Terms of Service
Flippa has recently updated its Terms of Service (Terms?)
LAST UPDATED: April 30, 2020
Welcome to www.cjamesadams.com, an online marketplace that allows third-party sellers to list an asset for sale; and to connect, communicate, and transact with buyers.
www.cjamesadams.com Pty Ltd (ACN 135 570 713) and its affiliates (Flippa) provide website features and other products and services to you when you visit www.cjamesadams.com (the Website) and use Flippa products or services (collectively Flippa Services). Flippa Services include the information, content, materials, products, and software included on or otherwise made available to you by Flippa and references to the Flippa Services in these Terms include any or all of these. Flippa provides the Flippa Services to you subject to these Terms and accessing the Website and using the Flippa Services, you agree to be bound by them. Please read them carefully before using Flippa Services.
2. ELECTRONIC COMMUNICATION
When you use the Flippa Services or send e-mails, text messages, or other communication from your desktop or mobile device to us, you are communicating with us electronically. We will communicate with you electronically in a variety of ways, such as by e-mail, text, or communication via our discussion forum. You consent to receive communications from us electronically and agree that communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
3. COPYRIGHT AND OTHER RIGHTS
All content included in or made available by Flippa, such as text, graphics, logos, button icons, images, video and audio clips, digital downloads and data compilations is the property of Flippa and is protected by Australian and international copyright and authors’ rights laws and (where applicable) database right laws.
Other than to the extent necessary to use the Flippa Services for their permitted purposes and in accordance with these Terms, you may not copy, extract and/or re-utilize any content of Flippa without our express written consent, including, without limitation, any listings, descriptions, prices and account information. In particular, you may not utilize any data mining, robots, or similar data gathering and extraction tools to extract (whether once or many times) for re-utilization any substantial parts of the Flippa Services or their content, without our express written consent. You may also not create and/or publish your own database that features substantial parts of the Flippa Services or their content without our express written consent.
Graphics, logos, page headers, button icons, scripts, and service names included in or made available through the Flippa Services are trademarks of Flippa. Flippa’s trademarks may not be used in connection with any product or service that is not Flippa’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Flippa. All other trademarks not owned by Flippa that appear in the Flippa Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Flippa. You may not frame or use framing techniques to enclose any trademark or logo (including images and text) of Flippa without our express written consent. You may not use any meta tags or any other “hidden text” utilizing Flippa’s names or trademarks without our express written consent.
5. YOUR ACCOUNT
By registering and creating an account with Flippa, you represent and warrant that you over 18 years of age and you can form legally binding agreements under applicable law. If you are registering an account for a business, organization or other legal entity, you represent and warrant that you have the authority to legally bind that entity. Unless authorized by Flippa in writing, you may have only one account, unless authorized by Flippa in writing.
You are responsible for maintaining the confidentiality of your account and password. Except to the extent caused by our breach of these Terms, you are responsible for all activities that occur under your account regardless of whether the activities are authorized by you or undertaken by you. Flippa is not responsible for unauthorized access to or use of your password or account. You should take all necessary steps to ensure that your password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if your password is being, or is likely to be used in an unauthorized manner. You must ensure that the details you provide to us are correct and complete and inform us of any changes. You can access and update certain information you have provided to us via your account dashboard.
If we have concerns with your account, or activity relating to your account, or if you are in breach of applicable laws or these Terms, we reserve the right to take action on your account in accordance with these Terms, including without limitation by (i) refusing service, (ii) suspending or restricting access to your account, (iii) terminating your account, or (iv) removing or editing content you post using your account. The action we elect to take and any notice you may receive will vary depending on the Flippa Services, the circumstances, and our assessment of relevant factors.
6. ID VERIFICATION
Any reference to a buyer or seller being “verified” indicates only that the buyer or seller has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by Flippa about any buyer or seller, including their identity, background or whether they are trustworthy, safe or suitable.
To access or use some of the Flippa Services, you may be asked to provide proof of identity or other methods of identity verification. You agree to provide Flippa or any third party which provides goods or services to Flippa with all identification documents (including but not limited to, copies of passports and/or government-issued driver’s license) which Flippa requests from you from time to time for the purposes of verifying your identity.
7. FLIPPA’S ROLE
Flippa allows third-party sellers to list and sell their assets using the Flippa Services. Flippa does not own, create, sell, resell, provide, control, offer or deliver listings or the assets contained therein. The relevant seller is indicated on the respective listing page. While Flippa helps facilitate transactions that are carried out on the Website, Flippa is neither the buyer nor the seller on the seller’s assets.
Flippa provides an avenue for sellers and buyers to negotiate and complete transactions. Accordingly, the contract formed at the completion of the sale for these third-party assets is solely between the buyer and seller. Flippa is not a party to this contract nor assumes any responsibility arising out of or in connection with it nor it is the seller’s agent. The seller is responsible for the sale of their assets and for dealing with any buyer claims or any other issue arising out of or in connection with the contract between the buyer and seller.
Flippa is not responsible for:
(a) the existence, quality, suitability of legality of a listed asset;
(b) the truth, accuracy or completeness of the information contained in a listing;
(c) the future performance of a listed asset;
(d) the performance or conduct of a buyer or seller or third-party on the Website; and/or
(e) the quality, suitability or ability of a third party which provides goods or services to Flippa or to a buyer or seller.
Your decision to purchase a listed asset shall be based solely on your own investigation and that of your legal, tax and other advisors. You accept sole responsibility for examining and investigating an asset and all information in a listing. This includes, but is not limited to, associated liabilities, financial statements, tax returns and any other facts or information which may impact your decision to purchase that listed asset and the price you are willing to pay. You understand that Flippa may display only a summary description of a listed asset.
To help facilitate a safe, secure transaction and to preserve the integrity of the Flippa Services, we make available a template letter of intent and sale contract for use by buyers and sellers. You acknowledge that you use these documents at your own risk. You agree that Flippa has not in any way provided legal or financial advice by providing these documents or made representations or warranties that they are suitable for your requirements or needs and may not be appropriate or suitable to the sale or purchase of a particular asset. Flippa recommends all parties seek their own independent legal advice in relation to the documents.
8. LISTING RULES
The following assets may be listed for sale on Flippa:
(a) all detail and reference to files contained in a website or an application, including but not limited to, the HTML, the code base, other source code, logos, images, music, animation, films and other media, licenses and other works associated with the website or the application;
(b) any rights and obligations under or in relation to an agreement with a third party relating to assets which may include, but is not limited to hosting agreements, payment provider agreements, affiliate agreements and seller agreements;
(c) a brand name relating to a business, including any registered trademarks specified in the listing;
(d) any records;
(e) all rights to a domain name;
(f) any other documented asset including inventory or other agreement critical to the sale and
ongoing concern of a business, including legal agreements, employment agreement, leasing agreements and other agreements; and
(g) any other particulars specified as being sold as part of a listing.
For the avoidance of doubt, Flippa does not promote, encourage or facilitate the sale of securities using Flippa Services.
When you create a listing, you will be asked to provide complete and accurate information about your asset, including, but not limited to a business description and current and historical financial data. You are responsible for your listing and keeping your listing information up to date at all times. You will also be asked to set an asking price for your asset/s, either a set price in the case of a fixed-price listing or a starting price, reserve price, and optional buy it now price, in the case of an auction-format listing. Please be aware that Flippa may, in its sole discretion, prevent you from listing your asset for sale, or suspend an existing listing, if it considers that a price set is unreasonable or not aligned with market value.
You warrant and represent to Flippa and to each buyer that:
(a) you own the asset or are entitled to sell the asset;
(b) you are the owner of all intellectual property rights, including but not limited to copyright, patent, trademark, designs whether registered or not and throughout the world and all other rights, title and interest in the asset,
(c) the asset is transferable to a buyer; and
(d) any and all agreements with third parties are transferable to the Buyer.
You must not create a listing for an asset which is:
(a) is obscene, vulgar and/or deemed by Flippa to be offensive;
(b) contains material which infringes the rights of a third party or which assists others to infringe the rights of a third party;
(c) is engaged in activities which contravenes law of any territory; or
(d) Flippa deems inappropriate or in breach of these Terms.
9. LISTING TYPES
Flippa enables two kinds of listings — auction-format listings and fixed-price listings.
With a fixed price-listing, any buyer can offer to purchase the asset contained in a listing. An offer must be placed on the listing. A seller can accept, reject or counter any offer. If you are a buyer and have placed an offer, you acknowledge and agree that should the seller accept that offer, you are committing to purchase the asset and may be required to pay for it. If you are a seller and have accepted an offer, you acknowledge and agree that you are committing to sell the listed asset to the buyer.
With an auction-format listing, a seller will accept bids from buyers for a predetermined amount of time — generally 30 days. For a bid to be valid, it must be higher than the starting price or then-current bid. At the end of the auction, the asset subject of the listing will be declared sold to the highest bidder, provided their bid exceeds the reserve price set by the seller. Should you win the auction, you agree that you are committing to purchase the listed asset and may be required to pay for it.
For the avoidance of doubt, Flippa is not an auctioneer and a seller conducts an auction on their own behalf.
A listing may also show a ‘buy it now’ button with a price listed next to it. A buyer may purchase a listed asset simply by clicking the ‘buy it now’ button, provided it is accepted by the seller. By clicking ‘buy it now,’ a buyer commits to buying the listed asset.
If a listed asset has a set asking price, in the case of a fixed-priced listed, or a reserve price, in the case of an auction-format listing, equal to or above USD$25,000, you agree that you will promote and/or sell that asset exclusively using the Flippa Services. For the period in which your listing is live on the Website and for 90 days from the date you remove your listing, you warrant that you will not use any other platform, marketplace or service, including a broker service, to promote or sell your asset, without the express written permission of Flippa.
If Flippa discovers that you have been in violation of this clause 10, you acknowledge and agree that Filipa has the right to immediately suspend your listing and terminate your account and may, at its discretion, take action against you to recover a success fee.
11. MARKETPLACE CIRCUMVENTION
You must conduct all inquiries into and discussions about a listed asset, through the Website unless expressly authorized by Flippa.You must not circumvent Flippa.?If you make or accept payment for a listed asset, Flippa is entitled to a success fee. If Flippa is unable to recover its success fee from the seller, the buyer is liable to pay the success fee.
12. OUR FEES
12.1 Listing Fee
You will be charged a listing fee when you list an asset for sale. For current fees, please see Flippa Pricing. You will only be charged a fee for creating a listing; there is no fee for editing a listing. You will be charged a fee whether or not the listed asset sells. Listing fees are non-refundable.
Listings do not expire. You may cancel your listing or account at any time by emailing [email protected] and then following the specific instructions indicated to you in Flippa’s response.
12.2 Success Fee
If you successfully sell a listed asset to a buyer who becomes aware of your listing and/or connects or engages with you via Website, you agree to pay Flippa a success fee which is calculated as a percentage of the total transaction value or final sale price paid by the buyer for your listed asset (including any applicable taxes). For current fees, please see our ?Success Fee Page. Our success fee is non-negotiable and non-refundable. Flippa reserves the right to change the success fee at any time and will provide you with adequate notice of those changes before they become effective.?
13. CREDITS AND REFUNDS
If Flippa issues you a refund, that refund will be paid to you using the same payment method you used to pay Flippa. Flippa may refund an amount of paid by you if you are entitled to a refund in accordance with these Terms or Flippa is required by law or considers that it is required by law to do so. Flippa’s determination as to whether a refund is required is final and conclusive and may not be challenged by you.
You may earn points or credits for your activity on the Website. These credits are not equivalent to any currency. They may, however, be used to pay for Flippa Services in accordance with rules specified by Flippa from time to time. You cannot use credits to purchase a listed asset. The balance of any credits held by you may be reduced at any time by Flippa for any amount owing by you to Flippa on any account whatsoever including in relation to compensating Flippa for any loss that it determines (in its sole and absolute discretion) it has suffered as a result of any breach of these Terms. The balance of credits held by you will expire 12 months from the date that you last used any credits. Balances of your credits that are not spent within this 12-month period are lost. You acknowledge and agree that Flippa is not liable to you for any unauthorized withdrawals or unauthorized spending of your credits, including where such withdrawal or spend arises from any unauthorized use or access of your account.
14. PAYMENT PROCESSING
Flippa is not an escrow service and does not hold property on behalf of any person. Flippa is not a payment provider. For the purposes of facilitating a transaction, any and all payment processing services through or in connection with your use of the Flippa Services are provided to you by one or more independent third-party service provider, as appropriate. You hereby consent and authorize Flippa to share any information and payment instructions you provide with any third-party service provider(s).
15. VALUATION CALCULATOR
You are solely responsible for setting a price for your listed asset. To help you determine an appropriate price, Flippa makes a valuation calculator. You acknowledge and agree that any valuation produced by the Flippa Valuation Calculator is an estimate only and must not be construed as or relied upon as a professional valuation. The valuation is generated by a mathematical model in reliance on available data, without an in-depth analysis of the asset and without having regard to market conditions or features which may affect the value and saleability of the asset.
16. FLIPPA DUE DILIGENCE
Flippa provides due diligence services and you can pay to acquire a due diligence report on a listed asset. While Flippa strives to make the information in this report as accurate as possible, we make no claims, promises or guarantees about the accuracy, completeness or adequacy of the contents of this report, and expressly disclaim liability for errors and omissions in its contents. No warranty of any kind, implied, expressed or statutory including but not limited to the warranties of non-infringement of third party rights, title, merchantability of fitness for a particular purpose is given with respect to the contents in this report.
Furthermore, any information provided herein with regard to the listed asset is informational in nature. We are not a legal advisory or business advisory service and do not purport to tell or suggest which business decisions to make. You understand and acknowledge that there is a risk involved in the purchase of a website or online business. We assume no responsibility or liability for your investment or business results. Factual statements within this report are made as of the data stated and are subject to change without notice.
All information is provided solely for educational purposes and you are encouraged to seek independent advice from a competent professional person if legal, financial, tax, or other expert assistance is required.
17. REVIEWS AND COMMENTS AND COMMUNICATION
You may post reviews, comments, and other content; send communications; and submit questions or other material, as long as the content is not:
(a) of a personal or solicitous nature,
(b) unrelated to a listing,
(c) an attempt to transact outside the Website,
(d) illegal, obscene, abusive, threatening, defamatory or an invasion of privacy,
(e) infringing of intellectual property rights, or
(f) injurious to third parties or objectionable.
You must not post or send any content that contains software viruses, or that comprises political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam”. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any such content or communication. We reserve the right (but not the obligation) to remove or edit any content at any time and for any reason in its sole and absolute discretion.
While comments and reviews are visible to other users, interactions and exchanges via the discussion forum are private as between individuals and accessible to Flippa.
18. INTELLECTUAL PROPERTY RIGHTS
You are responsible for your content and you represent and warrant that you own or otherwise control all of the rights to the content and material that you post and that, as at the date that the content or material is posted it: (i) is accurate; (ii) complies with these Terms and (iii) does not breach any applicable laws.
If you post content or submit material, and unless we indicate otherwise, you grant Flippa a non-exclusive, royalty-free and fully sublicensable and transferable rights to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media;
You agree that the rights you grant above are irrevocable during the entire period of protection of your intellectual property rights associated with such content and material. To the extent permitted by law, as applicable, you: (i) consent to any infringement of; and (ii) agree to waive, any right you have to be identified as the author of such content and any right you have to object to derogatory treatment of such content. You agree to perform all further acts necessary to perfect any of the above rights granted by you to Flippa, at our request.
You agree to indemnify Flippa for all claims brought by a third party against Flippa arising out of or in connection with the content and material you supply except to the extent that any liability arises from our failure to remove the content or material.
19. THIRD-PARTY LINKS
20. PROHIBITED ACTIVITIES
You may not use the Flippa Services:
(a) in any way that causes, or is likely to cause, any Flippa Service, or any access to it to be interrupted, damaged or impaired in any way
(b) in any way that may interfere with or harm any other user of the Flippa Services;
(c) for fraudulent purposes, or in connection with a criminal or other unlawful activity,
(d) in any manner that is not permitted under these Terms.
21. DISCLAIMER AND LIABILITY
Unless otherwise specified in writing, Flippa disclaims, and does not make, any representation or warranty of any kind in respect of the Flippa Services including without limitation any representation or warranty,
(a) that they are free of viruses or other harmful components;
(b) that your use of the Flippa Services will be uninterrupted or error-free; or
(c) as to the suitability or availability of the Flippa Services.
Flippa will not be responsible for:
(a) losses arising from the unavailability of, or your inability to use the Flippa Services
(b) losses that are not directly caused by any breach on our part;
(c) any business loss, loss of sales, profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure;
(d) any indirect or consequential losses;
(e) any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
For any other loss relating to the Flippa Services, we limit our liability to the amount you have paid to us for the relevant Flippa Services.
Nothing in these conditions is intended to:
(a) override any express commitments Flippa gives to you with respect to the Flippa Services (for example, the provision of a refund in certain circumstances) or
(b) exclude, restrict or modify any right or remedy you have in statute including under the Australian Consumer Law or otherwise to the extent that that right or remedy cannot be excluded, restricted or modified under law. Any disclaimer, exclusion, or limitation in these conditions applies as provided for in these conditions to the full extent permitted by law and subject to any such non-excludable right or remedy.
You agree to indemnify and hold Flippa and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including legal fees) arising out of or in connection with:
(a) your use of the Website, Flippa Services or assets obtained as a result;
(b) your breach or violation of any of these Terms;
(c) Flippa’s use of your content;
(d) your violation of the rights of any third party, including another seller or buyer.
You agree to hold Flippa, its principals, officers, directors, brokers, agents, servants, employees and assigns harmless from any misrepresentations made by you.
23. APPLICABLE LAW
The laws of Victoria, Australia govern these Terms and any dispute of any sort that might arise between the parties. Any dispute relating in any way to these Terms will only be adjudicated in the courts of Victoria. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods, and any local laws implementing the Convention on Contracts for the International Sale of Goods, do not apply to this Agreement.
24. DISPUTE RESOLUTION
In the event of a dispute between a buyer and seller, Flippa recommends that the parties engage in pre-dispute arbitration via the discussion forum. Flippa may help to facilitate the resolution of a dispute between a buyer and seller and reserves the right to cancel the sale of a listed asset. If a buyer and seller cannot come to an agreement on a dispute, Flippa recommends that legal advice is sought to resolve the matter.
25. FORCE MAJEURE
You agree that Flippa will not be liable or responsible for any failure in, or delay to, the provision of the Flippa Services or in Flippa complying with these Terms, where such failure or delay has arisen or is anticipated to arise as a direct or indirect result of:
(a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
(c) a significant demand is placed on Flippa Services which is above the usual level of demand and which results in a failure of Flippa’s software and hardware to function correctly;
(d) the failure of any third party (including without limitation, any bank or other financial organization) to fulfill any obligations to Flippa; or
(e) any other circumstances or events that are beyond the reasonable control of Flippa (as the case may be).
Flippa may give notice by means of a general notice on the Website, electronic mail to the email address on your account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by mail or pre-paid post to any address connected with your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Flippa, with such notice deemed given when received by Flippa, at any time by mail or pre-paid post to our registered agent for service of process, c/o Flippa Pty Ltd.
Flippa may assign its rights and novate or transfer obligations that arise under these Terms. You must not assign, novate or otherwise transfer your rights or obligations under these Terms without the prior written consent of Flippa (which may be withheld).
A provision of or a right created under these Terms may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies in these Terms are cumulative with and not exclusive of any rights, powers or remedies provided independently.
29. ENTIRE AGREEMENT
These Terms supersedes all prior representations, arrangements, understandings, and agreements between the parties relating to the subject matter and sets forth the entire and exclusive agreement and understanding between the parties.
We reserve the right to make changes to our website, these Terms, our policies, and our listings at any time by posting the changes on our website. Your continued access to or use of the Website and Flippa Services will constitute acceptance of the revised Terms.
If any of these Terms are judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other term to the intent that the invalid or unenforceable term will be treated as severed from the Terms.