HORAAY – TERMS OF USE

  1. Introduction

1.1       Pennisi Property Pty Ltd (“T/A HORAAY”) operates the HORAAY website at www.horaay.com (the “Website”). The terms and conditions on which you use and access the Website are set out in the following documents: (a) these HORAAY Website Terms (including the Additional Terms for Sellers set out below); (b) the  Terms and Conditions; and (c) the HORAAY Privacy Policy (collectively the “Terms of Use”). By accessing and using the Website, you agree to, and are bound by, the Terms of Use.

1.2       HORAAY may amend these HORAAY Website Terms from time to time, with the amended version applying from the date they are posted on the Website (as indicated at the bottom of this page). Please regularly check this page to ensure you have reviewed and understand the current HORAAY Website Terms. If you don’t agree with any amendment, you should stop accessing and using the Website. The HORAAY Terms and Conditions and the HORAAY Privacy Policy will be amended in accordance with their terms.

1.3       For the avoidance of doubt, the Terms of Use apply to all users of the Website including, without limitation, users who are buyers, sellers or contributors of content, information and other materials or services on the Website.

  1. How the Website operates

2.1       As the operator of the Website, HORAAY’s role is simply to provide a platform through which third party buyers and sellers can purchase and sell certain goods and services.

2.2       Except as expressly set out in the Terms of Use or otherwise required by law (including, without limitation, the Consumer Law), HORAAY does not have any responsibility or liability in connection with: (a) the goods or services listed by third party sellers; (b) any information displayed about those goods or services; or (c) any transaction for the purchase or sale of those goods or services.

2.3       In the situation where HORAAY list any goods or services itself for sale through the Website, this will be clearly indicated.

2.4       HORAAY is not responsible for, and does not provide any ongoing review of, any content, images, artwork, good or service details (including but not limited to good or service descriptions, ingredients and prices) or any other material created or submitted by or on behalf of a third party seller for display on the Website (“Seller Content”). HORAAY does not warrant the truthfulness, accuracy, reliability or completeness of any Seller Content. Be aware that Seller Content (including photographs, illustrations, artwork and other graphic materials, and names, logos and trademarks) may be protected by copyright, trademark and other intellectual property laws that restrict your use of that Seller Content.

2.5       Each seller manages their own listings and virtual stall (including adding, removing and updating goods and services) so Seller Content is subject to change at any time without notice and may not be up to date. HORAAY cannot guarantee that a third party seller will actually complete a transaction.

2.6       The Website has been designed and is intend for use only within The Philippines and limitations have been put in place to reflect this. Items purchased via the Website can only be delivered within The Philippines.

 

  1. Website access and HORAAY Content

3.1       HORAAY does not guarantee that access to the Website will be uninterrupted or that the Website is free from viruses or anything else which may damage any computer which accesses the Website or any data on such a computer.

3.2       While HORAAY endeavours to take reasonable care in preparing and maintaining the information on the Website that has been created by or on behalf of HORAAY (“HORAAY Content”), HORAAY does not warrant the accuracy, reliability, adequacy or completeness of any of the HORAAY Content. You acknowledge and accept that the HORAAY Content may include technical inaccuracies and typographical errors and may not be up to date or accurate at the time you view it. HORAAY reserves the right to make any necessary corrections to HORAAY Content.

3.3       It is your responsibility to enquire with HORAAY to ensure the accuracy and currency of any HORAAY Content you seek to rely upon. To the extent permitted by law, HORAAY disclaims all liability for loss directly or indirectly arising from your use or reliance on the Website and the HORAAY Content.

  1. Intellectual Property (HORAAY Content) and linking to the Website

4.1       The HORAAY Content displayed on the Website (including all editorial materials, photographs, illustration, artwork and other graphic materials, and names, logos and trademarks) is the property of, or authorised for use by, HORAAY and is protected by copyright, trademark and other intellectual property laws. HORAAY Content may be displayed and printed solely for your personal and non-commercial use. You agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any HORAAY Content to any third party without the express prior written consent of HORAAY.

4.2       Except as expressly stated above or otherwise expressly granted, HORAAY does not grant any licence or right in, or assign all or part of, any intellectual property rights in the content or applications incorporated into the Website or in the user interface of the Website.

4.3       If you wish to establish a link to the Website, you must first seek approval from HORAAY. To seek approval, please contact HORAAY. The following information will be required to assess your request: (a) the URL of the website that you seek to establish a link from; (b) a brief description of your website; and (c) the reason that you wish to establish a link. If HORAAY agrees to your proposed link, you must comply with any terms and conditions imposed by HORAAY as a condition of such agreement. If the nature and/or content of your website changes in any significant way, you must contact HORAAY and provide a new description of your website.

  1. Personal information

5.1       HORAAY will use personal information it collects or holds in connection with the Website in accordance with HORAAY’s Privacy Policy.

5.2       As part of a purchase transaction, a seller may obtain personal information of the buyer, such as name, phone number, email address and delivery address information. HORAAY places limitations on the type of personal information a seller can access however each individual seller is responsible for how they handle the personal information they collect and hold and for compliance with privacy laws.

  1. Submission of material to the Website

6.1       Any material you send to HORAAY on or via the Website (other than Seller Content) will be deemed to be non-confidential and non-proprietary, unless it is expressly indicated to be otherwise. This includes any data, questions, comments, suggestions, ideas or other information. HORAAY will be entitled to use any such material which has not been indicated to be confidential or proprietary for any purpose without providing notice or compensation to you.

  1. Third party websites

7.1       The Website may contain links to other websites operated, controlled or produced by third parties. Unless otherwise indicated, HORAAY does not control, endorse, sponsor or approve any such third party websites or their content nor does HORAAY provide any warranty or take any responsibility whatsoever for any aspect of those websites or their content.

  1. User eligibility and compliance with laws

8.1       Both buyers and sellers must be at least 18 years of age, and able to form legally binding contracts under applicable law, or be under the supervision of a parent or guardian who is at least 18 years of age in order to be eligible to use the Website. By using this Website you represent and warrant that you are at least 18 years of age and that all registration information you submit is accurate and truthful. HORAAY may, in its sole discretion, refuse to offer access to or use of the Website to any person or entity and change its eligibility criteria at any time.

8.2       You agree that, when accessing and using the Website, you will comply with all applicable local, state, national and international laws.

8.3       You must not attempt to change, add to, remove, deface, hack or otherwise interfere with the Website or any material or content displayed on the Website.

  1. Account set up and security for buyers

9.1       Buyers must have an active account to make purchases on the Website. To create an account, you will need to create a password and provide details like your first name, last name, email address and physical address.

9.2       HORAAY has absolute discretion to determine who is permitted to become (and to remain) an account holder for buying goods and services through the Website. All information provided to HORAAY in connection with an account must be accurate, complete and kept up to date.

9.3       You must maintain the security of your account log on details (including by keeping your password and email address secure) and you accept full responsibility and liability for all activity occurring on your account resulting from your failure to properly maintain account security. You must immediately notify HORAAY of any unauthorised use of your log in details or account and any other breach of security.

  1. Disputes about Website transactions

10.1     When a good or service is ordered through the Website, a separate contract may arise between the buyer and seller. Prior to transacting on the Website, you should carefully consider your rights and obligations to third party buyers and sellers and seek independent legal advice if you are in any doubt.

10.2     HORAAY is not a party to any separate contract that may arise between a buyer and seller. If you have a dispute with any buyer or seller concerning a transaction you have made on the Website, you (and not HORAAY) are responsible for enforcing any rights that you may have against the other party. Buyers can refer to a seller’s ‘store policy’ for information on dispute resolution with that seller or check for the seller’s contact details in the relevant order confirmation email.

  1. Account suspension and deactivation (buyers and sellers), restricting access and ceasing services

11.1     If HORAAY knows or reasonably suspects you have breached the Terms of Use, HORAAY may give you no less than 7 days’ written notice to remedy that breach. If you fail to remedy the breach within the notice period, HORAAY may suspend or deactivate your account, suspend or deactivate your virtual stall (sellers only) and/or take any other steps to prevent you from using the Website.

11.2     If HORAAY knows or reasonably suspects that: (a) you are involved in any illegal or fraudulent activity; (b) your acts or omissions are causing, or are likely to cause, HORAAY or any Website user to incur legal liability or suffer loss or damage of any nature (including, without limitation, loss of or damage to goodwill or reputation); or (c) you have become bankrupt, insolvent, under administration or an externally administered body corporate, then HORAAY may immediately suspend or deactivate your account, suspend or deactivate your virtual stall (sellers only) and/or take any other steps to prevent you from using the Website.

11.3     HORAAY may suspend or deactivate your account, suspend or deactivate your virtual stall (sellers only) and/or take any other steps to prevent you from using the Website for any period during which HORAAY is unable to verify or authenticate any information you have provided to HORAAY (other than any Seller Content). You acknowledge and agree that any information you provide to HORAAY in connection with the Website must be truthful, accurate and not misleading in any way.

11.4     HORAAY does not guarantee it will continue to provide all or any of the services connected with the Website platform and HORAAY may cease the provision of any one or more of those services (including, without limitation, services connected with enabling third parties to buy and sell goods and services through the Website) at any time.

11.5     To the maximum extent permitted by law, HORAAY does not have any liability to you in connection with the exercise of any of its rights under this Section 11 (Account suspension and deactivation (buyers and sellers), restricting access and ceasing services).

 

  1. Limitation of liability

12.1     To the maximum extent permitted by law (including, but not limited to, The Philippines Consumer Law), HORAAY excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website, the Seller Content, the HORAAY Content and the use or performance of the Website, whether in contract, at common law or in equity, or on any other basis, except to the extent that the loss or damage is directly caused by HORAAY’s fraud or wilful misconduct.

12.2     Where the law implies a warranty or guarantee into the Terms of Use which may not lawfully be excluded, then provided it is fair and reasonable to do so, HORAAY’s liability for breach of such a warranty or guarantee shall be limited at its option, to any one or more of the following:

(1)       in the case of goods, replacement of the goods or the supply of equivalent goods; repair of the goods; payment of the cost of replacing the goods or acquiring equivalent goods; or payment of the cost of having the goods repaired; and

(2)       in the case of services to either resupplying the services or payment of the cost of having the services supplied again.

  1. Severance

13.1     The whole or any part of a provision of the Terms of Use that is illegal, invalid or unenforceable may be severed from the remaining provisions, and the remaining provisions of the Terms of Use will continue in full force and effect.

  1. Jurisdiction

14.1     These HORAAY Website Terms are governed by and construed in accordance with the laws of The Philippines. In the event that a dispute arises from these HORAAY Website Terms, each of HORAAY and you agree to submit to the non-exclusive jurisdiction of the courts of The Philippines.

Additional Terms for Sellers

  1. Applying to become a seller

15.1     You must be carrying on a business and have a valid The Philippines Business Number to apply to become a third party seller of goods and services through the Website (referred to in these HORAAY Website Terms as a “seller”).

15.2     Applications to become a seller, and open a virtual stall on the Website, are made via the online application process on the Website. HORAAY has complete discretion to determine whether or not to approve any application to become a seller and HORAAY’s decision is final.

15.3     HORAAY makes no guarantee about the quantity of goods or services a seller can sell through the Website. By submitting an application to become a seller, you acknowledge and agree that you have not relied on any representation given by (or on behalf of) HORAAY about the quantity of goods or services that you can sell through the Website.

15.4     A seller must not transfer or otherwise deal with any of their rights connected with being a seller or with their virtual stall.

15.5     HORAAY uses PayPal to provide a secure payment gateway on the Website and buyers pay for goods and services via this gateway using their PayPal account or credit or debit card. If you become a seller, you will need to set up and maintain a business level account with PayPal in order to receive payments from buyers. You should visit the PayPal The Philippines website to obtain information about signing up with PayPal for a business level account. Sellers must deal directly with PayPal The Philippines in respect of signing up and all other aspect of their PayPal account.

  1. Access to your seller account and virtual stall

16.1     A seller’s access to the Website is managed through an HORAAY Business Account.

17.Goods and services sold through the Website

17.1     Sellers must comply with any guidelines issued by HORAAY from time to time in respect of the types of goods and services permitted to be sold through the Website.

17.2     HORAAY has the right to prohibit, from time to time, the sale of a particular good or service or particular types of goods and services. Immediately on being notified by HORAAY, you must remove any particular item or particular type of item from sale through your virtual stall that has been prohibited by HORAAY. You acknowledge and agree that HORAAY may take action itself to remove any prohibited items from sale through your virtual stall.

  1. Your Products

18.1     You are fully responsible for all goods and services you list or offer for sale, or sell, through the Website (Your Products) and, as between HORAAY and you, you are the one with full liability to third parties in connection with Your Products and the offer and sale of Your Products through the Website.

18.2     You are responsible for, and must obtain and maintain, all licences, permits and registrations required in connection with the offer for sale, and sale of, Your Products through the Website.

18.3     You must ensure, and you warrant to HORAAY, that Your Products do not, and the offer for sale and sale of Your Products through the Website does not:

(1)       contravene in any way any local, state, national or international law and any Philippine law, code or standard relating to food safety or any law relating to the sale of liquor);

(2)       infringe any third-party’s intellectual property rights; or

(3)       involve the sale of illegal, counterfeit or stolen goods.

18.4     To the fullest extent permitted by law (including, but not limited to, The Philippines Consumer Law), you indemnify HORAAY (and each of its officers, employees and agents) against any loss or damage suffered or incurred by any of them arising from or in connection with: (a) a breach of any warranty set out in this Section 18 (Your Products); or (b) any third party claim in connection with Your Products, or the offer or sale of Your Products through the Website, except to the extent that any loss or damage is caused by the negligence, fraud or other wrongful act or omission of HORAAY or its officers, employees or agents.

  1. Your Content

19.1     You are fully responsible for all Seller Content created or submitted by you or on your behalf for display on the Website (“Your Content”) (regardless of whether you use the functionality of the Website to upload Your Content yourself or HORAAY uploads Your Content on your behalf).

19.2     You must ensure, and by submitting Your Content for upload and display on the Website you warrant to HORAAY, that Your Content (including without limitation all goods and services details, listing information about a good or service, photographs, illustrations and other graphic materials and all names, logos and trademarks) displayed on the Website from time to time, and the display of Your Content on the Website:

(1)       is true, accurate, complete and not misleading or deceptive in any manner;

(2)       does not contravene in any way any local, state, national or international law (any law, code or standard relating to food safety or any law relating to the sale of liquor);

(3)       does not infringe any third-party’s intellectual property rights;

(4)       is not defamatory or offensive;

(5)       does not contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, intercept or expropriate any system, data or personal information ; and

(6)       will not modify, adapt or hack the Website.

19.3     You are responsible for all dealings with regulators in connection with Your Content and you must promptly and actively cooperate with any regulator who raises any issue with Your Content.

19.4     You agree that HORAAY may immediately (and without prior notice to you) remove any of Your Content from the Website that HORAAY reasonably believes breaches the Terms of Use.

19.5     To the fullest extent permitted by law (including, but not limited to, The Philippines Consumer Law), you indemnify HORAAY (and each of its officers, employees and agents) against any loss or damage suffered or incurred by any of them arising from or in connection with: (a) a breach of any warranty set out in this Section 19 (Your Content); or (b) any third party claim in connection with Your Content or the display of Your Content on the Website, except to the extent that any loss or damage is caused by the negligence, fraud or other wrongful act or omission of HORAAY or its officers, employees or agents.

  1. Use of Your Content

20.1     You agree to HORAAY using Your Content to operate the Website (including, without limitation, to create your virtual stall and to display information about Your Products on relevant pages of the Website). You also agree to HORAAY using Your Content, and altering Your Content for use, for the purpose of promoting the use of the Website and the sale of goods and services through the Website, including (without limitation):

(1)       in promotional emails sent by HORAAY to its customer database;

(2)       on pages of the Website promoting particular types of goods and services;

(3)       on social media sites, through accounts operated or managed by The Horaay; and

(4)       as otherwise agreed by HORAAY and you.

20.2     For the avoidance of doubt, the use of Your Content by HORAAY in accordance with the terms of this Section 20 (Use of Your Content) or any other section of the Terms of Use does not limit in any way your responsibility or liability for Your Content, except to the extent of any alteration of Your Content by HORAAY.

20.3     HORAAY does not claim any ownership rights in any Seller Content. You grant HORAAY a non-exclusive, royalty-free license to use Your Content in the manner permitted under the Terms of Use (including, without limitation, as permitted (Use of Your Content)). You consent to (and must ensure that each author of any part of Your Content consents to) HORAAY using, altering and displaying Your Content in accordance with the terms of the Terms of Use, even if that would otherwise infringe the author’s moral rights. You agree, to the extent permitted by law, not to enforce any claim for a breach of your moral rights under the Copyright Act that you may otherwise have as a result of any act or omission of HORAAY in respect of Your Content.

  1. Store policies and good customer relations

21.1     You are fully responsible for all aspects of the sale process for Your Products. Sellers should have a “store policy” available on their virtual stall setting out their terms and conditions of sale. Amongst other things, a store policy might contain details of things like stock availability, dispatch and delivery times and the seller’s refund policy. You must ensure your store policy: (a) is compliant with all laws; and (b) does not in any way conflict with any provision of the Terms of Use. You are responsible for enforcing your store policy.

21.2     Sellers must maintain good customer relations, including (without limitation) by: (a) communicating with customers in a timely, courteous, fair and honest manner; and (b) resolving customer complaints and disputes efficiently and fairly.

21.3     Any unresolved failure, or repeated failures, to maintain good customer relations may lead to HORAAY suspending or deactivating a seller’s account or virtual stall and/or taking any other steps to prevent the seller from using the Website.

  1. Fees

22.1     The fee that a seller may pay HORAAY for access to and use of the Website is a set percentage (the “Percentage Fee”) of the price for which each good or service is sold by the seller through the Website (“Services Fee”). HORAAY may change the current Percentage Fee at any time by providing a seller with at least 30 days’ notice of the new Percentage Fee and the effective date for that new Percentage Fee (“Effective Date”). The new Percentage Fee will be applied in respect of all goods and services sold on and from the Effective Date.

22.2     For the avoidance of doubt, you are responsible for all costs and expenses you incur in connection with your use of the Website and the listing, offer and sale of Your Products through the Website.

22.3     Your obligation to pay Services Fees to HORAAY is a continuing obligation and, for the avoidance of doubt, the suspension or deactivation of your account or virtual stall, the removal of any of Your Products from the Website or HORAAY taking any steps to prevent you from using the Website does not in any way affect your obligation to pay HORAAY any Services Fees due and payable to HORAAY.

22.4     If any Services Fees are not paid in full by the due date for payment, then HORAAY may suspend or deactivate your account or virtual stall and/or take any other steps to prevent you from using the Website until such time as those Services Fees have been paid in full.

  1. Listing and the sale of Your Products through the Website

23.1     Each of Your Products must be listed in an appropriate category with appropriate tags.

23.2     If a customer accepts your offer to sell one or more of Your Products by placing an order, you must promptly supply the goods and services ordered in accordance with your store policy and the Terms of Use. For the avoidance of doubt, if there is any inconsistency between the Terms of Use and any store policy, the terms of the Terms of Use prevail to the extent of that inconsistency.

  1. Prohibition on using Website for other business and promotions

24.1     The Website must not be used to conduct business, or for promotional purposes, that is not directly connected with the offer for sale, and sale of, goods and services through the Website in accordance with the Terms of Use.

24.2     A seller must not include in any Seller Content, or in any form of communication with a buyer or other Website user (“Customer Communication”): (a) a link to any website; (b) any contact details (including, without limitation, email addresses or phone numbers) for the seller or any third party. A Customer Communication must not include any content except for content that strictly relates to a transaction that has occurred on the Website.

24.3     If a seller includes any promotional material together with any goods or services being delivered to a buyer as part of a Website transaction, that promotional material may only promote the sale of that seller’s goods and services through the Website in accordance with the Terms of Use.

  1. Personal Information

26.1     Personal information obtained by a seller in connection with a Website transaction must strictly only be used for the purpose of completing that transaction or for Customer Communications related to that transaction. A seller must not use any personal information, or otherwise contact any buyer or other Website user, for any non-transaction related purpose, including (without limitation) to promote any business, good or service.

26.2     A seller must handle all personal information collected by the seller in connection with the Website in accordance with the requirements of the Privacy Act

Version date: 09/04/2019

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