1. APPLICATION OF TERMS
1.1 RBR Badger Pty Ltd (ACN 611 126 204) trading as Mayday Spares (“Mayday”) provides a technology platform that connects Customers who have a requirement to acquire, use, exchange, trade, loan, borrow, hire or lease plant, equipment and spare parts (“PEP”) and Suppliers who supply, sell and, in some instances, install PEP (“Services”).
1.2 The Services may be used by Customers and Suppliers through the website http://www.maydayspares.com (“Website”) or application for use by mobile, tablet and other smart devices (“Application”).
1.3 By using the Website or Application, you acknowledge and agree you are bound by, and your use of the Website or Application is subject to:
(together “the Terms and Conditions”).
1.4 If you do not agree with any of the Terms and Conditions, you are not permitted to access or use the Services and you must immediately stop using the Website and/or the Application.
1.5 Mayday reserves the right, in its sole discretion, to change the Terms and Conditions in any manner and at any time without prior notice to you and Mayday will endeavour to post any changes to the Terms and Conditions on the Website or Application as soon as reasonably practicable.
1.6 You acknowledge it is your sole responsibility to review and check any updates to the Terms and Conditions from time to time. You agree you will be deemed to have notice of any modifications once Mayday posts the changes to the Website, the Application or to your Mayday Account and your continued use of the Website or Application shall be deemed acceptance of any changes on and from that time.
1.7 By using the Website or the Application, you acknowledge you are over the age of 18.
1.8 For the purposes of these Terms:
(a) “Customer” means a Member who seeks to acquire, use, exchange, trade, loan, borrow, hire or lease PEP from a Supplier;
(b) “Fee” means the fee payable by a Customer for the use of the Services provided by Mayday;
(c) “Member” means a person who registers and creates a Mayday Account;
(d) “Member Content” means any text, graphics, images, music, software, audio, video, information or any other materials that a Member posts, uploads, publishes, submits, transmits or makes available through the Website or Application;
(e) “Mayday Account” means an account created by a Member for the purposes of using the Services which may be as a Customer, Supplier or both;
(f) “Supplier” means a Member who has available for hire, lease, supply, sale and/or installation PEP and who wishes to be given the opportunity to be connected with Customers through the Website or Application;
(g) “you” means the person or entity who uses the Website or the Application as a Customer and/or a Supplier from time to time and/or any other person or entity acting on your behalf including but not limited to any agents, employees, contractors and any other person authorised by you.
2.1 By using the Website or Application you acknowledge and agree the Services provided by Mayday are limited solely to:
(a) facilitating a platform where Customers and Suppliers can connect with each other; and
(b) providing access to the Website and Application.
2.2 You acknowledge and agree:
(a) Mayday is neither a Customer or Supplier, is not the owner of and does not operate any business involving the sale, purchase or hire of PEP;
(b) the listing, delivery, sale, hire, lease, installation or supply and service of any PEP is provided by an independent third party who is not employed by or in any way associated with Mayday, other than as a Member;
(c) Mayday is not in any way involved with the listing, delivery, sale, hire, lease, installation or supply and service of any PEP;
(d) Mayday is not responsible or liable in any way:
(i) for the quality, content, fitness for purpose or condition of any PEP; or
(ii) if the PEP does not correspond with its description on the Website or Application or specified by a Supplier; or
(iii) the terms and conditions of any agreement or transaction between Suppliers and Customers or compliance with those terms and conditions by any Customer or Supplier;
(e) the Supplier is solely responsible for:
(i) understanding and complying with all laws, regulations, codes and requirements of any authority or body in relation to the supply, sale, hire or lease of PEP; and
(ii) obtaining all relevant licences, approvals, permits and authorisations for the supply, sale, hire or lease of PEP,
regarding the listing, content, sale, hire and supply of PEP, the use of the Website, the Application and the Services and Suppliers must satisfy themselves regarding
the above matters before listing a prospective supply on the Website or the Application, before using the Services or replying to a request; and
(f) Mayday is in no way responsible or liable for any Member’s compliance or any non-compliance with any laws, regulations, codes or requirements.
3. ACCOUNT REGISTRATION
3.1 If you want to:
(a) be introduced to Suppliers or request your details be provided to prospective Suppliers as a Customer; or
(b) be listed as a prospective supplier and be introduced to prospective Customers as a Supplier,
you must register and establish a Mayday Account and become a Member.
3.2 You must register to receive the Services as a Member directly using the Website or Application.
3.3 Your Mayday Account and profile page for the Website or Application is created based on the personal information you provide to Mayday and you acknowledge Mayday is not liable for any content or its distribution.
3.4 You acknowledge and agree you:
(a) may be required to provide personal information to Mayday from time to time including, but not limited to, details for registering a Mayday Account such as an email address or mobile phone details;
(b) as a Customer will be required to provide Mayday with customary billing details such as name, billing address, bank account and credit card information. Billing information will only be used by Mayday or its third party payment processor for the purpose of facilitating payments in accordance with these Terms.
3.5 You are permitted to have more than one Mayday Account, as it is acknowledged Members may open Mayday Accounts by virtue of their association with different entities.
3.6 You agree to provide accurate, current and complete information during the registration process and you agree to update your information from time to time to ensure it is at all times accurate, current and complete.
3.7 Mayday reserves the right to immediately suspend or terminate your Mayday Account and your access to the Website, Application and Services:
(a) if any information provided by you during the registration process or thereafter is inaccurate, not current, incomplete, false or misleading; or
(b) for any other reason decided by Mayday in its absolute discretion.
3.8 You are solely responsible for any activities or actions under your Mayday Account, whether or not you have authorised those activities or actions.
4.1 As a Supplier you are solely responsible for all PEP you list including any details of that PEP on the Website or Application or supply to Customers introduced via the Services, the Website or the Application.
4.2 Mayday reserves all rights to remove or disable access to any Supplier for any reason whatsoever and without prior notice to Members, including but not limited to, any PEP that Mayday, in its sole discretion, considers to be objectionable or inappropriate for any reason, which are in breach of these Terms or which are otherwise considered by Mayday to be harmful, have a negative impact on or which may adversely affect Mayday, the Website or the Application.
4.3 If the Customer makes a request for prospective Suppliers of an item of PEP using the Website or Application and does not elect the anonymity preference, Mayday will:
(a) give all Suppliers the full name of the Customer; and
(b) details of the request including industry sector, location and other details Mayday considers relevant to Suppliers and the request, in which instance it is solely at the discretion of Suppliers to make contact direct with the Customer or through the Website or Application in relation to any request and to negotiate the terms and conditions of any transaction or agreement between the Supplier and Customer.
4.4 If the Customer makes a request for prospective Suppliers of an item of PEP using the Website or Application elects the anonymity preference, Mayday will:
(a) send the request to all Suppliers without disclosing the identity of the Customer; and
(b) provide the Customer with the details of prospective Suppliers who have indicated willingness and capacity to fulfil the request,
in which instance it is solely at the discretion of the Customer to make contact with the Suppliers of choice in relation to any request and to negotiate the terms and conditions of any transaction or agreement between the Supplier and Customer.
4.5 You acknowledge and agree Mayday is not a party to the agreement made between a Supplier and a Customer and Mayday disclaims all liability arising from or related to any such agreement and the listing, purchase, sale, hire delivery, installation, exchange, loan or use of any PEP.
4.6 The Supplier accepts a request at its own risk and is solely responsible for dealing with any request it accepts.
4.7 When Mayday accepts a request from a Customer, Mayday will send the Suppliers and the Customer details of the request via the Website or Application or any other means considered appropriate by Mayday.
5.1 As a Customer you are solely responsible for all PEP you request including any details of that PEP on the Website or Application or to any Suppliers introduced via the Services, the Website or the Application.
5.2 Mayday reserves all rights to remove or disable access to any Customer for any reason whatsoever and without prior notice to Members, including but not limited to, any request that Mayday, in its sole discretion, considers to be objectionable or inappropriate for any reason, which are in breach of these Terms or which are otherwise considered by Mayday to be harmful, have a negative impact on or which may adversely affect Mayday, the Website or the Application.
5.3 The Customer acknowledges and agrees the Customer makes a request at its own risk and Mayday has no control and is not liable for any content or quality of the PEP or any information posted by Suppliers on the Website or the Application or otherwise supplied by Suppliers.
5.4 Customers will, for each request elect, when making a request, to remain anonymous to Suppliers in the initial communication of the request or allow their details to be given to Suppliers from the onset.
5.5 You acknowledge and agree Mayday is not a party to the agreement made between a Supplier and a Customer and Mayday disclaims all liability arising from all related to any such agreement and the listing, purchase, sale, hire, delivery or installation of any PEP.
5.6 The Customer accepts a request at its own risk and is solely responsible for dealing with any request it accepts.
5.7 When Mayday accepts a request from a Customer, Mayday will send the Suppliers and the Customer details of the request via the Website or Application or any other means considered appropriate by Mayday request.
6.1 In making a request on the Website or Application, the Customer agrees the Customer must pay to Mayday the Fee.
6.2 In consideration of the Services’ provided by Mayday to the Customer, the Customer will pay the Fee to Mayday immediately on the lodgement of a request and prior to Mayday being obliged to provide the Services. The Fee and any variation to the Fee is specified on the Website.
6.3 The Customer acknowledges and agrees that on making a request for the Services using the Website or the Application, Mayday may obtain pre-authorisation to immediately charge the Customer’s credit card for the Fee.
6.4 Once Mayday accepts a request, the Fee will be charged from the Customer’s credit card by Mayday.
6.5 The Customer agrees the Fee is payable for each request for each item of PEP. For the avoidance of doubt:
(a) any request which includes requests for multiple items of PEP will require the payment of the Fee for each item included in a request on the basis each item constitutes a separate request; and
(b) any variation of a request will result in the payment of a new and separate Fee.
6.6 You acknowledge and agree:
(a) the Fee collected by Mayday will vary from time to time; and
(b) you will be deemed to have notice of any change to the Fee once Mayday posts the change to the Website, the Application or your Mayday Account and your continued use of the Website or Application shall be deemed acceptance of any changes on and from that time.
6.7 All amounts payable to Mayday will be in the currency relevant to the jurisdiction in which the provision of the Services takes place, as designated on the Mayday Website. If not specified, then the payment will be in US Dollars.
7. CANCELLATIONS AND REFUNDS
7.1 If a Customer makes a request then the Fee is payable immediately on receipt of the request and no refund is payable by Mayday:
(a) if the request is varied or withdrawn; or
(b) if a request does not result in a supply or any response from any Supplier.
7.2 If Mayday decides for any reason it is necessary or desirable to reject a request on receipt the Customer will not be liable in any way to Mayday for the Fee for any rejection.
(a) Mayday is liable to refund any amounts to a Customer; and
(b) Mayday has received the Fee,
the Customer agrees Mayday is entitled to pay the refund amount by subtracting the refund amount from any future amounts due from the Customer.
8. USE OF WEBSITE AND APPLICATION
8.1 If you are unhappy with or do not agree with any of the Terms and Conditions or any matters the subject of the Terms and Conditions, you should not use the Website, the Application or the Services.
8.2 When using the Website, the Application or the Services, you acknowledge and agree you must not:
(a) attempt to undermine the security or integrity of Mayday’s server, computing systems or networks or, where the Website or the Application is hosted by a third party, that third party’s computing systems;
(b) interfere with or damage the Website or the Application or any other person’s use and enjoyment of the Website or the Application;
(c) use or misuse the Website or Application in any way whatsoever and must not use the Website or Application for any unlawful purposes;
(d) attempt to alter, modify, decipher, decompile, disassemble, reverse engineer or reconfigure any of the software used to provide the Website or Application;
(e) transmit, or input into the Website or Application:
(i) any files that may damage any other person’s computing devices or software; or
(ii) content that may be offensive; or
(iii) material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use);
(f) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
(g) post, link to, install or transmit, or permit third party users to post, link to or to transmit:
(i) any material that is abusive, threatening, harmful, malicious, defamatory, fraudulent, misleading, deceptive, offensive, obscene, pornographic, profane or otherwise unlawful or which causes damage or injury to any person or property or causes the Services provided by the Website or Application to be impaired;
(ii) any material containing a virus or other hostile computer program;
(iii) any material that constitutes or encourages a criminal offence, gives rise to civil liability or infringes the intellectual property rights of any third parties.
8.3 You must at all times, observe all applicable laws, regulations, standards, codes and any directions, recommendations and decisions by any regulator or government body or authority with jurisdiction over the Website or Application.
8.4 When using the Website, Application or Services, you agree to:
(a) ensure all usernames and passwords required for you to access the Website and Application are kept secure and confidential and are not disclosed to any other party;
(b) immediately notify Mayday of any unauthorised use of your passwords or any other breach of security; and
(c) take all other actions Mayday reasonably deems necessary to maintain or enhance the security of your Mayday Account and your use of the Website or the Application,
and Mayday will not be responsible for loss which occurs as a result of any unauthorised use and you may be held responsible for losses incurred by Mayday or any third party due to any authorised use of your Mayday Account.
8.5 You acknowledge Mayday has no obligation to monitor access to or use of the Website or the Application by Members or the discussions, negotiations or agreements between Members, including as to their terms or compliance with any law or regulation, approval or requirement but Mayday has the right to investigate and involve any law enforcement authorities regarding any breach of these Terms.
8.6 Mayday reserves all rights, at any time and without prior notice, to remove or disable access to any Member or any communication by a Member or access to Member Content and any other materials whatsoever that Mayday, at its sole discretion, considers to be objectionable or inappropriate for any reason, in violation of these Terms or which are otherwise harmful, have a negative impact on or which may adversely affect Mayday, the Website or the Application.
8.7 Mayday may access, preserve and disclose any of your information if Mayday is required to do so by law, or if Mayday believe in good faith it is reasonably necessary:
(a) to respond to claims asserted against Mayday or to comply with legal requirements;
(b) to enforce or administer these Terms;
(c) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes; and
(d) to protect the rights, property or safety of Mayday, its Members or members of the public.
9.1 Members must:
(a) use the Website, Application and the Services in good faith and must at all times be courteous and respectful of other Members;
(b) not entice away or solicit any Member from using the Website or Application;
(c) co-operate with and assist Mayday in good faith at all times including, but not limited to, providing any and all information and doing anything reasonably requested by Mayday;
(d) report any misconduct of another Member immediately to Mayday and if appropriate, the relevant law enforcement authorities; and
(e) comply with all local, state and federal laws and regulations, directions and any order from a court or relevant authority:
(i) when using the Website, the Application and the Services; and
(ii) in any negotiations or transaction effected following use of the Services.
9.2 The Customers:
(a) represent and warrant any request they post:
(i) will not breach any agreements the Customers have entered into with any third parties;
(ii) will comply with all applicable laws, tax requirements, and rules and regulations that may apply to any request; and
(iii) will not conflict with the rights of third parties.
9.3 The Suppliers acknowledge and agree the Suppliers use the Services and deal with Customers solely at their own risk.
10.1 You acknowledge and agree you:
(a) use the Website, the Application and the Services;
(b) make a request as a Customer;
(c) list and/or supply details or contact and deal with Customers;
(d) enter into negotiations and transactions,
solely at your own risk.
10.2 You acknowledge and agree Mayday has not independently verified the:
(b) financial or other capacity;
of any Member,
(d) requests by any Customer; or
(e) state, condition, existence, quality, specifications of or fitness for purpose of any item of PEP.
10.3 You assume full responsibility for any and all risk of loss and damage resulting from your use of the Website, the Application and the Services and/or from any request or transaction effected following a request, or between Members whether following a request or otherwise.
10.4 You represent and warrant you have conducted your own enquiries before you submit a request or answer a request and to the fullest extent permissible under law, you acknowledge Mayday disclaims all liability and responsibility for any loss or damage suffered by you relating to the Website, the Application, the Services or any transaction between Members, whether pursuant to the Services or at all.
10.5 You acknowledge and agree:
(a) given the nature of electronic communication and systems, there may be various factors which affect your ability to use the Website, the Application or the Services; and
(b) Mayday is not liable in any way whatsoever for any inability, delay, failure or any damage, loss or expense caused or contributed to by any use or inability to use the Website, the Application or the Services.
10.6 You are solely responsible for using appropriate and up to date firewall and antivirus software to protect your computer systems.
10.7 If the Website or Application contains links to third party websites, this is not an endorsement of the materials of that website, or any associated organisation, product or service.
10.8 Mayday assumes no responsibility for the content, policies or practices of any third party websites, firewalls and products. By using the Website and Application, you release Mayday from any and all liability arising from your use of any third party website.
10.9 It is your responsibility to ensure Mayday is provided with all of your correct contact details.
10.10 Mayday is not liable to you for any loss or damage you may incur as a result of you not providing your current or correct details or not receiving any communication from Mayday regarding the Website, the Application or the Services.
10.11 To the maximum extent permitted by law:
(a) Mayday excludes all guarantees, conditions or warranties regarding the Website, the Application and the Services which may be implied or imposed by law including (without limitation) any warranties;
(b) Mayday excludes all liability and responsibility to you or any other person for any direct or indirect loss, damage, liability, cost or expense suffered which results from any use of, or reliance on, the Website, the Application, the Services or any transaction effected between Members, whether pursuant to the Services or at all;
(c) without limiting the generality of any other conditions, Mayday does not guarantee or make any warranty:
(i) the Website or Application will work on all computer hardware platforms or configurations;
(ii) the Website or Application is free from errors, surreptitious code or contaminants including viruses, bugs, trojan horses, spyware or adware;
(iii) Mayday will successfully prevent corruption of data. Mayday is not responsible if you are unable to access the Website or Application or for any loss of data, breach of privacy or downtime as a result of or arising from the use of the Website or Application; or
(iv) the Website or Application will be available to you 24 hours a day, 7 days a week or you will have uninterrupted access to the Website or Application. Mayday is not in any way responsible for any interference or prevention of your access or use of the Website or Application. You accept use of the Website and Application is at your sole risk.
10.12 You acknowledge the Website and Application may include information and material that is owned by Mayday and is protected by applicable intellectual property laws including but not limited to copyright.
10.13 You agree you will not use such proprietary information in any way without the prior written consent of Mayday.
10.14 Mayday assumes no responsibility for your compliance or failure to comply with these Terms and any applicable laws, rules and regulations or any failure of a Member to comply with any laws, rules and regulations.
11. DISCLAIMER OF LIABILITY
11.1 Mayday, its directors, principals, agents or employees are not liable for any damage or loss whatsoever however occasioned to you or any other entity or person including but not limited to direct, indirect, incidental, consequential or punitive damages whether in action of contract, statute, tort (including without limitation, negligence) or otherwise, relating to the Website, the Application and the Services.
11.2 Without limiting the application of the above for any claim which cannot be excluded by law, any liability is reduced proportionately to the extent any claim arises from or is contributed to by an act or omission by you or any other entity or person and Mayday’s maximum liability is the cost of any Fees paid to Mayday regarding the Services.
12.1 Mayday may, at any time and for any reason whatsoever, immediately terminate your use of the Website or Application and/or generally cease offering or deny access to the Services.
12.2 Mayday reserves the right to terminate any particular person’s use of the Website or Application for any reason whatsoever, in Mayday’s absolute discretion.
12.3 You acknowledge it may be necessary for Mayday to suspend the Website or Application for any purpose which may include, but is not limited to, any routine or emergency maintenance or repairs.
12.4 You acknowledge your use the Website and Application is at your own risk and Mayday is in no way liable to any person or entity due to any suspension or termination of the Website, the Application or the Services.
13.1 You indemnify and agree to keep indemnified Mayday and its directors, employees, agents, contractors, associates and affiliates against any and all claims, costs, damages, loss and expense (including legal costs on a full indemnity basis) arising from or in any way related to:
(a) any breach or alleged breach of the Terms and Conditions; and/or
(b) any request, response or transaction between Members arising from the Services or otherwise,
by you or any person or entity on your behalf.
13.2 You acknowledge and agree this condition survives termination or expiration of your use of the Website, the Application and the Services or classification as a Member.
14.1 You understand and agree you are solely responsible for determining your applicable tax collection, payment and reporting requirements in consultation with your tax advisors regarding your use of the Website, the Application and any request or listing and/or any transaction effected between Members.
14.2 You acknowledge and agree Mayday cannot and does not offer any tax-related advice to any Members.
14.3 Any monies including, but not limited to, Fees payable to Mayday are exclusive of any tax payable on the provision of the Services in the jurisdiction where the provision of Services takes place, and you must pay the requisite amount equivalent to the tax payable in addition to the amounts payable to Mayday at the same time the amounts are due and payable to Mayday.
14.4 Where Mayday provides the Services within Australia, the Fees payable are GST exclusive and you must pay the requisite amount equivalent to GST in addition to the amounts payable to Mayday at the same time the amounts are due and payable to Mayday.
15.1 You are not permitted to assign or transfer your rights and obligations under the Terms and Conditions to any other party. Any attempt to assign your rights and obligations will be null and void.
15.2 If there is any inconsistency, the Terms and Conditions shall be read in the following order of priority to the extent of any inconsistency, firstly the Terms, secondly the Policy.
15.3 Any waiver of a breach of the Terms and Conditions, will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
15.4 The Terms and Conditions are governed by the laws of Western Australia and by accepting to be bound by the Terms and Conditions you irrevocably and unconditionally submit to the
exclusive jurisdiction of the courts of Western Australia for any disputes arising out of or in connection with the Terms and Conditions.
15.5 If any part or provision of the Terms and Conditions is or becomes invalid, void, unenforceable or in conflict with the law, that part or provision is severed from the Terms and Conditions to the intent that all parts that are not, or do not, become void or unenforceable remain in full force and effect and are unaffected by that severance.
15.6 Any notice given under the Terms and Conditions by either party to the other must be by email and will be deemed to have been given on transmission. Notices to Mayday must be sent to firstname.lastname@example.org or to any other email address notified by email to you by Mayday.
15.7 The Terms and Conditions supersede and extinguish any prior agreements, representations (whether oral or written) and understandings and constitutes the entire agreement between you and Mayday.
Last Updated October 2017