be used only for lawful purposes by individuals using authorized services of Luxify. You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Luxify specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following:
(i). Posting any information or using a payment mechanism which is incomplete, false, inaccurate or not your own;
(ii) Impersonating another person;
(iii) Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or which fails to comply with accepted Internet protocol;
(iv) Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
(v) Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
(vi) Posting material that infringes on any other intellectual property, privacy or publicity right of another;
(vii) Transmitting or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of US export control laws; or
(viii) Attempting to interfere in any way with the Site’s or Luxify’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.
Security Rules. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
(i) Accessing data not intended for you or logging into a server or account which you are not authorized to access;
(ii) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(iii) Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus, worm, Trojan Horse or other harmful code to the Site, overloading, “flooding”, “mailbombing” or “crashing”; or sending unsolicited e-mail, including promotions and/or advertising of products or services, or
(iv) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
User Submitted Content. You are responsible for any User Content you post to the site. By “User Content” we mean any content you post to the site, which may include reviews, comments, image uploading, captions, participating in forums, and other such features that allow you to add content to the site. We are not responsible for the personally identifiable or other information you choose to submit as User Content and we reserve the right to remove any User Content generated by any user at our sole discretion. You understand that once you post User Content, your content becomes public. We are not responsible for keeping any User Content confidential so if you do not want anyone to read or see that content, do not submit or post it to the Site.
If we allow you to upload User Content, you may not:
(i) provide User Content that you do not have the right to submit, unless you have the owner’s permission; this includes material covered by someone else’s copyright, patent, trade secret, privacy, publicity, or any other proprietary right;
(ii) forge headers or manipulate other identifiers in order to disguise the origin of any User Content you provide;
(iii) provide any User Content that contains lies, falsehoods or misrepresentations that could damage us or anyone else;
(iv) provide User Content that is illegal, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourage conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
(v) impersonate anyone else or lie about your affiliation with another person or entity in your User Content;
(vi) use meta tags or any other “hidden text” utilizing any of our or our suppliers’ product names or trademarks in your User Content; or
(vii) provide User Content which disparage us or our vendors, partners, Seller, representatives and affiliates.
Except as otherwise specifically provided, if you post content or submit material to the Site, you grant us a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate these Terms or any law or regulation; and the content will not cause injury to any person or entity. We have the right but not the obligation to monitor and edit or remove any activity or content. User Content comes from a variety of sources. We do not endorse, or support any views, opinions, recommendations, or advice that may be in User Content, nor do we vouch for its accuracy or its reliability, usefulness, safety or intellectual property rights of any User Content. We take no responsibility and assume no liability for any User Content posted by you or any third party.
24. Proprietary Rights
As between you and Luxify, (or other company whose marks appear on the Site), Luxify (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or materials you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by Luxify. If you make use of the Site, other that as provided herein, in doing so you may violate copyright and other laws of the state of New South Wales, Australia, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site.
The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.
Product names, logos, designs, titles, graphics, words or phrases may be protected under law as the trademarks, service marks or trade names of Luxify Pty Ltd or other entities. Such trademarks, service marks and trade names may be registered in the state of New South Wales, Australia and internationally.
Without our prior written permission, you agree not to display or use our trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner.
Images created or produced or modified by Luxify. All images created or produced or modified by Luxify are the sole property of Luxify. Luxify may use any such image to promote the Site or for any other purpose at any time without restriction.
25. Links to Third Party Sites
You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by us in any way and we are not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply our endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall we be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. We reserve the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users.
Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
All Site users agree to defend, indemnify and hold Luxify Pty Ltd, its directors, officers, employees, agents, vendors, partners, contractors, representatives and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with their use of the Site, their purchase or sale if Items, the nature or quality of items, their disputes with any Seller in connection with use of the Site, their violation of any law, their violation of these Terms or their posting or transmission of any User Content or materials on or through the Site, including, but not limited to, any third party claim that any information or materials such Site user provides infringes any third party proprietary right. All Site users agree to cooperate as fully as reasonably required in the defense of any claim. This indemnification obligation will survive the termination of these Terms and your use of the Site.
27. Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT:
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. LUXIFY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, ANY ITEMS OFFERED FOR SALE OR SOLD ON OR THROUGH THE SITE OR ANY SELLER, INCLUDING WITHOUT LIMITATION:
(a) any representation or warranty that the Site meets the Buyer’s requirements, will always be accessible, uninterrupted, timely, secure or operate without error or that defects will be corrected;
(b) any representation or warranty with respect to title to or delivery of any Item;
(c) any representation or warranty with respect to intellectual property rights in any Item;
(d) any representation or warranty that any Item conforms to its description or the colors, texture and detail shown on the Buyer’s computer monitor;
(e) any representation or warranty regarding the character, reputation or business practices of the Seller;
(f) any representation or warranty concerning the availability, accuracy, completeness, usefulness, or content of information; or
(g) any representation or warranty of title, non-infringement, merchantability or fitness for a particular purpose.
The Buyer must direct all claims regarding any Item to the Seller and must resolve any dispute regarding any Item directly with the Seller.
No advice, results or information, or materials whether oral or written, obtained by you through the Site shall create any warranty by Luxify not expressly made herein. If you are dissatisfied with the Site, your sole remedy is to discontinue using the Site.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
LUXIFY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF SELLERS ON OR THROUGH THE SITE. Luxify IS NOT A PARTY TO ANY TRANSACTION BETWEEN BUYERS AND SELLERS UNLESS REQUESTED AND NOTIFIED TO THE PARTIES.
You expressly agree to release Luxify, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, partners, successors and assigns (the “Released Parties”), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys’ fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a dispute. You further waive your rights under Section 1542 of the California Civil Code, and any similar law of any applicable jurisdiction, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You agree that no joint venture, partnership, employment, or other agency relationship exists between you and Luxify as a result of these Terms or your use of the Site.
29. Limitation of Liability
IN NO EVENT SHALL LUXIFY PTY LTD, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUBSIDIARIES, DIVISIONS, SUCCESSORS, SUPPLIERS, DISTRIBUTORS, AFFILIATES VENDORS, CONTRACTORS, REPRESENTATIVES OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF LUXIFY OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF LUXIFY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL LUXIFY PTY LTD OR ITS RESPECTIVE OFFICERS DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF LUXIFY.
30. Arbitration; Waiver of Jury Trial and Class Action; Applicable Law/Jurisdiction
(A) Binding Arbitration. Any dispute, controversy or claim arising out of or relating to these Terms, or its breach, which cannot be resolved between the parties through negotiation within thirty (30) days, shall be submitted to the relevant Australian Association for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the existing Rules. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side.
(B) Additional Provisions. The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with these Terms. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a Party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing Party (should there be one) in any such arbitration.
(C) Waiver of Jury Trial; Individual Basis; Equitable Relief. The parties surrender and waive the right to submit any dispute to a court or jury, or to appeal to a higher court. The parties agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SELLERS OR PERSONS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SITE USERS/SELLERS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
Notwithstanding the foregoing, nothing in these Terms shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient.
(D) Where Held; Language; Governing Law. The place of arbitration shall be the borough of Sydney, New South Wales, Australia, and the proceedings shall be conducted in the English language. These Terms shall be governed by the state of New South Wales, Australia Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall follow the law and judicial precedents that a Australian Judge sitting in New South Wales would apply to the dispute.
Any notices shall be given by postal mail addressed to Luxify Pty Ltd,
4 Hickson Rd
Dawes Point 2000 NSW, Sydney, Australia, to the attention of Legal Department or to the e-mail address provided to Luxify and currently on record. Notice to the Buyer shall be deemed to have been given 24 hours after the e-mail was sent, unless Luxify is notified that the e-mail address is invalid, in which event Luxify may give notice by postal mail at the address provided to Luxify by the Buyer upon registration. Notice given by postal mail shall be deemed to have been given three (3) business days after the date of mailing.
32. General Information
If any provision of these Terms is deemed unlawful, void or for any reason unenforceable, such provision(s) will be deemed severable from the rest of the Terms and will not affect the validity and enforceability of the rest of the Terms. Failure of Luxify to exercise any rights or remedies will not constitute a waiver of any rights or remedies available to Luxify under these Terms or at law. These Terms represent the entire agreement between you and Luxify and supersede and replace any other agreement between the parties including but not limited to any previous Terms as they may have applied between you and Luxify. Paragraph headings are for convenience only and not for interpretation of these Terms.33. Contact Us
To contact us with any questions or concerns in connection with these Terms or the Site please write to us at: Luxify Pty Ltd, 4 Hickson Rd Dawes Point 2000 NSW, Sydney, Australia or email us at support@Luxify.com.