Terms & Conditions

TERMS AND CONDITIONS OF USE

The application under the name “Flash Market” and its related services, products, websites, tools and applications (“App”) is owned and operated by Flash Market Pty Ltd ACN 615 277 677 ("Flash Market").

Before using the App, you must read these terms and conditions (“Terms and Conditions”) and all other policies. By using the App you agree to be automatically bound by these Terms and Conditions and our privacy policy. Prior to using the App you must carefully read and understand these Terms and Conditions. If you do not agree to be bound by these Terms and Conditions, you must not use the App. These Terms and Conditions may be updated by us from time to time, and the updated Terms and Conditions will apply from the date they are published on the App. Each time you use our App you should revisit these Terms and Conditions. These Terms and Conditions are effective as at 1 March 2018.

1.    DEFINITIONS & INTERPRETATION

1.1  Definitions

In these Terms and Conditions unless inconsistent with the context or subject matter:
“Account” means a User’s account to use our Services;
“Applicable Laws” means any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, the Merchant Offering or the Merchant are located;
“Content” includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise;
“Information” means any information, Content, documents, links or attachments;
"Intellectual Property" means all intellectual property rights, including without limitation inventions, patents, copyright, trademarks, know-how, processes, concepts, including our Content, the App and any other platform developed by Flash Market and the source code for those systems and any application or right to apply for registration of any of the these rights throughout the world whether registered or unregistered and whether developed before or after the date of these Terms and Conditions;
“Listing” means the advertisement for a Merchant Offering that is available to view on the App;
“Loss” means any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
“Merchant” means the entity (business) offering the Merchant Offering;
“Merchant Offering” means the goods and/or services to be supplied and/or provided by the Merchant as specified on the App;
“our”, “us” and “we” means Flash Market;
“Purchase” means the purchase of a Merchant Offering through the App, in which in exchange for payment the User will receive a Receipt which can be redeemed for the Merchant Offering;
“Receipt” means a digital transaction receipt which serves as proof of Purchase entitling the User to redeem the Merchant Offering from the Merchant;
“Rewards System” means any rewards system offered by Flash Market from time to time;
“Services” means any services we provide to you, including the App;
“User” means any person who uses the App;
“you” and “your” means a User.

1.2 Interpretation

In these Terms and Conditions, unless inconsistent with the context or subject matter:

         (a) a reference to a person includes any other legal entity and vice versa;
         (b) words importing the singular number include the plural number and vice versa;
         (c) a reference to a party includes the party's heirs, executors, successors and permitted assigns;
         (d) headings are for reference purposes only;
        (e) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a   
            corresponding meaning;
        (f) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
        (g) unless otherwise stated, a reference to a monetary amount is a reference to an Australian dollar currency amount; and
        (h) an obligation of two or more parties binds them jointly and each of them severally.

2. YOUR ACCOUNT

2.1 Our Services are only available to, and may only be used by, persons who hold a valid bank account. If you are aged under 18 you must not open an Account and must obtain your parent or guardian’s permission before using the Services. If you do not obtain that permission, you must not use our Services.

2.2 To access and use the App, you must register with us and set up an Account with your email address and password. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities that happen under your Account, even if you do not authorise such activities.

2.3 If we enable you to connect to the App with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your Information from that service as permitted by that service and as may be described in our Privacy Policy. Immediately contact us if you believe your Account has been compromised or misused in any way.

3. PURCHASES THROUGH THE FLASH MARKET APP

3.1 The App provides an online marketplace service that facilitates the purchase by Users of Merchant Offerings. Listings are an invitation to treat only.

3.2 Users may Purchase Merchant Offerings on the App. Merchant Offerings sold on the App are not reserved in-cart.

3.3 The Purchase of a Merchant Offering constitutes an offer to the Merchant and requires acceptance before it is binding. On behalf of the Merchant, Flash Market reserves the right to refuse your offer for any reason at any time and without notice.

3.4 The Merchant is a third party unrelated to Flash Market. Flash Market does not sell, supply and/or provide the Merchant Offering. Payment made through the App is made and received by a third party payment gateway solely for the purpose of facilitating transactions between the User and the Merchant and held solely for the benefit of the Merchant (although under our agreement with the Merchant we may be entitled to a commission the sale which may be deducted from this amount by our third party payment gateway). Flash Market does not at any time hold or receive any funds on behalf of Users or Merchants. The Merchant is solely responsible for providing the Merchant Offering to the User.

3.5 The Merchant may have its own terms and conditions that are applicable to the sale, supply and or provision of the Merchant Offering. Before purchasing a Merchant Offering, you should familiarise yourself with any terms and conditions which apply (including any which are noted in the description of the Merchant Offering in the App, especially in relation to delivery and returns).

3.6 The contract for sale of any Merchant Offering is directly between the User and the Merchant. Flash Market is not a party to this contract.

3.7 If you consider that a Merchant has not properly provided you the Merchant Offering that you purchased through the App, you must take action against the Merchant directly. If we provide you with any assistance with any complaint or alleged defect, we do so as a mere convenience and does not assume any responsibility in respect thereof.

3.8 Flash Market will collect your personal information at the time of Purchase and may pass these details onto the Merchant whether on your behalf of for another purpose.

3.9 In the event that you provide Flash Market with incorrect contact or delivery details, the Merchant Offering may be delivered to the incorrect address and neither Flash Market nor the Merchant accept any responsibility in this regard.

4. PURCHASE OF MERCHANT OFFERING

4.1 You may access the App to view Merchant Offerings and Purchase a Merchant Offering.

4.2 All Purchases are:

      (a) only able to be redeemed once (unless otherwise stated);

      (b) non-transferable (unless otherwise stated);

      (c) can only be redeemed with the relevant Merchant and not Flash Market;

      (d) only valid for one person (unless otherwise stated).

4.3 In order to redeem a Purchase, you must present the Receipt to the Merchant within the redemption period as defined on the Merchant Offering Listing.

4.4 Unless expressly stated in the Merchant Offering Listing, the Receipt does not entitle you to receive the Merchant Offering at a specific time. You may need to make a booking with the Merchant in order to redeem your Receipt and we recommend that you contact the Merchant to arrange this.

4.5 If you redeem the Receipt for goods and/or services other than the Merchant Offering you will not be entitled to a credit, cash refund or new Receipt.

4.6 Flash Market may facilitate collection of booking fees on behalf of the Merchant.

4.7 The Receipt is solely your responsibility. Flash Market will not be liable for lost or stolen Receipts or for retrieving Receipt reference numbers.

4.8 Receipts are redeemable in their entirety only.

5. USER OBLIGATIONS

5.1 When using the App, you acknowledge and agree that:

(a) Flash Market does not guarantee the completeness, accuracy, currency or reliability of Listings. You must make your own investigation into the accuracy of Listings;

(b) you are responsible for reading the full Listing and any linked terms and conditions before committing to purchase;

(c) you will not reproduce, resell or otherwise deal commercially with the Receipt;

(d) the Merchant (and not Flash Market) is the seller, supplier and/or provider of the Merchant Offering;

(e) Flash Market merely provides a platform for a User and the Merchant to interact, and is not responsible for any negotiations or disputes arising as the result of a Listing or Purchase of a Merchant Offering which are the subject of a contract to which Flash Market is not a party;

(f) by agreeing to purchase a Merchant Offering from a Merchant you enter into a legally binding contract to purchase the Merchant Offering with the Merchant. Flash Market is not a party to the arrangements;

(g) any purchase/arrangements entered into with a Merchant is at your own risk;

(h) the Merchant is solely responsible for providing the Merchant Offering;

(i) Merchants may in their discretion, withdraw or cancel Merchant Offerings at any point in time;

(j) Flash Market assumes no responsibility for a Merchant’s compliance with Applicable Laws;

(k) Flash Market has the right to share your personal information with Merchants and other related parties as necessary or desirable for the fulfilment of this Agreement;

(l) under no circumstances is the Merchant acting as an agent of Flash Market.

5.2  As a condition of your use of this App, you warrant that you will not use this App for any purpose other than the purpose it was created for, or for any purpose that is unlawful or prohibited by these Terms and Conditions.

5.3 You may not use this App in any manner which could damage, disable, overburden, or impair the App or interfere with any other party's use and enjoyment of this App.

5.4 In using our App and our Services, you must not:

(a) provide any false, inaccurate or misleading Information;

(b) take or do any action that may undermine the Rewards System;

(c) assign your Account to another User without our consent;

(d) commercialise the App or any information or software associated with the App, except with the written consent of Flash Market;

(e) provide any Information that infringes any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy, or that is defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;

(f) upload or provide any Information that contains any viruses, trojan horses, worms, time bombs, trap doors, back doors, easter eggs, spiders, robots, screen scrapers, data aggregation tools or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of this App;

(g) create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other Users or other suppliers;

(h) damage the credibility or integrity of the App or Flash Market, or dilute, tarnish, or otherwise harm our brand in any way;

(i) breach or violate any of our policies;

(j) link directly or indirectly to or include anything that:

         1:- you do not have a right to link to or include, or

         2:- could cause us to violate any Applicable Laws;

(k) copy, store or otherwise access or use any Information contained on the App for purposes not expressly permitted by these Terms and Conditions;

(l) use the App for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the App, or in a manner that falsely implies Flash Market endorsement, partnership or otherwise misleads others as to your affiliation with Flash Market;

(m) use the App in connection with the distribution of unsolicited commercial email ("spam") or advertisements.

1. FEES AND PAYMENT
    Flash Market Fees

6.1 Flash Market reserves the right, in its sole discretion, to charge Users a fee, and to modify or terminate any fees, services, or charges on the App at any time and without prior notice. If we charge a fee for any Service, the fee payable by you for that Service is the then current fee stated on the App at the time the Service is purchased. The time for payment of a fee will be as stated on the App from time to time.

Authorisation

6.2 You authorize Flash Market, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport), your date of birth, and other information requiring you to take steps to confirm ownership of your email address and payment or payout methods (e.g. credit card, debit card, PayPal, or direct deposit).

Merchant Payments

6.3 Any payment made by you in respect of a Merchant Offering is deemed to be a payment made directly to the Merchant.

General

6.4 Unless otherwise stated on the App, fees payable by you are exclusive of any goods and services tax, value added tax or similar tax and such taxes must be paid by you to us at the same time as payment of our fees.

6.5 Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card). You agree to pay such fees at the time of Purchase.

6.6 Where goods or services are to be delivered to you, you may be required to pay delivery or postage fees as stated on the App or otherwise notified by the Merchant in order for your Purchase to be redeemed.

6.7 Please note that we may impose or deduct foreign currency processing costs on or from any payments or payouts made in currencies other than Australian dollars.

7. REFUNDS, RETURNS AND CANCELLATIONS

7.1 Unfortunately, given the nature of the Services, to the extent permitted by law, any fees paid to us are non-refundable under any circumstances. For the avoidance of doubt, you are not entitled, and Flash Market will not be liable to provide, a refund from Flash Market for any Purchase of the Merchant Offerings.

7.2 All payments made to us are deemed to have been paid to the Merchant. We are not responsible for any refunds which a Merchant is required to give to another User. Despite this, we may in our discretion provide for a complimentary refund system to facilitate refunds to occur, however this system is used at your own risk and we accept no responsibility in this regard.

7.3 The Merchant is solely responsible for the supply and provision of returns and refunds of Merchant Offerings under the App. Each Merchant may have their own refund, return and cancellation policy and we encourage you to check with the Merchant before making a purchase as to what their policies are. Whilst Merchants are in certain cases obliged by law to provide a refund, return or permit a cancellation, we make no representations that Merchants will comply with such obligations and accept no responsibility if they fail to do so.

8. REWARDS

8.1 Rewards are only available to current Users of the App.

8.2 Users may be rewarded for purchasing Merchant Offerings in the App on the terms set out in the App.

8.3 Every purchase a User makes within the App may accumulate reward points in which the User can redeem for Flash Dollars to buy products from the Flash Market online store.

8.4 Flash Market reserves the right, in its sole discretion to modify or terminate any rewards on the App at any time and without prior notice. The rewards available and qualification needed to redeem them will be as set out on the App from time to time.

8.5 Any rewards you are entitled to under the App are not redeemable or payable as cash.

9. ACCESS AND TERMINATION

9.1 You may terminate access to the App at any time by uninstalling the App.

9.2 We reserve the right, in our sole discretion, to terminate your access to this App or any part of it at any time, for any reason without notice.

9.3 We reserve the right to withdraw, or amend, update or change the functionality or content of the App at any time, without notice. We will not be liable if for any reason the App is unavailable at any time or for any period of time or if at any time any functionality of the App is restricted.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Our Intellectual Property is protected by copyright and other proprietary rights and remains the property of Flash Market at all times.

10.2 Subject to your compliance with these Terms and Conditions, we grant you a limited, revocable, non-exclusive, non-transferable license to download and install a copy of the App on each mobile device or computer that you own or control and run such copy of the App solely for your own personal use and as permitted by the usage rules as set forth in the Apple App Store Terms and Conditions or the Google Play Terms of Service, whichever is applicable.

10.3 You agree that:

(a) you will not copy, reproduce, reverse engineer, decompile, translate, alter, modify, create derivative works or otherwise attempt to derive the source code of the App, publicly display (other than on the App) any Flash Market Intellectual Property except with the prior written permission of Flash Market or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our App;

(b) Flash Market owns all Intellectual Property of the App and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms and Conditions;

(c) if you add any Information to the App of any nature whatsoever that Information is personally attributable to you and you warrant that you have the right to distribute that Information. You grant us a licence to use such Information in any way connected with the Services;

(d) Flash Market is not liable or responsible for any Loss that you may experience in submitting Information to Flash Market or for Flash Market's use of your Information in accordance with the licence granted.

10.4 Flash Market may in its sole and absolute discretion refuse or remove any Information from the App.

11. RELATIONSHIP OF PARTIES

11.1 Nothing in these terms and conditions or your use of the App establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between Flash Market, Merchant and Users.

12.PRIVACY

12.1 Any personal information you provide via your use of the App is handled in accordance with our Privacy Policy.

13. DISCLAIMER

13.1 You acknowledge and agree that your use of this App is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this App for any purpose, and to the maximum extent permitted by applicable law, anything contained in this App is without warranty of any kind. We do not warrant that the functionality or operation of the App will be uninterrupted or free from error, that any defects in the App will be corrected, or that the App or the servers that make it available are free of viruses or other harmful conditions or components.

13.2 Flash Market reserves the right, in its sole discretion to modify or terminate the App at any time, without notice.

13.3 Flash Market does not take any steps to confirm the accuracy of Users or Listings. For example, Flash Market makes no warranties that any Merchant Offerings or Merchants actually exist. The principle of “let the buyer beware” applies to any purchases.

13.4 You acknowledge and agree that Flash Market is not engaged in the Listing or sale of Merchant Offerings and is not a party to any transaction arising or entered into between Users and Merchants. As a result, we have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:

(a) any Merchant Offerings;

(b) the ability of Merchant’s to undertake their respective obligations;

(c) the fees charged by Merchants.

13.5 Because of the foregoing, in the event that you have a dispute with one or more Merchants or other Users, you release and hold us (and our officers, directors, agents, related entities, related bodies corporate, employees and contractors) harmless from actions, claims, demands and Losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

13.6 Although we use reasonable endeavours to secure the App, we do not guarantee the security of the App, our records, or your Information.

13.7 This disclaimer applies to the fullest extent permitted by law, and shall survive any termination or expiration of these Terms and Conditions or your use of this App.

14.LIMITATION OF LIABILITY

14.1 We disclaim liability to you or any other person or entity for any Loss howsoever arising as a result of your use of this App in any way. You hereby release us and our officers, directors, agents, related entities, related bodies corporate, employees and contractors) from all Loss suffered by you or any other person relating to or arising out of the provision of the Services or these Terms and Conditions.

14.2 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.

14.3 This limitation of liability applies to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of our Services.

15. INDEMNITY

You agree to indemnify and hold us and our related entities, related bodies corporate, officers, directors, agents, and employees, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and nature, known and unknown (including legal costs on a solicitor own client basis) and claims made by third parties, due to or arising out of your breach of these Terms and Conditions or any Policy or the terms and policies they incorporate by reference, or your violation of any law or the rights of a third party, or otherwise arising directly or indirectly from your use of the Services.

16.MISCELLANEOUS

16.1 Accessing information from the App is done so at your own risk and you will be responsible for compliance with the laws within your jurisdiction.

16.2 These Terms and Conditions are governed by the laws of Victoria, and the parties submit to the jurisdiction of the Courts of Victoria and relevant Commonwealth courts competent to hear appears from them.

16.3 These Terms and Conditions shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.

16.4 Flash Market may transfer all or any part of its rights, interest, obligations or liabilities under these Terms and Conditions at any time either by assignment or novation without prior notice to you.

16.5 If a clause of these Terms and Conditions is void or unenforceable it must be severed from these Terms and Conditions and the clauses that are not void or unenforceable shall be unaffected by the severance.

16.6 You agree that these Terms and Conditions and all incorporated agreements may be assigned by Flash Market in its sole discretion without notice. You may not assign these Terms and Conditions without obtaining Flash Market’s prior written consent.

16.7 Our failure to enforce a provision of these Terms and Conditions or act with respect to a breach by you or others does not constitute a waiver of that provision or breach or a waiver of our right to act with respect to that breach or subsequent or similar breaches. The waiver of any such provision or breach will be effective only if in writing and signed by a duly authorized representative of Flash Market.

16.8 You agree that these Terms and Conditions may not be construed adversely against us solely because we prepared them.

16.9 These Terms and Conditions and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof.