Terms of Service

TERMS OF SERVICE

These terms and conditions (Terms) are entered into between Click Ventures Pty Ltd (ABN 63 626 527 839) and you, together the Parties and each a Party. These Terms supplement and incorporate our privacy policy, website terms of use and guidelines and code of conduct posted on the Platform.

We provide a platform where owners or leaseholders of berths and moorings (Hosts) and boat owners who seek to book berths and moorings (Guests) can connect and transact (Platform). The Platform is available at berthz.com and via other channels or addresses including if applicable, our mobile application and our application programme interfaces.

In these Terms, you means (as applicable): (a) the person or entity registered with us as either a Guest or Host; or (b) the individual accessing or using the Platform.

If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

Acceptance

You accept these Terms by checking the box, clicking “I accept”, registering on the Platform or using the Platform or the services.

You must be 18 years old to use the Platform.

We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with clause 9.

If you access or download our mobile application from: (a) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service; or (b) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

We may use Google Maps/Earth mapping services, including Google Maps APIs. Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

Platform Summary

The Platform is a marketplace where Guests and Hosts can find each other, and advertise, buy and sell services online. We provide the Platform to users (including hosting and maintaining the Platform), assist Guests and Hosts to form contracts for the supply of services, process payments between Guests and Hosts and provide promotional opportunities for Hosts. You understand and agree that we only make available the Platform and Berthz Services. We are not party to any agreement entered into between a Guest and a Host and we have no control over the conduct of Hosts, Guests or any other users of the Platform.

Guests and Hosts may enter into written agreements in relation to the services. To the extent there is any inconsistency between any additional terms and conditions and these Terms, these Terms will prevail.

A Host wanting to provide goods and/or services creates an Account on the Platform and posts an accurate and complete description of the goods and/or services they can provide (Host Listing).

A Guest wanting to buy goods and/or services creates an Account on the Platform to view and browse Host Listings.

A Guest may request goods and/or services described in a Host Listing by sending a request through the Platform. The request is an offer from the Guest to the Host to book or buy the goods and/or services described in the Host Listing (Booking Request).

If the Host accepts the Booking Request through the Platform, it becomes a Booking.

By accepting a Booking Request the Host confirms that it is legally entitled to and capable of supplying the goods and/or services described in the Booking Request.

Hosts may include all additional terms and conditions relating to their goods and/or services in the relevant Host Listing or must clearly state that there are additional terms and conditions. By sending a Booking Request, a Guest is accepting the additional terms and conditions of the relevant Host.

Promotional Opportunities

As a Host you may also choose to purchase promotional opportunities, such as a feature in our email marketing or placement on our home page (Promotional Opportunity). Promotional Opportunities are subject to the fees and the terms and conditions as set out in any Promotional Opportunity offer and displayed on the Platform or otherwise communicated to you. Payment for any Promotional Opportunity must be made in advance. We do not make any representations, warranties or guarantees that any Promotional Opportunity will be fit for any particular purpose, will achieve any specified result, or will provide any benefit. In the event of any conflict between any Promotional Opportunity terms and conditions and these Terms, the Promotional Opportunity terms and conditions will prevail.

Accounts

You must register on the Platform and create an account (Account) to access the Platform’s features.

You may only have 1 Account as a Host and 1 Account as a Guest on the Platform unless you are a commercial operator.

You must provide basic information when registering for an Account including your name and email address and you must choose a username and password. The username you choose must not: (a) be offensive or in other ways insulting; or (b) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.

You may register for an Account using your Facebook or other social media network account (Social Media Account). If you sign in to your Account using your Social Media Account, you authorise us to access certain information on your Social Media Account including but not limited to your current profile photo and other basic information.

Once you have registered an Account, your Account information will be used to create a profile which you may then curate.

You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.

Your Account is personal and you must not transfer it to others, except with our written permission. If a legal entity such as a company has created an account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account.

You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

If you are a Host, we may review your request for an Account before approving the request. We may request additional information. If you do not provide us with information we reasonably request, we may refuse to create an Account for you. If you provide us with any information which indicates you are not a fit and proper person to be provided with an Account, we may refuse to provide you with an Account, in our sole discretion.

We may make access to and use of certain parts of the Platform subject to conditions or requirements, including identity verification, cancellation history, quality of the services or threshold of reviews.

Communication

We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as text message or email

Guests and Hosts can communicate privately using our private messaging service. Guests and Hosts must not provide their contact details, and/or attempt to organise the provision of the goods and/or services off the Platform.

Payment

It is free to register an Account on the Platform, for other users to review content on the Platform, including Host Listings.

As a Guest, you agree to pay the relevant fees set out in the Host Listing (Listing Fees) at the time you make a Booking Request. Payment will be processed: (a) if the Host is set up on the Platform to review Booking Requests, at the time the Host accepts the Booking Request; or (b) if the Host has opted for automatic confirmation, at the time when the Booking Request is made.

In consideration for providing the Platform, we will charge the service fees (including any third party payment processing fees) as set out on the Platform (Berthz Service Fee). To the extent permitted by law, the Berthz Service Fee is non-refundable, includes the payment processing fee, and will be included in the Listing Fees.

If you are a Host, you appoint us as your limited payment collection agent solely for the purpose of accepting the Listing Fees from the relevant Guest. You agree that we will not be required to pay you any amount until we have received the Listing Fees from the relevant Guest, that we will deduct our Service Fee from any Listing Fees we receive and that we may grant refunds to Guests in accordance with these Terms.

General

We may pre-authorise or charge your payment method for a nominal amount to verify the payment method.

We provide a number of payment methods on the Platform, including our third party payment processors. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, you accept the applicable terms and conditions.

In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.

Refunds and Cancellation Policy

The cancellation or refund of any services ordered on this Platform is strictly a matter between the relevant Guest and Host. The terms and conditions agreed to between the Host and the Guest will be set out clearly in the relevant Booking Terms.

For disputes between Guests and Hosts, we encourage Parties to attempt to resolve disputes (including claims for returns or refunds) with the other Party directly and in good faith, using the Platform. In the event that a dispute cannot be resolved, the Parties will accept the findings of Berthz as the final determination in relation to the dispute.

Identify Verification

If we choose to conduct identity verification or background checks on any Guest or Host, to the extent permitted by law, we disclaim all warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Guest or Host or guarantee that a Guest or Host will not engage in misconduct in the future. Any verification of Hosts on the Platform is not an endorsement or recommendation that the Host is trustworthy or suitable. You should do your own due diligence before using a Host’s services/buying goods from a Host.

We may offer you the option of verifying your identity and/or validating your Account using a third party verification service (Third Party ID Service).

Where you have elected to verify your identity under this clause, you acknowledge and agree that: (a) we may contact, connect to or otherwise liaise with Third Party ID Services to validate your identity and information (Identity Check); and (b) Third Party ID Services may provide us with your personal information or sensitive information, and you consent to us receiving and using this information to enable us to perform an Identity Check; and (3) you will be charged a non-refundable fee for the Identity Check (as set out on the Platform), and we will be under no obligation to perform the Identity Check until the relevant fee has been paid to us, in accordance with the requirements specified on the Platform and these Terms.

Following a successful Identity Check, you acknowledge and agree that: (a) we may permit you to use verification signs, icons or badges in connection with your Account to indicate that a successful Identity Check has been performed (Verification Icon); and (b) a Verification Icon may only be used by the individual or business for whom the relevant Identity Check has been successfully performed and the relevant Verification Icon has been issued, and then, only where that individual is directly providing the relevant goods or services.

You acknowledge and agree that: (a) the Identity Check may not be fully accurate, as they are dependent on the information provided by the relevant individual or business and/or information or checks performed by third parties; and (b) you should not rely on the Identity Checks, and you should make your own inquiries as to the accuracy, legitimacy, validity, credibility or authenticity of any users of the Platform.

Reviews

Hosts may review their experience with the Guest on the Platform, and Guests may review with the Host on the Platform, including the goods and/or services (each a Review).

Reviews can be viewed by any user and will remain viewable until the relevant Account is removed or terminated.

You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.

You can write a Review about a Host if you have had an experience with that Host, which means that: (a) you have engaged the Host through the Platform; or (b) you can otherwise document your interaction with the Host in relation to the Platform, including via correspondence (collectively referred to as a Guest Experience).

You can write a Review about a Guest if you have had an experience with that Guest, which means that: (a) you have been engaged by the Guest through the Platform; or (b) you can otherwise document your interaction with the Guest in relation to the Platform, including via correspondence (collectively referred to as a Host Experience).

You may not write a review about a Host you have previously owned, currently own, or which an immediate family member currently owns, or if you are an executive or employee of that Host, or work for the Host. Similarly, you may not write a Review about a direct competitor to the Host you own, are employed by or work for.

Your Guest Experience or Host Experience must have occurred in the 12 months prior to you writing a Review.

You may only write about your own Guest Experience or Host Experience. You are not permitted to write a Review about somebody else’s Guest Experience or Host Experience, such as that of a family member or friend.

You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a Host to write a Review, you should include information about this in your Review. Incentives include the Host offering you a gift, reward, discount or advantage for writing a Review about the Host on the Platform.

Content

We may allow you to: (a) post, upload, publish, send or receive relevant content and information, including Reviews (User Content) on or through our Platform; and/or (b) access and view User Content and the content and information we make available on the Platform (Berthz Content and together with the User Content, the Content).

Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Platform and all of the Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms, (a) copy or use, in whole or in part, any Content; (b) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or (c) breach any Intellectual Property Rights connected with our Platform, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.

Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to download and use our Platform on your personal devices and access and view any Content, in accordance with these Terms. All other uses are prohibited without our prior written consent.

You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Platform and promote the Platform in any media or promotional material.

You agree that you are solely responsible for all User Content that you make available on or through our Platform. You represent and warrant that: (a) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and (b) neither the User Content nor the posting, uploading, publication, sending or receiving of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Platform, including as a result of an Intellectual Property Breach.

The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Warranties

You represent, warrant and agree that:

you will not use our Platform, including the Content, in any way that competes with our business;

there are no legal restrictions preventing you from entering into these Terms;

all information and documentation that you provide to us in connection with these Terms is true, correct and complete;

you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;

you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform: (a) to break any law or infringe any person’s rights (including Intellectual Property Rights); (b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (c) in any way that damages, interferes with or interrupts the supply of the Platform;

where you are a Host, you are responsible for complying with all laws, rules and regulations which apply to providing the goods and/or services in your Host Listings;

where you are a Host, you are appropriately qualified, and have any required skills, knowledge or training, to provide the goods and/or services; and

where you are a Host, you are solely responsible for determining which Booking Requests to accept, the type, timing, manner and means, methods or processes of providing your goods and/or services, the price you charge for goods and/or services. You are not our employee and are not entitled to any employment benefits. We do not supervise, direct or control any of the goods and/or services you offer. We do not set your fees, work hours, your schedule or your location. We do not provide you with training, equipment or tools or any materials to provide your goods and/or services. You are responsible for any taxes payable on any fee you receive for your goods and/or services.

Australian Consumer Law

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Statutory Rights).

If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

As a Guest, the goods and services provided by a Host may also confer on you certain rights under the ACL.

This clause will survive the termination or expiry of these Terms.

Exclusions to Liability

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

your or your personnel’s acts or omissions;

the use or results of any Third Party ID Service or Identity Check;

any use or application of Berthz Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;

any aspect of the Guest and Host interaction including the goods and/or services offered by the Host, the description of the goods and/or services requested or offered, any advice provided, the performance of services or supply and delivery of goods by the Host.

any works, services, goods, materials or items which do not form part of Berthz Services (as expressed in these Terms), or which have not been provided by us;

any third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;

Berthz Services being unavailable, or any delay in us providing Berthz Services to you, for whatever reason; and/or

any event outside of our reasonable control.

This clause 17 will survive the termination or expiry of these Terms.

Limitations on liability

Despite anything to the contrary, to the maximum extent permitted by law:

we will not be liable for Consequential Loss;

each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of that Party’s personnel); and

our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying Berthz Services to you or, in our sole discretion, to us repaying you the amount of the Service Fees paid by you to us in respect of the supply of Berthz Services to which the Liability relates, or where there are no Service Fees paid, $100.

This clause 18 will survive the termination or expiry of these Terms.

Termination

Your Account and these Terms may be terminated by you at any time (unless you have a Booking confirmed), using the ‘Delete Account’ functionality (or similar) in your in the Privacy page section of your Profile settings.

We may terminate these Terms at any time by giving 30 days’ written notice to you (Termination for Convenience).

We may suspend your Account or terminate these Terms immediately upon written notice to you, if:

you (or any of your personnel) breach any provision of these Terms and that breach has not been remedied within 10 business days of being notified by us;

as a Host you repeatedly receive reviews below 3 stars;

there is any reason outside our control which has the effect of compromising our ability to provide Berthz Services; or

you are unable to pay your debts as they fall due.

These Terms will terminate immediately upon written notice by you, if we:

are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or

are unable to pay our debts as they fall due.

Upon expiry or termination of these Terms:

we will remove your access to the Platform;

we will immediately cease providing Berthz Services;

you agree that any payments made by you to us are not refundable to you;

where you are a Guest, we will cancel any existing Bookings and you will lose any Listing Fees and other amounts paid. Where you are a Host, we will cancel any existing Bookings and refund the relevant Guests. Where you are a Guest, you will lose any Listing Fees and other amounts paid; and

where we terminate the Terms for any reason, you also agree to pay us our additional costs arising from, or in connection with, such termination.

Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

This clause 19 will survive the termination or expiry of these Terms.

Host Insurance

As a Host, we may request that you provide evidence of your insurance. Where we do so, we are not confirming that the insurance you have is sufficient or suitable for the goods and/or services you choose to provide to Guests. If we do not ask you to provide evidence of insurance this does not indicate that we believe you do not require insurance. You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require.

Notice Regarding Apple

To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.

Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.

If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to: (a) product liability claims; (b) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.

Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.

You agree to comply with any applicable third-party terms when using our mobile application, including any Usage Rules set forth in the Apple App Store Agreement of Service.

Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

General

Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.

Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Guest and us, or a Host and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree on how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Queensland Law Sociaty to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

Governing law: These Terms governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your Account. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 3 business days in the case of post, or at the time of transmission in the case of transmission by email.

Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Payment clause as limited payment collection agent) between the Parties.

Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Definitions

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

For any questions or notices, please contact us at:

Click Ventures Pty Ltd (ABN 63 626 527 839)

Email: support@berthz.com

Last update: (29.11.2022)