Swimseeker::Lets go fishing

Terms & Conditions

Swimseeker Terms and Conditions
Our Disclosures

Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:

we may amend these Terms at any time, by providing written notice to you;

· our liability under these Terms is limited to us resupplying the Services to you, and we will not be liable for Consequential Loss;

· we will have no liability for the use or results of any Third Party ID Service or Identity Check, any aspect of the User and Client interaction including the services offered by the Client, the description of the services requested or offered, any advice provided, the performance of services and any event outside of our reasonable control;

· we may terminate these Terms at any time by giving 10 days’ written notice to you; and

we will handle your personal information in accordance with our privacy policy, available at https://swimseeker.com/privacy-policy.

Nothing in these terms limit your rights under the Australian Consumer Law.

Introduction
1. These terms and conditions (Terms) are entered into between AB Equation T/A Swimseeker ABN 21 300 213 696 (we, us or our) and you, together the Parties and each a Party.
2. We provide a platform where charter and fishery providers from all over the world (Clients) and customers on our platform (Users) can connect and transact with each other to purchase fishing and charter trips around the word, and access monthly trips on our platform (Platform).
3. In these Terms, you means (as applicable) the person or entity registered with us as either a User or Client or the individual accessing or using the Platform.
4. If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
Acceptance and Platform Licence
1. You accept these Terms by clicking “I accept”, registering on the Platform, or using the Platform or the Swimseeker Services.
2. You must be at least 14 years old to use the Platform.
3. We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may terminate these Terms and your Account in accordance with the Termination clause.
4. Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.
5. When using the Platform, you must not do or attempt to do anything that is unlawful or inappropriate, including:
anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
using the Platform to defame, harass, threaten, menace or offend any person;
using the Platform for unlawful purposes;
interfering with any user of the Platform;
tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);
using the Platform to send unsolicited electronic messages;
using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or
facilitating or assisting a third party to do any of the above acts.
Accounts
1. You must register on the Platform and create an account (Account) to access the Platform’s features.
2. You may only have 1 Account as a Client and 1 Account as a User on the Platform.
3. You must provide basic information when registering for an Account including your business name, contact name and email address and you must choose a username and password. The username you choose must not (1) be offensive or in other ways insulting or (2) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.
4. Once you have registered an Account, your Account information will be used to create a profile which you may then curate.
5. All personal information you provide to us will be treated in accordance with our Privacy Policy.
6. You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer it to others.
7. You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.
8. We may make access to and use of certain parts of the Platform subject to conditions or requirements, including identity verification, cancellation history, quality of services and threshold of reviews.
Platform summary
1. The Platform is a marketplace where Users and Clients can find each other, and advertise, buy and sell charter and fishery services online. We provide the Platform to users (including hosting and maintaining the Platform), process payments between Users and Clients (together the Swimseeker Services). You understand and agree that we only make available the Swimseeker Services. We are not party to any agreement entered into between a User and a Client and we have no control over the conduct of Clients, Users or any other users of the Platform.
2. A Client wanting to provide services creates an Account on the Platform and posts an accurate and complete description of the services they can provide, including the fees for the services (Listing Fees) and details of their location and available times (Client Listing).
3. If you are a Client, where we agree with you in writing that these Terms create an exclusive relationship between us and you, you agree that you will comply with the terms of the exclusive relationship.
4. A User wanting to buy services creates an Account on the Platform to view and browse Client Listings.
5. A User may request to buy services described in a Client Listing by sending a request through the Platform. The request is an offer from the User to the Client to book the services described in the Client Listing (Booking Request).
6. If the Client accepts the Booking Request through the Platform, it becomes a Confirmed Booking.
7. By accepting a Booking Request, the Client confirms that it is legally entitled to and capable of supplying the services described in the Booking Request.
8. Users and Clients may enter into written agreements in relation to the services. To the extent there is inconsistency between any additional terms and conditions and these Terms, these Terms will prevail.
9. Clients must include all additional terms and conditions relating to their services in the relevant Client Listing or must clearly state that there are additional terms and conditions. By sending a Booking Request, a User is accepting the additional terms and conditions of the relevant Client.
Communication
1. We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as text message or email.
2. Users and Clients can communicate privately using our private messaging service or offline using the listed contact details before a Booking is made. Users and Clients must not use the contact details to organise the provision of the services off the Platform.
Payments
1. As a User, you must purchase tokens (Tokens) in order to make a Booking on the Platform. The price of the Tokens is set out on the Platform. Tokens are non-transferable, will not be redeemable as cash and must be purchased in addition to the Listing Fees.
2. A User will make a Booking on the Platform by using their Tokens. Once a Token is deducted from the User’s online wallet, the relevant Booking is confirmed. The User must pay the applicable Listing Fees for the Confirmed Booking in order to receive the listed services. We will invoice the User the applicable Listing Fees for the Confirmed Booking and the User must pay the amount in the invoice, using the payment method set out in the invoice within 1 of the date of the invoice or as otherwise agreed by the User and Us.
3. Upon receipt of the Listing Fees from the User, our third party payment processor currently PayPal will hold the Listing Fees until such time as you have completed the services in the Confirmed Booking, or until such time as the Listing Fees are refunded to the User (if the User is entitled to a refund in accordance with these Terms).
4. If you are a Client, you appoint us as your limited payment collection agent solely for the purpose of accepting the Listing Fees from the relevant User. You agree that we will not be required to pay you any amount until we have received the Listing Fees from the relevant User, and that we may grant refunds to Users in accordance with these Terms. We will pay you the Listing Fees [X] days after the services in the Confirmed Booking have been successfully delivered to the User by depositing them in your bank account as linked in your Account.
5. The payment methods we offer for the Listing Fees are set out on the Platform or in an invoice issued by us to you. We may offer payment through a third-party provider for example, PayPal. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.
6. You must not pay, or attempt to pay, the Listing Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.
7. You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise).
Refunds and Cancellation Policy
1. The cancellation, variation, or refund of any services ordered on this Platform is a matter between the relevant User and Client, subject to the following: (1) to the maximum extent permitted by law the User must pay us a 5% cancellation fee on Bookings that are valued at $50,000 or more; and (2) to the maximum extent permitted by law the User must pay us a 10% cancellation fee on Bookings that are valued less than $50,000, where notice of cancellation is not provided in accordance with the Client’s cancellation policy (Cancellation Fee). Subject to clause 8.2, we will pay the Cancellation Fee in accordance with the Payment clause to the Client following receipt of the Cancellation Fee. Each User acknowledges that the Cancellation Fee is a genuine pre-estimate of the loss the Client has incurred as a result of your cancellation.
2. Despite anything to the contrary, if you are a Client, you agree that we will be entitled to a portion of the Cancellation Fee as agreed in writing between us.
3. If: (1) User and Client mutually agree to cancel a Confirmed Booking; or (2) following reasonable attempts by a User to contact a Client for the Client to fulfil the Confirmed Booking, the Confirmed Booking is cancelled; and (3) we are satisfied that the Listing Fees should be returned to the User, we will return the Listing Fees to the User, and, if applicable, reissue the Token back to the User’s online wallet, provided that the Listing Fees have not yet been paid to the Client.
4. For disputes between Users and Clients, we encourage Parties to attempt to resolve disputes (including claims for returns or refunds) with the other Party directly and in good faith, either on the Platform or through external communication methods. In the event that a dispute cannot be resolved through these means, the Parties may choose to resolve the dispute in any manner agreed between the Parties or otherwise in accordance with applicable laws.
5. This clause will survive the termination or expiry of these Terms.
Identify verification
1. If we choose to conduct identity verification or background checks on any User or Client, to the extent permitted by law, we disclaim all warranties of any kind, either express or implied, that such checks will identify prior misconduct by a User or Client or guarantee that a User or Client will not engage in misconduct in the future. Any verification of Clients on the Platform is not an endorsement or recommendation that the Client is trustworthy or suitable. You should do your own due diligence before using a Client’s services.
2. We may offer you the option of verifying your identity and/or validating your Account using a third party verification service (Third Party ID Service).
3. Where you have elected to verify your identity under this clause, you acknowledge and agree that (1) we may contact, connect to or otherwise liaise with Third Party ID Services to validate your identity and information (Identity Check); and (2) Third Party ID Services may provide us with your personal information or sensitive information, and you consent to us receiving and using this information to enable us to perform an Identity Check.
4. Following a successful Identity Check, you acknowledge and agree that (1) we may permit you to use verification signs, icons or badges in connection with your Account to indicate that a successful Identity Check has been performed (Verification Icon); and (2) a Verification Icon may only be used by the individual or business for whom the relevant Identity Check has been successfully performed and the relevant Verification Icon has been issued, and then, only where that individual is directly providing the relevant services .
5. You acknowledge and agree that (1) the Identity Check and the issuance of a Verification Icon may not be fully accurate, as they are dependent on the information provided by the relevant individual or business and/or information or checks performed by third parties; and (2) you should not rely on the Identity Checks or the Verification Icons, and you should make your own inquiries as to the accuracy, legitimacy, validity, credibility or authenticity of any users of the Platform.
Reviews
1. Clients may review their experience with the User on the Platform, and Users may review with the Client on the Platform, including the services (each a Review).
2. Reviews can be viewed by any user and will remain viewable until the relevant Account is removed or terminated.
3. You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
4. You can write a Review about a Client if you have had an experience with that Client, which means that (1) you have engaged the Client through the Platform; or (2) you can otherwise document your interaction with the Client in relation to the Platform, including via correspondence (collectively referred to as a User Experience).
5. You can write a Review about a User if you have had an experience with that User, which means that (1) you have been engaged by the User through the Platform; or (2) you can otherwise document your interaction with the User in relation to the Platform, including via correspondence (collectively referred to as a Client Experience).
6. You may not write a review about a Client you have previously owned, currently own, or which an immediate family member currently owns, or if you are an executive or employee of that Client, or work for the Client. Similarly, you may not write a Review about a direct competitor to the Client that you own, are employed by or work for.
7. You may only write about your own User Experience or Client Experience . You are not permitted to write a Review about somebody else’s User Experience or Client Experience , such as that of a family member or friend.
8. You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a Client to write a Review, you should include information about this in your Review. Incentives include the Client offering you a gift, reward, discount or advantage for writing a Review about the Client on the Platform.
9. This clause will survive the termination or expiry of these Terms.
Intellectual Property
1. All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, any content on the Platform, and the products) (Our Intellectual Property) will at all times vest, or remain vested, in us.
2. We authorise you to use Our Intellectual Property solely for the purposes for which it was intended to be used.
3. You must not, without our prior written consent:
copy, in whole or in part, any of Our Intellectual Property;
reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of Our Intellectual Property.
1. Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:
you do not assert that you are the owner of Our Intellectual Property;
unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;
you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and
you comply with all other terms of these Terms.
1. This clause will survive the termination or expiry of these Terms.
Content you upload
1. You may be permitted to post, upload, publish, submit or transmit relevant information, content and Reviews (User Content) on the Platform.
2. If you make any User Content available on or through the Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through or by means of the Platform and our social media platforms. We agree to only modify User Content to the extent reasonably required by us. You may request that any of your User Content is removed from the Platform or social media by sending us an email to the address at the end of these Terms. We will endeavour to action any removal requests within a reasonable time.
3. You agree that you are solely responsible for all User Content that you make available on or through the Platform. You represent and warrant that:
you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content (as contemplated by these Terms); and
neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Platform (including on social media) will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
1. We do not endorse or approve, and are not responsible for, any User Content. We may, at any time (at our sole discretion), remove any User Content.
2. This clause will survive the termination or expiry of these Terms.
Warranties
1. You represent, warrant and agree that:
you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
there are no legal restrictions preventing you from entering into these Terms;
all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
where you are a Client, you are responsible for complying with all laws, rules and regulations which apply to providing the services in your Client Listings; and
where you are a Client, you are appropriately qualified, and have any required skills, knowledge or training, to provide the services.
Australian Consumer Law
1. Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
2. If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
3. Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
4. As a User, the services provided by a Client may also confer on you certain rights under the ACL.
5. This clause will survive the termination or expiry of these Terms.
Exclusions to liability
1. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
any aspect of the User and Client interaction including the services offered by the Client, the description of the services requested or offered, any advice provided, the performance of services or; and
any event outside of our reasonable control.
1. You agree to indemnify us for any Liability we incur due to your breach of the Acceptance and Platform Licence clause and the Intellectual Property clause of these Terms.
2. This clause will survive the termination or expiry of these Terms.
Limitations on liability
1. To the maximum extent permitted by law:
neither Party will be liable for Consequential Loss;
each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that party to mitigate its losses; and
1. our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Swimseeker Services to you or, in our sole discretion, paying you [insert $ cap here].
2. This clause will survive the termination or expiry of these Terms.
Termination
1. Your Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in the Account page section of your Account settings.
2. We may terminate these Terms at any time by giving 10 days’ written notice to you (Termination for Convenience).
3. These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
the Defaulting Party is unable to pay its debts as they fall due.
1. Should we suspect that you are in breach of these Terms, we may suspend your Account while we investigate the suspected breach.
2. Upon expiry or termination of these Terms:
we will remove your access to the Platform;
we will immediately cease providing the Swimseeker Services;
you agree that other than where termination is due to our Termination for Convenience and to the maximum extent permitted by law, any payments made by you to us are not refundable to you;
where you are a User, we will cancel any existing Confirmed Bookings and you will lose any Listing Fees and other amounts paid, other than where termination is due to our Termination for Convenience, in which case the Listing Fees will be refunded to you;
where you are a Client, we will cancel any existing Confirmed Bookings and refund the relevant Users in accordance with the Refunds and Cancellation Policy clause; and
where we terminate the Terms for any reason other than a Termination for Convenience, you also agree to pay us our reasonable additional costs directly arising from such termination (including legal fees, debt collector fees and mercantile agent fees).
1. Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
2. This clause will survive the termination or expiry of these Terms.
Client insurance
1. As a Client, we may request that you provide evidence of your insurance. Where we do so, we are not confirming that the insurance you have is sufficient or suitable for the services you choose to provide to Users. If we do not ask you to provide evidence of insurance this does not indicate that we believe you do not require insurance. You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require.
General
1. Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
2. Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
3. Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a User and us, or a Client and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of Western Australia to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
4. Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
5. Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
6. Governing law: These Terms are governed by the laws of Western Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
7. Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
8. Privacy: We will handle your personal information in accordance with our Privacy Policy [insert link].
9. Publicity: You agree that we may advertise or publicise the broad nature of our supply of the Swimseeker Services to you, including on our website or in our promotional material.
10. Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency (subject to us acting as your limited payment agent) relationship between the Parties.
11. Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
12. Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
Definitions
1. Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
2. Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
3. Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
4. Intellectual Property Breach means any breach by you (or any of your personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).
5. Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.