- Introduction and contract formation
- Term and termination
- Agency relationship
- Seller Administration Section on the Website
- Seller’s Store and the Website
- Seller’s terms of supply
- Customer Orders, payment and fulfilment
- Returns, refunds, disputed payments and dissatisfied Customers
- Small Brands Commission and Fees and net payment to Seller
- GST for Australian Sellers
- Exclusions of and limitations on liability
- Intellectual property rights
- Definitions and interpretation
1 Introduction and contract formation
1.1 Small Brands provides an online marketing platform on the Website. Seller has or intends to provide products for sale on the platform.
1.2 The relationship between Seller and Small Brands is one of principal and agent. When a Customer purchases a product from the Website, the contract for sale is formed between the Customer and Seller. The product is shipped by Seller directly to the Customer and does not come into the ownership or possession of Small Brands at any time. In relation to such contracts, Small Brands acts solely as the agent of Seller. Small Brands also provides various marketing and advertising services to promote the sale of Seller’s products.
1.3 By setting up a Store or using the Website as a marketing platform, Seller agrees to be bound by these terms and conditions.
1.4 Small Brands may amend these terms and conditions and the applicable Commission rate and Fees from time to time and will notify Seller of any such amendments. By continuing to use the Website as a marketing platform after receiving such notification, Seller will be deemed to have agreed to be bound by such amendments.
1.5 Capitalised terms are defined in clause 15.
2 Term and termination
2.1 This Agreement will commence on the date on which Seller begins promoting products on the Website and will continue for an indefinite period, subject to termination under clause 2.2.
2.2 Either party may terminate this Agreement at any time without cause by giving notice of termination to the other.
2.3 On termination of this Agreement (a) Small Brands may immediately remove Seller’s Store and Information from the Website; and (b) Seller will continue to perform its obligations under this Agreement for Orders received before termination. See also Clause 13.1.
3 Agency relationship
3.1 Seller irrevocably and unconditionally appoints Small Brands as Seller’s agent to (a) offer and sell products that Seller displays on the platfrom; (b) enter into agreements with Customers for the sale of such products on the Standard Customer Terms and any other terms and conditions permitted or contemplated under this Agreement; and (c) do all other things necessary or desirable in relation to the promotion, sale and supply of Seller’s products on the Website, including promotion through print catalogues, print advertisements, Google AdWords, Facebook, eBay and other print and electronic media channels.
3.2. When a Customer makes a purchase on the Website, Small Brands in its capacity as Seller’s agent will cause the Website to automatically generate an invoice for that transaction. Seller will not render any separate or additional invoice in respect of such sale.
3.3 Seller acknowledges that Small Brands is not a party to, and has no obligations under or in relation to, any agreement that is formed between Seller and a Customer for the sale and purchase of any product.
3.4 Seller assumes all liability for the performance of all obligations and the discharge of all liabilities under or in relation to (a) all agreements for the sale of a product on the Website; (b) any product supplied by Seller to a Customer; (c) the fulfilment of any Order accepted by Small Brands on behalf of Seller; (d) the publication of Seller’s Information on the Website; and (c) any Loss or Tax relating to or arising out of the supply or sale of any product by the Seller from one territory to a Customer located in, or purporting to be located in, another territory.
3.5 Seller indemnifies Small Brands against any Losses or Claims suffered or incurred by Small Brands in relation to (a) any agreement that is formed between Seller and a Customer for the purchase of any product by a Customer from Seller; (b) any product supplied by Seller to a Customer; (c) any Order accepted by Small Brands on behalf of Seller; (d) the publication of any of Seller’s Information on the Website; (e) any breach by Seller of this agreement; and (f) any cost, expense, Loss, claim, action or proceedings incurred by or made against Small Brands relating to or arising out of any Tax that relates to or arises out of the supply or sale of any product by the Seller from one territory to a Customer located in, or purporting to be located in, another territory.
4 Seller Administration Section on the Website
4.1 Small Brands will provide a Seller Administration Section on the Website where Seller can enter, edit and update product details and manage Orders.
4.2 Seller will provide the necessary computer hardware, software and internet services to access and use the Seller Administration Section. Small Brands has no responsibility for the provision, support and maintenance of any of the Seller’s hardware or software.
4.3 Seller will ensure that at all times (a) all computer hardware and software it uses to access and interoperate with the Website is equipped and functions with up-to-date software and protection against Viruses; and (b) that information supplied electronically to Small Brands and to the Website is submitted free from Viruses.
4.4 The Seller Administration Section requires Seller to set up a password. Seller will keep any such password confidential, not disclose it to any third party and notify Small Brands if Seller suspects there has been any improper use or disclosure. Seller is responsible for any access to the Website using Seller’s password unless and until Seller has notified Small Brands of any suspected improper use.
4.5 Seller will not (a) use the Seller Administration Section or the Website beyond the scope of use contemplated by this Agreement; (b) access the Seller Administration Section or the Website unlawfully; (c) modify or make derivative works based on the Website; (d) attempt to reverse engineer or access the backend of the Website with the intention of creating a competitive product or service; or (e) copy or build any concepts, features, functions or graphics based on the Website. Seller acknowledges that damages may not provide an adequate remedy for breach of this clause and that Small Brands will be entitled to seek injunctive relief to prevent the occurrence or continuance of any alleged breach.
5 Seller’s Store and the Website
5.1 Small Brands will provide Seller with a User Manual containing instructions on how to set up and manage its Store.
5.2 Seller will not promote or include any reference to any other business or website (including Seller’s Website) in its Store.
5.3 Seller will ensure that Seller’s Information:
- is accurate, complete, up-to-date and not misleading or deceptive;
- does not contain any Virus (including any computer program or code that can disrupt the operation of software, hardware or systems, or cause file deletions, file modifications or other effects that are not part of the functionality of software, hardware or systems);
- complies with all applicable laws;
- is not: (a) defamatory or in contempt of any legal or other proceedings; (b) indecent, obscene, vulgar, pornographic, offensive or of doubtful propriety; (c) of a menacing character; (d) discriminatory to any group of persons including groups defined by reference to colour, race, sex, origin, nationality or ethnic or national origins; or (e) offensive or denouncing of political or religious beliefs.
5.4 If Seller chooses to designate a product as Exclusive in its Store, Seller will ensure that such product is and continues to be Exclusive for as long as it is so designated.
5.5 Seller will not offer any liquor product for sale in its Store unless such offer and sale complies with all applicable laws and regulations.
5.6 Seller will ensure that all products offered for sale in its Store are of a nature consistent with Small Brands’ reputation as a shopping site for unique and quality products. Seller will not offer any products for sale in its Store that are readily available from third-party websites or major retail chains that Small Brands is not affiliated with.
5.7 Seller will not do anything that adversely affects the reputation or goodwill of Small Brands or the Website. Small Brands may immediately remove any product or any of Seller’s Information from the Store and the Website if Small Brands believes that it fails to comply with this Agreement, or that it is inconsistent with the ‘look and feel’ of the Website.
5.8 Seller acknowledges that Small Brands retains the absolute and unconditional right to determine:
- the nature of all other sellers using the Website and products offered for purchase using the Website (including products that are the same or similar to Seller’s products); and
- the manner in which the Website is presented (including the nature and arrangement of content, the categorisation of products, the order in which products and sellers are presented, features, functionality, advertising, links and the ‘look and feel’).
6 Seller’s terms of supply
6.1 Seller will offer, sell and supply products to purchasers who use the Website on the Standard Customer Terms and on no other terms and conditions.
6.2 Seller acknowledges that Small Brands is not responsible for providing Seller with any legal advice on the Standard Customer Terms. Seller should obtain its own legal advice to determine whether the Standard Customer Terms are suitable for the Seller and its products.
6.3 Subject to clause 6.4, Seller will offer its Customers Free Delivery on all products purchased through the Website.
6.4 In the case of unusually heavy or bulky items, Small Brands may in its absolute discretion permit Seller to charge extra for delivery. If Seller wishes to include any such items in its Store, Seller will first discuss the proposed charges with Small Brands and will not proceed to impose such charges without specific approval from Small Brands.
6.5 Unless otherwise agreed by Small Brands, Seller will ensure that the prices of products offered for purchase in its Store are the same as or lower than the prices for those products available for purchase on Seller’s Website.
7 Customer Orders, payment and fulfilment
7.1 If a Customer places an Order:
- Small Brands will collect payment for that Order on behalf of Seller using the payment mechanisms made available by Small Brands, provided however that Small Brands may decline to collect or process any payment at its discretion (for example, in the case of fraudulent or suspicious Orders); and
- upon receipt of payment for the Order, Small Brands will (a) notify Seller of the Order by email alert; and (b) include details of the Order in the Seller Administration Section for access by Seller
7.2 Upon notification of an Order, Seller will:
- fulfill the Order by shipping the relevant product with within 2 business days or within such other period specified in the despatch note which Seller has set for that product in Seller’s Store;
- include with each shipped Order any materials which Small Brands may require to be included; and
- promptly update the order status in the Seller Administration Section to indicate that the product has been shipped;
7.3 Seller will not include Seller’s Website URL, contact particulars or any marketing materials with a shipped Order, other than those required by or pursuant to this Agreement.
7.4 If Seller ships a product in fulfilment of an Order and the Customer does not receive the product for any reason, Seller will promptly ensure that alternative fulfilment arrangements are executed.
8 Returns, refunds, disputed payments and dissatisfied Customers
8.1 Seller will adopt and adhere to the Returns Policy. Seller may offer Customers additional rights of return or replacement provided that such rights are more favourable to the Customer.
8.2 Small Brands will use its best endeavours to resolve Customer enquiries relating to returns and refunds and in accordance with the Returns Policy, in its capacity as agent for the Seller. In cases which are resolved by the issue of a Store Credit or a refund (a) Seller will reimburse Small Brands for the value of the Store Credit of refund; and (b) Small Brands will not charge Commission in relation to the sale in question and will create a credit in favour of Seller for any Commission that has already been paid.
8.3 If a Customer disputes a payment charged for an Order (a) Small Brands will notify Seller of the dispute and provide Seller with a reasonable opportunity to demonstrate why the payment should not be reversed or charged-back; (b) Seller will provide Small Brands with all reasonable information, assistance and co-operation required to resolve the dispute within the timeframes imposed by the Website Payment Provider. In cases which are resolved by the reversal of the payment (a) Seller will reimburse Small Brands for any Charge-back Fee; and (b) Small Brands will not charge Commission in relation to the sale in question and will create a credit in favour of Seller for any Commission that has already been paid.
8.4 If a Customer is dissatisfied with Seller’s service or delivery times, then (a) Small Brands may in its capacity as agent of the Seller issue a Store Credit to the Customer for a value no greater than 50% of the amount paid by the Customer for the relevant products; and (b) Seller will reimburse Small Brands for the value of the Store Credit.
9 Small Brands Commission and Fees and net payment to Seller
9.1 Seller will pay Small Brands (a) the Commission in relation to each Order; and (b) all Fees.
9.2 On or about the 15th day of each month (a) Small Brands will invoice Seller for Commission on Orders shipped during the previous month and any applicable Fees; (b) Small Brands will deduct the Commission, Fees and any adjustments for Store Credits or refunds from the payments it has collected pursuant to clause 7 and will pay the net amount to Seller, either by electronic funds transfer or by PayPal; and (c) Small Brands will provide Seller with a statement showing details of how the net amount is calculated, including any credits or offsets pursuant to clause 8
9.3 If the amount of such invoice is greater than the amount collected pursuant to clause 7, Small Brands may at its discretion either (a) create a credit note for the difference and offset it against amounts payable to Seller in subsequent months; or (b) invoice Seller for the difference, payable within 14 days of the invoice date.
9.4 Small Brands may reduce any amounts payable to Seller under this Agreement by any amount that is payable by Seller to Small Brands.
9.5 Small Brands and Non-Australian Sellers may agree from time to time to defer payments pursuant to clause 9.2 in order to minimise bank and other intermediary charges in relation to international fund transfers.
10 GST for Australian Sellers
10.1 This clause 10 applies only to Australian Sellers.
10.2 Seller must supply a valid ABN and be registered for GST.
10.3 Invoices issued by Small Brands pursuant to clause 9.2(a) will be inclusive of GST.
10.4 If the Delivery Address for the Order is in Australia, the invoice generated pursuant to clause 3.2 and the the net amount paid to Seller pursuant to clause 9.2(b) will include GST that Seller is required to collect from the Customer. Seller acknowledges that it is liable to report and remit such GST to the Australian Commissioner of Taxation.
10.5 If the Delivery Address for the Order is not in Australia, the invoice generated pursuant to clause 3.2 and the net amount paid to Seller pursuant to clause 9.2(b) will not include any GST component. In respect of such Orders, Seller will ensure that the products are exported within the time period referred to in Clause 7.2 or within 60 days from the date of the Order, whichever first occurs.
11 GST for Non-Australian Sellers
11.1 This clause 11 applies only to Non-Australian Sellers.
11.2 Seller warrants in terms of the GST Law that (a) it is not carrying on an enterprise in Australia; and (b) it is not carrying on a business in Australia either at or through a fixed and definite place of its own for a sufficiently substantial period of time, or through an agent; and (c) it is not registered or required to be registered for GST.
11.3 Title to the products sold by a Non-Australian Seller pursuant to any Order will pass outside Australia. If the Customer provides a delivery address in Australia, that Customer will be responsible for importing the goods to Australia.
11.4 Notwithstanding anything elsewhere contained in this Agreement, Small Brands does not have the power to bind Seller into legal relations and does not have any right or authority to obligate Seller to accept any Order.
11.5 Invoices issued by Small Brands pursuant to clause 9.2(a) will be exclusive of GST.
11.6 Invoices generated pursuant to clause 3.2 and the net amount paid to Seller pursuant to clause 9.2(b) will not include any GST component.
12 Exclusions of and limitations on liability
12.1 Seller acknowledges and agrees that:
- it is not feasible for Small Brands to ensure that the Website is available at all times or that it is error-free or Virus-free and the internet is not necessarily a secure or reliable method of communication;
- while Small Brands has systems to back-up information on the Website, Seller should retain a copy of Seller’s Information so that it be can reloaded to a Store if necessary; and
- Small Brands is not liable for any failure to properly send or receive communications (including Orders) via the internet, or to make available the Website, due to any interference or failure.
12.2 Subject to clause 12.3, all express or implied warranties, representations, statements, terms and conditions relating to this agreement or its subject matter (including the Website) that are not contained in this Agreement are excluded to the maximum extent permitted by law.
12.3 Nothing in this agreement excludes, restricts or modifies any Non-Excludable Provision.
12.4 If a Non-Excludable Provision applies to this Agreement and Small Brands is entitled at law to limit Seller’s remedy for a breach of that Non-Excludable Provision, then Small Brands’ liability is limited to one or more of the following at Small Brands’ option:
- in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
- in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
12.5 Subject to clauses 12.6 and 12.7 and subject to Small Brands’ obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, Small Brands’ maximum aggregate liability for all claims under or relating to this Agreement or its subject matter which arise at any time during or after the Term, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to the lesser of $2,000 and the aggregate amount of Commissions and Fees that Small Brands has received from Seller.
12.6 The limitation in clause 12.5 does not apply to Small Brands’ obligation to remit payments to Seller that are collected by Small Brands under this Agreement.
12.7 Subject to Small Brands’ obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, Small Brands is not liable for, and no measure of damages will, under any circumstances, include special, indirect, consequential, incidental or punitive damages or damages for loss of profits, goodwill, anticipated savings or Loss or corruption of data whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term, or on any other basis.
13 Intellectual property rights
13.1 Seller grants Small Brands a world-wide, non-exclusive, royalty-free license (including the right to sublicense) to use, reproduce and communicate to the public Seller’s Information:
- during the Term: either as part of the Website (including in response to search requests or when displaying a list of products sorted by product category) or for promotional purposes relating to Small Brands or the Website in any medium; and
- after the Term: for archival, record-keeping and related and incidental purposes. Direct product links will stay active indefinitely for search engine optimisation purposes, even if a product has been unpublished or deleted, but such products will not be available for purchase.
13.2 Seller represents and warrants that the products displayed on its Store and Seller’s Information do not infringe the Intellectual Property Rights of any third party. Seller indemnifies Small Brands against any Loss that Small Brands may suffer or incur as a result of any Claim brought against Small Brands that the products displayed on its Store or the Seller’s Information infringes the Intellectual Property Rights of any third party.
13.3 Small Brands or its licensors retain ownership of all Intellectual Property Rights in and to the Website (other than Seller’s Information). Except as expressly permitted by this Agreement, Seller will not use or reproduce Small Brands’ name, logo or trade marks without Small Brands’ prior written approval.
14.1 Seller will comply with all reasonable guidelines provided from time to time by Small Brands relating to the operation of the Website, including those set out in the User Manual.
14.2 Seller will comply with all applicable laws in relation to the performance of its obligations under this Agreement, Seller’s products made available for purchase on the Website and Seller’s dealings with any purchasers of such products.
14.3 Seller may only use the information that Small Brands provides to Seller in relation to a Customer for the purposes of providing the Customer with products that are purchased by the Customer using the Website. Seller will not use such information for marketing or any other purposes.
14.4 During and after the Term, each party may only use the other party’s Confidential Information for the purposes of exercising its rights or performing its obligations under this Agreement. Otherwise, each party will keep the other party’s Confidential Information confidential and will not disclose, or cause or permit the disclosure of, such information except with the prior written consent of the other party.
14.5 This Agreement is governed by the laws of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
14.6 Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver.
14.7 Seller will not assign this Agreement or any right or benefit under, relating to or arising out of this Agreement except with Small Brands’ prior written consent.
15 Definitions and interpretation.
15.1 The following definitions apply in these terms and conditions:
- Affiliated Website means any website facility set up by Small Brands to increase the exposure and sale of products offered for sale on Small Brands’ own Website.
- Agreement means the agreement between Small Brands and a Seller made in accordance with clauses 1.3 and 2.1 and incorporating these terms and conditions, as amended from time to time.
- Australian Seller means a Seller that supplies products in Australia or through an enterprise carried on in Australia, or whose supply of products is connected with Australia. In the preceding sentence, “enterprise”, “carried on in Australia” and “connected with Australia” have the meanings defined in the GST Law.
- Charge-back Fee means, in relation to any payment dispute, the amount charged by the Website Payment Provider in connection with resolution of that dispute.
- Claim means any claim, action, proceeding or demand.
- Commencement Date means the date on which the Term commences, being the date determined under clause 2.1.
- Commission means the agent’s commission charged to Seller by Small Brands, calculated at the rate set by Small Brands from time to time.
- Confidential Information means any information disclosed or revealed by one party to the other party under or in relation to the Agreement that is by its nature confidential, is designated by the disclosing party as confidential or the receiving party knows or reasonably ought to know is confidential (including the terms of this agreement) BUT EXCLUDING information that is published or has otherwise entered the public domain without a breach of this Agreement or other obligation of confidence, is obtained from a third party who has no obligation of confidentiality to the disclosing party or is independently developed or obtained without breach of this Agreement.
- Customer means a customer of Seller’s Store on the Website.
- Delivery Address means, in relation to an Order, the address that the Customer has specified in the shipping details as the address to which the product is to be sent by the Seller.
- Exclusive means, in relation to a product, that the product is available for purchase from Seller only through the Store and not directly or through any other website or distribution channel.
- Fee means a fee which Seller has agreed to pay to Small Brands.
- Free Delivery means, in relation to an Order, delivery by regular post or better at no additional charge.
- GST and GST Law have the meanings defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)
- Small Brands means Small Brands Pty Limited ACN 132 954 039
- Intellectual Property Rights means all the rights conferred by the law of any country or jurisdiction in the world in relation to any invention, discovery, literary work, dramatic work, musical work, artistic work, copyright, moral right, database, trade mark, service mark, design, patent, semiconductor topography, confidential information, know-how, or trade secret, and in each case whether or not it has been reduced to a material form, and howsoever it may be recorded, stored or embodied.
- Loss means any damage, loss (including any currency exchange loss), cost, expense or liability.
- Non-Australian Seller means a Seller that is not an Australian Seller.
- Non-Excludable Provision means a guarantee, term, condition, warranty, right or remedy implied or imposed by any Australian statute (for example, the Australian Consumer Law) or regulation which cannot lawfully be excluded or limited under the terms of that statute or regulation.
- Order means an order placed by a Customer to purchase a product from Seller using the Website.
- Returns Policy means the policy on returns and refunds stated on the Website and in the Standard Customer Terms.
- Seller means a person who has applied to sell on the Website and been accepted as a seller by Small Brands, subject to the terms of this Agreement as amended from time to time.
- Seller Administration Section means the section of the Website’s content management system that is used by Seller to upload information and image files and manage Orders.
- Seller’s Information means any information or materials that Seller provides in its Store, including any product names, images or trademarks.
- Seller’s Website means a website published by or on behalf of Seller and includes any website through which Seller offers products for sale, other than the Small Brands Website.
- Standard Customer Terms means the standard terms and conditions that apply to the offer, sale and supply of products to Customers on the Website.
- Store means, in respect of a Seller, the information and images Seller has provided for inclusion on the Website or which the Seller has uploaded to the Website through the Seller Administration Section.
- Store Credit means a credit of a denominated value issued by Small Brands to a Customer for use by a Customer in payment for any products made available for sale on the Website.
- Tax means all forms of taxation including goods, services, value-added, withholdings, charges, assessments, contributions, remittances, imposts, excises, levies, duties and rates, whether imposed in Australia or elsewhere; and includes any reassessments of any such taxation and all penalties, interest, fines, or the like imposed in respect of any such taxation.
- Term means the term of this Agreement, being the period commencing on the Commencement Date and ending on the date of termination under clause 2.2.
- User Manual means the user manual as amended from time to time made available to Seller through the Seller Administration Section.
- Virus means any computer virus, macro virus, trojan horse, worm or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or network, or to intercept or access without authority or expropriate any system, information or data
- Website means Small Brands’ website at URL www.Small Brands.com.au as extended by any Affiliated Website.
- Website Payment Provider means any third party that Small Brands uses to collect payments (including a bank, credit or debit card scheme or other payment processing service such as PayPal).
15.2 The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Conditions.
15.3 Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender.
15.4 References to a person include an individual, company, corporation, firm or partnership.
15.5 All references to clauses are to the clauses in this Agreement unless otherwise stated.
15.6 References to the words “include”, “includes”, “including”, “in particular” or any similar words do not limit the words proceeding or following.