THE FOLLOWING DESCRIBES THE TERMS ON WHICH DIVESABAH.COM OFFERS ACCESS TO USERS OF OUR SERVICES
(i) DiveSabah.com (Dive Sabah)
DiveSabah.com ("DiveSabah") provides a Web site that allows registered users to buy and sell seaplants and seaplant-related products and services through DiveBorneo's metamediary platform and to gain access to relevant industry information and services using DiveSabah.com.
(ii) Users of DiveBorneo Include Both Associates and Members
Users of DiveSabah.com can register either as Associates or as Members (Associates/Members) by submitting online forms provided on the DiveSabah.com website. Through DiveSabah.com Associates/Members are able to gain access to seaplant-related products or services for sale; to search for available products or services; to post or search for answers to queries; and/or to engage in negotiations and close transactions with other Associates/Members. DiveBorneo Associates/Members can be both Purchasers and Vendors. If an Associate/Member offers products or services for sale or responds to a Purchaser's query for the purchase of products or services the Associate/Member is considered to be a "vendor." If an Associate/Member responds to an offered product or service or posts a query for the purchase of products or services the Associate/Member is considered to be a "purchaser."
2. Description of General Principles and Terms
3. Amendment Without Notice
4. Associates/Membership Eligibility
Our services are available only to individuals or corporate entities that can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to minors. If you do not qualify, please do not use our services. Furthermore our services are not available to temporarily or indefinitely suspended DiveBorneo Associates/Members.
5. The DiveBorneo Metamediary Site
Besides serving as a source of decision-critical information DiveSabah.com also serves as a site where Vendors may list items for sale or solicit purchase offers. In cases where commercial transactions are consummated DiveBorneo is not directly involved in the actual transaction between Purchasers and Vendors and we do not set or endorse the price, contract terms, quality, safety, conformity or legal status of the products and services posted, advertised or offered for sale.
(ii) No Control
DiveBorneo has no control over the quality, safety or legal status of items posted or advertised and also cannot verify the truth or accuracy of claims or the ability of Vendors to sell items or the ability of Purchasers to buy items. DiveBorneo also cannot guarantee that Purchasers or Vendors will actually consummate transactions. The ultimate responsibility for consummation of transactions lies with the Users interacting on the transactions.
(iii) Authentication and Verification
Because user authentication on the Internet is difficult DiveBorneo cannot and does not confirm Users' claimed identities. We encourage Users to communicate directly with each other or to use third party verification services.
(iv) Release from Claims
In the event of a dispute between users that concerns actual transactions between Purchasers and Vendors you as a User of the DiveSabah.com site agree to release DiveBorneo and our officers, directors, agents, subsidiaries and employees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed arising out of or in any way connected with such disputes.
(v) Control of Information
Please note that DiveBorneo cannot control information that users enter into our system in the form of user information.
6. Fees and Services
(i) Associates/Membership Fees
Joining DiveBorneo requires you to pay the annual Associates/Membership fee. Presently DiveBorneo is waiving the Associates/Membership fees to all customers. DiveBorneo reserves the right to change this policy in the future.
(ii) Transaction Fees (Seaplant Transactions)
DiveBorneo will be charging a transaction fee on the total sale amount of each seaplant transaction facilitated by the DiveBorneo system. The amount of said fees shall become part of these terms and shall vary between one percent (1%) and ten percent (10%) depending on the type and volume of the transaction. This transaction fee for seaplant sales is paid by the vendor. DiveBorneo reserves the right to modify the transaction fees or waiver policies for seaplant sales at its discretion. Presently DiveBorneo is waiving the transaction fee. DiveBorneo reserves the right to change this policy at its discretion in the future.
(iii) Fees for Products and Services
DiveBorneo may add new products and/or services to DiveSabah.com from time to time or may, in its sole discretion, change some or all of the current services offered. In the event that DiveBorneo introduces new products or services or changes existing products or services new fees or service charges may be established effective immediately for those products or services.
(iv) Fees quoted in US dollars
Unless otherwise stated, all fees are quoted in U.S. Dollars.
(v) Billings exclusive of taxes
All prices quoted, all orders accepted, and all billings issued are exclusive of all national, state and local taxes. The User is responsible for paying all fees and all applicable taxes associated with using DiveBorneo services and DiveSabah.com.
(vi) Circumvention of Payment
DiveBorneo Associates/Members agree not to identify and engage in negotiations with a counter-party on the DiveBorneo metamediary platform and then agree on the terms of the same transaction off the DiveBorneo site or otherwise circumvent the payment of the DiveBorneo transaction fees contemplated above. A vendor who agrees on the terms of a transaction off DiveSabah.com is still responsible to pay DiveBorneo the applicable transaction fee for such transaction. Any Associate/Member who engages in circumvention is subject to having their Associateship/Membership in DiveBorneo immediately and permanently revoked.
7. Transaction Rules
Transactions through the DiveBorneo metamediary platform shall be governed by the Transaction Terms and Conditions that shall be set forth from time to time in the Marketplace portion of DiveSabah.com. By becoming an Associate or a Member and engaging in commerce through the DiveBorneo platform you agree to abide by these Transaction Terms and Conditions.
8. Manipulation and Interference
Neither Purchasers nor Vendors may manipulate the price of any item. No User may interfere with other users' listings.
Without limiting any other remedies, DiveBorneo may suspend or terminate a User's account if said User is found to have engaged in fraudulent or illegal activity in connection with DiveSabah.com.
10. User's Information
"User's Information" is defined as any information that you as a DiveBorneo User provide to us or other Users in the registration, purchasing, vending or listing process or through any email feature. Users are solely responsible for User's Information, and DiveBorneo acts as a passive conduit for the distribution and publication of Users' Information. You as a User of DiveSabah.com warrant that any information provided:
(a) shall not violate any law, statute, ordinance or regulation;
(b) shall not be false, inaccurate or misleading;
(c) shall not be fraudulent or involve the sale of counterfeit or stolen items;
(d) shall not infringe any third party's copyright, patent, trademark, trade secrets or other proprietary rights or rights of publicity or privacy;
(e) shall not be defamatory, libelous, threatening, harassing, obscene or pornographic;
(f) shall not contain any viruses, Trojan horses, worms or other computer programming routines that are have the effect of damaging, interfering with, copying, intercepting or expropriating any computer system, computer hardware, computer software or data;
(g) shall not create liability for DiveBorneo or cause DiveBorneo to lose in whole or in part the services of our suppliers.
Furthermore you as a DiveBorneo User may not list any item on DiveSabah.com or consummate any transaction that was initiated using our service that could cause us to violate any applicable law, statute, ordinance or regulation by virtue of our having accepted payment of fees or service charges to DiveBorneo .
11. Copyright and Publicity Rights
You agree to grant DiveBorneo a non-exclusive, world wide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright and publicity rights (but no other rights) to User's Information, in any medium whether known or not currently known, with respect to User's Information. DiveBorneo will only use User's Information solely in accordance with our Privacy Statement in order to facilitate service to Users.
12. Guidelines for Posting Comments and Information
Certain portions of the DiveBorneo Web site allow Users to post comments on articles or other topics of discussion. Comments may be visible to anyone who visits the DiveBorneo Web site. We ask that Users please focus specifically on the article, story, or issue for which comment has been solicited and please avoid making statements that are accusatory, defamatory, obscene, pornographic, abusive, or otherwise unlawful or infringing on the rights of others. All comments may be edited based on length, clarity or content. DiveBorneo does not endorse the accuracy, truthfulness or reliability of comments posted by users and is not responsible for any subsequent actions taken as a result of such postings.
13. Access to DiveSabah.com
Associates/Members are responsible for providing all equipment necessary to access the Internet and the DiveBorneo website. The DiveBorneo website is usually available 24 hours a day, 7 days a week. However, we retain the right to make the website unavailable from time to time for any reason. Associates/Members agree that DiveBorneo shall not be liable for any damages arising from any interruption, suspension or termination of the website.
14. No Warranty
WE PROVIDE DiveSabah.com SERVICES WITH NO WARRANTY OR CONDITION WHETHER EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, GUARANTEES AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY PURCHASER OR VENDOR AND WHETHER USERS SHOULD DO BUSINESS WITH SUCH PURCHASERS OR VENDORS. WE ALSO DISCLAIM ANY IMPLIED WARRANTIES WITH RESPECT TO THE ACCURACY OF POSTINGS MADE ON THE SITE BY OR ON BEHALF OF ANY VENDOR OR PURCHASER. DIVEBORNEO USERS AGREE TO COMPLY FULLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS AND AGREE THAT DiveSabah.com AND THE DIVEBORNEO IS NOT TO BE UTILIZED TO FACILITATE COLLUSION OR OTHER CONDUCT IN VIOLATION OF ANY ANTITRUST LAWS.
15.Limits to Liability
IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES, ANY TRANSACTION CONDUCTED THROUGH THE METAMEDIARY PLATFORM, OR THESE TERMS HOWEVER ARISING, INCLUDING NEGLIGENCE.
You as a DiveBorneo User agree to indemnify and hold harmless DiveBorneo and our subsidiaries, affiliates, officers, directors, agents, and employees. Such indemnity shall include reasonable attorneys' fees arising from your breach of these Terms, any disputes or other claims relating to your transactions on DiveSabah.com or any violation by you, the User, of any law or the rights of a third party.
17. Legal Compliance
As a DiveBorneo User you shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our service.
18. No Agency
As a DiveBorneo User you and DiveBorneo are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is implied, intended or created by these Terms.
Except as explicitly stated otherwise any notices shall be given to the email address you provide to DiveBorneo during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to DiveBorneo during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
Any controversy or claim arising out of or relating to these Terms or our services shall be settled by binding arbitration in accordance with the commercial arbitration rules of a mutually agreed accredited international Arbitration body. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party.
21. Additional Terms
The following documents are incorporated by reference:
(i) Our Privacy Statement
This is available in the "DiveSabah" section of our site. We may amend this Privacy Statement without notice at any time by posting the amended terms on DiveSabah.com. All amended terms shall be effective immediately upon posting. By accessing and using DiveSabah.com you agree to periodically review this Privacy Statement and be bound by any modifications or amendments to its terms.
(ii) Our Transaction Terms and Conditions
These will be posted from time to time in the "Marketplace" section of DiveSabah.com. We may amend these Transaction Terms and Conditions without notice, at any time by posting the amended terms on DiveSabah.com. All amended terms shall be effective immediately upon posting. By accessing and using the DiveBorneo Web site, you agree to periodically review these Transaction Terms and Conditions and be bound by any modifications or amendments to their terms.
23. Headings for Convenience Only
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section of the Terms.
24. Breach of Terms and Failure to Act
Without limiting other remedies, DiveBorneo may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your Associates/Membership and refuse to provide our services to you if you breach these Terms or the documents they incorporate by reference; if we are unable to verify or authenticate any information you provide to us; or if we believe that your actions may cause legal liability for you, our Users or DiveBorneo. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
25. Entire Understanding
These Terms set forth the entire understanding and agreement between DiveBorneo and the User with respect to the subject matter hereof.