Marketplace User Terms of Service

For The Makers Pty Ltd (trading as Making Things) (“Making Things”) provides an online marketplace to buy and sell Patterns. These Terms of Service apply to the use of the Platform.

Last Updated April 4, 2018

Agreement

You should read these Terms of Service (“Agreement”) carefully.

In these Terms of Service (the “Terms”), the words “Making Things”, “we”, and “us” refer to For The Makers Pty Ltd (ACN 623 639 690) trading as Making Things and includes its directors, employees and agents; and "you" or "your" means the User who accepts these Terms of Service. Acceptance of these Terms of Service will be indicated by your use of the Services and any associated software, networks, processes, including the purchase of any goods or services on the Marketplace.

These Terms of Service apply to you and your use of the Services and any associated software, networks and processes, including the purchase of good or services from the Marketplace.

By browsing the Platform, or utilising Services offered in the Marketplace, you agree to these Terms. If you do not agree to these Terms you should immediately cease use of the Services and accessing the Platform.

1. Definitions

1.1

In this Agreement, the following expressions shall have the following meanings, unless otherwise stated:

Agreement” or “Terms” means these Terms of Service, including all of the terms of any order placed by you through the Platform (if applicable).

App’ means the Making Things web application, which can be accessed via the Website.

Intellectual Property” means all rights in patent, copyright, trade names, trade marks, logos, designs, algorithms and images (including still images, audio and audio-visual media).

Lister” means any person who lists goods and / or services for sale on the Marketplace.

Marketplace’ means the online platform located on or via the Platform at makingthingsapp.com, through which certain goods and services can be negotiated, bought or sold.

Material” means any information or content (including, but not limited to, data or source codes) or images in any form (whether visible or not) stored on or used in conjunction with the Services.

Pattern’ means a digital design, blueprint or set of instructions for making knitted or crocheted products or any other such textiles or goods.

Platform’ refers to both the App and the Website as one complete offering.

Purchaser” means any person who purchases goods and/or services listed by Listers for sale on the Marketplace.

Registration Data” means information provided by you to us for the purposes of your registration to access certain sections of the Platform including, but not limited to, your name, date of birth, gender and contact details.

Services” refers to the Marketplace and any associated services we provide pursuant to this Agreement.

Shilling” refers to the fraudulent inflation of a shop’s reputation by use of an alternate account.

User” refers to any person using the Services, whether they are a Lister, Purchaser or a person who browses, visits or otherwise uses the Platform, the Marketplace or the Services.

Website’ means the website located at makingthingsapp.com or any other website nominated by us from time to time.

1.2

Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any Act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations (including human, corporate and unincorporated), and vice versa. Paragraph headings are for reference and convenience purposes only, and all references to clauses are to clauses in this Agreement unless otherwise specified.

2. Overview of Services

2.1

The Marketplace is a portal or conduit providing Users with an online platform through which persons may list, advertise, sell or exchange goods and/or services. The Marketplace allows Users to easily create and sell Patterns. We do not supply or sell goods and/or services on, or via, the Platform.

2.2

To use the Services, a User must register for an account in accordance with Clause 4. An unregistered User may browse Patterns on the Platform.

2.3

Registered Users have access to the Services and are able to:

a)

Purchase Patterns offered for sale by Listers;

b)

Communicate with other Users and/or Us;

c)

Read and interact with Patterns purchased on the Platform;

d)

Store Patterns purchased on the Platform in an easily accessible database; and

e)

Select and save favourite Patterns.

3. Using the Services

3.1

You must ensure that your access to or use of the Services is not illegal or otherwise prohibited by laws that apply in your jurisdiction.

3.2

You must take precautions to ensure that when accessing the Services you do not expose your telecommunications or computer systems to viruses, malware or other forms of interference that may damage your telecommunications or computer systems. We will take not take responsibility for any such damage to your telecommunications or computer systems which may arise in connection with your access to the Platform and use of the Services.

3.3

Any information on this Platform or otherwise provided to Users is supplied in good faith but we do not guarantee the accuracy or completeness of any information provided by us or any third party, including any Lister. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information which we receive from you or third parties.

3.4

You agree that you have sole responsibility for any activity that occurs on your account. You must keep your Making Things account details and password secure, as you are responsible for any activity on your account (whether undertaken by you or anyone else). You agree to notify us immediately if you become aware of or suspect any security breach or unauthorised use of your Making Things password or account.

3.5

Making Things may discontinue or stop (temporarily or permanently) providing access to the Services (or any feature of the Services) to you, Users, guests or members generally, at its absolute discretion and without prior notice to you.

3.6

Making Things may, at its absolute discretion, terminate or suspend your Making Things account or restrict your access to the Services for any reason including for security, technical, maintenance, legal or regulatory reasons, or due to any breach of these Terms. If we do this, you may be prevented from accessing all or parts of the Services, your account details or other content contained in your Making Things account. We will not be liable to you or any third party for doing so. We may impose limits or restrictions on your use of the Services. Further, for security, technical, maintenance, legal and / or regulatory reasons, or due to any breach of these Terms, we may withdraw the Services or change or remove functions of the Services at any time without notice to you.

3.7

The Services may contain links to other websites. Those links are provided for convenience only and may not be current. Any hyperlinks or banners advertising other websites on the Platform or from websites that are external to the Platform which advertise the Platform are not subject to Making Things’ control or privacy standards, policies and procedures. Making Things will not be responsible for the content or privacy practices associated with such linked websites and we recommend that you make your own enquiries as to the privacy and other policies of these third parties.

3.8

While using the Platform and any associated Services, you must not:

a)

misuse any part of the Platform by introducing viruses, trojans or other material that is malicious or technologically harmful;

b)

attempt to gain unauthorised access to any part of the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform;

c)

engage in any activity that interferes with or disrupts the Services or the servers and networks which host the Services;

d)

attempt to circumvent, disable or otherwise interfere with any security-related features of the Services or any features which prevent or restrict the use or copying of any content or enforce limitations on the use of the Services or the content of the Platform;

e)

engage any abusive or derogatory behaviour; or

f)

advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation or mental or physical handicap.

3.8

If you fail to comply with this Agreement, Making Things may, at its absolute discretion and without liability:

a)

immediately temporarily or permanently withdraw your right to access and use the Services (including deletion of your account);

b)

immediately temporarily or permanently remove goods and / or services listed by you for sale on the Marketplace;

c)

take any other legal action against you;

d)

refer or report any suspected fraudulent, abusive or illegal activity to relevant law enforcement authorities.

4. Registration

4.1

To access certain parts of the Services, you must register with Making Things as a member by providing us with Registration Data as requested. You may not use one email address to register for multiple accounts.

4.2

If you are under the age of 18 years, we may ask you to confirm that you have your parents’ or guardians’ permission and that they have agreed to these Terms on your behalf and, even if we do this, we will assume that you have their permission and will provide you access to the Platform and your account on this basis.

4.3

If you are a parent or guardian who has permitted a person under the age of 18 (a “Minor”) to create a Making Things account, you agree to:

a)

exercise supervision over the Minor's use of our Services and their personal account with Making Things;

b)

assume all risks associated with the Minor's use of our Services and their Making Things account, including the transmission of content or information to and from third parties via the Internet;

c)

assume any and all liabilities resulting from the Minor's use of our Services and their Making Things account;

d)

ensure the accuracy and truthfulness of all information submitted to Making Things and the Platform by the Minor; and

e)

provide the necessary consents contained in these Terms on behalf of the Minor.

4.4

Subject to Clause 4.3, in the event that you provide Registration Data to us, you represent and warrant to us that the Registration Data provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and / or as required by us.

4.5

If you provide us with Registration Data you consent to the possibility that:

a)

you may receive emails from us confirming the details of your registration and any purchases from the Services made through your account with Making Things, providing you with necessary information relating to your access and use of the Services and any purchases from the Services made through your Making Things account; and

b)

from time to time, we may email you regarding our Services or third-party products and services which we believe may be of interest to you, such as new products, features, special offers and updated information. The emails may contain code that enables our database to track your usage of the emails, including whether the email was opened and / or what links (if any) were clicked. We may combine that information with other information which we have about you and may use that information to improve your site experience and / or provide customised email communications to you.

4.6

You acknowledge that we may use your Registration Data and any other personal information provided to us in accordance with the Making Things Privacy Policy, which you can view at makingthingsapp.com/privacy.

5. Legal Capacity

5.1

Any goods and / or services purchased from a Lister on, or via, the Platform is an acknowledgement by you that you meet the specified age requirement to transact with the Lister, accept these Terms and agree that these Terms are binding.

5.2

Making Things reserves the right to take legal action and seek compensation from a parent or guardian of a Minor for any loss or damage we may suffer as a result of, or in connection with, any transaction entered into on, or via, the Platform by a User who is a Minor.

6. Pricing

6.1

All prices displayed on the Marketplace are subject to change without notice, at the discretion of a Lister.

6.2

Where applicable, all prices listed on the Marketplace are in Australian Dollars unless otherwise specified by the Lister. Prices might otherwise be listed in British Pounds Sterling, Euros, US Dollars or any other nominated currency, as deemed necessary by Making Things from time to time.

6.3

All prices listed on the Marketplace exclude goods and services tax (GST) unless otherwise specified. However, they are inclusive of VAT.

6.4

Promotional discount codes may be provided to Users at the sole discretion of Making Things and, where appropriate, Users will be given written notice of the promotional discount codes at the time of the relevant offer.

6.5

Making Things reserves the right, at its absolution discretion, to prohibit any User from entering into a transaction via the Marketplace for any reason.

7. Purchases

7.1

In order to make contact with a Lister for the purchase of goods and / or services on the Marketplace, you must first register with Making Things in accordance with Clause 4.

7.2

You acknowledge and agree that a listing on the Marketplace for the provision of goods and / or services by a Lister to you constitutes mere information, and does not form part of any offer to sell the goods and / or services that may be provided by a Lister.

7.3

You may communicate with Listers via the chat button in the Lister’s profile for the purchase of goods and / or services. For the avoidance of doubt, all purchases and / or payments made pursuant to any agreement which utilises the Services is between you and the Lister and this agreement is made to the exclusion of Making Things.

7.4

Making Things operates an online platform that connects Listers and Users. Making Things is not responsible for the verification or authenticity of a Lister and you accept that you are responsible for verifying the identity and authenticity of a Lister and its goods and / or services when you engage them for the provision of goods and / or services.

7.5

Making Things communicates primarily with Users via email. By using our Services, you accept that communication with us will be mainly via electronic means. We will contact you by email or provide you with information by posting notices on the Platform. It is your responsibility to ensure that correct contact details are registered, that Making Things is given written notice of any changes to your contact details, and that you check the nominated email address regularly for any correspondence.

7.6

We accept no responsibility for purchases between a Purchaser and a Lister, and you agree to indemnify and hold us harmless against any and losses, liabilities, expenses, damages, costs, proceedings, demands or claims arising out of, or in connection with, the provision of the Platform and the use of the Services. We will not be liable for such losses in accordance with Clause 10.

8. Payment

8.1

The processing of payments for goods and / or services can only proceed once a User and Lister have entered into a separate, external agreement for the purchase of goods and / or services.

8.2

Making Things is not responsible for the processing of payments in relation to the purchase of goods and services and therefore accepts no responsibility for transactions that occur outside the Marketplace.

8.3

Despite Making Things using reasonable endeavours to verify the identity of Listers on the Marketplace, you acknowledge that, to the extent permitted by law, Making Things does not warrant the reliability, legitimacy, repute, or credibility of any Lister, nor the capacity, ability or willingness of the Lister to deliver or transact with you.

8.4

The User bears sole responsibility for verifying any terms and conditions imposed by the Lister in relation to the sale of goods and/or services, including but not limited to the terms of payment, processing and handling fees, commissions and refund policies.

8.5

To the maximum extent permitted by law, Making Things accepts no responsibility for any payment that occurs outside the Platform and will not be held liable for any damages, liabilities, expenses, costs or losses suffered by Users as a result of engagement with a Lister via the Platform, in accordance with Clause 10 and Clause 18.

9. Warranties

9.1

We will, within a reasonable period of time, investigate any alleged error or other issue regarding any of the Services, provided that you notify us in writing within seven (7) days of becoming aware of the error or other issue, giving us all necessary information to be able to investigate the error or other issue. Notwithstanding, you agree that our liability will be limited in any event to the right to attempt redelivery of the Services to you.

9.2

You agree to use your reasonable endeavours to ensure that the information that you supply us or any Lister is complete and accurate and notify us (and, if relevant, the User(s)) in writing if there is any change to the information supplied.

9.3

Except as provided in this Agreement, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided in accordance with this Agreement is given by us, other than as required by law. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.

9.4

Except as set out in this Clause 9, we give no further warranties. All implied warranties are hereby excluded.

9.5

You acknowledge that, to the extent permitted by law, Making Things does not warrant that any information or content displayed or uploaded by Listers on the Platform is accurate, complete, reliable, current, error-free, virus free or suitable for any particular purpose or use under any specific conditions, and that they are provided on an “as is” and “where is” basis.

10. Liability and Exclusions

10.1

We will not be liable to you or any third party for any loss, expenses, liabilities, costs, or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of any part of the Platform or downloading of any material or content posted on it, or on any website linked to it. We always recommend all Internet Users ensure they have up-to-date virus checking software installed.

10.2

You acknowledge that Making Things provides a marketplace service for connecting Users and Listers to use the Services, and is in no way involved in purchases or payments in relation to goods and / or services displayed on the Platform. To the fullest extent permitted by law, Making Things is not responsible for dealing with, and not, liable for, any disputes or complaints made by you or any User in relation to the goods or services sold, or via, the Platform (including any dispute or complaint regarding refunds, payment, goods or services). You should address such complaints directly with the Lister.

10.3

You agree that Making Things shall not be liable to you or any third party for any:

a)

indirect, consequential, special or exemplary losses, expenses or liabilities; or

b)

loss of profits, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, failure to realise anticipated savings, loss of opportunity, expectation loss or loss of production,arising out of, or in connection with, the provision or use of the Services, the Marketplace, the Platform or these Terms.

10.4

Notwithstanding, you agree that in any event, Making Things’ maximum aggregate liability to you or a third party under these Terms will be no more than AUD$100.

10.5

The User acknowledges and agrees that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties. The provisions of this Clause 10 will continue to apply indefinitely after Termination of this Agreement.

11. Confidentiality

11.1

The User and Making Things agree not to use or disclose Confidential Information, relating to or owned by the other, received or disclosed to it by the other party during the Term of this Agreement, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure shall be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.

11.2

The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal requirement, or is independently developed by the receiving party.

11.3

Any Confidential Information will be returned or destroyed by the receiving party at the written request of the owner.

11.4

You allow us to refer to you in any publicity we engage in after we have provided you with the Services or, with your permission, during our provision to you of the Services.

11.5

In the event that the parties execute a separate confidentiality agreement, the terms of that agreement shall prevail over this Clause 11 only.

12. Termination

12.1

We may terminate this Agreement (or, at our discretion, cease to supply you with the Services) at our sole discretion if:

a)

it transpires that you have provided false or misleading information on the Platform; or

b)

you are found by us to be offensive or abusive to a Lister or other Users.

12.2

Either party may terminate this Agreement immediately by written notice if the other is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach in writing (if it is capable of being remedied).

12.3

Either party may terminate this Agreement at any time upon four weeks’ written notice the other party.

13. Intellectual Property

13.1

You acknowledge that all Intellectual Property in any Material is the property of Making Things (or its licensors) and your use and access to the Services and the Platform does not give you any rights, title or interest in or to the Material. Unless expressly authorised either under this Agreement or otherwise by the licensors, you may not reproduce, adapt, modify, display, perform or distribute any Material or any part of any Material. Australian and international laws protect these intellectual property rights and nothing in this Agreement gives you any permission, right or licence to use any of the Intellectual Property.

13.2

Subject to the Copyright Act 1968 (Cth) and other relevant legislation, you may view the Services and its contents for personal and non-commercial use, however, you may not in any form or by any means reproduce, modify, distribute, store, transmit, publish or display within another website or create derivative works from any part of the Services or commercialise any information obtained from any part of the Services without the prior written consent of Making Things or, in the case of third party Material, from the owner of the copyright and / or other Intellectual Property in that Material.

13.3

You may not modify or copy the layout or appearance of the Services or any computer software or code contained in the Services, nor may you decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Services.

14. Unavoidable Events

We will not be liable to you (or anyone else) if Making Things is prevented from, or delayed in, performing its obligations under the Agreement or for failing to provide the Services by acts, events, omissions or accidents beyond its reasonable control (‘Unavoidable Events’). Where an Unavoidable Event occurs, we will attempt to recommence provision of the Services as soon as reasonably practicable. In such circumstances, there may be a delay (sometimes a substantial delay) before we can start or continue providing the Services to you.

15. Notices

15.1

Any notice required to be given pursuant to this Agreement shall, unless stated otherwise in this Agreement, be in English and in writing (including email communications), and be sent to the other party marked to such address as either party may from time to time notify to the other in writing in accordance with this clause (if no such address has been provided then in the case of Making Things, to hello@makingthingsapp.com, and in the case of a User, to that User’s last email address registered with their account.

15.2

A correctly addressed notice sent by correctly addressed emails shall be deemed to have been received 24 hours after sending.

16. Dispute resolution

16.1

You agree that if you have a complaint about the performance of the Agreement or the Services provided that you will contact us at hello@makingthingsapp.com in the first instance, and allow us reasonable time in which to consider your complaint, determine a possible solution and notify you of the solution.

16.2

If the complaint regards another User’s conduct, we may attempt to resolve the issue by taking such actions as we deem necessary, in Making Things’ absolute discretion, which may include the removal of a User’s access to the Platform.

16.3

If the complaint regards our own performance of the Agreement, such as regarding a technical issue on the Platform, we will use our reasonable endeavours to attempt to resolve the issue with you.

16.4

For any complaint regarding payment in relation to a Lister, you agree and acknowledge that such complaints should be made directly to that Lister, and that Making Things is indemnified from any losses, liabilities, damages, expenses or costs you or a third party may suffer in accordance with Clauses 10 and 18.

16.5

If, following a purchase, you feel the goods and / or services:

a)

were not of acceptable quality;

b)

were not fit for its purpose; or

c)

did not match its description,

16.5

you may have rights under the Australian Consumer Law to have the goods and / or services replaced by the Lister, or have the price you paid for the goods and / or services refunded by the Lister.

16.6

Nothing in these Terms excludes, restricts or modifies the consumer guarantees provided for under the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”).

17. Linking to the Platform

17.1

You may link to the Platform, provided that you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

17.2

You must not establish a link to the Platform from any website that is not owned by you (except with the website owner’s express permission).

17.3

The Website must not be framed on any other website.

17.4

Notwithstanding anything to the contrary, we reserve the right to withdraw our linking permission under this Clause 17 by updating these Terms on the Platform.

18. Indemnity

18.1

To the fullest extent permitted by law, you agree that you waive, release, discharge and relinquish any and all claims that you have now or may have against Making Things which are connected with, arise out of, relate to or are incidental to use of the Services.

18.2

You agree to indemnify and to keep Making Things indemnified and hold it harmless from and against any and all claims, loss, damage, taxes, liabilities and/or expenses that may be incurred by Making Things arising out of, or in connection with, the provision of the Platform, your use of the Services, any breach by you or third party of this Agreement or the use of any part of the Platform contrary to these Terms or any other warnings or instructions (including labels) on the Services, or as otherwise notified to you from time to time.

18.3

The User agrees and acknowledges that Making Things will not be liable or responsible for any loss or damage suffered by any Lister due to the actions of a User, and the User will indemnify Making Things from and against any and all claims by any Lister in relation to any and all content created by the User or any actions of the User.

19. Privacy

19.1

We may gather personal information about our customers for the purposes of marketing, supplying or delivering our Services to you and expanding our business.

19.2

Making Things is committed to protecting your privacy and personal information because of our legal and ethical commitment to comply with relevant laws and, more importantly, because we know that you care how information about you may be used and shared.

19.3

Further details about our practices relating to the collection, use, disclosure and storage of your personal information are available here: makingthingsapp.com/privacy

20. General

20.1

Making Things reserves the right to make changes to these Terms or the Services by giving you written notice, or by otherwise posting it on the Platform. Accordingly, we recommend that you re-read these Terms periodically. The latest version of these Terms will be available here. If you do not agree to these changes, you should immediately cease using the Services and otherwise accessing the Platform. Your continued use of the Services or Platform constitutes your acceptance of these changes.

20.2

Any provision of this Agreement that is found void or unenforceable will, to the extent that it is void or unenforceable, be severed from this Agreement without affecting the enforceability or validity of any other provisions.

20.3

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.

20.4

This Agreement is governed by, and must be construed according to, the laws of the State of Victoria, Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts in that State.