The information presented here is provided as a service only, and can be changed without notice. While the entity posting this information exercises care in the compilation and preparation of this material, no responsibility is taken for its accuracy, or for the completeness of any information that is reproduced from other sources. The entity posting this information denies any liability for any loss or damage to any person whether caused directly or indirectly by the use of any of the information provided.
Please read all of these Terms of Use carefully before using this website or the Services. It is a condition of your use of the Services that you comply with these Terms of Use.
These are Newbrain's standard terms and conditions for the supply of Services. It applies to you if you are or become a subscriber or user. These Terms of Use are intended to ensure that you know your rights and obligations when using the Services.
The information presented here is provided as a service only, and can be changed without notice. While Newbrain exercises care in the compilation and preparation of this material, no responsibility is taken for its accuracy or for the completeness of any information that is reproduced from other sources. Newbrain does not accept or assume any liability for any loss or damage to any person, whether caused directly or indirectly by the use of any of the information provided and, by accepting these Terms of Use and accessing the Site, you expressly acknowledge the exclusion of Newbrain's liability (including liability for negligence).
Please look out for any amendments to the Terms of Use made by Newbrain from time to time. We will give you notice of any change(s) on our Site and you will then be obliged to comply with the terms as amended. If you do not agree with any changes, you must terminate your use of the Services. This User Agreement may not otherwise be amended, except in writing signed by you and Newbrain.
Please note: We strongly recommend that, as you read this User Agreement, you also access and read any information contained in other pages and websites that may be referred to in these Terms of Use, as they may contain further terms and conditions which apply to you as a Viewer. These other pages and websites may also be represented by underlined words and phrases that are click-through links to the other pages and websites for you to read as a user of the Services.
By accepting this User Agreement, you also agree to be bound by the user agreements and posted terms and conditions on other websites to the extent that you use those websites.
These are the standard terms on which Newbrain provides Services to its Customers, as modified by any written contract between Newbrain and a Customer in any particular case. The terms (so modified, if relevant) constitute the entire agreement between the parties and supersede any prior agreements or arrangements. Newbrain reserves the right to amend these terms and conditions, the pricing structure for the Services or the terms of operation of the Services by general notice on a page of the Internet referred to on the Home Page. Your use of the Services after such publication will constitute your acceptance of that amendment.
3.1 Online Auctions. Although our Services may be commonly referred to as an online auction website, we are not a traditional "auctioneer". Instead, our Site acts as a venue to allow Customers to offer, sell and buy goods at anytime, from anywhere, in a variety of formats, including a fixed price format and an auction-style format commonly referred to as an "online auction". We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items or content posted by Customers on the Site, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure and do not guarantee that a buyer or seller will actually complete a transaction or act lawfully in using our Site.
3.2 Safe Trading. Because user authentication on the Internet is difficult, Newbrain cannot and does not confirm each Viewer's purported identity. We encourage you to communicate directly with potential trading partners through the tools available on our Site.
3.3 Release. Because we are not involved in the actual transaction between buyers and sellers, if you have a dispute with one or more Viewers, you release Newbrain (and our directors, other officers, agents, affiliates, subsidiaries, related corporations and employees) from claims, demands and damages (actual, special, economic, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any such dispute.
3.4 Information Control. We send you communications and notices regarding your transactions and your account on our Site. Our communications do not represent any endorsement, guarantee or legitimisation of your transactions. You are responsible for completing all transactions you participate in (including monitoring the status and complying with all relevant legal obligations). We do not control, endorse or approve the items, information or content provided by other Viewers which is made available through our system. You may find other Viewers' information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using our Site. Please note that there are also risks of dealing with underage persons or people acting under false pretences. Additionally, there may also be risks with international trading and dealing with foreign nationals.
4.1 Listing Description. You must be legally able to sell the item(s) you list for sale on our Site. You must describe your items and all terms of sale on the listing page of our Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of those items. All listed items must be listed in an appropriate category. You may not promote identical items in more than 10 online auction listings on our Site at any one time.
4.2 Binding Bids. Except for items to which the Non-Binding Bid Policy applies, if you receive at least one bid at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), you are obligated to complete the transaction with the highest bidder upon the item's completion, unless there is an exceptional circumstance, such as: the buyer failsing to meet the terms of your listing (such as payment method); or you cannot being able to authenticate the buyer's identity.
4.3 Fraud. Without limiting any other remedies available to Newbrain at law, in equity or under this Agreement, Newbrain may, in its sole discretion, suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or other investigation, or otherwise in our sole discretion) have engaged in fraudulent activity in connection with our Site.
4.4 Manipulation. Neither you nor any other bidders or sellers may manipulate the price of any item, nor may you interfere with other Viewers' items listed for sale. Our listing policy is available later in this document. We may change the listing policy from time to time.
5.1 Obligation to Complete. You are obliged to complete the transaction with the seller if you purchase an item through one of our fixed price formats or are the highest bidder at the end of an auction (meeting the applicable minimum bid or reserve requirements) and your bid is accepted by the seller, unless the transaction is prohibited by law or this Agreement or the item is listed in a category under the Non-Binding Bid Policy (below). By bidding on an item, you agree to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or unlawful. Bids cannot be retracted, except in exceptional circumstances such as when the seller materially changes the item's description after you bid; a clear typographical error is made which materially changes the nature of the item; or you cannot authenticate the seller's identity.
5.2 Non-Binding Bid Policy. Certain types of items cannot be sold through the auction or fixed price format on our Site. Therefore, we have a separate policy for those types of items where placing a bid neither constitutes a legally binding contract or obliges the seller to sell the item. The highest bidder is not obliged to purchase the item either. If you list these types of items on our Site, the listing cannot result in a binding contract to buy and sell the item, but is merely a means of introducing interested potential sellers to interested potential buyers. Certain types of items must be listed in the appropriate "non-binding bid" category (if such a category exists), and may only be listed to solicit indications of interest for the item. These include, for example:
5.3 Non-Paying Bidder Policy. Our Non-Paying Bidder Policy is available later in this document.
We may change the Non-Paying Bidder Policy from time to time.
You must pay for all Services in accordance with the Billing Option . In particular, you must pay all time charges, minimum charges and other amounts incurred by you or your designated Viewers, or incurred as a result of any use of a Customer's password (whether authorised or not) in accordance with the Billing Option. These charges include (but are not limited to) charges for any purchase made through the use of the Services and any surcharges incurred while using any supplementary networks or services other than the Services.
You must pay all amounts billed by Newbrain in accordance with the Billing Option. No credit terms are able to be given to direct debit or credit card accounts. There will be no refund for any funds you may elect to deposit to be used as payment for services at some time in the future. Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges and costs unless and until that authorization is withdrawn by not less than 7 days' prior written notice by you to us. Newbrain will send an email to both the seller and the buyer to confirm the sale, stating the payment due to the seller (including GST) and providing each party with the other's contact details.
You must:
You consent to Newbrain obtaining a credit reporting agency report containing your personal information (as well as information concerning your commercial credit worthiness and activities) for the purpose of assessment by Newbrain or any Newbrain authorized operators offering the Services of an application for credit (whether commercial or personal), your credit-worthiness in respect of bids you make on listed items or for the purpose of the collection of any payments which are overdue.
You accept responsibility for all information and material issued by you over any Service, and indemnify Newbrain against any liability in relation thereto. In particular, you undertake that neither you nor your designated Viewers will publish or issue any information that is illegal, offensive or sexually explicit in addition to ensuring that you attempt at all times to issue or publish only accurate information. You also acknowledge that Newbrain does not vet or approve any information or material available through any Service and that Newbrain does not and will not accept any liability for information or material displayed. To the full extent permitted by law, you access and use such information and material at your own risk. You indemnify Newbrain against any loss, cost, expense or damage whatever incurred or payable by Newbrain in connection with any failure by you to comply with this clause.
Each Viewer must make their own enquiry as to the accuracy of any information accessed through the Site. The information provided by any Customer is provided as a service only, and can be changed without notice. While you must exercise care in the compilation and preparation of material, no responsibility is taken by Newbrain for its accuracy or for the completeness of any information that is reproduced from other sources by either you or by Newbrain.
To the full extent permitted by law, you:
Our Site may contain robot exclusion headers and you agree that:
The Services provided to you are not fault free and rely on factors outside the direct control of Newbrain. You acknowledge that your use of the Site is 'as is' and that the Services are provided at such times and by such means as Newbrain decides in its absolute discretion from time to time.
Except as provided in clause 17, Newbrain is not liable to you or any other person for:-
Except as provided below all express or implied warranties and terms, undertakings, inducements and representations relating to the provision of any Service are excluded to the extent permitted by law and Newbrain will not be liable for any loss, cost, expense or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of the Services. Also excluded is any negligence in relation to the content of or use of the Site, security of your computer in accessing the Site, computer viruses, uptime of the Site, and integrity of the data accessed through the Site. Newbrain's liability for any breach of a non-excludable implied term or warranty will be limited, at Newbrain's option:-
You acknowledge (if you are an individual) that, by accepting these Terms of Use, you are at least 18 years of age and have the legal capacity to use the Site and become a registered user. Otherwise, any contract purportedly formed would be null and void. If you do not qualify, please do not use our Services. Further, your Newbrain account (including feedback) and user ID may not be transferred or sold to another party.
Apart from any specific indemnity forming part of these Terms of Use, you indemnify Newbrain against any loss, cost, expense or damage (including any loss of profit) incurred by Newbrain as a result of any breach of this Agreement by you, including (but not limited to) damages in respect of any period between the date of actual termination (including termination under clause 20.) and the date on which you are entitled to terminate this Agreement.
Newbrain may immediately terminate this Agreement and the provision of Services to you for any reason and may refund any payments made by you if, in its sole opinion, it believes it to be warranted. In addition, you agree that Newbrain is not liable to you or any third party for any termination of your access to the Services. All fees you pay to Newbrain will be non-refundable if an Order is cancelled by you at any time. All outstanding charges and costs become immediately payable upon termination and you will not be entitled in any circumstances to a refund of payments made under this Agreement.
Newbrain may from time to time without notice suspend any Services or disconnect or deny you access to any Services:-
Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or commercially exploit any information which they receive through the Services in any way which is competitive to the Services.
You cannot assign your rights under this Agreement or any other agreement with Newbrain without the prior written consent of Newbrain.
This Agreement is governed by the laws of the State of Victoria, Australia and the parties submit to the non exclusive jurisdiction of the Courts of that State.
Your privacy is important to us. We are committed to protecting your privacy and developing technology that gives you the safest and most powerful online services that you can get. In this document, 'Newbrain' includes any of its subsidiaries, employees, officers, related corporations, agents, advisers and affiliates.
The types of personal information that we collect from you will depend on how you use the Services and our Site. Some of this information is essential for us to be able to accurately service you, some is to identify who is using the Services, some is used to improve the structure and performance of the Services and our Site and some is to provide the Viewer with an improved service. Newbrain explicitly asks when it needs information that personally identifies you for contact information and, where appropriate, credit card information. Customers may update much of their information at any time, most of it from within their Management Area by clicking the Edit link.
Newbrain and our associates, service and marketing partners may use your personal information to operate our Site and the Services, to communicate with you regarding your Newbrain accounts and to compile general statistics, eg sale details may be used in industry statistics without disclosing your name and/or contact details.
With the exception of credit check requirements, Newbrain will not make your private details available to third party service providers unless you specifically request it. For example, Newbrain offers a "Properties Wanted" service, whereby Newbrain will privately service your needs without specifically identifying you to others. With this service, you may elect to give your consent for agents to contact you but, without that consent, this will not be possible.
We will only record your e-mail address if you register for a particular Service or send us a message. It will only be used for the purpose for which you have provided it and will not be added to non-Newbrain mailing lists. We will not use your e-mail address for any other purpose, and will not disclose it, without your consent.
As part of your participation in any of the Services, Newbrain allows you to elect to receive or not receive certain information and e-mails from Newbrain or its service and marketing partners. New Customers may receive information via their email address explaining the services and/or their account specifically.
Some Newbrain services, eg business directories and classified services, necessarily provide information about our Customers to the public and via certain non-member services. If information is published to the general public on the Internet, then it will be accessible to millions of users from all over the world. Such publicly viewable information can be copied, and used by any web user. Once this information has been published on the Internet, Newbrain has no control over its subsequent use and disclosure. However, Customers have the ability to modify the information displayed to their satisfaction via their management area.
Newbrain may disclose your personal information if required to do so by law or in the goodfaith belief that such action is necessary to comply with legal process, protect and defend the rights or property of Newbrain, its Site or the users of Newbrain's products and services or to protect the personal safety of users of Newbrain's products and services or the public.
While we support other website operators using our Site and the Services complying with our privacy statement, you should carefully examine the privacy statements of sites linking to or from our Site. Personal information that you choose to provide to other websites will be subject to the privacy policies of that website.
Newbrain always endeavours to provide secure transmission of user information and, when payments are required, Newbrain provides security accredited by the major banks. Note that there are risks associated with using the Internet as an information transmission medium. Newbrain uses the Internet solely for its user communications and, as such, has no other options for providing the information.
Some parts of our Site and the Services use a technology called 'cookies' and you may be required to enable cookies to utilize some of our Services. These are used to make it easy and convenient for you to login to our Services, and to remember certain information that you may find repetitious if you had to keep entering it on future visits. A cookie is a small amount of data that is sent to your browser from a web server and stored on your computer's hard drive. Sites where you are prompted to log-in or that can be customised typically require that you accept cookies.
We may use cookies to measure certain traffic patterns and visiting patterns of Viewers as a group. We use this research so that we can improve each new experience on our Site. We do not use such information to capture private or personal information on Viewers and no attempt will be made to identify Viewers or their browsing activities except, in the unlikely event of an investigation, where a law enforcement agency may exercise a warrant to inspect the service provider's logs. A record may be made of your visit via a log of the following information for statistical purposes - the Viewer's server address, the Viewer's top level domain name (eg .com, .gov, .au, .uk etc.), the date and time of the visit to the Site, the pages accessed and documents downloaded, the previous site visited and the type of browser used.
When you visit our Site and any third party sites that you may access through the Site, read the information provided on the sites you are using. This includes certain services offered which may have separate terms of use and privacy information.
Information provided may be subject to change from time to time so we encourage you to check our online privacy policies and this Privacy Statement regularly. Users seeking additional information regarding the principles should consult the Help section.
Newbrain has several policies to assist in efficient and effective communications between users of its Services.
A. If You're a Seller Who Has a Non-paying Bidder
Newbrain can provide a credit for your unsold item(s) if you have followed the process known as the Non-Paying-Bidder Credit Request Program outlined below.
Non-paying bidders who should have paid you face indefinite suspension from the Services (if you have behaved properly as a seller).
What to do if you're a seller with a non-paying bidder
Step 1. Contact each other
Contact each other after your listing has ended. Like you, buyers can have emergencies or computer and telephone problems. Your high bidder may not be able to respond to you right away for legitimate reasons. (Generally contact within that business day is a good idea).
Step 2. Payment Reminder (after 3 days but not past 14 days of your listing's close).
Send a payment reminder email to your winning bidder.
Step 3. Non-Paying Bidder Alert (after 7 days but not past 30 days of your listing's close).
File a Non-Paying Bidder Alert if you still don't get a response or if you feel you may not receive payment. Remember: In order to collect your listing fee credit, you must forward a "Non-Paying Bidder Alert" email on time. Newbrain will then send an email to you and your high bidder. Your high bidder will be reminded to pay you and informed of the consequences if no payment is sent.
Step 4. Request Your Listing Fee Credit
Request your listing fee credit if you have:
a) Filed a Non-Paying Bidder Alert 7 days or more after your listing has ended, and
b) Tried unsuccessfully to resolve things with your bidder 10 days after you have filed the Non-Paying Bidder Alert Form.
Step 5. Have You Achieved Agreement With The Buyer?
If you have filed the listing fee credit, you may send a "Non-Paying Bidder Warning Removal" to remove the warning for the bidder.
(Within 90 days of your listing's close).
B. If You're A Seller Who Hasn't Sold Your Item
Send an under-bidder a "For Your Reconsideration" offer. This may assist you to sell your listing(s) item(s) quickly to someone who has already bid on your listing without you having to pay additional listing fees.
Special Note To Bidders:
If you are a bidder and believe you received an unfair warning, you may appeal it by using sending Newbrain a "Non-Paying Bidder Appeal" email.
Warnings will remain on your record until they are successfully appealed.
To help members properly list items via Newbrain, we've highlighted some listing policies and describe how Newbrain handles listing violations when they are reported.
Items must be listed in the appropriate category. There are several straightforward categories in which to list an item.
Policy: Items that don't belong in a category will be moved to the appropriate category.
A Choice/Option Listing occurs when a seller allows buyers to choose from a selection of items. Choice/Option listings can be problematic because of potential for fee circumvention, transactions outside of Newbrain's environment and other issues.
Policy: Choice/Option Listings are generally not allowed and will be ended.
Exceptions:
1) Listings may offer customised items or services that are created or customised to the buyer's specification. All offered options must be provided at no additional charge to the buyer. Choice of a specific type such as breed or size from a selection of animals is not allowed to be listed on one lot.
2) Multiple quantity listings may offer a choice of color or type in otherwise identical items. However, the seller must be able to fulfill the entire quantity of every listing in any offered colour or type even if every winning bidder makes exactly the same colour or type selection. It is not permissible to state "The highest bidder gets first choice." Choice listings may not be offered "subject to availability" or request the buyer to contact the seller to see which colours or types are available or what quantity is available. This exception for choice of colour or type does not apply to single quantity listings.
A Duplicate Listing occurs when a seller lists multiple identical items in more than one listing. We understand sellers have reasons to list identical items at the same time. This is permissible as long as the seller can complete the sale of all listings. However, there is a limit to the number of identical, or duplicate, listings allowed.
Policy: A seller can have up to ten identical item listings at one time. If the seller lists in more than one category, the categories must be relevant. Any additional identical listings may be ended.
Summary: The Newbrain Item page (or ebrochure) can only be used to describe, promote and facilitate the sale of the listed item - it cannot refer to or promote the seller's individual website. The Newbrain directory or member Website pages are places where the seller can promote their individual website or business.
The Newbrain Item page cannot contain URLs or links to, or promotional information about, any off Newbrain web page, including websites of the seller or any third party.
There is one exception to this general rule - the Newbrain item page may contain a link to information related specifically to that item that:
Listings that advertise a desire to buy or exchange items are only allowed via Newbrain's 'Wanted's' functionality.
Policy: All listings with wanted ads or exchange-type trades are not permitted and will be ended, except for listings generated using the Newbrain 'Wanteds' functionality.
Listings that promote giveaways, random drawings or prizes as an enticement for buyers are not permitted on Newbrain as these promotions are highly regulated and may be unlawful in some states. Newbrain itself may run such promotions on the site, and may grant authorisation to its partners or third party companies to run promotions, that comply with applicable laws.
Policy: These types of listings are not permitted and will be ended.
Members may not use systems or techniques to circumvent Newbrain'scharges or costs. Some examples include:
Reserve prices stated in the description of the item when not listed with Newbrain as a reserve listing. Seller states high bidder is obligated to purchase when reserve is not met.
Policy: These types of listings are not permitted and will be ended.
Terms and Conditions contradictory to any Newbrain Policy
Policy: These types of item listings are not permitted and will be ended.
Sellers may not charge buyers an additional fee for their use of ordinary forms of payment, including acceptance of cheques, money orders, electronic transfers or credit cards. Such costs should be built into the price of the item. Although credit card surcharges are not illegal under Australian law, this policy reduces the potential for confusion among bidders about the true cost of an item. Further, some forms of payment surcharges, such as credit card surcharges are illegal under the laws of some countries and may violate card association policies.
Can a seller charge the buyer additional fees on top of the final bid or 'Buy Now' price of an item? Yes, in two instances.
Newbrain does not permit the use of the following types of JavaScript functions: scripts used to drop or read a cookie on any Newbrain page; scripts that redirect the member from Newbrain to another page (such as the "replace" script) JavaScript Include and iframe.
Many people are not aware of the harm these scripts can cause and do not intentionally use these to cause harm; however, these types of JavaScript can be used for malicious purposes. Therefore, in the interest of security, we have eliminated the use of these scripts on our Site.
[????Attempts to use the disabled scripts will return a very specific error message that begins: "Disallowed JavaScript/HTML Syntax" and you will be prevented from listing the item.] Any other JavaScript error indicates a separate issue, and is not related to the disabling of these scripts.
Newbrain does not allow the use of profanity or patently vulgar language. This includes the use of language that is racist, hateful, sexual or obscene in nature. This policy extends to text within item listings, on any accompanying pages or pages linked to from a listing.
We make allowances for certain items listed on the core site that may contain profane words that are a part of the title. An example of such an item might be a music CD with profanity in some of the song titles. If the profane words are part of a title for the item being sold, we allow sellers to 'blurb' out the bulk of the offending word with asterisks (i.e., s*** or f***). Policy: The use of profanity on our site is not permitted. Listings that contain profanity will be ended.
If a seller participates in the violation of the policies described above, that seller is subject to suspension from the Site and use of the Services.
We do realise that sometimes there are extenuating circumstances in which a buyer may feel they have reason to back-out of their obligation once an item listing ends (buyer becomes ill, death in the family, computer problems). However, all participating bidders on the Newbrain systems do so with the express intention of paying the price they have bid. Dependent upon the attitude of the seller, we may provide a warning before you are indefinitely suspended. However, this is unlikely. If you feel you there is a valid reason why you did not honour your purchase(s), you may appeal the decision.
The Non-Paying Buyer Alert Email is intended to be a workout period to assist the seller and buyer complete the transaction. After you file a Non-Paying Buyer Alert, Newbrain will send an email to both the seller and buyer, informing the buyer that the seller has notified Newbrain that the member is a potential non-paying buyer and encouraging the high buyer to complete the transaction.
Sometimes sellers innocently file a credit request prematurely. That is, the buyer had the full intention of completing the transaction but there was miscommunication between the two parties. Or, the buyer in fact sent the seller a cheque but the cheque was in the mail when the seller requested credit. Therefore, we ask that both the buyer and seller attempt to work things out for at least 10 days before the seller requests credit. We believe this "workout period" will assist all members in completing their transactions.
If you receive a Non-Paying Buyer Warning that you did not complete the listing, but you actually did complete the transaction, you may appeal your Non-Paying Buyer Warning by:
Only you and Newbrain are notified when you receive a Non-Paying Buyer Warning.
Once the seller submits a credit request, Newbrain will send you a Non-Paying Buyer Warning.
If you have filed a non-paying buyer alert email and not a credit request, the buyer has not received a Non-Paying Bidder Warning. To receive a fee credit, you have to file the alert email and the fee credit request.
To remove a non-paying buyer warning and reverse the fee credit, email Newbrain with the Subject line, "Request To Remove Warnings and Request To Reverse Fee Credit." This feature is available if it has been less than 90 days since the listing ended.
A number of reasons may exist here. First, the system will not automatically suspend a buyer if that member receives three Non-Paying Buyer Warnings from one seller. This does not mean that the buyer will not be suspended, it simply means that the buyer will be manually reviewed and, if appropriate, suspended. Second, just because you submit a credit request does not mean that the buyer receives a Non-Paying Bidder Warning. Certain criteria must be met before a Non-Paying Buyer Warning is issued to the member.
When a seller submits a fee credit request, non-paying buyers are identified from our system. Newbrain will keep records of the credit requests that are received from sellers regarding transactions that were not completed. When certain criteria are met, Newbrain will either automatically ban the non-paying buyer or generate a warning letter to the buyer.
No, if feedback comments are possible, they are considered separately from the non-paying buyer policy. In the event of this functionality being available, Newbrain encourages you to leave appropriate feedback about your trading partners.
Please Contact Newbrain if you require further information.
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