Gumtree
Your Agreement With Gumtree
Last updated Thursday 26th October 2023
Terms of Use
The Gumtree Platform is an Australian classified, enabling users to sell or find anything from a new car to a new job, to treasured items old and new.
This page sets out the terms of use (Terms) for using our Platform. The defined terms used in these Terms are explained in clause 2.
Your entire Agreement with Gumtree when using the Platform consists of:
● these Terms
● our Posting Policies:
o General Posting Policies
o Job Seekers’ Safety Guidelines
o Job Listers’ Posting Guidelines
o Pets Posting Policies, and
o our Privacy Policy and Cookies Policy
We’ll refer to all of the pages listed above as our “Agreement”. See clause 3 for how you agree to be bound by this Agreement.
Quick Links:
You must review this Agreement in full before proceeding with using the Platform or registering an Account. For your convenience and understanding, a general summary of your key undertakings is as follows:
(a) True Descriptions – Consumer Laws: You must provide accurate, comprehensive and not misleading information in all Listings. Consumers, even those buying second- hand goods, have various rights and guarantees under the Consumer Laws which cannot be excluded in Listings – even if you say so, which is also the offence of misleading and deceiving people. So, Providers must clearly list any defects or deficiencies in Goods or Services in all Listings to avoid misrepresenting the condition or quality of the Goods or Services.
(b) Fair Work – Employment Laws: All Users who are Employers or Workers must comply with the Employment Laws, including as further set out in clause 8 and the Posting Policies, in relation to all Jobs. Employers must inform themselves of their obligations under the Employment Laws and Posting Policies and assume full responsibility for complying with applicable Employment Laws and any resulting liability for non-compliance. Workers must inform themselves of their Employment Law rights including as set out in the Tips for Staying Safe in the Jobs Category for Job Seekers.
(c) Your Privacy – Privacy Laws: We take our privacy obligations seriously, in line with our Privacy Policy and Privacy Laws. We may collect and store data about your use of the Platform while you continue to hold an Account on the Platform or while we reasonably consider we have a need to retain your data for operational, legal or other genuine business purposes.
(d) Risks and Online Safety: Making purchases online comes with inherent and unfortunately not entirely avoidable risk. Never give out your bank details or other financial information over the internet. Always verify the condition of the item in person wherever possible and with appropriate professional guidance where appropriate, particularly for Cars. Some Goods and Services carry inherent, unique risks and instructions for proper use, which you accept and promise to adhere to.
(e) Community Behaviour: You must not use the Platform for any illegal purpose, and you must be respectful and courteous in all interactions with other Users and Gumtree Personnel on the Platform. We rely on our community to follow the rules of engaging with our Platform as set out in this Agreement, including our Posting Policies, to ensure we can provide a safe, convenient and useful Platform for all Users.
(f) Take Action Against Misuse: We encourage you to report any User who you suspect may be in violation of this Agreement. We may revoke your account (or the Account of any other User who you may be dealing with) at any time if we suspect you (or any other User) is in breach of this Agreement, without notice or liability to you. We may also issue warnings or take other steps we see fit.
2. DEFINED WORDS USED IN THESE TERMS
In these terms, the following capitalised words and phrases have the following meaning:
(a) Account: means your individual profile on the Platform, and all associated Content.
(b) Animal Protection Laws: means any legislation and regulations in force from time to time in the jurisdiction in which you reside relating to breeding and the care and protection of Pets.
(d) Car: means Listings listed in the “Cars” category via this landing page: https://www.gumtree.com.au/cars
(e) Consumer Law: means the Competition and Consumer Act 2010 (Cth) as amended from time to time including the Australian Consumer Law set out in Schedule 2, and all related regulations.
(f) Consumer: means any User who uses the Platform to purchase Goods or Services.
(g) Conveyancing Law: means any legislation and regulations in force from time to time in the state or territory of Australia where the Real Property is located relating to the sale of the Real Property.
(h) Goods: means any item, including Cars, Pets, Real Property and second-hand items, listed for sale on the Platform.
(i) Gumtree: means Gumtree AU Pty Ltd ACN 616 996 840 and its related bodies corporate, directors, employees, contractors, and agents.
(j) Employer: means any User who uses the Platform to advertise a Job.
(k) Employment Laws means:
(A) all laws and regulations related to the employment or engagement of a person by another person (as amended from time to time), including the Fair Work Act 2009 (Cth), the Fair Work Regulations 2009 (Cth) and any law or regulation related to independent contracting, sham contracting, immigration, discrimination, taxation, superannuation, work health and safety, workers compensation or modern slavery; and
(B) any applicable Fair Work Instrument (as defined in section 12 of the Fair Work Act 2009 (Cth)) or other applicable industrial instrument.
(l) Intellectual Property Rights: means all present and future rights, titles and interests in and to course content and materials, methodologies, assessments, inventions, know-how, patents, registered and unregistered trade marks, service marks, registered and unregistered designs, copyrights, circuit layouts, domain names, computer programs, confidential information, or trade secrets, however arising and throughout the world;
(m) Listing: means any post offering the sale of Goods or Services, or advertisement of a Job.
(n) Pet: means any animal, including cats and dogs.
(o) Platform: means the Gumtree website https://www.Gumtree.com.au/ (including any subdomains or sites we operate with the same domain name and a different extension) and marketplace platform as provided through our website from time to time, and all associated services we perform for you.
(p) Posting Policies: means the policies listed at the start of these Terms, as amended by notice to you from time to time, and any other policies we may implement by notice to you from time to time.
(q) Provider: means any User who uses the Platform to sell Goods or Services.
(r) Privacy Law: means the Privacy Act 1998 (Cth) as amended from time to time
including the Australian Privacy Principles, and all related regulations.
(s) Real Property: means any land, house, townhouse, unit, apartment or other dwelling offered for inhabitation.
(t) Services: means any activities offered for performance by a Provider for a Consumer in a Listing.
(u) Tenancy Laws: means any legislation and regulations in force from time to time in the state or territory where the Real Property is located relating to residential or commercial tenancies
(v) Job: Listings by an Employer listed in the “Jobs” category via this landing page: https://www.gumtree.com.au/jobs or otherwise seeking Services that are covered by the Employment Laws.
(w) User: means a person who registers an Account on the Platform.
(x) Worker: means any User who performs a Job for an Employer.
3. HOW YOU AGREE TO THIS AGREEMENT
(a) For all clauses of this Agreement that by their nature apply to using the Platform without creating an Account (such as viewing the Website), you agree to be bound by this Agreement by using the Platform.
(b) By creating an Account in accordance with clause 5, you will be asked to tick a box to indicate to us that you agree to be bound by this Agreement at all times while using the Platform.
(c) However, your failure to read these terms any time you post any Listing or engage in any Exchange will not limit or otherwise affect the enforceability of this Agreement in relation to that Listing or Exchange.
(d) You represent and warrant to us that you have read this Agreement in full. You must not use the Platform if you do not agree to this Agreement, including these Terms.
(e) We may update any part of this Agreement from time to time by notice to you, to accommodate our business needs and for compliance with legal and operational changes. You are free to stop using the Platform if you don’t agree to the new Agreement. If you continue to use the Platform after such notice is given, you will be taken to have agreed to this Agreement as updated.
4. YOUR RELATIONSHIP WITH GUMTREE AND OTHER USERS
(a) This Agreement forms a binding contract between you and Gumtree.
(b) You acknowledge and agree that Gumtree:
(A) provides an introductory service as a passive conduit to facilitating the relationship between Users, through providing the Platform;
(B) is in no way party to any contractual relationship formed between Users in relation to any Listing or Exchange; and
(C) does not personally offer to you, or endorse or recommend, any Goods, Services, or Jobs advertised in any Listings.
(c) To the extent a clause is relevant to the relationship between Users, this Agreement will form a binding set of obligations between Users for the purpose of interacting on the Platform, including Listings, Exchanges, and any issues or disputes.
(d) It is your responsibility to ensure that you comply with all applicable laws, including the Employment Laws, Consumer Laws, Privacy Laws, Animal Protection Laws, Conveyancing Laws and Tenancy Laws (as applicable) while engaging with the Platform, including posting any Listing and engaging in any Exchange.
(e) While it is your responsibility to comply, Gumtree is committed to protecting its community of Users and reserves the right to, without being under any obligation to, take all necessary steps to enforce compliance with clause 4(d) and this Agreement in accordance with clause 21(b).
(a) To access most of the functionality of the Platform, you must register an Account on the Platform.
(b) You must not register more than one Account on the Platform, including through using multiple email addresses. You may request our permission to hold more than one Account, and we may in our discretion grant or deny such permission.
(c) By registering an Account, you represent and warrant that you are a legitimate User and you are over the age of 18 years or have your parent or guardian’s informed consent to use the Platform and enter into this Agreement as a binding contract.
(d) When registering an Account (and using your Account) you will be asked to provide us with personal information (and potentially sensitive information) which we will deal with in the manner described in clauses 15 and 16.
(e) You must provide true, accurate, current and complete information about yourself and any organisation which you represent, as prompted by the Platform.
(f) You are responsible for ensuring the security of your Account, including by safeguarding passwords and devices. You are responsible for the actions of any person who you allow, by act or omission, to access your Account. You must notify us using the links at the bottom of this Agreement if you suspect unauthorised use of your Account. Until you notify us, you remain responsible for such unauthorised use
(g) We reserve the right to deactivate or modify your Account for any reason we in our absolute discretion deem necessary.
6. LISTINGS AND AGREEING TO EXCHANGE
(a) Any User may post a Listing at any time, through the functionality in the Platform.
(b) All Listings must comply with the Posting Policies and Gumtree reserves the right to not publish or remove at any time any Listing which violates the Posting Policies.
(c) Any User may, in its absolute discretion, engage with any Listing, which is not a commitment to proceed with the offer in the Listing.
(d) You agree to only use the Platform’s messaging functionality to communicate with other users, and to use that functionality in accordance with clause 16.
(e) You agree to personally post, and respond to inquiries about, Listings. You must not use any automated tools, programs or applications to provide automated responses on your behalf (unless any such tools, programs or applications are provided to you as part of the Platform).
(f) If two Users agree to the terms of a Listing (as amended by any related communications through the Platform), they may use the functionality on the Platform to agree to exchange the Goods or Services, or perform the Job, for a fee as agreed between them (in accordance with all applicable laws) (Exchange).
(g) Depending on the nature of the Listing, additional terms set out in the following clauses will apply.
7. SPECIFIC TERMS FOR SERVICES
(a) If a Listing offers the performance of Services, this clause 7 applies to those Services.
(b) For the avoidance of doubt, Services are where a Provider offers to perform Services for a Consumer on the “Services for Hire” page and/or the Provider sets the price, which is legally a different scenario to an Employer looking for Workers to perform a Job under clause 8.
(c) The Provider represents and warrants that it has the appropriate skills, qualifications, and experience to perform the Services described in the Listing and otherwise communicated to the Consumer.
(d) If a Provider performs Services, it must ensure that the Services:
(A) are of an acceptable standard with regard to the nature of the Services as described by the Provider;
(B) are performed with due care and skill; and
(C) meet all representations made to the Consumer during Exchange.
(e) The Consumer acknowledges that it is responsible for reading the Services description and satisfying itself that the Services as described will meet the Consumer’s requirements prior to agreeing to Exchange.
(f) The Consumer is responsible for ensuring the location for performance of the Services is made accessible to the Provider on the agreed date, at the agreed time, for performance.
(g) The Provider is responsible for ensuring compliance with work health and safety procedures when performing the Services, including ensuring they hold workers’ compensation insurance, professional indemnity and worker’s compensation insurance as applicable to the Services.
(h) Consumers are strongly encouraged to hold home and contents insurance and public liability insurance if applicable to the Services.
(a) If a Listing is for a Job, this clause 8 applies.
(b) For the avoidance of doubt, Jobs are where an Employer initiates the need for a Worker, and the terms of engagement are set by the person needing, not performing, the services.
(c) The Employer is responsible for ensuring compliance at all times with the Posting Policies, which include strict guidelines for adherence to the Employment Laws.
(d) Without limiting or otherwise affecting clause 8(c), the Employer must ensure that the Exchange Fee in clause 13(d) is compliant with the Employment Laws, Section 536AA of Fair Work Act 2009 (Cth) and does not violate minimum entitlements under the Employment Laws, which includes (but is not limited to) piece rate payments.
(e) The Platform may include features which prevent the Employer from posting a Listing in contravention of clause 8(d) and the Employer must not make any attempt to circumvent or override those features in the Listing.
(f) The Worker is responsible for proper performance of the Job, at the times and locations required, to a professional standard.
(g) The Worker should know their rights and monitor the Employer’s compliance with the Employment Laws, including familiarising itself with the Tips for Staying Safe in the Jobs Category for Job Seekers.
(a) If a Listing offers Goods for sale, this clause 9 applies to those Goods.
(b) If a Listing for Goods is for a Car, also see clause 10.
(c) If a Listing for Goods is for a Pet, also see clause 11.
Provider Responsibilities
(d) The Provider represents and warrants that:
(A) they are the sole beneficial owner of the Goods, with title lawfully obtained, free from any security interests, finance, or other encumbrances; and
(B) any defects (including minor defects) are clearly and accurately stated in the description of the Goods and are not otherwise disguised or overlooked in the Listing.
(e) The Provider acknowledges and agrees that Consumers have rights under the Consumer Laws, which to the extent applicable to the Provider and Consumer, apply to second-hand goods to the extent reasonable with regard to their age, description and price. This includes that the Goods are of acceptable quality, will match its description and be fit for purpose. The Provider must have regard to these guarantees when describing the quality, condition, and functionality, and setting the price, of the Goods and must not attempt to exclude, restrict or modify any guarantees that are applicable under the Consumer Laws.
Consumer Responsibilities
(f) The Consumer acknowledges that Goods may be second hand if described as such, and the Consumer is responsible for reading the description of the Goods and satisfying itself that the Goods as described will meet the Consumer’s requirements prior to agreeing to Exchange, including with regard to its age, description and price.
Delivery
(g) For all Exchanges, Gumtree strongly encourages you to inspect the Goods prior to making payment.
(h) If Exchange will occur in person, Consumers are encouraged to ensure their safety by:
(A) verifying the identity of the Seller prior to meeting in person;
(B) selecting a public place to meet, during daylight hours; and
(C) never allowing anyone to enter your home.
(i) If Exchange will occur via post, the Provider and Consumer must agree to delivery costs (if any) prior to Exchange.
(j) Gumtree strongly encourages Consumers to be cautious when giving their address to Providers and use secure, third-party technology to arrange delivery of Goods.
(k) Title to the Goods will pass to the Consumer on payment of the Exchange Fee. Risk of loss or damage to the Goods will pass to the Consumer on delivery.
(l) The Provider must use registered post for delivering by third party courier. If there are any issues during delivery, the Consumer must promptly report the issue to the Provider.
(m) If the delivery issue cannot be resolved, and the Provider cannot provide evidence that the Goods were shipped, the Provider must refund the Consumer the amount paid to the Provider for the Goods including shipping.
(n) If the Provider can provide evidence that the Goods were shipped, the Provider must take all steps necessary to ensure the third party courier delivers the Goods or refunds the amount lost to the Consumer.
(o) If the Provider can evidence that the Goods were delivered, the Goods will be deemed delivered.
(p) Claims for loss of or damage to Products in transit must be made against the carrier by the Provider.
10. SPECIFIC TERMS FOR CARS
(a) If a Listing offers a Car for sale, in addition to clause 9, this clause 10 applies and will prevail to the extent of any inconsistency with clause 9.
Dealers and Individuals Selling Cars
(b) Consumers acknowledge and agree that Cars may be sold by Providers who are:
A) individuals, in which case the Consumer Laws may not apply; and
(B) dealers, where the Consumer Laws will apply – and the Provider must ensure that the Listing is fully compliant with the Consumer Laws and any other applicable laws relevant to auto trade dealership from time to time.
(c) Despite clause 10(b)(A), regardless of whether a Provider of a Car is an individual or a dealer, as a standard upheld by this Agreement, the Provider must ensure that the Listing is accurate, comprehensive and not misleading, including:
(A) describing or showing in images any defects that may limit or otherwise effect the Car’s fitness for purpose or factory functionality; and
(B) not claiming that the Car has any particular features or capacity that it does not have or no longer has.
(d) However, Consumers who purchase Cars from Individuals acknowledge and agree that “buyer beware” applies and the Consumer must make all diligent inquiries a reasonable person would make to mitigate their risks and determine the health of the Car and the accuracy of the Listing and Provider’s claims prior to Exchange.
Manufacturer’s Warranties and Roadworthiness
(e) All Cars are sold without manufacturer’s warranty unless a manufacturer’s warranty is clearly stated to apply in the Listing.
(f) A Car may be sold without roadworthiness if expressly stated as such in the Listing. The Provider’s failure to state the lack of roadworthiness in a Listing will be a breach of clause 10(c).
Before Exchanging on a Car – Risks for Consumers
(g) Before agreeing to Exchange on any Car, Gumtree strongly encourages all Consumers to:
(A) obtain a third-party professional assessment of any Car, at the Consumer’s cost. This is particularly important when purchasing a Car from an individual for the reason provided in clause 10(b)(A);
(B) check the registration database in the relevant jurisdiction and verify ownership of the Car against identification of the Provider;
(C) personally test drive any Car and be wary of any Provider or Listing encouraging you to purchase a Car without test driving that Car regardless of the urgency or inconvenience of your circumstances.
(h) Consumers acknowledge the significant risks to personal safety in purchasing a Car, including the various forms of road accidents caused or contributed to by disguised or unknown defects in a Car, including the specific risk of permanent physical injury or disability, including burns, broken bones, paraplegia, quadriplegia, permanent vegetative state, or death. Gumtree’s liability is limited in accordance with clause 20.
(i) After Exchange but prior to taking delivery of the Car, Gumtree strongly encourages Consumers of Cars to purchase comprehensive insurance of a suitable value to cover all risk of damage, injury or death to yourself and third parties, and replacement of the Car.
(a) If a Listing offers a Pet for sale, in addition to clause 9, this clause 11 applies and will prevail to the extent of any inconsistency with clause 9.
(b) If you sell a Pet, you are solely responsible for ensuring compliance with our Pets Policy and all applicable legislation and regulations in the jurisdiction in which you reside including the Animal Protection Laws and all applicable laws relating to breeding practices, micro-chipping, animal protection and welfare.
(c) If you purchase a Pet, you are solely responsible for inspecting the Pet and ensuring that all relevant documentation is provided to you at the point of Exchange. Once you take possession of a Pet, you are solely responsible for providing for the welfare of the Pet, including all veterinary expenses. We strongly encourage all Pet owners to obtain Pet insurance.
(d) If you follow any link on the Platform to purchase Pet Insurance, you acknowledge and agree that the insurance policy is issued by The Hollard Insurance Company Pty Ltd ABN 78 090 584 473, AFSL 241436, is arranged and administered by PetSure (Australia) Pty Ltd ABN 95 075 949 923, AFSL 420183 (PetSure) and is promoted and distributed PetSure’s Authorised Representatives (AR) Pet Insurance Pty Ltd ABN 38 607 160 930, AR 1234944 (PIPL) and Gumtree AU Pty Ltd ABN 33 616 996 840, AR 1304608. Any advice provided is general only and does not take into account your individual objectives, financial situation or needs. Please consider the Product Disclosure Statement (PDS) to ensure this product meets your needs before purchasing. PDS and Target Market Determination available at petinsurance.com.au. Policies purchased through the Platform are not in any way underwritten by Gumtree. We may take necessary steps in accordance with our privacy policy in order to comply with our contractual obligations to the insurance provider, or our obligations under any relevant Australian Financial Services laws in existence from time to time, including disclosing any personal information we hold about you if required by the insurance provider or at law. The Pet Insurance policy and any information you provide to the insurance provider is subject to the Terms and Conditions and Privacy Policy of the insurance provider, including disclosing any personal information we hold about you if required by the insurance provider or at law. Any information we may incidentally collect as a result of your interest in pet insurance will be used and stored by us in accordance with Gumtree’s Privacy Policy.
12. SPECIFIC TERMS FOR REAL PROPERTY
(a) If a Listing offers Real Property for sale or rent, in addition to clause 9, this clause 12 applies and will prevail to the extent of any inconsistency with clause 9.
Buying Or Selling Real Property
(b) If you offer Real Property for sale in a Listing:
(A) you must only post the Listing if you have a valid contract for sale of land written by an appropriately qualified professional conveyancer or solicitor in the state or territory where the Real Property is located;
(B) you represent and warrant that you hold registered title to the Real Property, in your own name, encumbered only by any applicable mortgage to a financial institution; and
(C) if the Real Property is owned as joint tenants or tenants in common with another person, you represent and warrant that the other person consents to the Listing.
(c) All Users who participate in an Exchange relating to Real Property:
(A) must engage representation from an appropriately qualified professional licensed conveyancer or solicitor.
(B) acknowledge and agree that:
(1) the contract for sale must still be validly exchanged; and
(2) settlement must occur, in accordance with Conveyancing Laws to be binding and for the ownership of the Real Property to validly transfer to the Consumer.
(d) We encourage all Consumers of Real Property to:
(A) personally inspect and conduct any required searches of all Real Property before proceeding with an Exchange; and
(B) obtain comprehensive home and contents insurance for the Real Property on and from the date of taking possession.
(e) All Users will be liable for their own legal fees and for the cost of any searches incurred.
(f) All Users acknowledge and agree that we will not be:
(A) a party to any contract for sale;
(B) considered an agent in respect to the Listing; or
(C) liable for any representation, inducement, warranty, implied term or any term in the contract for sale, Listing or the Real Property.
Renting Real Property
(g) If you offer Real Property for rent in a Listing, you:
(A) must only post the Listing if you have a written lease agreement that is compliant with all applicable Tenancy Laws; and
(B) ensure the Real Property is fit for habitation in accordance with all applicable Tenancy Laws.
(h) We encourage all Consumers of Real Property to:
(A) personally inspect, conduct any required searches of all Real Property and satisfy itself with the permitted use put before proceeding with an Exchange; and
(B) obtain comprehensive home and contents insurance for the Real Property on and from the date of taking possession.
(i) All Users acknowledge and agree that we will not be:
(A) party to any lease;
(B) considered an agent in respect of the Listing or tenancy; or
(C) liable for any representation, inducement, warranty, implied term or any term in the lease, Listing or the Real Property.
(j) All issues arising under a tenancy should be directed in the first instance to the landlord (in accordance with the lease) and then to NCAT if the issue cannot be resolved.
(a) Creating an Account is free.
(b) Gumtree may charge you:
(A) whenever you post a Listing, any amounts shown on the Platform as payable for posting a Listing; and
(B) additional fees we may introduce at any time through displaying such fees to you on the Platform.
(c) All amounts payable under clause 13(b):
(A) will be paid through our payment functionality as available on the Platform from time to time, including via credit or debit cards; and
(B) will be non-refundable (unless there is a major failure with the Platform) including where a refund is otherwise provided for the Exchange Fee in accordance with clause 14.
(d) The amount payable in relation to any Exchange is the amount set out on the Listing or otherwise agreed between the relevant Users in writing on the Platform prior to agreeing to Exchange (Exchange Fee).
(e) The Exchange Fee must be monetary in nature.
(f) Users may determine their own method for paying the Exchange Fee, unless the Platform provides a method of payment in which case Gumtree provides that service through a third party provider who has its own terms and conditions which will apply to the transmission of the Exchange Fee and your related data.
(g) Unless the Listing is for second-hand Goods, a Listing must not offer cash payment, and Providers must not accept cash payment, particularly for Jobs. Cash payment is permitted for Exchange of second-hand Goods only.
(h) Excluding Jobs, the Exchange Fee is payable on Agreement to Exchange, through the functionality provided in the Platform, prior to delivery or performance of any Services or Goods. If the Consumer does not pay the Exchange Fee within 24 hours, the Provider may cancel the Exchange.
(i) The Exchange Fee payable for any Job is to be paid in accordance with the Employment Laws and clause 8. If there is any inconsistency between payment requirements under any Employment Laws and the payment provisions in this Agreement, the Employment Laws will prevail to the extent of the inconsistency.
(j) You acknowledge and agree that Gumtree may use third party payment providers to process Transaction Fees and Exchange Fees. If this occurs, the terms and conditions of the third party payment provider will apply and you will be asked to agree to those terms and conditions before proceeding with payment.
(k) Once paid, the Exchange Fee is only refundable in accordance with clause 14.
14. CONSUMER LAW RIGHTS AND REMEDIES BETWEEN USERS
(a) If an Exchange occurs in relation to Goods or Services, this clause 14 applies. However, in relation to Cars, clause 9 will prevail to the extent of any inconsistency.
(b) Nothing in this Agreement is intended to limit the operation of the Consumer Laws. Under the Consumer Laws, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with any Goods or Services.
(c) Providers are responsible for ensuring that any rights available to the Consumer under the Consumer Law are honoured by the Provider.
(d) If you are a Consumer and you experience an issue with a Good or Service, you must direct all inquiries in the first instance to the Provider, providing images and a description of the issue.
(e) The Provider must respond reasonably to all such inquiries, with regard to the rights available to the Consumer under the Consumer Law. Those rights may include the right for the Consumer to elect a repair, replacement, re-performance or refund for major faults, or the Provider’s obligation to offer at the Provider’s choosing one of those remedies for minor faults.
(f) Any inquiries that cannot be resolved between the Users following this process must be resolved in accordance with clause 19.
Ownership of Content & Related IP
(a) Your Intellectual Property Rights in any Goods or Services you offer remain yours.
(b) You acknowledge that all Listings, data, text, messages and other materials, whether publicly posted or privately transmitted, you share through the Platform or otherwise with Gumtree or another User (Content) is immediately assigned to and owned by Gumtree.
(c) If you share any Content on the Platform which contains any Intellectual Property Rights, for example an image, you represent and warrant that you are either the owner of those Intellectual Property Rights or are licensed to share that Content both on Gumtree’s website and publicly for commercial purposes. You indemnify Gumtree for any claims that any Content you post in a Listing, or your dealings with any Goods or Services, infringes any third party Intellectual Property Rights.
Responsibility for Content
(d) The accuracy and completeness of the Content is the sole responsibility of the person providing the Content.
(e) Gumtree does not control the Content posted via the Platform and, as such, does not guarantee the accuracy, completeness, lawfulness or usefulness of such Content.
(f) This means that you, and not Gumtree, are entirely responsible for any actions you take in reliance on Content.
(g) You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, lawfulness and usefulness of such Content.
Prohibited Content
(h) Without limiting or otherwise affecting the Posting Policies, you acknowledge and agree that you must not use the Platform to, on public or private pages:
(A) upload or download any Content in a manner that is inconsistent with the platform licence and restrictions in clause 17;
(B) upload any Content which is inconsistent or noncompliant with the Posting Policies or any applicable laws, including the Employment Laws, Consumer Laws, Privacy Laws, Animal Protection Laws, Conveyancing Laws and Tenancy Laws;
(C) upload, post or otherwise transmit any Content that is intended to further any political, legal, social or economic agenda which Gumtree deems, in its discretion, to be inconsistent with the spirit or values of the Posting Policies, its business objectives or the common good of its community of users;
(D) solicit or provide any Goods, Services or Jobs which are illegal in the jurisdiction in which you reside, including in relation to pornography, prostitution, or prohibited or restricted substances;
(E) upload, post, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(F) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Platform;
(G) upload, post, or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationship (such as insider, proprietary or confidential information learned or disclosed as part of employment);
(H) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including any automated posting software or bots to make automatic communications on the Platform;
(I) interfere with or disrupt Platform or servers or networks connected to Platform, or disobey any requirements, procedures, policies or regulations of networks connected to Platform;
(J) upload, post or otherwise transmit any Content that infringes any, trademark, copyright or other proprietary rights of any party;
(K) upload, post or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes;
(L) publish, republish, transmit, display, or otherwise make available any content from the Website (whether online or otherwise); or
(M) intentionally or unintentionally violate any applicable law or regulation including, but not limited to, regulations promulgated by any securities exchange.
(i) You acknowledge that Gumtree does not pre-screen Content, but that Gumtree and its agents will have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via Platform.
16. PRIVACY & USER COMMUNICATIONS
(a) We will abide by, and you agree to, our Privacy Policy which can be accessed via the link at the start of these Terms and may be updated from time to time by written notice to you.
(b) You must not share any Content with any other User, including in any Listing, which is not necessary to understand or discuss the Listing. You must never provide credit card details or bank details to any other User. Any information you provide to another User is done so at your own risk.
(c) However, all Users must take all steps necessary to protect from misuse or distribution the information you receive from other Users. If Gumtree becomes aware of any User misusing or distributing information of another User, Gumtree will investigate and terminate the User’s Account.
(d) Without limiting our Privacy Policy, which will prevail to the extent of any inconsistency with this clause, you agree that Gumtree may monitor, use, access, store, and disclose your Content, including your communications with any other User:
(A) for the purpose of providing the Platform to you in an efficient manner;
(B) for the purpose of ensuring your compliance with this Agreement;
(C) for the purpose of properly administering your Account in accordance with the standard operating procedures of Gumtree or its affiliated or subsidiary companies or agents; and
(D) if required to do so by law or in the good faith belief that any such access, preservation or disclosure is reasonably necessary to:
(1) comply with legal process;
(2) enforce the Terms;
(3) respond to claims that any Content violates the rights of third-parties;
(4) respond to your requests for customer service; or
(5) protect the rights, property, or personal safety of Gumtree, its Users and the public at large.
(e) You acknowledge that Gumtree enters into partnerships with external organisations and companies who, on occasion will convey their messages or offerings (for commercial purposes or otherwise) to you in the form of advertisements via our communications, web, mobile or social media platforms.
(f) Retention and deletion of Account / Content - We may retain your Content for such period we reasonably consider necessary for our legitimate business purposes, including legal reasons. However, unless your Account has been terminated in accordance with clause 21(b), we grant you the right to request your Account be deleted (where some Content may be retained). If you want to ask us to delete your Account, you may contact us using the functionality at the ends of these Terms. We will use our best endeavours to action any such request within a reasonable timeframe.
17. PLATFORM LICENCE AND INTELLECTUAL PROPERTY RESTRICTIONS
(a) While ever you continue to meet your obligations under this Agreement, we grant to you a non-exclusive, non-transferable, royalty-free, revocable licence to use the Platform for the sole purpose of engaging in legitimate and lawful Exchanges.
(b) You acknowledge and agree that the Platform contains Intellectual Property Rights and confidential information that is owned by Gumtree in accordance with applicable laws and registration bodies, including the underlying source code. Nothing in this Agreement transfers any Intellectual Property Rights in the Platform to you. Any use of the Platform by you in breach of the Licence will be a breach of our Intellectual Property Rights for which you will be liable to us in damages and consequential damages.
(c) You must not:
(A) copy, scrape or data-mine the whole or any part of the Platform, including any screen or data scraping or other methods of taking any content from the Platform or any API;
(B) manipulate or take advantage of any vulnerability in the Platform for your own commercial gain or any other purpose;
(C) modify, merge, integrate or combine the whole or any part of the Platform or system with any other software, program or application;
(D) attempt to assign, transfer, distribute, sell, lease, rent, sub-license, charge or otherwise deal in or encumber the Platform;
(E) adapt, translate, reverse engineer, decompile or disassemble the whole or any part of the Platform; or
(F) use any automated tools, hacks, scripts, programs or applications that are designed to access any data, modify or interfere with the functioning of the Platform, or interact with communications from the Platform, for any purpose.
(d) You agree that any advertisements presented to you through the Platform are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
(a) Gumtree may provide, or third parties may provide, links to third party sites or resources. Because Gumtree has no control over such sites and resources, you acknowledge and agree that Gumtree is not responsible for the availability of such external sites or resources. Gumtree does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Gumtree will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
(b) Your use of the Platform is at your sole risk. The Platform, including the User community, is provided on an “as is” and “as available” basis. You must make all reasonable inquiries to determine the legitimacy of a User and accuracy of a Listing. You acknowledge that by using the Platform, under no circumstances will Gumtree be liable in any way for any Listing, including, but not limited to, any errors or omissions or misleading information in any Listing, or for any loss or damage of any kind incurred as a result of the use of your reliance on any Listing or performance or receipt of any Exchange.
(c) Gumtree makes no warranty or representation that:
(A) the Platform will meet your requirements;
(B) the Platform will be uninterrupted, timely, secure, or error-free;
(C) the quality of any products, services, information, or other material purchased or obtained by you through Gumtree will meet your expectations; or
(D) any errors in the underlying source code will be corrected.
(d) Any material downloaded or otherwise obtained through the use of Platform is done at your own discretion and risk that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
(e) Nothing in these terms is intended to exclude or displace any guarantees or warranties provided to you as a consumer of the Platform or any Goods or Services under the Consumer Law. Under the Consumer Law, you may be entitled to a repair or replacement service, or other similar rights in accordance with the Consumer Law from time to time.
19. ISSUES AND DISPUTES
Issues with the Platform
(a) If you encounter any issues with the Platform, please contact us through the functionality at the bottom of this page. We will endeavour to resolve your issue within 5 weekdays.
(b) If we are unable to resolve your issue, your rights and our liability is limited in accordance with clause 20.
Disputes with other Users
(c) Any issues or disputes about a Listing or Exchange, including Jobs, is an issue between the Provider and the Consumer, or Employer and Worker (Disputing Users).
(d) To the maximum extent permitted at law, any issues or disputes about Listings or Exchanges, including Jobs, are not an issue or dispute with Gumtree.
(e) The Disputing Users must, in good faith, seek to efficiently and cost effectively resolve the issue in a manner that is objectively fair to both parties in the circumstances.
(f) The Users are encouraged to seek independent legal advice (at their own cost) if the issue is significant or otherwise is not progressing towards independent resolution.
(g) All Users agree to refrain from initiating formal legal proceedings until any issue that cannot be resolved day to day has been discussed at mediation and the parties have made a genuine effort at resolving the issue in good faith.
20. LIABILITY AND INDEMNITY OF GUMTREE
(a) To the maximum extent permitted by law, under no circumstances will Gumtree be liable to you for any incidental, special or consequential loss or damages, or damages for loss of data, damage to reputation, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Platform, this Agreement or any Listings, Exchange, Goods, Services or Jobs or incidental activities (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
(b) If Gumtree is liable to you (whether in contract, indemnity, tort, statute or equity), you acknowledge and agree that Gumtree’s liability in aggregate for all claims by you or third parties who encounter related activities or goods through you, for loss or damage of any kind arising from or relating in any way to this Agreement, the Platform or any Listing, Exchange, Goods, Services or Job, to:
(A) if the liability relates to an Exchange - the amount paid for the relevant Goods or Services that are the subject of the Exchange giving rise to the liability – where such amount will only be paid to the party found to have suffered the loss through the dispute procedures in clause 19, be it the Consumer, Provider, Worker or Employer (but not both); or
(B) if the liability relates to the Platform - the amount paid to Gumtree by you for use of the Platform in the 12 months preceding the event giving rise to the liability, and if that amount is less than $100, then $100.
(c) You indemnify Gumtree in respect of all liability for any claim(s) by any User or person (including any third party who encounters the Listing, Services, Goods or Job through you or the initial User) arising from your or your representatives’:
(A) breach of any third party property rights or intellectual property rights;
(B) breach of any term of this Agreement;
(C) breach of any applicable law (including the Employment Laws, Consumer Laws, Privacy Laws, Animal Protection Laws, Conveyancing Laws or Tenancy Laws) or the Posting Policies;
(D) inquiry, issue or dispute with any other User;
(E) personal injury or death arising from any Goods, including any Car as set out in clause
(F) use of the Platform; or
(G) negligent, wilful, fraudulent or criminal act or omission, except to the extent Gumtree caused or contributed to any such claims through its own wilfully reckless or negligent act or omission and Gumtree ought reasonably to be liable for a portion of the claim (in which case Gumtree’s liability is capped in accordance with clause 20(b)). The parties agree that Gumtree provides the Platform (as is, and as adjusted from time to time) based on the relationship structure in clause 4, and Gumtree providing the Platform (as is, and as adjusted from time to time) will not be considered a cause or contribution of Gumtree to any claim.
21. REPORTING MISUSE AND OUR RIGHT TO REVOKE YOUR ACCOUNT
(a) If you have any reason to suspect any other User is using the Platform in breach of any part of this Agreement, we ask that you notify gumtree at the relevant link below as soon as you become aware of the breach or misuse, and provide us with as much information as possible.
(b) If Gumtree knows or reasonably suspects that you are or may be in breach of any clause of this Agreement – including any part of the Posting Policies - Gumtree may, in its absolute discretion and without explanation, right of appeal or liability to you, do any or all of the following:
(A) immediately terminate your Account;
(B) prohibit you from further use of the Platform for any period deemed appropriate in Gumtree’s absolute discretion including forever; or
(C) report the breach (along with applicable evidence) to any relevant law enforcement authority, if applicable to the nature of the breach.
(c) You acknowledge Gumtree may, if required or otherwise in its discretion, cooperate in any proceedings relating to your misuse of the Platform or breach of this Agreement, including where Users are in dispute in accordance with clause 19. Gumtree may decline to provide any information or data in accordance with its Privacy Policy.
22. MISCELLANEOUS INTERPRETATION PROVISIONS
(a) This Agreement is to be interpreted in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and competent courts of appeal from them.
(b) If any clause of this agreement is unenforceable at law, that clause is to be severed to the narrowest extent possible to overcome the enforceability issue, and the other terms of this agreement will continue to apply with full force and effect.
(c) Any failure of a party to enforce a right under this agreement will not constitute a waiver of that party’s right to exercise that right in future.
(d) This Agreement is entered into on the day and at the time you agree to it in accordance with clause 3, and will continue to apply whenever you access the Platform unless and until these terms are updated by us.
(e) We may update this Agreement from time to time by written notice to you.
Send us questions, reports, comments or complaints to Gumtree Inquiries.
Send all formal legal notices using our link under the topic of ‘Legal Notices and Inquiries”. All notices will be deemed received on the next business day following transmission.
Previous Terms of Use, 1st July 2017
