Vendor Terms and Conditions

The following general terms and conditions (Terms) apply to your use of Shop Local SA and our Services and form a legally binding document between you and Shop Local SA.

It is important that you take the time to understand the Terms before engaging in our Service. You will be taken to have read, understood and agree to be bound by these Terms upon Registration.

1. Definition

1.1. ACL means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)

1.2. Business means your business, through which you sell the Products

1.3. Business Days means any day except Saturday or Sunday or a Public Holiday in Adelaide, Australia.

1.4. Shop Local SA (also referred to herein as “we”, “us” or “our”) means Marketplace Online Pty Ltd (ABN 72 640 454 502, trading as Shop Local SA and means collectively and individually, the Marketplace, the Platforms and the Services.

1.5. Confidential Information means any materials or information provided by you to us that is not publicly known. Confidential Information does not include information that:

(a) was in the public domain at the time we received it;

(b) comes into the public domain after we received it through no fault of ours;

(c) we received from someone other than you without breach of our or their confidentiality obligations;

(d) any Intellectual Property provided to you by us.

(e) is independently developed by us without use of or reference to the Confidential Information; or

(f) we are required by law or legal process to disclose.

1.1. Content means written, visual and audio content published or made available through our Platforms.

1.2. Customer (also referred to herein as “you” or “your”) means the person jointly and severally, if more than one person, enquiring or acquiring about the Products from the Vendor

1.6. GST means Goods and Services Tax (GST) as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth)

1.7. Intellectual Property means any registered or unregistered rights in any copyright, patents, inventions, discoveries, trademarks, processes, systems, methods, designs or confidential information or any rights of a similar nature under the laws of Australia.

1.8. Invoice means the invoice provided to you via email upon enquiry into our Services which outlines the Schedule of Fees.

1.9. Marketplace means the online marketplace run by Shop Local SA on the Website that allows Vendors to promote their Products to Customers.

1.10. Platform means collectively and individually, the Website and all other online platforms operated by us, including but not limited to Instagram, Facebook and Linkedin.

1.11. Products means all goods, products and vouchers listed for sale on the Website by the Vendor and which are available for purchase by the Customers

1.1. Registration means payment of the initial invoice of our Services as specified in the Schedule of Fees.

1.2. Schedule of Fees means the schedule of Shop Local SA’s fees and services provided to you on Registration or otherwise agreed in writing between you and us.

1.3. Services means the online marketplace service provided by us with respect to Shop Local SA or any other communication or service we provide to you in accordance with these Terms.

1.4. Website means, all subpages and any associated websites operated by us.

1.5. Vendor (also referred to herein as “you” or “your”) means the person, jointly or severally, engaging in our Services to sell your Business’ products.

2. Application of Terms

2.1. We may amend these Terms from time to time without notice. Any amendment will be effective immediately upon being posted on Shop Local SA. Your continued use of our Services after any amendment becomes effective and will constitute your agreement to be bound by these Terms, as amended

2.2. We reserve the right to vary, modify or discontinue any of the Services or Content available through the Website, at any time, without notice and without liability.

2.3. These Terms (including any terms incorporated by reference) forms the entire agreement between you and us in relation to its subject matter.

3. Account

3.1. Upon Registration you will be provided with a generated login and password (Account). You will be solely responsible for any and all activity that occurs under your Account.

3.2. While we will take reasonable steps to preserve the security of information provided to us, no data transmission over the internet can be guaranteed as totally secure. We do not warrant and cannot ensure the security of any information provided by you which you transmit to us. Accordingly, any information you transmit to us is at your own risk and any loss that you sustain due to this risk is your sole loss to retain.

4. Fees and Expenses

4.1. All invoices, fees and expenses are payable by you within seven (7) days of the date of the invoice, unless otherwise agreed by us in writing. Failure to pay this fee within the specified time may result in immediate termination of the Services and will result in non-payment in accordance with the Dispute Resolution provisions set out in these Terms.

4.2. Any amounts not paid by their respective due dates will attract interest charges at a rate of 12% per annum, calculated daily and compounded monthly.

4.3. Any amounts which are overdue for more than 60 days will be referred to a collection agency for recovery and all associated recovery costs, including reasonably incurred legal costs, will be billed to, recoverable from, and payable by you.

4.4. Reasonable additional expenses incurred by Shop Local SA by providing the Services, including but not limited to photography, IT development of Vendor Products and Business on the Marketplace that are excluded in the Schedule of Fees, will be charged to you in an additional invoice. You agree this is a reasonable fee for the expenses incurred by Shop Local SA arising from the providing of additional services.

4.5. You may request Shop Local SA provide additional work to you outside the scope of Services. If you request additional work, Shop Local SA reserve the right to charge you additional fees at the rate specified in writing in an additional estimate, or as otherwise agreed by you and Shop Local SA.

4.6. All fees or additional fees exclude GST.

5. Warranties

5.1. By engaging in our Services and registering your Business with us, you warrant that the following is true and correct:

(a) you are over 18 years old;

(b) you are the registered owner or beneficial owner of the Business, or you have express written permission from the owner of the Business to register the Business on the Website and to sell the Products in the Marketplace;

(c) you are the registered owner or beneficial owner of the ABN associated with your business;

(d) you have the legal rights to sell the Products and use of the Products by Customers will not breach the rights of any third party, including any intellectual property rights;

(e) all information provided to us by you in respect of your Business is accurate, complete, current, and not misleading;

(f) you agree to comply with Shop Local SA’s privacy policy and will not do anything that would result in Shop Local SA being in breach of the privacy policy or privacy laws;

(g) you will not assign or otherwise transfer your Account to any third party without our prior written consent; and

(h) the sale of the Products on the Marketplace will not breach any applicable laws or regulations and will not bring us into disrepute.

5.2. Failure to comply with any of these warranties constitutes a breach of our Terms and may result in the immediate termination of our Services and the removal of your Business from our Marketplace.

6. Payment of Products

6.1. For each order, the Customer will pay, via an accepted payment method, the applicable price for the relevant Products confirmed by you and a delivery and handling fee as set and calculated by you.

6.2. If payment is made via a third-party payment system, you must abide by any terms and conditions applicable to that payment system.

6.3. All transactions made through the Marketplace will incur a commission fee as specified in our Schedule of Fees. We reserve the right to amend this fee from time to time. If the commission fee is amended it will become effective upon 14 Business Days of written notice of this change.

7. Delivery of Products

7.1. If the Customer has chosen delivery, you will be solely responsible for the delivery of all Products. You release us from any liability resulting from the shipping and delivery of all Products.

7.2. You must despatch all orders promptly after they have been processed, and in any event within 48 hours of receiving the order, unless clearly communicated with the customer otherwise. All orders must be shipped in safe and secure packaging, taking into account the fragility and value of the Products and the distance over which the Products are likely to travel. You agree to use a reliable and reputable transport provider to ensure delivery Australia wide in no more than ten (10) Business Days.

7.3. Failure to deliver Products to a Customer in accordance with these Terms will result in a breach of these Terms.

8. Customer Refunds and Disputes

8.1. You agree that Shop Local SA acts as a facilitator between you and the Customer in providing a system to purchase your products and we do not hold any liability to you or the Customer directly.

8.2. You are solely responsible for refunding Customers of purchases in accordance with these Terms, all applicable laws and any other lawful terms and conditions of sale notified to the Customer by you during the purchase process. We are not responsible or liable for any refunds, errors in issuing refunds or lack of refunds by you.

8.3. You release us from all claims, demands, loss, liability, expenses and damages arising out of any dispute between you and the Customer.

9. Taxes

9.1. You will be responsible for any GST, sales tax, or other taxes that apply to the sale and purchase of any Products on the Marketplace.

9.2. If we are required to pay any taxes in relation to the sale of your Products, you agree to indemnify us within seven (7) days of written notice of these costs.

10. User Content

10.1. You are responsible for all Content that you submit to, publish or display on our Platform, including but not limited to, its legality, reliability and appropriateness.

10.2. By submitting, publishing or displaying Content to us, you grant us a perpetual, irrevocable, royalty free licence to use, modify, publicly display, reproduce and distribute such Content on and through our Platform. You retain any rights to any Content you submit to us.

10.3. You represent that you own any Content uploaded by you or that you have the right to use such Content, and that the submission, publication or display of your Content on the Marketplace will not cause you or us to breach any law, regulation, rule, code or other legal obligation.

10.4. You agree that any Content that you submit, publish or display does not contain any obscene, inappropriate, defamatory, disparaging, indecent, offensive, pornographic, threatening, abusive, racially insensitive or discriminatory content.

10.5. We reserve the right to modify or remove any Content (including Products) provided to us any time if we believe that the Content may breach any of these conditions

11. Disclaimer

11.1. Nothing in these Terms limit or excludes any guarantees, warranties, representations or conditions implied or imposed by law.

11.2. You acknowledge that Shop Local SA is provided to you on an ‘as is’ basis and use of Shop Local SA is at your own risk.

11.3. We provide no representation or warranty as to the accuracy, completeness, currency or reliability of the Content or any other information provided by us.

11.4. We do not warrant that your access to the Marketplace and use of the Services will be uninterrupted or that the Marketplace won’t have some technical glitches ,that any defects will be corrected or that this Marketplace and its servers are free of computer viruses and other harmful data, code, components or other material.

11.5. We do not warrant that the Services are fit for your specific purpose. It is your responsibility to agree that the Services are suitable and fit for your Business prior to utilising the Services.

11.6. We cannot guarantee that the use of the Marketplace will result in any additional sales of your Products.

11.7. You acknowledge and agree that from time to time we may need to suspend access to all or a part of the Marketplace, Website, Services or Content while we fix defects and errors, install updates and undertake general diagnosis and maintenance of the Service or undertake emergency maintenance, and that as a result of which these applications may be less accessible or unavailable to you from time to time.

12. Promotions and Competitions

For certain campaigns, promotions or contests, additional terms and conditions may apply. If you wish to participate in such a campaign, promotion or contest, you must agree to the relevant terms and conditions applicable to that campaign, promotion or contest. In case of any inconsistencies between such terms and conditions and these Terms, those terms and conditions will prevail.

13. Liability

13.1. By engaging in our Services, you assume all risks associated with such access and use.

1.3. To the fullest extent permitted by law, and subject to the ACL, Shop Local SA, its directors, employees, agents, contractors and related entities will not be liable to you for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising in connection with your use of the Services, the Marketplace, the Platforms or the Content.

13.2. Notwithstanding the above, nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the customer by the ACL or any other applicable law that cannot be excluded, restricted or modified by agreement. Where liability cannot be excluded, any liability incurred by us is limited to the supply of the Services or Content (as applicable) or the reasonable costs of having the Services or Content re-supplied, and any additional rights or remedies available to you against us for failure of a statutory guarantee under applicable law.

13.3. If the ACL applies to your use or acceptance of our Services, then our Services will come with guarantees that cannot be excluded under the ACL. For major failures with the Service, you are entitled to terminate your Service with us. If you wish to terminate the Service in accordance with this clause 12.4, you must provide us with written notice within 14 Business Days of the major failure.

13.4. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified within a reasonable time.

13.5. Shop Local SA is not liable or responsible in anyway or whatsoever for:

(a) any virus, spam, contamination, damage or loss as a direct or indirect consequence from the use of the website or any of its associated products or services;

(b) any loss of income, profit or reputation;

(c) any loss in the nature of overhead costs; and

(d) any loss of goodwill or reputation.

14. Indemnity

14.1. You agree to indemnify and hold harmless, Shop Local SA, its directors, employees, contractors and related entities (The Indemnified) from any and all claims, demands, losses, causes of action, damage, lawsuits, judgements, including reasonable legal fees and costs, arising out of or relating to:

(e) any breach of these Terms by you;

(f) your use of the Platform, the Content and the Services;

(g) any information or documentation supplied to us by you;

(h) a breach of any applicable laws by you;

(i) your breach of any third party’s rights, including but not limited to intellectual property rights,

15. except to the extent the loss is caused by the negligence, or a wilful act or omission, of The Indemnified. Intellectual Property

15.1. Unless otherwise specified in writing, we own the Intellectual Property rights to all Content on our Platforms, excluding any Content created or uploaded by a Vendor.

15.2. All Intellectual Property which appears on our Platforms are proprietary to us and/or its affiliates. Use of this Intellectual Property without our consent will infringe our intellectual property rights.

15.3. Nothing on the Platform or in these terms should be interpreted as granting any rights to use or distribute any Intellectual Property unless express written consent is provided by us.

16. Third Party Services

16.1. You acknowledge that certain services, including but not limited to Website functionality, are provided on our behalf by third parties.

16.2. Our Website may contain links to websites operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those third party sights and have no control over or rights in those third party sites.

16.3. All other use, copying, or reproduction of the Services, our Platforms, the Marketplace or the Content, or any part of any of them is prohibited, except to the extent permitted by law.

2. Unacceptable activity

2.1. You must not do any act that we would deem to be inappropriate, unlawful or prohibited by any laws applicable to our Website, including but not limited to:

(a) attempt to circumvent the Marketplace functionality or otherwise avoid payment of any fees;

(b) any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals (including intellectual property rights);

(c) using our Platforms to defame or libel us, our employees or other individuals;

(d) uploading files that contain viruses that may cause damage to our property or the property of other individuals;

(e) post or distribute any unsolicited commercial messages;

(f) posting or transmitting to this Website any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is misleading, false, inaccurate, defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security; and

(g) scrape our Website or otherwise harvest or collect information from our Website without our consent.

17. Termination

17.1. We may suspend or terminate the Services, without prior notice or liability, for any reason, including but not limited to a breach of these Terms. Upon termination, your right to use the Services will immediately cease.

17.2. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

18. Confidentiality

18.1. Unless required by law or otherwise agreed, you must keep all Confidential Information you receive from us which relates to Shop Local SA, or any services Shop Local SA provides and any of its Intellectual Property, other products or processes.

18.2. Any personal information that you receive in the course of using the Marketplace, must be collected and processed in accordance with the applicable privacy laws, including but not limited to the Privacy Act 1988.

18.3. You agree to delete, destroy or return (as requested) any Confidential Information or personal information provided to you when it is no longer required for the purpose for which it was given.

18.4. Any publicity advertising or other materials containing references to Shop Local SA, or using Shop Local SA Intellectual Property, must not be distributed or made public without prior written consent.

19. Dispute Resolution

19.1. If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute unless the following clauses have been complied with.

19.2. A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

19.3. On receipt of that notice (Notice) by that other party, the parties to the Terms (‘Parties‘) must:

(a) Within 21 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Conflicts Resolution Service, or his or her nominee;

(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(d) The mediation will be held in Adelaide, Australia.

19.4. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

19.5. If two weeks have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

20. General

20.1. The laws of the state of South Australia govern these Terms and the parties agree to submit to the non-exclusive jurisdiction of the courts of South Australia, Federal Court of Australia, and all other courts entitled to hear appeals from those courts.

20.2. The failure by either party to enforce any provision of these Terms shall not be treated as a waiver of that provision shall it affect that party’s right to subsequently enforce that provision.

20.3. If any provision of these Terms shall be invalid, void, unlawful or unenforceable, the provision will, to the extent required, be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and will not in any way affect any other circumstances of or the validity or enforcement of the remaining terms.

20.4. We may licence, subcontract and/or assign all or any part of our rights and/or obligations under these Terms without your consent.

20.5. These Terms do not create any commercial obligation between you and us beyond these Terms, including but not limited to an agency, partnership, joint venture, employment or franchisee relationship.

21. Survival

The Warranties, Indemnity, Confidentiality and Dispute Resolution provisions survive termination or expiry of this agreement.