TERMS OF SERVICE zouma abn 98 472 966 857
INTRODUCTION The Business provides the Zouma online community and marketplace where users can discuss fashion, and purchase clothing and accessories from each other. Use of Zouma is subject to these Terms of Service.
Definitions The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australian Business Number.
(b) Agreement means the agreement formed between the Users and the Business under, and on the terms of, this Terms of Service.
(c) Business means Zouma ABN 98 472 966 857.
(d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
(e) Buyer means a User that uses the features of Zouma available to Buyers, including to purchase an Item.
(f) Corporations Act means the Corporations Act 2001 (Cth).
(g) Forum means a discussion forum, thread or open discussion conducted via Zouma.
(h) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(i) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(j) Item means and item or product available for purchase from a Seller.
(k) Listing means a listing of an Item created and managed by a Seller.
(l) Order means a confirmed order for an Item.
(m) Privacy Act means the Privacy Act 1989 (Cth).
(o) Assembly means Assembly Pty Ltd, ABN 49 167 436 722.
(p) Assembly Terms means Assembly’s End User Agreement accessible at https://assemblypayments.com/company/policies/end-user-agreement/.
(q) Returnable Issue means any of the following issues that may arise in relation to an Order:
- The Item was not received by the Buyer;
- The Item was damaged, dangerous, not fit-for-purpose or otherwise not of merchantable quality; or
- The Item is not as described in the Listing.
(r) Seller means a User that uses the features of Zouma available to Sellers, including to create a Listing and sell Items.
(s) Site means zouma.com.au
(t) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(u) Terms of Service means the terms and conditions of using Zouma, as updated from time-to-time, which can be found at https://zouma.com.au/terms-of-service.
(v) TPS has the meaning given to that term in clause 5.1(a).
(w) User means any Buyer or Seller that uses Zouma.
(x) User Content means any designs, graphics, wireframes, images, videos, audio, information, documents or other data that is uploaded into, or created using Zouma by the User, or that otherwise forms part of the User’s Intellectual Property, but excludes any background Intellectual Property that is owned by, or licensed to the Business, including without limitation in Zouma.
(y) Zouma means:
- Zouma digital platform accessible from www.zouma.com.au; and/or
- Any Zouma mobile application.
1 USING ZOUMA
(a) To use Zouma, the User must login to Zouma and have set up their account.
(b) The User agrees that all use of Zouma is subject to these Terms of Service, and the User also agrees to the terms of:
- The Assembly Terms.
(c) A User can use Zouma either as a Buyer or a Seller using the same account. Whether a User is a Buyer or a Seller will depend on context, and which features the User is using at the time.
(d) When a Buyer confirms the purchase of an Item from a Seller, that forms an independent agreement between the Seller and the Buyer on the terms set out in this Agreement.
(e) Anyone over the age of 18 may use Zouma. People under 18 years of age must not use Zouma without their parent’s consent.
(f) The Buyer acknowledges that each Item is sold independently by the Seller, and that the Business does not provide any Item directly to the Buyer.
(g) The Business may terminate this Agreement or suspend the account of any User that breaches the terms of this Agreement.
(a) Zouma enables Buyers to:
- Browse Items;
- Make Orders;
- Discuss Items and Fashion with other Users in the Forum;
- Communicate with a Seller regarding an Item;
- Make payment to a Seller;
- Rate Sellers; and
- Manage their Zouma account.
(b) Zouma enables the Seller to:
- Create Listings for Items;
- Communicate with a Buyer regarding an Item;
- Accept payment for an Item;
- Manage their Zouma account.
(a) Each Seller is responsible for each Listing that it creates, including (but not limited to):
- The accuracy of the information about the Item;
- The quality of each Item offered;
- The price payable for each Item.
(b) The Seller may edit the Listing at any time, including with regard to price.
(c) The price payable by a Buyer for an Item is not confirmed until payment has been completed.
(a) Zouma provides a forum where people that are passionate about fashion can build a community around the things they love.
(b) Zouma is based on the values of tolerance and mutual respect, and all Users are expected to share those values.
(c) The Business reserves the right to monitor and suspend the account of any User that the Business determines, in its sole discretion, posts or otherwise communicates with other users in a way that:
- Promotes hate or intolerance towards an individual or class of people;
- Promotes violence;
- Promotes hateful or negative User Content; or
- Promotes any other negative or antisocial behaviour.
1.5 Conduct. The User acknowledges and accepts that:
(a) The Business accepts no responsibility for the conduct of any User of Zouma.
(b) The Business accepts no responsibility for any interaction between Users, whether that interaction occurs via Zouma or not (including a personal meeting).
(c) The Business makes no warranty or representation as to the accuracy of any information provided by any User.
(d) The Business makes no warranty as to the character or credentials of any User.
1.6 Lodging a Complaint.
(a) If a User believes that another user’s behaviour is threatening, discriminatory, or deliberately offensive, the User may lodge a complaint to the Business via email at firstname.lastname@example.org.
(b) The Business may suspend or delete the account of any User that Zouma determines conducts itself inappropriately.
(c) The Business will advise the User of a suspended or deleted account of the decision to do so, but is under no obligation to identify a complainant.
(d) The Business’ decision whether or not to suspend or remove a User account is at its absolute discretion. The Business’ decision shall be final and not subject to review.
2 User Content
2.1 The User understands and agrees that:
(a) User Content is the sole responsibility of the User that contributed the User Content to Zouma by uploading or otherwise posting, inserting or providing it.
(b) The User acknowledges that by using Zouma the User may be exposed to User Content that may be offensive, indecent or objectionable.
(c) To the extent permitted by law, under no circumstances will the Business be liable in any way for any User Content, including but not limited to:
- Errors or omissions in any User Content;
- Editing, restricting or removing User Content; or
- Loss or damage of any kind incurred as a result of the use of any User Content posted, emailed or otherwise transmitted via Zouma.
(d) When a User uploads or otherwise posts, inserts or provides any User Content to Zouma, the User agrees that such User Content will be available to the Business to use (or remove or alter) in any manner it thinks fit, subject to applicable provisions of any legislation including, without limitation, privacy legislation.
(e) The User agrees not to upload or otherwise post, insert or provide any User Content which:
- Is defamatory, fraudulent, unlawful, threatening, intimidating, harassing, harmful, hateful, abusive, tortious, vulgar, obscene, invasive of another's privacy, sexist, racist, homophobic, violent, degrading;
- Infringes the intellectual or other proprietary interests of third parties;
- Impersonates another person or entity, attempts to solicit personal information from another user;
- Contains sexually explicit language or images;
- Advertises or promotes the sale of products or services such as firearms, tobacco or alcohol, adult products and services and any other products or services the Business considers to be inappropriate;
- Contains spam, chain letters, pyramid and other such selling and marketing schemes, computer viruses, computer code, files or programs or other harmful components that are designed to interrupt, destroy, change or limit the functionality of Zouma or any other computer software, hardware or other electronic equipment, information which in any way impinges on another user's use or enjoyment of Zouma or otherwise breaches or encourages other users to breach these Terms and Conditions of Use;
- Violates any law, statute or regulation;
- Forges information to disguise the origin of any User Content; or
- Encourages or incites any other person to engage in any of the above behaviour.
3 terms of sale
3.1 Payment for Orders
(a) An order to purchase an Item is not confirmed until the Buyer completes payment via Zouma (Order).
(b) Payments must be made by credit card, or as otherwise specified on the Site using the Zouma payment gateway.
(c) The Business may take a Fee from the payment in consideration for facilitating the transaction prior to forwarding the balance of the payment to the Seller.
(d) The amount of any applicable Fee deducted shall be in accordance with the rates advertised on the Site from time-to-time.
(e) The Business will pay the balance of any payment to the Seller once funds have been received and the Buyer has approved the funds to be released from escrow.
(f) The Seller must include the following costs in the value of any payment it agrees to with a Buyer for Items, including:
- Shipping Costs;
- GST (if applicable);
- The value of any Fee; and
- Any other duty or tariff that may apply to the transaction.
(g) The Business will provide:
- The Buyer with a Tax Invoice for its payment; and
- The Seller with a recipient created Tax Invoice for each payment it makes to the Seller.
(a) By default Zouma holds funds for each Order in escrow until the Buyer has received an Item, and confirmed that the Item is as described in a Listing.
(b) All escrow payments are processed via Assembly and are subject to the Assembly Terms.
(c) Both the Buyer and Seller are notified once funds have cleared in Assembly’s escrow account.
(d) The Seller must confirm the Order within 72 hours from the time the Order was made
(e) The Seller must ship the Order within 5 Days of the Order being confirmed.
(f) Once the Buyer has received the Item it must inspect the Item to ensure that the goods are as described, and not damaged, and either:
- Approve the funds held by Assembly to be released to the Seller; or
- Notify the Seller of a Returnable Issue via Zouma.
(g) The Buyer may only refuse to release funds held by escrow for an Order if there is a Returnable Issue, and must notify the Seller of the Returnable Issue:
- Immediately if the Item arrives damaged or otherwise not as described in the Listing; or
- No earlier than 10 Days after postage of the Order was confirmed.
(h) The Buyer will be sent a reminder by Zouma to release the funds held in escrow 10 days after postage of the Order is confirmed.
(i) The funds shall be to the Seller within 72 hours of receiving the reminder unless:
- The Buyer releases the funds held in escrow earlier; or
- The Buyer initiates the dispute resolution process in accordance with 1.1(l) below for a Returnable Issue.
(j) The Buyer and Seller may agree to release funds earlier at any time once the funds for the Order have cleared Assembly’s account.
(k) The Buyer and Seller remain responsible to each other with regard to each Order for which funds are held in escrow, and must resolve between themselves any issues that arise in relation to that Order and funds.
(l) The cost of returning an Item that was not as described or otherwise arrived damaged, to a Seller must be paid by the Buyer, and shall be reimbursed by the Seller.
(m) Any payment of funds held in escrow, whether to the Seller or returning those funds to the Buyer, must be processed via Assembly.
(n) In the event a dispute arises with respect to funds held in escrow, despite anything to the contrary in this Agreement, the Buyer and Seller agree to resolve their dispute via Assembly’s dispute resolution procedure accessible via Zouma, in accordance with the Assembly Terms.
(o) All payment disputes for funds held in escrow shall be resolved in accordance with the Assembly Terms.
(p) Each User acknowledges that no funds held in escrow subject to a dispute shall be released until the dispute has been resolved.
(a) All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or Euros).
(b) Transactions processed in other currencies may attract conversions fees, transaction fees or other bank fees, which must be paid for by the User.
(a) The terms for shipping any Orders shall be in accordance with a Listing, or as otherwise agreed between the Buyer and the Seller.
(b) The Buyer is responsible for providing the Seller with the correct shipping address and any special instructions.
(c) The Business recommends that Users ship Items via Australia Post using a registered and trackable shipping method.
(d) Zouma integrates with Australia Post’s package tracking system. The Seller must update Zouma in order provide the Buyer with any Australia Post tracking details that may apply to the Order.
(e) Zouma does not recommend shipping with courier or shipping companies other than Australia Post.
(f) The Business cannot warrant the accuracy of any tracking information relative to an Order whether the Order was shipped via Australia Post or not.
(g) The Seller shall remain responsible for the shipment of any goods until a Buyer receives them.
(h) The Buyer shall assume all risk in the Items at the time that they arrive at the Buyer’s address for delivery.
3.5 No Warranty.
(a) The Business makes no warranty or representation as to the quality, safety or fitness for purpose of any Item.
(b) The Business takes no responsibility for any harm or loss suffered by a Buyer as a result of using any Item. If a customer suffers loss or harm as a result of any Item purchased from another user via Zouma, the Buyer agrees that:
i The Buyer shall have no recourse against the Business; and
ii The relevant Seller remains responsible for any such loss or harm under Australian Consumer Law.
3.6 No Inappropriate Items.
(a) No User may make available for sale, or advertise any Item that the Business in its sole discretion determines is inappropriate or offensive.
(b) The Business may remove any User Content that suggests that a user is selling or seeking to purchase an Item that the Business determines is inappropriate.
3.7 Dispute Resolution. In addition to the dispute resolution provisions contained in clauses, 3.2(o) and 6.12:
(a) A Buyer that receives an unsatisfactory Item must notify the Seller within 72 hours of receiving the Item.
(b) Any dispute that arises in relation to an Item must be resolved between the Buyer and the relevant Seller in accordance with the terms of agreement between the Buyer and the Seller (including on a Listing), and in accordance with Australian Consumer Law (if applicable).
(c) The Business reserves the right to suspend a Seller’s account if the Business receives a complaint about a Seller.
(d) The Business may reinstate a suspended account at its sole discretion.
3.8 Fee Avoidance.
(a) Any purchase of an Item that occurs as a result of the Item being advertised on Zouma, or otherwise negotiated via Zouma, must be paid for via Zouma.
(b) In no circumstance may Users arrange for payment by any means other than using Zouma’s payment gateway.
(c) Failure to conduct payment via Zouma shall be a breach of this Agreement and may result in the Business suspending or deleting the relevant Users’ accounts.
(a) Users may use the rating system inside Zouma to rate and provide feedback on the other user in a transaction for an Item.
(b) The User agrees to provide accurate information and to not unreasonably give another user a low rating.
3.10 Refunds. No refunds shall be offered by the Business except as required by law.
4.1 The parties agree that each Seller and Buyer contract independently with each other, exclusive of the Business. Each Seller and Buyer is responsible to each other with respect to each Order. The parties acknowledge and agree that:
(a) The Seller is not an employee or subcontractor of the Business, and the Seller does not provide any Items to Buyers on behalf of the Business;
(b) The Seller is not an employee of the Buyer or the Business; and
(c) The Business is not an agent of the Buyer.
5 Third Party Login
5.1 Registration & Login.
(a) A User may be able to register as a User, and access Zouma, by using their account with certain third party services (e.g, Facebook, Twitter etc) (TPS);
(b) As part of the functionality of Zouma the User may connect their profile with a TPS by:
- Providing their TPS login information to the Business through Zouma; or
- Allowing the Business to access their TPS in accordance with its terms & conditions of service; and
(c) When connecting to Zouma using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.
5.2 Ongoing Availability.
(a) The User agrees that User access to Zouma may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and Zouma;
(b) The User may disconnect the connection between Zouma and the TPS at any time.
(c) The Business has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
5.3 Data from TPS.
Where a User connects and or registers their profile using a TPS, the User authorises the Business to use data from that TPS to create the User’s profile within Zouma.
6 General conditions
(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Zouma for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
(b) The Business may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
(c) The Business may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
6.2 Modification of Terms
(a) The terms of this Agreement may be updated by the Business from time-to-time.
(b) Where the Business modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Zouma.
(a) The User agrees and accepts that Zouma is:
- Hosted by the Business and shall only be installed, accessed and maintained by the Business, accessed using the internet or other connection to the Business servers and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Business from the Business servers and that no ‘back-end’ access to Zouma is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Business reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Zouma.
(a) The Business provides user support for Zouma via the email address email@example.com.
(b) The Business shall endeavour to respond to all support requests within 2 Business Days.
6.5 Use & Availability
(a) The User agrees that it shall only use Zouma for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Business in its discretion.
(b) The User is solely responsible for the security of its username and password for access to Zouma. The User shall notify the Business as soon as it becomes aware of any unauthorised access of its Zouma account.
(c) The User agrees that the Business shall provide access to Zouma to the best of its abilities, however:
- Access to Zouma may be prevented by issues outside of its control; and
- It accepts no responsibility for ongoing access to Zouma.
(a) Security. The Business takes the security of Zouma and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Business’ systems or the information on them.
(b) Transmission. The Business shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Storage. Data that is stored by the Business shall be stored according to accepted industry standards.
(d) Backup. The Business shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Business does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Business.
6.8 Intellectual Property
(a) Trademarks. The Business has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Business.
(b) Proprietary Information. The Business may use software and other proprietary systems and Intellectual Property for which the Business has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Zouma.
(c) The Zouma Application. The User agrees and accepts that Zouma is the Intellectual Property of the Business and the User further warrants that by using Zouma the User will not:
- Copy Zouma or the services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Zouma or any documentation associated with it.
(d) Content. All content submitted to the Business, whether via Zouma or directly by other means, becomes and remains the Intellectual Property of the Business, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Zouma.
6.9 Disclaimer of Third Party Services & Information
(a) The User acknowledges that Zouma Is dependent on third-party services, including but not limited to:
- Banks, credit card providers and merchant gateway providers;
- Telecommunications services;
- Hosting services;
- Email services; and
- Analytics services.
(b) The User agrees that the Business shall not be responsible or liable in any way for:
- Interruptions to the availability of Zouma due to third-party services; or
- Information contained on any linked third party website.
6.10 Liability & Indemnity
(a) The User agrees that it uses Zouma at its own risk.
(b) The User acknowledges that Zouma does not sell Items on its own behalf.
(c) The User acknowledges that the Business is not responsible for the conduct or activities of any User and that the Business is not liable for such under any circumstances.
(d) The User agrees to indemnify the Business for any loss, damage, cost or expense that the Business may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Zouma, including any breach by the User of these Terms.
(e) In no circumstances will the Business be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Zouma, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Business knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(f) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Business and the Business’ related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Business’ liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Business’ option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Either party may terminate this Agreement by giving the other party written notice.
(b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
(c) Termination does not affect any of the rights accrued by a party prior to termination, and he rights and obligations under clauses 6.9, 6.12 and 6.13 survive termination of this Agreement.
6.12 Dispute Resolution
(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.13 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Business as set out in this Agreement. The Business will notify the User of a change of details from time-to-time.
(c) The Business will send the User notices and other correspondence to the details that the User submits to the Business, or that the User notifies the Business of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in this Agreement.
(g) The Business may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.