Retail Australia Pty Ltd

 

1. This document is a binding contractual agreement (“Agreement“) between you and your related bodies corporate (“you” or “Merchant/ Businesses“) and Retail Australia Pty Ltd (ABN: 82 123 591 159) (“Retail Australia“, “us” or “we“). For the purposes of clarification, the clauses of this Agreement constitute part of the definitions, terms and conditions of the Agreement.
2. Retail Australia operates an online business directory with e-commerce facility at the URL address www.RetailAustralia.com.au , the website functions as a Business directory listing, e-commerce stores and webpages forming part of the website, and other features of an online shopping website (the “Website“). Additional features may be added, and other features removed, from time to time at the full discretion of Retail Australia
3. Retail Australia hereby agrees to provide you with a space, on its website to allow you to promote and/or sell your products and/or services, and to allow you to take advantage of the functions and facilities offered on the Website for use by merchants who are offering their products and/or services for sale and/or promotion via the Website (the “Services“). As part of your use of the Services, you agree to be bound by the terms and conditions of this Agreement and any amendments from time to time (after being provided notice of such amendments). For the purposes of clarification, the promotion of your products and/or services via the Website in order to refer, redirect or otherwise provide a link to a customer to another website to execute the sale transaction for those products and/or services (for example, your own separate website or online shopping cart or online shopping facility) forms part of the Services.
4. This Agreement remains in force while you continue to use the services

The terms and conditions of this Agreement are:

1. Registration of Merchant Account

1.1 When the Merchant registers with Retail Australia by providing the required information in the Merchant sign-up area of the Website, the Merchant will automatically have an account created for them on the Website (the “Merchant Account“). The provision of the Merchant Account will form part of the Services. The Merchant represents and warrants that:

(a) all required registration information that is submitted in the sign-up area of the Website is complete and accurate; and

(b) the Merchant will maintain the accuracy of such information and take all reasonable steps to update that information when necessary to ensure it is up-to-date and accurate at all times.

1.2 The Merchant is responsible for maintaining the confidentiality of the Merchant Account login information and is fully responsible for all activities that occur under or via the Merchant Account.

1.3 The Merchant agrees to immediately notify Retail Australia as soon as it becomes aware of any unauthorised use, or suspected unauthorised use, of the Merchant Account or any other breach of security.

1.4 Retail Australia cannot and will not be liable for any loss or damage arising from the Merchant’s failure to comply with the requirements in clauses 1.1, 1.2 or 1.3.

1.5 If any information provided by the Merchant is untrue, inaccurate, not current or incomplete, Retail Australia has the right to terminate the Merchant Account and refuse any and all current or future use of the Services.

2. Agreement to be bound upon registration

By registering Merchant details indicate you have read and accepted the terms and conditions of this Agreement, you agree to be bound, upon completing the registration process, by all terms and conditions of this Agreement and any amendments from time to time (after being provided notice of such amendments). For the purposes of clarification, this clause 2 operates in addition to and separately from your agreement, in Recital clause C, to the terms and conditions of this Agreement in consideration for the Services. If these terms and conditions or any future amendments are unacceptable to you, you may cancel your account at any time by sending an email to contactus@retailaustralia.com.au with notice to cancel your Merchant Account.

3. Merchant Obligations

3.1 The Merchant agrees that it shall be responsible for all goods, products and/or services displayed by it and/or offered by it for promotion and/or sale on the Website, as well as all acts or omissions of the Merchant that occur through or in connection with the Merchant’s use of the Website or the Merchant Account.

3.2 The Merchant agrees to display its complete contact information in the administration section of the website for the Merchant Account (otherwise known as admin or the admin section of the website or the admin console, or similar terms). The Merchant agrees to update this information to ensure that it is accurate, current and complete at all times.

3.3 Without limitation, any breach of the Merchant’s obligations under this clause 3 shall be considered a material breach of this Agreement.

4. Merchant Representation and Warranties

4.1 The Merchant represents and warrants throughout the term of this Agreement that:

(a) the person who agrees to be bound by this Agreement on behalf of the Merchant has the right, power and authority to enter into this Agreement; and

(b) the Merchant itself has the right, power and authority to enter into this Agreement; and

(c) the Merchant has the necessary licenses to promote and/or sell the goods, products and/or services offered by it on the Website; and

(d) the Merchant will not engage in any activities that constitute, cause, promote, incite or otherwise encourage or lead to the violation of any applicable law or regulation, including (but not limited to) the sale of illegal goods, or the violation of export or import control, or obscenity laws, or the sale of goods in breach of copyright, trademarks or other intellectual property protections;

(e) Any logos, banners, images, trademarks or other visual or written intellectual property displayed by the Merchant does not and will not violate any copyright, trademark or other intellectual property rights or rights of privacy or publicity of any third party or any laws; and

(f) any advertising or promotion of the Merchant’s goods, products and/or services relating thereto will not constitute false, misleading, deceptive or unfair advertising or disparagement under any applicable laws.

4.2 Retail Australia reserves the right to refuse to provide the Services, or otherwise host or display any content on the Website, if it believes, in its sole discretion:

(a) the Merchant is offering for sale or intending to offer for sale or promoting or intending to promote any goods, products and/or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, defamatory or otherwise inappropriate; or

(b) the Merchant has substantially changed the goods, products and/or services it promotes or sells on the Website but has not updated the Merchant Account accordingly; or

(c) the Merchant has failed to be reasonably accessible to customers or timely in its fulfillment of customer sales, purchases, orders or prepayments; or

(d) the Merchant has violated or threatens to violate the letter or spirit of this Agreement.

5. Indemnity

To the fullest extent permitted by law, the Merchant agrees to defend, indemnify and hold Retail Australia Pty Ltd and its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against and claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to legal fees and costs) arising from, out of or in relation to:

(a) any breach or alleged breach by the Merchant of this Agreement or the representations and warranties stated above, or that it has otherwise made in conjunction with or in the lead up to executing this Agreement; or

(b) any claim for taxes, duties or other related obligations arising from the promotion and/or sale of the Merchant’s goods, products and/or services via the Website; or

(c) any claim resulting out of or relating to the goods, products and/or services provided by the Merchant on the Website, including but not limited to any claims for misleading or and deceptive, false advertising, product defects, personal injury, death or property damages.

Without limiting the foregoing, the Merchant shall pay any money owed to any party, as well as all legal fees, related to any action against, or determinations against, Retail Australia Pty Ltd related to any action against Retail Australia Pty Ltd in relation to any of the matters mentioned above in this clause 5.

6. Intellectual Property Rights

6.1 The Merchant agrees and acknowledges that Retail Australia Pty Ltd owns all right, title and interest in the Website, the Website’s source code, Retail Australia Pty Ltd patents and trademarks, and any software, technology or tools used by Retail Australia Pty Ltd for the purpose of providing the Services (with the exception of any such items owned by third parties providing services to Retail Australia Pty Ltd (collectively “Retail Australia IP“). The Merchant shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare Retail Australia IP or any portion thereof, or use Retail Australia IP as a component of or a base for goods, products and/or services prepared for commercial sale, sublicense, lease, access or distribution. The Merchant shall not prepare any derivative work based on Retail Australia IP. Additionally, the Merchant shall not translate, reverse engineer, decompile or disassemble Retail Australia IP.

6.2 The Merchant agrees that by being provided the Services and using the Website, the Merchant grants Retail Australia , and its successors and assignees, a non-exclusive, worldwide, royalty-free, perpetual and irrevocable license of the Merchant’s copyrights and other intellectual property rights associated with any and all material and/or content displayed by the Merchant on the Website, for Retail Australia IP to use, distribute, display, reproduce and create derivative works from such material in any and all media, and to display in any manner on any property of the results of search queries and comparisons conducted by users of the Website. This includes, Retail Australia IP without limitation, the display of such materials in search queries provided by third party search engines (such as Google). The Merchant also grants Retail Australia the right to maintain such content on Retail Australia servers during the term of this Agreement and to authorize the downloading and printing of such material by users for their personal use or in relation to their use of the Website.

7. Payment, Refunds and Collection

7.1 The Merchant agrees to pay Retail Australia based on the Merchant’s elected payment plan.

7.2 The Merchant agrees to pay Retail Australia a sales commission for sales that transacted on Retail Australia Merchant’s store. Fees are shown at the beginning of every month in the “merchant” section of the Website. Retail Australia will exercise its best endeavors to notify the Merchant of any changes to pricing two (2) weeks prior to any change occurring. However, it is the Merchant’s responsibility to regularly visit the payment plan and fees table in the “merchant” section of the Website to confirm the price(s) to be paid for the Services.

7.5 The Merchant shall be responsible for paying all taxes (such as GST) related to the Services.

7.6 Any breach of clause 7 will be considered a material breach of this Agreement and (without excluding any other legal rights or remedies) will give rise to remedies under this Agreement.

8. Terms

This Agreement shall continue for the longer of the period that the Merchant uses the Services and the period of the Merchant’s registration with Retail Australia. The Merchant must comply with the terms and conditions of this Agreement at the time of renewal (if any is required) of this Agreement by Retail Australia. Retail Australia have the right, but not the obligation, to review the Merchant’s use of the Services for compliance with this Agreement as part of the renewal process (if any) or at any other time.

9. Termination

9.1 Either party to this Agreement may terminate the Agreement for cause:

(a) at any time; or

(b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or

(c) if the Merchant is engaged in illegal activities or the sale of illegal, harmful, offensive, obscene, or otherwise inappropriate goods, products and/or services, or engaged in activities or promotions or sales that may damage the rights or reputation of Retail Australia, its affiliates, users, potential users, creditors, customers or other relevant persons.

9.2 Retail Australia reserves the right to cancel the Agreement at any time. In such a case, the Merchant will be responsible for outstanding fees. The Merchant will be provided with a termination notice and confirmation which contains details of the amounts owing.

9.3 Upon termination, Retail Australia reserves the right to delete from its servers any and all information contained in the Merchant Account or uploaded (or included) by the Merchant to (or on) the Website.

9.4 Any claims for payments due to Retail Australia from the Merchant shall survive the expiration or termination of this Agreement.

9.5 The provision of any intellectual property rights, indemnity, and disclaimer of warranties and liabilities of this Agreement shall survive any termination of this Agreement (unless where otherwise specified).

10. Confidentiality

10.1 The terms of this Agreement are confidential and the Merchant agrees not to disclose the terms described herein to any party (other than its employees, officers and advisors on a need-to- know basis, and only after each recipient has taken the necessary precautions of the kind generally taken with regard to confidential information to preserve the confidentiality of that information, to ensure it is not made public by those individuals).

10.2 Any breach of this confidentiality provision by the Merchant shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to Retail Australia for which there will be no adequate remedy at law. In the event of such breach, the Merchant acknowledges that Retail Australia would likely be entitled to injunctive relief and/or a decree of specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).

10.3 Retail Australia collects information about the Merchant at the time of registering the Merchant Account and subsequently during the Merchant’s use of the Website and the Services. The Merchant agrees that Retail Australia may use this information for its own internal analytical or promotional purposes. The Merchant agrees that Retail Australia may disclose such information if it believes, in good faith, that such action is reasonably necessary:

(a) to comply with a law or regulation; or

(b) to comply with the legal process; or

(c) to enforce this Agreement; or

(d) to respond to claims for violation of rights of third parties; or

(e) to protect the rights or interests of Retail Australia or others provided, however, that nothing in this section shall impose a duty on Retail Australia to make such disclosures.

10.4 The Merchant shall not disclose or share the password for the Merchant Account, and will solely be responsible for maintaining password confidentiality.

10.5 The Merchant agrees that Retail Australia may access the Merchant Account and its contents as necessary to extent technical support, identify or resolve technical problems or respond to complaints, problems or issues regarding the Services.

11. Limitation of Liability

Except for indemnification obligations under this Agreement, in no event shall:

(a) either party be liable or obligated to the other party or any third party in any manner for any special, incidental, exemplary, consequential, punitive or indirect damages of any kind regardless of the form of action, whether in contract, tort, negligence, product liability of any kind, or otherwise, even if informed about the possibility of such damages in advance; nor

(b) Retail Australia aggregate liability to the Merchant for any claims arising out of or relating to this Agreement exceed an amount equal to the total amounts paid under this Agreement. This limitation shall apply to the maximum extent permitted by the applicable law and notwithstanding the failure of any limited remedy.

12. Warranty Disclaimer

Except as expressly set forth in this Agreement, neither party makes any representations or warranties, express or implied including without limitation any implied warranty of merchantability, fitness for particular purpose or non-infringement. Retail Australia does not warrant or guarantee that the Services shall be uninterrupted or error free, nor that any errors, omissions or misplacements will be corrected, or that traffic from Retail Australia will result in any revenue or profit for the Merchant.

13. Nature of Relationship

The parties are independent contracting entities. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way (except as otherwise provided in this Agreement).

14. Governing Law and Dispute Resolution

14.1 Each party agrees to submit to the exclusive jurisdiction of the courts of Victoria, Australia, without regard to choice or conflicts of law rules.

14.2 The parties agree that any disputes, controversies or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity or termination shall be vested in the local courts of Victoria, Australia.

15. Modification of Agreement

The Retail Australia may modify the terms and conditions of this Agreement and of the Services at any time, and the Merchant shall be notified of such modification by email. The modification will be effective from two weeks after the Merchant receives the email.

16. Transfer or Assignment of Rights or Obligations

The Merchant may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without Retail Australia’s prior written consent.

17. Communications between Parties

The communications between the Merchant and Retail Australia should be via electronic means. For contractual purposes, the Merchant:

(a) consents to receive communications from Retail Australia in an electronic form; and

(b) agrees that all the terms and conditions, agreements, notices, disclosures and other communications that Retail Australia provides to the Merchant electronically satisfies any legal or contractual requirements that such communications would satisfy if they were to be in writing. The foregoing does not affect the Merchant’s statutory rights, however.

18. Delay in Performance out of a Party’s Control

Neither party shall be liable to the other for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of nature or causes beyond its reasonable control.

19. Delivery of Notices

Any notices or communications sent by email under this Agreement shall be deemed delivered upon receipt to the party to whom such communication is directed, at the email address(es) specified by the Merchant while registering and, for Retail Australia, contactus@retailaustralia.com.au

 

20. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and other communications between the parties.