Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

Last Updated: March 2019

TERMS OF SERVICE

If you are using the Site or Services and you reside in Australia, you are contracting with FlyTrader (ABN 45856169228). FlyTrader is hereinafter referred to as “FlyTrader”, “we”, “us”, or “our”.

FlyTrader (hereafter referred to as “FlyTrader“, “we“, “us“, or “our“) provides an online platform that connects Lenders who have aviation related items to rent with Borrowers seeking to rent such aviation related items (collectively, the “Services”), which Services are accessible at [www.fly-trader.com] and any other websites through which FlyTrader makes the Services available (collectively, the “Site”). By using the Site you agree to comply with and be legally bound by the terms and conditions of these Terms of Service (“Terms“), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Site and Services and all Collective Content (defined below), and constitute a binding legal agreement between you and FlyTrader. Please also read carefully our Privacy Policy at [www.fly-trader.com]. If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Site or Services. Failure to use the in accordance with these Terms may subject you to civil and criminal penalties.

THE SITE AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH LENDERS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR AVIATION RELATED AND BORROWERS (DEFINED BELOW) MAY LEARN ABOUT AND RENT DIRECTLY FROM THE LENDERS. YOU UNDERSTAND AND AGREE THAT FLYTRADER IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN LENDERS AND BORROWERS, NOR IS FLYTRADER A AVIATION BROKER, AGENT OR INSURER. FLYTRADER HAS NO CONTROL OVER THE CONDUCT OF LENDERS, BORROWERS AND OTHER USERS OF THE SITE AND SERVICES OR ANY AVIATION RELATED, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Key Terms

“FlyTrader Content” means all Content that FlyTrader makes available through the Site, or Services, including any Content licensed from a third party, but excluding Member Content.
“Rental Request Period” means the time period starting from the time when a rental is requested by a Borrower (as determined by FlyTrader in its sole discretion), within which a Lender may decide whether to confirm or reject that rental request, as stated on the Site or Services.
“Collective Content” means Member Content and FlyTrader Content.
“Content” means text, graphics, images, music, software, audio, video, information or other materials.

“Courier Services” means the integrated third party door-to-door courier service provided through FlyTrader.
“Borrower” means a Member who requests from a Lender a rental of a Aviation Related item via the Site or Services.
“Vendor” means a Member who creates a Listing via the Site.
“Listing” means a Aviation Related item that is listed by a Lender as available for rental via the Site or Services.
“Member” means a person who completes FlyTrader’s account registration process, including but not limited to Lenders and Borrowers, as described under “Account Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site or Services.

“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), that Lenders may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Modification

FlyTrader reserves the right, at its sole discretion, to modify the Site or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.

How the Site and Services Work

The Site and Services can be used to facilitate the listing and renting of Aviation Related (“Item”). Such Items are included in Listings on the Site and Services by Lenders. You may view Listings as an unregistered visitor to the Site and Services; however, if you wish to book an Item or create a Listing, you must first register to create a FlyTrader Account (defined below).

As stated above, FlyTrader makes available an online platform or marketplace with related technology for Lenders and Borrowers to meet online and arrange for the rental of Items directly with each other. FlyTrader is not an owner or dealer of Aviation Related, including, but not limited to, dresses, shoes, bags or accessories, nor is it a provider of Aviation Related, including, but not limited to, dresses, shoes, bags or accessories and FlyTrader does not own, sell, resell, provide, rent, re-rent, manage and/or control Aviation Related, including, but not limited to, dresses, shoes, bags or Items or postal, courier or other delivery services. FlyTrader has engaged the service of a courier company on behalf of its members. However, FlyTrader does not provide these Courier Services and accepts no liability for any damage caused in any way through or by the Courier Service. It is a condition of every transaction that is entered into on the Site that the Courier Service will be used to deliver the Item to the Borrower and return the Item to the Lender. If a User does not wish to use the Courier Service, the User is breaching a term of this Agreement and must not use the Site or Services.

PLEASE NOTE THAT, AS STATED ABOVE, THE SITE AND SERVICES ARE INTENDED TO BE USED TO FACILITATE LENDERS AND BORROWERS CONNECTING AND RENTING ITEMS DIRECTLY WITH EACH OTHER. FLYTRADER CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY ITEMS. FLYTRADER IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND ITEMS. ACCORDINGLY, ANY RENTALS WILL BE MADE AT THE MEMBER’S OWN RISK.

Account Registration

In order to access certain features of the Site and rent an Item or create a Listing, you must register to create an account (“FlyTrader Account”) and become a Member. You may register to join the Services directly via the Site or as described in this section.

You can also register to join by logging into your account with certain third-party social networking sites (“SNS”) (including, but not limited to, Instagram, Facebook, Twitter; each such account, a “Third-Party Account”), via our Site, as described below. As part of the functionality of the Site and Services, you may link your FlyTrader Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to FlyTrader through the Site or Services; or (ii) allowing FlyTrader to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to FlyTrader and/or grant FlyTrader access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating FlyTrader to pay any fees or making FlyTrader subject to any usage limitations imposed by such third-party service providers. By granting FlyTrader access to any Third-Party Accounts, you understand that FlyTrader will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Site and Services via you’re FlyTrader Account and FlyTrader Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your FlyTrader Account on the Site and Services. Please note that if a Third-Party Account or associated service becomes unavailable or FlyTrader’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site and Services. You have the ability to disable the connection between your FlyTrader Account and your Third-Party Accounts, at any time, by accessing the “Settings” section of the Site. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. FlyTrader makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and FlyTrader is not responsible for any SNS Content.

We will create your FlyTrader Account and your FlyTrader Account profile page for your use of the Site based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active FlyTrader Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. FlyTrader reserves the right to suspend or terminate your FlyTrader Account and your access to the Site and Services if you create more than one (1) FlyTrader Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your FlyTrader Account, whether or not you have authorized such activities or actions. You will immediately notify FlyTrader of any unauthorized use of your FlyTrader Account.

Item Listings

As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Item to be listed, including, but not limited to, your location, designer, size, occasion, colour, recommended retail price, any existing defects, description and availability of the Item and rental pricing and related rules (for instance dry cleaning responsibility) and financial terms. Listings will be made publicly available via the Site and Services. Other Members will be able to rent your Items via the Site and Services based upon the information provided in your Listing. You understand and agree that once a Borrower requests a rental of your Item, you may not request the Borrower to pay a higher price than in the rental request.

You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the rental of an Item in a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Item included in a Listing you post, and (b) not conflict with the rights of third parties. Please note that FlyTrader assumes no responsibility for a Lender’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. FlyTrader reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that FlyTrader, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or FlyTrader’s then-current Policies (at www.fly-trader.com), or otherwise harmful to the Site or Services.

If you are a Lender, you understand and agree that FlyTrader does not act as an insurer or as your contracting agent. If a Borrower requests a rental of your Item and rents your Item, any agreement you enter into with such Borrower is between you and the Borrower and FlyTrader is not a party thereto. Notwithstanding the foregoing, FlyTrader serves as the limited authorized payment collection agent of the Lender for the purpose of accepting, on behalf of the Lender, payments from Borrowers of such amounts stipulated by the Lender.

If you are a Lender, FlyTrader makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for renting your Items. You acknowledge and agree that, as a Lender, you are responsible for your own acts and omissions. Please see Lender Tips (at www.fly-trader.com) for further information.

FlyTrader recommends that Lenders obtain appropriate insurance for their Items. Please review any insurance policy that you may have for your Items carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or in-actions of Borrowers while renting your Items.

FlyTrader may at their own discretion have Members’ Items verified by a representative of FlyTrader and this verification will be made available to you to include in your Listing with a watermark or tag bearing the words “FlyTrader Verified” or similar wording (“Verified Images”).

No Endorsement

FlyTrader does not endorse any Member or any Item. You understand that Verified Images are intended only to indicate a photographic representation and description of the Item at the time the FlyTrader representative sights the Item. Verified Images are therefore not an endorsement by FlyTrader of any Member or any Item. Members are required by these Terms to provide accurate information, and although FlyTrader may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member’s purported identity or background.

Any references in the Site or Services to a Member being “verified” or “connected” (or similar language) only indicate that the Member has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by FlyTrader about any Member, including of the Member’s identity and whether the Member is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to rent an Item or to accept a rental request from a Borrower, or to have any other interaction with any other Member.

By using the Site or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from FlyTrader with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any rentals or Listings made by you. This limitation shall not apply to any claim by a Lender against FlyTrader regarding the remittance of payments received from a Borrower by FlyTrader on behalf of a Lender, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.

Courier Services

FlyTrader provides Members access to an integrated third party door-to-door courier service. Note that all transactions are subject to a shipment contract. This means that the risk of loss and title for such items passes between the Lender and the Borrower. FlyTrader is not a party to such shipment contract. FlyTrader disclaims any loss or liability whatsoever arising from the user any such Courier Services.

Courier Fees are based on the size of the package selected by the Lender. If it is deemed by FlyTrader, in its absolute discretion, that the package does not comply with the dimensions selected, FlyTrader is entitled to claim additional fees from the Member. For the avoidance of doubt, these additional fees may include any additional amounts that would have been payable by the Borrower if the Lender uses the incorrect packaging size.

Photo Editing Services

FlyTrader has partnered with a third party Photo Editing Service to assist Lenders in improving their photos for use on the Site. If a Lender chooses to use the Photo Editing Services FlyTrader will charge the Lender a Photo Edit Fee. Currently, this is an optional service.

Rentals and Financial Terms

Key definitions

“Rental Fees” means the amounts that are due and payable by a Borrower in exchange for that Borrower’s use of an Item. The Lender alone, and not FlyTrader, determines these amounts. The Lender may in his or her sole discretion decide to include in these amounts (i) a dry cleaning fee or any other fee permitted on FlyTrader platform.
“Borrower Fees” means the fee that FlyTrader charges a Borrower for the use of its online platform, which is calculated as 5% of the applicable Rental Fees. The Borrower Fees will be displayed to the Borrower when the Borrower is asked whether to send a rental request to a Lender.

“Courier Fees” means the fee the Borrower and/or Lender pays for use of the Courier Services. These fees are based on capacity. For more information please see [www.fly-trader.com]. If a package is larger than what you elected initially you will be charged for the additional amounts incurred by FlyTrader.
“Lender Fees” means the fee that FlyTrader charges a Lender for the use of its online platform, which is calculated as 10% of the applicable Rental Fees.

“Photo Edit Fee” means the fee FlyTrader charges to the Lender to edit the Lender’s photographs for use on the Site. Currently the Photo Edit Fee is calculated as US$3.00 per photograph.
“Service Fees” means collectively the Borrower Fees and the Lender Fees.
“Total Fees” means collectively the Rental Fees, Borrower Fees and Courier Fees.

Rentals and Financial Terms for Lender

If you are a Lender and a rental is requested for your Item via the Site, Application and Services, you will be required to either confirm or reject the rental request within the Rental Request Period, otherwise the rental request may be automatically cancelled. If you are unable to confirm or decide to reject a rental request within the Rental Request Period, any amounts (if any) collected by FlyTrader for the requested rental will be refunded to the applicable Borrower’s credit card and any pre-authorisation of such credit card (if any) will be released.

FlyTrader will collect the Total Fees at the time of rental confirmation (i.e. when the Lender confirms the rental request) and will initiate payment of the Rental Fees to the Lender within 48 hours of when the Borrower is scheduled to receive the Item (except to the extent that a refund is due to the Borrower).

If you owe or agree to pay any amount to FlyTrader (whether as a result of your FlyTrader or actions as a Borrower or otherwise), then FlyTrader may (but is not obliged to) withhold the amount owing to FlyTrader from any payout amounts due to you as a Lender, and use the withheld amount to set-off the amount owed by you to FlyTrader. If FlyTrader does so, then your obligation to pay FlyTrader will be extinguished to the extent of the amount withheld by FlyTrader, and FlyTrader will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld.

Appointment of FlyTrader as Limited Payment Collection Agent for Lender

Each Lender hereby appoints FlyTrader as the Lender’s limited payment collection agent solely for the purpose of accepting the Rental Fees from Borrowers.

Each Lender agrees that payment made by a Borrower through FlyTrader shall be considered the same as a payment made directly to the Lender, and the Lender will make the Item available to the Borrower in the agreed-upon manner as if the Lender has received the Rental Fees. Each Lender agrees that FlyTrader may, in accordance with the cancellation policy selected by the Lender and reflected in the relevant Listing, (i) permit the Borrower to cancel the rental and (ii) refund to the Borrower that portion of the Rental Fees specified in the applicable cancellation policy. Each Lender understands that as FlyTrader accepts payments from Borrowers as the Lender’s limited payment collection agent, FlyTrader’s obligation to pay the Lender is subject to and conditional upon FlyTrader successfully receiving the payments from Borrowers. FlyTrader does not guarantee payments to Lenders for amounts that have not been successfully received from Borrowers. In accepting appointment as the limited authorised agent of the Lender, FlyTrader assumes no liability for any acts or omissions of the Lender.

Please note that FlyTrader does not currently charge fees for the creation of Listings. However, you as a Lender acknowledge and agree that FlyTrader reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that FlyTrader will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.

Rental and Financial Terms for Borrowers

The Lenders, not FlyTrader, are solely responsible for honouring any confirmed rentals and making available any Items reserved through the Site, Application and Services. If you, as a Borrower, choose to enter into a transaction with a Lender for the rental of an Item, you agree and understand that you will be required to enter into an agreement with the Lender and you agree to accept any terms, conditions, rules and restrictions associated with such Item imposed by the Lender. You acknowledge and agree that you, and not FlyTrader, will be responsible for performing the obligations of any such agreements, that FlyTrader is not a party to such agreements, and that, with the exception of its payment obligations hereunder, FlyTrader disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that FlyTrader is not a party to the agreement between you and the Lender, FlyTrader acts as the Lender’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Lender. Upon your payment of the Total Fees to FlyTrader, your payment obligation to the Lender for the Item Fees is extinguished, and FlyTrader is responsible for remitting the Item Fees (less FlyTrader’s Lender Fees and relevant Courier Fee), in the manner described in these Terms. In the event that FlyTrader does not remit any such amounts as described in these Terms, such Lender will have recourse only against FlyTrader.

The Total Fees payable will be displayed to a Borrower before the Borrower sends a rental request to a Lender. As noted above, the Lender is required to either confirm or reject the rental request within the Rental Request Period, otherwise the requested rental will be automatically cancelled. If a requested rental is cancelled (i.e. not confirmed by the applicable Lender), any amounts collected by FlyTrader will be refunded to such Borrower, depending on the selections the Borrower makes via the Site and Application, and any pre-authorisation of such Borrower’s credit card will be released, if applicable.

You as a Borrower agree to pay FlyTrader for the Total Fees for any rental requested in connection with your FlyTrader Account if such requested rentals are confirmed by the applicable Lender. In order to establish a rental pending the applicable Lender’s confirmation of your requested rental, you understand and agree that FlyTrader, on behalf of the Lender, reserves the right, in its sole discretion, to (i) obtain a pre-authorisation via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. Once FlyTrader receives confirmation of your rental from the applicable Lender, FlyTrader will collect the Total Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. Please note that FlyTrader cannot control any fees that may be charged to a Borrower by his or her bank related to FlyTrader’s collection of the Total Fees, and FlyTrader disclaims all liability in this regard.

In connection with your requested rental, you will be asked to provide customary billing information such as name, billing address and credit card information either to FlyTrader or its third-party payment processor. You agree to pay FlyTrader for any confirmed rentals made in connection with your FlyTrader Account in accordance with these Terms by one of the methods described on the Site or Application, e.g. by PayPal or credit card. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the rental, either directly by FlyTrader or indirectly, via a third-party online payment processor or by one of the payment methods described on the Site or Application. You also authorize FlyTrader to charge your credit card in the event of damage caused to an Item as contemplated under “Damage to Items” below or non-return of an Item. If you are directed to FlyTrader’s third-party payment processor, you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. Please review such terms and conditions and privacy policy before using the services. Once your confirmed rental transaction is complete you will receive a confirmation email summarizing your confirmed rental.

Service Fees

In consideration for the use of FlyTrader’s online marketplace and platform, FlyTrader charges the Service Fees. Where applicable, Taxes (such as VAT in Europe or GST in Australia) may also be charged in respect of the Lender Fees and Borrower Fees. FlyTrader deducts the Lender Fees from the Rental Fees before remitting the balance to the Lender as described in these Terms. Borrower Fees are, as noted above, included in the Total Fees.

Balances will be remitted by FlyTrader to Lenders via (in FlyTrader’s sole discretion) payment methods described on the Site or via the Application, depending upon the selections the Lender makes via the Site, Application and Services. Amounts may be rounded up or down as described the “Rounding Off” section below.

More information on Services Fees can be found at [www.flytrader.com.au]. Except as otherwise provided herein, Service Fees are non-refundable.

General Rental and Financial Terms

Cancellations and Refunds

If, as a Borrower, you cancel your requested rental before the requested rental is confirmed by a Lender, FlyTrader will cancel any pre-authorisation to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested rental within a commercially reasonable time. If, as a Borrower, you wish to cancel a confirmed rental made via the Site, Application and Services, either prior to or after receiving the Item, the cancellation policy of the Lender contained in the applicable Listing will apply to such cancellation. Our ability to refund the Rental Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site. The Borrower Fee is non-refundable regardless of the cancellation policy selected by the Lender. Please see our Cancellation Policy at [www.FlyTrader.com] for further information.

If a Lender cancels a confirmed rental made via the Site, (i) FlyTrader will refund the Total Fees for such rental to the applicable Borrower within a commercially reasonable time of the cancellation and (ii) the Borrower may receive an email or other communication from FlyTrader containing alternative Listings and other related information. If the Borrower requests a rental from one of the alternative Listings and the Lender associated with such alternative Listing confirms the Borrower’s requested rental, then the Borrower agrees to pay FlyTrader the Total Fees relating to the confirmed rental for the Item in the alternative Listing, in accordance with these Terms. If a Lender cancelled a confirmed rental and you, as a Borrower, have not received an email or other communication from FlyTrader, please contact FlyTrader at [www.fly.trader.com].

If, as a Lender, you cancel a confirmed rental, FlyTrader may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled rental, or (iii) imposing a cancellation fee (to be withheld from your future payouts). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.

In certain circumstances, FlyTrader may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed rental made via the Site and Services. This may be for reasons set forth in FlyTrader’s Extenuating Circumstances Policy at [www.fly-trader.com] or for any other reason. FlyTrader may also determine, in its sole discretion, to refund to the Borrower part or all of the amounts charged to the Borrower in accordance with the Borrower Refund Policy at [www.fly-trader.com]. You agree that FlyTrader and the relevant Borrower or Lender will not have any liability for such cancellations or refunds.

Borrower Refunds

Iterms on FlyTrader platform should be consistent with the description provided by the Lender. If a Borrower who books and pays for an Item and then experiences a ‘Renting Issue’, the Borrower may be eligible for a refund.

FlyTrader may (at our discretion) provide the Borrower with either a full or partial refund excluding any shipping costs, administration fees and processing fees.

A valid ‘Renting Issue‘ generally falls into three categories:

1. The Lender cancels a reservation 24 hours or less before the scheduled arrival of the Item, or fails to provide the Borrower with the Item.
2. The description of the Item in the Listing on FlyTrader is materially different from the actual Item. FlyTrader reminds Borrowers that Items are potentially pre-worn and are not rented on an as-new basis. Some minor wear and tear may not be listed in the description but can not be used as a basis to provide a refund under this policy.
3. At the start of the Borrower’s reservation, the Item: (i) is not generally clean and sanitary (ii) contains safety or health hazards that would be reasonably expected to adversely affect the Borrower’s use of the Item in FlyTrader’s judgment.

To submit a valid claim for a refund, a Borrower is required (a) to bring the Renting Issue to our attention within 2 hours after receipt of the item (including photographs or other evidence) and respond to our requests for information or cooperation, (b) not have directly or indirectly caused the Renting Issue and (c) to have used reasonable efforts to try to remedy the circumstances of the Renting Issue with the Lender prior to making a claim for a Renting Issue.

Rounding Off

FlyTrader may, in its sole discretion, round up or round down amounts that are payable from or to Borrowers or Lenders to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, FlyTrader will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.

Some currencies are denominated in large numbers. In those cases, FlyTrader may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for FlyTrader to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.

Payment Processing Errors

We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.

Donations

Some Lenders may pledge to donate a portion of the funds they receive from confirmed rentals made via the Site, Application and Services to a particular cause or charity. We do not take any responsibility or liability for whether the Lender does in fact make the donation he or she pledged to make. In such cases, the Lender in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.

Taxes

You as a Lender understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. FlyTrader cannot and does not offer Tax-related advice to any Members.

Damage to Items and Failure to Return Items

As a Borrower, you are responsible for returning the Item in the condition it was in when you received it. You acknowledge and agree that, as a Borrower, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you allow to access the Item. In the event that a Lender claims otherwise and may provide evidence of damage or non-return, including but not limited to photographs, you agree to pay the Lender the Recommended Retail Price as contained in the relevant Listing or the relevant repair costs if applicable. After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file in your FlyTrader Account. FlyTrader also reserves the right to charge the credit card on file in your FlyTrader Account, or otherwise collect payment from you and pursue any avenues available to FlyTrader in this regard, in situations in which you have been determined, in FlyTrader’s sole discretion, to have damaged any Item, or failed to return any Item, including, but not limited to, in relation to any payments made by FlyTrader to Lenders. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Item to the applicable Lender or to FlyTrader (if applicable).

Both Borrowers and Lenders agree to cooperate with and assist FlyTrader in good faith, and to provide FlyTrader with such information and take such actions as may be reasonably requested by FlyTrader, in connection with any complaints or claims made by Members relating to Items or with respect to any investigation undertaken by FlyTrader or a representative of FlyTrader regarding use or abuse of the Site or the Services.

User Conduct

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:

• violate any local, state, national, or other law or regulation, or any order of a court, including, without limitation, Tax regulations;
• use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Services or Collective Content;
  use the Site, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
• copy, store or otherwise access any information contained on the Site, Services or Collective Content for purposes not expressly permitted by these Terms;
• infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
• interfere with or damage our Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
• use our Site or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
• use our Site, Services or Collective Content in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to rental of your Items;
• “stalk” or harass any other user of our Site, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as an FlyTrader Borrower or Lender;
• offer, as a Lender, any Item that you do not yourself own or have permission to rent;
• register for more than one FlyTrader Account or register for an FlyTrader Account on behalf of an individual other than yourself;
• unless FlyTrader explicitly permits otherwise, request or rent any Item if you will not actually be using the Item yourself;
• contact a Lender for any purpose other than asking a question related to a rental, such Lender’s Items or Listings;
• contact a Borrower for any purpose other than asking a question related to a rental or such Borrower’s use of the Site and Services;
• recruit or otherwise solicit any Lender or other Member to join third-party services or websites that are competitive to FlyTrader, without FlyTrader’s prior written approval;
• impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
• use automated scripts to collect information from or otherwise interact with the Site, Services or Collective Content;
• use the Site, Services or Collective Content to find a Lender or Borrower and then complete a rental of an Item independent of the Site or Services, in order to circumvent the obligation to pay any Service Fees related to FlyTrader’s provision of the Services or for any other reasons;
• as a Lender, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honour;
• post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
• systematically retrieve data or other content from our Site or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• use, display, mirror or frame the Site, Services or Collective Content, or any individual element within the Site, Services or Collective Content, FlyTrader’s name, any FlyTrader trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site or Services, without FlyTrader’s express written consent;
• access, tamper with, or use non-public areas of the Site or Services, FlyTrader’s computer systems, or the technical delivery systems of FlyTrader’s providers;
• attempt to probe, scan, or test the vulnerability of any FlyTrader system or network or breach any security or authentication measures;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by FlyTrader or any of FlyTrader’s providers or any other third party (including another user) to protect the Site, Services or Collective Content;
• forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Collective Content to send altered, deceptive or false source-identifying information;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content; or
• advocate, encourage, or assist any third party in doing any of the foregoing.

FlyTrader has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.

FlyTrader may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against FlyTrader or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of FlyTrader, its users, or members of the public . You acknowledge that FlyTrader has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. FlyTrader reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that FlyTrader, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.

Privacy

See FlyTrader’s Privacy Policy at [www.fly-trader.com] for information and notices concerning FlyTrader’s collection and use of your personal information.

Ownership

The Site, Services, and Collective Content are protected by copyright, trademark, and other laws of the Australia, foreign countries. You acknowledge and agree that the Site, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of FlyTrader and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, or Collective Content.

FlyTrader Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, FlyTrader grants you a limited, non-exclusive, non-transferable license, to (i) access and view any FlyTrader Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by FlyTrader or its licensors, except for the licenses and rights expressly granted in these Terms.

Member Content

We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to FlyTrader a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, and Services. FlyTrader does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to FlyTrader the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or FlyTrader’s use of the Member Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Links

The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that FlyTrader is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by FlyTrader of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of FlyTrader used herein are trademarks or registered trademarks of FlyTrader. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us. You acknowledge and agree that all Feedback will be the sole and exclusive property of FlyTrader and you hereby irrevocably assign to FlyTrader and agree to irrevocably assign to FlyTrader all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At FlyTrader’s request and expense, you will execute documents and take such further acts as FlyTrader may reasonably request to assist FlyTrader to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

Copyright Policy

FlyTrader respects copyright law and expects its users to do the same. It is FlyTrader’s policy to terminate in appropriate circumstances the FlyTrader Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

Suspension, Termination and FlyTrader Account Cancellation

We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your FlyTrader Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your FlyTrader Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Services, your FlyTrader Account, your Member Content, or receive assistance from FlyTrader Customer Service, (b) any pending or accepted future rentals as either Lender or Borrower will be immediately terminated, (c) we may communicate to your Borrowers or Lenders that a potential or confirmed rental has been cancelled, (d) we may refund your Borrowers in full for any and all confirmed transactions, irrespective of pre-existing cancellation policies, (e) we may contact your Borrowers to inform them about potential alternate Items with other Lenders that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for any rentals (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your FlyTrader Account. You may cancel your FlyTrader Account at any time via the “Cancel Account” feature of the Services or by sending an email. Please note that if your FlyTrader Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site and Services, including, but not limited to, any reviews or Feedback.

Disclaimers

IF YOU CHOOSE TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT FLYTRADER DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, BORROWERS AND LENDERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FLYTRADER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLYTRADER MAKES NO WARRANTY THAT THE SITE, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ITEMS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FLYTRADER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ITEMS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, SERVICES OR REFERRAL PROGRAM.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLYTRADER OR THROUGH THE SITE, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LENDERS OR BORROWERS. YOU UNDERSTAND THAT FLYTRADER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES OR TO REVIEW OR VERIFY ITEMS. FLYTRADER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, BORROWERS AND LENDERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANISED BY OR THROUGH FLYTRADER. NOTWITHSTANDING FLYTRADER’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE LENDERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM BORROWERS ON BEHALF OF THE LENDERS, FLYTRADER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BORROWER OR OTHER THIRD PARTY.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR RENTAL OF ANY ITEMS VIA THE SITE AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF FLYTRADER WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER FLYTRADER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR FROM YOUR LISTING OR RENTAL OF ANY ITEM VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLYTRADER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE LENDERS PURSUANT TO THESE TERMS, IN NO EVENT WILL FLYTRADER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR RENTAL OF ANY ITEM VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY ITEM OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR RENTALS VIA THE SITE AND SERVICES AS A BORROWER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A LENDER, THE AMOUNTS PAID BY FLYTRADER TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED AUSTRALIAN DOLLARS (AU$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLYTRADER AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification

You agree to release, defend, indemnify, and hold FlyTrader and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) rental of an Item, or (iii) creation of a Listing; (d) the use, condition or rental of an Item by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, rental or use of an Item.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between FlyTrader and you regarding the Site, Services, Collective Content, and any rentals or Listings of Items made via the Site and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between FlyTrader and you regarding rentals or listings of Items, the Site, Services and Collective Content.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without FlyTrader’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. FlyTrader may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by FlyTrader (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Controlling Law and Jurisdiction

These Terms will be interpreted in accordance with the laws of Australia. Any disputes arising in relation to these Terms will be heard in a Court of Western Australia.

Dispute Resolution

You and FlyTrader agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site (collectively, “Disputes”) will be settled by binding arbitration , except that each party retains the right to seek injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

If a dispute arises between you and FlyTrader, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. We strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

Law and Forum for Legal Disputes – This Agreement will be governed in all respects by the laws of Western Australia. We encourage you to try and resolve disputes using certified mediation. If a dispute cannot be resolved then you and FlyTrader irrevocably submit to the non-exclusive jurisdiction of the courts of Western Australia.

General

The failure of FlyTrader to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of FlyTrader. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Contacting FlyTrader

If you have any questions about these Terms please contact FlyTrader at [email protected]